42 U.S.C. § 9609 — Civil penalties and awards

Page 7755 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9609 section 9607 of this title if any action had been brought against such person by the claimant and all rights and defenses which would have been available to the guarantor if an action had been brought against the guarantor by such person. (d) Limitation of guarantor liability (1) Total liability The total liability of any guarantor in a di- rect action suit brought under this section shall be limited to the aggregate amount of the monetary limits of the policy of insurance, guarantee, surety bond, letter of credit, or similar instrument obtained from the guar- antor by the person subject to liability under section 9607 of this title for the purpose of sat- isfying the requirement for evidence of finan- cial responsibility. (2) Other liability Nothing in this subsection shall be con- strued to limit any other State or Federal statutory, contractual, or common law liabil- ity of a guarantor, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed, interpreted, or applied to diminish the liability of any person under section 9607 of this title or other appli- cable law. (Pub. L. 96–510, title I, § 108, Dec. 11, 1980, 94 Stat. 2785; Pub. L. 99–499, title I, §§ 108, 127(c), Oct. 17, 1986, 100 Stat. 1631, 1692.) Editorial Notes REFERENCES IN TEXT The Solid Waste Disposal Act, referred to in subsec. (b)(1), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Solid Waste Dis- posal Act is classified generally to subchapter III (§ 6921 et seq.) of chapter 82 of this title. For complete classi- fication of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. This chapter, referred to in subsec. (b)(2), (5), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Envi- ronmental Response, Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. The Federal Bankruptcy Code, referred to in subsec. (c)(2), probably means a reference to Title 11, Bank- ruptcy. CODIFICATION In subsec. (a)(2), ‘‘section 60105 of title 46’’ substituted for ‘‘section 4197 of the Revised Statutes of the United States’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 60105 of Title 46, Shipping. In subsec. (b)(5), ‘‘section 31139 of title 49’’ substituted for ‘‘section 30 of the Motor Carrier Act of 1980, Public Law 96–296’’ on authority of Pub. L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation. AMENDMENTS 1986—Subsec. (a)(1). Pub. L. 99–499, § 127(c)(1), inserted ‘‘to cover the liability prescribed under paragraph (1) of section 9607(a) of this title’’ after ‘‘whichever is great- er)’’. Subsec. (a)(4). Pub. L. 99–499, § 127(c)(2), added par. (4). Subsec. (b)(2). Pub. L. 99–499, § 108(a), inserted provi- sions relating to evidence of financial responsibility and authority of the President regarding establishment of that evidence. Subsec. (b)(3). Pub. L. 99–499, § 108(b), substituted ‘‘as quickly as can reasonably be achieved but in no event more than 4 years’’ for ‘‘over a period of not less than three and no more than six years’’. Subsec. (c). Pub. L. 99–499, § 108(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘Any claim authorized by section 9607 or 9611 of this title may be asserted directly against any guar- antor providing evidence of financial responsibility as required under this section. In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this subchapter. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but such guarantor may not invoke any other defense that such guarantor might have been entitled to invoke in a proceeding brought by the owner or operator against him.’’ Subsec. (d). Pub. L. 99–499, § 108(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘Any guarantor acting in good faith against which claims under this chapter are asserted as a guar- antor shall be liable under section 9607 of this title or section 9612(c) of this title only up to the monetary limits of the policy of insurance or indemnity contract such guarantor has undertaken or of the guaranty of other evidence of financial responsibility furnished under this section, and only to the extent that liability is not excluded by restrictive endorsement: Provided, That this subsection shall not alter the liability of any person under section 9607 of this title.’’ § 9609. Civil penalties and awards (a) Class I administrative penalty (1) Violations A civil penalty of not more than $25,000 per violation may be assessed by the President in the case of any of the following— (A) A violation of the requirements of sec- tion 9603(a) or (b) of this title (relating to notice). (B) A violation of the requirements of sec- tion 9603(d)(2) of this title (relating to de- struction of records, etc.). (C) A violation of the requirements of sec- tion 9608 of this title (relating to financial responsibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (D) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (E) Any failure or refusal referred to in section 9622(l) of this title (relating to viola- tions of administrative orders, consent de- crees, or agreements under section 9620 of this title). (2) Notice and hearings No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. (3) Determining amount In determining the amount of any penalty assessed pursuant to this subsection, the Page 7756 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9609 President shall take into account the nature, circumstances, extent and gravity of the vio- lation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, eco- nomic benefit or savings (if any) resulting from the violation, and such other matters as justice may require. (4) Review Any person against whom a civil penalty is assessed under this subsection may obtain re- view thereof in the appropriate district court of the United States by filing a notice of ap- peal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the President. The President shall promptly file in such court a certified copy of the record upon which such violation was found or such pen- alty imposed. If any person fails to pay an as- sessment of a civil penalty after it has become a final and unappealable order or after the ap- propriate court has entered final judgment in favor of the United States, the President may request the Attorney General of the United States to institute a civil action in an appro- priate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such ac- tion. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. (5) Subpoenas The President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or docu- ments in connection with hearings under this subsection. In case of contumacy or refusal to obey a subpoena issued pursuant to this para- graph and served upon any person, the district court of the United States for any district in which such person is found, resides, or trans- acts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony be- fore the administrative law judge or to appear and produce documents before the administra- tive law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (b) Class II administrative penalty A civil penalty of not more than $25,000 per day for each day during which the violation con- tinues may be assessed by the President in the case of any of the following— (1) A violation of the notice requirements of section 9603(a) or (b) of this title. (2) A violation of section 9603(d)(2) of this title (relating to destruction of records, etc.). (3) A violation of the requirements of section 9608 of this title (relating to financial respon- sibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (4) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (5) Any failure or refusal referred to in sec- tion 