Ocean dumping of sewage sludge and industrial waste

33 U.S.C. § 1414b

• Title: 33 — Navigation and Navigable Waters
• Chapter: SUBCHAPTER I—REGULATION

Text

(a) Termination of dumping
Notwithstanding any other provision of law—
(A) on and after the 270th day after November 18, 1988, no person (including a person described in section 1414a(a)(1)(C) of this title) shall dump into ocean waters, or transport for the purpose of dumping into ocean waters, sewage sludge or industrial waste, unless such person—
(i) has entered into a compliance agreement or enforcement agreement which meets the requirements of subsection (c)(2) or (3), as applicable; and
(ii) has obtained a permit issued under section 1412 of this title which authorizes such transportation and dumping; and
(B) after December 31, 1991, it shall be unlawful for any person to dump into ocean waters, or to transport for the purposes of dumping into ocean waters, sewage sludge or industrial waste.
The Administrator shall not issue any permit under this Act which authorizes a person to dump into ocean waters, or to transport for the purposes of dumping into ocean waters, sewage sludge or industrial waste, unless that person was authorized by a permit issued under section 1412 of this title or by a court order to dump into ocean waters, or to transport for the purpose of dumping into ocean waters, sewage sludge or industrial waste on September 1, 1988.
(b) Special dumping fees
Subject to paragraph (4), any person who dumps into ocean waters, or transports for the purpose of dumping into ocean waters, sewage sludge or industrial waste shall be liable for a fee equal to—
(A) $100 for each dry ton (or equivalent) of sewage sludge or industrial waste transported or dumped by the person on or after the 270th day after November 18, 1988, and before January 1, 1990;
(B) $150 for each dry ton (or equivalent) of sewage sludge or industrial waste transported or dumped by the person on or after January 1, 1990, and before January 1, 1991; and
(C) $200 for each dry ton (or equivalent) of sewage sludge or industrial waste transported or dumped by the person on or after January 1, 1991, and before January 1, 1992.
Of the amount of fees under paragraph (1) for which a person is liable, such person—
(A) shall pay into a trust account established by the person in accordance with subsection (e) a sum equal to 85 percent of such amount;
(B) shall pay to the Administrator a sum equal to $15 per dry ton (or equivalent) of sewage sludge and industrial waste transported or dumped by such person, for use for agency activities as provided in subsection (f)(1);
(C) subject to paragraph (5), shall pay into the Clean Oceans Fund established by the State in which the person is located a sum equal to 50 percent of the balance of such amount after application of subparagraphs (A) and (B); and
(D) subject to paragraph (5), shall pay to the State in which the person is located a sum equal to the balance of such amount after application of subparagraphs (A), (B), and (C), for deposit into the water pollution control revolving fund established by the State under title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.], as provided in subsection (f)(2).
Fees under this subsection shall be paid on a quarterly basis.
(A) The Administrator shall waive all fees under this subsection, other than the portion of fees required to be paid to the Administrator under paragraph (2)(B) for agency activities, for any person who has entered into a compliance agreement which meets the requirements of subsection (c)(2).
(B) The Administrator shall reimpose fees under this subsection for a person for whom such fees are waived under subparagraph (A) if the Administrator determines that—
(i) the person has failed to comply with the terms of a compliance agreement which the person entered into under subsection (c)(2); and
(ii) such failure is likely to result in the person not being able to terminate by December 31, 1991, dumping of sewage sludge or industrial waste into ocean waters.
(C) The Administrator may waive fees reimposed for a person under subparagraph (B) if the Administrator determines that the person has returned to compliance with a compliance agreement which the person entered into under subsection (c)(2).
(A) In any case in which a State has not established a Clean Oceans Fund or a water pollution control revolving fund under title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.], fees required to be paid by a person in that State under paragraph (2)(C) or (D), as applicable, shall be paid to the Administrator.
(B) Amounts paid to the Administrator pursuant to this paragraph shall be held by the Administrator in escrow until the establishment of the fund into which such amounts are required to be paid under paragraph (2), or until the last day of the 1-year period beginning on the date of such payment, whichever is earlier, and thereafter—
(i) if such fund has been established, shall be paid by the Administrator into the fund; or
(ii) if such fund has not been established, shall revert to the general fund of the Treasury.
(c) Compliance agreements and enforcement agreements
As a condition of issuing a permit under section 1412 of this title which authorizes a person to transport or dump sewage sludge or industrial waste, the Administrator shall require that, before the issuance of such permit, the person and the State in which the person is located enter into with the Administrator—
