40 C.F.R. § 123.27

Requirements for enforcement authority

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(a) Any State agency administering a program shall have the authority to establish the following violations and have available the following remedies and penalties for such 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;

Note:

This paragraph (a)(1) 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 penalties 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.

(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.

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 Act, except that a State may establish criminal violations based on any form or type of negligence.

Note 3 to paragraph (b)(2):

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.

Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations;

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:

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, whether or not accidental;

Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly aggrieved by 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 paragraphs (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 § 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.

(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 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993; 89 FR 103498, Dec. 18, 2024]

Notes of Decisions

Cited in 21 cases (2 in the last 5 years), 1988–2022 · leading case: Paper, Allied-Industrial, Chemical & Energy Workers International Union v. Continental Carbon Co.

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Paper, Allied-Industrial, Chemical & Energy Workers International Union v. Continental Carbon Co. (2005) ca10 · cites it 2× “§ 1319 (g)(4), “especially in view of 40 C.F.R. § 123.27 (d)”). Accordingly, we conclude that all three categories of state provisions — penalty assessment, public participation, and judicial review-are roughly comparable to the corresponding class of federal provisions outlined…”

Akiak Native Community v. United States Environmental Protection Agency (2010) ca9 · cites it 6× “§ 1342 (b)(7); see also 40 C.F.R. § 123.27 . Petitioners argue that the EPA failed to ensure that the State of Alaska had adequate enforcement tools to abate violations, as required by the CWA.”

Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (1995) scd · cites it 2× “40 C.F.R. § 123.27 (d). 13 In addition, the importance of public participation in the enforcement of the CWA has been recognized by several courts interpreting section 309(g)(6)(A).”

Valstad Ex Rel. Valstad Quarry, Inc. v. Cipriano (2005) illappct “In response, the United States EPA promulgated such a regulation ( 40 C.F.R. § 123.27 (d) (2004) (effective April 1, 1983)), and Illinois later agreed to abide by it.”

Prairie Rivers Network v. Illinois Pollution Control Board (2002) illappct “In response, the US EPA promulgated such a regulation ( 40 C.F.R. § 123.27 (d) (2000)), and Illinois later agreed to abide by it.”

Naturaland Trust v. Dakota Finance LLC (2022) ca4 “”); see also 40 C.F.R. § 123.27 (d) (requiring the states to provide “intervention as of right in any civil or administrative action” and to “[p]ublish notice of and provide at least 30 days for public comment on any proposed settlement”).”

Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co. (1998) kanctapp “One of those regulations, 40 C.F.R. § 123.27 (d) (1997), requires states to provide for public participation in the state enforcement process.”

Frilling v. Village of Anna (1996) ohsd “40 C.F.R. § 123.27 (d). For an overview of the legislative history supporting public participation, as applied to this regulation, see Natural Resources Defense Council v.”

Commonwealth, Energy & Environment Cabinet v. Shepherd (2012) ky “40 C.F.R. 123.27(d). Clearly the regulations contemplate citizen intervention in an agency’s state-court enforcement action, such as this one, and to that extent these regulations would be meaningless if such intervention were preempted.”

Arkansas Wildlife Federation v. ICI Americas Inc. (1993) ared “2 Although these cases tend to take a more restrictive view of *1147 “comparability,” the Court is satisfied that the right to public participation under Arkansas law is sufficiently comparable to § 1319(g), especially in view of 40 C.F.R. § 123.27 (d). c. Judicial Review…”

Arkansas Wildlife Federation v. ICI Americas, Inc. (1994) ca8 · cites it 2× “AWF also argues that the district court's reliance on 40 C.F.R. § 123.27 as support for its comparability finding is misplaced because that regulation refers to EPA’s requirements for delegating NPDES permitting authority to the states, not the standard for precluding citizen…”

Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency (1988) cadc · cites it 4× “Citizens for a Better Environment (“CBE”) contests the agency’s standards for state allowance of public participation, set forth in 40 C.F.R. § 123.27 (d). It contends that 33 U.”

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— 40 C.F.R. § 123.27(d) — 2 cases

Paper, Allied-Industrial, Chemical & Energy Workers International Union v. Continental Carbon Co. (2005) ca10 “§ 1319 (g)(4), “especially in view of 40 C.F.R. § 123.27 (d)”). Accordingly, we conclude that all three categories of state provisions — penalty assessment, public participation, and judicial review-are roughly comparable to the corresponding class of federal provisions outlined…”

— 40 C.F.R. § 123.27(d)(2) — 1 case

ANR v. Montagne and Branon (2008) vtsuperct

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