§6972 — Title 42 The Public Health and Welfare | U.S. Code

Summary

Anyone can file a federal lawsuit to stop people or companies who break waste permits or rules, or to stop handling or dumping of solid or hazardous waste that could seriously harm health or the environment. People can also sue if the EPA Administrator fails to do a non-discretionary duty required by the law. For permit violations, the person must wait 60 days after telling the EPA, the state where the problem is, and the alleged violator. For dangers from waste, the person must wait 90 days after telling the EPA, the state, and the people who may have caused the problem. Suits are blocked if the EPA or the state is already actively and diligently enforcing or cleaning up under certain federal cleanup laws. Private citizens (not states or local governments) generally cannot use this rule to challenge where a hazardous waste facility is sited or to stop a permit from being issued. When suing over danger from waste, the plaintiff must send a copy of the complaint to the U.S. Attorney General and the EPA Administrator. Courts can let the winning or mostly winning side recover litigation costs and attorney or expert fees. A transporter is not treated as responsible for waste after it leaves their control if the shipment was under a single contract using a published tariff, was accepted by a common carrier by rail, and the transporter used due care.

Title 42, §6972

The Public Health and Welfare — Source: USLM XML via OLRC

(a)Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf—

(1)(A)against any person (including (a) the United States, and (b) any other governmental 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 permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment; or

(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.

(b)(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;

(ii)the State in which the alleged violation occurs; and

(iii)to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order,

(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 compliance with such permit, standard, regulation, condition, requirement, prohibition, or order.

(2)(A)No action may be commenced under subsection (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 endangerment may occur;

(iii)any person alleged to have contributed 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),

(B)No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment—

(i)has commenced and is diligently prosecuting an action under section 6973 of this title or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9606],11 So in original. The comma probably should be a semicolon.

(ii)is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604];

(iii)has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604] and is diligently proceeding with a remedial action under that Act [42 U.S.C. 9601 et seq.]; or

(iv)has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 980 22 So in original. Probably should be “1980”. [42 U.S.C. 9606] or section 6973 of this title pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action.

(C)No action may be commenced under subsection (a)(1)(B) of this section if the State, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment—

(i)has commenced and is diligently prosecuting an action under subsection (a)(1)(B);

(ii)is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. 9604]; or

(D)No action may be commenced under subsection (a)(1)(B) by any person (other than a State or local government) with respect to the siting of a hazardous waste treatment, storage, or a disposal facility, nor to restrain or enjoin the issuance of a permit for such facility.

(E)In any action under subsection (a)(1)(B) in a court of the United States, any person may intervene as a matter of right when the applicant claims an interest relating to the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the Administrator or the State shows that the applicant’s interest is adequately represented by existing parties.

(F)Whenever any action is brought under subsection (a)(1)(B) in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and with the Administrator.

(c)No action may be commenced under paragraph (a)(2) of this section prior to sixty days after the plaintiff has given notice to the Administrator that he will commence such action, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. Any action respecting a violation under this chapter may be brought under this section only in the judicial district in which such alleged violation occurs.

(d)In any action under this section the Administrator, if not a party, may intervene as a matter of right.

(e)The court, in issuing any final order in any action brought pursuant to this section or section 6976 of this title, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an 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.

(f)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 standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency).

(g)A transporter shall not be deemed to have contributed or to be contributing to the handling, storage, treatment, or disposal, referred to in subsection (a)(1)(B) taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste.

Notes & Related Subsidiaries

Editorial Notes

References in Text

That Act, referred to in subsec. (b)(2)(B)(iii), (C)(iii), means Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is classified principally to chapter 103 (§ 9601 et seq.) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 9601 of this title and Tables. The Federal Rules of Civil Procedure, referred to in subsec. (e), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Amendments

1984—Subsec. (a). Pub. L. 98–616, § 401(a), (b), designated existing provisions of subsec. (a)(1) as subpar. (A) thereof, inserted “prohibition,” after “requirement,”, added subpar. (B), and in provisions following par. (2) inserted “or the alleged endangerment may occur” in first sentence and substituted “to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed 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” for “to enforce such regulation or order, or to order the Administrator to perform such act or duty as the case may be”. Subsec. (b). Pub. L. 98–616, § 401(d), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “No action may be commenced under paragraph (a)(1) of this section— “(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, standard, regulation, condition, requirement, or order; or “(2) 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 compliance with such permit, standard, regulation, condition, requirement, or order: Provided, however, That in any such action in a court of the United States, any person may intervene as a matter of right.” Subsec. (e). Pub. L. 98–616, § 401(e), substituted “to the prevailing or substantially prevailing party” for “to any party” and inserted “or section 6976 of this title”. Subsec. (g). Pub. L. 98–616, § 401(c), added subsec. (g). 1978—Subsec. (c). Pub. L. 95–609, § 7(p)(1), substituted “subchapter III” for “section 212 of this Act.” Subsec. (e). Pub. L. 95–609, § 7(p)(2), substituted “require” for “requiring”.

Executive Documents

Transfer of Functions

For transfer of certain

Enforcement

functions of Administrator or other official of Environmental Protection Agency under this chapter to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see note set out under section 6903 of this title.

§6972 Citizen suits