49-354. Enforcement; violation; classification; compliance orders; judicial review; injunctive relief; civil administrative penalties; civil penalties
A. A person who violates this article or a rule adopted pursuant to this article is guilty of a class 2 misdemeanor for each violation. In the instance of a continuing violation, each day a violation continues constitutes a separate offense.
B. If the director determines that a person is in violation of this article or a rule adopted pursuant to this article, the director may issue an order requiring compliance immediately or within a specified time period. A compliance order shall state with reasonable specificity the nature of the violation, a time for compliance if applicable and the right to a hearing. The director shall transmit the compliance order to the alleged violator by certified mail, return receipt requested, or by hand delivery. A compliance order becomes final and enforceable in the superior court unless within thirty days after the receipt of the order the alleged violator requests a hearing before an administrative law judge pursuant to title 41, chapter 6, article 10. If a hearing is requested, the order does not become final until the administrative law judge has issued a final decision on the appeal. Except as provided in section 41-1092.08, subsection H, a final administrative decision is subject to judicial review pursuant to title 12, chapter 7, article 6. At the request of the director, the attorney general may begin an action in superior court to enforce orders issued under this subsection after an order becomes final.
C. If the director determines that a person is in violation of this article or a rule adopted pursuant to this article to implement the requirements contained in 40 Code of Federal Regulations parts 141 and 142, including the national primary drinking water regulations, the director may issue a compliance order pursuant to subsection B of this section imposing a civil administrative penalty. All penalty amounts shall be calculated as follows:
1. If the violator is a public water system that serves more than ten thousand persons, the director may impose a civil administrative penalty of up to $1, 000 per day per violation up to $10, 000 per violation.
2. If the violator is a public water system that serves five hundred to ten thousand persons, the director may impose a civil administrative penalty that does not exceed $500 per day per violation up to $5, 000 per violation.
3. If the violator is a public water system that serves fewer than five hundred persons, the director may impose a civil administrative penalty that does not exceed $100 per day per violation up to $1, 000 per violation.
D. When determining the amount of a civil administrative penalty pursuant to subsection C of this section, the director shall consider all of the following:
1. The size of the public water system.
2. Any good faith effort by the public water system to maintain compliance with national primary drinking water regulations.
3. The seriousness of the violation.
4. Any history of violation of the national primary drinking water regulations.
5. Any history of recalcitrance by the violator.
6. Any economic benefit resulting from the violation, as an aggravating factor only.
7. Any other factor deemed relevant.
E. For a public water system that is regulated as a public service corporation by the corporation commission, the department shall make a written request to the chairperson and executive director of the corporation commission to take necessary corrective actions, and the corporation commission shall commence necessary corrective actions within thirty calendar days after both of the following conditions occur:
1. The department does any one or more of the following:
(a) Determines that the facility is out of compliance with an administrative order issued by the department for a violation of this chapter.
(b) Files a civil action against the owner or operator of the public water system for a violation of this chapter.
(c) Determines that an emergency exists with respect to the public water system.
2. The department determines that the corporation commission taking necessary corrective actions would expedite the public water system's return to compliance with this chapter.
F. If the department makes a written request to the corporation commission as prescribed by subsection E of this section, the department shall provide a copy of the request to the governing body of any local jurisdiction with residents served by the facility or system that is the subject of the request.
G. Civil administrative penalties may not be recovered pursuant to subsection C of this section if civil penalties are sought pursuant to subsection I of this section for the same violation.
H. All civil administrative penalties obtained pursuant to subsection C of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.
I. In addition to the authority provided in subsection C of this section, the attorney general may, and at the request of the director shall, begin an action in superior court to recover civil penalties in an amount of not more than $500 per violation per day from any person who violates this article or a rule adopted pursuant to this article. All civil penalties obtained under this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. Civil penalties may not be recovered pursuant to this subsection if civil administrative penalties are sought pursuant to subsection C of this section for the same violation.
J. If the director has reason to believe that a person is in violation of this article or a rule adopted or an order issued pursuant to this article or believes that a person is creating an actual or potential endangerment to the public health because of acts performed in violation of this article or a rule adopted pursuant to this article, the director, through the attorney general, may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health.