49-262

49-262. Injunctive relief; civil penalties;
recovery of litigation costs

A. Whether or not a person has requested a hearing, 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 if the
director has reason to believe either of the following:

1. That a person is in violation of:

(a) Any provision of article 2, 3 or 3.1 of this chapter.

(b) A rule adopted pursuant to section 49-203, subsection A, paragraph 6.

(d) A discharge limitation or any other condition of a permit issued under article
2, 3 or 3.1 of this chapter.

2. That a person is creating an actual or potential endangerment to the public
health or environment because of acts performed in violation of this chapter.

B. Notwithstanding any other provision of this chapter, if the director, the county
attorney or the attorney general has reason to believe that a person is creating an
imminent and substantial endangerment to the public health or environment because of acts
performed in violation of article 2, 3 or 3.1 of this chapter or a rule adopted or a
condition of a permit issued pursuant to section 49-203, subsection A, paragraph 2, 6 or
7, the county attorney or attorney general may request a temporary restraining order, a
preliminary injunction, a permanent injunction or any other relief necessary to protect
the public health.

C. A person who violates any provision of article 2, 3 or 3.1 of this chapter or a
rule, permit, discharge limitation or order issued or adopted pursuant to article 2, 3 or
3.1 of this chapter is subject to a civil penalty of not to exceed twenty-five thousand
dollars per day per violation. A person who violates any rule adopted or a condition of
a permit issued pursuant to section 49-203, subsection A, paragraph 6 is subject to a
civil penalty of not to exceed five thousand dollars per day per violation. The attorney
general may, and at the request of the director shall, commence an action in superior
court to recover civil penalties provided by this section.

D. The court, in issuing any final order in any civil action brought under this
section, may award costs of litigation, including reasonable attorney and expert witness
fees, to any substantially prevailing party if the court determines such an award is
appropriate. If a temporary restraining order is sought, the court may require the
filing of a bond or equivalent security.

E. All civil penalties except litigation costs obtained under this section shall be
deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

F. Except as applied to permits issued or authorized pursuant to article 3.1 of
this chapter, it shall be an affirmative defense to civil liability under this section
and section 49-261 for causing or contributing to a violation of a water quality standard
established pursuant to this chapter, or a violation of a permit condition prohibiting a
violation of an aquifer water quality standard or limitation at the point of compliance
or a surface water quality standard if the release that caused or contributed to the
violation came from a facility owned or operated by a party that has either:

1. Undertaken a remedial or response action approved by the director or the
administrator under this title or CERCLA in response to the release of a hazardous
substance, pollutant or contaminant that caused or contributed to the violation of
article 2 of this chapter and is in compliance with that remedial or response action.

2. Otherwise resolved its liability for the release of a hazardous substance that
caused or contributed to the violation of article 2 of this chapter in whole or in part
by the execution of a settlement agreement or consent decree with the director or
administrator under this article, CERCLA or any other environmental law and is in
compliance with that settlement agreement or consent decree.

G. Subsection F of this section does not prevent the director from taking an
appropriate enforcement action to address the release of a hazardous substance, pollutant
or contaminant or the violation of a permit condition before or as an element of an
approved remedial or response action, settlement agreement or consent decree.

H. In determining the amount of a civil penalty for a violation under article 3 or
3.1 of this chapter, the court shall consider the following factors:

1. The seriousness of the violation or violations.

2. The economic benefit if any that results from the violation.

3. Any history of similar violations.

4. Any good faith efforts to comply with the applicable requirements.

5. The economic impact of the penalty on the violator.

6. The extent to which the violation was caused by a third party.

7. Other matters as justice may require.

I. A single operational upset that leads to simultaneous violations of more than
one pollutant limitation in a permit issued or authorized pursuant to section 49-255.01
constitutes a single violation for purposes of any penalty calculation.

J. If a permittee holds both a permit issued or authorized pursuant to article 3 of
this chapter and a permit issued or authorized pursuant to article 3.1 of this chapter
and the permittee violates a similar provision in both permits simultaneously, the
department shall not recover penalties for violations of both permits based on the same
act or omission.