Appendix Vol II — Burlington v. Dague

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| @upreme Cour, U.S,

91-8sTo FILED

NOV 18 t9g

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

CITY OF BURLINGTON,

Petitioner,

ERNEST DAGUE, SR., ERNEST DAGUE, JR.,

BETTY DAGUE, AND ROSE A. BESSETTE,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME II, PAGES 118-279

Rosert R. McKearin Micuaet B. CLapp

Freperick S. Lane III Dinse, EROMANN & CLapp

Dinse, ERDMANN & CLapp 209 Battery Street

Burlington, Vermont Burlington, VT 05402-0998

Of Counsel (802) 864-5751

Counsel of Record

for Petitioner

COCKLE LAW BRIEF PRINTING CO. @0D 235404

OR CALL COLLECT @@) 342-283)

APPENDIX

TABLE OF CONTENTS

VOLUME |

Opinion of Second Circuit Court of Appeals, June

i Ctieshacshekstedlaseusnnabessavic es App.

Order of Second Circuit Court of Appeals, Octo-

Stel éterstarcnensdscesecacincs App.

Opinion of United States District Court for the

District of Vermont, March 26, 1986......... App.

Order of United States District Court for the Dis-

trict of Vermont, February 5, 1987.......... App.

Opinion of United States District Court for the

District of Vermont, October 16, 1989....... App.

Judgment of United States District Court for the

District of Vermont, May 7, 1990 .......... App.

VOLUME II

Opinion of United States District Court for the

District of Vermont, March 15, 1990........ App.

Opinion and Order of the United States District

Court for the District of Vermont, April 2,

SESS EET TE ae a a App.

Order of United States District Court for the Dis-

trict of Vermont, May 4, 1990.............. App.

Order of United States District Court for the Dis-

trict of Vermont, October 11, 1991 ......... App.

Docket Entries, United States District Court for

the District of Vermont, first page only .... App.

116

118

130

135

137

139

TABLE OF CONTENTS - Continued

Page

Opinion and Order of Second Circuit Court of

Appeals, August 20, 1986.................. App. 142

Order of Second Circuit Court of Appeals, August

20, 1991, denying Motion for Rehearing. ... App. 145

United States Constitution, Article I, Section 1.. App. 147

United States Constitution, Article III,

Seettem § .....2000> senssukennmeneee App. 147

United States Constitution, Article III,

Seetien &....... 200000000000 nnnnneeeee App. 147

53 UBS § 1908.........0ccccsuscun ene App. 149

33 USL. § 1907 .......56sinseccueespeue App. 150

oS US. § 1308. ......0000000nscneeene App. 157

oS USL. § 0B0R... . ..05000.5s00ss eee App. 178

53 USC. § 1208........0scseveresesseeen App. 183

S UBL. § OOBB. .....6sccscecescss see App. 188

USL. § OOMB........005s0teccsesssene App. 191

CDSEL. § OOM... 6. .0c0rscerecsee App. 209

SS USL. § OUMB........00sccccsecre sae App. 215

42 USC. § 6930.00.00... App. 228

& USL. § O00... .04sicnenaceeee App. 224

2 USL. OGINB.....6..ss0deuccuee ee App. 232

Plaintiffs’ complaint ......................... App. 244

Affidavit of William W. Pearson dated November

G WEED .....cccescseseesnnuuaeunen ine App. 270

iii

TABLE OF CONTENTS - Continued

Page

Letter of October 8, 1985, Attachment A to Affi-

davit of William W. Pearson............... App. 273

Letter of November 5, 1985, attached to Affidavit -

of William W. Pearson..................... App. 2

DP UPPPECREEGUGEESSRGbeeecccceccccccccec: App. 277

App. 118

Ernest DAGUE, Sr., Ernest Dague, Jr.,

and Betty Dague, Plaintiffs

CITY OF BURLINGTON, Defendant.

Civ. No. 5-269.

United States District Court,

D. Vermont.

March 15, 1990.

OPINION AND ORDER

BILLINGS, Chief Judge. .

On December 11, 1989 defendant moved, pursuant to

Fed. R. Civ. P. 12 and 56 for dismissal and/or summary

judgment as to Counts II, III and, in part, Count IV. Trial

by court on defendant's liability as to these counts was

held in May 1989 and with the exception of Count I this

- court found substantially for the plaintiffs. See Dague v.

City of Burlington, 732 F. Supp. 458 (D.Vt.1989). Nonethe-

less, defendant bases this late-hour motion solely on the

Supreme Court's recent decision in Hallstrom v. Tillamook

County, US. __, 110 S.Ct. 304, 107 L.Ed. 2d 237 (1989).

For the forthcoming reasons, the court concludes that

Hallstrom does not mandate dismissal of these counts;

therefore, the defendant's motion is DENIED.

App. 119

I. BACKGROUND

On October 8, 1985 plaintiffs sent letters by first-class

mail to the Environmental Protection Agency (EPA), the

State of Vermont, and the defendant City of Burlington

alleging that the defendant was operating its landfill in

violation of the Resvurce Conservation and Recovery Act

(RCRA) 42 US.C.A. §§ 6901-6992k (1983 & Supp. 1989)

and the Clean Water Act (CWA), 33 U.S.C.A. §§ 1251-1387

(1986 & Supp. 1989). In particular, plaintiffs alleged in the

letters thai the defendant was violating 42 U.S.C. §§ 6925,

6930, and 6945 of RCRA and 33 US.C. §§ 1311, 1317, and

se - the CWA. The next day plaintiffs filed suit in this

court.

Count I of plaintiffs’ complaint accuses the defendant

of violating the notice and permit requirements for haz-

ardous waste disposal contained in 42 U.S.C. §§ 6925(a)

and 6930(a) and their corresponding regulations. Count I!

charges defendant with violating the open dumping pro-

hibitions of 42 U.S.C. § 6945 and the regulations promul-

gated thereunder. Count III claims, pursuant to 42 U.S.C.

§ 6972(a)(1)(B), that defendant is disposing of solid or

hazardous wastes in a manner in which “may present an

imminent and substantial endangerment to health or the

environment.” Count IV contends that defendant is vio-

lating 33 U.S.C. §§ 1311, 1317, and 1342 by discharging

toxic and other pollutants into a navigable waterway

without a permit. Counts V through IX allege various

' Defendant does not argue that the letters

. reached the

Ser AO CPS 256.2) SE tenn i action

oral 44 \ notice is considered served on

App. 120

Vermont common law and statutory violations which are

not at issue in the motion now before the court.

In May 1989, trial by court was held on defendants

liability under Counts | through V; the court subse-

quently issued its Findings of Fact, Opinion, and Order.

See 732 F. Supp. 458 (D.Vt.1989). In short, this court found

that the plaintiffs had failed to prove the allegations of

Count I but had sufficiently established liability under

Counts II, IIL, IV, and V. Indeed, the court concluded that

the plaintiffs had substantially prevailed on both the

RCRA and the CWA claims and thus the defendants were

ordered to pay the costs of litigation pursuant to 42

U.S.C. § 6972(e) and 33 U.S.C. § 1365(d).

Moments prior to the court’s hearing on reasonable

attorneys’ fees, however, the defendant, relying on the

recent decision of Hallstrom v. Tillamook County, __U-S.

_, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), filed this

motion requesting the court to dismiss Counts II, III, and

in part, IV. In Hallstrom, the Court emphatically refused to

depart from the literal meaning of the notice require-

ments of the citizen suit provisions of RCRA. Section

6972(b)(1)(A) prohibits actions brought under that section

“prior to sixty days after the plaintiff has given notice of

the violation” to the Environmentai Protection Agency

(EPA), the State in which the alleged violation occurs, and

the alleged violator. In light of this clear statutory lan-

guage and plaintiffs’ failure to give any notice, the Court

dismissed the complaint despite the fact that the case has

gone to trial and the district court had held that the

defendant had violated RCRA. Id. 110 S.Ct. at 311.

App. 121

The Court in Hallstrom buttressed its holding by not-

ing that where Congress had determined that 60 days

prior notice was unimportant, it had created exceptions.

110 S.Ct. at 309. The Court referred to 42 U.S.C.

§ 6972(b)(1A)iii) which abrogates the 60-day notice pro-

vision for civil actions “respecting a violation of subchap-

ter Ill.” Subchapter III contains the RCRA provisions

which address the identification, transportation, storage,

and disposal of hazardous wastes. Because violations of

subchapter III were not involved in Hallstrom, however,

the Court did not confront the issue now facing this court

of whether citizen plaintiffs must still provide 60 days

notice as to non-subchapter III claims when they have

properly filed a civil action which alleges a subchapter ||!

violation involving the same facility. Nor did the Court in

Hallstrom address the remaining issue presented here of

whether failure to specifically allege and “endanger-

ment,” in a letter which purported to notify the defen-

dant of various RCRA violations, is necessarily fatal to an

“imminent and substantial endangerment” claim involv-

ing subchapter III.

Il. DISCUSSION

Defendant contends that Count II must be dismissed

because that claim was not brought under subchapter III

and thus is not subject to the relaxed notice provisions. In

essence, the defendant requests this court to hold that

when a citizen suit involves both hazardous waste (sub-

chapter III) and other RCRA claims arising from one

facility, only the hazardous waste claims may be brought

without providing sixty days notice pursuant to

§ 6972(b)1A). Under such a holding a citizen must

App. 122

choose between delaying 60 days before bringing the

hazardous waste claim and thus bring all the claims

simultaneously or filing the hazardous waste claim

immediately after notice is given and then seek leave to

amend the complaint to add the remaining claims after 60

days have passed. The court does not believe Congress

intended either outcome.

Section 6972(b)(1A)(iii) excuses the 60-day notice

requirement in “the case of an action under this section

respecting a violation of subchapter III.” Where both

subchapter Ill and non-subchapter III violations are

involved, however, the application of this provision is

equivocal. It is not clear whether only the subchapter III

claims may be brought without the 60-day notice or

whether the non-subchapter III claims can also be

brought as long as the civil action involves at least one

subchapter III claim. Given this ambiguity it is appropri-

ate to interpret the provision in a manner most compati-

ble with the statute as a whole. See Commissioner of

Internal Revenue v. Asphalt Products Co., 482 U.S. 117, 121,

107 S.Ct. 2275, 2277-78, 96 L.Ed.2d 97 (1987); Ziegler Coal

Co. v. Kleppe, 536 F.2d 398, 408-09 (D.C.Cir.1976).

The interpretation most harmonious with the statute

is that when a civil action involves or includes a subchap-

ter Ill claim the 60-day notice provision is inapplicable.

This broad reading of an “action . . . respecting a viola-

tion of subchapter III” comports with Congress’ two justi-

fications for the 60-day notice requirement. First, the 60-

day notice provision allows government agencies to take

the lead role in enforcing environmental regulations.

Hallstrom, 110 S.Ct. at 310. Second, the notice provision

preserves a non-adversial climate in which the alleged

App. 123

violator is given an Opportunity to comply with the Act

Id. Neither of these justifications would be furthered b |

selectively dismissing those counts of this civil diiten

which do not involve subchapter III.

As to the first concern, Congress has determined that

when hazardous wastes are involved the interest of

encouraging a lead governmental enforcement role is

substantially diminished. See 42 U.S.C. §§ 6972(b)(1)(A)(iii)

and (b)(2)(A)(iii). It thus follows there is no need to

maintain a window of Opportunity for the government to

take the lead enforcement role as to non-subchapter III

Claims when a citizen, acting as a Private attorney gen-

eral, has already lawfully assumed the lead role in bring-

ing a subchapter III claim against the same facility. For

that matter it appears unlikely that a governmental

agency would pursue a non-subchapter III action when it

has ignored the more compelling concerns of a potential

hazardous waste violation involving the same facility.

Secondly, the filing of a citizen suit involving sub-

chapter III immediately after notice is given effectivel

eliminates the Opportunity for non-adversia] Peseta

with non-subchapter III regulations. It can hardly be

maintained that the adversial climate surrounding a civil

action involving a subchapter III violation would behave

brightly on all other contacts between the alleged viola-

tor, the citizen, and the s0vernment agencies. In short

requiring a citizen who alleges both subchapter III and

non-subchapter III violations of RCRA to bring piecemeal

litigation will not at

all serve the function

es S of t

Provisions. om

App. 124

In addition, interpreting “respecting a violation of

subchapter III” as involving or including a violation of

subchapter III comports with the Supreme Court’s char-

acterization of § 6972(b)(1)(A) as “abrogating the 60-day

requirement when there is a danger that hazardous waste

will be discharged.” Hallstrom, 110 S.Ct. at 309. Moreover,

the Court observed in Hallstrom that the citizen suit pro-

visions for other environmental statutes authorize the

filing of citizen suits “immediately in cases involving vio-

lations” of certain emission or effluent standards. Id. at

311 (emphasis added) (describing notice provisions of

Clean Air Amendments of 1970, 42 U.S.C. & 7604(b) and

Federal Water Pollution Control Act, 33 U.S.C. §§ 1365(b),

1317(a)). The notice provisions the Court was referring to

in these statutes contain the same operative words as the

notice provision at issue here, to wit: an “action respect-

ing” a violation; therefore, the Court’s characterization is

equally applicable in this case. Defendant’s motion to

dismiss Count II must thus be rejected.

Defendant also argues that the content of the letter

failed to provide adequate notice of the alleged violations

of Count III.2 Count III alleges, pursuant to 42 U.S.C.

2 The magistrate has previously heid that plaintiffs pro-

vided proper notice prior to the filing of this civil action as

required by § 6972(b)(2)(A)(iii). See Magistrates Report and

Recommendation at 33, Dague v. City of Burlington, No. 85-269

(D. Vt. February 21, 1986), adopted in toto, Opinion and Order,

(D. Vt. March 26, 1986). At that time the magistrate rejected

defendant’s argument that plaintiffs’ civil action was subject to

the 90-day notice provision. The defendant did not argue

before the magistrate that the content of the letter failed to

comply with the notice requirements of § 6972(b)(2)(A)(iii).

(Continued on following page)

App. 125

§ 6972(a)(1)(B), that the solid and hazardous waste dis-

posal methods at the Burlington landfill “may present an

imminent and substantial endangerment to health or the

environment.” A citizen suit cannot be brought pursuant

to § 6972(a)(1)(B) unless the plaintiff first provides 90

days “notice of the endangerment” to the EPA, the State

where the alleged violation occurs, and the alleged viola-

tor. § 6972(b)(2)(A). When the action is brought “respect-

ing a violation of subchapter III,” however, the 90-day

notice provision is inapplicable and the plaintiff need

only give prior “notice of the endangerment” to the

appropriate parties. § 6972(b)(2)(A)(iii). Defendant con-

cedes that Count III involves a subchapter III violation

but argues that plaintiff did not provide specific “notice

of the endangerment” as required by § 6972(b)(2)(A).

