I
104TH CONGRESS
1ST SESSION
H. R. 1262
To amend the Federal Water Pollution Control Act to improve the
enforcement and compliance programs.
IN THE HOUSE OF REPRESENTATIVES
MARCH 16, 1995
Mr. PALLONE (for himself, Mr. SHAYS, Mr. GILCHREST, Mr. DEFAZIO, Mr.
TOWNS, Ms. ROYBAL-ALLARD, Mr. STARK, Mrs. LOWEY, Mr. JACOBS,
Mr. ROMERO-BARCELO´, and Mr. JOHNSTON of Florida) 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.
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 ‘‘Clean Water Enforce-
ment and Compliance Improvement Amendments Act of
1995’’.
SEC. 2. FINDINGS.
(a) IN GENERAL.—Congress finds that—
(1) a significant number of persons who have
been issued permits under section 402 of the Fed-
eral Water Pollution Control Act are in violation of
such permits;
(2) current enforcement programs of the Ad-
ministrator of the Environmental Protection Agency
and the States fail to address violations of such per-
mits in a timely and effective manner;
(3) often violations of such permits continue for
a considerable period of time, yielding significant
economic benefits for the violator and thus penaliz-
ing similar facilities which act lawfully;
(4) penalties assessed and collected by the Ad-
ministrator from violators of such permits are often
less than the economic benefit gained by the violator;
(5) swift and timely enforcement by the Admin-
istrator and the States of violations of such permits
is necessary to increase levels of compliance with
such permits; and
(6) actions of private citizens have been effec-
tive in enforcing such permits and directing funds to
environmental mitigation projects with $11,000,000
in penalties and interest having been recovered and
deposited with the Treasury of the United States
over the fiscal years 1988 through 1993.
(b) FINDING WITH RESPECT TO HARM CAUSED BY
VIOLATIONS.—Section 101 of the Federal Water Pollution
Control Act (33 U.S.C. 1251) is amended by adding at
the end the following:
‘‘(h) FINDING WITH RESPECT TO HARM CAUSED BY
VIOLATIONS.—Congress finds that a discharge which re-
sults in a violation of this Act or a regulation, standard,
limitation, requirement, or order issued pursuant to this
Act interferes with the restoration and maintenance of the
chemical, physical, and biological integrity of any waters
into which the discharge flows (either directly or through
a publicly owned treatment works), including any waters
into which the receiving waters flow, and, therefore, harms
those who use or enjoy such waters and those who use
or enjoy nearby lands or aquatic resources associated with
those waters.
‘‘(i) FINDING WITH RESPECT TO CITIZEN SUITS.—
Congress finds that citizen suits are a valuable means of
enforcement of this Act and urges the Administrator to
take actions to encourage such suits, including providing
information concerning violators to citizen groups to assist
them in bringing suits, providing expert witnesses and
other evidence with respect to such suits, and filing amicus
curiae briefs on important issues related to such suits.’’.
SEC. 3. VIOLATIONS OF REQUIREMENTS OF LOCAL CON-
TROL AUTHORITIES.
Section 307(d) of Federal Water Pollution Control
Act (33 U.S.C. 1317(d)) is amended to read as follows:
‘‘(d) VIOLATIONS.—After the date on which (1) any
effluent standard or prohibition or pretreatment standard
or requirement takes effect under this section, or (2) any
requirement imposed in a pretreatment program under
section 402(a)(3) or 402(b)(8) of this Act takes effect, it
shall be unlawful for any owner or operator of any source
to operate such source in violation of the effluent stand-
ard, prohibition, pretreatment standard, or requirement.’’.
SEC. 4. INSPECTIONS, MONITORING, AND PROVIDING IN-
FORMATION.
(a) APPLICABILITY
OF
REQUIREMENTS.—Section
308(a) of the Federal Water Pollution Control Act (33
U.S.C. 1318(a)) is amended by striking ‘‘the owner or op-
erator of any point source’’ and inserting ‘‘a person sub-
ject to a requirement of this Act’’.
(b) PUBLIC ACCESS TO INFORMATION.—The first
sentence of section 308(b) of such Act is amended—
(1) by inserting ‘‘(including information con-
tained in the Permit Compliance System of the En-
vironmental Protection Agency)’’ after ‘‘obtained
under this section’’;
(2) by inserting ‘‘made’’ after ‘‘shall be’’; and
(3) by inserting ‘‘by computer telecommuni-
cation and other means’’ after ‘‘public’’ the first
place it appears.
