42 U.S.C. § 6928 — Federal enforcement

Page 6958 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6928 mation obtained by representatives of the Environ- mental Protection Agency)’’ after ‘‘information’’. Subsec. (b)(2) to (4). Pub. L. 96–482, § 12(b)(3), added pars. (2) to (4). 1978—Subsec. (a)(1). Pub. L. 95–609 substituted ‘‘dis- posed of, or transported from’’ for ‘‘or disposed of’’. Executive Documents TRANSFER OF FUNCTIONS For transfer of certain enforcement functions of Ad- ministrator or other official of Environmental Protec- tion Agency under this chapter to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see note set out under section 6903 of this title. § 6928. Federal enforcement (a) Compliance orders (1) Except as provided in paragraph (2), when- ever on the basis of any information the Admin- istrator determines that any person has violated or is in violation of any requirement of this sub- chapter, the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent in- junction. (2) In the case of a violation of any require- ment of this subchapter where such violation oc- curs in a State which is authorized to carry out a hazardous waste program under section 6926 of this title, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section. (3) Any order issued pursuant to this sub- section may include a suspension or revocation of any permit issued by the Administrator or a State under this subchapter and shall state with reasonable specificity the nature of the viola- tion. Any penalty assessed in the order shall not exceed $25,000 per day of noncompliance for each violation of a requirement of this subchapter. In assessing such a penalty, the Administrator shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (b) Public hearing Any order issued under this section shall be- come final unless, no later than thirty days after the order is served, the person or persons named therein request a public hearing. Upon such request the Administrator shall promptly conduct a public hearing. In connection with any proceeding under this section the Adminis- trator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and may promulgate rules for discovery procedures. (c) Violation of compliance orders If a violator fails to take corrective action within the time specified in a compliance order, the Administrator may assess a civil penalty of not more than $25,000 for each day of continued noncompliance with the order and the Adminis- trator may suspend or revoke any permit issued to the violator (whether issued by the Adminis- trator or the State). (d) Criminal penalties Any person who— (1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this sub- chapter, or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. 1411 et seq.], (2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter— (A) without a permit under this subchapter or pursuant to title I of the Marine Protec- tion, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. 1411 et seq.]; or (B) in knowing violation of any material condition or requirement of such permit; or (C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards; (3) knowingly omits material information or makes any false material statement or rep- resentation in any application, label, mani- fest, record, report, permit, or other document filed, maintained, or used for purposes of com- pliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this sub- chapter; (4) knowingly generates, stores, treats, transports, disposes of, exports, or otherwise handles any hazardous waste or any used oil not identified or listed as a hazardous waste under this subchapter (whether such activity took place before or takes place after Novem- ber 8, 1984) and who knowingly destroys, al- ters, conceals, or fails to file any record, appli- cation, manifest, report, or other document required to be maintained or filed for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subchapter; (5) knowingly transports without a manifest, or causes to be transported without a mani- fest, any hazardous waste or any used oil not identified or listed as a hazardous waste under this subchapter required by regulations pro- mulgated under this subchapter (or by a State in the case of a State program authorized under this subchapter) to be accompanied by a manifest; (6) knowingly exports a hazardous waste identified or listed under this subchapter (A) without the consent of the receiving country or, (B) where there exists an international agreement between the United States and the government of the receiving country estab- lishing notice, export, and enforcement proce- dures for the