33 U.S.C. § 1319 — Enforcement

Page 476 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 Editorial Notes AMENDMENTS 1987—Subsec. (a). Pub. L. 100–4, § 406(d)(1), substituted ‘‘1345, and 1364’’ for ‘‘and 1364’’ in cl. (4). Subsec. (a)(B). Pub. L. 100–4, § 310(a)(2), inserted ‘‘(in- cluding an authorized contractor acting as a represent- ative of the Administrator)’’ after ‘‘representative’’. Subsec. (b). Pub. L. 100–4, § 310(a)(1), substituted a pe- riod and ‘‘Any authorized representative of the Admin- istrator (including an authorized contractor acting as a representative of the Administrator) who knowingly or willfully publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information which is required to be considered con- fidential under this subsection shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. Nothing in this subsection shall prohibit the Adminis- trator or an authorized representative of the Adminis- trator (including any authorized contractor acting as a representative of the Administrator) from disclosing records, reports, or information to other officers, em- ployees, or authorized representatives of the United States concerned with carrying out this chapter or when relevant in any proceeding under this chapter.’’ for ‘‘, except that such record, report, or information may be disclosed to other officers, employees, or au- thorized representatives of the United States concerned with carrying out this chapter or when relevant in any proceeding under this chapter.’’ Subsec. (d). Pub. L. 100–4, § 310(b), added subsec. (d). 1977—Subsec. (a)(4). Pub. L. 95–217 inserted ‘‘1344 (re- lating to State permit programs),’’ after ‘‘sections 1315, 1321, 1342,’’ in provisions preceding subpar. (A). § 1319. Enforcement (a) State enforcement; compliance orders (1) Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any condition or limitation which implements section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title in a per- mit issued by a State under an approved permit program under section 1342 or 1344 of this title he shall proceed under his authority in para- graph (3) of this subsection or he shall notify the person in alleged violation and such State of such finding. If beyond the thirtieth day after the Administrator’s notification the State has not commenced appropriate enforcement action, the Administrator shall issue an order requiring such person to comply with such condition or limitation or shall bring a civil action in accord- ance with subsection (b) of this section. (2) Whenever, on the basis of information available to him, the Administrator finds that violations of permit conditions or limitations as set forth in paragraph (1) of this subsection are so widespread that such violations appear to re- sult from a failure of the State to enforce such permit conditions or limitations effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the thirtieth day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will en- force such conditions and limitations (hereafter referred to in this section as the period of ‘‘fed- erally assumed enforcement’’), except where an extension has been granted under paragraph (5)(B) of this subsection, the Administrator shall enforce any permit condition or limitation with respect to any person— (A) by issuing an order to comply with such condition or limitation, or (B) by bringing a civil action under sub- section (b) of this section. (3) Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 1311, 1312, 1316, 1317, 1318, 1322(p), 1328, or 1345 of this title, or is in violation of any permit condition or lim- itation implementing any of such sections in a permit issued under section 1342 of this title by him or by a State or in a permit issued under section 1344 of this title by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with sub- section (b) of this section. (4) A copy of any order issued under this sub- section shall be sent immediately by the Admin- istrator to the State in which the violation oc- curs and other affected States. In any case in which an order under this subsection (or notice to a violator under paragraph (1) of this sub- section) is issued to a corporation, a copy of such order (or notice) shall be served on any ap- propriate corporate officers. An order issued under this subsection relating to a violation of section 1318 of this title shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. (5)(A) Any order issued under this subsection shall be by personal service, shall state with reasonable specificity the nature of the viola- tion, and shall specify a time for compliance not to exceed thirty days in the case of a violation of an interim compliance schedule or operation and maintenance requirement and not to exceed a time the Administrator determines to be rea- sonable in the case of a violation of a final dead- line, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (B) The Administrator may, if he determines (i) that any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements under this chapter or in any permit issued under this chapter, has acted in good faith, and has made a commitment (in the form of contracts or other securities) of nec- essary resources to achieve compliance by the earliest possible date after July 1, 