33 U.S.C. § 1365 — Citizen suits

Page 586 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1365 Pub. L. 96–510, title III, § 304(a), Dec. 11, 1980, 94 Stat. 2809.) Editorial Notes AMENDMENTS 1980—Subsec. (b). Pub. L. 96–510 struck out subsec. (b) which related to emergency assistance, establishment of an emergency fund, and preparation of a contingency plan for such emergencies. 1977—Pub. L. 95–217 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–510 effective Dec. 11, 1980, see section 9652 of Title 42, The Public Health and Wel- fare. § 1365. Citizen suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other govern- mental instrumentality or agency to the ex- tent permitted by the eleventh amendment to the Constitution) who is alleged to be in viola- tion of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to per- form any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, with- out regard to the amount in controversy or the citizenship of the parties, to enforce such an ef- fluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. (b) Notice No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limi- tation, or order, or (B) if the Administrator or State has com- menced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a mat- ter of right. (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought imme- diately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. (c) Venue; intervention by Administrator; United States interests protected (1) Any action respecting a violation by a dis- charge source of an effluent standard or limita- tion or an order respecting such standard or lim- itation may be brought under this section only in the judicial district in which such source is located. (2) In such action under this section, the Ad- ministrator, if not a party, may intervene as a matter of right. (3) PROTECTION OF INTERESTS OF UNITED STATES.—Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. (d) Litigation costs The court, in issuing any final order in any ac- tion brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any pre- vailing or substantially prevailing party, when- ever the court determines such award is appro- priate. The court may, if a temporary restrain- ing order or preliminary injunction is sought, require the filing of a bond or equivalent secu- rity in accordance with the Federal Rules of Civil Procedure. (e) Statutory or common law rights not re- stricted Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek en- forcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). (f) Effluent standard or limitation For purposes of this section, the term ‘‘efflu- ent standard or limitation under this chapter’’ means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) stand- ard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) a standard of performance or re- quirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title that is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (8) a regulation under section 1345(d) of this title. (g) ‘‘Citizen’’ defined For the purposes of this section the term ‘‘cit- izen’’ means a person or persons having an inter- est which is or may be adversely affected. Page 587 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1367 (h) Civil action by State Governors A Governor of a State may commence a civil action under subsection (a), without regard to the limitations of subsection (b) of this section, against the Administrator where there is alleged a failure of the Administrator to enforce an ef- fluent standard or limitation under this chapter the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State, or is caus- ing a violation of any water quality requirement in his State. (June 30, 1948, ch. 758, title V, § 505, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 888; amended Pub. L. 100–4, title III, § 314(c), title IV, § 406(d)(2), title V, §§ 504, 505(c), Feb. 4, 1987, 101 Stat. 49, 73, 75, 76; Pub. L. 115–282, title IX, § 903(c)(3), Dec. 4, 2018, 132 Stat. 4356.) 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. AMENDMENTS 2018—Subsec. (f). Pub. L. 115–282 substituted ‘‘(5) a standard of performance or requirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title that is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (8) a regulation under section 1345(d) of this title.’’ for ‘‘(5) certification under section 1341 of this title; (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (7) a regulation under section 1345(d) of this title,.’’ 1987—Subsec. (a). Pub. L. 100–4, § 314(c), inserted ‘‘and section 1319(g)(6) of this title’’ after ‘‘subsection (b) of this section’’ in introductory text. Subsec. (c)(3). Pub. L. 100–4, § 504, added par. (3). Subsec. (d). Pub. L. 100–4, § 505(c), inserted ‘‘prevailing or substantially prevailing’’ before ‘‘party’’. Subsec. (f). Pub. L. 100–4, § 406(d)(2), added cl. (7). § 1366. Appearance The Administrator shall request the Attorney General to appear and represent the United States in any civil or criminal action instituted under this chapter to which the Administrator is a party. Unless the Attorney General notifies the Administrator within a reasonable time, that he will appear in a civil action, attorneys who are officers or employees of the Environ- mental Protection Agency shall appear and rep- resent the United States in such action. (June 30, 1948, ch. 758, title V, § 506, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 889.) § 1367. Employee protection (a) Discrimination against persons filing, insti- tuting, or testifying in proceedings under this chapter prohibited No person shall fire, or in any other way dis- criminate against, or cause to be fired or dis- criminated against, any employee or any au- thorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or in- stituted any proceeding under this chapter, or has testified or is about to testify in any pro- ceeding resulting from the administration or en- forcement of the provisions of this chapter. (b) Application for review; investigation; hear- ing; review Any employee or a representative of employ- ees who believes that he has been fired or other- wise discriminated against by any person in vio- lation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a re- view of such firing or alleged discrimination. A copy of the application shall be sent to such per- son who shall be the respondent. Upon receipt of such application, the Secretary of Labor shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to such review to enable the parties to present information relating to such alleged violation. The parties shall be given written no- tice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of title 5. Upon receiving the report of such investigation, the Secretary of Labor shall make findings of fact. If he finds that such vio- lation did occur, he shall issue a decision, incor- porating an order therein and his findings, re- quiring the party committing such violation to take such affirmative action to abate the viola- tion as the Secretary of Labor deems appro- priate, including, but not limited to, the rehir- ing or reinstatement of the employee or rep- resentative of employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Sec- retary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions of the Administrator are subject to judicial review under this chapter. (c) Costs and expenses Whenever an order is issued under this section to abate such violation, at the request of the ap- plicant, a sum equal to the aggregate amount of all costs and expenses (including the attorney’s fees), as determined by the Secretary of Labor, to have been reasonably incurred by the appli- cant for, or in connection with, the institution and prosecution of such proceedings, shall be as- sessed against the person committing such vio- lation. (d) Deliberate violations by employee acting without direction from his employer or his agent This section shall have no application to any employee who, acting without direction from his employer (or his agent) deliberately violates any prohibition of effluent limitation or other limi- tation under section 1311 or 1312 of this title, standards of performance under section 1316 of this title, effluent standard, prohibition or pretreatment standard under section 1317 of this title, or any other prohibition or limitation es- tablished under this chapter.