[Code of Federal Regulations]
[Title 40, Volume 22]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR145.13]

[Page 751-752]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 145_STATE UIC PROGRAM REQUIREMENTS--Table of Contents
 
                Subpart B_Requirements for State Programs
 
Sec. 145.13  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 environment;

    Note: This paragraph 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;
    (3) To assess or sue to recover in court civil penalties and to seek 
criminal remedies, including fines, as follows:
    (i) For all wells except Class II wells, civil penalties shall be 
recoverable for any program violation in at least the amount of $2,500 
per day. For Class II wells, civil penalties shall be recoverable for 
any program violation in at least the amount of $1,000 per day.
    (ii) Criminal fines shall be recoverable in at least the amount of 
$5,000 per day against any person who willfully violates any program 
requirement, or for Class II wells, pipeline (production) severance 
shall be imposable against any person who willfully violates any program 
requirement.

    Note: In many States the State Director will be represented in State 
courts by the State Attorney General or other appropriate legal officer. 
Although the State Director need not appear in court actions he or she 
should have power to request that any of the above actions be brought.

    (b)(1) The maximum civil penalty or criminal fine (as provided in 
paragraph (a)(3) of this section) shall be assessable for each instance 
of violation and, if the violation is continuous, shall 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 
Safe Drinking Water 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 
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, when authorized by the applicable statute, may commence 
separate actions for penalties.
    In addition to the requirements of this paragraph, the State may 
have other enforcement remedies. The following enforcement options, 
while not mandatory, are highly recommended:

[[Page 752]]

    Procedures for assessment by the State of the costs of 
investigations, inspections, or monitoring surveys which lead to the 
establishment of violations;
    Procedures which enable the State to assess or to sue any persons 
responsible for unauthorized activities for any expenses incurred by the 
State in removing, correcting, or terminating any adverse effects upon 
human health and the environment resulting from the unauthorized 
activity, or both; and
    Procedures for the administrative assessment of penalties by the 
Director.

    (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 paragraph (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 written responses to all citizen 
complaints submitted pursuant to the procedures specified in Sec. 
145.12(b)(4);
    (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.
    (e) To the extent that an Indian Tribe does not assert or is 
precluded from asserting criminal enforcement authority the 
Administrator will assume primary enforcement responsibility for 
criminal violations. The Memorandum of Agreement in Sec. 145.25 shall 
reflect a system where the Tribal agency will refer such violations to 
the Administrator in an appropriate and timely manner.


(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14202, Apr. 1, 1983, as amended at 48 FR 39621, Sept. 1, 1983; 53 
FR 37412, Sept. 26, 1988]