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WASHINGTON
TABLE WA-1
ENFORCEMENT TRACKING PRINTOUT
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46
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WASHINGTON
TABLE WA-2
STATUS OF DRINKING WATER ENFORCEMENT ACTIONS FOR 1989
Name
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Name
1
Date
1/3
1/20
3/9
3/10
4/3
4/14
4/18
5/16
6/7
6/7
6/7
6/20
7/10
7/18
8/3
8/28
9/21
9/21
9/25
10/25
11/21
12/11
Date
2/24
County
Yakima
Kitsap
Yakima
Pierce
Pierce
Thurston
King
Whatcom
Whatcom
Whatcom
Chelan
Island
King
Challam
Pierce
Thurston
King
Yakima
Thurston
Benton
Grant
Pierce
County
Whatcom
Action
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Direct Order
Action
Penalty
Violation
Certified Operator
Facility; Bacti MCL; ICHEM, Rad, &
Inad. pressure, Bacti Mon.
Facility, Bacti Mon.
Mn MCL, Rad. Mon.
Facility
Bacti Mon., MCL
Bacti Mon., MCL
Bacti Mon., Nitrate MCL
Nitrate MCL, Unapproved well
Bacti Mon., MCL Facility
Bacti Mon., MCL
Bacti Mon., MCL
Cert. Op., Chlorine/turbidity reports
Lack of water system plan
Bacti, ICHEM Mon., Facility
Bacti, ICHEM, Rad. Mon., Facil.
Water system plan, as-builts required
ICHEM Mon., Unapproved wells
Facility, Inad. pressure
Inad. and unapproved source for large
Manganese MCL
Amount Comments
$1,200 Requested hearing,
Bacti Mon.
concerts
remiss/mit,
2/24 Pierce Penalty $1,000
3/24 Pierce Penalty $1,000
4
5
6
4/7
8/8
10/25
Island
Yakima
Stevens
Penalty
Penalty
Penalty
$1,000
$2,400
$1,000
Denied remiss/mit. due to failure
to meet revised deadlines
Inadequate pressure. Applied for
remiss/mit. May remit fine if
revised plan due 12/89 is ok.
Applied for remiss/mit. Fine not
remitted. Administrative hearing
held 11/21/89.
In compliance.
In compliance.
Did not pay or apply for hearing.
Need to collect.
Date County Action Comments
2/22 Attorney In compliance. Fines were paid.
General action;
Agreed Order of
Dismissal
5/23 Modified Order 12 hepatitis A cases previously reported. New well
is supplying water.
47
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WASHINGTON
TABLE WA-2 (cont.)
Name Date County Action Comments
3 6/21 Notice of Will remit fine if terms of agreed order are met.
Disposition for
Remission or
Mitigation of
Penalty
4 6/26 Stipulation and Will remit fine if bacti, 1CHEM mon. and repairs are
Agreed Orders made by specified deadlines. (System is in
compliance.)
5 6/27 Notice of $1,000 penalty previously imposed is affirmed.
Disposition for
Remission or
Mitigation of
Penalty
6 8/3 Attorney $4,200 fine mitigated to $2,000 providing terms are
General action; met. Received 6 payments of $300
Stipulation and
Agreed Order
7 11/20 Attorney Administrative Hearing held 11/21/89.
General action:
Department's
Hearing
Memorandum
8 11/29 Attorney Penalty dismissed. Will reimpose if does not
General action: cooperate.
Stipulation re
Agreed Order
9 11/30 Notice of $1200 fine previously imposed is affirmed.
Disposition for
Remission or
Mitigation of
Penalty
The Department enjoys much flexibility in reaching agreements with violators, and
as mentioned previously, the Attorney General provides advice on the best approach. In
one case, an administrative penalty of $4,000 was reduced to $600, but $2,000 was placed
in an escrow account and will go directly to the Department if the system fails to meet the
requirements in the agreed order. Another agreement allowed for installment payments of
$150 per month. All administrative penalties collected are deposited in the State Treasury.
