33 U.S.C. § 1367 — Employee protection

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. Page 588 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1368 (e) Investigations of employment reductions The Administrator shall conduct continuing evaluations of potential loss or shifts of employ- ment which may result from the issuance of any effluent limitation or order under this chapter, including, where appropriate, investigating threatened plant closures or reductions in em- ployment allegedly resulting from such limita- tion or order. Any employee who is discharged or laid-off, threatened with discharge or lay-off, or otherwise discriminated against by any per- son because of the alleged results of any effluent limitation or order issued under this chapter, or any representative of such employee, may re- quest the Administrator to conduct a full inves- tigation of the matter. The Administrator shall thereupon investigate the matter and, at the re- quest of any party, shall hold public hearings on not less than five days notice, and shall at such hearings require the parties, including the em- ployer involved, to present information relating to the actual or potential effect of such limita- tion or order on employment and on any alleged discharge, lay-off, or other discrimination and the detailed reasons or justification therefor. 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 Adminis- trator shall make findings of fact as to the ef- fect of such effluent limitation or order on em- ployment and on the alleged discharge, lay-off, or discrimination and shall make such rec- ommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. Nothing in this sub- section shall be construed to require or author- ize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter. (June 30, 1948, ch. 758, title V, § 507, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 890.) § 1368. Federal procurement (a) Contracts with violators prohibited No Federal agency may enter into any con- tract with any person, who has been convicted of any offense under section 1319(c) of this title, for the procurement of goods, materials, and serv- ices if such contract is to be performed at any facility at which the violation which gave rise to such conviction occurred, and if such facility is owned, leased, or supervised by such person. The prohibition in the preceding sentence shall continue until the Administrator certifies that the condition giving rise to such conviction has been corrected. (b) Notification of agencies The Administrator shall establish procedures to provide all Federal agencies with the notifi- cation necessary for the purposes of subsection (a) of this section. (c) Omitted (d) Exemptions The President may exempt any contract, loan, or grant from all or part of the provisions of this section where he determines such exemption is necessary in the paramount interest of the United States and he shall notify the Congress of such exemption. (e) Annual report to Congress The President shall annually report to the Congress on measures taken in compliance with the purpose and intent of this section, including, but not limited to, the progress and problems associated with such compliance. (f) Contractor certification or contract clause in acquisition of commercial products or com- mercial services (1) No certification by a contractor, and no contract clause, may be required in the case of a contract for the acquisition of commercial products or commercial services in order to im- plement a prohibition or requirement of this section or a prohibition or requirement issued in the implementation of this section. (2) In paragraph (1), the terms ‘‘commercial product’’ and ‘‘commercial service’’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41. (June 30, 1948, ch. 758, title V, § 508, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 891; amended Pub. L. 103–355, title VIII, § 8301(a), Oct. 13, 1994, 108 Stat. 3396; Pub. L. 115–232, div. A, title VIII, § 836(g)(5), Aug. 13, 2018, 132 Stat. 1873.) Editorial Notes CODIFICATION Subsec. (c) of this section authorized the President to cause to be issued, not more than 180 days after October 18, 1972, an order (1) requiring each Federal agency au- thorized to enter into contracts or to extend Federal assistance by way of grant, loan, or contract, to effec- tuate the purpose and policy of this chapter, and (2) setting forth procedures, sanctions and penalties as the President determines necessary to carry out such re- quirement. AMENDMENTS 2018—Subsec. (f)(1). Pub. L. 115–232, § 836(g)(5)(A), sub- stituted ‘‘commercial products or commercial services’’ for ‘‘commercial items’’. Subsec. (f)(2). Pub. L. 115–232, § 836(g)(5)(B), sub- stituted ‘‘the terms ‘commercial product’ and ‘commer- cial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.’’ for ‘‘the term ‘commercial item’ has the meaning given such term in section 103 of title 41.’’ 1994—Subsec. (f). Pub. L. 103–355 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. EFFECTIVE DATE OF 1994 AMENDMENT For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of Title 10, Armed Forces. Executive Documents ADMINISTRATION OF CHAPTER WITH RESPECT TO FEDERAL CONTRACTS, GRANTS, OR LOANS For provisions concerning the administration of this chapter with respect to Federal contracts, grants, or