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U.S. Code as of:
01/19/04
Section 7604. Citizen suits
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person
may commence 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 permitted by the Eleventh Amendment to the Constitution)
who is alleged to have violated (if there is evidence that the
alleged violation has been repeated) or to be in violation of (A)
an emission standard or limitation under this chapter or (B) an
order issued by the Administrator or a State with respect to such
a standard or limitation,
(2) against the Administrator where there is alleged a failure
of the Administrator to perform any act or duty under this
chapter which is not discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs
any new or modified major emitting facility without a permit
required under part C of subchapter I of this chapter (relating
to significant deterioration of air quality) or part D of
subchapter I of this chapter (relating to nonattainment) or who
is alleged to have violated (if there is evidence that the
alleged violation has been repeated) or to be in violation of any
condition of such permit.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce
such an emission standard or limitation, or such an order, or to
order the Administrator to perform such act or duty, as the case
may be, and to apply any appropriate civil penalties (except for
actions under paragraph (2)). The district courts of the United
States shall have jurisdiction to compel (consistent with paragraph
(2) of this subsection) agency action unreasonably delayed, except
that an action to compel agency action referred to in section
7607(b) of this title which is unreasonably delayed may only be
filed in a United States District Court within the circuit in which
such action would be reviewable under section 7607(b) of this
title. In any such action for unreasonable delay, notice to the
entities referred to in subsection (b)(1)(A) of this section shall
be provided 180 days before commencing such action.
(b) Notice
No action may be commenced -
(1) under subsection (a)(1) of this section -
(A) prior to 60 days after the plaintiff has given notice of
the violation (i) to the Administrator, (ii) to the State in
which the violation occurs, and (iii) to any alleged violator
of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is
diligently prosecuting a civil action in a court of the United
States or a State to require compliance with the standard,
limitation, or order, but in any such action in a court of the
United States any person may intervene as a matter of right.
(2) under subsection (a)(2) of the section prior to 60 days
after the plaintiff has given notice of such action to the
Administrator,
except that such action may be brought immediately after such
notification in the case of an action under this section respecting
a violation of section 7412(i)(3)(A) or (f)(4) of this title or an
order issued by the Administrator pursuant to section 7413(a) of
this title. Notice under this subsection shall be given in such
manner as the Administrator shall prescribe by regulation.
(c) Venue; intervention by Administrator; service of complaint;
consent judgment
(1) Any action respecting a violation by a stationary source of
an emission standard or limitation or an order respecting such
standard or limitation may be brought only in the judicial district
in which such source is located.
(2) In any action under this section, the Administrator, if not a
party, may intervene as a matter of right at any time in the
proceeding. A judgment in an action under this section to which the
United States is not a party shall not, however, have any binding
effect upon the United States.
(3) Whenever any action is brought under this section the
plaintiff shall serve a copy of the complaint on the Attorney
General of the United States and on the Administrator. No consent
judgment shall be entered in an action brought under this section
in which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent judgment by
the Attorney General and the Administrator during which time the
Government may submit its comments on the proposed consent judgment
to the court and parties or may intervene as a matter of right.
(d) Award of costs; security
The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs of
litigation (including reasonable attorney and expert witness fees)
to any 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) Nonrestriction of other rights
Nothing in this section shall restrict any right which any person
(or class of persons) may have under any statute or common law to
seek enforcement of any emission standard or limitation or to seek
any other relief (including relief against the Administrator or a
State agency). Nothing in this section or in any other law of the
United States shall be construed to prohibit, exclude, or restrict
any State, local, or interstate authority from -
(1) bringing any enforcement action or obtaining any judicial
remedy or sanction in any State or local court, or
(2) bringing any administrative enforcement action or obtaining
any administrative remedy or sanction in any State or local
administrative agency, department or instrumentality,
against the United States, any department, agency, or
instrumentality thereof, or any officer, agent, or employee thereof
under State or local law respecting control and abatement of air
pollution. For provisions requiring compliance by the United
States, departments, agencies, instrumentalities, officers, agents,
and employees in the same manner as nongovernmental entities, see
section 7418 of this title.
(f) "Emission standard or limitation under this chapter" defined
For purposes of this section, the term "emission standard or
limitation under this chapter" means -
(1) a schedule or timetable of compliance, emission limitation,
standard of performance or emission standard,
(2) a control or prohibition respecting a motor vehicle fuel or
fuel additive, or )1(!
(3) any condition or requirement of a permit under part C of
subchapter I of this chapter (relating to significant
deterioration of air quality) or part D of subchapter I of this
chapter (relating to nonattainment),,)2(! section 7419 of this
title (relating to primary nonferrous smelter orders), any
condition or requirement under an applicable implementation plan
relating to transportation control measures, air quality
maintenance plans, vehicle inspection and maintenance programs or
vapor recovery requirements, section 7545(e) and (f) of this
title (relating to fuels and fuel additives), section 7491 of
this title (relating to visibility protection), any condition or
requirement under subchapter VI of this chapter (relating to
ozone protection), or any requirement under section 7411 or 7412
of this title (without regard to whether such requirement is
expressed as an emission standard or otherwise); )3(! or
(4) any other standard, limitation, or schedule established
under any permit issued pursuant to subchapter V of this chapter
or under any applicable State implementation plan approved by the
Administrator, any permit term or condition, and any requirement
to obtain a permit as a condition of operations.)4(!
which is in effect under this chapter (including a requirement
applicable by reason of section 7418 of this title) or under an
applicable implementation plan.
(g) Penalty fund
(1) Penalties received under subsection (a) of this section shall
be deposited in a special fund in the United States Treasury for
licensing and other services. Amounts in such fund are authorized
to be appropriated and shall remain available until expended, for
use by the Administrator to finance air compliance and enforcement
activities. The Administrator shall annually report to the Congress
about the sums deposited into the fund, the sources thereof, and
the actual and proposed uses thereof.
(2) Notwithstanding paragraph (1) the court in any action under
this subsection to apply civil penalties shall have discretion to
order that such civil penalties, in lieu of being deposited in the
fund referred to in paragraph (1), be used in beneficial mitigation
projects which are consistent with this chapter and enhance the
public health or the environment. The court shall obtain the view
of the Administrator in exercising such discretion and selecting
any such projects. The amount of any such payment in any such
action shall not exceed $100,000.
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