Appeals: A system has 14 days to apply for mitigation of an administrative penalty
and 28 days to apply for an adjudicatory hearing. If an application is made for mitigation,
the system may still apply for a hearing after the Department gives its decision on
mitigation.
48
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WASHINGTON
If the system applies for mitigation, the Department sends a letter explaining why the
penalty was assessed. The system has 2 weeks to submit information that refutes the
allegation. The Department can then mitigate the penalty, sign an agreement with the
system, or affirm the penalty. Previously, an administrative penalty could be completely
repealed; however, recent legislation prohibits the Department from mitigating a penalty
below $500.
Following an effort at mitigation, a system still has 28 days to request a hearing.
Hearings are governed by the Administrative Procedures Act, and an Administrative Law
Judge in the Office of Hearings (an independent agency) presides. The hearing is similar
to a court proceeding, but it is less formal and hearsay evidence is allowed. If the decision
of the Administrative Law Judge is appealed, the case goes to a Review Judge (currently
in the Department of Social and Health Services until the Department of Health gets its
own). If the Review Judge's decision is appealed, the case goes to court. Only two cases
have gone to administrative hearing, and only one has been appealed to a Review Judge;
seven applications for appeal were dropped.
STATE'S ASSESSMENT OF PROGRAM EFFECTIVENESS
The program receives a high grade from the Department; enforcement activities
were not achieving desired results before receiving administrative penalty authority.
Administrative penalties, although not always successful, are considered the Department's
best tool. However, it is believed that having other tools would strengthen the enforcement
program even more. These tools include having a stronger receivership law, being able to
obtain money for willing receivers, having the ability to issue operating permits, and having
lien authority.
49
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OTHER STATES
STATE ADMINISTRATIVE PENALTY PROGRAMS
OTHER STATE INFORMATION
This chapter summarizes the information submitted by the 17 States that have
administrative penalties as an enforcement option but that were not included in the in-depth
case-study analysis. Although five of these States (Idaho, Ohio, Utah, Vermont, and
Virginia) cannot assess administrative penalties unilaterally, they can assess penalties in
bilateral agreements or consent orders. A brief summary of each State's enforcement
procedures is provided. However, laws and regulations often provide only the foundation
on which a program is built, and actual practices may differ significantly from strict
interpretations of legal or regulatory requirements. The following information is provided
to supplement the case studies, and it is emphasized that it does not represent a
comprehensive description of how each program works.
50
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GEORGIA
GEORGIA
Section 5, paragraph 8 of the Georgia Safe Drinking Water Act of 1977 (Act No.
231) gives the Director of the Division of Environmental Protection, Department of Natural
Resources, the authority to issue orders. Section 15 states that when the Director believes
that a violation has occurred, an attempt must be made to obtain compliance through
conference, conciliation, or persuasion, if appropriate. If this effort fails, the Director may
order the violator to take any corrective action deemed necessary to obtain compliance.
Any order issued by the Director is final unless a written request for a hearing is submitted
within 30 days. Anyone who has exhausted all administrative remedies may request judicial
review by a superior court. Section 19, paragraph b, states that when it is believed that a
person has violated the act or has failed to comply with an order, the Director may initiate
a hearing. In its initial decision, the hearing officer may impose a civil penalty. Penalties
for violations can be up to $1,000 plus an additional $500 per day; for willful violations, the
penalty can be $5,000 per day.
All enforcement actions are conducted in accordance with the Georgia
Administrative Procedures Act. Hearings and judicial reviews of final orders are conducted
in accordance with the provisions in section 17(a) of the Executive Reorganization Act of
1972.
51
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GUAM
GUAM
A notice of violation is initially issued specifying the violation. An administrative
order then may be issued requiring that a violation be stopped, that a civil penalty be paid,
or that the violator appeal before the administrator. The maximum administrative penalty
is $5,000 per day per violation. A hearing must be requested within 10 days, or the order
becomes final.
