
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: 42USC8433]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
             CHAPTER 92--POWERPLANT AND INDUSTRIAL FUEL USE
 
             SUBCHAPTER VII--ADMINISTRATION AND ENFORCEMENT
 
                           Part C--Enforcement
 
Sec. 8433. Civil penalties


(a) General civil penalty

    Any person who violates any provision of this chapter, or rule or 
order thereunder, shall be subject to a civil penalty, which shall be 
assessed by the Secretary, of not more than $25,000 for each violation. 
Each day of violation shall constitute a separate violation.

(b) Civil penalty for operation in excess of exemption

    In the case of any electric powerplant granted an exemption, any 
person who operates such powerplant during any 12-calendar-month period 
in excess of that authorized in such exemption, shall be liable for a 
civil penalty, which shall be assessed by the Secretary. The amount of 
such civil penalty may not exceed $10 per barrel of petroleum or $3 per 
Mcf of natural gas used in operation of such powerplant in excess of 
that authorized in such exemption.

(c) Repealed. Pub. L. 100-42, Sec. 1(c)(20)(C), May 21, 1987, 101 Stat. 
        314

(d) Assessment

    (1) Before issuing an order assessing a civil penalty against any 
person under this chapter, the Secretary shall provide to such person 
notice of the proposed penalty. Such notice shall inform such person of 
his opportunity to elect in writing within 30 days after the date of 
receipt of such notice to have the procedures of paragraph (3) (in lieu 
of those of paragraph (2)) apply with respect to such assessment.
    (2)(A) Unless an election is made within 30 calendar days after 
receipt of notice under paragraph (1) to have paragraph (3) apply with 
respect to such penalty, the Secretary shall assess the penalty, by 
order, after a determination of violation has been made on the record 
after an opportunity for an agency hearing pursuant to section 554 of 
title 5 before an administrative law judge appointed under section 3105 
of such title 5. Such assessment order shall include the administrative 
law judge's findings and the basis for such assessment.
    (B) Any person against whom a penalty is assessed under this 
paragraph may, within 60 calendar days after the date of the order of 
the Secretary assessing such penalty, institute an action in the United 
States court of appeals for the appropriate judicial circuit for 
judicial review of such order in accordance with chapter 7 of title 5. 
The court shall have jurisdiction to enter a judgment affirming, 
modifying, or setting aside in whole or in part, the order of the 
Secretary, or the court may remand the proceeding to the Secretary for 
such further action as the court may direct.
    (3)(A) In the case of any civil penalty with respect to which the 
procedures of this paragraph have been elected, the Secretary shall 
promptly assess such penalty, by order, after the date of the receipt of 
the notice under paragraph (1) of the proposed penalty.
    (B) If the civil penalty has not been paid within 60 calendar days 
after the assessment order has been made under subparagraph (A), the 
Secretary shall institute an action in the appropriate district court of 
the United States for an order affirming the assessment of the civil 
penalty. The court shall have authority to review de novo the law and 
the facts involved, and shall have jurisdiction to enter a judgment 
enforcing, modifying, and enforcing as so modified, or setting aside in 
whole or in part, such assessment.
    (C) Any election to have this paragraph apply may not be revoked 
except with the consent of the Secretary.
    (4) If any person fails to pay an assessment of a civil penalty 
after it has become a final and unappealable order under paragraph (2), 
or after the appropriate district court has entered final judgment in 
favor of the Secretary under paragraph (3), the Secretary shall 
institute an action to recover the amount of such penalty in any 
appropriate district court of the United States. In such action, the 
validity and appropriateness of such final assessment order or judgment 
shall not be subject to review.
    (5)(A) Notwithstanding the provisions of title 28, or of section 
7192(c) of this title, the Secretary shall be represented by the general 
counsel of the Department of Energy (or any attorney or attorneys within 
the Department of Energy designated by the Secretary) who shall 
supervise, conduct, and argue any civil litigation to which paragraph 
(3) of this subsection applies (including any related collection action 
under paragraph (4)) in a court of the United States or in any other 
court, except the Supreme Court. However, the Secretary or the general 
counsel shall consult with the Attorney General concerning such 
litigation, and the Attorney General shall provide, on request, such 
assistance in the conduct of such litigation as may be appropriate.
    (B) Subject to the provisions of section 7192(c) of this title, the 
Secretary shall be represented by the Attorney General, or the Solicitor 
General, as appropriate, in actions under this subsection, except to the 
extent provided in subparagraph (A) of this paragraph.
    (C) Section 7172(d) of this title shall not apply with respect to 
the functions of the Secretary under this subsection.

(Pub. L. 95-620, title VII, Sec. 723, Nov. 9, 1978, 92 Stat. 3333; Pub. 
L. 100-42, Sec. 1(c)(20), May 21, 1987, 101 Stat. 313.)


                               Amendments

    1987--Subsec. (a). Pub. L. 100-42, Sec. 1(c)(20)(A), struck out 
``(other than section 8372 of this title)'' after ``this chapter''.
    Subsec. (b). Pub. L. 100-42, Sec. 1(c)(20)(B), (C), struck out 
``(1)'' before ``In the case of'' and struck out par. (2) which read as 
follows: ``Any person operating a major fuel-burning installation 
granted an exemption which, for any 12-calendar-month period, uses 
petroleum or natural gas, or both, in excess of that use allowed by such 
exemption shall be liable for a civil penalty, which shall be assessed 
by the Secretary. The amount of such civil penalty may not exceed $10 
per barrel of petroleum or $3 per Mcf of natural gas which was used in 
excess of that use allowed by such exemption.''
    Subsec. (c). Pub. L. 100-42, Sec. 1(c)(20)(C), struck out subsec. 
(c) which set forth civil penalties for violation of section 8372 of 
this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 8411, 8431 of this title.
