Page:United States Statutes at Large Volume 101 Part 1.djvu/77

 PUBLIC LAW 100-4—FEB. 4, 1987

101 STAT. 47

"(3) DETERMINING AMOUNT.—In determining the amount of

any penalty assessed under this subsection, the Administrator or the Secretary, as the case may be, shall take into account the nature, circumstances, extent and gravity of the violation, or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require. For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. "(4) RIGHTS OF INTERESTED PERSONS.— "(A) PUBLIC NOTICE.—Before issuing

an order assessing a civil penalty under this subsection the Administrator or Secretary, as the case may be, shall provide public notice of and reasonable opportunity to comment on the proposed issuance of such order. "(B) PRESENTATION OF EVIDENCE.—Any person who comments on a proposed assessment of a penalty under this subsection shall be given notice of any hearing held under this subsection and of the order assessing such penalty. In any hearing held under this subsection, such person shall have a reasonable opportunity to be heard and to present evidence. "(C) RIGHTS OF INTERESTED PERSONS TO A HEARING.—If no

hearing is held under paragraph (2) before issuance of an order assessing a penalty under this subsection, any person who commented on the proposed assessment may petition, within 30 days after the issuance of such order, the Administrator or Secretary, as the case may be, to set aside such order and to provide a hearing on the penalty. If the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Administrator or Secretary shall immediately set aside such order and provide a hearing in accordance with paragraph (2)(A) in the case of a class I civil penalty and paragraph (2)(B) in the case of a class II civil penalty. If the Administrator or Secretary denies a hearing Federal under this subparagraph, the Administrator or Secretary Register, shall provide to the petitioner, and publish in the Federal publication. Register, notice of and the reasons for such denial. "(5) FINALITY OF ORDER.—An order issued under this subsection shall become final 30 days after its issuance unless a petition for judicial review is filed under paragraph (8) or a hearing is requested under paragraph (4)(C). If such a hearing is denied, such order shall become final 30 days after such denial. "(6) EFFECT OF ORDER.— "(A) LIMITATION ON ACTIONS UNDER OTHER SECTIONS.—

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator's or Secretary's authority to enforce any provision of this Act; except that any violation— "(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

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