The Administrator of the Guam Environmental Protection Agency may also institute
a civil action to enforce orders or for injunctive relief. Criminal proceedings carry a
maximum penalty of $5,000 per day per violation.
52
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HAWAII
HAWAII
Section 340E-8 of Hawaii's Safe Drinking Water Act allows the Director of the
Department of Health to enforce drinking water regulations, either administratively or
judicially. Administratively, if the Director determines that a violation has occurred, a
notice of violation and an order may be issued. The notice specifies the alleged violation;
the order lists what the system is required to do, which may include payment of a civil
penalty. Administrative penalty assessments may not exceed $25,000 per day of violation.
The order becomes final in 20 days unless a hearing is requested. In addition, the Director
may choose to initiate a civil action for injunctive relief or for the enforcement of an
administrative order.
The Division has been most successful in gaining compliance through enforcement
activities not involving the assessment of administrative penalties. One example was cited
in which a water system procured several million dollars through Congress to plan, design,
and construct a treatment facility within 15 months after discovering a trichloroethylene
violation; if formal enforcement action had taken place, the effort probably would have been
delayed in litigation. Another example concerned a county water department that expended
more than $20 million for capital improvement projects without administrative penalties
being assessed. However, the Department had issued administrative orders containing strict
compliance schedules and if the water company had not complied, administrative penalties
would have been assessed.
53
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IDAHO
IDAHO
On July 1, 1986, legislation was signed that allowed the use of administrative
penalties. Section 39-108, paragraph 3 of the Idaho Code states that the Director of the
Department of Health and Welfare may initiate civil or administrative enforcement actions.
The Director may start an administrative enforcement action by issuing a written
notice of violation that identifies the violation, specifies the requirement being violated, and
states the amount of civil penalty claimed. The notice of violation must also provide
information regarding the opportunity for a compliance conference. The alleged violator
has 15 days to respond to the notice. If the alleged violator responds, a compliance
conference is scheduled within 20 days (from the receipt of the notice). A compliance
conference provides the alleged violator with the opportunity to explain the circumstances
of the violation and to present a proposal that will remedy damage and assure future
compliance.
If the alleged violator and the Director agree on a plan for damage correction and
future compliance, they may enter into a consent order that formalizes the agreement. A
consent order may include a provision for the payment of any agreed penalty. A consent
order is effective immediately and precludes any formal civil enforcement action for the
same violation. If a party does not comply with the terms of the consent order, the Director
may seek and obtain specific performance of the order or other form of relief in an
appropriate district court.
If the parties cannot reach agreement on a consent order within 60 days after the
receipt of the notice of violation or if the recipient does not request a compliance
conference, the Director may then initiate a civil enforcement action through the Attorney
General.
Any person determined in a civil enforcement action to have committed a violation
is liable for a civil penalty that cannot exceed $10,000 per violation or $1,000 per day of a
continuing violation, whichever is greater. Collected penalties ate paid into the State's
General Fund.
Penalties are rarely assessed because most of the violating water systems are very
small. When used, penalties are effective but followups, appeals, etc., are extremely time-
consuming.
54
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IOWA
IOWA
Iowa's Department of Natural Resources is responsible for drinking water
enforcement. Section 455B.109 of the Code of Iowa states that a schedule or range of civil
penalties that may be administratively assessed for minor violations can be established. This
schedule must provide procedures and criteria for the administrative assessment of penalties.
In addition, a screening process for determining which cases are appropriate for
administrative penalty assessments must be developed. Chapter 567-10 of Iowa's
Administrative Code became effective in September 1985 and contains the criteria for
screening and assessing administrative penalties.
