49-354

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 one thousand
dollars per day per violation up to ten thousand dollars 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 five hundred dollars per day per violation up to five thousand dollars 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
one hundred dollars per day per violation up to one thousand dollars 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. Civil administrative penalties may not be recovered pursuant to subsection C
of this section if civil penalties are sought pursuant to subsection G of this section
for the same violation.

F. 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.

G. 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 five hundred
dollars 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.

H. 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.