1977, but not later than April 1, 1979; (ii) that any extension under this provision will not result in the impo- sition of any additional controls on any other point or nonpoint source; (iii) that an applica- tion for a permit under section 1342 of this title was filed for such person prior to December 31, 1974; and (iv) that the facilities necessary for compliance with such requirements are under construction, grant an extension of the date re- ferred to in section 1311(b)(1)(A) of this title to a date which will achieve compliance at the ear- liest time possible but not later than April 1, 1979. (6) Whenever, on the basis of information available to him, the Administrator finds (A) that any person is in violation of section 1311(b)(1)(A) or (C) of this title, (B) that such person cannot meet the requirements for a time extension under section 1311(i)(2) of this title, Page 477 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 and (C) that the most expeditious and appro- priate means of compliance with this chapter by such person is to discharge into a publicly owned treatment works, then, upon request of such person, the Administrator may issue an order requiring such person to comply with this chapter at the earliest date practicable, but not later than July 1, 1983, by discharging into a publicly owned treatment works if such works concur with such order. Such order shall include a schedule of compliance. (b) Civil actions The Administrator is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any vio- lation for which he is authorized to issue a com- pliance order under subsection (a) of this sec- tion. Any action under this subsection may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance. Notice of the commencement of such action shall be given immediately to the appropriate State. (c) Criminal penalties (1) Negligent violations Any person who— (A) negligently violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1322(p), 1328, or 1345 of this title, or any permit condition or limi- tation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section 1344 of this title by the Sec- retary of the Army or by a State; or (B) negligently introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal in- jury or property damage or, other than in compliance with all applicable Federal, State, or local requirements or permits, which causes such treatment works to vio- late any effluent limitation or condition in any permit issued to the treatment works under section 1342 of this title by the Admin- istrator or a State; shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of viola- tion, or by imprisonment for not more than 1 year, or by both. If a conviction of a person is for a violation committed after a first convic- tion of such person under this paragraph, pun- ishment shall be by a fine of not more than $50,000 per day of violation, or by imprison- ment of not more than 2 years, or by both. (2) Knowing violations Any person who— (A) knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1322(p), 1328, or 1345 of this title, or any permit condition or limi- tation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section 1344 of this title by the Sec- retary of the Army or by a State; or (B) knowingly introduces into a sewer sys- tem or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal in- jury or property damage or, other than in compliance with all applicable Federal, State, or local requirements or permits, which causes such treatment works to vio- late any effluent limitation or condition in a permit issued to the treatment works under section 1342 of this title by the Adminis- trator or a State; shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of viola- tion, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first con- viction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprison- ment of not more than 6 years, or by both. (3) Knowing endangerment (A) General rule Any person who knowingly violates sec- tion 1311, 1312, 1313, 1316, 1317, 1318, 1321(b)(3), 1322(p), 1328, or 1345 of this title, or any per- mit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Adminis- trator or by a State, or in a permit issued under section 1344 of this title by the Sec- retary of the Army or by a State, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon convic- tion, be subject to a fine of not more than $250,000 or imprisonment of not more than 15 years, or both. A person which is an organi- zation shall, upon conviction of violating this subparagraph, be subject to a fine of not more than $1,000,000. If a conviction of a per- son is for a violation committed after a first conviction of such person under this para- graph, the maximum punishment shall be doubled with respect to both fine and impris- onment. (B) Additional provisions For the purpose of subparagraph (A) of this paragraph— (i) in determining whether a defendant who is an individual knew that his conduct placed another person in imminent danger of death or serious bodily injury— (I) the person is responsible only for actual awareness or actual belief that he possessed; and (II) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant; except that in proving the defendant’s pos- session of actual knowledge, circumstan- Page 478 