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(continued) i) The Director must give public notice that the following actions have occurred:

(A) A draft permit has been prepared. At least 30 days must be allowed for public comment on the draft permit unless the Director has previously provided for public comment, for example after receipt of the permit application.

(B) A meeting or hearing has been scheduled.

(ii) Methods. Public notice of activities described in paragraph (d)(5)(i) of this section must be given in the area affected by these activities by any method reasonably calculated to give actual notice of the action in question to any person affected or requesting notice of the action. Public notice may include publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity, press releases, or any other forum or medium to elicit public participation.

(iii) Contents.

(A) All public notices. All public notices issued under this part must contain the following minimum information:

(1) Name and address of the office processing the permit action for which notice is being given;

(2) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

(3) A brief description of the activity described in the permit application (including the inclusion of land application plan, if appropriate);

(4) Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet, and the application;

(5) A brief description of the comment procedures required by §501.15(d)(6) and the time and place of any meeting or hearing that will be held, including a Statement of procedures to request a meeting or hearing (unless a meeting or hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision; and

(6) Any additional information considered necessary or proper.

(B) Public notices for meetings or hearings. In addition to the general public notice described in paragraph (d)(5)(iii)(A) of this section, the public notice of a meeting or hearing must contain the following information:

(1) Date, time and place of the meeting or hearing; and

(2) A brief description of the nature and purpose of the meeting or hearing, including the applicable rules and procedures.

(6) Public comments and requests for public meetings or hearings. During the public comment period, any interested person may submit written comments on the draft permit and may request a public meeting or hearing, if no meeting or hearing has already been scheduled. A request for a public meeting or hearing must be in writing and must state the nature of the issues proposed to be raised in the meeting or hearing. All comments will be considered in making the final decision and must be answered as provided in paragraph (d)(8) of this section.

(7) Public meetings or hearings. The Director will hold a public meeting or hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit. The Director may also hold a public meeting or hearing at his or her discretion, (e.g. where such a hearing might clarify one or more issues involved in the permit decision).

(8) Response to comments. At the time a final permit is issued, the Director will issue a response to comments. The response to comments must be available to the public, and must:

(i) Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

(ii) Briefly describe and respond to all significant comments on the draft permit raised during the public comment period or during any meeting or hearing.

(e) Optional program provisions. The following provisions may be included in a State program at the State's option. If the State decides to adopt any of these provisions, they must be no less stringent than the corresponding Federal provisions:

(1) Continuation of expiring permits (40 CFR 122.6);

(2) General permits (40 CFR 122.28);

(3) Minor modifications of permits (40 CFR 122.63); and

(4) Effect of permit: affirmative defense (40 CFR 122.5(b)).

(f) Conflict of interest. Except as provided in paragraph (f)(2), State sludge management programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or has during the previous two years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.

(1) For the purposes of this paragraph:

(i) “Board or body” includes any individual, including the Director, who has or shares authority to approve all or portions of permits either in the first instance, as modified or reissued, or on appeal.

(ii) “Significant portion of income” means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement.

(iii) “Permit holders or applicants for a permit” does not include any department or agency of a State government, such as a Department of Parks or a Department of Fish and Wildlife.

(iv) “Income” includes retirement benefits, consultant fees, and stock dividends.

(v) Income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.

(2) The Administrator may waive the requirements of this paragraph if the board or body which approves all or portions of permits is subject to, and certifies that it meets, a conflict-of-interest standard imposed as part of another EPA-approved State permitting program or an equivalent standard.

[54 FR 18786, May 2, 1989, as amended at 58 FR 9414, Feb. 19, 1993; 58 FR 67984, Dec. 22, 1993; 63 FR 45125, Aug. 24, 1998; 64 FR 42470, Aug. 4, 1999; 70 FR 59889, Oct. 13, 2005]

§ 501.16 Requirements for compliance evaluation programs.
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State sludge management programs shall have requirements and procedures for compliance monitoring and evaluation as set forth in §123.26.

§ 501.17 Requirements for enforcement authority.
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(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;

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; and

(3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows:

(i) Civil penalties will be recoverable for the violation of any permit condition; any applicable standard or limitation; any filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or any regulation or orders issued by the State Program Director. The State must at a minimum, have the authority to assess penalties of up to $5,000 a day for each violation.

(ii) Criminal fines will be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any permit condition; or any filing requirement. The State must at a minimum, have the authority to assess fines of up to $10,000 a day for each violation. States which provide the criminal remedies based on “criminal negligence,” “gross negligence” or strict liability satisfy the requirement of this paragraph (a)(3)(ii) of this section.