(c) PUBLIC INFORMATION.—Section 308 of such Act
is further amended by adding at the end the following:
‘‘(e) PUBLIC INFORMATION.—
‘‘(1) POSTING OF NOTICE OF POLLUTED WA-
TERS.—At each major point of public access (includ-
ing, at a minimum, beaches, parks, recreation areas,
marinas, and boat launching areas) to a body of
navigable water that does not meet an applicable
water quality standard or that is subject to a fishing
and shell fishing ban, advisory, or consumption re-
striction (issued by a Federal, State, or local author-
ity) due to fish or shellfish contamination, the State
within which boundaries all or any part of such body
of water lies shall, either directly or through local
authorities, post and maintain a clearly visible sign
which—
‘‘(A) indicates the water quality standard
that is being violated or the nature and extent
of the restriction on fish or shellfish consump-
tion, as the case may be;
‘‘(B) includes (i) information on the envi-
ronmental and health effects associated with
the failure to meet such standard or with the
consumption of fish or shellfish subject to the
restriction, and (ii) a phone number for obtain-
ing additional information relating to the viola-
tion and restriction; and
‘‘(C) will be maintained until the body of
water is in compliance with the water quality
standard or until all fish and shellfish consump-
tion restrictions are terminated with respect to
the body of water, as the case may be.
‘‘(2) NOTICE OF DISCHARGES TO NAVIGABLE
WATERS.—Except for permits issued to municipali-
ties for discharges composed entirely of stormwater
under section 402 of this Act, each permit issued
under section 402 by the Administrator or by a
State shall ensure compliance with the following
requirements:
‘‘(A) Every permittee shall conspicuously
maintain at all public entrances to the facility
a clearly visible sign which indicates that the
facility discharges pollutants into navigable wa-
ters and the location of such discharges; the
name, business address, and phone number of
the permittee; the permit number; and a loca-
tion at which a copy of the permit and public
information required by this paragraph is main-
tained and made available for inspection or a
phone number for obtaining such information.
‘‘(B) Each permittee which is a publicly
owned treatment works shall include in each
quarterly mailing of a bill to each customer of
the treatment works information which indi-
cates that the treatment works discharges pol-
lutants into the navigable waters and the loca-
tion of each of such discharges; the name, busi-
ness address and phone number of the permit-
tee; the permit number; a location at which a
copy of the permit and public information re-
quired by this paragraph is maintained and
made available for inspection or a phone num-
ber for obtaining such information; and a list of
all violations of the requirements of the permit
by the treatment works over the preceding 12-
month period.
‘‘(3) REGULATIONS.—
‘‘(A) ISSUANCE.—The Administrator—
‘‘(i) not later than 6 months after the
date of the enactment of this subsection,
shall propose regulations to carry out this
subsection; and
‘‘(ii) not later than 18 months after
such date of enactment, shall issue such
regulations.
‘‘(B) CONTENT.—The regulations issued to
carry out this subsection shall establish—
‘‘(i) uniform requirements and proce-
dures for identifying and posting bodies of
water under paragraph (1);
‘‘(ii) minimum information to be in-
cluded in signs posted and notices issued
pursuant to this subsection;
‘‘(iii) uniform requirements and proce-
dures for fish and shellfish sampling and
analysis;
‘‘(iv) uniform requirements for deter-
mining the nature and extent of fish and
shellfish bans, advisories, and consumption
restrictions which—
‘‘(I) 
address 
cancer 
and
noncancer human health risks;
‘‘(II) take into account the ef-
fects of all fish and shellfish contami-
nants, including the cumulative and
synergistic effects;
‘‘(III) assure the protection of
subpopulations who consume higher
than average amounts of fish and
shellfish or are particularly susceptible
to the effects of such contamination;
‘‘(IV) address race, gender, eth-
nic composition, or social and eco-
nomic factors, based on the latest
available studies of national or re-
gional consumption by and impacts on
such subpopulations unless more reli-
able site-specific data is available;
‘‘(V) are based on a margin of
safety that takes into account the un-
certainties in human health impacts
from such contamination; and
‘‘(VI) evaluate assessments of
health risks of contaminated fish and
shellfish that are used in pollution
control programs developed by the Ad-
ministrator under this Act.’’.
(d) STATE REPORTS.—Section 305(b)(1) of such Act
(33 U.S.C. 1315(b)(1)) is amended—
(1) by striking ‘‘and’’ at the end of subpara-
graph (D);
(2) by striking the period at the end of sub-
paragraph (E) and inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(F) a list identifying bodies of water for
which 
signs 
were 
posted 
under 
section
308(e)(1) in the preceding year.’’.
