[Code of Federal Regulations]
[Title 40, Volume 28]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR501.17]

[Page 814-815]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 501_STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS--Table of Contents
 
         Subpart B_Development and Submission of State Programs
 
Sec. 501.17  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have available 
the following remedies for violations of State program requirements:
    (1) To restrain immediately and effectively any person by order or 
by suit in State court from engaging in any unauthorized activity which 
is endangering or causing damage to public health or the environment;
    Note: This paragraph ((a)(1)) requires that States have a mechanism 
(e.g., an administrative cease and desist order or the ability to seek a 
temporary restraining order) to stop any unauthorized activity 
endangering public health or the environment.
    (2) To sue in courts of competent jurisdiction to enjoin any 
threatened or continuing violation of any program requirement, including 
permit conditions, without the necessity of a prior revocation of the 
permit; and
    (3) To assess or sue to recover in court civil penalties and to seek 
criminal remedies, including fines, as follows:
    (i) Civil penalties will be recoverable for the violation of any 
permit condition; any applicable standard or limitation; any filing 
requirement; any duty to allow or carry out inspection, entry or 
monitoring activities; or any regulation or orders issued by the State 
Program Director. The State must at a minimum, have the authority to 
assess penalties of up to $5,000 a day for each violation.
    (ii) Criminal fines will be recoverable against any person who 
willfully or negligently violates any applicable standards or 
limitations; any permit condition; or any filing requirement. The State 
must at a minimum, have the authority to assess fines of up to $10,000 a 
day for each violation. States which provide the criminal remedies based 
on ``criminal negligence,'' ``gross negligence'' or strict liability 
satisfy the requirement of this paragraph (a)(3)(ii) of this section.
    (iii) Criminal fines will be recoverable against any person who 
knowingly makes any false statement, representation or certification in 
any program form, or in any notice or report required by a permit or 
State Program Director, or who knowingly renders inaccurate any 
monitoring device or method required to be maintained by the State 
Program Director. The State must at a minimum, have the authority to 
assess fines of up to $5,000 for each instance of violation.
    (b)(1) The civil penalty or criminal fine will be assessable for 
each instance of violation and, if the violation is continuous, will be 
assessable up to the maximum amount for each day of violation.
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
appropriate Act.
    Note: For example, this requirement is not met if State law includes 
mental state as an element of proof for civil violations.
    (c) A civil penalty assessed, sought, or agreed upon by the State 
Program Director under paragraph (a)(3) of this section shall be 
appropriate to the violation.
    (d) Any State administering a program shall provide for public 
participation in the State enforcement process by providing either:
    (1) Authority which allows intervention as of right in any civil or 
administrative action to obtain remedies specified in paragraphs (a)(1), 
(2) or (3) of this section by any citizen having an interest which is or 
may be adversely affected; or
    (2) Assurance that the State agency or enforcement authority will:
    (i) Investigate and provide responses to all citizen complaints 
submitted pursuant to the procedures specified in 40 CFR 123.26(b)(4);
    (ii) Not oppose intervention by any citizen in any civil or 
administrative proceeding when permissive intervention may be authorized 
by statute, rule, or regulation; and
    (iii) Publish notice of and provide at least 30 days for public 
comment on

[[Page 815]]

any proposed settlement of a State enforcement action.
    (e) Indian Tribes that cannot satisfy the criminal enforcement 
authority requirements of this section may still be approved under this 
part if they meet the requirements established in Sec. 501.25.

[54 FR 18786, May 2, 1989, as amended at 58 FR 67984, Dec. 22, 1993; 63 
FR 45127, Aug. 24, 1998]