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

I 116TH CONGRESS 1ST SESSION H. R. 892 To amend the Federal Water Pollution Control Act to limit attorney fees and penalties in citizen suits, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 30, 2019 Mr. HUNTER introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend the Federal Water Pollution Control Act to limit attorney fees and penalties in citizen suits, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. LITIGATION COSTS. 3 Section 505(d) of the Federal Water Pollution Con- 4 trol Act (33 U.S.C. 1365(d)) is amended to read as fol- 5 lows: 6 ‘‘(d) AWARDS.— 7 ‘‘(1) The court, in issuing any final order in 8 any action brought under this section, may award 9 costs of litigation (including reasonable attorney and 10 VerDate Sep 11 2014 02:49 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H892.IH H892 kjohnson on DSK79L0C42 with BILLS 2 •HR 892 IH expert witness fees) to any prevailing or substan- 1 tially prevailing party, whenever the court deter- 2 mines such award is appropriate. The award— 3 ‘‘(A) may not exceed an amount that, as 4 compared to the total amount of attorney and 5 expert witness fees charged, bears the same 6 proportion as the number of successful claims 7 included in the complaint bears to the total 8 number of claims included in the complaint; 9 ‘‘(B) may not exceed the amount of mone- 10 tary penalties awarded; and 11 ‘‘(C) shall be based upon the prevailing 12 market rates in the area in which the violation 13 occurred for the kind and quality of the services 14 furnished. 15 ‘‘(2) The court may, if a temporary restraining 16 order or preliminary injunction is sought, require the 17 filing of a bond or equivalent security in accordance 18 with the Federal Rules of Civil Procedure.’’. 19 SEC. 2. DILIGENT PROSECUTION. 20 Section 309(g)(6) of the Federal Water Pollution 21 Control Act (33 U.S.C. 1319(g)(6)) is amended by adding 22 at the end following new subparagraph: 23 ‘‘(C) DILIGENT PROSECUTION.— 24 VerDate Sep 11 2014 02:49 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H892.IH H892 kjohnson on DSK79L0C42 with BILLS 3 •HR 892 IH ‘‘(i) DILIGENTLY PROSECUTING DE- 1 FINED.—In this paragraph, the term ‘dili- 2 gently prosecuting’ includes the issuance of 3 any order made under this section or a 4 State law comparable to this section. 5 ‘‘(ii) COMMENCEMENT OF DILIGENT 6 PROSECUTION.—Diligent prosecution com- 7 mences on the date the proposed order is 8 issued. 9 ‘‘(iii) ISSUANCE OF FINAL ORDER.— 10 The Administrator or the Secretary shall 11 be considered to be diligently prosecuting 12 an action under this subsection if the Ad- 13 ministrator or the Secretary issues a final 14 order before the date that is one year after 15 the date on which such proposed order is 16 issued.’’. 17 SEC. 3. AFFIRMATIVE DEFENSES. 18 Section 309 of the Federal Water Pollution Control 19 Act (33 U.S.C. 1319) is amended by adding at the end 20 the following new subsection: 21 ‘‘(h) AFFIRMATIVE DEFENSES.— 22 ‘‘(1) IN GENERAL.—There shall be no liability 23 under this Act for a person otherwise liable for the 24 unlawful discharge of a pollutant who can establish 25 VerDate Sep 11 2014 02:49 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H892.IH H892 kjohnson on DSK79L0C42 with BILLS 4 •HR 892 IH by a preponderance of the evidence that the imme- 1 diate cause of the unlawful discharge and any dam- 2 ages was— 3 ‘‘(A) an act of God; 4 ‘‘(B) an act of war; 5 ‘‘(C) an act or omission of a third party 6 (unless such third party is an employee or 7 agent of such person, or such third party’s act 8 or omission occurred in connection with a con- 9 tractual relationship, existing directly or indi- 10 rectly, with such person), if such person estab- 11 lishes by a preponderance of the evidence that 12 such person— 13 ‘‘(i) exercised due care in light of all 14 relevant facts and circumstances; and 15 ‘‘(ii) took precautions against foresee- 16 able acts or omissions of any such third 17 party and the consequences that could 18 foreseeably result from such acts or omis- 19 sions; or 20 ‘‘(D) any combination of subparagraphs 21 (A), (B), and (C). 22 ‘‘(2) OTHER AFFIRMATIVE DEFENSES.—All 23 general defenses, affirmative defenses, and bars to 24 prosecution that may apply with respect to other 25 VerDate Sep 11 2014 02:49 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H892.IH H892 kjohnson on DSK79L0C42 with BILLS 5 •HR 892 IH Federal criminal offenses may apply to a person oth- 1 erwise liable for the unlawful discharge of a pollut- 2 ant under this Act and shall be determined by the 3 courts of the United States according to the prin- 4 ciples of common law as may be interpreted in light 5 of reason and experience.’’. 6 Æ VerDate Sep 11 2014 02:49 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6301 E:\BILLS\H892.IH H892 kjohnson on DSK79L0C42 with BILLS