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 1 So in original. tial evidence may be used, including evi- dence that the defendant took affirmative steps to shield himself from relevant infor- mation; (ii) it is an affirmative defense to pros- ecution that the conduct charged was con- sented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of— (I) an occupation, a business, or a pro- fession; or (II) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving con- sent; and such defense may be established under this subparagraph by a preponderance of the evidence; (iii) the term ‘‘organization’’ means a legal entity, other than a government, es- tablished or organized for any purpose, and such term includes a corporation, com- pany, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other associa- tion of persons; and (iv) the term ‘‘serious bodily injury’’ means bodily injury which involves a sub- stantial risk of death, unconsciousness, ex- treme physical pain, protracted and obvi- ous disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (4) False statements Any person who knowingly makes any false material statement, representation, or certifi- cation in any application, record, report, plan, or other document filed or required to be maintained under this chapter or who know- ingly falsifies, tampers with, or renders inac- curate any monitoring device or method re- quired to be maintained under this chapter, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or by both. If a convic- tion of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or by both. (5) Treatment of single operational upset For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant param- eter shall be treated as a single violation. (6) Responsible corporate officer as ‘‘person’’ For the purpose of this subsection, the term ‘‘person’’ means, in addition to the definition contained in section 1362(5) of this title, any responsible corporate officer. (7) Hazardous substance defined For the purpose of this subsection, the term ‘‘hazardous substance’’ means (A) any sub- stance designated pursuant to section 1321(b)(2)(A) of this title, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of title 42, (C) any hazardous waste having the character- istics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of this title, and (E) any imminently hazardous chem- ical substance or mixture with respect to which the Administrator has taken action pur- suant to section 2606 of title 15. (d) Civil penalties; factors considered in deter- mining amount Any person who violates section 1311, 1312, 1316, 1317, 1318, 1322(p), 1328,,1 or 1345 of this title, or any permit condition or limitation imple- menting any of such sections in a permit issued under section 1342 of this title by the Adminis- trator, or by a State, or in a permit issued under section 1344 of this title by a State, or any re- quirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title, and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the viola- tion or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic im- pact of the penalty on the violator, and such other matters as justice may require. For pur- poses of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. (e) State liability for judgments and expenses Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the munici- pality in such action to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment. (f) Wrongful introduction of pollutant into treat- ment works Whenever, on the basis of any information available to him, the Administrator finds that an owner or operator of any source is intro- ducing a pollutant into a treatment works in violation of subsection (d) of section 1317 of this title, the Administrator may notify the owner or operator of such treatment works and the State of such violation. If the owner or operator of the treatment works does not commence ap- propriate enforcement action within 30 days of the date of such notification, the Administrator may commence a civil action for appropriate re- Page 479 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 lief, including but not limited to, a permanent or temporary injunction, against the owner or operator of such treatment works. In any such civil action the Administrator shall join the owner or operator of such source as a party to the action. Such action shall be brought in the district court of the United States in the dis- trict in which the treatment works is located. Such court shall have jurisdiction to restrain such violation and to require the owner or oper- ator of the treatment works and the owner or operator of the source to take such action as may be necessary to come into compliance with this chapter. Notice of commencement of any such action shall be given to the State. Nothing in this subsection shall be construed to limit or prohibit any other authority the Administrator may have under this chapter. (g) Administrative penalties (1) Violations Whenever on the basis of any information available— (A) the Administrator finds that any per- son has violated section 1311, 1312, 1316, 1317, 1318, 1322(p), 1328, or 1345 of this title, or has violated any permit condition or limitation implementing any of such sections in a per- mit issued under section 1342 of