RS 5.9 - Enforcement of drinking water regulations; administrative compliance orders; civil actions; receiverships
A.(1) The state health officer may issue orders to such persons as he deems necessary to aid in the enforcement of the provisions of this Chapter relative to public water systems and regulations adopted under this Chapter relative to public water systems, including orders modifying, suspending, or revoking permits, variances, or exemptions, and orders requiring persons to comply with a rule, regulation, schedule, or other requirement of the state health officer. An order may also require remedial actions to be taken to prevent harm to public safety, health, or welfare. The power to issue an order under this Chapter is in addition to any other remedy afforded to the state health officer by law.
(2) Any administrative order issued under this Section shall:
(a) Notwithstanding the requirements of R.S. 40:2, be signed by the state health officer and shall be effective upon issuance unless a later date is specified therein.
(b) State with reasonable specificity the nature of the violation.
(c) State a time limit for compliance.
(d) State that in the event of noncompliance, a civil penalty may be assessed.
(e) State that the order shall become final and not subject to further review twenty days after notice of the order is served by certified mail or hand-delivered to the respondent, unless the respondent files a written request for a hearing with the state health officer within that twenty-day period. Upon finding that an emergency exists which requires that immediate action be taken, the state health officer shall issue such emergency orders as are necessary, which shall be effective immediately upon issuance, and any request for hearing shall not suspend the implementation of the action ordered.
(f) Be subject to appeal procedures set forth by state law.
(3) Notwithstanding the provisions of R.S. 40:6, any person who violates a provision of an administrative compliance order of the state health officer made under Subsection A of this Section may be subject to a civil penalty of not more than three thousand dollars a day for each day of violation and for each act of violation.
(4) Any civil penalty under this Section shall be assessed by the state health officer. The state health officer is hereby authorized to promulgate rules, in accordance with the provisions of the Administrative Procedure Act, R.S. 49:950 et seq., which delineate a procedure for calculating the monetary amount of the civil penalty assessment based upon such factors as the seriousness of the violation, culpability of the owner and/or operator, size of the public water system, and the duration of the violation. All penalties imposed under this Section shall be paid to the office of public health of the Louisiana Department of Health and transmitted for deposit into the state treasury.
(5) If any person fails to pay an assessment of a civil penalty after it has become final and unappealable, or after the appropriate court of appeal has entered final judgment in favor of the state health officer, the state health officer shall bring an action to recover the amount for which such person is liable in any court of competent jurisdiction. In any such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.
(6) If civil action is necessary to recover penalties imposed under this Section, the violator shall be liable for the amount of the penalty, legal interest from the date of assessment, and all costs of recovery, including legal fees and court costs.
(7) The state health officer, with the approval of the secretary of the Louisiana Department of Health, may settle or resolve out of court any suit for recovery of penalties if deemed in the best interest of the state.
B.(1) Any civil action necessary to carry out provisions of this Chapter relative to public water systems shall be brought by the state health officer, notwithstanding the provisions of R.S. 40:4(B)(2) and 6(C).
(2) To protect and preserve the health of the citizens of the state, the state health officer may apply to a court of competent jurisdiction for injunctive relief, without bond, when there is reason to believe that the state health officer's administrative orders will not be obeyed, when there is evidence that the public water system has failed to comply with previously issued orders, or when necessary to assist in enforcing emergency orders when there exists serious and imminent danger to public health.
(3) The state health officer may also bring a civil action in a court of competent jurisdiction to require compliance: with any provision of this Chapter relative to public water systems; with a rule, regulation, or order of the state health officer made hereunder; with a civil penalty assessment imposed under Paragraph (A)(3) of this Section; or with any schedule or other requirement imposed pursuant to a permit, license, variance, or exemption granted under this Chapter relative to public water systems.
(4) In an action brought under this Chapter relative to public water systems, the court may enter such judgment as protection of public health may require, taking into consideration the time necessary to comply and the availability of alternative water supplies.
(5) If, in an action brought under this Chapter, the court determines that there has been a violation of this Chapter relative to public water systems, or a rule, regulation, order, schedule, or other requirement hereunder for which such action was brought, the court, taking into account the seriousness of the violation, the population at risk, and other appropriate factors, may impose on the violator a civil penalty not to exceed three thousand dollars a day for each day of violation and for each act of violation.
C.(1) In any civil action brought under this Chapter relative to public water systems, the court may, on its own motion or upon application of the state health officer, appoint a receiver to collect the assets and carry on the business of the defendant public water system and to otherwise assist the court in adjudicating the issues in the case before the court. Application by the state health officer shall not be subject to any bond requirement.
(2) The court may place the public water system in receivership upon finding one of the following:
(a) The system has been abandoned by the operator, or service to the system's customers has ceased, and no provisions have been made for the continued operation of the system by a qualified operator, or for providing the water system's users with potable water in sufficient quantities to serve the users of the systems.
(b) The operator of the system has failed or refused to comply with administrative orders issued pursuant to Subsection A of this Section.
(c) Such circumstances as may be identified in rules promulgated by the state health officer acting through the Louisiana Department of Health, office of public health, under which a receivership may be needed.
(3) The receiver shall execute a bond to assure the proper performance of the receiver's duties in an amount to be set by the court. However, if the receiver is a local governmental subdivision, no bond shall be required.
(4) No later than ninety days after appointment, the receiver shall develop and submit an improvement plan to the Louisiana Department of Health for approval. The improvement plan shall include the ability to increase rates paid by users of the community water system based on a fair assessment of the community water system compared to other comparable water systems, the consolidation of the community water system with a neighboring system or systems, or other measure which may be proposed by the receiver or the Louisiana Department of Health to ensure the sustainability of the system for the benefit of the customers who rely on the community water system for their drinking water. The receiver shall include in the improvement plan any additional measures proposed by the Louisiana Department of Health necessary to bring the community water system into technical and operational compliance and financial sustainability. The appointing court shall grant authority to the receiver necessary to implement the improvement plan as approved by the Louisiana Department of Health. Rate adjustments shall be subject to approval by the appropriate rate setting authority.
(5) The receiver shall carry out the orders specified and directed by the court until discharged.
(6) The court may dissolve the receivership if the person owning or operating the defendant public water system requests that the receivership be dissolved and such owner or operator can show good cause for the dissolution of the receivership.
Acts 1991, No. 537, §1; Acts 1997, No. 983, §1; Acts 2018, No. 206, §4; Acts 2021, No. 98, §1.