(A) a compliance agreement which meets the requirements of paragraph (2); or
(B) an enforcement agreement which meets the requirements of paragraph (3).
An agreement shall be a compliance agreement for purposes of this section only if—
(A) it includes a plan negotiated by the person, the State in which the person is located, and the Administrator that will, in the opinion of the Administrator, if adhered to by the person in good faith, result in the phasing out and termination of ocean dumping, and transportation for the purpose of ocean dumping, of sewage sludge and industrial waste by such person by not later than December 31, 1991, through the design, construction, and full implementation of an alternative system for the management of sewage sludge and industrial waste transported or dumped by the person;
(B) it includes a schedule which—
(i) in the opinion of the Administrator, specifies reasonable dates by which the person shall complete the various activities that are necessary for the timely implementation of the alternative system referred to in subparagraph (A); and
(ii) meets the requirements of paragraph (4);
(C) it requires the person to notify in a timely manner the Administrator and the Governor of the State of any problems the person has in complying with the schedule referred to in subparagraph (B);
(D) it requires the Administrator and the Governor of the State to evaluate on an ongoing basis the compliance of the person with the schedule referred to in subparagraph (B);
(E) it requires the person to pay in accordance with this section all fees and penalties the person is liable for under this section; and
(F) it authorizes the person to use interim measures before completion of the alternative system referred to in subparagraph (A).
An agreement shall be an enforcement agreement for purposes of this section only if—
(A) it includes a plan negotiated by the person, the State in which the person is located, and the Administrator that will, in the opinion of the Administrator, if adhered to by the person in good faith, result in the phasing out and termination of ocean dumping, and transportation for the purpose of ocean dumping, of sewage sludge and industrial waste by such person through the design, construction, and full implementation of an alternative system for the management of sewage sludge and industrial waste transported or dumped by the person;
(B) it includes a schedule which—
(i) in the opinion of the Administrator, specifies reasonable dates by which the person shall complete the various activities that are necessary for the timely implementation of the alternative system referred to in subparagraph (A); and
(ii) meets the requirements of paragraph (4);
(C) it requires the person to notify in a timely manner the Administrator and the Governor of the State of any problems the person has in complying with the schedule referred to in subparagraph (B);
(D) it requires the Administrator and the Governor of the State to evaluate on an ongoing basis the compliance of the person with the schedule referred to in subparagraph (B);
(E) it requires the person to pay in accordance with this section all fees and penalties the person is liable for under this section; and
(F) it authorizes the person to use interim measures before completion of the alternative system referred to in subparagraph (A).
A schedule included in a compliance agreement pursuant to paragraph (2)(B) or an enforcement agreement pursuant to paragraph (3)(B) shall establish deadlines for—
(A) preparation of engineering designs and related specifications for the alternative system referred to in paragraph (2)(A) or paragraph (3)(A), as applicable;
(B) compliance with appropriate Federal, State, and local statutes, regulations, and ordinances;
(C) site and equipment acquisitions for such alternative system;
(D) construction and testing of such alternative system;
(E) operation of such alternative system at full capacity; and
(F) any other activities, including interim measures, that the Administrator considers necessary or appropriate.
(A) Each State that is a party to a compliance agreement or an enforcement agreement under this subsection shall establish an interest bearing account, to be known as a Clean Oceans Fund, into which a person shall pay fees and penalties in accordance with subsections (b)(2)(C) and (d)(2)(C)(i), respectively.
(B) A State which establishes a Clean Oceans Fund pursuant to this paragraph shall allocate and pay from the fund each year, to each person in the State which has entered into a compliance agreement or enforcement agreement under this subsection, a portion of amounts in the fund on the last day of that year which is equal to the sum of—
(i) amounts paid by the person into the fund in that year as fees pursuant to subsection (b)(2)(C) and as penalties pursuant to subsection (d)(2)(C)(i);
(ii) amounts paid by the Administrator into the fund in that year as fees held in escrow for the person pursuant to subsection (b)(5)(B); and
(iii) interest on such amounts.
(C) Amounts allocated and paid to a person pursuant to subparagraph (B)—
(i) shall be used for the purposes described in subsection (e)(2)(B); and
(ii) may be used for matching Federal grants.
(D) A Clean Oceans Fund established by a State pursuant to this paragraph shall be subject to such accounting, reporting, and other requirements as may be established by the Administrator to assure accountability of payments into and out of the fund.