this title by the Administrator or by a State, or in a per- mit issued under section 1344 of this title by a State, or (B) the Secretary of the Army (hereinafter in this subsection referred to as the ‘‘Sec- retary’’) finds that any person has violated any permit condition or limitation in a per- mit issued under section 1344 of this title by the Secretary, the Administrator or Secretary, as the case may be, may, after consultation with the State in which the violation occurs, assess a class I civil penalty or a class II civil penalty under this subsection. (2) Classes of penalties (A) Class I The amount of a class I civil penalty under paragraph (1) may not exceed $10,000 per vio- lation, except that the maximum amount of any class I civil penalty under this subpara- graph shall not exceed $25,000. Before issuing an order assessing a civil penalty under this subparagraph, the Administrator or the Sec- retary, as the case may be, shall give to the person to be assessed such penalty written notice of the Administrator’s or Secretary’s proposal to issue such order and the oppor- tunity to request, within 30 days of the date the notice is received by such person, a hear- ing on the proposed order. Such hearing shall not be subject to section 554 or 556 of title 5, but shall provide a reasonable oppor- tunity to be heard and to present evidence. (B) Class II The amount of a class II civil penalty under paragraph (1) may not exceed $10,000 per day for each day during which the viola- tion continues; except that the maximum amount of any class II civil penalty under this subparagraph shall not exceed $125,000. Except as otherwise provided in this sub- section, a class II civil penalty shall be as- sessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for a hearing on the record in accordance with section 554 of title 5. The Administrator and the Secretary may issue rules for discovery procedures for hearings under this subparagraph. (3) Determining amount In determining the amount of any penalty assessed under this subsection, the Adminis- trator or the Secretary, as the case may be, shall take into account the nature, cir- cumstances, extent and gravity of the viola- tion, or violations, and, with respect to the vi- olator, 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. For purposes of this sub- section, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a sin- gle violation. (4) Rights of interested persons (A) Public notice Before issuing an order assessing a civil penalty under this subsection the Adminis- trator or Secretary, as the case may be, shall provide public notice of and reasonable opportunity to comment on the proposed issuance of such order. (B) Presentation of evidence Any person who comments on a proposed assessment of a penalty under this sub- section shall be given notice of any hearing held under this subsection and of the order assessing such penalty. In any hearing held under this subsection, such person shall have a reasonable opportunity to be heard and to present evidence. (C) Rights of interested persons to a hearing If no hearing is held under paragraph (2) before issuance of an order assessing a pen- alty under this subsection, any person who commented on the proposed assessment may petition, within 30 days after the issuance of such order, the Administrator or Secretary, as the case may be, to set aside such order and to provide a hearing on the penalty. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Administrator or Secretary shall imme- diately set aside such order and provide a hearing in accordance with paragraph (2)(A) in the case of a class I civil penalty and paragraph (2)(B) in the case of a class II civil penalty. If the Administrator or Secretary denies a hearing under this subparagraph, the Administrator or Secretary shall provide to the petitioner, and publish in the Federal Register, notice of and the reasons for such denial. (5) Finality of order An order issued under this subsection shall become final 30 days after its issuance unless Page 480 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 a petition for judicial review is filed under paragraph (8) or a hearing is requested under paragraph (4)(C). If such a hearing is denied, such order shall become final 30 days after such denial. (6) Effect of order (A) Limitation on actions under other sec- tions Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Ad- ministrator’s or Secretary’s authority to en- force any provision of this chapter; except that any violation— (i) with respect to which the Adminis- trator or the Secretary has commenced and is diligently prosecuting an action under this subsection, (ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or (iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty as- sessed under this subsection, or such com- parable State law, as the case may be, shall not be the subject of a civil penalty ac- tion under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title. (B) Applicability of limitation with respect to citizen suits The limitations contained in subparagraph (A) on civil penalty actions under section 1365 of this title shall not apply with respect to any violation for which— (i) a civil action under section 1365(a)(1) of this title has been filed prior to