Date: Tue Jul 13 1999 - 09:25:43 CDT
Below is a message received regarding some interesting aspects of the newly
passed Y2K legislation. I am not sure if the President has signed into law.
Can someone let us know?
As many of you know, Congress passed Y2K legislation yesterday. Scott
Patterson, leader of Saul Ewing's Y2K Practice Group, reports on an
interesting environmental twist to the legislation. There may be also
be interesting issues regarding EPA's position on Y2K and the Clean Air
Act General Duty Clause. Scott's update is reprinted below. If you
have questions, you can e-mail Scott at firstname.lastname@example.org or direct
The new Y2K bill passed today by Congress (H.775), which will
imminently become law as the result of a compromise negotiated with
the White House, includes an interesting provision (Sec. 4(g)(2)(B))
with environmental enforcement implications, entitled "Y2K Upset".
The section protects defendants from liability under federally
enforceable regulations for "exceptional temporary noncompliance" with
of monitoring or reporting requirements resulting from Y2K failures
occurring before June 30, 2000, provided that certain conditions are
met. The 6/29/99 conference report expressly identifies this section as
covering environmental violations.
However, there is no protection for violations of the underlying
requirement being monitored, nor for violations which involve actual
or imminent harm. An example would be an NPDES permit - you may get a
break on a monitoring requirement, but not for actually discharging
pollutants at excessive levels. (Not clear what happens if the
monitoring equipment failure means no one can tell if you were in or
out of compliance).
This legislation would seem to preempt EPA's harsher "no excuses"
statements on Y2K failures.
Because of the way the bill is drafted (this is in a section called
"suits by governmental entities"), it's not clear to me that this
upset provision applies to citizens' suits, although the standard
ought to be no different.
Separately, another section of the bill says that federal agencies
must waive civil penalties for "first time violations" by "small
businesses" resulting from Y2K failures, again providing that certain
conditions are met. Small businesses are defined as those with less
than 50 employees.
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