(iii) Criminal fines will be recoverable against any person who knowingly makes any false statement, representation or certification in any program form, or in any notice or report required by a permit or State Program Director, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the State Program Director. The State must at a minimum, have the authority to assess fines of up to $5,000 for each instance of violation.

(b)(1) The civil penalty or criminal fine will be assessable for each instance of violation and, if the violation is continuous, will 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.

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 Program Director under paragraph (a)(3) of this section shall be appropriate to the violation.

(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 responses to all citizen complaints submitted pursuant to the procedures specified in 40 CFR 123.26(b)(4);

(ii) Not oppose intervention by any citizen in any civil or administrative proceeding 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 be approved under this part if they meet the requirements established in §501.25.

[54 FR 18786, May 2, 1989, as amended at 58 FR 67984, Dec. 22, 1993; 63 FR 45127, Aug. 24, 1998]

§ 501.18 Prohibition.
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State permit programs shall provide that no permit shall be issued when the Regional Administrator has objected in writing under 40 CFR 123.44.

§ 501.19 Sharing of information.
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State sludge management programs shall comply with the requirements of 40 CFR 123.41.

§ 501.20 Receipt and use of federal information.
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State sludge management programs shall comply with 40 CFR 123.42.

§ 501.21 Program reporting to EPA.
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The State Program Director must prepare annual reports as detailed in this section and must submit any reports required under this section to the Regional Administrator. These reports will serve as the main vehicle for the State to report on the status of its sludge management program, update its inventory of sewage sludge generators and sludge disposal facilities, and provide information on incidents of noncompliance. The State Program Director must submit these reports to the Regional Administrator according to a mutually agreed-upon schedule. The reports specified below may be combined with other reports to EPA (e.g., existing NPDES or RCRA reporting systems) where appropriate and must include the following:

(a) A summary of the incidents of noncompliance which occurred in the previous year that includes:

(1) The non-complying facilities by name and reference number;

(2) The type of noncompliance, a brief description and date(s) of the event;

(3) The date(s) and a brief description of the action(s) taken to ensure timely and appropriate action to achieve compliance;

(4) Status of the incident(s) of noncompliance with the date of resolution; and

(5) Any details which tend to explain or mitigate the incident(s) of noncompliance.

(b) Information to update the inventory of all sewage sludge generators and sewage sludge disposal facilities submitted with the program plan or in previous annual reports, including:

(1) Name and location;

(2) Permit numbers for permits containing sewage sludge requirements;

(3) Sludge management practice(s) used; and

(4) Sludge production volume.

[63 FR 45127, Aug. 24, 1998]

§ 501.22 Requirements for eligibility of Indian Tribes.
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(a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e), the Regional Administrator will treat an Indian Tribe as eligible to apply for sludge management program authority if it meets the following criteria:

(1) The Indian Tribe is recognized by the Secretary of the Interior.

(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.

(3) The functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the United States in trust for the Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation.

(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the Act and applicable regulations, of an effective sludge management program.

(b) An Indian Tribe which the Regional Administrator determines meets the criteria described in paragraph (a) of this section must also satisfy the State program requirements described in this part for assumption of the State program.

[58 FR 67984, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§ 501.23 Request by an Indian Tribe for a determination of eligibility.
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An Indian Tribe may apply to the Regional Administrator for a determination that it qualifies pursuant to section 518 of the Act for purposes of seeking sludge management program approval. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of §501.22. The application shall include the following information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior;

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. This statement should:

(1) Describe the form of the Tribal government;

(2) Describe the types of governmental functions currently performed by the Tribal governing body, such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the source of the Tribal government's authority to carry out the governmental functions currently being performed.

(c) A map or legal description of the area over which the Indian Tribe asserts authority under section 518(e)(2) of the Act; a statement by the Tribal Attorney General (or equivalent official authorized to represent the Tribe in all legal matters in court pertaining to the program for which it seeks approval) which describes the basis for the Tribe's assertion (including the nature or subject matter of the asserted regulatory authority); copies of those documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which the Tribe believes are relevant to its assertion under section 518(e)(2) of the Act.

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective, environmentally sound sludge management program. The statement should include:

(1) A description of the Indian Tribe's previous management experience which may include the administration of programs and service authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(2) A list of existing environmental or public health programs administered by the Tribal governing body, and a copy of related Tribal laws, regulations, and policies;

(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government;

(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary responsibility for establishing and administering a sludge management program (including a description of the relationship between the existing or proposed agency and its regulated entities);

(5) A description of the technical and administrative abilities of the staff to administer and manage an effective, environmentally sound sludge management program or a plan which proposes how the Tribe will acquire additional administrative and technical expertise. The plan must address how the Tribe will obtain the funds to acquire the administrative and technical expertise.

(e) The Regional Administrator may, at his discretion, request further documentation necessary to support a Tribe's eligibility.