transportation, treatment, stor- age, and disposal of hazardous wastes, in a manner which is not in conformance with such agreement; or (7) knowingly stores, treats, transports, or causes to be transported, disposes of, or other- Page 6959 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6928 wise handles any used oil not identified or list- ed as a hazardous waste under this sub- chapter— (A) in knowing violation of any material condition or requirement of a permit under this subchapter; or (B) in knowing violation of any material condition or requirement of any applicable regulations or standards under this chapter; shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both. If the conviction is for a viola- tion committed after a first conviction of such person under this paragraph, the maximum pun- ishment under the respective paragraph shall be doubled with respect to both fine and imprison- ment. (e) Knowing endangerment Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subchapter or used oil not identified or listed as a hazardous waste under this subchapter in violation of para- graph (1), (2), (3), (4), (5), (6), or (7) of subsection (d) of this section who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment for not more than fifteen years, or both. A defendant that is an or- ganization shall, upon conviction of violating this subsection, be subject to a fine of not more than $1,000,000. (f) Special rules For the purposes of subsection (e)— (1) A person’s state of mind is knowing with respect to— (A) his conduct, if he is aware of the na- ture of his conduct; (B) an existing circumstance, if he is aware or believes that the circumstance ex- ists; or (C) a result of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury. (2) In determining whether a defendant who is a natural person knew that his conduct placed another person in imminent danger of death or serious bodily injury— (A) the person is responsible only for ac- tual awareness or actual belief that he pos- sessed; and (B) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defend- ant; Provided, That in proving the defendant’s pos- session of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. (3) It is an affirmative defense to a prosecu- tion that the conduct charged was consented to by the person endangered and that the dan- ger and conduct charged were reasonably fore- seeable hazards of— (A) an occupation, a business, or a profes- sion; or (B) medical treatment or medical or sci- entific experimentation conducted by profes- sionally approved methods and such other person had been made aware of the risks in- volved prior to giving consent. The defendant may establish an affirmative defense under this subsection by a preponder- ance of the evidence. (4) All general defenses, affirmative de- fenses, and bars to prosecution that may apply with respect to other Federal criminal of- fenses may apply under subsection (e) and shall be determined by the courts of the United States according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of justification and excuse applicable under this section may be developed in the light of rea- son and experience. (5) The term ‘‘organization’’ means a legal entity, other than a government, established, or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock company, foun- dation, institution, trust, society, union, or any other association of persons. (6) The term ‘‘serious bodily injury’’ means— (A) bodily injury which involves a substan- tial risk of death; (B) unconsciousness; (C) extreme physical pain; (D) protracted and obvious disfigurement; or (E) protracted loss or impairment of the function of a bodily member, organ, or men- tal faculty. (g) Civil penalty Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this sub- section, constitute a separate violation. (h) Interim status corrective action orders (1) Whenever on the basis of any information the Administrator determines that there is or has been a release of hazardous waste into the environment from a facility authorized to oper- ate under section 6925(e) of this title, the Ad- ministrator may issue an order requiring correc- tive action or such other response measure as he deems necessary to protect human health or the environment or the Administrator may com- mence a civil action in the United States dis- trict court in the district in which the facility is located for appropriate relief, including a tem- porary or permanent injunction. (2) Any order issued under this subsection may include a suspension or revocation of authoriza- tion to operate under section 6925(e) of this title, shall state with reasonable specificity the na- ture