All formal enforcement actions are processed through the Legal Services Bureau of
the Department. The legal staff screens each case to determine the most equitable and
efficient means of redressing and abating the violation. In evaluating a violation to
determine which cases may be appropriate for the administrative assessment of penalties
and for determining the amount of an administrative penalty, the department considers,
among other relevant factors, the following:
The costs saved or likely to be saved by the violator's noncompliance. (If the
violator realizes an economic benefit through the violation or by not taking
timely compliance or corrective measures, the Department takes enforcement
actions including the assessment of a penalty that, at a minimum, offsets the
economic benefit. Reasonable estimates of economic benefits are made when
clear data are not available.)
The gravity of the violation, including the actual or threatened harm to the
environment or public health and safety; involvement of toxic or hazardous
substances or potential long-term effects of the violation; the degree to which
ambient or source-specific standards are exceeded; Federal program priorities;
size of the facility; whether or not the violation is repeated; if there is a
violation of an administrative or court order; if the type of violation threatens
the integrity of a regulatory program; and expenses or efforts by the
government in detecting, documenting, or responding to a violation.
Culpability, including the degree of intent or negligence; whether or not the
case involves false reporting of required information or tampering with
monitoring devices; and if the violator has taken remedial measures or
mitigated the harm caused by the violation.
55
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IOWA
The maximum penalty authorized for that violation. (The Department
considers the maximum daily penalty provided and the cumulative maximum
allowed.)
Whether or not the assessment of administrative penalties appears to be the
only or most appropriate way to defer future violations, either by the person
involved or by others in similar situations.
Except for operator discipline, which is governed under a different law, administrative
penalties are assessed through the issuance of an administrative order that includes the facts
of the case, the legal requirements that may have been violated, and a general rationale for
the prescribed penalty. The order may include cumulative penalties up to $1,000 for
multiple violations. No penalty may be assessed unless the cumulative amount is $50 or
more.
The amount of the penalty for each day of violation is determined after evaluating
all factors. An actual or reasonably estimated economic benefit is always assessed. An
additional amount up to $300 is assessed depending on the gravity factors, and an additional
amount of up to $300 is assessed depending on the culpability factor. The penalty may also
be increased or decreased up to $100 for aggravating or mitigating factors. However, the
statutory limit cannot be exceeded. Tables IA-1 and IA-2 provide summaries of
administrative penalty assessments.
Penalties may be assessed only after the alleged violator has. had the opportunity to
attend a contested case hearing. Penalties must be paid within 30 days of the date the order
becomes final. An order will not become final until all judicial review processes are
complete; additional judicial review may not be sought after an order becomes final.
Failure to pay an administrative penalty will result in interest charges at the rate of
lh percent for each month the penalty remains unpaid. The Attorney General institutes,
at the request of the Department, summary proceedings to recover the penalty and accrued
interest. In addition, nothing precludes the Department from referring any case to the
Attorney General or from seeking a remedy in the courts before pursuing administrative
action. All administrative penalties (and interest) are deposited in Iowa's General Fund.
The Department believes that the program is successful because it is fairly easy to
issue an administrative penalty; the process used is similar to traffic citation procedures.
56
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IOWA
TABLE IA-1
ADMINISTRATIVE PENALTY ASSESSMENTS: FY86-90
ADMINISTRATIVE PEXALTY SUMMARY
10-01-89
The table below summarizes administrative penalty assessments through September. 1989. The first column of this table is
rough breakdown of the environmental program and violation typos for which penalties nave been assessed. Tho nsxt five
columns state the dollar amounts collected during the stated tlsie periods> and the number of cases in parentheses. The
last column states similar data for easos still pending as of October 1, 1989 (penalties appealed, delinquent or assessed
but not yet due).