com- mencement of an action under this sub- section, or (ii) notice of an alleged violation of sec- tion 1365(a)(1) of this title has been given in accordance with section 1365(b)(1)(A) of this title prior to commencement of an ac- tion under this subsection and an action under section 1365(a)(1) of this title with respect to such alleged violation is filed before the 120th day after the date on which such notice is given. (7) Effect of action on compliance No action by the Administrator or the Sec- retary under this subsection shall affect any person’s obligation to comply with any section of this chapter or with the terms and condi- tions of any permit issued pursuant to section 1342 or 1344 of this title. (8) Judicial review Any person against whom a civil penalty is assessed under this subsection or who com- mented on the proposed assessment of such penalty in accordance with paragraph (4) may obtain review of such assessment— (A) in the case of assessment of a class I civil penalty, in the United States District Court for the District of Columbia or in the district in which the violation is alleged to have occurred, or (B) in the case of assessment of a class II civil penalty, in United States Court of Ap- peals for the District of Columbia Circuit or for any other circuit in which such person resides or transacts business, by filing a notice of appeal in such court with- in the 30-day period beginning on the date the civil penalty order is issued and by simulta- neously sending a copy of such notice by cer- tified mail to the Administrator or the Sec- retary, as the case may be, and the Attorney General. The Administrator or the Secretary shall promptly file in such court a certified copy of the record on which the order was issued. Such court shall not set aside or re- mand such order unless there is not substan- tial evidence in the record, taken as a whole, to support the finding of a violation or unless the Administrator’s or Secretary’s assessment of the penalty constitutes an abuse of discre- tion and shall not impose additional civil pen- alties for the same violation unless the Ad- ministrator’s or Secretary’s assessment of the penalty constitutes an abuse of discretion. (9) Collection If any person fails to pay an assessment of a civil penalty— (A) after the order making the assessment has become final, or (B) after a court in an action brought under paragraph (8) has entered a final judg- ment in favor of the Administrator or the Secretary, as the case may be, the Administrator or the Secretary shall re- quest the Attorney General to bring a civil ac- tion in an appropriate district court to recover the amount assessed (plus interest at cur- rently prevailing rates from the date of the final order or the date of the final judgment, as the case may be). In such an action, the va- lidity, amount, and appropriateness of such penalty shall not be subject to review. Any person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in the first sentence of this para- graph shall be required to pay, in addition to such amount and interest, attorneys fees and costs for collection proceedings and a quar- terly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person’s penalties and nonpayment pen- alties which are unpaid as of the beginning of such quarter. (10) Subpoenas The Administrator or Secretary, as the case may be, may issue subpoenas for the attend- ance and testimony of witnesses and the pro- duction 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 Page 481 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1319 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. (11) Protection of existing procedures Nothing in this subsection shall change the procedures existing on the day before Feb- ruary 4, 1987, under other subsections of this section for issuance and enforcement of orders by the Administrator. (h) Implementation of integrated plans (1) In general In conjunction with an enforcement action under subsection (a) or (b) relating to munic- ipal discharges, the Administrator shall in- form a municipality of the opportunity to de- velop an integrated plan, as defined in section 1342(s) of this title. (2) Modification Any municipality under an administrative order under subsection (a) or settlement agreement (including a judicial consent de- cree) under subsection (b) that has developed an integrated plan consistent with section 1342(s) of this title may request a modification of the administrative order or settlement agreement based on that integrated plan. (June 30, 1948, ch. 758, title III, § 309, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 859; amended Pub. L. 95–217, §§ 54(b), 55, 56, 67(c)(2), Dec. 27, 1977, 91 Stat. 1591, 1592, 1606; Pub. L. 100–4, title III, §§ 312, 313(a)(1), (b)(1), (c), 314(a), Feb. 4, 1987, 101 Stat. 42, 45, 46; Pub. L. 101–380, title IV, § 4301(c), Aug. 18, 1990, 104 Stat. 537; Pub. L. 115–282, title IX, § 903(c)(2), Dec. 4, 2018, 132 Stat. 4356; Pub. L. 115–436, § 3(b), Jan. 14, 2019, 132 Stat. 5560.) Editorial Notes REFERENCES IN TEXT The Solid Waste Disposal Act, referred to in subsec. (c)(7), 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, which is classified generally to chap- ter 82 (§ 6901 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of Title 42 and Tables. AMENDMENTS 2019—Subsec. (h). Pub. L. 115–436 added subsec. (h). 