42 U.S.C. § 7604 — Citizen suits

Page 7387 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604 dence that a pollution source or combination of sources (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment, may bring suit on behalf of the United States in the appropriate United States district court to immediately restrain any person causing or con- tributing to the alleged pollution to stop the emission of air pollutants causing or contrib- uting to such pollution or to take such other ac- tion as may be necessary. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect public health or welfare or the environment. Prior to taking any action under this section, the Administrator shall consult with appro- priate State and local authorities and attempt to confirm the accuracy of the information on which the action proposed to be taken is based. Any order issued by the Administrator under this section shall be effective upon issuance and shall remain in effect for a period of not more than 60 days, unless the Administrator brings an action pursuant to the first sentence of this sec- tion before the expiration of that period. When- ever the Administrator brings such an action within the 60-day period, such order shall re- main in effect for an additional 14 days or for such longer period as may be authorized by the court in which such action is brought. (July 14, 1955, ch. 360, title III, § 303, as added Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1705; amended Pub. L. 95–95, title III, § 302(a), Aug. 7, 1977, 91 Stat. 770; Pub. L. 101–549, title VII, § 704, Nov. 15, 1990, 104 Stat. 2681.) Editorial Notes CODIFICATION Section was formerly classified to section 1857h–1 of this title. PRIOR PROVISIONS A prior section 303 of act July 14, 1955, was renum- bered section 310 by Pub. L. 91–604 and is classified to section 7610 of this title. AMENDMENTS 1990—Pub. L. 101–549, § 704(2)–(5), struck out subsec. (a) designation before ‘‘Notwithstanding any other’’, struck out subsec. (b) which related to violation of or failure or refusal to comply with subsec. (a) orders, and substituted new provisions for provisions following first sentence which read as follows: ‘‘If it is not prac- ticable to assure prompt protection of the health of persons solely by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect the health of persons who are, or may be, affected by such pollution source (or sources). Prior to taking any action under this section, the Ad- ministrator shall consult with the State and local au- thorities in order to confirm the correctness of the in- formation on which the action proposed to be taken is based and to ascertain the action which such authori- ties are, or will be, taking. Such order shall be effective for a period of not more than twenty-four hours unless the Administrator brings an action under the first sen- tence of this subsection before the expiration of such period. Whenever the Administrator brings such an ac- tion within such period, such order shall be effective for a period of forty-eight hours or such longer period as may be authorized by the court pending litigation or thereafter.’’ Pub. L. 101–549, § 704(1), which directed that ‘‘public health or welfare, or the environment’’ be substituted for ‘‘the health of persons and that appropriate State or local authorities have not acted to abate such sources’’, was executed by making the substitution for ‘‘the health of persons, and that appropriate State or local authorities have not acted to abate such sources’’ to reflect the probable intent of Congress. 1977—Pub. L. 95–95 designated existing provisions as subsec. (a), inserted provisions that, if it is not prac- ticable to assure prompt protection of the health of persons solely by commencement of a civil action, the Administrator may issue such orders as may be nec- essary to protect the health of persons who are, or may be, affected by such pollution source (or sources), that, prior to taking any action under this section, the Ad- ministrator consult with the State and local authori- ties in order to confirm the correctness of the informa- tion on which the action proposed to be taken is based and to ascertain the action which such authorities are, or will be, taking, that the order be effective for a pe- riod of not more than twenty-four hours unless the Ad- ministrator brings an action under the first sentence of this subsection before the expiration of such period, and that, whenever the Administrator brings such an action within such period, such order be effective for a period of forty-eight hours or such longer period as may be authorized by the court pending litigation or thereafter, and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced 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 July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7604. Citizen suits (a) Authority to bring civil action; jurisdiction Except as provided in subsection (b), any per- son may commence a civil action on his own be- half— (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 have vio- lated (if there is evidence that the alleged vio- Page 7388 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604 1 So in original. The period probably should be ‘‘, or’’. lation has been repeated) or to be in violation of (A) an emission 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, (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, or (3) against any person who proposes to con- struct or constructs any new or modified major emitting facility without a permit re- quired under part C of subchapter I (relating to significant deterioration of air quality) or part D of subchapter I (relating to nonattain- ment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit. The district courts shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties, to enforce such an emission 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 (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607(b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607(b) of this title. In any such action for unreasonable delay, notice to the entities re- ferred to in subsection (b)(1)(A) shall be provided 180 days before commencing such action. (b) Notice No action may be commenced— (1) under subsection (a)(1)— (A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Ad- ministrator, (ii) to the State in which the violation occurs, and (iii) to any alleged vio- lator of the standard, limitation, or order, or (B) if the Administrator or State has com- menced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the stand- ard, limitation, or order, but in any such ac- tion in a court of the United States any per- son may intervene as a matter of right.1 (2) under subsection (a)(2) prior to 60 days after the plaintiff has given notice of such ac- tion 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 section 7412(i)(3)(A) or (f)(4) of this title or an order issued by the Administrator pursuant to section 7413(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; service of complaint; consent judgment (1) Any action respecting a violation by a sta- tionary source of an emission standard or limi- tation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located. (2) In any action under this section, the Ad- ministrator, if not a party, may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section to which the United States is not a party shall not, however, have any binding effect upon the United States. (3) Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and on the Administrator. No con- sent judgment shall be entered in an action brought under this section 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 Ad- ministrator during which time the Government may submit its comments on the proposed con- sent judgment to the court and parties or may intervene as a matter of right. (d) Award of costs; security The court, in issuing any final order in any ac- tion brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a tem- porary restraining order or preliminary injunc- tion is sought, require the filing of a bond or equivalent security in accordance with the Fed- eral Rules of Civil Procedure. (e) Nonrestriction of other rights 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 emission standard or limita- tion or to seek any other relief (including relief against the Administrator or a State agency). Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or inter- state authority from— (1) bringing any enforcement action or ob- taining any judicial remedy or sanction in any State or local court, or (2) bringing any administrative enforcement action or obtaining any administrative rem- edy or sanction in any State or local adminis- trative agency, department or instrumen- tality, against the United States, any department, agency, or instrumentality thereof, or any offi- cer, agent, or employee thereof under State or local law respecting control and abatement of air pollution. For provisions requiring compli- ance by the United States, departments, agen- cies, instrumentalities, officers, agents, and em- ployees in the same manner as nongovernmental entities, see section 7418 of this title. Page 7389 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604 2 So in original. The word ‘‘or’’ probably should not appear. 3 So in original. 4 So in original. The semicolon probably should be a comma. 5 So in original. The period probably should be a comma. 6 So in original. Probably should be ‘‘this section’’. (f) ‘‘Emission standard or limitation under this chapter’’ defined For purposes of this section, the term ‘‘emis- sion standard or limitation under this chapter’’ means— (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, (2) a control or prohibition respecting a motor vehicle fuel or fuel additive, or 2 (3) any condition or requirement of a permit under part C of subchapter I (relating to sig- nificant deterioration of air quality) or part D of subchapter I (relating to nonattainment),,3 section 7419 of this title (relating to primary nonferrous smelter orders), any condition or requirement under an applicable implementa- tion plan relating to transportation control measures, air quality maintenance plans, vehi- cle inspection and maintenance programs or vapor recovery requirements, section 7545(e) and (f) of this title (relating to fuels and fuel additives), section 7491 of this title (relating to visibility protection), any condition or re- quirement under subchapter VI (relating to ozone protection), or any requirement under section 7411 or 7412 of this title (without re- gard to whether such requirement is expressed as an emission standard or otherwise); 4 or (4) any other standard, limitation, or sched- ule established under any permit issued pursu- ant to subchapter V or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations.5 which is in effect under this chapter (including a requirement applicable by reason of section 7418 of this title) or under an applicable imple- mentation plan. (g) Penalty fund (1) Penalties received under subsection (a) shall be deposited in a special fund in the United States Treasury for licensing and other services. Amounts in such fund are authorized to be ap- propriated and shall remain available until ex- pended, for use by the Administrator to finance air compliance and enforcement activities. The Administrator shall annually report to the Con- gress about the sums deposited into the fund, the sources thereof, and the actual and proposed uses thereof. (2) Notwithstanding paragraph (1) the court in any action under this subsection 6 to apply civil penalties shall have discretion to order that such civil penalties, in lieu of being deposited in the fund referred to in paragraph (1), be used in beneficial mitigation projects which are con- sistent with this chapter and enhance the public health or the environment. The court shall ob- tain the view of the Administrator in exercising such discretion and selecting any such projects. The amount of any such payment in any such action shall not exceed $100,000. (July 14, 1955, ch. 360, title III, § 304, as added Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1706; amended Pub. L. 95–95, title III, § 303(a)–(c), Aug. 7, 1977, 91 Stat. 771, 772; Pub. L. 95–190, § 14(a) (77), (78), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101–549, title III, § 302(f), title VII, § 707(a)–(g), Nov. 15, 1990, 104 Stat. 2574, 2682, 2683.