Indeed, the letter plaintiffs provided to the EPA, the

State of Vermont, and the City of Burlington was net a

paradigm of thoroughness. The letter fails to expressly

allege either a violation of 42 U.S.C. § 6972(a)(1)(B) or

that an “endangerment” existed. On the other hand the

letter did state that the City of Burlington was operatin

its landfill in violation of RCRA and the CWA. In adi

tion, plaintiff’s letter cited to specific sections of subchap-

ter III; thus, the defendant had notice that plaintiffs’

allegations pertained to the disposal of hazardous wastes.

(Continued from previous page)

Thereafter the defendant did not specifically object to the

magistrates determination that notice was proper and this

court adopted the magistrate’s report in toto. Four years subse-

quent to the filing of the complaint defendant now contends

for the first time that the content of the letter was insufficient.

App. 126

Nevertheless, because the letter did not specifically allege

an “endangerment” nor cite to § 6972(a)(1)(B) it techni-

cally did not comport with the notice requirement of

§ 6972(b)(2)(A)(iii) which demands “notice of the endan-

germent.” See also 40 C.F.R. § 254.3(a) (1989) (notice

should be sufficient to permit identification of the specific

permit, standard, regulation, condition requirement, or

order alleged to be violated). This defect was not cured

by the fact that the plaintiffs, after filing the complaint,

provided a copy to the defendant, the EPA, and the State

of Vermont because the statute’s clear language forbids a

complaint to be filed until “after” notification of the

“endangerment” is given. § 6972(b)(2)(A)(iii).

To the extent that the content of plaintiffs’ letter

failed to provide adequate notice of the “endangerment,”

however, Hallstrom does not mandate dismissal. The

notice provision at issue in Hallstrom did not concern the

exception to the 60 and 90-day notice provisions for citi-

zen suits which involve a subchapter III claim. Congress

created this exception because it determined that the

need to respond immediately to RCRA violations involv-

ing hazardous wastes outweighed the interests of pro-

moting initial agency action and voluntary, non-

adversarial compliance by the alleged violator. Hallstrom,

110 S.Ct. at 309-10. Congress thus authorized citizens to

bring a civil action involving subchapter II] “imme-

diately” after giving notice of the “endangerment.” 42

U.S.C. § 6972(b)(2)(A)iii). Technically plaintiffs may pro-

vide this notice only one minute before they file their

complaint and indeed in this case plaintiffs sent notice

the day before they filed their complaint. Thus, as a

App. 127

practical matter, notice in a subchapter III case accom-

plishes little else than notifying the appropriate govern-

mental agencies and the alleged violator that the filing of

a complaint by citizens is imminent. See United States v.

Environmental Waste Control, Inc., 710 F.Supp. 1172, 1190

(N.D.Ind.1989).

In contrast, in a non-subchapter III case - like that

before the Hallstrom Court - specific notice is required to

give the appropriate governmental agencies an oppor-

tunity to act and the alleged violator an opportunity to

comply. Hallstrom is further distinguished by the fact that

it involved the lack of notice altogether, while defendant

here attacks the sufficiency of the letter which admittedly

was provided. See Hallstrom, 110 S.Ct. at 307.

In light of the nominal value of prior notice in citizen

Suits involving hazardous wastes the court declines to

dismiss Count III - four years after the complaint was

filed and two months Subsequent to the court’s deter-

mination that defendant is liable - merely because plain-

tiff failed to specifically allege an “endangerment.”? To

hold otherwise would allow form to reign over substance

and would thwart Congress’ purpose of providing an

exception to the strict notice requirements in instances

> There is also support for denying defendant’s motion to

dismiss Count III on the grounds that it was not timely raised.

See Environmental Waste Control, 710 F.Supp. at 1190 (objections

to inadequate notice of hazardous waste Claims waived if not

timely raised). Hallstrom does not necessarily preclude a timeli-

ness bar to alleging improper notice of subchapter III claims

because it did not concern subchapter III nor did it involve

objections to the content of a letter of notice.

App. 128

involving the heightened danger and immediacy of joie

ardous wastes. See Lamke v. Lynn, 680 S.W.2d 28!

(Mo.Ct.App.1984) (The meaning given by courts to a

statutory notice requirement depends largely on the wed

text, purpose, and intent of the statute.); 58 Am. Jur.

Notice § 2 at 572 (1989). In other words, under the cir-

cumstances presented here, literal application of the prior

“notice of the endangerment” requirement would pro-

duce a result “ ‘demonstrably at odds with the intentions

of its drafters.’ ” Hallstrom, 110 S.Ct. at 310 (quoting

United States v. Ron Pair Enterprises, Inc., U.S. _ ~ 109

S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989)). Accordingly,

defendant’s motion to dismiss Count III must be rejected.

Defendant also argues that to the extent that Count

IV alleges violations which are subject to the Clean een

Act’s 60-day notice provision it must also be dismiss

Defendant concedes that Count IV’s alleged violations o

33 U.S.C. § 1317 were properly brought without 60 days

notice. Because the operative words of the notice provi-

sions for the Clean Water Act are identical to those in

RCRA the defendant proffers essentially the same argu-

ment for dismissing parts of Count IV as it did for wal

missing Count II. Compare 33 U.S.C. § 1365(b)(2) (“an

i i i f .. . section

action . . . respecting a violation o cece

[ ] 1317”) with 42 U.S.C. § 6972(b)(1 AD iii) (“an

action . . . respecting a violation of subchapter III”). The

court, in turn, rejects this argument on the same grounds

as the court rejected defendant’s argument concerning

Count II. Defendant’s motion to dismiss is thus DENIED.

Lastly, defendant requests the court, pursuant to Fed.

R.Civ.P. 58, to enter a judgment with respect to those

claims in which the court found for the defendant in its

App. 129

Opinion and Order of October 16, 1989. This motion,

however, is MOOTED by the court’s denial of defendant’s

motion to dismiss the remaining counts.

SO ORDERED.

App. 130

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ERNEST DAGUE, SR., ERNEST _ :

DAGUE, JR., and BETTY DAGUE : Civil No.

85-269

CITY OF BURLINGTON

OPINION AND ORDER

Plaintiffs move for an award of attorneys fees, costs,

enhancement of fees, and a delay enhancement of fees. As

previously found in our prior orders, plaintiff has sub-

stantially prevailed in this cause, and is entitled to an

award of attorneys fees pursuant to 42 U.S.C. § 6972(e)

and 33 U.S.C. § 1365(d). See Hanrahan v. Hampton, 446 U.S.

754 (1980). There is no need to revisit this issue. Upon

consideration of the time records, receipts, affidavits, and

memoranda, the court finds that the lodestar amount for

hourly rates is reasonable, and the court notes that the

defendant does not object to these rates. The court also

finds that the number of hours expended, as well as the

expert and miscellaneous expenses incurred, is reason-

able in connection with this complex litigation. The plain-

tiff is hereby awarded attorneys fees in the amount of

$198,027.50, and expenses, including expert fees, in the

total amount of $10,929.66.

Plaintiffs, relying on Pennsylvania v. Delaware Valley

Citizens Council for Clean Air, 483 U.S. 711 (1987) (plu-

rality) (Delaware II) and Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714 (7th Cir. 1984), also seek a 100%

enhancement of total attorneys fees. Plaintiffs initially

App. 131

claim that several factors justify an enhancement: the

novelty of the issues; the difficulty in prosecuting the

case, the skill and experience of attorneys, and the preclu-

sion of employment by the attorneys. The law, however,

does not support plaintiffs’ use of these factors to bolster

its enhancement request. In Krieger v. Gold Bond Building

Products, 863 F.2d 1091 (2nd Cir. 1988), the court expressly

held that, absent rare and exceptional circumstances,

enhancement may no longer be justified on the basis of

factors such as the novelty of the issues and the complex-

ity of the litigation because these factors are assumed to

be reflected in the hourly rate and number of hours

charged by the attorneys; thus, they are subsumed in the

calculation of the lodestar amount. Id. at 1099 (citing Blum

v. Stenson, 465 U.S. 866, 883-900 (1984)); see also Cooper v.

State of Utah, 894 F.2d 1169, 1171 (10th Cir. 1990).

Similarly, the court believes the skill and experience

of the attorneys is also accounted for in the hourly rate

and number of hours contained in the lodestar amount.

As to preclusion of employment the court believes this

factor is implicitly taken into account in determining

whether enhancement is justified on a contingency/risk

basis. Plaintiffs have failed to make a showing that rare

and exceptional circumstances exist; therefore, the court

declines to enhance the lodestar amount based upon the

above factors.

Plaintiffs also claim that enhancement is warranted

under the contingency/risk factor. The Second Circuit's

post-Delaware II standard for determining enhancement

pursuant to the contingency/risk factor was enunciated

in Friends of the Earth v. Eastman Kodak Co., 834 F.2d 295

(2d Cir. 1987). There the court held that: “the a

App. 132

that should guide the court’s discretion is whether

‘[w]ithout the possibility of a fee enhancement . . . co-

mpetent counsel might refuse to represent [environmen-

tal] clients thereby denying them effective access to the

courts.’” Id. at 298 (quoting Lewis v. Coughlin, 801 F.2d

570, 576 (2d Cir. 1986)). In applying this standard the

court denied enhancement because it found that the

plaintiffs were subject to only a slight risk of not prevail-

ing on the merits.’ 834 F.2d at 298.

Under the fee arrangements here, plaintiffs’ attorneys

would not have been compensated at all unless plaintiffs

prevailed. Unlike Friends of Earth the risk of not prevail-

ing was substantial under the facts here. This risk was

' The court recognizes that other circuits have held that

Justice O’Connor’s test for contingency/risk enhancement,

outlined in her Delaware II concurrence, is controlling. See, ¢.¢.,

Alberti v. Klevenhagen, 1990 Westlaw 19646 (5th Cir. 1990); Rode

v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990); McKenzie v. Ken

nickell, 875 F.2d 330 (D.C. Cir. 1989). In essence, Justice O’Con-

nor’s test requires a fee applicant to establish: (1) that the

relevant market compensates for contingency; and (2) that

without the possibility for an adjustment for contingency or

risk the prevailing party would have had substantial difficulty

in finding counsel in the local market. 483 U.S. at 733-34.

Defendant here claims that plaintiffs have failed to make a

finding that the relevant market compensates for risk. Such a

finding, however, is presently not required in this circuit.

While the court in Friends of Earth conceded that Justice O’Con-

nor’s test was “similar” to the Second Circuit test, it continued

to follow its prior holding in Coughlin which focuses on the

risk to plaintiff's counsel and whether absent fee enhancement

competent counsel might refuse to accept the case. 834 F.2d at

298 (citing Coughlin, 801 F.2d at 576). Until this court is

directed otherwise, we will continue to apply the test for

enhancement as espoused in Friends of Earth and Krieger.

App. 133

evidenced in part by the court’s denial of plaintiffs’

motion for a preliminary injunction. Moreover, because

numerous material facts were disputed plaintiffs did not

ultimately prevail until after trial. finally, from the mem-

oranda and affidavits on file, the court finds that absent

an opportunity for enhancement, plaintiff would have

faced substantial difficulty in obtaining counsel of rea-

sonable skill and competence in this complicated field of

law. Compare Wilder v. Bernstein, 725 F.Supp. 1324, 1338

(S.D.N.Y. 1989) (inadequate showing that absent enhance-

ment competent counsel could not be retained). In light

of these findings, the court concludes that a 25% enhance-

ment is appropriate, but anything more would be a wind-

fall to the attorneys. 483 U.S. at 731 n.12 (“ ‘Attorney’s

fees award should only be as large as necessary to attract

competent counsel.’ ”) (quoting Lewis v. Coughlin, 801 F.2d

570, 576 (2nd Cir. 1986).

Plaintiffs also request a delay enhancement but

enhancement based on delay in payment is an exception

to the rule that historic rates generally prevail. New York

Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1152 (2d

Cir. 1983). To the extent that this case was overly pro-

tracted, the court believes the 25% enhancement previ-

ously granted for contingency/risk adequately

compensates plaintiffs’ counsel for the delay in receiving

payment. Accordingly, the court declines to entertain a

separate delay enhancement.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that plaintiff shall recover from the defendant

the sum of $198, 027.50 for attorneys fees, plus necessary

expenses in the amount of $10,929.66, together with a

App. 134

25% enhancement of the total attorneys fees in the

amount of $49,506.87 plus taxable costs.

SO ORDERED.

Dated at Rutland in the District of Vermont this 2nd

day of April, 1990

/s/ Franklin S. Billings, Jr.

Franklin S. Billings, Jr.

Chief Judge

App. 135

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ERN®ST DAGUE, SR., ERNEST _ :

DAGL«, JR., and BETTY DAGUE :

CITY OF BURLINGTON

Civil No.

85-269

ORDER

On April 17, 1990, plaintiffs petitioned the court to

enforce its previous order of April 2, 1990 which ordered

the defendant to pay attorneys fees and necessary

expenses. Defendant City of Burlington responded by

moving for an entry of judgment of the April 2, 1990

order as well as the court’s order of October 16, 1989.

In consideration of this matter, the court finds, pur-

suant to Fed. R. Civ. P. 54(b), that there is no just reason

for a delay in entering judgment on these orders. Speci-

fically, the court finds that with the exception of Count V

addressed in the October 16, 1989 order, the claims

decided by the two orders are independent from the state

claims which remain; thus, there is no fair reason to delay

certification for appellate review.

The court finds, however, that the October 16, 1989

order did not finally adjudicate damages as to Count V;

therefore it is inappropriate to enter judgment as to that

count. See International Controls Corp. v. Vesco, 535 F.2d

742, 748 (1976) (“[A] judgment cannot be considered final

App. 136

as long as it leaves open the question of additional dam-

ages.”); Hudson v. Chicago Teachers Union Local No. 1, 708

F. Supp. 961, 962 (N.D. Ill. 1989).

The defendant’s motion for an entry of judgment is

GRANTED IN PART. The plaintiff's petition for enforce-

ment is DENIED pending appeal. The court directs the

clerk of court to enter judgment as to Counts I, II, III and

IV of the court’s Opinion and Order, dated October 16,

1989, and the Opinion and Order dated April 2, 1990.

SO ORDERED.

Dated at Rutland in the District of Vermont this 4th

day of May, 1990.

/s/ Franklin S. Billings, Jr.

Franklin S. Billings, Jr.

Chief Judge

App. 137

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ERNEST DAGUE, SR., ERNEST _ :

DAGUE, JR., BETTY DAGUE, and :

ROSE A. BESSETTE

CITY OF BURLINGTON

Civil No. 85-260

ORDER

On June 25, 1991, plaintiffs submitted a supplemental

application for attorney’s fees and expenses incurred

since October 31, 1989, pursuant to 42 U.S.C. § 6972(e)

and 33 U.S.C. § 1365(d). Plaintiff also requests a 25%

enhancement of the attorney’s fees award pursuant to

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 483 U.S. 711 (1987). This court once again finds that

plaintiff has substantially prevailed in this cause, and is

entitled to an award of attorney’s fees and expenses.

