42 U.S.C. § 11045 — Enforcement

Page 8110 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11044 1 So in original. Probably should be ‘‘subsections’’. 1 So in original. Probably should not be capitalized. subsection (a) or (c), be required to agree in a written confidentiality agreement that he will not use the information for any purpose other than the health needs asserted in the statement of need, except as may otherwise be authorized by the terms of the agreement or by the person providing such information. Nothing in this sub- section shall preclude the parties to a confiden- tiality agreement from pursuing any remedies to the extent permitted by law. (e) Regulations As soon as practicable after October 17, 1986, the Administrator shall promulgate regulations describing criteria and parameters for the state- ment of need under subsection 1 (a) and (c) and the confidentiality agreement under subsection (d). (Pub. L. 99–499, title III, § 323, Oct. 17, 1986, 100 Stat. 1750.) § 11044. Public availability of plans, data sheets, forms, and followup notices (a) Availability to public Each emergency response plan, material safe- ty data sheet, list described in section 11021(a)(2) of this title, inventory form, toxic chemical re- lease form, and followup emergency notice shall be made available to the general public, con- sistent with section 11042 of this title, during normal working hours at the location or loca- tions designated by the Administrator, Gov- ernor, State emergency response commission, or local emergency planning committee, as appro- priate. Upon request by an owner or operator of a facility subject to the requirements of section 11022 of this title, the State emergency response commission and the appropriate local emer- gency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 11022(d)(2) of this title to be contained in an inventory form as tier II information. (b) Notice of public availability Each local emergency planning committee shall annually publish a notice in local news- papers that the emergency response plan, mate- rial safety data sheets, and inventory forms have been submitted under this section. The no- tice shall state that followup emergency notices may subsequently be issued. Such notice shall announce that members of the public who wish to review any such plan, sheet, form, or followup notice may do so at the location designated under subsection (a). (Pub. L. 99–499, title III, § 324, Oct. 17, 1986, 100 Stat. 1752.) § 11045. Enforcement (a) Civil penalties for emergency planning The Administrator may order a facility owner or operator (except an owner or operator of a fa- cility designated under section 11002(b)(2) of this title) to comply with section 11002(c) of this title and section 11003(d) of this title. The United States district court for the district in which the facility is located shall have jurisdiction to enforce the order, and any person who violates or fails to obey such an order shall be liable to the United States for a civil penalty of not more than $25,000 for each day in which such violation occurs or such failure to comply continues. (b) Civil, administrative, and criminal penalties for emergency notification (1) Class I administrative penalty (A) A civil penalty of not more than $25,000 per violation may be assessed by the Adminis- trator in the case of a violation of the require- ments of section 11004 of this title. (B) 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. (C) In determining the amount of any pen- alty assessed pursuant to this subsection, the Administrator shall take into account the na- ture, circumstances, extent and gravity of the violation 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. (2) Class II administrative penalty A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the Adminis- trator in the case of a violation of the require- ments of section 11004 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 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 title 15. In any proceeding for the assessment of a civil penalty under this subsection the Adminis- trator may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents and may promulgate rules for discovery proce- dures. (3) Judicial assessment The Administrator may bring an action in the United States District 1 court for the ap- propriate district to assess and collect a pen- alty of not more than $25,000 per day for each day during which the violation continues in the case of a violation of the requirements of section 11004 of this title. In the case of a sec- ond or subsequent violation, the amount of such penalty may be not more than $75,000 for each day during which the violation con- tinues. (4) Criminal penalties Any person who knowingly and willfully fails to provide notice in accordance with sec- tion 11004 of this title shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than two years, or both (or in the Page 8111 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11046 case of a second or subsequent conviction, shall be fined not more than $50,000 or impris- oned for not more than five years, or both). (c) Civil and administrative penalties for report- ing requirements (1) Any person (other than a governmental en- tity) who violates any requirement of section 11022 or 11023 of this title shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. (2) Any person (other than a governmental en- tity) who violates any requirement of section 11021 or 11043(b) of this title, and any person who fails to furnish to the Administrator informa- tion required under section 11042(a)(2) of this title shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation. (3) Each day a violation described in para- graph (1) or (2) continues shall, for purposes of this subsection, constitute a separate violation. (4) The Administrator may assess any civil penalty for which a person is liable under this subsection by administrative order or may bring an action to assess and collect the penalty in the United States district court for the district in which the person from whom the penalty is sought resides or in which such person’s prin- cipal place of business is located. (d) Civil, administrative, and criminal penalties with respect to trade secrets (1) Civil and administrative penalty for frivo- lous claims If the Administrator determines— (A)(i) under section 11042(d)(4) of this title that an explanation submitted by a trade se- cret claimant presents insufficient asser- tions to support a finding that a specific chemical identity is a trade secret, or (ii) after receiving supplemental supporting de- tailed information under section 11042(d)(3)(A) of this title, that the specific chemical identity is not a trade secret; and (B) that the trade secret claim is frivolous, the trade secret claimant is liable for a pen- alty of $25,000 per claim. The Administrator may assess the penalty by administrative order or may bring an action in the appro- priate district court of the United States to assess and collect the penalty. (2) Criminal penalty for disclosure of trade se- cret information Any person who knowingly and willfully di- vulges or discloses any information entitled to protection under section 11042 of this title shall, upon conviction, be subject to a fine of not more than $20,000 or to imprisonment not to exceed one year, or both. (e) Special enforcement provisions for section 11043 Whenever any facility owner or operator re- quired to provide information under section 11043 of this title to a health professional who has requested such information fails or refuses to provide such information in accordance with such section, such health professional may bring an action in the appropriate United States dis- trict court to require such facility owner or op- erator to provide the information. Such court shall have jurisdiction to issue such orders and take such other action as may be necessary to enforce the requirements of section 11043 of this title. (f) Procedures for administrative penalties (1) Any person against whom a civil penalty is assessed under this section may obtain review thereof in the appropriate district court of the United States by filing a notice of appeal in such court within 30 days after the date of such order and by simultaneously sending a copy of such notice by certified mail to the Adminis- trator. The Administrator shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed. If any person fails to pay an assess- ment of a civil penalty after it has become a final and unappealable order or after the appro- priate court has entered final judgment in favor of the United States, the Administrator may re- quest the Attorney General of the United States to institute a civil action in an appropriate dis- trict court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. (2) The Administrator may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or doc- uments in connection with hearings under this section. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts 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 before the administrative law judge or to appear and produce documents before the administrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (Pub. L. 99–499, title III, § 325, Oct. 17, 1986, 100 Stat. 1753.) § 11046. Civil actions (a) Authority to bring civil actions (1) Citizen suits Except as provided in subsection (e), any person may commence a civil action on his own behalf against the following: (A) An owner or operator of a facility for failure to do any of the following: (i) Submit a followup emergency notice under section 11004(c) of this title. (ii) Submit a material safety data sheet or a list under section 11021(a) of this title. (iii) Complete and submit an inventory form under section 11022(a) of this title containing tier I information as described in section 11022(d)(1) of this title unless such requirement does not apply by reason of the second sentence of section 11022(a)(2) of this title.