I
105TH CONGRESS
1ST SESSION
H. R. 2222
To amend the Federal Water Pollution Control Act relating to Federal
facilities pollution control.
IN THE HOUSE OF REPRESENTATIVES
JULY 23, 1997
Mr. DEFAZIO (for himself, Ms. FURSE, Ms. HOOLEY of Oregon, Mr.
BLUMENAUER, Mr. DELLUMS, Mr. BONIOR, Mr. BROWN of California,
Mrs. MALONEY of New York, Mr. BARRETT of Wisconsin, Mr. HINCHEY,
and Mr. TRAFICANT) introduced the following bill; which was referred to
the Committee on Transporation and Infrastructure
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 1997’’.
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, or any require-
ment imposed under section 402(b)(9) 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 section 301 with
regard to discharges of dredged or fill ma-
terial or any condition or limitation in a
permit issued under section 404 of this
Act; and
‘‘(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 issue an order to assess an administrative
penalty for any past or current violation or re-
quire compliance or correction of any past or
current violation immediately or within a speci-
fied 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 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 department, agency,
or instrumentality of the United States named there-
in requests a public hearing. Upon such request, the
‘‘(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 re-
quire.
‘‘(5) EMERGENCY ORDERS AT FEDERAL FACILI-
TIES.—The Administrator may issue an emergency
administrative order to, and assess an administrative
penalty for violations of the order against, a Federal
agency under the same circumstances as an emer-
gency order may be issued to, and such penalty for
violation of such order may be assessed, against any
other person under this title.
‘‘(6) CONSULTATION
WITH
THE
ADMINIS-
TRATOR.—No administrative order, including any
emergency order or field citation, issued to a Federal
department, agency or instrumentality under this
subsection shall become final until such department,
agency, or instrumentality has had the opportunity
to confer with the Administrator.
‘‘(7) EXISTING COMPLIANCE ORDERS.—Nothing
in this section shall be construed to alter, modify, or
change in any manner any Federal facility compli-
ance agreement, permit, administrative order or ju-
dicial order that is in effect on the effective date of
this subsection.
‘‘(8) ACTIONS
AND
RIGHTS
OF
INTERESTED
PERSONS.—No administrative action which has been
commenced by the Administrator or the Secretary
under this subsection with respect to a violation
shall preclude a civil enforcement action under sec-
tion 505 of this Act for the same violation or viola-
tions.
‘‘(9) SPECIAL RULES.—
‘‘(A) PUBLIC NOTICE.—Before issuing an
order under this subsection, the Administrator
or Secretary, as the case may be, shall provide
public notice of and reasonable opportunity to
comment on the proposed issuance of such
order.
‘‘(B) PRESENTATION OF EVIDENCE.—Any
person who comments on a proposed order
under this subsection shall be given notice of
any hearing held under paragraph (2) and the
order. In any hearing held under this sub-
section, such person shall have a reasonable op-
portunity to be heard and to present evidence.
‘‘(C) RIGHTS OF INTERESTED PERSONS TO
A HEARING.—If no hearing is held under para-
graph (2), any person who commented on the
proposed order may petition, within 30 days
after the issuance of such order, the Adminis-
trator or Secretary, as the case may be, to set
aside such order and to provide a hearing on
the order. If the evidence presented by the peti-
tioner in support of the petition is material and
was not considered in the issuance of the order,
the Administrator or Secretary shall imme-
diately set aside such order and provide a hear-
ing in accordance with paragraph (2). The af-
fected Federal department, agency, or instru-
mentality shall be given notice of any hearing
and shall be permitted to participate in such
hearing. If the Administrator or Secretary de-
nies a hearing under this subparagraph, the
Administrator shall provide to the petitioner
and to the affected Federal department, agency,
or instrumentality, and publish in the Federal
Register, notice of and the reasons for such de-
nial.
‘‘(D) FINALITY OF ORDER.—An order is-
sued under this subsection shall become final
30 days after its issuance unless the order is
withdrawn or a hearing is requested under
paragraph (2) or (5). If such a hearing is de-
nied, such order shall become final 30 days
after such denial. If such a hearing is granted,
the order shall become final 30 days after the
decision to uphold the order or to issue a new
order.
‘‘(10) CITIZEN’S
CIVIL
ACTION.—Any person
may commence a civil action on his or her own be-
half against—
‘‘(A) any Federal agency that is alleged to
have violated or to be in violation of any order
issued by the Administrator or the Secretary
under this title; or
‘‘(B) any Federal agency that fails, within
1 year of the effective date of a final order, to
pay a penalty assessed by the Administrator or
the Secretary under this subsection.’’.
SEC. 4. DETERMINATION OF AMOUNT OF CIVIL PENALTIES.
The second sentence of section 309(d) of the Federal
Water Pollution Control Act (33 U.S.C. 1319(d)) is
amended by inserting ‘‘the amount of any penalty pre-
viously imposed on the violator by a court or administra-
tive agency for the same violation or violations,’’ after
‘‘economic impact of the penalty on the violator,’’.
SEC. 5. 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. 6. 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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