2018—Subsec. (a)(3). Pub. L. 115–282, § 903(c)(2)(A), sub- stituted ‘‘1322(p), 1328’’ for ‘‘1328’’. Subsec. (c)(1)(A), (2)(A), (3)(A). Pub. L. 115–282, § 903(c)(2)(B), substituted ‘‘1322(p), 1328’’ for ‘‘1328’’. Subsec. (d). Pub. L. 115–282, § 903(c)(2)(C), substituted ‘‘1322(p), 1328,’’ for ‘‘1328’’ and ‘‘State,’’ for ‘‘State,,’’. Subsec. (g)(1)(A). Pub. L. 115–282, § 903(c)(2)(D), sub- stituted ‘‘1322(p), 1328’’ for ‘‘1328’’. 1990—Subsec. (c)(1)(A), (2)(A), (3)(A). Pub. L. 101–380 inserted ‘‘1321(b)(3),’’ after ‘‘1318,’’. 1987—Subsec. (c). Pub. L. 100–4, § 312, amended subsec. (c) generally, revising provisions of par. (1), adding pars. (2), (3), (5), and (7), redesignating former pars. (2) and (4) as (3) and (6), respectively, and revising provi- sions of redesignated par. (4). Subsec. (d). Pub. L. 100–4, § 313(a)(1), inserted ‘‘, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title,’’ after second reference to ‘‘State,’’. Pub. L. 100–4, § 313(b)(1), substituted ‘‘$25,000 per day for each violation’’ for ‘‘$10,000 per day of such viola- tion’’. Pub. L. 100–4, § 313(c), inserted at end ‘‘In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the eco- nomic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. For purposes of this subsection, a single operational upset which leads to si- multaneous violations of more than one pollutant pa- rameter shall be treated as a single violation.’’ Subsec. (g). Pub. L. 100–4, § 314(a), added subsec. (g). 1977—Subsec. (a)(1). Pub. L. 95–217, §§ 55(a), 67(c)(2)(A), substituted ‘‘1318, 1328, or 1345 of this title’’ for ‘‘or 1318 of this title’’ and ‘‘1342 or 1344 of this title’’ for ‘‘1342 of this title’’. Subsec. (a)(2). Pub. L. 95–217, § 56(a), substituted ‘‘ex- cept where an extension has been granted under para- graph (5)(B) of this subsection, the Administrator shall enforce any permit condition or limitation’’ for ‘‘the Administrator shall enforce any permit condition or limitation’’. Subsec. (a)(3). Pub. L. 95–217, §§ 55(b), 67(c)(2)(B), sub- stituted ‘‘1318, 1328, or 1345 of this title’’ for ‘‘or 1318 of this title’’ and inserted ‘‘or in a permit issued under section 1344 of this title by a State’’ after ‘‘in a permit issued under section 1342 of this title by him or by a State’’. Subsec. (a)(4). Pub. L. 95–217, § 56(b), struck out provi- sion that any order issued under this subsection had to be by personal service and had to state with reasonable specificity the nature of the violation and a time for compliance, not to exceed thirty days, which the Ad- ministrator determined to be reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. See section subsec. (a)(5) of this section. Subsec. (a)(5), (6). Pub. L. 95–217, § 56(c), added pars. (5) and (6). Subsec. (c)(1). Pub. L. 95–217, § 67(c)(2)(C), substituted ‘‘by a State or in a permit issued under section 1344 of this title by a State, shall be punished’’ for ‘‘by a State, shall be punished’’. Subsec. (d). Pub. L. 95–217, §§ 55(c), 67(c)(2)(D), sub- stituted ‘‘1318, 1328, or 1345 of this title’’ for ‘‘or 1318 of this title’’ and inserted ‘‘or in a permit issued under section 1344 of this title by a State,’’ after ‘‘permit issued under section 1342 of this title by the Adminis- trator, or by a State,’’. Subsec. (f). Pub. L. 95–217, § 54(b), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–380 applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an Effective Date note under section 2701 of this title. SAVINGS PROVISION Pub. L. 100–4, title III, § 313(a)(2), Feb. 4, 1987, 101 Stat. 45, provided that: ‘‘No State shall be required before July 1, 1988, to modify a permit program approved or submitted under section 402 of the Federal Water Pollu- tion Control Act [33 U.S.C. 1342] as a result of the amendment made by paragraph (1) [amending this sec- tion].’’ DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL LIABILITY TRUST FUND Penalties paid pursuant to subsection (c) of this sec- tion and sections 1321 and 1501 et seq. of this title to be deposited in the Oil Spill Liability Trust Fund created under section 9509 of Title 26, Internal Revenue Code, Page 482 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1320 see section 4304 of Pub. L. 101–380, set out as a note under section 9509 of Title 26. INCREASED PENALTIES NOT REQUIRED UNDER STATE PROGRAMS Pub. L. 100–4, title III, § 313(b)(2), Feb. 4, 1987, 101 Stat. 45, provided that: ‘‘The Federal Water Pollution Con- trol Act [33 U.S.C. 1251 et seq.] shall not be construed as requiring a State to have a civil penalty for viola- tions described in section 309(d) of such Act [33 U.S.C. 1319(d)] which has the same monetary amount as the civil penalty established by such section, as amended by paragraph (1) [amending this section]. Nothing in this paragraph shall affect the Administrator’s author- ity to establish or adjust by regulation a minimum ac- ceptable State civil penalty.’’ ACTIONS BY SURGEON GENERAL RELATING TO INTERSTATE POLLUTION Act July 9, 1956, ch. 518, § 5, 70 Stat. 507, provided that actions by the Surgeon General with respect to water pollutants under section 2(d) of act June 30, 1948, ch. 758, 62 Stat. 1155, as in effect prior to July 9, 1956, which had been completed prior to such date, would still be subject to the terms of section 2(d) of act June 30, 1948, in effect prior to the July 9, 1956 amendment, but that actions with respect to such pollutants would neverthe- less subsequently be possible in accordance with the terms of act June 30, 1948, as amended by act July 9, 1956. § 1320. International pollution abatement (a) Hearing; participation by foreign nations Whenever the Administrator, upon receipts of reports, surveys, or studies from any duly con- stituted international agency, has reason to be- lieve that pollution is occurring which endan- gers the health or welfare of persons in a foreign country, and the Secretary of State requests him to abate such pollution, he shall give formal notification thereof to the State water pollution control agency of the State or States in which such discharge or discharges originate and to the appropriate interstate agency, if any. He shall also promptly call such a hearing, if he be- lieves that such pollution is occurring in suffi- cient quantity to warrant such action, and if such foreign country has given the United States essentially the same rights with respect to the prevention and control of pollution occur- ring in that country as is given that country by this subsection. The Administrator, through the Secretary of State, shall invite the foreign coun- try which may be adversely affected by the pol- lution to attend and participate in the hearing, and the representative of such country shall, for the purpose of the hearing and any further pro- ceeding resulting from such hearing, have all the rights of a State water pollution control agency. Nothing in this subsection shall be con- strued to modify, amend, repeal, or otherwise af- fect the provisions of the 1909 Boundary Waters Treaty between Canada and the United States or the Water Utilization Treaty of 1944 between Mexico and the United States (59 Stat. 1219), rel- ative to the control and abatement of pollution in waters covered by those treaties. (b) Functions and responsibilities of Adminis- trator not affected The calling of a hearing under this section shall not be construed by the courts, the Admin- istrator, or any person as limiting, modifying, or otherwise affecting the functions and respon- sibilities of the Administrator under this sec- tion to establish and enforce water quality re- quirements under this chapter. (c) Hearing board; composition; findings of fact; recommendations; implementation of board’s decision The Administrator shall publish in the Fed- eral Register a notice of a public hearing before a hearing board of five or more persons ap- pointed by the Administrator. A majority of the members of the board and the chairman who shall be designated by the Administrator shall not be officers or employees of Federal, State, or local governments. On the basis of the evidence presented at such hearing, the board shall with- in sixty days after completion of the hearing make findings of fact as to whether or not such pollution is occurring and shall thereupon by de- cision, incorporating its findings therein, make such recommendations to abate the pollution as may be appropriate and shall transmit such de- cision and the record of the hearings to the Ad- ministrator. All such decisions shall be public. Upon receipt of such decision, the Administrator shall promptly implement the board’s decision in accordance with the provisions of this chap- ter. (d) Report by alleged polluter In connection with any hearing called under this subsection, the board is authorized to re- quire any person whose alleged activities result in discharges causing or contributing to pollu- tion to file with it in such forms as it may pre- scribe, a report based on existing data, fur- nishing such information as may reasonably be required as to the character, kind, and quantity of such discharges and the use of facilities or other means to prevent or reduce such dis- charges by the person filing such a report. Such report shall be made under oath or otherwise, as the board may prescribe, and shall be filed with the board within such reasonable period as it may prescribe, unless additional time is granted by it. Upon a showing satisfactory to the board by the person filing such report that such report or portion thereof (other than effluent data), to which the Administrator has access under this section, if made public would divulge trade se- crets or secret processes of such person, the board shall consider such report or portion thereof confidential for the purposes of section 1905 of title 18. If any person required to file any report under this paragraph shall fail to do so within the time fixed by the board for filing the same, and such failure shall continue for thirty days after notice of such default, such person shall forfeit to the United States the sum of $1,000 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States in the district court of the United States where such person has his principal office or in any district in which he does business. The Administrator may upon application therefor remit or mitigate any forfeiture provided for under this subsection. (e) Compensation of board members Board members, other than officers or employ- ees of Federal, State, or local governments,