42 U.S.C. § 6972 — Citizen suits

Page 7006 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6972 1 So in original. The comma probably should be a semicolon. 2 So in original. Probably should be ‘‘1980’’. Secretary of Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see note set out under section 6903 of this title. § 6972. Citizen suits (a) In general Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent per- mitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person, including the United States and any other governmental instru- mentality or agency, to the extent permitted by the eleventh amendment to the Constitu- tion, and including any past or present gener- ator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contrib- uted or who is contributing to the past or present handling, storage, treatment, trans- portation, or disposal of any solid or haz- ardous waste which may present an imminent and substantial endangerment to health or the environment; 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. Any action under paragraph (a)(1) of this sub- section shall be brought in the district court for the district in which the alleged violation oc- curred or the alleged endangerment may occur. Any action brought under paragraph (a)(2) of this subsection may be brought in the district court for the district in which the alleged viola- tion occurred or in the District Court of the Dis- trict of Columbia. The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condi- tion, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treat- ment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Ad- ministrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under sec- tion 6928(a) and (g) of this title. (b) Actions prohibited (1) No action may be commenced under sub- section (a)(1)(A) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation to— (i) the Administrator; (ii) the State in which the alleged viola- tion occurs; and (iii) to any alleged violator of such permit, standard, regulation, condition, require- ment, prohibition, or order, except that such action may be brought imme- diately after such notification in the case of an action under this section respecting a vio- lation of subchapter III of this chapter; 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 such permit, standard, regulation, condition, re- quirement, prohibition, or order. In any action under subsection (a)(1)(A) in a court of the United States, any person may in- tervene as a matter of right. (2)(A) No action may be commenced under sub- section (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to— (i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste re- ferred to in subsection (a)(1)(B), 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 subchapter III of this chapter. (B) No action may be commenced under sub- section (a)(1)(B) of this section if the Adminis- trator, in order to restrain or abate acts or con- ditions which may have contributed or are con- tributing to the activities which may present the alleged endangerment— (i) has commenced and is diligently pros- ecuting an action under section 6973 of this title or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9606],1 (ii) is actually engaging in a removal action under section 104 of the Comprehensive Envi- ronmental Response, Compensation and Li- ability Act of 1980 [42 U.S.C. 9604]; (iii) has incurred costs to initiate a Reme- dial Investigation and Feasibility Study under section 104 of the Comprehensive Environ- mental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604] and is diligently proceeding with a remedial action under that Act [42 U.S.C. 9601 et seq.]; or (iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 980 2 [42 U.S.C. 9606] or section 6973 of this title pursuant to which a respon- sible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action. In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). (C) No action may be commenced under sub- section (a)(1)(B) of this section if the State, in Page 7007 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6972 order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment— (i) has commenced and is diligently pros- ecuting an action under subsection (a)(1)(B); (ii) is actually engaging in a removal action under section 104 of the Comprehensive Envi- ronmental Response, Compensation and Li- ability Act of 1980 [42 U.S.C. 9604]; or (iii) has incurred costs to initiate a Reme- dial Investigation and Feasibility Study under section 104 of the Comprehensive Environ- mental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604] and is diligently proceeding with a remedial action under that Act [42 U.S.C. 9601 et seq.]. (D) No action may be commenced under sub- section (a)(1)(B) by any person (other than a State or local government) with respect to the siting of a hazardous waste treatment, storage, or a disposal facility, nor to restrain or enjoin the issuance of a permit for such facility. (E) In any action under subsection (a)(1)(B) in a court of the United States, any person may in- tervene as a matter of right when the applicant claims an interest relating to the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the Administrator or the State shows that the applicant’s interest is adequately rep- resented by existing parties. (F) Whenever any action is brought under sub- section (a)(1)(B) in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and with the Administrator. (c) Notice No action may be commenced under paragraph (a)(2) of this section prior to sixty days after the plaintiff has given notice to the Administrator that he will commence such action, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III. Notice under this subsection shall be given in such manner as the Administrator shall pre- scribe by regulation. Any action respecting a violation under this chapter may be brought under this section only in the judicial district in which such alleged violation occurs. (d) Intervention In any action under this section the Adminis- trator, if not a party, may intervene as a matter of right. (e) Costs The court, in issuing any final order in any ac- tion brought pursuant to this section or section 6976 of this title, may award costs of litigation (including reasonable attorney and expert wit- ness fees) to the prevailing or substantially pre- vailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary in- junction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (f) Other rights preserved 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 standard or requirement relat- ing to the management of solid waste or haz- ardous waste, or to seek any other relief (includ- ing relief against the Administrator or a State agency). (g) Transporters A transporter shall not be deemed to have con- tributed or to be contributing to the handling, storage, treatment, or disposal, referred to in subsection (a)(1)(B) taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transpor- tation of such waste was under a sole contrac- tual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. (Pub. L. 89–272, title II, § 7002, as added Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2825; amended Pub. L. 95–609, § 7(p), Nov. 8, 1978, 92 Stat. 3083; Pub. L. 98–616, title IV, § 401, Nov. 8, 1984, 98 Stat. 3268.) Editorial Notes REFERENCES IN TEXT That Act, referred to in subsec. (b)(2)(B)(iii), (C)(iii), means Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Com- pensation, and Liability Act of 1980, which is classified principally to chapter 103 (§ 9601 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. The Federal Rules of Civil Procedure, referred to in subsec. (e), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure. AMENDMENTS 1984—Subsec. (a). Pub. L. 98–616, § 401(a), (b), des- ignated existing provisions of subsec. (a)(1) as subpar. (A) thereof, inserted ‘‘prohibition,’’ after ‘‘require- ment,’’, added subpar. (B), and in provisions following par. (2) inserted ‘‘or the alleged endangerment may occur’’ in first sentence and substituted ‘‘to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is con- tributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Administrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under section 6928(a) and (g) of this title’’ for ‘‘to enforce such regulation or order, or to order the Administrator to perform such act or duty as the case may be’’. Subsec. (b). Pub. L. 98–616, § 401(d), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘No action may be commenced under para- graph (a)(1) of this section— ‘‘(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, stand- ard, regulation, condition, requirement, or order; or 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,