Upon consideration of the time records, receipts, affi-

davits, and memoranda, the court finds that the lodestar

amount for hourly rates is reasonable, and the court notes

that defendant does not object to these rates. The court

further finds that the number of hours expended, as well

as the miscellaneous expenses incurred, is reasonable. In

accordance with our previous findings regarding enhan-

cement of attorney’s fees in this case, the court also finds

that a 25% enhancement of attorney’s fees is appropriate.

It is hereby ORDERED that plaintiff shall recover

from defendant supplemental attorney’s fees in the

amount of $24,113.00, and supplemental expenses in the

App. 138

amount of $2,707.61, together with a 25% enhancement of

the attorney’s fees, or $6,028.25.

SO ORDERED.

Dated at Rutland in the District of Vermont this 11

day of October, 1991.

/s/ Franklin S. Billings, Jr.

Franklin S. Billings, Jr.

Chief Judge

App. 139

85-269 DAGUE v. CITY OF BUR-

LINGTON PROCEEDINGS 1008 aus

COMPLAINT.

REQUEST FOR JURY TRIAL by pltfs.

MOTION for Preliminary Injunction by

pitfs.

MEMORANDUM in Support of P#3.

ISSUED SUMMONS as to Deft

10-10-85.

ORDER OF REFERRAL-AWC.-This case

is referred to Magistrate Niedermeir

for the following purposes: To hear

and report on any motion authorized

by 28 U.S.C. § 636(b)(1)(B) including

pitf’s motion for preliminary injunc-

tion; order dates for the completion of

discovery; to determine any pretrial

matter authorized by 28 USC

§ 636(b)(1)(A); to hold settlement and

pretrial conference. Cy to attys. jj

SUMMONS RETURNED SERVED

(Acceptance of Service by Atty

McNeil). rer

NOTICE OF APPEARANCE of McNeil,

Murray & Sorrell, Inc. on behalf of

deft.

MOTION to Continue Preliminary

Injunction hearing and MEMO by deft.

DISCOVERY CERTIFICATE by

deft. jj

MEMORANDUM in Opposition to

defts’ motion to continue by pltfs

(re:P#8

App. 140

MOTION to Add Additional pltf and

to file Amended Complaint and

MEMO by pltfs.

AFFIDAVIT of Michael Case in support

of P#3.

AFFIDAVIT of Michael Case in support

of P#3.

AFFIDAVIT of Pitfs in support of

P#3 (File #2 started).

AFFIDAVIT of Donald Bessette in sup-

port of P#3

AFFIDAVIT of Clarke Hermance in

support of P#3

AFFIDAVIT of B.D. Roebuck in sup-

port of P#3

AFFIDAVIT of Chris Fastie in support

of P#3 jj

MOTION to Dismiss and MEMO by

Deft City. gww

AFFIDAVIT of Frank Reed.

CERTIFICATES OF SERVICE. gww

In Chambers of Magistrate Nieder-

meier, William W. Pearson and Richard

Bland. Esqs for pltfs., Joseph E. McNeil

and Nancy Sheahan, Esqs. for Deft a

conference was held.

In Court (Tape) Statements by Counsel

re Motion to Amend. ORDERED:

Motion to Amend Complaint and add

a Party Pitf is granted.

Hearing on Deft’s Motion to Dismiss.

Statements by Counsel. ORDERED:

Pitfs to file proper notice under the

Act, Decision Reserved until after fil-

ing of the proper Notice.

App. 141

Hearing on Deft’s Motion to Continue.

Statements by Counsel

ORDERED: Decision Reserved. Pltfs to

respond to Deft’s discovery requests

within 2 weeks, Deft to respond to

Pitfs’ discovery requests within 2

weeks after service. Deft to answer

Complaint within 7 days.

Hearing on Plitfs’ Motion for a Prelimi-

nary Injunction. James R. Ogden,

Christopher L. Fasti, Craig D. Hindle,

and Ernest Dague, Sworn by the Clerk

and examined for the Pitf by Mr. Pear-

son, Crossexamined by Mr. McNeil.

ORDERED: Motion to continue hearing

by Deft is granted. Hearing is contin-

ued until Dec 9.

IN Chambers a conference was held.

gZww

APPEARANCE of McNeil, Murray &

Sorrell, Inc., for Deft and ANSWER, rer

NOTICES to take Deposition of Gen-

eral Electric Co., The Blodgett Co., Inc.,

E.B. & A.C. Whiting Co., The Edlund

Co., Inc., and Hagar Hardware Co.

ISSUED Deposition Subpoenas to par-

ties in P#23.

AFFIDAVIT of William W. Pearson,

Esq. (P#23). If

. * *

App. 142

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York on the 20th day of

August, one thousand nine hundred and eighty-six.

PRESENT:

HONORABLE GEORGE C. PRATT,

HONORABLE ROGER J. MINER,

Circuit Judges,

HONORABLE EDWARD D. RE,

Chief Judge of the United States

Court of International Trade,

sitting by designation.

ERNEST DAGUE, SR., ERNEST DAGUE,

JR., BETTY DAGUE AND ROSE A.

BESSETTE,

Plaintiffs-Appellants,

-against- No. 86-7326

CITY OF BURLINGTON,

Defendant-Appellee, (Filed

-against- Aug. 20, 1986)

GENERAL ELECTRIC COMPANY, INC.,

BLODGETT COMPANY, INC., EDLUND

COMPANY, INC., E.B. & A.C. WHITING

COMPANY, AND HAGAR HARDWARE

COMPANY,

Third-Party Defendants.

App. 143

This appeal from an order of the United States Dis-

trict Court for the District of Vermont, Franklin S. Billings

Jr., Judge, came on to be heard on the transcript of the

record from the United States District Court for the Dis-

trict of Vermont and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now ordered

that the order of the district court is affirmed.

Appellants, owners of land adjoining the City of

Burlington’s Municipal Disposal Grounds, appeal from

an order denying their motion to preliminarily enjoin the

City’s operation of that landfill. Appellants sued under

the citizen-suit provisions of the Resource Conservation

and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6972, and

the Clean Water Act (CWA), 33 U.S.C. § 1365, as well as

under various common law theories of liability, alleging

that the operation of the landfill had generally harmed

the environment.

Although he found sufficient evidence at the prelimi-

nary stage of the proceedings to decide that the City had

violated RCRA and CWA, Judge Billings reasoned that an

injunction against the operation of the landfill should not

then issue because little, if anything, beneficial to the

environment would be achieved. Rather, he ordered the

City to have a gas ventilating and leachate collection

system fully operational within sixty days and indicated

that any further relief would have to await a full trial on

the merits.

The decision whether to grant or refuse a preliminary

injunction lies in the sound discretion of the district

judge, whose decision will not be disturbed on appeal

App. 144

absent an abuse of discretion. See Coca-Cola Co. v. Tropi-

cana Products, Inc., 690 F.2d 312, 314-15 (2d Cir. 1982).

Here, Judge Billings carefully limited the application of

his rulings to the proceedings for a preliminary injunc-

tion, and we note that the trial on the merits is imminent.

For these reasons, we find no abuse of discretion on this

record in refusing to grant the injunction requested by

appellants and, therefore, the order of the district court is

affirmed.

N.B. Since this statement /s/ George C. Pratt

does not constitute a for- George C. Pratt, U.S.CJ.

mal opinion of this Court

and is not uniformly

/s/ Roger J. Miner

available to all parties, it Roger J. Miner, U.S.C,J.

shall not be reported, /s/ Edward D. Re

cited or otherwise used Edward D. Re, U.S.C.LT.

in unrelated cases before

this or any other court.

App. 145

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, in the City of New York, on the 20th day of

August, one thousand nine hundred and ninety-one.

ERNEST DAGUE, SR., ERNEST emg a

DAGUE, JR., BETTY DAGUE, aaaice

ROSE A. BESSETTE, ‘

Plaintiffs-Appellees, (Filed

V. Aug. 20, 1991)

CITY OF BURLINGTON,

Defendant-Appellant.

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

Appellant CITY OF BURLINGTON

Upon consideration by the panel that heard the

appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges of the court in

regular active service and to any other judge that heard

App. 146

the appeal and that no such judge has requested that a

vote be taken thereon.

/s/ Elaine B. Goldsmith

ELAINE B. GOLDSMITH

Clerk

App. 147

Constitution of the United States, Article I, Section 1.

ARTICLE I

Section 1. All legislative Powers herein granted shall

be vested in a Congress of the United States, which shall

consist of a Senate and House of Representatives.

Constitution of the United States, Article III, Section 1.

ARTICLE III

Section 1. The judicial Power of the United States,

shall be vested in one supreme Court, and in such infe-

rior Courts as the Congress may from time to time ordain

and establish. The Judges, both of the supreme and infe-

rior Courts, shall hold their Offices during good Behav-

iour, and shall, at stated Times, receive for their Services,

a Compensation, which shall not be diminished during

their Continuance in Office.

Constitution of the United States, Article III, Section 2.

ARTICLE Ill

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made, or

which shall be made, under their Authority; - to all Cases

affecting Ambassadors, other public Ministers and Con-

suls; - to all Cases of admiralty and maritime Jurisdic-

tion; - to Controversies to which the United States shall

be a Party; - to Controversies between two or more

States; — between a State and Citizens of another State; -

App. 148

between Citizens of different States, - between Citizens

of the same State claiming Lands under Grants of differ-

ent States, and between a State, or the Citizens thereof,

and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Min-

isters and Consuls, and those in which a State shall be

Party, the supreme Court shall have original Jurisdiction.

In all the other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both as to Law

and Fact, with such Exceptions, and under such Regula-

tions as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in the

State where the said Crimes shall have been committed;

but when not committed within any State, the Trial shall

be at such Place or Places as the Congress may by Law

have directed.

Constitution of the United States, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

‘ App. 149

Section 301, as added October 18, 1972 of the Clean Water

Act of 1948, 33 U.S.C. § 1311.

§ 1311. Effluent limitations

(a) Illegality of pollutant discharge except in compli-

ance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 1328, 1342, and 1344 of this title,

the discharge of an llutant b

unlawful. jm y any person shall be

App. 150

Section 307 as added October 18, 1972 of the Clean Water

Act of 1948, 33 U.S.C. § 1317.

§ 1317. Toxic and pretreatment effluent standards

(a) Toxic pollutant list; revision; hearing; promulga-

tion of standards; effective date; consultation

(1) On and after December 27, 1977, the list of toxic

pollutants or combination of pollutants sub..ct to this

chapter shall consist of those toxic pollutants listed in

table 1 of Committee Print Numbered 95-30 of the Com-

mittee on Public Works and Transportation of the House

of Representatives, and the Administrator shall publish,

not later than the thirtieth day after December 27, 1977,

that list. From time to time thereafter, the Administrator

may revise such list and the Administrator is authorized

to add to or remove from such list any pollutant. The

Administrator in publishing any revised list, including

the addition or removal of any pollutant from such list,

shall take into account toxicity of the pollutant, its persis-

tence, degradability, the usual or potential presence of the

affected organisms in any waters, the importance of the

affected organisms, and the nature and extent of the

effect of the toxic pollutant on such organisms. A deter-

mination of the Administrator under this paragraph shall

be final except that if, on judicial review, such determina-

tion was based on arbitrary and capricious action of the

Administrator, the Administrator shall make a redeter-

mination.

(2) Each toxic pollutant listed in accordance with

paragraph (1) of this subsection shall be subject to efflu-

ent limitations resulting from the application of the best

available technology economically achievable for the

App. 151

applicable category or class of point sources established

in accordance with sections 1311(b)(2)(A) and 1314(b)(2)

of this title. The Administrator, in his discretion, may

publish in the Federal Register a proposed effluent stan-

dard (which may include a prohibition) establishing

requirements for a toxic pollutant which, if an effluent

limitation is applicable to a class or category of point

sources, shall be applicable to such category or class only

if such standard imposes more stringent requirements.

Such published effluent standard (or prohibition) shall

take into account the toxicity of the pollutant, its persis-

tence, degradability, the usual or potential presence of the

affected organisms in any waters, the importance of the

affected organisms and the nature and extent of the effect

of the toxic pollutant on such organisms, and the extent

to which effective control is being or may be achieved

under other regulatory authority. The Administrator shall

allow a period of not less than sixty days following

publication of any such proposed effluent standard (or

prohibition) for written comment by interested persons

on such proposed standard. In addition, if within thirty

days of publication of any such proposed effluent stan-

dard (or prohibition) any interested person so requests,

the Administrator shall hold a public hearing in connec-

tion therewith. Such a public hearing shall provide an

opportunity for oral and written presentations, such

cross-examination as the Administrator determine’ is

appropriate on disputed issues of material fact, and the

transcription of a verbatim record which shall be avail-

able to the public. After consideration of such comments

and any information and material presented at any public

hearing held on such proposed standard or prohibition,

App. 152

the Administrator shall promulgate such standard (or

prohibition) with such modification as the Administrator

finds are justified. Such promulgation by the Administra-

tor shall be made within two hundred and seventy days

after publication of proposed standard (or prohibition).

Such standard (or prohibition) shall be final except that if,

on judicial review, such standard was not based on sub-

stantial evidence, the Administrator shall promulgate a

revised standard. Effluent limitations shall be established

in accordance with sections 1311(b)(2)(A) and 1314(b)(2)

of this title for every toxic pollutant referred to in table 1

of Committee Print Numbered 95-30 of the Committee on

Public Works and Transportation of the House of Repre-

sentatives as soon as practicable after December 27, 1977,

but no later than July 1, 1980. Such effluent limitations or

effluent standards (or prohibitions) shall be established

for every other toxic pollutant listed under paragraph (1)

of this subsection as soon as practicable after it is so

listed.

(3) Each such effluent standard (or prohibition)

shall be reviewed and, if appropriate, revised at least

every three years.

(4) Any effluent standard promulgated under this

section shall be at that level which the Administrator

determines provides an ample margin of safety.

(5) When proposing or promulgating any effluent

standard (or prohibition) under this section, the Adminis-

trator shall designate the category or categories of

sources to which the effluent standard (or prohibition)

shall apply. Any disposal of dredged material may be

App. 153

included in such a category of sources after consultation

with the Secretary of the Army.

(6) Any effluent standard (or prohibition) estab-

lished pursuant to this section shall take effect on such

date or dates as specified in the order promulgating such

standard, but in no case, more than one year from the

date of such promulgation. If the Administrator deter-

mines that compliance within one year from the date of

promulgation is technologically infeasible for a category

of sources, the Administrator may establish the effective

date of the effluent standard (or prohibition) for such

category at the earliest date upon which compliance can

be feasibly attained by sources within such category, but

in no event more than three years after the date of such

promulgation.

(7) Prior to publishing any regulations pursuant to

this section the Administrator shall, to the maximum

extent practicable within the time provided, consult with

appropriate advisory committees. States, independent

experts, and Federal departments and agencies.

