15 U.S.C. § 2647 — Enforcement

Page 1918 TITLE 15—COMMERCE AND TRADE § 2647 1 So in original. The period probably should be a comma. (B) In the case of activities performed by laboratories, after the date which is 180 days after the date on which a laboratory accredi- tation program is completed under subsection (d). (f) List of EPA-approved courses Not later than August 31, 1988, and every three months thereafter until August 31, 1991, the Ad- ministrator shall publish in the Federal Reg- ister a list of all Environmental Protection Agency-approved asbestos training courses for persons to achieve accreditation in each cat- egory described in subsection (b)(1)(A) and for laboratories to achieve accreditation. The Ad- ministrator may continue publishing such a list after August 31, 1991, at such times as the Ad- ministrator considers it useful. The list shall in- clude the name and address of each approved trainer and, to the extent available, a list of all the geographic sites where training courses will take place. The Administrator shall provide a copy of the list to each State official on the list published by the Administrator under section 2645(d)(6) of this title and to each regional office of the Environmental Protection Agency. (Pub. L. 94–469, title II, § 206, as added Pub. L. 99–519, § 2, Oct. 22, 1986, 100 Stat. 2980; amended Pub. L. 100–368, § 3, July 18, 1988, 102 Stat. 832; Pub. L. 100–418, title V, § 5115(c), Aug. 23, 1988, 102 Stat. 1433; Pub. L. 101–637, § 15(a)(1), (2), Nov. 28, 1990, 104 Stat. 4596.) Editorial Notes REFERENCES IN TEXT The Defense Dependents’ Education Act of 1978, re- ferred to in subsec. (b)(2), is title XIV of Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2365, which is classified principally to chapter 25A (§ 921 et seq.) of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 921 of Title 20 and Tables. The Asbestos School Hazard Abatement Act of 1984, referred to in subsec. (e)(2), is title V of Pub. L. 98–377, Aug. 11, 1984, 98 Stat. 1287, which is classified generally to subchapter V (§ 4011 et seq.) of chapter 52 of Title 20. For complete classification of this Act to the Code, see Short Title note set out under section 4011 of Title 20 and Tables. AMENDMENTS 1990—Subsec. (a)(1), (3). Pub. L. 101–637, § 15(a)(1), in- serted before comma at end ‘‘or in a public or commer- cial building’’. Subsec. (b)(1)(A)(i), (iii). Pub. L. 101–637, § 15(a)(2), in- serted before period at end ‘‘or in public or commercial buildings’’. 1988—Subsec. (d)(1), (2). Pub. L. 100–418 substituted ‘‘National Institute of Standards and Technology’’ for ‘‘National Bureau of Standards’’ wherever appearing. Subsec. (f). Pub. L. 100–368 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–637, § 15(c), Nov. 28, 1990, 104 Stat. 4597, provided that: ‘‘This section [amending this section and section 2647 of this title and enacting provisions set out as notes under this section] shall take effect upon the expiration of the 12-month period following the date of the enactment of this Act [Nov. 28, 1990]. The Adminis- trator may extend the effective date for a period not to exceed one year if the Administrator determines that accredited asbestos contractors are needed to perform school-site abatement required under the Asbestos Haz- ard Emergency Response Act [of 1986] (15 U.S.C. 2641) and such an extension is necessary to ensure effective implementation of section 203 of the Toxic Substances Control Act [15 U.S.C. 2643].’’ REVISION OF MODEL CONTRACTOR ACCREDITATION PROGRAM Pub. L. 101–637, § 15(a)(3), Nov. 28, 1990, 104 Stat. 4596, provided that: ‘‘Not later than one year after the date of the enactment of this Act [Nov. 28, 1990], the Admin- istrator of the Environmental Protection Agency shall revise the model contractor accreditation plan promul- gated under section 206(b)(1) of the Toxic Substances Control Act (15 U.S.C. 2646(b)(1)) to increase the min- imum number of hours of training, including additional hours of hands-on health and safety training, required for asbestos abatement workers and to make such other changes as may be necessary to implement the amendments made by paragraphs (1) and (2) [amending this section].’’ EPA ADMINISTRATOR NOT EXERCISING ‘‘STATUTORY AU- THORITY’’ UNDER OSHA LAW IN EXERCISING AUTHOR- ITY UNDER THIS CHAPTER Pub. L. 101–637, § 15(b), Nov. 28, 1990, 104 Stat. 4596, provided that: ‘‘In exercising any authority under the Toxic Substances Control Act [15 U.S.C. 2601 et seq.] in connection with the amendment made by subsection (a) of this section [amending this section and section 2647 of this title], the Administrator of the Environmental Protection Agency shall not, for purposes of section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)), be considered to be exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.’’ § 2647. Enforcement (a) Penalties Any local educational agency— (1) which fails to conduct an inspection pur- suant to regulations under section 2643(b) of this title or under section 2644(b) of this title, (2) which knowingly submits false informa- tion to the Governor regarding any inspection pursuant to regulations under section 2643(i) of this title or knowingly includes false informa- tion in any inspection statement under sec- tion 2644(d)(3) of this title, (3) which fails to develop a management plan pursuant to regulations under section 2643(i) of this title or under section 2644(d) of this title, (4) which carries out any activity prohibited by section 2655 of this title, or (5) which knowingly submits false informa- tion to the Governor regarding a deferral re- quest under section 2645(d) of this title.1 is liable for a civil penalty of not more than $5,000 for each day during which the violation 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 under section 2615 of this title. For purposes of this subsection, a ‘‘violation’’ means a failure to comply with respect to a single school building. The court shall order that any civil penalty collected under this subsection be used by the local educational agency for pur- poses of complying with this subchapter. Any Page 1919 TITLE 15—COMMERCE AND TRADE § 2647 portion of a civil penalty remaining unspent after compliance by a local educational agency is completed shall be deposited into the Asbes- tos Trust Fund established by section 4022 of title 20. (b) Relationship to subchapter I of this chapter A local educational agency is not liable for any civil penalty under subchapter I of this chapter for failing or refusing to comply with any rule promulgated or order issued under this subchapter. (c) Enforcement considerations (1) In determining the amount of a civil pen- alty to be assessed under subsection (a) against a local educational agency, the Administrator shall consider— (A) the significance of the violation; (B) the culpability of the violator, including any history of previous violations under this chapter; (C) the ability of the violator to pay the pen- alty; and (D) the ability of the violator to continue to provide educational services to the commu- nity. (2) Any action ordered by a court in fashioning relief under section 2619 of this title shall be consistent with regulations promulgated under section 2643 of this title (or with the require- ments of section 2644 of this title if there are no regulations). (d) Citizen complaints Any person may file a complaint with the Ad- ministrator or with the Governor of the State in which the school building is located with respect to asbestos-containing material in a school building. If the Administrator or Governor re- ceives a complaint under this subsection con- taining allegations which provide a reasonable basis to believe that a violation of this chapter has occurred, the Administrator or Governor shall investigate and respond (including taking enforcement action where appropriate) to the complaint within a reasonable period of time. (e) Citizen petitions (1) Any person may petition the Administrator to initiate a proceeding for the issuance, amend- ment, or repeal of a regulation or order under this subchapter. (2) Such petition shall be filed in the principal office of the Administrator and shall set forth the facts which it is claimed establish that it is necessary to issue, amend, or repeal a regulation or order under this subchapter. (3) The Administrator may hold a public hear- ing or may conduct such investigation or pro- ceeding as the Administrator deems appropriate in order to determine whether or not such peti- tion should be granted. (4) Within 90 days after filing of a petition de- scribed in paragraph (1), the Administrator shall either grant or deny the petition. If the Admin- istrator grants such petition, the Administrator shall promptly commence an appropriate pro- ceeding in accordance with this subchapter. If the Administrator denies such petition, the Ad- ministrator shall publish in the Federal Reg- ister the Administrator’s reasons for such de- nial. The granting or denial of a petition under this subsection shall not affect any deadline or other requirement of this subchapter. (f) Citizen civil actions with respect to EPA regu- lations (1) Any person may commence a civil action without prior notice against the Administrator to compel the Administrator to meet the dead- lines in section 2643 of this title for issuing ad- vanced notices of proposed rulemaking, pro- posing regulations, and promulgating regula- tions. Any such action shall be brought in the district court of the United States for the Dis- trict of Columbia. (2) In any action brought under paragraph (1) in which the court finds the Administrator to be in violation of any deadline in section 2643 of this title, the court shall set forth a schedule for promulgating the regulations required by sec- tion 2643 of this title and shall order the Admin- istrator to comply with such schedule. The court may extend any deadline (which has not already occurred) in section 2644(b), (c), or (d) of this title for a period of not more than 6 months, if the court-ordered schedule will result in final promulgation of the pertinent regulations with- in the extended period. Such deadline extensions may not be granted by the court beginning 720 days after October 22, 1986. (3) Section 2619 of this title shall apply to civil actions described in this subsection, except to the extent inconsistent with this subsection. (g) Failure to attain accreditation; penalty Any contractor who— (1) inspects for asbestos-containing material in a school, public or commercial building; (2) designs or conducts response actions with respect to friable asbestos-containing material in a school, public or commercial building; or (3) employs individuals to conduct response actions with respect to friable asbestos-con- taining material in a school, public or com- mercial building; and who fails to obtain the accreditation under section 2646 of this title, or in the case of em- ployees to require or provide for the accredita- tion required, is liable for a civil penalty of not more than $5,000 for each day during which the violation continues, unless such contractor is a direct employee of the Federal Government. (Pub. L. 94–469, title II, § 207, as added Pub. L. 99–519, § 2, Oct. 22, 1986, 100 Stat. 2983; amended Pub. L. 100–368, § 5, July 18, 1988, 102 Stat. 833; Pub. L. 101–637, § 15(a)(4), Nov. 28, 1990, 104 Stat. 4596.) Editorial Notes AMENDMENTS 1990—Subsec. (g). Pub. L. 101–637 added subsec. (g). 