The Administrator shall provide an opportunity for public comment regarding the establishment and implementation of compliance agreements and enforcement agreements entered into pursuant to this section.
(d) Penalties
In lieu of any other civil penalty under this Act, any person who has entered into a compliance agreement or enforcement agreement under subsection (c) and who dumps or transports sewage sludge or industrial waste in violation of subsection (a)(1)(B) shall be liable for a civil penalty, to be assessed by the Administrator, as follows:
(A) For each dry ton (or equivalent) of sewage sludge or industrial waste dumped or transported by the person in violation of this subsection in calendar year 1992, $600.
(B) For each dry ton (or equivalent) of sewage sludge or industrial waste dumped or transported by the person in violation of this subsection in any year after calendar year 1992, a sum equal to—
(i) the amount of penalty per dry ton (or equivalent) for a violation occurring in the preceding calendar year, plus
(ii) a percentage of such amount equal to 10 percent of such amount, plus an additional 1 percent of such amount for each full calendar year since December 31, 1991.
Of the amount of penalties under paragraph (1) for which a person is liable, such person—
(A) shall pay into a trust account established by the person in accordance with subsection (e) a sum which is a percentage of such amount equal to—
(i) 90 percent of such amount, reduced by
(ii) 5 percent of such amount for each full calendar year since December 31, 1991;
(B) shall pay to the Administrator a sum equal to $15 per dry ton (or equivalent) of sewage sludge and industrial waste transported or dumped by such person in that year, for use for agency activities as provided in subsection (f)(1);
(C) for violations in any year before calendar year 1995—
(i) subject to paragraph (4), shall pay into the Clean Oceans Fund established by the State in which the person is located a sum equal to 50 percent of the balance of such amount; and
(ii) subject to paragraph (4), shall pay to the State in which the person is located a sum equal to the portion of such amount which is not paid as provided in subparagraphs (A), (B), and (C), for deposit into the water pollution control revolving fund established by the State under title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.], as provided in subsection (f)(2); and
(D) for violations in any year after calendar year 1994, shall pay to the State in which the person is located a sum equal to the balance of such amount, for use by the State for providing assistance under subsection (f)(3).
Penalties under this subsection shall be paid on a quarterly basis.
In any case in which a State has not established a Clean Oceans Fund or a water pollution control revolving fund under title VI of the Federal Water Pollution Control Act, penalties required to be paid by a person in that State under paragraph (2)(C)(i) or (ii), as applicable, shall be paid to the Administrator for holding and payment or reversion, as applicable, in the same manner as fees are held and paid or revert under subsection (b)(5).
(e) Trust account
A person who enters into a compliance agreement or an enforcement agreement under subsection (c) shall establish a trust account for the payment and use of fees and penalties under this section.
An account shall be a trust account for purposes of this subsection only if it meets, to the satisfaction of the Administrator, the following requirements:
(A) Amounts in the account may be used only with the concurrence of the person who establishes the account and the Administrator; except that the person may use amounts in the account for a purpose authorized by subparagraph (B) after 60 days after notification of the Administrator if the Administrator does not disapprove such use before the end of such 60-day period.
(B) Amounts in the account may be used only for projects which will identify, develop, and implement—
(i) an alternative system, and any interim measures, for the management of sewage sludge and industrial waste, including but not limited to any such system or measures utilizing resource recovery, recycling, thermal reduction, or composting techniques; or
(ii) improvements in pretreatment, treatment, and storage techniques for sewage sludge and industrial waste to facilitate the implementation of such alternative system or interim measures.
(C) Upon a finding by the Administrator that a person did not pay fees or penalties into an account as required by this section, or did not use amounts in the account in accordance with this subsection, the balance of the amounts in the account shall be paid to the State in which the person is located, for deposit into the water pollution control revolving fund established by the State under title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.], as provided in subsection (f)(2).
Upon a determination by the Administrator that a person has terminated ocean dumping of sewage sludge or industrial waste, the balance of amounts in an account established by the person under this subsection shall be paid to the person for use—
(A) for debts incurred by the person in complying with this Act or the Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.];
(B) in meeting the requirements of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) which apply to the person, including operations and maintenance; and
(C) for matching Federal grants.
Amounts in a trust account under this subsection may be used for matching Federal grants.