(b) Pretreatment standards; hearing; promulgation;

compliance period; revision; application to State

and local laws

(1) The Administrator shall, within one hundred

and eighty days after October 18, 1972, and from time to

time thereafter, publish proposed regulations establishing

pretreatment standards for introduction of pollutants into

treatment works (as defined in section 1292 of this title)

which are publicly owned for those pollutants which are

determined not to be susceptible to treatment by such

App. 154

treatment works or which would interfere with the opera-

tion of such treatment works. Not later than ninety days

after such publication, and after opportunity for public

hearing, the Administrator shall promulgate such pre-

treatment standards. Pretreatment standards under this

subsection shall specify a time for compliance not to

exceed three year from the date of promulgation and

shall be established to prevent the discharge of any pollu-

tant through treatment works (as defined in section 1292

of this title) which are publicly owned, which pollutant

interferes with, passes through, or otherwise is incompat-

ible with such works. If, in the case of any toxic pollutant

under subsection (a) of this section introduced by a

source into a publicly owned treatment works, the treat-

ment by such works removes all or any part of such toxic

pollutant and the discharge from such works does not

violate that effluent limitation or standard which would

be applicable to such toxic pollutant if it were discharged

by such source other than through a publicly owned

treatment works, and does not prevent sludge use or

disposal by such works in accordance with section 1345

of this title, then the pretreatment requirements for the

sources actually discharging such toxic pollutant into

such publicly owned treatment works may be revised by

the owner or operator of such works to reflect the

removal of such toxic pollutant by such works.

(2) The Administrator shall, from time to time, as

control technology, processes, operating methods, or

other alternatives change, revise such standards follow-

ing the procedure established by this subsection for pro-

mulgation of such standards.

App. 155

(3) When proposing or promulgating any pretreat-

ment standard under this section, the Administrator shall

designate the category or categories of sources to which

such standard shall apply.

(4) Nothing in this subsection shall affect any pre-

treatment requirement established by any State or local

law not in conflict with any pretreatment standard estab-

lished under this subsection.

treatment works

In order to insure that any source introducing pollu-

tants into a publicly owned treatment works, which

source would be a new source subject to section 1316 of

this title if it were to discharge pollutants, will not cause a

violation of the effluent limitations established for any

such treatment works, the Administrator shall promul-

gate pretreatment standards for the category of such

sources simultaneously with the promulgation of stan-

dards of performance under section 1316 of this title for

the equivalent category of new sources. Such pretreat-

ment standards shall prevent the discharge of any pollu-

tant into such treatment works, which pollutant may

interfere with, pass through, or otherwise be incompat-

ible with such works.

(d) Operation in violation of standards unlawful

After the effective date of any effluent standard or

prohibition or pretreatment standard promulgated under

App. 156

this section, it shall be unlawful for any owner or opera-

tor of any source to operate any source in violation of any

such effluent standard or prohibition or pretreatment

standard.

(e) Compliance date extension for innovative pretreat-

ment systems

In the case of anv existing facility that proposes to

comply with the pretreatment standards of subsection (b)

of this section by applying an innovative system that

meets the requirements of section 1311(k) of this title, the

owner or operator of the publicly owned treatment works

receiving the treated effluent from such facility may

extend the date for compliance with the applicable pre-

treatment standard established under this section for a

period not to exceed 2 years -

(1) If the Administrator determines that

the innovative system has the potential for

industrywide application, and

(2) If the Administrator (or the State in

consultation with the Administrator, in any case

in which the State has a pretreatment program

approved by the Administrator) -

(A) determines that the proposed

extension will not cause the publicly owned

treatment works to be in violation of its

permit under section 1342 of this title or of

section 1345 of this title or to contribute to

such a violation, and

(B) concurs with the proposed exten-

sion.

App. 157

Section 402, as added October 18, 1972 of the Clean Water

Act of 1948, 33 U.S.C. § 1342.

§ 1342. National pollutant discharge elimination sys-

tem

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity for

public hearing, issue a permit for the discharge of any

pollutant, or combination of pollutants, notwithstanding

section 1311(a) of this title, upon condition that such

discharge will meet either (A) all applicable requirements

under sections 1311, 1312, 1316, 1317, 1318, and 1343 of

this title, or (B) prior to the taking of necessary imple-

menting actions relating to all such requirements, such

conditions as the Administrator determines are necessary

to carry out the provisions of this chapter.

(2) The Administrator shall prescribe conditions for

such permits to assure compliance with the requirements

of paragraph (1) of this subsection, including conditions

on data and information collection, reporting, and such

other requirements as he deems appropriate.

(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued

thereunder, shall be subject to the same terms, conditions,

and requirements as apply to a State permit program and

permits issued thereunder under subsection (b) of this

section.

App. 158

(4) All permits for discharges into the navigable

waters issued pursuant to section 407 of this title, shall be

deemed to be permits issued under this subchapter, and

permits issued under this subchapter shall be deemed to

be permits issued under section 407 of this title, and shall

continue in force and effect for their term unless revoked,

modified, or suspended in accordance with the provi-

sions of this chapter.

(5) No permit for a discharge into the navigable

waters shall be issued under section 407 of this title after

October 18, 1972. Each application for a permit under

section 407 of this title, pending on October 18, 1972, shall

be deemed to be an application for a permit under this

section. The Administrator shall authorize a State, which

he determines has the capability of administering a per-

mit program which will carry out the objective of this

chapter, to issue permits for discharges into the navigable

waters within the jurisdiction of such State. The Adminis-

trator may exercise the authority granted him by the

preceding sentence only during the period which begins

on October 18, 1972, and ends either on the ninetieth day

after the date of the first promulgation of guidelines

required by section 1314(i)(2) of this title, or the date of

approval by the Administrator of a permit program for

such State under subsection (b) of this section, whichever

date first occurs, and no such authorization to a State

shall extend beyond the last day of such period. Each

such permit shall be subject to such conditions as the

Administrator determines are necessary to carry out the

provisions of this chapter. No such permit shall issue if

the Administrator objects to such issuance.

App. 159

(b) State permit programs

At any time after the promulgation of the guidelines

required by subsection (i)(2) of section 1314 of this title,

the Governor of each State desiring to administer its own

permit program for discharges into navigable waters

within its jurisdiction may submit to the Administrator a

full and complete description of the program it proposes

to establish and administer under State law or under an

interstate compact. In addition, such State shall submit a

Statement from the attorney general (or the attorney for

those State water pollution control agencies which have

independent legal counsel), or from the chief legal officer

in the case of an interstate agency, that the laws of such

State, or the interstate compact, as the case may be,

provide adequate authority to carry out the described

program. The Administrator shall approve each such sub-

mitted program unless he determines that adequate

authority does not exist:

(1) To issue permits which -

(A) apply, and insure compliance with,

any applicable requirements of section 1311,

1312, 1316, 1317, and 1343 of this title;

(B) are for fixed terms not exceeding five

years; and

cause including, but not limited to, the follow-

ing:

(i) violation of any condition of the

permit;

App. 160

(ii) obtaining a permit by misrepre

sentation, or failure to disclose fully all rele

vant facts;

(iii) change in any condition that

requires either a temporary or permanent

reduction or elimination of the permitted

discharge,

(D) control the disposal of pollutants into

wells;

(2A) To issue permits which apply, and insure

compliance with, all applicable requirements of section

1318 of this title, or

(B) To inspect, monitor, enter, and require reports to

at least the same extent as required in section 1314 of this

title;

(3) To insure that the public, and any other State the

waters of which may be affected, receive notice of each

application for a permit and to provide an opportunity

for public hearing before a ruling on each such applica

tion;

(4) To insure that the Administrator receives notice

of each application (including a copy thereof) for a per

mit;

(5) To insure that any State ‘other than the permit-

ting State), whose waters may be affected by the issuance

of a permit may submit written recommendations to the

permitting State (and the Administrator) with respect to

any permit application and, if any part of such written

recommendations are not accepted by the permitting

State, that the permitting State will notify such affected

State (and the Administrator) im writing of its failure to

App. 161

so accept such recommendations together with its reasons

for so doing;

(6) To insure that no permit will be issued if, in the

judgment of the Secretary of the Army acting through the

Chief of Engineers, after consultation with the Secretary

of the department in which the Coast Guard is operating,

anchorage and navigation of any of the navigable waters

would be substantially impaired thereby;

(7) To abate violations of the permit or the permit

program, including civil and criminal penalties and other

ways and means of enforcement;

(8) To insure that any permit for a discharge from a

publicly owned treatment works includes conditions to

require the identification in terms of character and vol-

ume of pollutants of any significant source introducing

pollutants subject to pretreatment standards under sec-

tion 1317(b) of this title into such works and a program to

assure compliance with such pretreatment standards by

each such source, in addition to adequate notice to the

permitting agency of (A) new introductions into such

works of pollutants from any source which would be a

new source as defined in section 1316 of this title if such

source were discharging pollutants, (B) new introduc-

tions of pollutants into such works from a source which

would be subject to section 1311 of this title if it were

discharging such pollutants, or (C) a substantial change

in volume or character of pollutants being introduced

into such works by a source introducing pollutants into

such works at the time of issuance of the permit. Such

notice shall include information on the quality and quan-

tity of effluent to be introduced into such treatment

“ Ne em Oe ee el

;

App. 162

works and any anticipated impact of such change in the

quantity or quality of effluent to be discharged from such

publicly owned treatment works; and

(9) To insure that any industrial user of any publicly

owned treatment works will comply with sections

1284(b), 1317, and 1318 of this title.

State program; withdrawal of approval of State pro-

gram; return of State program to Administrator

(1) Not later than ninety days after the date on

which a State has submitted a program (or revision

thereof) pursuant to subsection (b) of this section, the

Administrator shall suspend the issuance of permits

under subsection (a) of this section as to those discharges

subject to such program unless he determines that the

State permit program does not meet the requirements of

subsection (b) of this section or does not conform to the

guidelines issued under section 1314(i)(2) of this title. If

the Administrator so determines, he shall notify the State

of any revisions or modifications necessary to conform to

such requirements or guidelines.

(2) Any State permit program under this section

shall at all times be in accordance with this section and

guidelines promulgated pursuant to section 1314(i)(2) of

this title.

(3) Whenever the Administrator determines after

public hearing that a State is not administering a program

approved under this section in accordance with require-

ments of this section, he shall so notify the State and, if

App. 163

appropriate corrective action is not taken within a reason-

able time, not to exceed ninety days, the Administrator

shall withdraw approval of such program. The Adminis-

trator shall not withdraw approval of any such program

unless he shall first have notified the State, and made

public, in writing, the reasons for such withdrawal.

(4) Limitations on partial permit

and withdrawals = oe

| A State may return to the Administrator administra-

tion, and the Administrator may withdraw under para-

graph (3) of this subsection approval, of -

(A) a State partial permit progra

approved under subsection (ny(3) of this omen

only if the entire permit program being adminis-

tered by the State department or agency at the

time is returned or withdrawn; and

(B) a State partial permit progr

approved under subsection ayia) of this ation

only if an entire phased component of the per-

mit program being administered by the State at

the time is returned or withdrawn.

(d) Notification of Administrator

(1) Each State shall transmit to the Administrator a

copy of each permit application received by such State

and provide notice to the Administrator of every action

related to the consideration of such permit application

including each i i

ms xv permit proposed to be issued by such

App. 164

(2) No permit shall issue (A) if the Administrator

within ninety days of the date of his notification under

subsection (b)(5) of this section objects in writing to the

issuance of such permit, or (B) if the Administrator

within ninety days of the date of transmittal of the pro-

posed permit by the State objects in writing to the issu-

ance of such permit as being outside the guidelines and

requirements of this chapter. Whenever the Administra-

tor objects to the issuance of a permit under this para-

graph such written objection shall contain a statement of

the reasons for such objection and the effluent limitations

and conditions which such permit would include if it

were issued by the Administrator.

(3) The Administrator may, as to any permit appli-

cation, waive paragraph (2) of this subsection.

(4) In any case where, after December 27, 1977, the

Administrator, pursuant to paragraph (2) of this subsec-

tion, objects to the issuance of a permit, on request of the

State, a public hearing shall be held by the Administrator

on such objection. If the State does not resubmit such

permit revised to meet such objection within 30 days after

completion of the hearing, or, if no hearing is requested

within 90 days after the date of such objection, the

Administrator may issue the permit pursuant to subsec-

tion (a) of this section for such source in accordance with

the guidelines and requirements of this chapter.

(e) Waiver of notification requirement

In accordance with guidelines promulgated pursuant

to subsection (i)(2) of section 1314 of this title, the Admin-

istrator is authorized to waive the requirements of

App. 165

subsection (d) of this section at the time he approves a

program pursuant to subsection (b) of this section for any

category (including any class, type, or size within such

category) of point sources within the State submitting

such program.

(f) Point source categories

The Administrator shall promulgate regulations

establishing categories of point sources which he deter-

mines shall not be subject to the requirements of subsec-

tion (d) of this section in any State with a program

approved pursuant to subsection (b) of this section. The

Administrator may distinguish among classes, types, and

sizes within any category of point sources.

(g) Other regulations for safe transportation, handling,

carriage, storage, and stowage of pollutants

Any permit issued under this section for the dis-

charge of pollutants into the navigable waters from a

vessel or other floating craft shall be subject to any appli-

cable regulations promulgated by the Secretary of the

department in which the Coast Guard is operating, estab-

lishing specifications for safe transportation, handling,

carriage, storage, and stowage of pollutants.

(h) Violation of permit conditions; restriction or prohi-

bition upon introduction of pollutant by source not

previously utilizing treatment works

In the event any condition of a permit for discharges

from a treatment works (as defined in section 1292 of this

App. 166

title) which is publicly owned is violated, a State with a

program approved under subsection (b) of this section or

the Administrator, where no State program is approved

or where the Administrator determines pursuant to sec-

tion 1319(a) of this title that a State with an approved

program has not commenced appropriate enforcement

action with respect to such permit, may proceed in a

court of competent jurisdiction to restrict or prohibit the

introduction of any pollutant into such treatment works

by a source not utilizing such treatment works prior to

the finding that such condition was violated.

(i) Federal enforcement not limited

Nothing in this section shall be construed to limit the

authority of the Administrator to take action pursuant to

section 1319 of this title.

(j) Public information

A copy if each permit application and each permit

issued under this section shall be available to the public.

Such permit application or permit, or portion thereof,

shall further be available on request for the purpose of

reproduction.

(k) Compliance with permits

Compliance with a permit issued pursuant to this

section shall be deemed compliance, for purposes of sec-

tion 1319 and 1365 of this title, with sections 1311, 1312,

1316, 1317, and 1343 of this title, except any standard

App. 167

imposed under section 1317 of this title for a toxic pollu-

tant injurious to human health. Until December 31, 1974

in any case where a permit for discharge has been applied

for pursuant to this section, but final administrative dis-

position of such application has not been made, such

discharge shall not be a violation of (1) section 1311, 1316

or 1342 of this title, or (2) section 407 of this title, unless

the Administrator or other plaintiff proves that final

administrative disposition of such application has not

been made because of the failure of the applicant to

furnish information reasonably required or requested in

order to process the application. For the 180-day period

beginning on October 18, 1972, in the case of any point

source discharging any pollutant or combination of pollu-

tants immediately prior to such date which source is not

subject to section 407 of this title, the discharge by such

source shall not be a violation of this chapter if such a

source applies for a permit for discharge pursuant to this

section within such 180-day period.

