
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC7604]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
            CHAPTER 85--AIR POLLUTION PREVENTION AND CONTROL
 
                   SUBCHAPTER III--GENERAL PROVISIONS
 
Sec. 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\
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    \1\ So in original. The word ``or'' probably should not appear.
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        (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
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    \2\ So in original.
    \3\ So in original. The semicolon probably should be a comma.
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        (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\
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    \4\ So in original. The period probably should be a comma.

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.

(July 14, 1955, ch. 360, title III, Sec. 304, as added Pub. L. 91-604, 
Sec. 12(a), Dec. 31, 1970, 84 Stat. 1706; amended Pub. L. 95-95, title 
III, Sec. 303(a)-(c), Aug. 7, 1977, 91 Stat. 771, 772; Pub. L. 95-190, 
Sec. 14(a) (77), (78), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101-549, 
title III, Sec. 302(f), title VII, Sec. 707(a)-(g), Nov. 15, 1990, 104 
Stat. 2574, 2682, 2683.)

                       References in Text

    The Federal Rules of Civil Procedure, referred to in subsec. (d), 
are set out in the Appendix to Title 28, Judiciary and Judicial 
Procedure.

                          Codification

    Section was formerly classified to section 1857h-2 of this title.


                            Prior Provisions

    A prior section 304 of act July 14, 1955, was renumbered section 311 
by Pub. L. 91-604 and is classified to section 7611 of this title.


                               Amendments

    1990--Subsec. (a). Pub. L. 101-549, Sec. 707(a), (f), in closing 
provisions, inserted before period at end ``, and to apply any 
appropriate civil penalties (except for actions under paragraph (2))'' 
and inserted sentences at end giving courts jurisdiction to compel 
agency action unreasonably delayed and requiring 180 days notice prior 
to commencement of action.
    Subsec. (a)(1), (3). Pub. L. 101-549, Sec. 707(g), inserted ``to 
have violated (if there is evidence that the alleged violation has been 
repeated) or'' before ``to be in violation''.
    Subsec. (b). Pub. L. 101-549, Sec. 302(f), substituted ``section 
7412(i)(3)(A) or (f)(4)'' for ``section 7412(c)(1)(B)'' in closing 
provisions.
    Subsec. (c)(2). Pub. L. 101-549, Sec. 707(c), amended par. (2) 
generally. Prior to amendment, par. (2) read as follows: ``In such 
action under this section, the Administrator, if not a party, may 
intervene as a matter of right.''
    Subsec. (c)(3). Pub. L. 101-549, Sec. 707(d), added subsec. (c)(3).
    Subsec. (f)(3). Pub. L. 101-549, Sec. 707(e), struck out ``any 
condition or requirement of section 7413(d) of this title (relating to 
certain enforcement orders)'' before ``, section 7419 of this title'', 
substituted ``subchapter VI of this chapter'' for ``part B of subchapter 
I of this chapter'', and substituted ``; or'' for period at end.
    Subsec. (f)(4). Pub. L. 101-549, Sec. 707(e), which directed that 
par. (4) be added at end of subsec. (f), was executed by adding par. (4) 
after par. (3), to reflect the probable intent of Congress.
    Subsec. (g). Pub. L. 101-549, Sec. 707(b), added subsec. (g).
    1977--Subsec. (a)(3). Pub. L. 95-190, Sec. 14(a)(77), inserted ``or 
modified'' after ``new''.
    Pub. L. 95-95, Sec. 303(a), added subsec. (a)(3).
    Subsec. (e). Pub. L. 95-95, Sec. 303(c), inserted provisions which 
prohibited any construction of this section or any other law of the 
United States which would prohibit, exclude, or restrict any State, 
local, or interstate authority from bringing any enforcement action or 
obtaining any judicial remedy or sanction in any State or local court 
against the United States or bringing any administrative enforcement 
action or obtaining any administrative remedy or sanction against the 
United States in any State or local administrative agency, department, 
or instrumentality under State or local law.
    Subsec. (f)(3). Pub. L. 95-190, Sec. 14(a)(78), inserted ``, or'' 
after ``(relating to ozone protection)'', substituted ``any condition or 
requirement under an'' for ``requirements under an'', and struck out 
``or'' before ``section 7491''.
    Pub. L. 95-95, Sec. 303(b), added par. (3).


                    Effective Date of 1990 Amendment

    Section 707(g) of Pub. L. 101-549 provided that: ``The amendment 
made by this subsection [amending this section] shall take effect with 
respect to actions brought after the date 2 years after the enactment of 
the Clean Air Act Amendments of 1990 [Nov. 15, 1990].''


                    Effective Date of 1977 Amendment

    Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as 
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set 
out as a note under section 7401 of this title.


                     Pending Actions and Proceedings

    Suits, actions, and other proceedings lawfully commenced by or 
against the Administrator or any other officer or employee of the United 
States in his official capacity or in relation to the discharge of his 
official duties under act July 14, 1955, the Clean Air Act, as in effect 
immediately prior to the enactment of Pub. L. 95-95 [Aug. 7, 1977], not 
to abate by reason of the taking effect of Pub. L. 95-95, see section 
406(a) of Pub. L. 95-95, set out as an Effective Date of 1977 Amendment 
note under section 7401 of this title.


       Modification or Rescission of Rules, Regulations, Orders, 
Determinations, Contracts, Certifications, Authorizations, Delegations, 
                            and Other Actions

    All rules, regulations, orders, determinations, contracts, 
certifications, authorizations, delegations, or other actions duly 
issued made, or taken by or pursuant to act July 14, 1955, the Clean Air 
Act, as in effect immediately prior to the date of enactment of Pub. L. 
95-95 [Aug. 7, 1977] to continue in full force and effect until modified 
or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 
95-95 [this chapter], see section 406(b) of Pub. L. 95-95, set out as an 
Effective Date of 1977 Amendment note under section 7401 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 7412, 7413, 7419, 7429, 
7491, 7506, 7521, 7617, 7627, 7651j of this title.