Violation Type
WW Discharge
WW Monitoring
FY 86
ป 1,400 (2)
815 (3)
WW Other
SW Permit
SW Open Dumping
Air Permit
Air Open Burning
WS Monitoring
WS Permit
Flood Plain
HC Notice
Water Use
Construction Permit
Underground Tanks
TOTALS
1.500 (4)
1,250 <2>
2,600 (3)
62S (2)
1.859 (20)
598 <2>
*10,647 (38)
FY 87
ป12.950 (18)
1,610 ( 5)
2,500 ( 3)
6.100 (11)
4,000 ( 7)
3,950 ( 6)
3,650 ( 7)
7.178 (58)
150 ( 1)
600 ( 1)
100 ( 1)
ป42,7B8 (118)
FY-88
$ 9.900 (18)
4.892 (11)
FY-89
t 7.3SS (07)
4.450 (09)
FY-90 1st QTR
f 1,700 (02)
PENDING
$ 5.000 (OS)
1.000 (01)
5.950 (11) 4.172 (07) 3.600 (04)
8,598 (12)
4.175 (10)
9,275 (14)
5,250 (10)
11.186 (75)
3.225 (7)
1.200 (2)
3.750 (7)
ISO (2)
S67,S51 (179)
1.800 (03)
'2.958 (09)
3.500 (08)
5.134 (12)
15,804 (102)
2.100 (08)
800 (01)
600 (01)
150 (01)
500 (01)
t 49,323(169)
2.427 (04)
1.403 (02)
1.900 (04)
600 (02)
1.735 (12)
836 (02)
500 (01)
3,000 (03)
* 14.101 (32)
2,000 (02)
6,391 (12)
2,400 (03)
.4,000 (06)
4,117 (07)
2,100 (03)
3,100 (05)
700 (01)
5.000 (05)
$39,408 (64)
AiHPป-310.2Xrg
57
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IOWA
TABLE IA-2
ADMINISTRATIVE PENALTY ASSESSMENTS: FY89-90
ADMINISTRATIVE PEXALTY SUMMARY
01-01-90
The table below summarizes administrative penalty assessments cine* July. 1988. The firnt column of this table is rough
breakdown of tho environmental program and violation typos for which penalties havo boon assessed. The middle columns
stato tho dollar eunts colloctod during tho statod time poriods. and tho number of casos in parentheses. Tho last
column states similar data for casoa still ponding as of January. 1990 fponaltios appealnd. delinquent or assessed but not
yet due).
Violation Typo
WW Discharge
WW Monitoring
WW Other
SW Permit
SW Open Dumping
Air Permit
Air Open Burning
WS Monitoring
WS Permit
Flood Plain
HC Notice
Water Use
Construction Permit
Underground Tanks
TOTALS
FY-89
ป 7.355 (07)
4. 450 (09)
4.172 (07)
1.800 (03)
2.958 (09)
3.500 (08)
5.134 (12)
15.804 (102)
2.100 (08)
800 (01)
600 (01)
ISO (01)
500 (01)
49.323 (169)
FY-90 2nd Qtr
t 2.900 (04)
1.000 (01)
516 (01)
2.050 (04)
1.000 (02)
2.122 (14)
400 (02)
f 9,988 (28)
TOTAL FY90
t 4,600 (06)
3,427 (OS)
1.919 (03)
3.9SO (08)
1,600 (04)
3.857 (26)
1.236 (04)
500 (01)
3.000 (03)
$24.089 (60)
PENDING
1 4.000 (04)
1.000 (01)
2.600 (03)
3.600 (04)
7.735 (15)
3.400 (05)
7.000 (08)
3.317 (11)
3.800 (06)
2.600 (04)
700 (01)
5.000 (05)
t 44.752 (67)
HPH-1.004/rg
58
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KENTUCKY
KENTUCKY
The Natural Resources and Environmental Protection Cabinet receives its
administrative penalty authority from sections 224.032,224.994, and 224.995 of the Kentucky
Revised Statutes. Section 224.032 states that the Cabinet must enforce adopted rules and
regulations, section 224.994 provides for civil penalties up to $25,000 per day, and section
224.995 states that penalties may be recovered in an action brought by a departmental
counsel in the name of the Commonwealth. Administrative penalties may be assessed in
a "demand letter," an agreed order, or an order of the Secretary.