(f) Use of fees and penalties
Of the total amount of fees and penalties paid to the Administrator in a fiscal year pursuant to subsections (b)(2)(B) and (d)(2)(B), respectively—
(A) not to exceed one-third of such total amount shall be used by the Administrator for—
(i) costs incurred or expected to be incurred in undertaking activities directly associated with the issuance under this Act of permits for the transportation or dumping of sewage sludge and industrial waste, including the costs of any environmental assessment of the direct effects of dumping under the permits;
(ii) preparation of reports under subsection (i); and
(iii) such other research, studies, and projects the Administrator considers necessary for, and consistent with, the development and implementation of alternative systems for the management of sewage sludge and industrial waste;
(B) not to exceed one-third of such total amount shall be transferred to the Secretary of the department in which the Coast Guard is operating for use for—
(i) Coast Guard surveillance of transportation and dumping of sewage sludge and industrial waste subject to this Act; and
(ii) such enforcement activities conducted by the Coast Guard with respect to such transportation and dumping as may be necessary to ensure to the maximum extent practicable complete compliance with the requirements of this Act; and
(C) not to exceed one-third of such total amount shall be transferred to the Under Secretary of Commerce for Oceans and Atmosphere for use for—
(i) monitoring, research, and related activities consistent with the program developed pursuant to subsection (j)(1); and
(ii) preparing annual reports to the Congress pursuant to subsection (j)(4) 1 which describe the results of such monitoring, research, and activities.
(A) Amounts paid to a State pursuant to subsection (b)(2)(D), (d)(2)(C)(ii), or (e)(2)(C) shall be deposited into the water pollution control revolving fund established by the State pursuant to title VI of the Federal Water Pollution Control Act [33 U.S.C. 1381 et seq.].
(B) Amounts deposited into a State water pollution control revolving fund pursuant to this paragraph—
(i) shall not be used by the State to provide assistance to the person who paid such amounts for development or implementation of any alternative system;
(ii) shall not be considered to be State matching amounts under title VI of the Federal Water Pollution Control Act; and
(iii) shall not be subject to State matching requirements under such title.
(A) Amounts paid to a State as penalties pursuant to subsection (d)(2)(D) may be used by the State—
(i) for providing assistance to any person in the State—
(I) for implementing a management program under section 319 of the Federal Water Pollution Control Act [33 U.S.C. 1329];
(II) for developing and implementing a conservation and management plan under section 320 of such Act [33 U.S.C. 1330]; or
(III) for implementing technologies and management practices necessary for controlling pollutant inputs adversely affecting the New York Bight, as such inputs are identified in the New York Bight Restoration Plan prepared under section 2301 of the Marine Plastic Pollution Research and Control Act of 1987; and
(ii) for providing assistance to any person in the State who was not required to pay such penalties for construction of treatment works (as defined in section 212 of the Federal Water Pollution Control Act [33 U.S.C. 1292]) which are publicly owned.
(B) Amounts paid to a State as penalties pursuant to subsection (d)(2)(D) which are not used in accordance with subparagraph (A) shall be deposited into the water pollution control revolving fund established by the State under title VI of the Federal Water Pollution Control Act. Amounts deposited into such a fund pursuant to this subparagraph—
(i) shall not be used by the State to provide assistance to the person who paid such amounts;
(ii) shall not be considered to be State matching amounts under title VI of the Federal Water Pollution Control Act; and
(iii) shall not be subject to State matching requirements under such title.
Amounts of fees and penalties paid to the Administrator pursuant to subsection (b)(2)(B) or (d)(2)(B) which are used by an agency in accordance with paragraph (1) shall be deposited into the Treasury as offsetting collections of the agency.
(g) Enforcement
Whenever, on the basis of any information available, the Administrator finds that a person is dumping or transporting sewage sludge or industrial waste in violation of subsection (a)(1), the Administrator shall issue an order requiring such person to terminate such dumping or transporting (as applicable) until such person—
(A) enters into a compliance agreement or an enforcement agreement under subsection (c); and
(B) obtains a permit under section 1412 of this title which authorizes such dumping or transporting.
Any order issued by the Administrator under this subsection—
(A) shall be delivered by personal service to the person named in the order;
(B) shall state with reasonable specificity the nature of the violation for which the order is issued; and
(C) shall require that the person named in the order, as a condition of dumping into ocean waters, or transporting for the purpose of dumping into ocean waters, sewage sludge or industrial waste—
(i) shall enter into a compliance agreement or an enforcement agreement under subsection (c); and
(ii) shall obtain a permit under section 1412 of this title which authorizes such dumping or transporting.