SEC. 5. CIVIL PENALTIES.
(a) ENFORCEMENT OF LOCAL PRETREATMENT RE-
QUIREMENTS.—
(1) COMPLIANCE ORDERS.—
(A) INITIAL ACTION.—Section 309(a)(1) of
the Federal Water Pollution Control Act (33
U.S.C. 1319(a)(1)) is amended by inserting
after ‘‘404 of this Act,’’ the following: ‘‘or is in
violation of any requirement imposed in a
pretreatment program approved under section
402(a)(3) or 402(b)(8) of this Act,’’.
(B) 
ISSUANCE
OF
ORDERS.—Section
309(a)(3) of such Act is amended by inserting
after ‘‘404 of this Act by a State,’’ the follow-
ing: ‘‘or is in violation of any requirement im-
posed in a pretreatment program approved
under section 402(a)(3) or 402(b)(8) of this
Act,’’.
(2) 
CRIMINAL
PENALTIES.—Section
309(c)(3)(A) of such Act is amended by inserting
after ‘‘Army or by a State,’’ the following: ‘‘or know-
ingly violates any requirement imposed in a
pretreatment 
program 
approved 
under 
section
402(a)(3) or 402(b)(8) of this Act,’’.
(3) 
ADMINISTRATIVE
PENALTIES.—Section
309(g)(1)(A) of such Act is amended by inserting
after ‘‘404 by a State,’’ the following: ‘‘or has vio-
lated any requirement imposed in a pretreatment
program approved under section 402(a)(3) or
402(b)(8) of this Act or an order issued by the Ad-
ministrator under subsection (a) of this section,’’.
(b) TREATMENT
OF SINGLE OPERATIONAL UP-
SETS.—
(1) CRIMINAL PENALTIES.—Section 309(c) of
such Act is amended by striking paragraph (5) and
redesignating paragraphs (6) and (7) as paragraphs
(5) and (6), respectively.
(2) CIVIL PENALTIES.—Section 309(d) of such
Act is amended by striking the last sentence.
(3) 
ADMINISTRATIVE
PENALTIES.—Section
309(g)(3) of such Act is amended by striking the
last sentence.
(c) USE
OF CIVIL PENALTIES
FOR MITIGATION
PROJECTS.—
(1) IN GENERAL.—Section 309(d) of such Act
is amended by inserting after the second sentence
the following: ‘‘The court may, in the court’s discre-
tion, order that a civil penalty be used for carrying
out mitigation projects which are consistent with the
purposes of this Act and which enhance the public
health or environment.’’.
(2) 
CONFORMING
AMENDMENT.—Section
505(a) of such Act (33 U.S.C. 1365(a)) is amended
by inserting before the period at the end of the last
sentence the following: ‘‘, including ordering the use
of a civil penalty for carrying out mitigation projects
in accordance with such section 309(d)’’.
(d) DETERMINATION OF AMOUNT OF PENALTIES.—
(1) CIVIL PENALTIES.—The second sentence of
section 309(d) of such Act (33 U.S.C. 1319(d)) is
amended by inserting ‘‘the amount of any penalty
previously imposed on the violator by a court or ad-
ministrative agency for the same violation or viola-
tions,’’ after ‘‘economic impact of the penalty on the
violator,’’.
(2) 
ADMINISTRATIVE
PENALTIES.—Section
309(g)(3) of such Act is amended—
(A) by striking ‘‘or savings’’; or
(B) by inserting ‘‘the amount of any pen-
alty previously imposed on the violator by a
court or administrative agency for the same vio-
lation or violations,’’ after ‘‘resulting from the
violation,’’.
(e) LIMITATION ON DEFENSES.—Section 309(g)(1)
of such Act is amended by adding at the end the following:
‘‘In a proceeding to assess or review a penalty under this
subsection, the adequacy of consultation between the Ad-
ministrator or the Secretary, as the case may be, and the
State shall not be a defense to assessment or enforcement
of such penalty.’’.
(f) AMOUNTS
OF
ADMINISTRATIVE
CIVIL
PEN-
ALTIES.—
(1) GENERAL
RULE.—Section 309(g)(2) of
such Act is amended to read as follows:
‘‘(2) AMOUNT OF PENALTIES; NOTICE; HEAR-
ING.—
‘‘(A) MAXIMUM AMOUNT OF PENALTIES.—
The amount of a civil penalty under paragraph
(1) may not exceed $25,000 per violation per
day for each day during which the violation
continues.