of the required corrective action or other response measure, and shall specify a time for compliance. If any person named in an order fails to comply with the order, the Adminis- trator may assess, and such person shall be lia- ble to the United States for, a civil penalty in Page 6960 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6928 an amount not to exceed $25,000 for each day of noncompliance with the order. (Pub. L. 89–272, title II, § 3008, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2811; amended Pub. L. 95–609, § 7(k), Nov. 8, 1978, 92 Stat. 3082; Pub. L. 96–482, § 13, Oct. 21, 1980, 94 Stat. 2339; Pub. L. 98–616, title II, §§ 232, 233, 245(c), title IV, § 403(d)(1)–(3), Nov. 8, 1984, 98 Stat. 3256, 3257, 3264, 3272; Pub. L. 99–499, title II, § 205(i), Oct. 17, 1986, 100 Stat. 1703.) Editorial Notes REFERENCES IN TEXT The Marine Protection, Research, and Sanctuaries Act, referred to in subsec. (d)(1), (2)(A), probably means the Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92–532, Oct. 23, 1972, 86 Stat. 1052. Title I of the Marine Protection, Research, and Sanctuaries Act of 1972 is classified generally to subchapter I (§ 1411 et seq.) of chapter 27 of Title 33, Navigation and Navi- gable Waters. For complete classification of this Act to the Code, see Short Title note set out under section 1401 of Title 33 and Tables. AMENDMENTS 1986—Subsec. (d)(4). Pub. L. 99–499, § 205(i)(1), inserted ‘‘or any used oil not identified or listed as a hazardous waste under this subchapter’’. Subsec. (d)(5). Pub. L. 99–499, § 205(i)(1), (2), inserted ‘‘or any used oil not identified or listed as a hazardous waste under this subchapter’’ and struck out ‘‘; or’’ after ‘‘accompanied by a manifest;’’. Subsec. (d)(6). Pub. L. 99–499, § 205(i)(3), inserted at end ‘‘; or’’. Subsec. (d)(7). Pub. L. 99–499, § 205(i)(4), added par. (7). Subsec. (e). Pub. L. 99–499, § 205(i)(5), inserted ‘‘or used oil not identified or listed as a hazardous waste under this subchapter’’ and substituted ‘‘(5), (6), or (7)’’ for ‘‘(5), or (6)’’. 1984—Subsec. (a)(1). Pub. L. 98–616, § 403(d)(1), in amending par. (1) generally, expanded authority of Ad- ministrator by empowering him to determine that a person ‘‘has violated’’ a requirement of this subchapter, and to assess a civil penalty for a past or current viola- tion. Subsec. (a)(3). Pub. L. 98–616, § 403(d)(2), in amending par. (3) generally, substituted provision that any order issued pursuant to this subsection may include a sus- pension or revocation of any permit issued by the Ad- ministrator or a State under this subchapter and shall state with reasonable specificity the nature of the vio- lation, and provision that any penalty assessed in the order shall not exceed $25,000 per day of noncompliance for each violation of a requirement of this subchapter, and that in assessing such a penalty, the Administrator take into account the seriousness of the violation and any good faith efforts to comply with applicable re- quirements, for provision that if such violator fails to take corrective action within the time specified in the order, he shall be liable for a civil penalty of not more than $25,000 for each day of continued noncompliance and the Administrator may suspend or revoke any per- mit issued to the violator, whether issued by the Ad- ministrator or the State. Subsec. (b). Pub. L. 98–616, § 233(b), inserted ‘‘issued under this section’’. Subsec. (c). Pub. L. 98–616, § 403(d)(3), substituted pro- visions relating to penalties for violation of compliance orders for former provisions which set forth require- ments for compliance orders. Subsec. (d). Pub. L. 98–616, § 232(a)(3), amended closing provisions generally. Prior to amendment, closing pro- visions read as follows: ‘‘shall, upon conviction, be sub- ject to a fine of not more than $25,000 ($50,000 in the case of a violation of paragraph (1) or (2)) for each day of violation, or to imprisonment not to exceed one year (two years in the case of a violation of paragraph (1) or (2)), or both. If the conviction is for a violation com- mitted after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both.’’ Subsec. (d)(1). Pub. L. 98–616, § 232(a)(1), inserted ‘‘or causes to be transported’’ and substituted ‘‘this sub- chapter’’ for ‘‘section 6925 of this title (or section 6926 of this title in case of a State program)’’. Subsec. (d)(2). Pub. L. 98–616, § 232(a)(2)(A), struck out ‘‘either’’ after ‘‘subchapter’’ in provision preceding sub- par. (A). Subsec. (d)(2)(A). Pub. L. 98–616, § 232(a)(2)(B), (c), sub- stituted ‘‘this subchapter’’ for ‘‘section 6925 of this title (or section 6926 of this title in the case of a State pro- gram)’’ and struck out ‘‘having obtained’’ before ‘‘a permit under’’. Subsec. (d)(2)(C). Pub. L. 98–616, § 232(a)(2)(C), added subpar. (C). Subsec. (d)(3) to (5). Pub. L. 98–616, § 232(a)(3), in amending pars. (3) and (4) generally, expanded par. (3) by providing criminal penalties for one who knowingly omits material information from documents required to be filed, maintained or used under this subchapter, expanded par. (4) by providing criminal penalties for one who knowingly fails to file required material under this subchapter, and added par. (5). Subsec. (d)(6). Pub. L. 98–616, § 245(c), added par. (6). Subsec. (e). Pub. L. 98–616, § 232(b), in amending sub- sec. (e) generally, struck out provisions referring to violations of interim status standards and omission of material information from permit applications, struck out provision requiring proof of ‘‘unjustifiable and in- excusable disregard for human life’’ or ‘‘extreme indif- ference to human life’’ for conviction under this sub- section, and inserted provision increasing maximum prison sentence to fifteen years for violation of subsec. (d)(1) through (6) of this section by one who knowingly places another person in imminent danger of death or serious bodily injury, replacing former provision call- ing for maximum imprisonment of two years, or five years in cases evidencing extreme indifference to human life. Subsec. (h). Pub. L. 98–616, § 233(a), added subsec. (h). 1980—Subsec. (a)(1). Pub. L. 96–482, § 13(1), (2), struck out ‘‘the Administrator shall give notice to the viola- tor of his failure to comply with such requirement. If such violation extends beyond the thirtieth day after the Administrator’s notification’’ before ‘‘the Adminis- trator may issue’’ and substituted ‘‘compliance imme- diately or within a specified time period’’ for ‘‘compli- ance within a specified time period’’. Subsec. (a)(2). Pub. L. 96–482, § 13(2), struck out ‘‘thir- ty days’’ after ‘‘violation has occurred’’. Subsec. (b). Pub. L. 96–482, § 13(3), substituted ‘‘order shall become final unless, no later than thirty days after the order is served’’ for ‘‘order or any suspension or revocation of a permit shall become final unless, no later than thirty days after the order or notice of the suspension or revocation is served’’. Subsec. (c). Pub. L. 96–482, § 13(4), authorized orders for suspension or revocation of permits. Subsec. (d). Pub. L. 96–482, § 13(5), in par. (2), des- ignated existing provisions as subpar. (A) and added subpar. (B), in par. (3), inserted provision requiring the statement or representation to be material, added par. (4), and in provisions following par. (4), inserted provi- sion authorizing a fine of $50,000 and a two year impris- onment for violation of par. (1) or (2). Subsecs. (e) to (g). Pub. L. 96–482, § 13(5), added sub- secs. (e) to (g). 1978—Subsec. (d)(1). Pub. L. 95–609, § 7(k)(1), inserted provision relating to title I of the Marine Protection, Research, and Sanctuaries Act. Subsec. (d)(2). Pub. L. 95–609, § 7(k)(2), inserted provi- sions relating to treatment or storage of hazardous wastes and relating to title I of the Marine Protection, Research, and Sanctuaries Act. Page 6961 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6930 1 So in original. Probably should be followed by a semicolon. Executive Documents TRANSFER OF FUNCTIONS For transfer of certain enforcement functions of Ad- ministrator or other official of Environmental Protec- tion Agency under this chapter to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see note set out under section 6903 of this title. § 6929. Retention of State authority Upon the effective date of regulations under this subchapter no State or political subdivision may impose any requirements less stringent than those authorized under this subchapter re- specting the same matter as governed by such regulations, except that if application of a regu- lation with respect to any matter under this subchapter is postponed or enjoined by the ac- tion of any court, no State or political subdivi- sion shall be prohibited from acting with respect to the same aspect of such matter until such time as such regulation takes effect. Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from im- posing any requirements, including those for site selection, which are more stringent than those imposed by such regulations. Nothing in this chapter (or in any regulation adopted under this chapter) shall be construed to prohibit any State from requiring that the State be provided with a copy of each manifest used in connection with hazardous waste which is generated within that State or transported to a treatment, stor- age, or disposal facility within that State. (Pub. L. 89–272, title II, § 3009, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2812; amended Pub. L. 96–482, § 14, Oct. 21, 1980, 94 Stat. 2342; Pub. L. 98–616, title II, § 213(b), Nov. 8, 1984, 98 Stat. 3242.) Editorial Notes AMENDMENTS 1984—Pub. L. 98–616 inserted ‘‘Nothing in this chapter (or in any regulation adopted under this chapter) shall be construed to prohibit any State from requiring that the State be provided with a copy of each manifest used in connection with hazardous waste which is generated within that State or transported to a treatment, stor- age, or disposal facility within that State.’’ 1980—Pub. L. 96–482 prohibited construction of this chapter as barring a State from imposing more strin- gent requirements than provided in Federal regula- tions. § 6930. Effective date (a) Preliminary notification Not later than ninety days after promulgation of regulations under section 6921 of this title identifying by its characteristics or listing any substance as hazardous waste subject to this subchapter, any person generating or trans- porting such substance or owning or operating a facility for treatment, storage, or disposal of such substance shall file with the Administrator (or with States having authorized hazardous waste permit programs under section 6926 of this title) a notification stating the location and general description of such activity and the identified or listed hazardous wastes handled by such person. Not later than fifteen months after November 8, 1984— (1) the owner or operator of any facility which produces a fuel (A) from any hazardous waste identified or listed under section 6921 of this title, (B) from such hazardous waste iden- tified or listed under section 6921 of this title and any other material, (C) from used oil, or (D) from used oil and any other material; (2) the owner or operator of any facility (other than a single- or two-family residence) which burns for purposes of energy recovery any fuel produced as provided in paragraph (1) or any fuel which otherwise contains used oil or any hazardous waste identified or listed under section 6921 of this title; and (3) any person who distributes or markets any fuel which is produced as provided in para- graph (1) or any fuel which otherwise contains used oil or any hazardous waste identified or listed under section 6921 of this title 1 shall file with the Administrator (and with the State in the case of a State with an authorized hazardous waste program) a notification stating the location and general description of the facil- ity, together with a description of the identified or listed hazardous waste involved and, in the case of a facility referred to in paragraph (1) or (2), a description of the production or energy re- covery activity carried out at the facility and such other information as the Administrator deems necessary. For purposes of the preceding provisions, the term ‘‘hazardous waste listed under section 6921 of this title’’ also includes any commercial chemical product which is list- ed under section 6921 of this title and which, in lieu of its original intended use, is (i) produced for use as (or as a component of) a fuel, (ii) dis- tributed for use as a fuel, or (iii) burned as a fuel. Notification shall not be required under the second sentence of this subsection in the case of facilities (such as residential boilers) where the Administrator determines that such notification is not necessary in order for the Administrator to obtain sufficient information respecting cur- rent practices of facilities using hazardous waste for energy recovery. Nothing in this sub- section shall be construed to affect or impair the provisions of section 6921(b)(3) of this title. Nothing in this subsection shall affect regu- latory determinations under section 6935 of this title. In revising any regulation under section 6921 of this title identifying additional charac- teristics of hazardous waste or listing any addi- tional substance as hazardous waste subject to this subchapter, the Administrator may require any person referred to in the preceding provi- sions to file with the Administrator (or with States having authorized hazardous waste per- mit programs under section 6926 of this title) the notification described in the preceding provi- sions. Not more than one such notification shall be required to be filed with respect to the same substance. No identified or listed hazardous waste subject to this subchapter may be trans- ported, treated, stored, or disposed of unless no- tification has been given as required under this subsection.