123.27—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 the environment;
Code of Federal Regulations
(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)
Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation.
(ii)
Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.
Code of Federal Regulations
(iii)
Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation.
Code of Federal Regulations
(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 appropriate Act;
Code of Federal Regulations
(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.
Code of Federal Regulations
(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 paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or
(i)
Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in § 123.26(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)
Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under § 123.34.