The Administrator may request the Attorney General to commence a civil action for appropriate relief, including a temporary or permanent injunction and the imposition of civil penalties authorized by subsection (d)(1), for any violation of subsection (a)(1) or of an order issued by the Administrator under this section. Such an action may be brought in the district court of the United States for the district in which the defendant is located, resides, or is doing business, and such court shall have jurisdiction to restrain such violation and require compliance with subsection (a)(1) and any such order.
(h) State progress reports
The Governor of each State that is a party to a compliance agreement or an enforcement agreement under subsection (c) shall submit to the Administrator on September 30 of 1989 and of every year thereafter until the Administrator determines that ocean dumping of sewage sludge and industrial waste by persons located in that State has terminated, a report which describes—
(A) the efforts of each person located in the State to comply with a compliance agreement or enforcement agreement entered into by the person pursuant to subsection (c), including the extent to which such person has complied with deadlines established by the schedule included in such agreement;
(B) activity of the State regarding permits for the construction and operation of each alternative system; and
(C) an accounting of amounts paid into and withdrawn from a Clean Oceans Fund established by the State.
If a State fails to submit a report in accordance with this subsection, the Administrator shall withhold funds reserved for such State under section 205(g) of the Federal Water Pollution Control Act (33 U.S.C. 1285(g)). Funds withheld pursuant to this paragraph may, at the discretion of the Administrator, be restored to a State upon compliance with this subsection.
(i) EPA progress reports
Not later than December 31 of 1989 and of each year thereafter until the Administrator determines that ocean dumping of sewage sludge and industrial waste has terminated, the Administrator shall prepare and submit to the Congress a report on—
(A) progress being made by persons issued permits under section 1412 of this title for transportation or dumping of sewage sludge or industrial waste in developing alternative systems for managing sewage sludge and industrial waste;
(B) the efforts of each such person to comply with a compliance agreement or enforcement agreement entered into by the person pursuant to subsection (c), including the extent to which such person has complied with deadlines established by the schedule included in such agreement;
(C) progress being made by the Administrator and others in identifying and implementing alternative systems for the management of sewage sludge and industrial waste; and
(D) progress being made toward the termination of ocean dumping of sewage sludge and industrial waste.
Each report submitted to the Congress under this subsection shall be referred to each standing committee of the House of Representatives and of the Senate having jurisdiction over any part of the subject matter of the report.
(j) Environmental monitoring
The Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, shall design a program for monitoring environmental conditions—
(A) at the Apex site (as that term is defined in section 1414a of this title);
(B) at the site designated by the Administrator under section 1412(c) of this title and known as the "106-Mile Ocean Waste Dump Site" (as described in 49 F.R. 19005);
(C) at the site at which industrial waste is dumped; and
(D) within the potential area of influence of the sewage sludge and industrial waste dumped at those sites.
The program designed under paragraph (1) shall include, but is not limited to—
(A) sampling of an appropriate number of fish and shellfish species and other organisms to assess the effects of environmental conditions on living marine organisms in these areas; and
(B) use of satellite and other advanced technologies in conducting the program.
The Administrator and the Under Secretary of Commerce for Oceans and Atmosphere shall each conduct monitoring activities consistent with the program designed under paragraph (1).
(k) Definitions
For purposes of this section—
(1) the term "alternative system" means any method for the management of sewage sludge or industrial waste which does not require a permit under this Act;
(2) the term "Clean Oceans Fund" means such a fund established by a State in accordance with subsection (c)(5);
(3) the term "excluded material" means—
(A) any dredged material discharged by the United States Army Corps of Engineers or discharged pursuant to a permit issued by the Secretary in accordance with section 1413 of this title; and
(B) any waste from a tuna cannery operation located in American Samoa or Puerto Rico discharged pursuant to a permit issued by the Administrator under section 1412 of this title;
(4) the term "industrial waste" means any solid, semisolid, or liquid waste generated by a manufacturing or processing plant, other than an excluded material;
(5) the term "interim measure" means any short-term method for the management of sewage sludge or industrial waste, which—
(A) is used before implementation of an alternative system; and
(B) does not require a permit under this Act; and
(6) the term "sewage sludge" means any solid, semisolid, or liquid waste generated by a wastewater treatment plant, other than an excluded material.

