[Code of Federal Regulations]
[Title 40, Volume 15]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR67.11]

[Page 151-152]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 67_EPA APPROVAL OF STATE NONCOMPLIANCE PENALTY PRO GRAM--Table 
of Contents
 
                  Subpart B_Approval of State Programs
 
Sec. 67.11  Standards for approval of State programs.


    (a) The Administrator shall approve any program submitted by a 
State, or by a local governmental agency where no program has been 
submitted by a State, for administering the noncompliance penalty 
provisions of section 120 of the Clean Air Act upon finding that the 
program conforms to the requirements of the Act and to those of this 
part and 40 CFR part 66. References to ``State program'' in this part 
shall be read as including local governmental agencies and their 
programs.
    (b) The Administrator shall not approve any State program that does 
not provide explicitly for:
    (1) Issuance of a notice of noncompliance, in a manner consistent 
with procedures under part 66, upon discovery by the State or upon 
notification by EPA of a violation of applicable legal requirements, 
which notice satisfies the informational requirements set forth in Sec. 
66.13.
    (2) Levels of staffing and funding satisfactory, in the judgment of 
the Administrator, to implement and enforce the requirements of section 
120 in that State, together with adequate provision for maintaining such 
levels;
    (3) A capability to carry out the financial analysis and procedures 
specified in these regulations and the Technical Support Document, 
Instruction Manual, and related Computer Program, available from the 
Director of Stationary Source Compliance Division, EN-341, 1200 
Pennsylvania Ave.,

[[Page 152]]

NW., Washington, DC 20460, together with adequate provision for 
maintaining such capability. Such capability may be provided by trained 
State personnel or through qualified contractors;
    (4) Except as provided in paragraph (a)(6) of this section, an 
administrative hearing whenever the owner or operator of a source 
submits a petition for reconsideration of a notice of noncompliance on 
the ground that the source either is not in violation of applicable 
legal requirements, or is entitled to an exemption, or both, or submits 
a petition to challenge a recalculation of the penalty by the State, 
provided that such petitions raise issues of fact that would require a 
hearing under part 66. This hearing need not conform to the requirements 
of 5 U.S.C. 554 as long as its procedures provide for:
    (i) An initial decision by the hearing officer on the record;
    (ii) A hearing officer who has not performed investigative or 
litigating functions in any enforcement action against the source owner 
or operator in question;
    (iii) Opportunity for public participation on reasonable notice, 
including intervention, by interested persons;
    (iv) Opportunity for cross-examination or an equivalent opportunity 
for confrontation between persons advocating differing positions on 
material factual matters; and
    (v) An initial decision by the hearing officer within ninety days of 
commencement of the hearing unless such period is extended upon 
agreement of the parties.
    (5) Explicit provision for:
    (i) Notice to the Administrator of any determination granting an 
exemption, or finding a source in violation of applicable legal 
requirements, and any penalty calculation and payment schedule approved 
or calculated by the State, together with any information necessary to 
verify its accuracy;
    (ii) Within 30 days of receipt of a request from the Administrator, 
transmission of a copy of the record of the hearing held under paragraph 
(a)(4) or (6) of this section, including any proffered evidence and a 
ruling on its admissibility and the State's decision on the merits; and
    (iii) Additional reporting and recordkeeping, if necessary, adequate 
to enable the Administrator to review the State's administration of the 
program and determine whether it conforms to the Act and to part 66 of 
these regulations. Such requirements will be specified in the Notice of 
Delegation to the State.
    (6) A hearing on the question of whether the owner or operator of a 
source is entitled to an exemption pursuant to Sec. 66.32 or 66.33 may 
be informal. The hearing shall be scheduled upon notice to the public. 
Reasonable opportunity to testify and for submission of questions to the 
petitioner by members of the public shall be afforded. A record of the 
hearing shall be made, and the decision of the hearing officer made in 
writing within a reasonable period of time after the close of the 
hearing.
    (c) The State may delegate all or part of its responsibilities under 
its program to a local governmental agency to implement the program 
within the jurisdiction of the local agency, Provided that the program 
of the local government agency meets the requirements of this section.
    (d) No State penalty program or program of one of its agents shall 
be disapproved because it is more stringent than the program established 
by part 66 or by section 120 where the State or local agent concludes 
that it has independent authority under State or local law to implement 
and administer the more stringent portions of the program.

[45 FR 50117, July 28, 1980, as amended at 54 FR 25259, June 14, 1989]