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of this title). In the case of a second or subsequent violation the amount of such penalty may be not more than $75,000 for each day during which the viola- tion continues. Any civil penalty under this sub- section shall be assessed and collected in the same manner, and subject to the same provi- sions, as in the case of civil penalties assessed and collected after notice and opportunity for hearing on the record in accordance with section 554 of title 5. In any proceeding for the assess- ment of a civil penalty under this subsection the President may issue subpoenas for the attend- ance and testimony of witnesses and the produc- tion of relevant papers, books, and documents and may promulgate rules for discovery proce- dures. Any person who requested a hearing with respect to a civil penalty under this subsection and who is aggrieved by an order assessing the civil penalty may file a petition for judicial re- view of such order with the United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which such person re- sides or transacts business. Such a petition may only be filed within the 30-day period beginning on the date the order making such assessment was issued. (c) Judicial assessment The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) con- tinues in the case of any of the following— (1) A violation of the notice requirements of section 9603(a) or (b) of this title. (2) A violation of section 9603(d)(2) of this title (relating to destruction of records, etc.). (3) A violation of the requirements of section 9608 of this title (relating to financial respon- sibility, etc.), the regulations issued under section 9608 of this title, or with any denial or detention order under section 9608 of this title. (4) A violation of an order under section 9622(d)(3) of this title (relating to settlement agreements for action under section 9604(b) of this title). (5) Any failure or refusal referred to in sec- tion 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of this title). In the case of a second or subsequent violation (or failure or refusal), the amount of such pen- alty may be not more than $75,000 for each day during which the violation (or failure or refusal) continues. For additional provisions providing for judicial assessment of civil penalties for fail- ure to comply with a request or order under sec- tion 9604(e) of this title (relating to information gathering and access authorities), see section 9604(e) of this title. (d) Awards The President may pay an award of up to $10,000 to any individual who provides informa- tion leading to the arrest and conviction of any person for a violation subject to a criminal pen- Page 7757 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9610 alty under this chapter, including any violation of section 9603 of this title and any other viola- tion referred to in this section. The President shall, by regulation, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 9611 of this title. (e) Procurement procedures Notwithstanding any other provision of law, any executive agency may use competitive pro- cedures or procedures other than competitive procedures to procure the services of experts for use in preparing or prosecuting a civil or crimi- nal action under this chapter, whether or not the expert is expected to testify at trial. The ex- ecutive agency need not provide any written jus- tification for the use of procedures other than competitive procedures when procuring such ex- pert services under this chapter and need not furnish for publication in the Commerce Busi- ness Daily or otherwise any notice of solicita- tion or synopsis with respect to such procure- ment. (f) Savings clause Action taken by the President pursuant to this section shall not affect or limit the Presi- dent’s authority to enforce any provisions of this chapter. (Pub. L. 96–510, title I, § 109, Dec. 11, 1980, 94 Stat. 2787; Pub. L. 99–499, title I, § 109(c), Oct. 17, 1986, 100 Stat. 1633.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (d) to (f), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Envi- ronmental Response, Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. AMENDMENTS 1986—Pub. L. 99–499 amended section generally. Prior to amendment, section read as follows: ‘‘Any person who, after notice and an opportunity for a hearing, is found to have failed to comply with the requirements of section 9608 of this title, the regulations issued thereunder, or with any denial or detention order shall be liable to the United States for a civil penalty, not to exceed $10,000 for each day of violation.’’ Statutory Notes and Related Subsidiaries COORDINATION OF TITLES I TO IV OF PUB. L. 99–499 Any provision of titles I to IV of Pub. L. 99–499, im- posing any tax, premium, or fee; establishing any trust fund; or authorizing expenditures from any trust fund, to have no force or effect, see section 531 of Pub. L. 99–499, set out as a note under section 1 of Title 26, In- ternal Revenue Code. § 9610. Employee protection (a) Activities of employee subject to protection No person shall fire or in any other way dis- criminate against, or cause to be fired or dis- criminated against, any employee or any au- thorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to tes- tify in any proceeding resulting from the admin- istration or enforcement of the provisions of this chapter. (b) Administrative grievance procedure in cases of alleged violations Any employee or a representative of employ- ees who believes that he has been fired or other- wise discriminated against by any person in vio- lation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a re- view of such firing or alleged discrimination. A copy of the application shall be sent to such per- son, who shall be the respondent. Upon receipt of such application, the Secretary of Labor shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to such review to enable the parties to present information relating to such alleged violation. The parties shall be given written no- tice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of title 5. Upon receiving the report of such investigation, the Secretary of Labor shall make findings of fact. If he finds that such vio- lation did occur, he shall issue a decision, incor- porating an order therein and his findings, re- quiring the party committing such violation to take such affirmative action to abate the viola- tion as the Secretary of Labor deems appro- priate, including, but not limited to, the rehir- ing or reinstatement of the employee or rep- resentative of employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Sec- retary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions are subject to judicial re- view under this chapter. (c) Assessment of costs and expenses against vio- lator subsequent to issuance of order of abatement Whenever an order is issued under this section to abate such violation, at the request of the ap- plicant a sum equal to the aggregate amount of all costs and expenses (including the attorney’s fees) determined by the Secretary of Labor to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be as- sessed against the person committing such vio- lation. (d) Defenses This section shall have no application to any employee who acting without discretion from his employer (or his agent) deliberately violates any requirement of this chapter. (e) Presidential evaluations of potential loss of shifts of employment resulting from adminis- tration or enforcement of provisions; inves- tigations; procedures applicable, etc. The President shall conduct continuing eval- uations of potential loss of shifts of employment