‘‘(B) WRITTEN
NOTICE.—Before issuing
an order assessing a civil penalty under this
subsection, the Administrator or the Secretary,
as the case may be, shall give to the person to
be assessed the penalty written notice of the
Administrator’s or Secretary’s proposal to issue
the order and the opportunity to request, within
30 days of the date the notice is received by
such person, a hearing on the proposed order.
‘‘(C) HEARINGS NOT ON THE RECORD.—If
the proposed penalty does not exceed $25,000,
the hearing shall not be subject to section 554
or 556 of title 5, United States Code, but shall
provide a reasonable opportunity to be heard
and to present evidence.
‘‘(D) HEARINGS ON THE RECORD.—If the
proposed penalty exceeds $25,000, the hearing
shall be on the record in accordance with sec-
tion 554 of title 5, United States Code. The
Administrator and the Secretary may issue
rules for discovery procedures for hearings
under this subparagraph.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
309(g) of such Act is amended—
(A) in paragraph (1) by striking ‘‘class I
civil penalty or a class II’’;
(B) in the second sentence of paragraph
(4)(C) by striking ‘‘(2)(A) in the case of a class
I civil penalty and paragraph (2)(B) in the case
of a class II civil penalty’’ and inserting ‘‘(2)’’;
and
(C) in the first sentence of paragraph (8)
by striking ‘‘assessment—’’ and all that follows
through ‘‘by filing’’ and inserting ‘‘assessment
in the United States District Court for the Dis-
trict of Columbia or in the district in which the
violation is alleged to have occurred by filing’’.
(g) STATE ENFORCEMENT ACTIONS AS BAR TO FED-
ERAL ENFORCEMENT ACTIONS.—Section 309(g)(6)(A) of
such Act is amended—
(1) by inserting ‘‘or’’ after the comma at the
end of clause (i);
(2) by striking clause (ii); and
(3) in clause (iii)—
(A) by striking ‘‘, the Secretary, or the
State’’ and inserting ‘‘or the Secretary’’; and
(B) by striking ‘‘or such comparable State
law, as the case may be,’’.
(h) RECOVERY
OF ECONOMIC BENEFIT.—Section
309 of such Act is amended by adding at the end the
following:
‘‘(h) RECOVERY OF ECONOMIC BENEFIT.—
‘‘(1) GENERAL
RULE.—Notwithstanding any
other provision of this section, any civil penalty as-
sessed and collected under this section must be in an
amount which is not less than the amount of the
economic benefit (if any) resulting from the violation
for which the penalty is assessed.
‘‘(2) REGULATIONS.—Not later than 2 years
after the date of the enactment of this subsection,
the Administrator shall issue regulations establishing
a methodology for calculating the economic benefits
or savings resulting from violations of this Act.
Pending issuance of such regulations, this subsection
shall be in effect and economic benefits shall be cal-
culated for purposes of paragraph (1) on a case-by-
case basis.’’.
(i) LIMITATION
ON COMPROMISES.—Such section
309 is further amended by adding at the end the following:
‘‘(i) LIMITATION ON COMPROMISES OF CIVIL PEN-
ALTIES.—Notwithstanding any other provision of this sec-
tion, the amount of a civil penalty assessed under this sec-
tion may not be compromised below the amount deter-
mined by adding—
‘‘(1) the minimum amount required for recovery
of economic benefit under subsection (h), to
‘‘(2) 50 percent of the difference between the
amount of the civil penalty assessed and such mini-
mum amount.’’.
(j) MINIMUM AMOUNT FOR SERIOUS VIOLATIONS.—
Such section 309 is further amended by adding at the end
the following:
‘‘(j) MINIMUM CIVIL PENALTIES FOR SERIOUS VIO-
LATIONS AND SIGNIFICANT NONCOMPLIERS.—
‘‘(1) SERIOUS
VIOLATIONS.—Notwithstanding
any other provision of this section (other than para-
graph (2)), the minimum civil penalty which shall be
assessed and collected under this section from a per-
son—
‘‘(A) for a discharge from a point source of
a hazardous pollutant which exceeds or other-
wise violates any applicable effluent limitation
established by or under this Act by 20 percent
or more, or
‘‘(B) for a discharge from a point source
of a pollutant (other than a hazardous pollut-
ant) which exceeds or otherwise violates any ap-