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United States Code (Last Updated: May 24, 2014) |
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Title 42. THE PUBLIC HEALTH AND WELFARE |
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Chapter 85. AIR POLLUTION PREVENTION AND CONTROL |
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SubChapter I. PROGRAMS AND ACTIVITIES |
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Part A. Air Quality and Emission Limitations |
§ 7413. Federal enforcement
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(a) In general (1) Order to comply with SIP Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may, without regard to the period of violation (subject to section 2462 of title 28)— (A) issue an order requiring such person to comply with the requirements or prohibitions of such plan or permit, (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action in accordance with subsection (b) of this section. (2) State failure to enforce SIP or permit program Whenever, on the basis of information available to the Administrator, the Administrator finds that violations of an applicable implementation plan or an approved permit program under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Administrator shall so notify the State. In the case of a permit program, the notice shall be made in accordance with subchapter V of this chapter. If the Administrator finds such failure extends beyond the 30th day after such notice (90 days in the case of such permit program), the Administrator shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as “period of federally assumed enforcement”), the Administrator may enforce any requirement or prohibition of such plan or permit program with respect to any person by— (A) issuing an order requiring such person to comply with such requirement or prohibition, (B) issuing an administrative penalty order in accordance with subsection (d) of this section, or (C) bringing a civil action in accordance with subsection (b) of this section. (3) EPA enforcement of other requirements Except for a requirement or prohibition enforceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other requirement or prohibition of this subchapter, section 7603 of this title, subchapter IV–A, subchapter V, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promulgated, issued, or approved under those provisions or subchapters, or for the payment of any fee owed to the United States under this chapter (other than subchapter II of this chapter), the Administrator may— (A) issue an administrative penalty order in accordance with subsection (d) of this section, (B) issue an order requiring such person to comply with such requirement or prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section 7605 of this title, or (D) request the Attorney General to commence a criminal action in accordance with subsection (c) of this section. (4) Requirements for orders An order issued under this subsection (other than an order relating to a violation of section 7412 of this title) shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pollution control agency of any State in which the violation occurs. Any order issued under this subsection shall state with reasonable specificity the nature of the violation and specify a time for compliance which the Administrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this subsection (or notice to a violator under paragraph (1)) is issued to a corporation, a copy of such order (or notice) shall be issued to appropriate corporate officers. An order issued under this subsection shall require the person to whom it was issued to comply with the requirement as expeditiously as practicable, but in no event longer than one year after the date the order was issued, and shall be nonrenewable. No order issued under this subsection shall prevent the State or the Administrator from assessing any penalties nor otherwise affect or limit the State’s or the United States authority to enforce under other provisions of this chapter, nor affect any person’s obligations to comply with any section of this chapter or with a term or condition of any permit or applicable implementation plan promulgated or approved under this chapter.
(5) Failure to comply with new source requirements Whenever, on the basis of any available information, the Administrator finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources, the Administrator may— (A) issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies; or employee of the United States or any State or local government who furnishes information or renders service in the performance of an official duty is ineligible for payment under this subsection. The Administrator may, by regulation, prescribe additional criteria for eligibility for such an award. (g) Settlements; public participation At least 30 days before a consent order or settlement agreement of any kind under this chapter to which the United States is a party (other than enforcement actions under this section, section 7420 of this title, or subchapter II of this chapter, whether or not involving civil or criminal penalties, or judgments subject to Department of Justice policy on public participation) is final or filed with a court, the Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action or matter to comment in writing. The Administrator or the Attorney General, as appropriate, shall promptly consider any such written comments and may withdraw or withhold his consent to the proposed order or agreement if the comments disclose facts or considerations which indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this subsection shall apply to civil or criminal penalties under this chapter.
(h) Operator For purposes of the provisions of this section and section 7420 of this title, the term “operator”, as used in such provisions, shall include any person who is senior management personnel or a corporate officer. Except in the case of knowing and willful violations, such term shall not include any person who is a stationary engineer or technician responsible for the operation, maintenance, repair, or monitoring of equipment and facilities and who often has supervisory and training duties but who is not senior management personnel or a corporate officer. Except in the case of knowing and willful violations, for purposes of subsection (c)(4) of this section, the term “a person” shall not include an employee who is carrying out his normal activities and who is not a part of senior management personnel or a corporate officer. Except in the case of knowing and willful violations, for purposes of paragraphs (1), (2), (3), and (5) of subsection (c) of this section the term “a person” shall not include an employee who is carrying out his normal activities and who is acting under orders from the employer.
Codification
Section was formerly classified to section 1857c–8 of this title.