Assessing administrative penalties through agreed orders with the violator is the
preferred option. The water system and the Cabinet agree to the terms of the order,
including any penalty amount. The Secretary of the Cabinet executes the order that is
enforceable in Franklin Circuit Court. Since the penalty amount is negotiated and agreed
to by the water system, there is rarely any need for appeal. If an agreement is not reached
at the informal negotiation phase, the matter is referred to the Cabinet's Department of
Law for legal action. This involves the filing of an Administrative Complaint and holding
a formal hearing before a Cabinet-appointed Hearing Officer. If no settlement is reached
with the violator during the hearing, the Hearing Officer will recommend the terms of an
order to the Cabinet Secretary. An order by the Secretary may be appealed in Franklin
Circuit Court. For most cases, the Cabinet has been able to reach an agreement on penalty
amounts in agreed orders. Letters of Demand for Remedial Action and Civil Penalty, or
demand letters, are also a means of assessing civil penalties, although agreed orders are the
most frequently used tool. Enforcement personnel maintain tracking of all violations, either
resolved or unresolved, and have found that the Cabinet's legal staff, while now being
enlarged, has not previously had the resources to address all cases. Consequently,
negotiated settlements have been an important means of avoiding clogged case dockets at
the Department of Law.
59
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MASSACHUSETTS
MASSACHUSETTS
The Commissioner of the Department of Environmental Quality Engineering,
pursuant to the authority granted by General Laws, Chapter 21A, section 16, may assess a
civil administrative penalty.
Departmental administrative penally regulations are contained in Title 310, section
5.00, of the Code of Massachusetts Regulations and became effective in September 1986.
The purpose of the regulations is to protect public health, ensure fair and lawful
assessments, and enhance the Department's ability to administer programs and enforce
regulatory requirements. An administrative penalty may be assessed for a violation of a law,
regulation, order, or license. This violation must have been the previous subject of a
noncompliance notice, part of a pattern of noncompliance, a willful violation and not the
result of an error, the cause of a significant impact on public health or environment, or a
failure to notify the Department of an unauthorized release or discharge of hazardous
materials or hazardous waste into the environment.
A notice of noncompliance is issued that notifies the system of a violation and
specifies a deadline for the system to come into compliance or submit a written proposal
of how and when compliance will be obtained. An administrative penalty is assessed if the
requirements of the notice are not met. The Department does, however, consider the
history of past violations (and efforts to correct them) before assessing a penalty.
An administrative penalty may be assessed without prior issuance of a notice of
noncompliance if the violation is part of a pattern of noncompliance. The following factors
are considered when determining a pattern of noncompliance: if the violation occurred
previously within a 5-year period; if, on two different occasions over a 4-year period, a
different violation had occurred; if violations have occurred at the same facility; and if the
history of violations is a threat to the public safety or environment or interferes with the
Department's ability to enforce requirements and programs. Additional criteria considered
include how quickly the person comes into compliance, the mitigation of damages, and the
actual damages suffered.
In addition, an administrative penalty may be assessed without first issuing a notice
of noncompliance if the violation was willful and not the result of error; if the violation
resulted in a significant impact on the environment or public health, safety, or welfare; and
if the violator failed to notify the Department of any unauthorized release or discharge of
hazardous materials or hazardous waste. A region must confer with the Division of Water
Supply before finalizing a penalty.
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MASSACHUSETTS
When an administrative penalty is assessed, a penalty assessment notice containing
a statement concerning the violation, a citation of the legal requirement being violated, the
amount to be assessed, a statement concerning the right to an adjudicatory hearing, a
statement on requirements that must be met, and a statement on how and when the penalty
must be paid is sent to the violating system.
