[Code of Federal Regulations]
[Title 40, Volume 22]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR233.41]

[Page 296-297]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 233--404 STATE PROGRAM REGULATIONS--Table of Contents
 
            Subpart E--Compliance Evaluation and Enforcement
 
Sec. 233.41  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have authority:
    (1) To restrain immediately and effectively any person from engaging 
in any unauthorized activity;
    (2) To sue to enjoin any threatened or continuing violation of any 
program requirement;
    (3) To assess or sue to recover civil penalties and to seek criminal 
remedies, as follows:
    (i) The agency shall have the authority to assess or recover civil 
penalties for discharges of dredged or fill material without a required 
permit or in violation of any section 404 permit condition in an amount 
of at least $5,000 per day of such violation.

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    (ii) The agency shall have the authority to seek criminal fines 
against any person who willfully or with criminal negligence discharges 
dredged or fill material without a required permit or violates any 
permit condition issued under section 404 in the amount of at least 
$10,000 per day of such violation.
    (iii) The agency shall have the authority to seek criminal fines 
against any person who knowingly makes false statements, representation, 
or certification in any application, record, report, plan, or other 
document filed or required to be maintained under the Act, these 
regulations or the approved State program, or who falsifies, tampers 
with, or knowingly renders inaccurate any monitoring device or method 
required to be maintained under the permit, in an amount of at least 
$5,000 for each instance of violation.
    (b)(1) The approved maximum civil penalty or criminal fine shall be 
assessable for each violation and, if the violation is continuous, shall 
be assessable in that 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 bear when it brings an action under the 
Act.
    (c) The civil penalty assessed, sought, or agreed upon by the 
Director under paragraph (a)(3) of this section shall be appropriate to 
the violation.

    Note: To the extent that State judgments or settlements provide 
penalties in amounts which EPA believes to be substantially inadequate 
in comparison to the amounts which EPA would require under similar 
facts, EPA may, when authorized by section 309 of the Act, commence 
separate action for penalties.

    (d)(1) The Regional Administrator may approve a State program where 
the State lacks authority to recover penalties of the levels required 
under paragraphs (a)(3)(i)-(iii) of this section only if the Regional 
Administrator determines, after evaluating a record of at least one year 
for an alternative enforcement program, that the State has an alternate, 
demonstrably effective method of ensuring compliance which has both 
punitive and deterrence effects.
    (2) States whose programs were approved via waiver of monetary 
penalties shall keep the Regional Administrator informed of all 
enforcement actions taken under any alternative method approved pursuant 
to paragraph (d)(1) of this section. The manner of reporting will be 
established in the Memorandum of Agreement with the Regional 
Administrator (Sec. 233.13).
    (e) Any State administering a program shall provide for public 
participation in the State enforcement process by providing either:
    (1) Authority which allows intervention of right in any civil or 
administrative action to obtain remedies specified in paragraph (a)(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 written responses to all citizen 
complaints submitted pursuant to State procedures;
    (ii) Not oppose intervention by any citizen 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 any proposed settlement of a State enforcement action.
    (f) Provision for Tribal criminal enforcement authority. To the 
extent that an Indian Tribe does not assert or is precluded from 
asserting criminal enforcement authority (Sec. 233.41(a)(3) (ii) and 
(iii)), the Federal government will continue to exercise primary 
criminal enforcement responsibility. The Tribe, with the EPA Region and 
Corps District(s) with jurisdiction, shall develop a system where the 
Tribal agency will refer such a violation to the Regional Administrator 
or the District Engineer(s), as agreed to by the parties, in an 
appropriate and timely manner. This agreement shall be incorporated into 
joint or separate Memorandum of Agreement with the EPA Region and the 
Corps District(s), as appropriate.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993]

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