(1) Limitation on permit requirement

(1) Agricultural return flows

| The administrator shall not require a permit under

this section for discharges composed entirely of return

flows from irrigated agriculture, nor shall the Adminis-

trator directly or indirectly, require any State to require

such a permit.

(2) Stormwater runoff from oil, gas, and mining

operations

| The Administrator shall not require a permit under

this section, nor shall the Administrator directly or

;

App. 168

indirectly require any State to require a permit, for dis-

charges of stormwater runoff from mining operations or

oil and gas exploration, production, processing, or treat-

ment operations or transmission facilities, composed

entirely of flows which are from conveyances or systems

of conveyances (including but not limited to pipes, con-

duits, ditches, and channels) used for collecting and con-

veying precipitation runoff and which are not

contaminated by contact with, or do not come into con-

tact with, any overburden, raw material, intermediate

products, finished product, byproduct, or waste products

located on the site of such operations.

(m) Additional pretreatment of conventional pollu-

tants not required

To the extent a treatment works (as defined in section

1292 of this title) which is publicly owned is not meeting

the requirements of a permit issued under this section for

such treatment works as a result of inadequate design or

operation of such treatment works, the Administrator, in

issuing a permit under this section, shall not require

pretreatment by a person introducing conventional pollu-

tants identified pursuant to section 1314(a)(4) of this title

into such treatment works other than pretreatment

required to assure compliance with pretreatment stan-

dards under subsection (b)(8) of this section and section

1317(b)(1) of this title. Nothing in this subsection shall

affect the Administrator’s authority under sections 1317

and 1319 of this title, affect State and local authority

under sections 1317(b)(4) and 1370 of this title, relieve

App. 169

such treatment works of its obligations to meet require-

ments established under this chapter, or otherwise pre-

clude such works from pursuing whatever feasible

options are available to meet its responsibility to comply

with its permit under this section.

(n) Partial permit program

(1) State submission

| The Governor of a State may submit under subsec-

tion (b) of this section a permit program for a portion of

the discharges into the navigable waters in such State.

(2) Minimum coverage

A partial permit program under this subsection shall

cover, at a minimum, administration of a major category

of the discharges into the navigable waters of the State or

@ major component of the permit program required by

subsection (b) of this section.

(3) Approval of major category partial permit pro-

grams

The Administrator may approve a partial permit pro-

gram covering administration of a major category of dis-

charges under this subsection if -

(A) such program represents a complete

permit program and covers all of the discharges

under the jurisdiction of the department or

agency of the State; and

;

App. 170

(B) the Administrator determines that the

partial program represents a significant and

identifiable part of the State program required

by subsection (b) of this section.

(4) Approval of major component partial permit

programs

The Administrator may approve under this subsec-

tion a partial and phased permit program covering

administration of a major component (including dis-

charge categories) of a State permit program required by

subsection (b) of this section if -

(A) the Administrator determines that the

partial program represents a significant and

identifiable part of the State program required

by subsection (b) of this section; and

(B) the State submits, and the Administra-

tor approves, a plan for the State to assume

administration by phases of the remainder of

the State program required by subsection (b) of

this section by a specified date not more than 5

years after submission of the partial program

under this subsection and agrees to make all

reasonable efforts to assume such administra-

tion by such date.

(o) Anti-backsliding

(1) General prohibition

In the case of effluent limitations established on the

basis of subsection (a)(1)(B) of this section, a permit may

not be renewed, reissued, or modified on the basis of

effluent guidelines promulgated under section 1314(b) of

App. 171

this title subsequent to the original issuance of such per-

mit, to contain effluent limitations which are less strin-

gent than the comparable effluent limitations in the

previous permit. In the case of effluent limitations estab-

lished on the basis of section 1311(b)(1)(C) of this title or

section 1313(d) or (e) of this title, a permit may not be

renewed, reissued, or modified to contain effluent limita-

tions which are less stringent than the comparable efflu-

ent limitations in the previous permit except in

compliance with section 1313(d)(4) of this title.

(2) Exceptions

A permit with respect to which paragraph (1) applies

may be renewed, reissued, or modified to contain a less

stringent effluent limitation applicable to pollutant if -

(A) material and substantial alterations or

additions to the permitted facility occurred after

permit issuance which justify the application of

a less stringent effluent limitation;

(B)(i) information is available which was

not available at the time of permit issuance

(other than revised regulations, guidance, or test

methods) and which would have justified the

application of a less stringent effluent limitation

at the time of permit issuance; or

(ii) the Administrator determines that

technical mistakes or mistaken interpretations of

law were made in issuing the permit under sub-

section (a)(1)(B) of this section;

App. 172

necessary because of events over which the per-

mittee has no control and for which there is no

reasonably available remedy;

(D) the permittee has received a permit

modification under section 1311(c), (g), (h), (i),

(k), (n), or 1326(a) of this title; or

(E) the permittee has installed the treat-

ment facilities requirec to meet the effluent lim-

itations in the previous permit and has properly

operated and maintained the facilities but has

nevertheless been unable to achieve the pre-

vious effluent limitations, in which case the lim-

itations in the reviewed, reissued, or modified

permit may reflect the level of pollutant control

actually achieved (but shall not be less stringent

than required by effluent guidelines in effect at

the time of permit renewal, reissuance, or mod-

ification).

Me iy

Subparagraph (B) shall not apply to any revised waste

load allocations or any alternative grounds for translating

water quality standards into effluent limitations, except

where the cumulative effect of such revised allocations

results in a decrease in the amount of pollutants dis-

charged into the concerned waters, and such revised

allocations are not the result of a discharger eliminating

or substantially reducing its discharge of pollutants due

to complying with the requirements of this chapter or for

reasons otherwise unrelated to water quality.

(3) Limitations

In no event may a permit with respect to which

paragraph (1) applies be renewed, reissued, or modified

App. 173

to contain an effluent limitation which is less stringent

than required by effluent guidelines in effect at the time

the permit is renewed, reissued, or modified. In no event

may such a permit to discharge into waters be renewed,

reissued, or modified to contain a less stringent effluent

limitation if the implementation of such limitation would

result in a violation of a water quality standard under

section 1313 of this title applicable to such waters.

(p) Municipal and industrial stormwater discharges

(1) General rule

Prior to October 1, 1992, the Administrator or the

State (in the case of a permit program approved under

section 1342 of this title) shall not require a permit under

this section for discharges composed entirely of stormwa-

ter.

(2) Exceptions

Paragraph (1) shall not apply with respect to the

following stormwater discharges:

(A) A discharge with respect to which a

permit has been issued under this section before

February 4, 1987.

(B) A discharge associated with industrial

activity.

storm sewer system serving a population of

250,000 or more.

App. 174

(D) A discharge from a municipal separate

storm sewer system serving a population of

100,000 or more but less than 250,000.

(E) A discharge for which the Administra-

tor or the State, as the case may be, determines

that the stormwater discharge contributes to a

violation of a water quality standard or is a

significant contributor of pollutants to waters of

the United States.

(3) Permit requirements

(A) Industrial discharges

Permits for discharges associated with

industrial activity shall meet all applicable pro-

visions of this section and section 1311 of this

title.

(B) Municipal discharge

Permits for discharges from municipal

storm sewers —

(i) may be issued on a system- or

jurisdiction-wide basis;

(ii) shall include a requirement to

effectively prohibit non-stormwater dis-

charges into the storm sewers; and

(iii) shall require controls to reduce

the discharge of pollutants to the maximum

extent practicable, including management

practices, control techniques and system,

design and engineering methods, and such

other provisions as the Administrator or the

State determines appropriate for the control

of such pollutants.

App. 175

(4) Permit application requirements

(A) Industrial and large municipal discharges

Not later than 2 years after February 4,

1987, the Administrator shall establish regula-

tions setting forth the permit application

requirements for stormwater discharges

described in paragraphs (2)(B) and (2)(C).

Applications for permits for such discharges

shall be filed no later than 3 years after February

4, 1987. Not later than 4 years after February 4,

1987, the Administrator or the State, as the case

may be, shall issue or deny each such permit.

Any such permit shall provide for compliance as

expeditiously as practicable, but in no event

later than 3 years after the date of issuance of

such permit.

(B) Other municipal discharges

Not later than 4 years after February 4,

1987, the Administrator shall establish regula-

tions setting forth the permit application

requirements for stormwater discharges

described in paragraph (2)(D). Applications for

permits for such discharges shall be filed no

later than 5 years after February 4, 1987. Not

later than 6 years after February 4, 1987, the

Administrator or the State, as the case may be,

Shall issue or deny each such permit. Any such

permit shall provide for compliance as expe-

ditiously as practicable, but in no event later

than 3 years after the date of issuance of such

permit.

App. 176

(5) Studies

The Administrator, in consultation with the States,

shall conduct a study for the purposes of -

(A) identifying those stormwater dis-

charges or classes of stormwater discharges for

which permits are not required pursuant to

paragraphs (1) and (2) of this subsection;

(B) determining, to the maximum extent

practicable, the nature and extent of pollutants

in such discharges; and

to control stormwater discharges to the extent

necessary to mitigate impacts on water quality.

Not later than October 1, 1988, the Administrator shall

submit to Congress a report on the results of the study

described in subparagraphs (A) and (B). Not later than

October 1, 1989, the Administrator shall submit to Con-

gress a report on the results of the study described in

subparagraph (C).

(6) Regulations

Not later than October 1, 1992, the Administrator, in

consultation with State and local officials, shall issue

regulations (based on the results of the studies conducted

under paragraph (5)) which designate stormwater dis-

charges, other than those discharges described in para-

graph (2), to be regulated to protect water quality and

shall establish a comprehensive program to regulate such

designated sources. The program shall, at a minimum,

(A) establish priorities, (B) establish requirements for

App. 177

State stormwater management programs, and (C) estab-

lish expeditious deadlines. The program may include per-

formance standards, guidelines, guidance, and

management practices and treatment requirements, as

appropriate.

(As amended Feb. 4, 1987, Pub.L. 100-4, Title IV, §§ 401,

402, 403, 404(a), (d), 405, 101 Stat. 65, 66, 67, 69.)

8 TO et Rte ED ot DO ee ote et

he ote eo <2

me A a

App. 178

Section 502, as added October 18, 1972 of the Clean Water

Act of 1948, 33 U.S.C. § 1362.

§ 1362. Definitions

Except as otherwise specifically provided, when used in

this chapter:

(1) The term “State water pollution control agency”

means the State agency designated by the Governor hav-

ing responsibility for enforcing State laws relating to the

abatement of pollution.

(2) The term “interstate agency” means an agency

of two or more States established by or pursuant to an

agreement or compact approved by the Congress, or any

other agency of two or more States, having substantial

powers or duties pertaining to the control of pollution as

determined and approved by the Administrator.

(3) The term “State” means a State, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin

Islands, Guam, American Samoa, the Commonwealth of

the Northern Mariana Islands, and the Trust Territory of

the Pacific Islands.

(4) The term “municipality” means a city, town, bor-

ough, county, parish, district, association, or other public

body created by or pursuant to State law and having

jurisdiction over disposal of sewage, industrial wastes, or

other wastes, or an Indian tribe or an authorized Indian

tribal organization, or a designated and approved man-

agement agency under section 1288 of this title.

App. 179

(5) The term “person” means an individual, corpo-

ration, partnership, association, State, municipality, com-

mission, or political subdivision of a State, or any

interstate body.

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equip-

ment, rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into water. This term

does not mean (A) “sewage from vessels” within the

meaning of section 1322 of this title; or (B) water, gas, or

other material which is injected into a well to facilitate

production of oil or gas, or water derived in association

with oil or gas production and disposed of in a well, if

the well used either to facilitate production or for dis-

posal purposes is approved by authority of the State in

which the well is located, and if such State determines

that such injection or disposal will not result in the degra-

dation of ground or surface water resources.

(7) The term “navigable waters” means the waters

of the United States, including the territorial seas.

(8) The term “territorial seas” means the belt of the

seas measured from the line of ordinary low water along

that portion of the coast which is in direct contact with

the open sea and the line marking the seaward limit of

inland waters, and extending seaward a distance of three

miles.

(9) The term “contiguous zone” means the entire

zone established or to be established by the United States

App. 180

under article 24 of the Convention of the Territorial Sea

and the Contiguous Zone.

(10) The term “ocean” means any portion of the

high seas beyond the contiguous zone.

(11) The term “effluent limitation” means any

restriction established by a State or the Administrator on

quantities, rates, and concentrations of chemical, physi-

cal, biological, and other constituents which are dis-

charged from point sources into navigable waters, the

waters of the contiguous zone, or the ocean, including

schedules of compliance.

(12) The term “discharge of a pollutant” and the

term “discharge of pollutants” each means (A) any addi-

tion of any pollutant to navigable waters from any point

source. (B) any addition of any pollutant to the waters of

the contiguous zone or the ocean from any point source

other than a vessel or other floating craft.

(13) The term “toxic pollutant” means those pollu-

tants, or combinations of pollutants, including disease-

causing agents, which after discharge and upon exposure,

ingestion, inhalation or assimilation into any organism,

either directly from the environment or indirectly by

ingestion through food chains, will, on the basis of infor-

mation available to the Administrator, cause death, dis-

ease, behavioral abnormalities, cancer, genetic mutations,

physiological malfunctions (including malfunctions in

reproduction) or physical deformations, in such organ-

isms or their offspring.

App. 181

(14) The term “point source” means any discernible,

confined and discrete conveyance, including but not lim-

ited to any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated ani-

mal feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged. This

term does not include agricultural stormwater discharges

and return flows from irrigated agriculture.

(15) The term “biological monitoring” shall mean

the determination of the effects on aquatic life, including

accumulation of pollutants in tissue, in receiving waters

due to the discharge of pollutants (A) by techniques and

procedures, including sampling of organisms representa-

tive of appropriate levels of the food chain appropriate to

the volume and the physical, chemical, and biological

characteristics of the effluent, and (B) at appropriate fre-

quencies and locations.

(16) The term “discharge” when used without qual-

ification includes a discharge of a pollutant, and a dis-

charge of pollutants.

(17) The term “schedule of compliance” means a

schedule of remedial measures including an enforceable

sequence of actions or operations leading to compliance

with an effluent limitation, other limitation, prohibition,

or standard.

(18) The term “industrial user” means those indus-

tries identified in the Standard Industrial Classification

Manual, Bureau of the Budget, 1967, as amended and

supplemented, under the category “Division D - Manu-

facturing” and such other classes of significant waste

App. 182

producers as, by regulation, the Administrator deems

appropriate. ?

