To amend the Federal Water Pollution Control Act to limit citizens suits against publicly owned treatment works, to provide for defenses, to extend the period of a permit, to limit attorneys fees, and for other purposes.

H.R. 202 · 113th Congress · Jan 4, 2013 · Lineage

A BILL

Section 1 Limitation on citizen suit provision

Section 505 of the Federal Water Pollution Control Act (33 U.S.C. 1365) is amended—

(1)

in subsection (a) by striking “subsection (b)” and inserting “subsections (b) and (i)”; and

(2)

by adding at the end the following:

“(i) Limitation for POTW suits

“(1) In general—No action may be commenced under subsection (a)(1) by a citizen with respect to a publicly owned treatment works to enforce an effluent standard or limitation under this Act or an order issued by the Administrator or a State with respect to such a standard or limitation unless the publicly owned treatment works is in significant non-compliance, as defined in the Environmental Protection Agency’s December 12, 1996, guidance document entitled “A General Design for SNC Redefinition Enhancement in PCS”.

“(2) Exception—Notwithstanding paragraph (1), no action may be commenced under subsection (a)(1) with respect to a publicly owned treatment works that is in significant non-compliance based on a manual designation, as defined in the Environmental Protection Agency’s December 12, 1996, guidance document entitled ‘A General Design for SNC Redefinition Enhancement in PCS’.”

Sec. 2 Affirmative defenses

Section 309 of the Federal Water Pollution Control Act (33 U.S.C. 1319) is amended by adding at the end the following:

“(h) Affirmative defenses

“(1) In general—There shall be no liability under this Act for a person otherwise liable for the unlawful discharge of a pollutant from a publicly owned treatment works who can establish by a preponderance of the evidence that the immediate cause of the unlawful discharge and any damages was—

“(A) an act of God;

“(B) an act of war;

“(C) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant, if the defendant establishes by a preponderance of the evidence that—

“(i) he exercised due care in light of all relevant facts and circumstances; and

“(ii) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or

“(D) any combination of the foregoing subparagraphs.

“(2) Additional defenses—All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply under this Act 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 applicable under this section may be developed in the light of reason and experience.”

Sec. 3 Waiting period

In implementing the Federal Water Pollution Control Act, the Administrator of the Environmental Protection Agency or a State, as the case may be, shall provide a 60-day waiting period between the notice of a violation of the Act by a publicly owned treatment works and the issuance of a civil penalty. If within such 60-day period the publicly owned treatment works submits a viable plan for correcting the non-compliance that is the subject of the notice and thereafter diligently implements such plan, the Administrator shall not assess a civil penalty for the notice of violation.

Sec. 4 Permit length

(a)

In general— Notwithstanding any other law, any permit issued to the owner or operator of a publicly owned treatment works by the Administrator of the Environmental Protection Agency or a State, as the case may be, to discharge a pollutant under the Federal Water Pollution Control Act shall have a 15-year term.

(b)

Conforming amendment— Section 402(b)(1)(B) of the Federal Water Pollution Control Act is amended by striking “five years” and inserting “5 years, or, in the case of a publicly owned treatment works, 15 years”.

Sec. 5 Attorney’s fees

Section 505(d) of the Federal Water Pollution Control Act (33 U.S.C. 1365(d)) is amended by inserting after the first sentence the following: “With respect to an action involving a publicly owned treatment works, the court, in determining whether the costs of litigation (including attorney and expert witness fees) are reasonable, shall consider the prevailing rate of such fees in the community where the publicly owned treatment works is located.”.

Sec. 6 Cost benefit analysis

Notwithstanding any other law, any new or increased treatment requirement associated with a permit issued to the owner or operator of a publicly owned treatment works by the Administrator of the Environmental Protection Agency or a State, as the case may be, to discharge a pollutant under the Federal Water Pollution Control Act shall be subject to a cost-benefit analysis performed by the Administrator or the State to ensure that the costs imposed on such owner or operator to comply with such new or increased requirement are outweighed by the benefit to the public of the new or increased requirement.