[Code of Federal Regulations]

[Title 40, Volume 31]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR1068.125]



[Page 826-828]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 1068_GENERAL COMPLIANCE PROVISIONS FOR NONROAD PROGRAMS--Table of 

Contents

 

          Subpart B_Prohibited Actions and Related Requirements

 

Sec.  1068.125  What happens if I violate the regulations?



    (a) Civil penalties and injunctions. We may bring a civil action to 

assess and recover civil penalties and/or enjoin and restrain violations 

in the United States District Court for the district



[[Page 827]]



where you allegedly violated a requirement, or the district where you 

live or have your main place of business. Actions to assess civil 

penalties or restrain violations of Sec.  1068.101 must be brought by 

and in the name of the United States. The selected court has 

jurisdiction to restrain violations and assess civil penalties.

    (1) To determine the amount of a civil penalty and reach a just 

conclusion, the court considers these main factors:

    (i) The seriousness of your violation.

    (ii) How much you benefitted or saved because of the violation.

    (iii) The size of your business.

    (iv) Your history of compliance with Title II of the Act (42 U.S.C. 

7401-7590).

    (v) What you did to remedy the violation.

    (vi) How the penalty will affect your ability to continue in 

business.

    (vii) Such other matters as justice may require.

    (2) Subpoenas for witnesses who must attend a district court in any 

district may apply to any other district.

    (b) Administrative penalties. Instead of bringing a civil action, we 

may assess administrative penalties if the total is less than $270,000 

against you individually. This maximum penalty may be greater if the 

Administrator and the Attorney General jointly determine that is 

appropriate for administrative penalty assessment, or if the limit is 

adjusted under 40 CFR part 19. No court may review such a determination. 

Before we assess an administrative penalty, you may ask for a hearing 

(subject to 40 CFR part 22). The Administrator may compromise or remit, 

with or without conditions, any administrative penalty that may be 

imposed under this section.

    (1) To determine the amount of an administrative penalty, we will 

consider the factors described in paragraph (a)(1) of this section.

    (2) An administrative order we issue under this paragraph (b) 

becomes final 30 days after we issue it, unless you ask for judicial 

review by that time (see paragraph (c) of this section). You may ask for 

review by any of the district courts listed in paragraph (a) of this 

section. Send the Administrator a copy of the filing by certified mail.

    (3) We will not pursue an administrative penalty for a particular 

violation if either of the following two conditions is true:

    (i) We are separately prosecuting the violation under this subpart.

    (ii) We have issued a final order for a violation, no longer subject 

to judicial review, for which you have already paid a penalty.

    (c) Judicial review. If you ask a court to review a civil or 

administrative penalty, we will file in the appropriate court within 30 

days of your request a certified copy or certified index of the record 

on which the court or the Administrator issued the order.

    (1) The judge may set aside or remand any order issued under this 

section only if one of the following is true:

    (i) Substantial evidence does not exist in the record, taken as a 

whole, to support finding a violation.

    (ii) The Administrator's assessment of the penalty is an abuse of 

discretion.

    (2) The judge may not add civil penalties unless our penalty is an 

abuse of discretion that favors you.

    (d) Effect of enforcement actions on other requirements. Our pursuit 

of civil or administrative penalties does not affect or limit our 

authority to enforce any provisions of this chapter.

    (e) Penalties. In any proceedings, the United States government may 

seek to collect civil penalties assessed under this section.

    (1) Once a penalty assessment is final, if you do not pay it, the 

Administrator will ask the Attorney General to bring a civil action in 

an appropriate district court to recover the money. We may collect 

interest from the date of the final order or final judgment at rates 

established by the Internal Revenue Code of 1986 (26 U.S.C. 6621(a)(2)). 

In this action to collect overdue penalties, the court will not review 

the validity, amount, and appropriateness of the penalty.

    (2) In addition, if you do not pay the full amount of a penalty on 

time, you must then pay more to cover interest, enforcement expenses 

(including attorney's fees and costs for collection), and a quarterly 

nonpayment penalty for each quarter you do not pay. The quarterly 

nonpayment penalty is 10 percent of your total penalties plus any unpaid



[[Page 828]]



nonpayment penalties from previous quarters.



[67 FR 68347, Nov. 8, 2002, as amended at 69 FR 39266, June 29, 2004; 70 

FR 40513, July 13, 2005]