[Code of Federal Regulations]

[Title 40, Volume 24]

[Revised as of July 1, 2006]

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

[CITE: 40CFR233.41]



[Page 300-301]

 

                   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.

    (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



[[Page 301]]



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]