(1) The division of administration of the department may institute a civil action or administrative action, as described in subsection (2.5) of this section, against any person who violates a final enforcement order of the department issued for a violation of any minimum general sanitary standard or regulation adopted pursuant to section 25-1.5-202. Such civil action shall be brought in the district court of the county in which the violation of the standard or regulation is alleged to have occurred.
(2) Upon finding that a final enforcement order of the department has been violated and that the violation of the standard or regulation described in the order in fact occurred, the court shall:
Impose a civil penalty on the violator of not more than one thousand dollars per dayfor each day the violation of the standard or regulation occurred if the court determines the violation was willful; or
Enter such order as the public health may require, taking into consideration, whereappropriate, the cost and time necessary to comply; or
Impose such civil penalty and enter such order.
(2.5) (a) Any person who violates any minimum general sanitary standard and regulation promulgated pursuant to section 25-1.5-202 or 25-1-114 (1)(h), or any final enforcement order issued by the department, shall be subject to an administrative penalty as follows:
For systems that serve a population of more than ten thousand people, an amount notto exceed one thousand dollars per violation per day; or
For systems that serve a population of ten thousand people or less, an amount not toexceed one thousand dollars per violation per day, but only in an amount, as determined by the division, that is necessary to ensure compliance.
(b) Penalties under this subsection (2.5) shall be determined by the executive director or the executive director's designee and may be collected by the division of administration by an action instituted in a court of competent jurisdiction for collection of such penalty. The final decision of the executive director or the executive director's designee may be appealed to the water quality control commission, created pursuant to section 25-8-201. A stay of any order of the division ending judicial review shall not relieve any person from any liability with respect to past or continuing violations of any minimum general sanitary standard or any regulation promulgated pursuant to section 25-1.5-202 or 25-1-114 (1)(h), but the reason for the request for judicial review shall be considered in the determination of the amount of the penalty. In the event that such an action is instituted for the collection of such penalty, the court may consider the appropriateness of the amount of the penalty, if such issue is raised by the party against whom the penalty was assessed. Any administrative penalty collected under this section shall be credited to the general fund.
The department may request the attorney general to bring a suit for a temporaryrestraining order or a preliminary or permanent injunction to prevent or abate any violation of a minimum general sanitary standard or regulation adopted pursuant to section 25-1.5-202 or to prevent or abate any release or imminent release that causes or is likely to cause contamination resulting in liability under section 25-1.5-207, and the department, in such a suit, may collect, on behalf of political subdivisions or public water systems, the damages incurred by such political subdivisions or public water systems under section 25-1.5-207. The department shall pay to such political subdivisions or public water systems all damages collected on their behalf. The department is not required to issue an enforcement order prior to institution of such a suit. Upon a de novo finding by the court that such a violation has occurred, is occurring, or is about to occur or that such release or imminent release exists, the court may enjoin such violation, release, or imminent release and enter such order as the public health may require, taking into consideration, where appropriate, the cost and time necessary to comply. An enforcement settlement with the state under the provisions of this subsection (3) shall bar a separate action by a political subdivision or public water system under section 25-1.5-207 whenever notice and adequate opportunity to comment on the proposed settlement have been given to the political subdivision or public water system, damages have been collected on behalf of and paid to such political subdivision or public water system by the state, and the release or imminent release has been prevented or abated by means of the settlement.
Suits brought pursuant to subsection (3) of this section shall be brought in the districtcourt of the county in which the violation is alleged to have occurred. The institution of such a suit by the division of administration shall confer upon such court exclusive jurisdiction to determine finally the subject matter of the proceeding; except that the exclusive jurisdiction of the court shall apply only to such proceeding and shall not preclude assessment of any civil penalties or any other enforcement action or sanction authorized by this section.
(4.5) An action for civil penalties under this section may be joined with a civil action to recover the state's costs pursuant to subsection (3) of this section.
The powers of the department established by this section shall be in addition to, andnot in derogation of, any powers of the department.
(a) The attorney general, at the request of the department, or the district attorney of the county in which an affected public water system is located or the attorney of the supplier of water may institute a civil action against any person, association, or corporation, or the officers thereof, who tampers, attempts to tamper, or threatens to tamper with a public water system or with drinking water after its withdrawal for or treatment by a public water system. Such action shall be brought in the district court of the county in which the violation is alleged to have occurred. As used in this subsection (6), "tamper" means to introduce a contaminant into a public water system or into drinking water or to otherwise interfere with drinking water or the operation of a public water system with the intention of harming persons or public water systems. "Tamper" does not include the standardized and accepted treatment procedures performed by a supplier of water in preparing water for human consumption.
(b) Upon finding that tampering, attempting to tamper, or threatening to tamper has occurred, the court shall have the authority to:
Order appropriate injunctive relief;
Impose a civil penalty on the violator of not more than fifty thousand dollars foreach act of tampering or of not more than twenty thousand dollars for each act of attempting to tamper or threatening to tamper;
Impose on the violator all costs incurred by the state and by the affected publicwater system in assessing and remedying all consequences of the tampering, attempting to tamper, or threatening to tamper; and
Impose on the violator all court costs associated with remedying consequences ofthe tampering, attempting to tamper, or threatening to tamper.
(7) Any person subject to an action brought pursuant to subsection (3) of this section or section 25-1.5-207 shall have an affirmative defense to such action if such person's potential liability results from a discharge of contaminants or substances authorized by and in substantial compliance with an existing federal or state permit which controls the quality of the release of the contaminant or substance.
Source: L. 77: Entire section added, p. 1262, § 1, effective July 1. L. 83: (1) and (2) amended and (3) and (5) added, p. 1029, § 1, effective July 1. L. 87: (6) added, p. 610, § 22, effective July 1. L. 88: (3) amended and (4.5) and (7) added, p. 996, § 3, effective May 11. L. 98: (1) amended and (2.5) added, p. 889, § 2, effective August 5. L. 2003: (1), IP(2.5)(a), (2.5)(b), (3), and (7) amended, p. 706, § 32, effective July 1. L. 2008: (2.5)(b) amended, p. 430, § 1, effective August 5.