§ 1369. — Administrative procedure and judicial review.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1369]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER V--GENERAL PROVISIONS
Sec. 1369. Administrative procedure and judicial review
(a) Subpenas
(1) For purposes of obtaining information under section 1315 of this
title, or carrying out section 1367(e) of this title, the Administrator
may issue subpenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and he may
administer oaths. Except for effluent data, upon a showing satisfactory
to the Administrator that such papers, books, documents, or information
or particular part thereof, if made public, would divulge trade secrets
or secret processes, the Administrator shall consider such record,
report, or information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18, except that
such paper, book, document, or information may be disclosed to other
officers, employees, or authorized representatives of the United States
concerned with carrying out this chapter, or when relevant in any
proceeding under this chapter. Witnesses summoned shall be paid the same
fees and mileage that are paid witnesses in the courts of the United
States. In case of contumacy or refusal to obey a subpena served upon
any person under this subsection, the district court of the United
States for any district in which such person is found or resides or
transacts business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the
Administrator, to appear and produce papers, books, and documents before
the Administrator, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(2) The district courts of the United States are authorized, upon
application by the Administrator, to issue subpenas for attendance and
testimony of witnesses and the production of relevant papers, books, and
documents, for purposes of obtaining information under sections 1314(b)
and (c) of this title. Any papers, books, documents, or other
information or part thereof, obtained by reason of such a subpena shall
be subject to the same requirements as are provided in paragraph (1) of
this subsection.
(b) Review of Administrator's actions; selection of court; fees
(1) Review of the Administrator's action (A) in promulgating any
standard of performance under section 1316 of this title, (B) in making
any determination pursuant to section 1316(b)(1)(C) of this title, (C)
in promulgating any effluent standard, prohibition, or pretreatment
standard under section 1317 of this title, (D) in making any
determination as to a State permit program submitted under section
1342(b) of this title, (E) in approving or promulgating any effluent
limitation or other limitation under section 1311, 1312, 1316, or 1345
of this title, (F) in issuing or denying any permit under section 1342
of this title, and (G) in promulgating any individual control strategy
under section 1314(l) of this title, may be had by any interested person
in the Circuit Court of Appeals of the United States for the Federal
judicial district in which such person resides or transacts business
which is directly affected by such action upon application by such
person. Any such application shall be made within 120 days from the date
of such determination, approval, promulgation, issuance or denial, or
after such date only if such application is based solely on grounds
which arose after such 120th day.
(2) Action of the Administrator with respect to which review could
have been obtained under paragraph (1) of this subsection shall not be
subject to judicial review in any civil or criminal proceeding for
enforcement.
(3) Award of fees.--In any judicial proceeding under this
subsection, the court may award costs of litigation (including
reasonable attorney and expert witness fees) to any prevailing or
substantially prevailing party whenever it determines that such award is
appropriate.
(c) Additional evidence
In any judicial proceeding brought under subsection (b) of this
section in which review is sought of a determination under this chapter
required to be made on the record after notice and opportunity for
hearing, if any party applies to the court for leave to adduce
additional evidence, and shows to the satisfaction of the court that
such additional evidence is material and that there were reasonable
grounds for the failure to adduce such evidence in the proceeding before
the Administrator, the court may order such additional evidence (and
evidence in rebuttal thereof) to be taken before the Administrator, in
such manner and upon such terms and conditions as the court may deem
proper. The Administrator may modify his findings as to the facts, or
make new findings, by reason of the additional evidence so taken and he
shall file such modified or new findings, and his recommendation, if
any, for the modification or setting aside of his original
determination, with the return of such additional evidence.
(June 30, 1948, ch. 758, title V, Sec. 509, as added Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 891; amended Pub. L. 93-207, Sec. 1(6),
Dec. 28, 1973, 87 Stat. 906; Pub. L. 100-4, title III, Sec. 308(b),
title IV, Sec. 406(d)(3), title V, Sec. 505(a), (b), Feb. 4, 1987, 101
Stat. 39, 73, 75; Pub. L. 100-236, Sec. 2, Jan. 8, 1988, 101 Stat.
1732.)
Amendments
1988--Subsec. (b)(3), (4). Pub. L. 100-236 redesignated par. (4) as
(3) and struck out former par. (3) relating to venue, which provided for
selection procedure in subpar. (A), administrative provisions in subpar.
(B), and transfers in subpar. (C).
1987--Subsec. (b)(1). Pub. L. 100-4, Secs. 308(b), 406(d)(3),
505(a), substituted ``transacts business which is directly affected by
such action'' for ``transacts such business'', ``120'' for ``ninety'',
and ``120th'' for ``ninetieth'', substituted ``1316, or 1345 of this
title'' for ``or 1316 of this title'' in cl. (E), and added cl. (G).
Subsec. (b)(3), (4). Pub. L. 100-4, Sec. 505(b), added pars. (3) and
(4).
1973--Subsec. (b)(1)(C). Pub. L. 93-207 substituted ``pretreatment''
for ``treatment''.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-236 effective 180 days after Jan. 8, 1988,
see section 3 of Pub. L. 100-236, set out as a note under section 2112
of Title 28, Judiciary and Judicial Procedure.
