HR 892 — To amend the Federal Water Pollution Control Act to limit attorney fees and penalties in citizen suits, and for other purposes.

Summary

This bill revises requirements for citizen enforcement suits brought under the Clean Water Act. Specifically, the bill limits the amount that may be awarded for the costs of litigation in citizen suits. An award of litigation costs may not exceed (1) an amount that is proportional to the number of successful claims included in the complaint, or (2) the amount of monetary penalties. The award of litigation costs must be based on the prevailing rates in the local market area where the violation occurred for the kind and quality of the services furnished. Citizen suits may not be commenced if the Environmental Protection Agency or a state has commenced and is diligently prosecuting a civil or criminal action through the issuance of a compliance order. The bill provides for certain affirmative defenses for a person who may be liable for the unlawful discharge of a pollutant.

Bill Text

• Introduced Introduced in House Current html January 30, 2019

Compared against current U.S. Code AI-generated reading aid — verify against the official bill.

The bill modifies existing procedural and liability provisions related to citizen suits under the Federal Water Pollution Control Act.

• 33 U.S.C. 1365(d)

  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 witness 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. → "(d) Awards.--\n"(1) The court, in issuing any final order in any action brought under this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The award--\n"(A) may not exceed an amount that, as compared to the total amount of attorney and expert witness fees charged, bears the same proportion as the number of successful claims included in the complaint bears to the total number of claims included in the complaint;\n"(B) may not exceed the amount of monetary penalties awarded; and\n"(C) shall be based upon the prevailing market rates in the area in which the violation occurred for the kind and quality of the services furnished.\n"(2) 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.

  The change limits the court's authority to award attorney fees by linking them to the proportion of successful claims and the amount of any monetary penalties awarded.

• 33 U.S.C. 1319(g)(6)

  "(C) Diligent prosecution.--\n"(i) Diligently prosecuting defined.--In this paragraph, the term `diligently prosecuting' includes the issuance of any order made under this section or a State law comparable to this section.\n"(ii) Commencement of diligent prosecution.--Diligent prosecution commences on the date the proposed order is issued.\n"(iii) Issuance of final order.--The Administrator or the Secretary shall be considered to be diligently prosecuting an action under this subsection if the Administrator or the Secretary issues a final order before the date that is one year after the date on which such proposed order is issued.

  This amendment clarifies what constitutes 'diligent prosecution' and sets a timeline for actions related to compliance orders.

• 33 U.S.C. 1319

  "(h) Affirmative Defenses.--\n"(1) In general.--There shall be no liability under this Act for a person otherwise liable for the unlawful discharge of a pollutant who can establish by a preponderance of the evidence that the immediate cause of the unlawful discharge and any damages was--\n"(A) an act of God;\n"(B) an act of war;\n"(C) an act or omission of a third party (unless such third party is an employee or agent of such person, or such third party's act or omission occurred in connection with a contractual relationship, existing directly or indirectly, with such person), if such person establishes by a preponderance of the evidence that such person--\n"(i) exercised due care in light of all relevant facts and circumstances; and\n"(ii) 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\n"(D) any combination of subparagraphs (A), (B), and (C).\n"(2) Other affirmative defenses.--All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply to a person otherwise liable for the unlawful discharge of a pollutant under this Act and shall be determined by the courts of the United States according to the principles of common law as may be interpreted in light of reason and experience.

  This new subsection creates specific affirmative defenses for defendants in pollution cases, potentially reducing liability under certain circumstances.

Action History

1. February 07, 2019

   Referred to the Subcommittee on Water Resources and Environment.

2. January 30, 2019

   Introduced in House

3. January 30, 2019

   Introduced in House

4. January 30, 2019

   Referred to the House Committee on Transportation and Infrastructure.

Sponsors

• Duncan D. Hunter · Primary
• Tom McClintock · Cosponsor

Subjects