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure. CODIFICATION Section was formerly classified to section 1857h–2 of this title. PRIOR PROVISIONS A prior section 304 of act July 14, 1955, was renum- bered section 311 by Pub. L. 91–604 and is classified to section 7611 of this title. AMENDMENTS 1990—Subsec. (a). Pub. L. 101–549, § 707(a), (f), in clos- ing provisions, inserted before period at end ‘‘, and to apply any appropriate civil penalties (except for ac- tions under paragraph (2))’’ and inserted sentences at end giving courts jurisdiction to compel agency action unreasonably delayed and requiring 180 days notice prior to commencement of action. Subsec. (a)(1), (3). Pub. L. 101–549, § 707(g), inserted ‘‘to have violated (if there is evidence that the alleged vio- lation has been repeated) or’’ before ‘‘to be in viola- tion’’. Subsec. (b). Pub. L. 101–549, § 302(f), substituted ‘‘sec- tion 7412(i)(3)(A) or (f)(4)’’ for ‘‘section 7412(c)(1)(B)’’ in closing provisions. Subsec. (c)(2). Pub. L. 101–549, § 707(c), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘In such action under this section, the Adminis- trator, if not a party, may intervene as a matter of right.’’ Subsec. (c)(3). Pub. L. 101–549, § 707(d), added subsec. (c)(3). Subsec. (f)(3). Pub. L. 101–549, § 707(e), struck out ‘‘any condition or requirement of section 7413(d) of this title (relating to certain enforcement orders)’’ before ‘‘, section 7419 of this title’’, substituted ‘‘subchapter VI’’ for ‘‘part B of subchapter I’’, and substituted ‘‘; or’’ for period at end. Subsec. (f)(4). Pub. L. 101–549, § 707(e), which directed that par. (4) be added at end of subsec. (f), was executed by adding par. (4) after par. (3), to reflect the probable intent of Congress. Subsec. (g). Pub. L. 101–549, § 707(b), added subsec. (g). 1977—Subsec. (a)(3). Pub. L. 95–190, § 14(a)(77), inserted ‘‘or modified’’ after ‘‘new’’. Pub. L. 95–95, § 303(a), added subsec. (a)(3). Subsec. (e). Pub. L. 95–95, § 303(c), inserted provisions which prohibited any construction of this section or any other law of the United States which would pro- hibit, exclude, or restrict any State, local, or interstate authority from bringing any enforcement action or ob- taining any judicial remedy or sanction in any State or local court against the United States or bringing any administrative enforcement action or obtaining any administrative remedy or sanction against the United States in any State or local administrative agency, de- partment, or instrumentality under State or local law. Subsec. (f)(3). Pub. L. 95–190, § 14(a)(78), inserted ‘‘, or’’ after ‘‘(relating to ozone protection)’’, sub- stituted ‘‘any condition or requirement under an’’ for ‘‘requirements under an’’, and struck out ‘‘or’’ before ‘‘section 7491’’. Page 7390 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7605 Pub. L. 95–95, § 303(b), added par. (3). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–549, title VII, § 707(g), Nov. 15, 1990, 104 Stat. 2683, provided that: ‘‘The amendment made by this subsection [amending this section] shall take ef- fect with respect to actions brought after the date 2 years after the enactment of the Clean Air Act Amend- ments of 1990 [Nov. 15, 1990].’’ EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of reporting provisions in subsec. (g)(1) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 6th item on page 165 of House Document No. 103–7. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced 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 July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7605. Representation in litigation (a) Attorney General; attorneys appointed by Ad- ministrator The Administrator shall request the Attorney General to appear and represent him in any civil action instituted under this chapter to which the Administrator is a party. Unless the Attor- ney General notifies the Administrator that he will appear in such action, within a reasonable time, attorneys appointed by the Administrator shall appear and represent him. (b) Memorandum of understanding regarding legal representation In the event the Attorney General agrees to appear and represent the Administrator in any such action, such representation shall be con- ducted in accordance with, and shall include participation by, attorneys appointed by the Ad- ministrator to the extent authorized by, the memorandum of understanding between the De- partment of Justice and the Environmental Pro- tection Agency, dated June 13, 1977, respecting representation of the agency by the department in civil litigation. (July 14, 1955, ch. 360, title III, § 305, as added Pub. L. 91–604, § 12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 95–95, title III, § 304(a), Aug. 7, 1977, 91 Stat. 772.) Editorial Notes CODIFICATION Section was formerly classified to section 1857h–3 of this title. PRIOR PROVISIONS A prior section 305 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, § 2, 81 Stat. 505, was renumbered section 312 by Pub. L. 91–604 and is classified to section 7612 of this title. Another prior section 305 of act July 14, 1955, ch. 360, title III, formerly § 12, as added Dec. 17, 1963, Pub. L. 88–206, § 1, 77 Stat. 401, was renumbered section 305 by Pub. L. 89–272, renumbered section 308 by Pub. L. 90–148, and renumbered section 315 by Pub. L. 91–604, and is classified to section 7615 of this title. AMENDMENTS 1977—Pub. L. 95–95 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced 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 July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7606. Federal procurement (a) Contracts with violators prohibited No Federal agency may enter into any con- tract with any person who is convicted of any offense under section 7413(c) of this title for the procurement of goods, materials, and services to perform such contract at any facility at which the violation which gave rise to such conviction occurred if such facility is owned, leased, or su-