(19) The term “pollution” means the man-made or

man-induced alteration of the chemical, physical, biolog-

ical, and radiological integrity of water.

(20) The term “medical waste” means isolation

wastes; infectious agents; human blood and blood prod-

ucts; pathological wastes; sharps; body parts; contami-

nated bedding; surgical wastes and potentially

contaminated laboratory wastes; dialysis wastes; and

such additional medical items as the Administrator shall

prescribe by regulation.

(As amended Feb. 4, 1987, Pub.L. 100-4, Title V, §§ 502(a),

503, 101 Stat. 75; Nov. 18, 1988, Pub.L. 100-688, Title III,

§ 3202(a), 102 Stat. 4154.)

App. 183

Section 505, as added October 18, 1972 of the Clean Water

Act of 1948, 33 U.S.C. §1365.

§ 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 com-

mence a civil action on his own behalf -

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent permit-

ted by the eleventh amendment to the Constitu-

tion) who is alleged to be in violation of (A) an

effluent standard or limitation under this chap-

ter 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, without regard

to the amount in controversy or the citizenship of the

parties, to enforce such an effluent standard or limitation,

or such an order, or to order the Administrator to per-

form 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 —

)

;

)

(c)

App. 184

(A) prior to sixty days after the plain-

tiff 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, lim-

itation, or order, or

(B) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action in a court of the

United States, or a State to require compli-

ance with the standard, limitation, or order,

but in any such action in a court of the

United States any citizen may intervene as a

matter 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.

Venue; intervention by Administrator; United

States interests protected

(1) Any action respecting a violation by a

discharge source of an effluent standard or lim-

itation or an order respecting such standard or

limitation may be brought under this section

only in the judicial district in which such source

is located.

App. 185

(2) In such action under this section, the |

Administrator, 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 com-

plaint 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 follow-

ing 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 action

brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert wit-

ness fees) to any prevailing or substantially prevailing

party, whenever the court determines such award is

appropriate. The court may, if a temporary restraining

order or preliminary injunction is sought, require the

filing of a bond or equivalent security in accordance with

the Federal Rules of Civil Procedure.

(e) Statutory or common law rights not restricted

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

— Bowe

a i.

App. 186

statute or common law to seek enforcement of any efflu-

ent 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 “effluent stan-

dard 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)

standard of performance under section 1316 of this title;

(4) prohibition, effluent standard or pretreatment stan-

dards under section 1317 of this title; (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 appli-

cable by reason of section 1323 of this title); or (7) a

regulation under section 1345(d) of this title.

(g) Citizen

For the purposes of this sectiongthe term “citizen”

means a person or persons having an interest which is or

may be adversely affected.

(h) Civil action by State Governors

A Governor of a State may commence a civil action

under subsection (a) of this section, without regard to the

limitations of subsection (b) of this section, against the

Administrator where there is alleged a failure of the

App. 187

Administrator to enforce an effluent standard or limita-

tion 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 causing a

violation of any water quality requirement in his State.

(As amended Feb. 4, 1987, Pub.L. 100-4, Title III, § 314(c),

Title IV, § 406(d)(2), Title V, §§ 504, 505(c), 101 Stat. 49, 73,

75, 76.)

— 4

a a a a Se

App. 188

Section 3002 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6922.

§ 6922. Standards applicable to generators of hazardous

waste

(a) In general

Not later than eighteen months after October 21,

1976, and after notice and opportunity for public hearings

and after consultation with appropriate Federal and State

agencies, the Administrator shall promulgate regulations

establishing such standards, applicable to generators of

hazardous waste identified or listed under this subchap-

ter, as may be necessary to protect human health and the

environment. Such standards shall establish requirements

respecting -

(1) recordkeeping practices that accurately

identify the quantities of such hazardous waste

generated, the constituents thereof which are

significant in quantity or in potential harm to

human health or the environment, and the dis-

position of such wastes;

(2) labeling practices for any containers

used for the storage, transport, or disposal of

such hazardous waste such as will identify accu-

rately such waste;

(3) use of appropriate containers for such

hazardous waste;

(4) furnishing of information on the gen-

eral chemical composition of such hazardous

waste to persons transporting, treating, storing,

or disposing of such wastes;

(5) use of a manifest system and any other

reasonable means necessary to assure that all

App. 189 | App. 190

such hazardous waste generated is designated

for treatment, storage, or disposal in, and

arrives at, treatment, storage, or disposal facili-

(b) Waste minimization

Effective September 1, 1985, the manifest required by

subsection (a)(5) of this section shall contain a certifica-

ties (other than facilities on the premises where

the waste is generated) for which a permit has

been issued as provided in this subchapter, or

pursuant to title I of the Marine Protection,

Research, and Sanctuaries Act (86 Stat. 1052) [33

U.S. C.A. § 1411 et seq.]; and

(6) submission of reports to the Adminis-

trator (or the State agency in any case in which

such agency carries out a permit program pur-

suant to this subchapter) at least once every two

years, setting out -

(A) the quantities and nature of haz-

ardous waste identified or listed under this

subchapter that he has generated during the

year;

(B) the disposition of all hazardous

waste reported under subparagraph (A);

year to reduce the volume and toxicity of

waste generated; and

(D) the changes in volume and tox-

icity of waste actually achieved during the

year in question in comparison with pre-

vious years, to the extent such information

is available for years prior to November 8,

1984.

tion by the generator that —

(1) the generator of the hazardous waste

has a program in place to reduce the volume or

quantity and toxicity of such waste to the degree

determined by the generator to be economically

practicable; and

(2) the proposed method of treatment,

storage, or disposal is that practicable method

currently available to the generator which mini-

mizes the present and future threat to human

health and the environment.

(As amended Pub.L. 98-616, Title II, § 224(a), Nov. 8, 1984,

98 Stat. 3252.) _

App. 191

Section 3005 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6925.

6925. Permits for treatment, storage, or disposal of haz-

ardous waste

(a) Permit requirements

Not later than eighteen months after October 21,

1976, the Administrator shall promulgate regulations

requiring each person owning or operating an existing

facility or planning to construct a mew facility for the

treatment, storage, or disposal of hazardous waste identi-

fied or listed under this subchapter to have a permit

issued pursuant to this section. Such regulations shall

take effect on the date provided in section 6930 of this

title and upon and after such date the treatment, storage,

or disposal of any such hazardous waste and the con-

struction of any new facility for the treatment, storage, or

disposal of any such hazardous waste is prohibited

except in accordance with such a permit. No permit shall

be required under this section in order to construct a

facility if such facility is constructed pursuant to an

approval issued by the Administrator under section

2605(e) of Title 15 for the incineration of polycholorinated

biphenyls and any person owning or operating such a

facility may, at any time after operation or construction of

such facility has begun, file an application for a permit

pursuant to this section authorizing such facility to incin-

erate hazardous waste identified or listed under this sub-

chapter.

(b) Requirements of permit application

Each application for a permit under this section shall

contain such information as may be required under

App. 192

regulations promulgated by the Administrator, including-

information respecting -

(1) estimates with respect to the composi-

tion, quantities, and concentrations of any haz-

ardous waste identified or listed under this

subchapter, or combinations of any such hazard-

ous waste and any other solid waste, proposed

to be disposed of, treated, transported, or

stored, and the time, frequency, or rate of which

such waste is proposed to be disposed of,

treated, transported, or stored; and

(2) the site at which such hazardous waste

or the products of treatment of such hazardous

waste will be disposed of, treated, transported

to, or stored.

(1) Upon a determination by the Adminis-

trator (or a State, if applicable), of compliance

by a facility for which a permit is applied for

under this section with the requirements of this

section and section 6924 of this title, the Admin-

istrator (or the State) shall issue a permit for

such facilities. In the event permit applicants

propose modification of their facilities, or in the

event the Administrator (or the State) deter-

mines that modifications are necessary to con-

form to the requirements under this section and

section 6924 of this title, the permit shall specify

the time allowed to complete the modifications.

(2AMi) Not later than the date four years

after November 8, 1984, in the case of each

application under this subsection for a permit

for a land disposal facility which was submitted

App. 193

before such date, the Administrator shall issue a

final permit pursuant to such application or

issue a final denial of such application.

(ii) Not later than the date five years after

November 8, 1984, in the case of each applica-

tion for a permit under this subsection for an

incinerator facility which was submitted before

such date, the Administrator shall issue a final

permit pursuant to such application or issue a

final denial of such application.

(B) Not later than the date eight years

after November 8, 1984, in the case of each

application for a permit under this subsection

for any facility (other than a facility referred to

in subparagraph (A)) which was submitted

before such date, the Administrator shall issue a

final permit pursuant to such application or

issue a final denial of such application.

graph shall also apply in the case of any State

which is administering an authorized hazardous

waste program under section 6926 of this title.

Interim status under subsection (e) of this sec-

tion shall terminate for each facility referred to

in subparagraph (A)(ii) or (B) on the expiration

of the five-or eight-year period referred to in

subparagraph (A) or (B), whichever is applica-

ble, unless the owner or operator of the facility

applies for a final determination regarding the

issuance of a permit. under this subsection

within -

(i) two years after November 8, 1984

(in the case of a facility referred to in sub-

paragraph (A)(ii)), or

App. 194

(ii) four years after November 8, 1984

(in the case of a facility referred to in sub-

paragraph (B)).

(3) Any permit under this section shall be

for a fixed term, not to exceed 10 years in the

case of any land disposal facility, storage facility,

or incinerator or other treatment facility. Each

permit for a land disposal facility shall be

reviewed five years after date of issuance or

reissuance and shall be modified as necessary to

assure that the facility continues to comply with

the currently applicable requirements of this

section and section 6924 of this title. Nothing in

this subsection shall preclude the Administrator

from reviewing and modifying a permit at any

time during its term. Review of any application

for a permit renewal shall consider improve-

ments in the state of control and measurement

technology as well as changes in applicable reg-

ulations. Each permit issued under this section

shall contain such terms and conditions as the

Administrator (or the State) determines neces-

sary to protect human health and the environ-

ment.

(d) Permit revocation

Upon a determination by the Administrator (or by a

State, in the case of a State having an authorized hazard-

ous waste program under section 6926 of this title) of

noncompliance by a facility having a permit under this

chapter with the requirements of this section or section

6924 of this title, the Administrator (or State, in the case

of a State having an authorized hazardous waste program

under section 6926 of this title) shall revoke such permit.

App. 195

(e) Interim status

(1) Any person who -

(A) owns or operates a facility required to

have a permit under this section which facility -

(i) was in existence on November 19,

1980, or

(ii) is in existence on the effective date

of statutory or regulatory changes under

this chapter that render the facility subject

to the requirement to have a permit under

this section,

(B) has complied with the requirements of

section 6930(a) of this title, and

under this section shall be treated as having

been issued such permit until such time as final

administrative disposition of such application is

made, unless the Administrator or other plain-

tiff proves that final administrative disposition

of such application has not been made because

of the failure of the applicant to furnish infor-

mation reasonabl-’ required or requested in

order to process the application. This paragraph

shall not apply to any facility which has been

previously denied a permit under this section or

if authority to operate the facility under this

section has been previously terminated.

(2) In the case of each land disposal facility which

has been granted interim status under this subsection

before November 8, 1984, interim status shall terminate

on the date twelve months after November 8, 1984, unless

the owner or operator of such facility -

App. 196

(A) applies for a final determination regar-

ding the issuance of a permit under subsection

date twelve months after November 8, 1984; and

(B) certifies that such facility is in compli-

ance with all applicable groundwater monitor-

ing and financial responsibility requirements.

(3) In the case of each land disposal facility which is

in existence on the effective date of statutory or regula-

tory changes under this chapter that render the facility

subject to the requirement to have a permit under this

section and which is granted interim status under this

subsection, interim status shall terminate on the date

twelve months after the date on which the facility first

becomes subject to such permit requirement unless the

owner or operator of such facility -

(A) applies for a final determination

regarding the issuance of a permit under subsec-

tion (c) of this section for such facility before the

date twelve months after the date on which the

facility first becomes subject to such permit

requirement; and

(B) certifies that such facility is in compli-

ance with all applicable groundwater monitor-

ing and financial responsibility requirements.

(f) Coal mining wastes and reclamation permits

Notwithstanding subsection (a) through (e) of this

section, any surface coal mining and reclamation permit

covering any coal mining wastes or overburden which

has been issued or approved under the Surface Mining

Control and Reclamation Act of 1977 [30 U.S.C.A. § 1201

App. 197

et seq.] shall be deemed to be a permit issued pursuant to

this section with respect to the treatment, storage, or

disposal of such wastes or overburden. Regulations pro-

mulgated by the Administrator under this subchapter

shall not be applicable to treatment, storage, or disposal

of coal mining wastes and overburden which are covered

by such a permit.

(g) Research, development and demonstration permits

(1) The Administrator may issue a research, devel-

opment, and demonstration permit for any hazardous

waste treatment facility which proposes to utilize an

innovative and experimental hazardous waste treatment

technology or process for which permit standards for

such experimental activity have not been promulgated

under this subchapter. Any such permit shall include

such terms and conditions as will assure protection of

human health and the environment. Such permits -

(A) shall provide for the construction of

such facilities, as necessary, and for operation of

the facility for not longer than one year (unless

renewed as provided in paragraph (4)), and

(B) shall provide for the receipt and treat-

ment by the facility of only those types and

quantities of hazardous waste which the Admin-

istrator deems necessary for purposes of deter-

mining the efficacy and performance capabilities

of the technology or process and the effects of

such technology or process on human health

and the environment, and

Administrator deems necessary to protect

App. 198

human health and the environment (including,

but not limited to, requirements regarding mon-

itoring, operation, insurance or bonding, finan-

cial responsibility, closure, and remedial action),

and such requirements as the Administrator

deems necessary regarding testing and pro-

viding of information to the Administrator with

respect to the operation of the facility.

The Administrator may apply the criteria set forth in this

paragraph in establishing the conditions of each permit

without separate establishment of regulations implement-

ing such criteria.

(2) For the purpose of expediting review and issu-

ance of permits under this subsection, the Administrator

may, consistent with the protection of human health and

the environment, modify or waive permit application and

permit issuance requirements established in the Adminis-

trator’s general permit regulations except that there may

be no modification or waiver of regulations regarding

financial responsibility (including insurance) or of pro-

cedures established under section 6974(b)(2) of this title

regarding public participation.

(3) The Administrator may order an immediate ter-

mination of all operations at the facility at any time he

determines that termination is necessary to protect

human health and the environment.

(4) Any permit issued under this subsection may be

renewed not more than three times. Each such renewal

shall be for a period cf not more than 1 year.

App. 199

(h) Waste minimization

Effective September 1, 1985, it shall be a condition of

any permit issued under this section for the treatment,

storage, or disposal of hazardous waste on the premises

where such waste was generated that the permittee cer-

tify, no less often than annually, that -

(1) the generator of the hazardous waste

has a program in place to reduce the volume or

quantity and toxicity of such waste to the degree

determined by the generator to be economically

practicable; and

(2) the proposed method of treatment,

storage, or disposal is that practicable method

currently available to the generator which mini-

mizes the present and future threat to human

health and the environment.

