33 U.S.C. § 1364 — Emergency powers

Page 585 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1364 lution Control Act [33 U.S.C. 1251 et seq.], the term ‘point source’ includes a landfill leachate collection system.’’ Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED STATES For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43, Public Lands. § 1363. Water Pollution Control Advisory Board (a) Establishment; composition; terms of office (1) There is hereby established in the Environ- mental Protection Agency a Water Pollution Control Advisory Board, composed of the Ad- ministrator or his designee, who shall be Chair- man, and nine members appointed by the Presi- dent, none of whom shall be Federal officers or employees. The appointed members, having due regard for the purposes of this chapter, shall be selected from among representatives of various State, interstate, and local governmental agen- cies, of public or private interests contributing to, affected by, or concerned with pollution, and of other public and private agencies, organiza- tions, or groups demonstrating an active inter- est in the field of pollution prevention and con- trol, as well as other individuals who are expert in this field. (2)(A) Each member appointed by the Presi- dent shall hold office for a term of three years, except that (i) any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term, and (ii) the terms of office of the members first taking office after June 30, 1956, shall ex- pire as follows: three at the end of one year after such date, three at the end of two years after such date, and three at the end of three years after such date, as designated by the President at the time of appointment, and (iii) the term of any member under the preceding provisions shall be extended until the date on which his successor’s appointment is effective. None of the members appointed by the President shall be eli- gible for reappointment within one year after the end of his preceding term. (B) The members of the Board who are not of- ficers or employees of the United States, while attending conferences or meetings of the Board or while serving at the request of the Adminis- trator, shall be entitled to receive compensation at a rate to be fixed by the Administrator, but not exceeding $100 per diem, including travel- time, and while away from their homes or reg- ular places of business they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons in the Government service employed intermit- tently. (b) Functions The Board shall advise, consult with, and make recommendations to the Administrator on matters of policy relating to the activities and functions of the Administrator under this chap- ter. (c) Clerical and technical assistance Such clerical and technical assistance as may be necessary to discharge the duties of the Board shall be provided from the personnel of the Environmental Protection Agency. (June 30, 1948, ch. 758, title V, § 503, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 887.) Editorial Notes REFERENCES IN TEXT Travel expenses, including per diem in lieu of subsist- ence as authorized by law, referred to in subsec. (a)(2)(B), probably means the allowances authorized by section 5703 of Title 5, Government Organization and Employees. Statutory Notes and Related Subsidiaries CONTINUATION OF TERM OF OFFICE Pub. L. 87–88, § 6(c), July 20, 1961, 75 Stat. 207, provided that members of the Water Pollution Control Advisory Board holding office immediately preceding July 20, 1961 were to remain in office as members of the Board as established by section 6(a) of Pub. L. 87–88 until the expiration of the terms of office for which they were originally appointed. TERMS OF OFFICE OF MEMBERS OF WATER POLLUTION CONTROL ADVISORY BOARD Act July 9, 1956, ch. 518, § 3, 70 Stat. 507, provided that the terms of office of members of the Water Pollution Control Advisory Board, holding office on July 9, 1956, were to terminate at the close of business on that date. TERMINATION OF ADVISORY BOARDS Advisory boards in existence on Jan. 5, 1973, to termi- nate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a board es- tablished by the President or an officer of the Federal Government, such board is renewed by appropriate ac- tion prior to the expiration of such 2-year period, or in the case of a board established by the Congress, its du- ration is otherwise provided for by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees. § 1364. Emergency powers (a) Emergency powers Notwithstanding any other provision of this chapter, the Administrator upon receipt of evi- dence that a pollution source or combination of sources is presenting an imminent and substan- tial endangerment to the health of persons or to the welfare of persons where such endangerment is to the livelihood of such persons, such as in- ability to market shellfish, may bring suit on behalf of the United States in the appropriate district court to immediately restrain any per- son causing or contributing to the alleged pollu- tion to stop the discharge of pollutants causing or contributing to such pollution or to take such other action as may be necessary. (b) Repealed. Pub. L. 96–510, title III, § 304(a), Dec. 11, 1980, 94 Stat. 2809 (June 30, 1948, ch. 758, title V, § 504, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 888; amended Pub. L. 95–217, § 69, Dec. 27, 1977, 91 Stat. 1607; Page 586 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1365 Pub. L. 96–510, title III, § 304(a), Dec. 11, 1980, 94 Stat. 2809.) Editorial Notes AMENDMENTS 1980—Subsec. (b). Pub. L. 96–510 struck out subsec. (b) which related to emergency assistance, establishment of an emergency fund, and preparation of a contingency plan for such emergencies. 1977—Pub. L. 95–217 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–510 effective Dec. 11, 1980, see section 9652 of Title 42, The Public Health and Wel- fare. § 1365. Citizen suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other govern- mental instrumentality or agency to the ex- tent permitted by the eleventh amendment to the Constitution) who is alleged to be in viola- tion of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to per- form any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties, to enforce such an ef- fluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. (b) Notice No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limi- tation, or order, or (B) if the Administrator or State has com- menced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a mat- ter of right. (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought imme- diately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. (c) Venue; intervention by Administrator; United States interests protected (1) Any action respecting a violation by a dis- charge source of an effluent standard or limita- tion or an order respecting such standard or lim- itation may be brought under this section only in the judicial district in which such source is located. (2) In such action under this section, the Ad- ministrator, if not a party, may intervene as a matter of right. (3) PROTECTION OF INTERESTS OF UNITED STATES.—Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. (d) Litigation costs The court, in issuing any final order in any ac- tion brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any pre- vailing or substantially prevailing party, when- ever the court determines such award is appro- priate. The court may, if a temporary restrain- ing order or preliminary injunction is sought, require the filing of a bond or equivalent secu- rity in accordance with the Federal Rules of Civil Procedure. (e) Statutory or common law rights not re- stricted Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek en- forcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). (f) Effluent standard or limitation For purposes of this section, the term ‘‘efflu- ent standard or limitation under this chapter’’ means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) stand- ard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) a standard of performance or re- quirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title that is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (8) a regulation under section 1345(d) of this title. (g) ‘‘Citizen’’ defined For the purposes of this section the term ‘‘cit- izen’’ means a person or persons having an inter- est which is or may be adversely affected.