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Y2K Legislation and Environmental Issues

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Date: Tue Jul 13 1999 - 09:25:43 CDT

To All:

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?

Gary Jones

     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 or direct
     dial 610-251-5089.
     Bill Cluck
     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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