(i) Interim status facilities receiving wastes after July

26, 1982

The standards concerning ground water monitoring,

unsaturated zone monitoring, and corrective action,

which are applicable under section 6924 of this title to

new landfills, surface impoundments, land treatment

units, and waste-pile units required to be permitted

under subsection (c) of this section shall also apply to any

landfill, surface impoundment, land treatment unit, or

waste-pile unit qualifying for the authorization to operate

under subsection (e) of this section which receives haz-

ardous waste after July 26, 1982.

App. 200

(j) Interim status surface impoundments

(1) Except as provided in paragraph (2), (3), or (4),

each surface impoundment in existence on November 8,

1984, and qualifying for the authorization to operate

under subsection (e) of this section shall not receive,

store, or treat hazardous waste after the date four years

after November 8, 1984, unless such surface impound-

ment is in compliance with the requirements of section

6924(0)(1)(A) of this title which would apply to such

impoundment if it were new.

(2) Paragraph (1) of this subsection shall not apply

to any surface impoundment which (A) has at least one

liner, for which there is no evidence that such liner is

leaking; (B) is located more than one-quarter mile from an

underground source of drinking water; and (C) is in

compliance with generally applicable ground water mon-

itoring requirements for facilities with permits under sub-

section (c) of this section.

(3) Paragraph (1) of this subsection shall not apply

to any surface impoundment which (A) contains treated

waste water during the secondary or subsequent phases

of an aggressive biological treatment facility subject to a

permit issued under section 1342 of Title 33 (or which

holds such treated waste water after treatment and prior

to discharge); (B) is in compliance with generally applica-

ble ground water monitoring requirements for facilities

with permits under subsection (c) of this section; and

(Ci) is part of a facility in compliance with section

1311(b)(2) of Title 331, or (ii) in the case of a facility for

which no effluent guidelines required under section

1314(b)(2) of Title 33 are in effect and no permit under

App. 201

section 1342(a)(1) of Title 33 implementing section

1311(b)(2) of Title 33 has been issued, is part of a facility

in compliance with a permit under section 1342 of Title

33, which is achieving significant degradation of toxic

pollutants and hazardous constituents contained in the

untreated waste stream and which has identified those

toxic pollutants and hazardous constituents in the untre-

ated waste stream to the appropriate permitting author-

ity.

(4) The Administrator (or the State, in the case of a

State with an authorized program), after notice and

opportunity for comment, may modify the requirements

of paragraph (1) for any surface impoundment if the

owner or operator demonstrates that such surface

impoundment is located, designed and operated so as to

assure that there will be no migration of any hazardous

constitutent into ground water or surface water at any

future time. The Administrator or the State shall take into

account locational criteria established under section

6924(0)(7) of this title.

(5) The owner or operator of any surface impound-

ment potentially subject to paragraph (1) who has reason

to believe that on the basis of paragraph (2), (3), or (4)

such surface impoundment is not required to comply

with the requirements of paragraph (1), shall apply to the

Administrator (or the State, in the case of a State with an

authorized program) not later than twenty-four months

after November 8, 1984, for a determination of the appli-

cability of paragraph (1) (in the case of paragraph (2) or

(3)) or for a modification of the requirements of para-

graph (1) (in the case of paragraph (4)), with respect to

such surface impoundment. Such owner or operator shall

App. 202

provide, with such application, evidence pertinent to

such decision, including:

(A) an application for a final determina-

tion regarding the issuance of a permit under

subsection (c) of this section for such facility, if

not previously submitted;

(B) evidence as to compliance with all

applicable ground water monitoring require-

ments and the information and analysis from

such monitoring;

as to whether such surface impoundment is

leaking; and

(D) in the case of applications under para-

graph (2) or (3), a certification by a registered

professional engineer with academic training

and experience in ground water hydrology

that -

(i) under paragraph (2), the liner of

such surface impoundment is designed,

constructed, and operated in accordance

with applicable requirements, such surface

impoundment is more than one-quarter

mile from an underground source of drink-

ing water and there is no evidence such

liner is leaking; or

(ii) under paragraph (3), based on

analysis of those toxic pollutants and haz-

ardous constituents that are likely to be pre-

sent in the untreated waste stream, such

impoundment satisfies the conditions of

paragraph (3).

In the case of any surface impoundment for which the

owner or operator fails to apply under this paragraph

App. 203

within the time provided by this paragraph or paragraph

(6), such surface impoundment shall comply with para-

graph (1) notwithstanding paragraph (2), (3), or (4).

Within twelve months after receipt of such application

and evidence and not later than thirty-six months after

November 8, 1984, and after notice and opportunity to

comment, the Administrator (or, if appropriate, the State)

shall advise such owner or operator on the applicability

of paragraph (1) to such surface impoundment or as to

whether and how the requirements of paragraph (1) shall

be modified and applied to such surface impoundment.

(6)(A) In any case in which a surface impoundment

becomes subject to paragraph (1) after November 8, 1984,

due to the promulgation of additional listings or charac-

teristics for the identification of hazardous waste under

section 6921 of this title, the period for compliance in

paragraph (1) shall be four years after the date of such

promulgation, the period for demonstrations under para-

graph (4) and for submission of evidence under para

graph (5) shall be not later than twenty-four months after

the date of such promulgation, and the period for the

Administrator (or if appropriate, the State) to advise such

owners or operators under paragraph (5) shall be not

later than thirty-six months after the date of promulga-

tion.

(B) If any case in which a surface impoundment is

initially determined to be excluded from the require-

ments of paragraph (1) but due to a change in condition

(including the existence of a leak) no longer satisfies the

provisions of paragraph (2), (3), or (4) and therefore

becomes subject to paragraph (1), the period for compli-

ance in paragraph (1) shall be two years after the date of

App. 204

discovery of such change of condition, or in the case of a

surface impoundment excluded under paragraph (3)

three years after such date of discovery.

(7A) The Administrator shall study and report to

the Congress on the number, range of size, construction,

likelihood of hazardous constituents migrating into

ground water, and potential threat to human health and

the environment of existing surface impoundments

excluded by paragraph (3) from the requirements of para-

graph (1). Such report shall address the need, feasibility,

and estimated costs of subjecting such existing surface

impoundments to the requirements of paragraph (1).

(B) In the case of any existing surface impoundment

or class of surface impoundments from which the Admin-

istrator (or the State, in the case of a State with an

authorized program) determines hazardous constituents

are likely to migrate into ground water, the Administrator

(or if appropriate, the State) is authorized to impose such

requirements as may be necessary to protect human

health and the environment, including the requirements

of section 6924(0) of this title which would apply to such

impoundments if they were new

excluded by paragraph (3) from the requirements of para-

graph (1) which is subsequently determined to be leak-

ing, the Administrator (or, if appropriate, the State) shal!

require compliance with paragraph (1), unless the

Administrator (or, if appropriate, the State) determines

that such compliance is not necessary to protect human

health and the environment.

App. 205

(8) In the case of any surface impoundment in

which the liners and leak detection system have been

installed pursuant to the requirements of paragraph (1)

and in good faith compliance with section 6924(0) of this

title and the Administrator’s regulations and guidance

documents governing liners and leak detection systems,

no liner or leak detection system which is different from

that which was so installed pursuant to paragraph (1)

shall be required for such unit by the Administrator when

issuing the first permit under this section to such facility.

Nothing in this paragraph shall preclude the Administra-

tor from requiring installation of a new liner when the

Administrator has reason to believe that any liner

installed pursuant to the requirements of this subsection

is leaking.

(9) In the case of any surface impoundment which

has been excluded by paragraph (2) on the basis of a liner

meeting the definition under paragraph (12)(A)(ii), at the

closure of such impoundment the Administrator shall

require the owner or operator of such impoundment to

remove or decontaminate all waste residues, all contami-

nated liner material, and contaminated soil to the extent

practicable. If all contaminated soil is not removed or

decontaminated, the owner or operator of such impound-

ment shall be required to comply with appropriate post-

closure requirements, including but not limited to ground

water monitoring the corrective action.

(10) Any incremental cost attributable to the

requirements of this subsection or section 6924(0) of this

title shall not be considered by the Administrator (or the

State, in the case of a State with an authorized program

under section 1342 of Title 33) -

App. 206

(A) in establishing effluent limitations and

standards under section 1311, 1314, 1316, 1317,

or 1342 of Title 33 based on effluent limitations

guidelines and standards promulgated any time

before twelve months after November 8, 1984;

(B) in establishing any other effluent lim-

itations to carry out the provisions of section

1311, 1317, or 1342 of Title 33 on or before

October 1, 1986.

(11)(A) If the Administrator allows a hazardous

waste which is prohibited from one or more methods of

land disposal under subsection (d), (e) or (g) of section

6924 of this title (or under regulations promulgated by

the Administrator under such subsections) to be placed in

a surface impoundment (which is operating pursuant to

interim status) for storage or treatment, such impound-

ments shall meet the requirements that are applicable to

new surface impoundments under section 6924(0)(1) of

this title, unless such impoundment meets the require-

ments of paragraph (2) or (4).

(B) In the case of any hazardous waste which is

prohibited from one or more methods of land disposal

under subsection (d), (e), or (g) of section 6924 of this title

(or under regulations promulgated by the Administrator

under such subsection) the placement or maintenance of

such hazardous waste in a surface impoundment for

treatment is prohibited as of the effective date of such

prohibition unless the treatment residues which are haz-

ardous are, at minimum, removed for subsequent man-

agement within one year of the entry of the waste into the

surface impoundment.

App. 207

(12)(A) For the purposes of paragraph (2)(A) of this

subsection, the term “liner” means -

(i) a liner designed, constructed, installed,

and operated to prevent hazardous waste from

passing into the liner at any time during the

active life of the facility; or )

(ii) a liner designed, constructed,

installed, and operated to prevent hazardous

waste from migrating beyond the liner to adja-

cent subsurface soil, ground water, or surface

water at any time during the active life of the

facility.

(B) For the purposes of this subsection, the term

“aggressive biological treatment facility” means a system

of surface impoundments in which the initial impound-

ment of the secondary treatment segment of the facility

utilizes intense mechanical aeration to enhance biological

activity to degrade waste water pollutants and

(i) the hydraulic retention time in such ini-

tial impoundment is no longer than 5 days

under normal operating conditions, on an

annual average basis;

(ii) the hydraulic retention time in such

initial impoundment is no longer than thirty

days under normal operating conditions, on an

annua! average basis: Provided, That the sludge

in such impoundment does not constitute a haz-

ardous waste as identified by the extraction pro-

cedure toxicity characteristic in effect on

November 8, 1984; or

(iii) such system utilizes activated sludge

treatment in the first portion of secondary treat-

ment.

App. 208

“underground source or drinking water” has the same

meaning as provided in regulations under the Safe Drink-

ing Water Act (title XIV of the Public Health Service Act)

[42 U.S.C.A. § 300f et seq.].

(13) The Administrator may modify the require-

ments of paragraph (1) in the case of a surface impound-

ment for which the owner or operator, prior to October 1,

1984, has entered into, and is in compliance with, a con-

sent order, decree, or agreement with the Administrator

or a State with an authorized program mandating correc-

tive action with respect to such surface impoundment

that provides a degree of protection of human health and

the environment which is at a minimum equivalent to

that provided by paragraph (1).

App. 209

Section 3006 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6926.

§ 6926. Authorized State Hazardous waste programs

(a) Federal guidelines

Not later than eighteen months after October 21,

1976, the Administrator, after consultation with State

authorities, shall promulgate guidelines to assist States in

the development of State hazardous waste programs.

(b) Authorization of State program

Any State which seeks to administer and enforce a

hazardous waste program pursuant to this subchapter

may develop and, after notice and opportunity for public

hearing, submit to the Administrator an application, in

such form as he shall require, for authorization of such

program. Within ninety days following submission of an

application under this subsection, the Administrator shall

issue a notice as to whether or not he expects such

program to be authorized, and within ninety days follow-

ing such notice (and after opportunity for public hearing)

he shall publish his findings as to whether or not the

conditions listed in items (1), (2), and (3) below have been

eee ‘met. Such State is authorized to carry out such program

in lieu of the Federal program under this subchapter in

such State and to issue and enforce permits for the stor-

age, treatment, or disposal of hazardous waste (and to

enforce permits deemed to have been issued under sec-

tion 6935(d)(1) of this title) unless, within ninety days

following submission of the application the Administra-

tor notifies such State that such program may not be

authorized and, within ninety days following such notice

App. 210

and after opportunity for public hearing, he finds that (1)

such State program is not equivalent to the Federal pro-

gram under this subchapter, (2) such program is not

consistent with the Federal or State programs applicable

in other States, or (3) such program does not provide

adequate enforcement of compliance with the require-

ments of this subchapter. In authorizing a State program,

the Administrator may base his findings on the Federal

program in effect one year prior to submission of a State’s

application or in effect on January 26, 1983, whichever is

later.

(1) Any State which has in existence a hazardous

waste program pursuant to State law before the date

ninety days after the date of promulgation of regulations

under section 6922, 6923, 6924, and 6925 of this title, may

submit to the Administrator evidence of such existing

program and may request a temporary authorization to

carry out such program under this subchapter. The

Administrator shall, if the evidence submitted shows the

existing State program to be substantially equivalent to

the Federal program under this subchapter, grant an

interim authorization to the State to carry out such pro-

gram in lieu of the Federal program pursuant to this

subchapter for a period ending no later than January 31,

1986.

(2) The Administrator shall, by rule, establish a date

for the expiration of interim authorization under this

subsection.

App. 211

(3) Pending interim or final authorization of a State

program for any State which reflects the amendments

made by the Hazardous and Solid Waste Amendments of

1984, the State may enter into an agreement with the

Administrator under which the State may assist in the

administration of the requirements and prohibitions

which take effect pursuant to such Amendments.

(4) In the case of a State permit program for any

State which is authorized under subsection (b) of this

section or under this subsection, until such program is

amended to reflect the amendments made by the Hazard-

ous and Solid Waste Amendments of 1984 and such pro-

gram amendments receive interim or final authorization,

the Administrator shall have the authority in such State

to issue or deny permits or those portions of permits

affected by the requirements and prohibitions established

by the Hazardous and Solid Waste Amendments of 1984.

The Administrator shall coordinate with States the pro-

cedures for issuing such permits.

(d) Effect of State permit

Any action taken by a State under a hazardous waste

program authorized under this section shall have the

same force and effect as action taken by the Administra-

tor under this subchapter.

(e) Withdrawal of authorization

Whenever the Administrator determines after public

hearing that a State is not administering and enforcing a

program authorized under this section in accordance

App. 212

with requirements of this section, he shall so notify the

State and, if appropriate corrective action is not taken

within a reasonable time, not to exceed ninety days, the

Administrator shall withdraw authorization of such pro-

gram and establish a Federal program pursuant to this

subchapter. The Administrator shall not withdraw autho-

rization of any such program unless he shall first have

notified the State, and made public, in writing, the rea-

sons for such withdrawal.

