42 U.S.C. § 6973 — Imminent hazard

Page 7008 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6973 1 So in original. Probably should be ‘‘contractual’’. ‘‘(2) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal ac- tion in a court of the United States or a State to re- quire compliance with such permit, standard, regula- tion, condition, requirement, or order: Provided, how- ever, That in any such action in a court of the United States, any person may intervene as a matter of right.’’ Subsec. (e). Pub. L. 98–616, § 401(e), substituted ‘‘to the prevailing or substantially prevailing party’’ for ‘‘to any party’’ and inserted ‘‘or section 6976 of this title’’. Subsec. (g). Pub. L. 98–616, § 401(c), added subsec. (g). 1978—Subsec. (c). Pub. L. 95–609, § 7(p)(1), substituted ‘‘subchapter III’’ for ‘‘section 212 of this Act.’’ Subsec. (e). Pub. L. 95–609, § 7(p)(2), substituted ‘‘re- quire’’ for ‘‘requiring’’. 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. § 6973. Imminent hazard (a) Authority of Administrator Notwithstanding any other provision of this chapter, upon receipt of evidence that the past or present handling, storage, treatment, trans- portation or disposal of any solid waste or haz- ardous waste may present an imminent and sub- stantial endangerment to health or the environ- ment, the Administrator may bring suit on be- half of the United States in the appropriate dis- trict court against any person (including any past or present generator, past or present trans- porter, or past or present owner or operator of a treatment, storage, or disposal facility) who has contributed or who is contributing to such han- dling, storage, treatment, transportation or dis- posal to restrain such person from such han- dling, storage, treatment, transportation, or dis- posal, to order such person to take such other action as may be necessary, or both. A trans- porter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment, or disposal taking place after such solid waste or hazardous waste has left the pos- session or control of such transporter if the transportation of such waste was under a sole contractural 1 arrangement arising from a pub- lished tariff and acceptance for carriage by com- mon carrier by rail and such transporter has ex- ercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this sec- tion including, but not limited to, issuing such orders as may be necessary to protect public health and the environment. (b) Violations Any person who willfully violates, or fails or refuses to comply with, any order of the Admin- istrator under subsection (a) may, in an action brought in the appropriate United States dis- trict court to enforce such order, be fined not more than $5,000 for each day in which such vio- lation occurs or such failure to comply con- tinues. (c) Immediate notice Upon receipt of information that there is haz- ardous waste at any site which has presented an imminent and substantial endangerment to human health or the environment, the Adminis- trator shall provide immediate notice to the ap- propriate local government agencies. In addi- tion, the Administrator shall require notice of such endangerment to be promptly posted at the site where the waste is located. (d) Public participation in settlements Whenever the United States or the Adminis- trator proposes to covenant not to sue or to for- bear from suit or to settle any claim arising under this section, notice, and opportunity for a public meeting in the affected area, and a rea- sonable opportunity to comment on the pro- posed settlement prior to its final entry shall be afforded to the public. The decision of the United States or the Administrator to enter into or not to enter into such Consent Decree, cov- enant or agreement shall not constitute a final agency action subject to judicial review under this chapter or chapter 7 of title 5. (Pub. L. 89–272, title II, § 7003, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2826; amended Pub. L. 95–609, § 7(q), Nov. 8, 1978, 92 Stat. 3083; Pub. L. 96–482, § 25, Oct. 21, 1980, 94 Stat. 2348; Pub. L. 98–616, title IV, §§ 402, 403(a), 404, Nov. 8, 1984, 98 Stat. 3271, 3273.) Editorial Notes CODIFICATION In subsec. (d), ‘‘chapter 7 of title 5’’ substituted for ‘‘the Administrative Procedure Act’’ on authority of Pub. L. 89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organiza- tion and Employees. AMENDMENTS 1984—Subsec. (a). Pub. L. 98–616, § 402, inserted ‘‘past or present’’ after ‘‘evidence that the’’, substituted ‘‘against any person (including any past or present gen- erator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility) who has contributed or, who is’’ for ‘‘to imme- diately restrain any person’’, substituted ‘‘to restrain such person from’’ for ‘‘to stop’’, substituted ‘‘, to order such person to take such other action as may be necessary, or both’’ for ‘‘or to take such other action as may be necessary’’, and inserted ‘‘A transporter shall not be deemed to have contributed or to be contrib- uting to such handling, storage, treatment, or disposal, taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transportation of such waste was under a sole contractural [sic] arrangement arising from a pub- lished tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treat- ment, transportation and disposal of such waste.’’ Subsec. (c). Pub. L. 98–616, § 403(a), added subsec. (c). Subsec. (d). Pub. L. 98–616, § 404, added subsec. (d). 1980—Pub. L. 96–482, § 25, designated existing provi- sions as subsec. (a), substituted ‘‘may present’’ for ‘‘is presenting’’ and ‘‘such handling, storage, treatment, Page 7009 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6976 transportation or disposal’’ for ‘‘the alleged disposal’’ and authorized other action to be taken by the Admin- istrator after notice including issuance of protective orders relating to public health and the environment, and added subsec. (b). 1978—Pub. L. 95–609 struck out ‘‘for’’ after ‘‘restrain any person’’. 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. § 6974. Petition for regulations; public participa- tion (a) Petition Any person may petition the Administrator for the promulgation, amendment, or repeal of any regulation under this chapter. Within a rea- sonable time following receipt of such petition, the Administrator shall take action with re- spect to such petition and shall publish notice of such action in the Federal Register, together with the reasons therefor. (b) Public participation (1) Public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or pro- gram under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in coopera- tion with the States, shall develop and publish minimum guidelines for public participation in such processes. (2) Before the issuing of a permit to any per- son with any respect to any facility for the treatment, storage, or disposal of hazardous wastes under section 6925 of this title, the Ad- ministrator shall— (A) cause to be published in major local newspapers of general circulation and broad- cast over local radio stations notice of the agency’s intention to issue such permit, and (B) transmit in writing notice of the agen- cy’s intention to issue such permit to each unit of local government having jurisdiction over the area in which such facility is pro- posed to be located and to each State agency having any authority under State law with re- spect to the construction or operation of such facility. If within 45 days the Administrator receives written notice of opposition to the agency’s in- tention to issue such permit and a request for a hearing, or if the Administrator determines on his own initiative, he shall hold an informal public hearing (including an opportunity for presentation of written and oral views) on whether he should issue a permit for the pro- posed facility. Whenever possible the Adminis- trator shall schedule such hearing at a location convenient to the nearest population center to such proposed facility and give notice in the aforementioned manner of the date, time, and subject matter of such hearing. No State pro- gram which provides for the issuance of permits referred to in this paragraph may be authorized by the Administrator under section 6926 of this title unless such program provides for the notice and hearing required by the paragraph. (Pub. L. 89–272, title II, § 7004, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2826; amended Pub. L. 96–482, § 26, Oct. 21, 1980, 94 Stat. 2348.) Editorial Notes AMENDMENTS 1980—Subsec. (b). Pub. L. 96–482 designated existing provisions as par. (1) and added par. (2). 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. § 6975. Separability If any provision of this chapter, or the applica- tion of any provision of this chapter to any per- son or circumstance, is held invalid, the applica- tion of such provision to other persons or cir- cumstances, and the remainder of this chapter, shall not be affected thereby. (Pub. L. 89–272, title II, § 7005, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2827.) § 6976. Judicial review (a) Review of final regulations and certain peti- tions Any judicial review of final regulations pro- mulgated pursuant to this chapter and the Ad- ministrator’s denial of any petition for the pro- mulgation, amendment, or repeal of any regula- tion under this chapter shall be in accordance with sections 701 through 706 of title 5, except that— (1) a petition for review of action of the Ad- ministrator in promulgating any regulation, or requirement under this chapter or denying any petition for the promulgation, amendment or repeal of any regulation under this chapter may be filed only in the United States Court of Appeals for the District of Columbia, and such petition shall be filed within ninety days from the date of such promulgation or denial, or after such date if such petition for review is based solely on grounds arising after such ninetieth day; action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedings for enforcement; and (2) in any judicial proceeding brought under this section in which review is sought of a de- termination under this chapter required to be made on the record after notice and oppor- tunity for hearing, if a party seeking review under this chapter applies to the court for