History

(Pub. L. 92–532, title I, §104B, as added Pub. L. 100–688, title I, §1002, Nov. 18, 1988, 102 Stat. 4139.)

Editorial Notes

Editorial Notes

References in Text
This Act, referred to in subsecs. (a)(2), (d)(1), (e)(3)(A), (f)(1)(A)(i), (B), and (k)(1), (5)(B), means Pub. L. 92–532, which is classified generally to this chapter, chapter 41 (§2801 et seq.) of this title, and chapters 32 (§1431 et seq.) and 32A (§1447 et seq.) of Title 16, Conservation.
The Federal Water Pollution Control Act, referred to in subsecs. (b)(2)(D), (5)(A), (d)(2)(C)(ii), (4), (e)(2)(C), (3)(A), (B), (f)(2)(A), (B)(ii), (iii), and (3)(B), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, §2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§1251 et seq.) of this title. Title VI of that Act is classified to subchapter VI (§1381 et seq.) of chapter 26 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of this title and Tables.
Subsection (j)(4), referred to in subsec. (f)(1)(C)(ii), was omitted from the Code. See Codification note below.
Section 2301 of the Marine Plastic Pollution Research and Control Act of 1987, referred to in subsec. (f)(3)(A)(i)(III), is section 2301 of Pub. L. 100–220 which is set out as a note under section 2267 of this title.

Codification
Subsec. (j)(4)(A) of this section directed the Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, to submit to Congress a report describing the program designed pursuant to subsec. (j)(1) of this section not later than one year after Nov. 18, 1988.
Subsec. (j)(4)(B) of this section, which required the Administrator and the Under Secretary of Commerce for Oceans and Atmosphere to report annually to Congress on monitoring activities conducted under the program designed pursuant to subsec. (j)(1) of this section, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 148 of House Document No. 103–7.

Statutory Notes and Related Subsidiaries

Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.