(f) If the Administrator or her delegatee has previously determined that a Tribe has met the prerequisites that make it eligible to assume a role similar to that of a state as provided by statute under the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only that information unique to the sludge management program which is requested by the Regional Administrator.

[58 FR 67984, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§ 501.24 Procedures for processing an Indian Tribe's application.
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(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to §501.23 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) The Regional Administrator shall follow the procedures described in subpart C of this part in processing a Tribe's request to assume the sludge management program.

[58 FR 67985, Dec. 22, 1993, as amended at 59 FR 64346, Dec. 14, 1994]

§ 501.25 Provisions for Tribal criminal enforcement authority.
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To the extent that an Indian Tribe is precluded from asserting criminal enforcement authority as required under §§501.1(c)(5) and 501.17, the Federal Government will exercise primary criminal enforcement responsibility. The Tribe, with the EPA Region, shall develop a procedure by which the Tribal agency will refer potential criminal violations to the Regional Administrator, as agreed to by the parties, in an appropriate and timely manner. This procedure shall encompass all circumstances in which the Tribe is incapable of exercising the enforcement requirements of §§501.1(c)(5) and 501.17. This agreement shall be incorporated into a joint or separate Memorandum of Agreement with the EPA Region, as appropriate.

[58 FR 67985, Dec. 22, 1993]

Subpart C—Program Approval, Revision and Withdrawal
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§ 501.31 Review and approval procedures.
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(a) EPA shall approve or disapprove a State's application for approval of its State sludge management program within 90 days after receiving a complete program submission.

(b) Within 30 days of receipt by EPA of a State program submission, EPA will notify the State whether its submission is complete. If EPA finds that a State's submission is complete, the 90-day review period will be deemed to have begun on the date of the completeness determination. If EPA finds that a State's submission is incomplete, the review period will not begin until all the necessary information is received by EPA.

(c) After determining that a State program submission is complete, EPA will publish notice of the State's application in the Federal Register and in enough of the largest newspapers in the State to attract statewide attention. EPA will mail notices to persons known to be interested in such matters, including all persons on appropriate State and EPA mailing lists and all treatment works treating domestic sewage listed on the inventory required by §501.12(f) of this part. The notice will:

(1) Provide a comment period of not less than 45 days during which interested members of the public may express their views on the State program;

(2) Provide opportunity for a public hearing within the State to be held no less than 30 days after notice is published in the Federal Register and indicate when and where the hearing is to be held, or how interested persons may request that a hearing be held if a hearing has not been scheduled. EPA shall hold a public hearing whenever the Regional Administrator finds, on the basis of requests, a significant degree of public interest in the State's application or that a public hearing might clarify one or more issues involved in the State's application.

(3) Indicate the cost of obtaining a copy of the State's submission;

(4) Indicate where and when the State's submission may be reviewed by the public;

(5) Indicate whom an interested member of the public should contact with any questions; and

(6) Briefly outline the fundamental aspects of the State's proposed program, and the process for EPA review and decision.

(d) Within 90 days after determining that the State has submitted a complete program, the Administrator shall approve or disapprove the program based on the requirements of this part and of the CWA and after taking into consideration all comments received. A responsiveness summary shall be prepared by the Regional Office which identifies the public participation activities conducted, describes the matters presented to the public, summarizes significant comments received and explains EPA's response to these comments.

(e) The State and EPA may extend the 90-day review period by mutual agreement.

(f) If the State's submission is materially changed during the 90-day review, either as a result of EPA's review or the State action, the official review period shall begin again upon receipt of the revised submission.

(g) Notice of program approval shall be published by EPA in the Federal Register.

(h) If the Administrator disapproves the State program he or she shall notify the State of the reasons for disapproval and of any revisions or modifications to the State program which are necessary to obtain approval.

§ 501.32 Procedures for revision of State programs.
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(a) Any State with an approved State program which requires revision to comply with amendments to federal regulations governing sewage sludge use or disposal (including revisions to this part) must revise its program within one year after promulgation of applicable regulations, unless either the State must amend or enact a statute in order to make the required revision, in which case such revision must take place within 2 years; or a different schedule is established under the Memorandum of Agreement.

(b) State sludge management programs shall follow the procedures for program revision set forth in 40 CFR 123.62.

[54 FR 18786, May 2, 1989, as amended at 63 FR 45127, Aug. 24, 1998]

§ 501.33 Criteria for withdrawal of State programs.
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The criteria for withdrawal of sludge management programs shall be those set forth in 40 CFR 123.63.

§ 501.34 Procedures for withdrawal of State programs.
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The procedures for withdrawal of sludge management programs shall be those set forth in 40 CFR 123.64.