6338
NOV 81990
CLEAN AIR ACT AMENDMENTS OP 1990
TITLE VII
PROVISIONS RELATING TO ENFORCEMENT
Section 701
Generally, Section 701 consists of a complete replacement
for Section 113 of the Act, which contains most of the federal
enforcement provisions for stationary sources. Highlighted below
are the subjects in Section 701 which make changes to Section
113.
Subject: Modification of 30-day notice of violation for state
implementation plan enforcement.
Amends Subsection 113(a)(1) so that the notification requirement
remains, but with no requirement that +he violation last for more
.•chan one day. Cross-references the statute of limitations at 28
U.S.C. 2462.
Amends Subsection 113(b)(l) to clarify and confirm that a source
is liable for penalties for all violations of a SIP, including
violations which pre-date the notice of violation.
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Subject: Permit program requirements.
i
Amends Subsection 113(a)(2) (public notice and federal
enforcement for state failure to enforce SIP) to include state
failure to implement permit program. Notice required for state's
failure to implement pcimit program must be in accordance with
Title V (relating to p aits) and federally assumed enforcement
of state permit program may not begin until 90 days after notice
(versus 30 days for SIP violations).
Subject: Ensuring full enforceability.
Amends Subsections 113(a)(3), (b)(2), (c)(l), (c)(3), and adds
new Subsection (d)(1)(B) to expand cross references, thus
ensuring enforceability by administrative, civil judicial, and
criminal sanctions for violations of the Act's requirements.
Subject: Expanded administrative compliance order authority.
Amends Subsection 113(a)(4) to authorize EPA to issue
administrative orders lasting up to one year. Except for Section
112 (NESHAP) violations, such orders are not effective until the
person to whom it is issued has an opportunity to confer. EPA
retains authority to proceed under other provisions of the Act.
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Subjects Criminal notice, reporting and recordkeeping
violations.
Amends Subsection 113(c)(2) (dealing with knowing violations of
reporting requirements, false material statements, and
falsification or tampering with devices) to add as criminal
conduct: Knowing omissions of material information; knowing
failures to notify or report as required; knowing alteration,
concealment; or failure to file or maintain documents required by
the Act; and knowing failure to install required monitoring
devices.
Increases punishment under Subsection 113(c)(2) from a
misdemeanor to two years imprisonment and/or a fine. By cross-
referencing 18 J.S.C., the maximum fine is increased to $250,000
for individuals and $500,000 for organizations.
Subject: Criminal fee violations.
Adds new Subsection 113(c)(3) which makes it a misdemeanor to
knowingly fail to pay any fee owed the United States under Titles
III through VI punishable by a fine and/or one year imprisonment.
Note that new Subsection 113(c)(l) makes it a felony to knowingly
fail to pay any fee owing to the United States under the Act
(except Title II) punishable by a fine and/or five years
imprisonment. '- '
Subject: Criminal negligent endangers' lit.
Adds new Subsection 113(c)(4) which creates a misdemeanor offense
punishable by a fine and/or one year imprisonment for anyone who
negligently releases into the ambient air a hazardous air
pollutant under Section 112 of the Act or an extremely hazardous
substance listed under 42 U.S.C. 11002(a)(2) and negligently
places another in imminent danger of death or serious bodily
injury.
Establishes an affirmative defense if the conduct charged was
freely consented to by the person endangered or if the conduct
charged was in compliance with an emissions standard in a permit
issued under Title V or with a federal emissions standard under
the Act.
Subject: Criminal knowing endangerment.
Adds new Subsection 113(c)(5) which creates a felony offense
punishable by a fine and/or 15 years imprisonment for anyone who
knowingly releases into the ambient air hazardous air pollutants
listed under Section 112 of the Act or an extremely hazardous
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reporting and recordfceeping violations). Field citation
penalties nay be issued by "officers or employees designated by
the Administrator" and nay not exceed $5,000 "per day of
violation."
Implementation is contingent on the promulgation of regulations,
developed in consulation with the Attorney General, specifying
categories of violations, penalty schedules, and informal hearing
procedures.
Payment of a field citation penalty shall not be a defense to
further enforcement or penalty liability if the violation
continues.
Subjects Administrative penalty authority — opportunity for
judicial review.
New Subsection H3(d)(4) permits review in an appropriate U.S.
district court for administrative penalties imposed by issuance
of a penalty order (Subsection 113(d)(l)) or field citation
(Subsection 113(d)(3)). Requires all review be sought within 30
days after the penalty order or citation assessment becomes
final.
Judicial review of penalty orders and field citations will be
review of evidence "in the record" (not de novol. No other
judicial review of penalty orders or field citations is allowed.