Amendments
1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), finding of violation, notice, compliance order, civil action, State failure to enforce plan, and construction or modification of major stationary sources; in subsec. (b), violations by owners or operators of major stationary sources; in subsec. (c), penalties; in subsec. (d), final compliance orders; and in subsec. (e), steel industry compliance extension.
1981—Subsec. (e). Pub. L. 97–23 added subsec. (e).
1977—Subsec. (a)(5). Pub. L. 95–95, § 111(a), added par. (5).
Subsec. (b). Pub. L. 95–95, § 111(b), (c), substituted “shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both, whenever such person” for “may commence a civil action for appropriate relief, including a permanent or temporary injunction, whenever any person” in provisions preceding par. (1), inserted references to subsec. (d)(5) of this section, sections 7419 and 7620 of this title, and regulations under part in par. (3), inserted reference to subsec. (d) of this section in par. (4), added par. (5), and, in provisions following par. (5), authorized the commencement of civil actions to recover noncompliance penalties and nonpayment penalties under section 7420 of this title, expanded jurisdictional provisions to authorize actions in districts in which the violation occurred and to authorize the district court to restrain violations, to require compliance, to assess civil penalties, and to collect penalties under section 7420 of this title, enumerated factors to be taken into consideration in determining the amount of civil penalties, and authorized awarding of costs to the party or parties against whom the action was brought in cases where the court finds that the action was unreasonable.
Subsec. (b)(3). Pub. L. 95–190, § 14(a)(10), (11), inserted “or” after “ozone);”, and substituted “7624” for “7620”, “conversion), section” for “conversion) section”, and “orders), or” for “orders) or”.
Subsec. (c)(1). Pub. L. 95–95, § 111(d)(1), (2), substituted “any order issued under section 7419 of this title or under subsection (a) or (d) of this section” for “any order issued by the Administrator under subsection (a) of this section” in subpar. (B), struck out reference to section 119(g) (as in effect before the date of the enactment of Pub. L. 95–95) in subpar. (C), and added subpar. (D).
Subsec. (c)(1)(B). Pub. L. 95–190, § 14(a)(12), inserted “or” after “section,”.
Subsec. (c)(1)(D). Pub. L. 95–190, § 14(a)(13), substituted “1977 subsection” for “1977) subsection” and “penalties), or” for “penalties) or”.
Subsec. (c)(3). Pub. L. 95–95, § 111(d)(3), added par. (3).
Subsec. (d). Pub. L. 95–95, § 112(a), added subsec. (d).
Subsec. (d)(1). Pub. L. 95–190, § 14(a)(14), substituted “to any stationary source which is unable to comply with any requirement of an applicable implementation plan an order” for “an order for any stationary source” and “such requirement” for “any requirement of an applicable implementation plan”.
Subsec. (d)(1)(E). Pub. L. 95–190, § 14(a)(15), inserted provision relating to exemption under section 7420(a)(2)(B) or (C) of this title, provision relating to noncompliance penalties effective
Subsec. (d)(2). Pub. L. 95–190, § 14(a)(16), inserted provisions relating to determinations by the Administrator of compliance with requirements of this chapter of State orders issued under this subsection.
Subsec. (d)(4)(A). Pub. L. 95–190, § 14(a)(17), substituted “title) upon” for “title upon”.
Subsec. (d)(5)(A). Pub. L. 95–190, § 14(a)(18), substituted “an additional period for” for “an additional period of”.
Subsec. (d)(8). Pub. L. 95–190, § 14(a)(19), struck out reference to par. (3) of this subsection.
Subsec. (d)(10). Pub. L. 95–190, § 14(a)(20), substituted “in effect” for “issued”, “Federal” for “other”, and “and no action under” for “or”.
Subsec. (d)(11). Pub. L. 95–190, § 14(a)(21), substituted “and in effect” for “(and approved by the Administrator)”.
1974—Subsec. (a)(3). Pub. L. 93–319, § 6(a)(1), inserted reference to section 1857c–10(g) of this title (relating to energy-related authorities).
Subsecs. (b)(3), (c)(1)(C). Pub. L. 93–319, § 6(a)(2), (3), inserted reference to section 1857c–10(g) of this title.
1971—Subsec. (b)(2). Pub. L. 92–157, § 302(b), inserted “(A)” before “during” and “, or (B)” after “assumed enforcement”.
Subsec. (c)(1)(A). Pub. L. 92–157, § 302(c), inserted “(i)” before “during” and “, or (ii)” after “assumed enforcement”.
Effective Date Of Amendment
Amendment by Pub. L. 95–95 effective
Miscellaneous
Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act
All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursuant to act
Transfer Of Functions
Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of this title.