40 C.F.R. § 70.11

Requirements for enforcement authority

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All programs to be approved under this part must contain the following provisions:

(a) Enforcement authority. Any agency administering a program shall have the following enforcement authority to address violations of program requirements by part 70 sources:

(1) To restrain or enjoin immediately and effectively any person by order or by suit in court from engaging in any activity in violation of a permit that is presenting an imminent and substantial endangerment to the public health or welfare, or the environment.

(2) To seek injunctive relief in court to enjoin any 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, according to the following:

(i) Civil penalties shall be recoverable for the violation of any applicable requirement; any permit condition; any fee or filing requirement; any duty to allow or carry out inspection, entry or monitoring activities or, any regulation or orders issued by the permitting authority. These penalties shall be recoverable in a maximum amount of not less than $10,000 per day per violation. State law shall not include mental state as an element of proof for civil violations.

(ii) Criminal fines shall be recoverable against any person who knowingly violates any applicable requirement; any permit condition; or any fee or filing requirement. These fines shall be recoverable in a maximum amount of not less than $10,000 per day per violation.

(iii) Criminal fines shall be recoverable against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any required monitoring device or method. These fines shall be recoverable in a maximum amount of not less than $10,000 per day per violation.

(b) Burden of proof. 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 required under the Act.

(c) Appropriateness of penalties and fines. A civil penalty or criminal fine assessed, sought, or agreed upon by the permitting authority under paragraph (a)(3) of this section shall be appropriate to the violation.

Notes of Decisions

Cited in 3 cases (1 in the last 5 years), 2003–2021 · leading case: Pub. Citizen, Inc. v. United States Env't Prot. Agency, 343 F.3d 449 (5th Cir. 2003).

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Pub. Citizen, Inc. v. United States Env't Prot. Agency, 343 F.3d 449 (5th Cir. 2003). · cites it 2× “§ 7661a(b)(5); see also 40 C.F.R. § 70.11 (c) (penalties must be “appropriate to the violation”).”

Utah Physic. for Healthy Env't v. Diesel Power Gear, 21 F.4th 1229 (10th Cir. 2021). “”); 40 C.F.R. § 70.11 (establishing minimum requirements for state enforcement programs); Train v.”

United States v. East Kentucky Power Coop., Inc., 498 F. Supp. 2d 1010 (E.D. Ky. 2007). · cites it 2× “40 C.F.R. § 70.11 (a)(2)-(3). The Part 70 rules do, however, contain a “permit shield,” which shields sources from liability under certain circumstances.”

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