Subject: Administrative penalty authority — enforcement.
New Subsection 113(d)(5) makes administrative penalty assessments
and final orders enforceable by suit brought by the Attorney
General in the appropriate U.S. District Court. Expressly
precludes judicial review of the validity, amount, and
appropriateness of such assessments or orders.
Provides for 10 percent quarterly non-payment penalties and
recovery of enforcement expenses.
Subject! Current Subsection 113(d).
Deletes this Subsection, which allowed states and EPA to grant
delayed compliance orderc of SIP requirements past the attainment
deadlines.
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criminal conviction or judicial or administrative civil penalty
for violations of the Act.
Not eligible for any award is any officer or employee of the U.S.
or any state or local government vho supplies information in the
performance of an official duty.
Subject! Public participation in settlements.
New Subsection 113(g) requires the EPA Administrator to provide
30 days notice in the Federal Register and an opportunity for
nonparties to comment before a consent order or settlement (other
than enforcement actions under Sections 113, 120, or Title II, or
judgments subject to DOJ policy on public participation) becomes
final or is filed with a court. Requires the /.'dministrator or
Attorney General, as appropriate, to consider any comments.
Subject: Definition of "person" for criminal enforcement.
Except for knowing and willful violations, a new Subsection
113(h) restricts the definition of "person" for negligent
endangerment cases (Subsection 113(c)(4)) to exclude an employee
carrying out his "normal activities" and who is not "senior
management personnel or corporate officers."
Again except for knowing and willful violations, Subsection
113(h) restricts the definition of "person" for other offenses
under Subsection 113(c) to exclude an employee carrying out his
"normal activities and who is acting under orders from the
employer."
Subject: Definition of "operator" for Sections 113 and 120.
New Subsection 113(h) defines "operator" for purposes of sections
113 and '120 to include senior management personnel or a corporate
officer. Except for knowing and willful violations, "operator"
excludes a "stationary engineer [sic] or technician responsible
for the maintenance, repair, or monitoring of equipment and
facilities."
Section 702
Subject! Compliance certification.
Amends Subsection 114(a) to clarify and confirm that EPA has the
authority to require enhanced monitoring and submission of
compliance certifications and that EPA can require such
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New Subsection 113(c)(l) makes knowing violation of an emergency
order a felony punishable by a fine and five years imprisonment.
Section 705
Subject: Contractor listings.
Amends Subsection 306(a) (which authorizes EPA Administrator to
exclude convicted persons from Federal contracts, grants, or
loans) by giving the Administrator discretion to also exclude
•other facilities owned or operated by the convicted person."
Subject: Types of criminal convictions giving rise to listing'.
Amends Subsection 306(a) to expand the mandatory listing
requirement to persons convicted under any provision of
Subsection 113(c); previously limited to conviction under
Subsection 113(c)(l).
Section 706
Subject: Judicial review pending reconsideration of regulation.
Amends Subsection 307(b) to clarify and confirm that a petition
for agency reconsideration does not render agency action non-
final for purposes of judicial review and does not toll the 60-
day time period for seeking judicial review.
Section 707
Subject: Citizen-suit civil penalties.
Amends Subsection 304(a) to authorize courts to assess civil
penalties in citizen suits and to allow suits for past violations
if there evidence that the alleged violation has been repeated.
The second amendment takes effect two years after enactment. v
Subject: Citizen-suit penalty fund.
New Subsection 304(g)(l) creates a special fund in the U.S.
Treasury into which citizen-suit penalties would be deposited.
The fund is authorized to be appropriated for use by the
Administrator in air compliance and enforcement activities.
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^eetion 708
Subjects Enhanced implementation and enforcement of new source
review requirements.
Amends Section 167 to clarify and confirm that the "modification"
as veil as the construction of major sources not meeting new
source review may be prohibited.
Section 709
Subject: Movable stationary sources.
New Subsection 302(z) defines "stationary source" to include any
source of air pollution except emissions resulting directly from
an internal combustion engine for transportation purposes or from
a nonroad engine or nonroad vehicle as defined in Section 216.
This clarifies that emissions from movable stationary sources are
subject to the Act's stationary source requirements.
Section 710
Subject: Section 120 enforcement of new Titles of the Act.
Amends parts of Section 120 (which requires recovery of economic
benefit of noncompliance) to cover violations of Sections 167 and
303 anc ritles IV, V, or VI.
Section 711
Subject: Savings provision and effective dates.
Preserves enforcement actions begun prior to enactment and
generally xnaXes the changes to the Act prospective.
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