(f) Availability of information

No State program may be authorized by the Admin-

istrator under this section unless -

(1) such program provides for the public

availability of information obtained by the State

regarding facilities and sites for the treatment,

storage, and disposal of hazardous waste; and

(2) such information is available to the

public in substantially the same manner, and to

the same degree, as would be the case if the

Administrator was carrying out the provisions

of this subchapter in such State.

(g) Amendments made by 1984 act

(1) Any requirement or prohibition which is appli-

cable to the generation, transportation, treatment, stor-

age, or disposal of hazardous waste and which is

imposed under this subchapter pursuant to the amend-

ments made by the Hazardous and Solid Waste Amend-

ments of 1984 shall take effect in each State having an

interim or finally authorized State program on the same

App. 213

date as such requirement takes effect in other States. The

Administrator shall carry out such requirement directly

in each and State unless the State program is finally

authorized (or is granted interim authorization as pro-

vided in paragraph (2)) with respect to such requirement.

(2) Any State which, before November 8, 1984, has

an existing hazardous waste program which has been

granted interim or final authorization under this section

may submit to the Administrator evidence that such exis-

ting program contains (or has been amended to include)

any requirement which is substantially equivalent to a

requirement referred to in paragraph (1) and may request

interim authorization to carry out that requirement under

this subchapter. The Administrator shall, if the evidence

submitted shows the State requirement to be substantially

equivalent to the requirement referred to in paragraph

(1), grant an interim authorization to the State to carry

out such requirement in lieu of direct administration in

the State by the Administrator of such requirement.

(h) State programs for used oil

In the case of used oil which is not listed or identified

under this subtitle as a hazardous waste but which is

regulated under section 6935 of this title, the provisions

of this section regarding State programs shall apply in the

same manner and to the same extent as such provisions

apply to hazardous waste identified or listed under this

subtitle.

(As amended Pub.L. 98-616, Title Il, §§ 225, 226(a), 227,

228, 241(b)(2), Nov. 8, 1984, 98 Stat. 3254, 3255, 3260;

App. 214

Pub.L. 99-499, Title II, § 205(j), Oct. 17, 1986, 100 Stat.

1703.)

App. 215

Section 3008 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6928.

§ 6928. Federal enforcement

(a) Compliance orders

(1) Except as provided in paragraph (2), whenever

on the basis of any information the Administrator deter-

mines that any person has violated or is in violation of

any requirement of this subchapter, 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 Adminis-

trator 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 injunction.

(2) In the case of a violation of any requirement of

this subchapter where such violation occurs in a State

which is authorized to carry out a hazardous waste pro-

gram 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 subsection

may include a suspension or revocation of any permit

issued by the Administrator or a State under this sub-

chapter and shall state with reasonable specificity the

nature of the violation. 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

App. 216

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 become

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 Administrator

may issue subpoenas for the attendance and testimony of

witnesses and the production of relevant papers, books,

and documents, and may promulgate rules for discovery

procedures.

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 Administrator may suspend or revoke any permit

issued to the violator (whether issued by the Administra-

tor 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 < facility which

does not have a permit under this subchapter or

App. 217

pursuant to title I of the Marine Protection,

Research, and Sanctuaries Act (86 Stat. 1052) (33

US.C.A. § 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 sub-

chapter or pursuant to title I of the Marine

Protection, Research, and Sanctuaries Act

(86 Stat. 1052) [33 U.S.C.A. § 1411 et seq.]; or

(B) in knowing violation of any mate-

rial condition or requirement of such per-

mit; or

rial condition or requirement of any appli-

cable interim status regulations or

standards;

(3) knowingly omits material information

or makes any false material statement or

sentation in any application, label, manifest,

record, report, permit, or other document filed,

maintained, or used for purposes of compliance

with regulations promulgated by the Adminis-

trator (or by a State in the case of an authorized

State program) under this subchapter;

(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 the date of

the enactment of this paragraph) and who

knowingly destroys, alters, conceals, or fails to

file any record, application, manifest, report, or

other document required to be maintained or

App. 218

filed for purposes of compliance with regula-

tions promulgated by the Administrator (or by a

State in the case of an authorized State program)

under this subchapter; :

(S) knowingly transports without a mani-

fest, 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 promul-

gated 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 agree-

ment between the United States and the govern-

ment of the receiving country establishing

notice, export, and enforcement procedures for

the transportation, treatment, storage, and dis-

posal 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-

wise handles any used oil not identified or

listed as a hazardous waste under this subchap-

ter -

(A) in knowing violation of any mate-

rial condition or requirement of a permit

under this subchapter; or

(B) in knowing violation of any mate-

rial condition or requirement of any appli-

cable regulations or standards under this

chapter;

App. 219

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 convic-

tion is for a violation committed after a first conviction of

such person under this paragraph, the maximum punish-

ment under the respective paragraph shall be doubled

with respect to both fine amd imprisonment.

(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 paragraph (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 imprison-

ment for not more than fifteen years, or both. A defen-

dant that is an organization 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) of this section -

(1) A person’s state of mind is knowing with

respect to -

(A) his conduct, if he is aware of the

nature of his conduct;

App. 220

(B) an existing circumstance, if he is aware

or believes that the circumstance exists; or

or believes that his conduct is substantially cer-

tain 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

actual awareness or actual belief that he pos-

sessed; and

(B) knowledge possessed by a person

other than the defendant but not by the defen-

dant himself may not be attributed to the defen-

dant;

Provided, That in Proving the defendant's possession of

actual knowledge, circumstantial evidence may be used,

including evidence that the defendant tvok affirmative

steps to shield himself from relevant information.

(3) It is an affirmative defense to a prosecution that

the conduct charged was consented to by the person

endangered and that the danger and conduct charged

were reasonably foreseeable hazards of -

(A) an occupation, a business, or a profes-

sion; or

(B) medical treatment or medical or scien-

tific experimentation conducted by profession-

ally approved methods and such other person

had been made aware of the risks involved prior

to giving consent.

App. 221

The defendant may establish an affirmative defense

under this subsection by a preponderance of the evi-

dence.

(4) All general defenses, affirmative defenses, and

bars to prosecution that may apply with respect to other

Federal criminal offenses may apply under subsection (e)

of this section 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 applica-

ble under this section may be developed in the light of

reason 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, com-

pany, association, firm, partnership, joint stock company,

foundation, institution, trust, society, union, or any other

association of persons.

(6) The term “serious bodily injury” means -

(A) bodily injury which involves a sub-

stantial risk of death;

(B) unconsciousness;

(D) protracted and obvious disfigurement;

(E) protracted loss or impairment of the

function of a bodily member, organ, or mental

faculty.

App. 222

(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 subsection, constitute a Separate violation.

(h) Interim status corrective action

(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 operate under section 6925(e) of this

title, the Administrator may issue an order requiring

corrective action or such other response measure as he

deems necessary to protect human heal’® or the environ-

ment or the Administrator may commence a civil action

in the United States district court in the district in which

the facility is located for appropriate relief, including a

temporary or permanent injunction.

(2) Any order issued under this subsection may

include a suspension or revocation of authorization to

operate under section 6925(e) of this title, shall state with

reasonable specificity the nature of the required correc-

tive action or other response measure, and shall specify a

App. 223

time for compliance. If any person named in an order

fails to comply with the order, the Administrator may

assess, and such person shall be liable to the United

States for, a civil penalty in an amount not to exceed

$25,000 for each day of noncompliance with the order.

App. 224

Section 4005 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6945.

§ 6945. Upgrading of open dumps

(a) Closing or upgrading of existing open dumps

Upon promulgation of criteria under section

6907(a)(3) of this title, any solid waste management prac-

tice or disposal of solid waste or hazardous waste which

constitutes the open dumping of solid waste or hazard-

ous waste is prohibited, except in the case of any practice

or disposal of solid waste under a timetable or schedule

for compliance established under this section. The prohi-

bition contained in the preceding sentence shall be

enforceable under section 6972 of this title against per-

sons engaged in the act of open dumping. For purposes

of complying with section 6943(a)(2) and 6943(a)(3) of

this title, each State plan shall contain a requirement that

all existing disposal facilities or sites for solid waste in

such State which are open dumps listed in the inventory

under subsection (b) of this section shall comply with

such measures as may be promulgated by the Adminis-

trator to eliminate health hazards and minimize potential

health hazards. Each such plan shall establish, for any

entity which demonstrates that it has considered other

public or private alternatives for solid waste management

to comply with the prohibition on open dumping and is

unable to utilize such alternatives to so comply, a timeta-

ble or schedule for compliance for such practice or dis-

posal of solid waste which specifies a schedule of

remedial measures, including an enforceable sequence of

actions or operations, leading to compliance with the

App. 225

prohibition on open dumping of solid waste within a

reasonable time (not to exceed 5 years from the date of

publication of criteria under section 6907(a)(3) of this

title).

(b) Inventory

To assist the States in complying with section

6943(a)(3) of this title, not later than one year after pro-

mulgation of regulations under section 6944 of this title,

the Administrator, with the cooperation of the Bureau of

the Census shall publish an inventory of all disposal

facilities or sites in the United States which are open

dumps within the meaning of this chapter.

(1)(A) Not later than 36 months after November 8,

1984" each State shall adopt and implement a permit

program or other system of prior approval and conditions

to assure that each solid waste management facility

within such State which may receive hazardous house-

hold waste or hazardous waste due to the provision of

section 6921(d) of this title for small quantity generators

(otherwise not subject to the requirement for a permit

under section 6925 of this title) will comply with the

applicable criteria promulgated under section 6944(a) and

6907(a)(3) of this title.

(B) Not later than eighteen months after the pro-

mulgation of revised criteria under section 6944(a) of this

title (as required by section 6949a(c) of this title), each

State shall adopt, and implement a permit program or

App. 226

other system or prior approval and conditions, to assure

that each solid waste management facility within such

State which may receive hazardous household waste or

hazardous waste due to the provision of section 6921(d)

of this title for small quantity generators (otherwise not

subject to the requirement for a permit under section 6925

of this title) will comply with the criteria revised under

section 6944(a) of this title.

each State has developed an adequate program under this

paragraph. The Administrator may make such a deter-

mination in conjunction with approval, disapproval or

partial approval of a State plan under section 6947 of this

title.

(2A) In any State that the Administrator deter-

mines has not adopted an adequate program for such

facilities under paragraph (1)(B) by the date provided in

such paragraph, the Administrator may use the authori-

ties available under sections 6927 and 6928 of this title to

enforce the prohibition contained in subsection (a) of this

section with respect to such facilities.

App. 227

(B) For purposes of this paragraph, the term

“requirement of this subchapter” in section 6928 of this

title shall be deemed to include criteria promulgated by

the Administrator under sections 6907(a)(3) and 6944(a)

of this title, and the term “hazardous wastes” in section

6927 of this title shall be deemed to include solid waste at

facilities that may handle hazardous household wastes or

hazardous wastes from small quantity generators.

App. 228

Section 3010 of the Resource Conservation and Recovery

Act of 1976, 42 U.S.C. § 6930.

§ 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

transporting such substance or owning or operating a

facility for treatment, storage, or disposal of such sub-

stance 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 identi-

fied 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

App. 229

(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

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 facility, together with a description of

the identified or listed hazardous waste involved and, in

the case of facility referred to in paragraph (1) or (2), a

description of the production or energy recovery activity

carried out at the facility and such other information as

the Administrator deems necessary. For purposes of the

preceding sentence, the term “hazardous waste listed

under section 6921 of this title” also includes any com-

mercial chemical product which is listed 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) distributed 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

current practices of facilities using hazardous waste for

energy recovery. Nothing in this subsection shall be con-

Strued to affect or impair the provisions of section

6921(b)(3) of this title. Nothing in this subsection shall

affect regulatory determinations under section 6935 of

this title. In revising any regulation under section 6921 of

App. 230

this title identifying additional characteristics of hazard-

ous waste or listing any additional substance as hazard-

ous waste subject to this subchapter, the Administrator

may require any person referred to in the preceding

Provisions to file with the Administrator (or with States

having authorized hazardous waste permit programs

under section 6926 of this title) the notification described

in the preceding provisions. 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 transported,

treated, stored, or disposed of unless notification has

been given as required under this subsection.

(b) Effective date of regulation

The regulations under this subchapter respecting

requirements applicable to the generation, transportation,

treatment, storage, or disposal of hazardous waste

(including requirements respecting permits for such treat-

ment, storage, or disposal) shall take effect on the date six

months after the date of promulgation thereof (or six

months after the date of revision in the case of any

regulation which is revised after the date required for

promulgation thereof). At the time a reguiation is pro-

mulgated, the Administrator may provide for a shorter

period prior to the effective date, or an immediate effec-

tive date for:

(1) a regulation with which the Adminis.

trator finds the regulated community does not

need six months to come into compliance;

App. 231 App. 232

(2) a regulation which responds to an Section 7002 of the Resource Conservation and Recovery

emergency situation; or Act of 1976, 42 U.S.C. 6972.

(3) other good cause found and published

with the regulation.

SUBCHAPTER VII - MISCELLANEOUS PROVISIONS

§ 6972. Citizens 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 -

(1A) against any person (including (a)

the United States, and (b) any other govern-

mental instrumentality or agency, to the extent

permitted 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!

instrumentality or agency, to the extent permit-

ted by the eleventh amendment to the Constitu-

tion, and including any past or present

generator, past or present transporter, or past or

present owner or operator of a treatment, stor-

age, or disposal facility, who has contributed or

who is contributing to the past or present han-

dling, storage, treatment, transportation, or dis-

posal of any solid hazardous waste which may

present an imminent and substantial endanger-

ment to health or the environment: or

App. 233

(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 subsection shall

be brought in the district court for the district in which

the alleged violation occurred or the alleged endanger-

me *¢ 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 violation

occurred or in the District Court of the District of Colum-

bia. 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,

condition, requirement, prohibition, or order, referred to

in paragraph (1)(A), to restrain any person who has con-

tributed or who is contributing 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.

(b) Actions prohibited

(1) No action may be commenced under subsection

(a)(1)(A) of this section -

(A) prior to 60 days after the plaintiff has

given notice of the violation to -

(i) the Administrator;

App. 234

(ii) the State in which the alleged vio-

lation occurs; and

(iii) to any alleged violator of such

permit, standard, regulation, condition

requirement, 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 violation

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, requirement,

prohibition, or order.

In any action under subsection (a)(1)(A) of this section in

a court of the United States, any person may intervene as

a matter of right.

| (2A) No action may be commenced under subsec-

tion (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 endan-

germent may occur;

(iii) any person alleged to have contrib-

uted or to be contributing to the past or present

handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste

referred to in subsection (a)(1)(B) of this section,

App. 235

except that such action may be brought immediately

This text is long and has been trimmed here. Open the source document for the complete record.

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