1988—Subsec. (a)(4), (5). Pub. L. 100–368 added pars. (4) and (5). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–637 effective upon expira- tion of 12-month period following Nov. 28, 1990, with Page 1920 TITLE 15—COMMERCE AND TRADE § 2648 provisions for extension, see section 15(c) of Pub. L. 101–637, set out as a note under section 2646 of this title. EPA ADMINISTRATOR NOT EXERCISING ‘‘STATUTORY AU- THORITY’’ UNDER OSHA LAW IN EXERCISING AUTHOR- ITY UNDER THIS CHAPTER In exercising any authority under this chapter in connection with amendment made by Pub. L. 101–637, Administrator of Environmental Protection Agency not, for purposes of section 653(b)(1) of Title 29, Labor, to be considered to be exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health, see section 15(b) of Pub. L. 101–637, set out as a note under section 2646 of this title. § 2648. Emergency authority (a) Emergency action (1) Authority Whenever— (A) the presence of airborne asbestos or the condition of friable asbestos-containing material in a school building governed by a local educational agency poses an imminent and substantial endangerment to human health or the environment, and (B) the local educational agency is not taking sufficient action (as determined by the Administrator or the Governor) to re- spond to the airborne asbestos or friable as- bestos-containing material, the Administrator or the Governor of a State is authorized to act to protect human health or the environment. (2) Limitations on Governor action The Governor of a State shall notify the Ad- ministrator within a reasonable period of time before the Governor plans to take an emer- gency action under this subsection. After such notification, if the Administrator takes an emergency action with respect to the same hazard, the Governor may not carry out (or continue to carry out, if the action has been started) the emergency action. (3) Notification The following notification shall be provided before an emergency action is taken under this subsection: (A) In the case of a Governor taking the action, the Governor shall notify the local educational agency concerned. (B) In the case of the Administrator taking the action, the Administrator shall notify both the local educational agency concerned and the Governor of the State in which such agency is located. (4) Cost recovery The Administrator or the Governor of a State may seek reimbursement for all costs of an emergency action taken under this sub- section in the United States District Court for the District of Columbia or for the district in which the emergency action occurred. In any action seeking reimbursement from a local educational agency, the action shall be brought in the United States District Court for the district in which the local educational agency is located. (b) Injunctive relief Upon receipt of evidence that the presence of airborne asbestos or the condition of friable as- bestos-containing material in a school building governed by a local educational agency poses an imminent and substantial endangerment to human health or the environment— (1) the Administrator may request the At- torney General to bring suit, or (2) the Governor of a State may bring suit, to secure such relief as may be necessary to re- spond to the hazard. The district court of the United States in the district in which the re- sponse will be carried out shall have jurisdiction to grant such relief, including injunctive relief. (Pub. L. 94–469, title II, § 208, as added Pub. L. 99–519, § 2, Oct. 22, 1986, 100 Stat. 2985.) § 2649. State and Federal law (a) No preemption Nothing in this subchapter shall be construed, interpreted, or applied to preempt, displace, or supplant any other State or Federal law, wheth- er statutory or common. (b) Cost and damage awards Nothing in this subchapter or any standard, regulation, or requirement promulgated pursu- ant to this subchapter shall be construed or in- terpreted to preclude any court from awarding costs and damages associated with the abate- ment, including the removal, of asbestos-con- taining material, or a portion of such costs, at any time prior to the actual date on which such material is removed. (c) State may establish more requirements Nothing in this subchapter shall be construed or interpreted as preempting a State from estab- lishing any additional liability or more strin- gent requirements with respect to asbestos in school buildings within such State. (d) No Federal cause of action Nothing in this subchapter creates a cause of action or in any other way increases or dimin- ishes the liability of any person under any other law. (e) Intent of Congress It is not the intent of Congress that this sub- chapter or rules, regulations, or orders issued pursuant to this subchapter be interpreted as in- fluencing, in either the plaintiff’s or defendant’s favor, the disposition of any civil action for damages relating to asbestos. This subsection does not affect the authority of any court to make a determination in an adjudicatory pro- ceeding under applicable State law with respect to the admission into evidence or any other use of this subchapter or rules, regulations, or or- ders issued pursuant to this subchapter. (Pub. L. 94–469, title II, § 209, as added Pub. L. 99–519, § 2, Oct. 22, 1986, 100 Stat. 2986.) § 2650. Asbestos contractors and local edu- cational agencies (a) Study (1) General requirement The Administrator shall conduct a study on the availability of liability insurance and other forms of assurance against financial loss