The Department of Environmental Quality Engineering has issued guidance for
calculating amounts of administrative penalties. The purpose of the policy is to ensure that
penalties are calculated fairly, consistently, and in accordance with the law and regulations;
that penalties are appropriate; that economic incentives for noncompliance are eliminated;
and that there is a deterrence for noncompliance so that compliance can be achieved. The
guidance includes procedures for distinguishing between separate and different violations;
for assessing multi-day penalties; for determining the gravity-based component of the
penalty; for determining the economic benefit resulting from noncompliance (e.g., the
impacts of delaying or avoiding costs and the profits gained from unlawful activities); and
for making penalty adjustments for special circumstances.
The minimum administrative penalty that can be assessed is $100. For drinking water
violations, the maximum administrative penalty is $1,000 per day. The following factors are
considered when determining a penalty amount: impact on public health and the
environment, damages suffered and costs incurred, steps taken to prevent the violation, steps
taken toward compliance, steps taken to remedy or mitigate the harm done, regulatory
history (past violations, etc.), making compliance less costly than violations, deterring future
noncompliance by both the violating system and other systems, financial condition of the
system, public interest, and any other related factors.
To supplement the departmental guidance, the Division of Water Supply has
developed a classification system consisting of three categories of violations. The system is
intended to assist those who cite violations and assess administrative penalties and to
promote clarity and consistency in the assessment.
The classification system establishes an administrative penalty assessment range as
well as an average amount (the BASE NUMBER) to use when determining the penalty.
The base number is adjusted after the number of violations, the extent of the violations, and
the impact of the violations are considered. This adjusted number is called the GRAVITY-
BASED NUMBER. Table MA-1 contains the penalty ranges and base numbers for the
three categories of violation.
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MASSACHUSETTS
TABLE MA-1
CLASSIFICATION OF DRINKING WATER VIOLATIONS
Categories* Remark Range/day BasAmt
I Violations/Noncompliance having a direct impact $100-$1000 $500
on public health. (Violations/noncompliance which
are determined to be: a) an unauthorized release or
disposal into the environment, b) operating without
the required license or approval, c) failure to
report an unauthorized release or disposal as
defined by MGL Chapter 21 C or 21E.) The
penalties for these noncompliance violations
range up to $25,000.
II Violations/Noncompliance having a direct impact $100-$1000 $500
on public health but are mainly related to
noncompliance with technical safeguards.
Ill Violations/Noncompliance having an indirect $100-$1000 $500
impact on public health and are generally
related to poor record keeping.
* Violation of a Department order is a separate and additional violation from the
violation or violations which give rise to the issuance of the order, and is given a
Base Number of $1,000. No distinction should be made between a unilateral order
and a consent order for the purpose of assessing administrative penalties.
To calculate the actual administrative penalty, the GRAVITY-BASED NUMBER
is multiplied by the number of days the violation continues (or the number of violating
incidents or the number of days late in meeting a compliance schedule). The resulting
number can then be increased by as much as 50 percent for either the violator's lack of
good faith efforts to prevent noncompliance or to mitigate/remedy harm, or the violator's
history of noncompliance, or both.
This new amount can be adjusted further to account for the economic benefit gained
through noncompliance, the financial condition of the system, public interest, and other
special circumstances. (Both the system's financial condition and public interest can result
in separate adjustments of ฑ50 percent.)
The system has 21 days to request an adjudicatory hearing with the Department.
During the hearing, the Department must adequately discount every objection; nondisputed
allegations are accepted as fact. Adjudicatory hearings are conducted in accordance with
prescribed procedures. If the system waives the right to the heating, the administrative
penalty is immediately deemed final. If a penalty is assessed at the conclusion of the
hearing, it becomes final after 30 days if no judicial review is requested. If the system
requests action for judicial review, the amount of the final penalty assessed must be placed
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MASSACHUSETTS
in an interest-bearing escrow account. Specific requirements detail the proper procedure
for depositing into and final disposition of this account.
A system that fails to pay an administrative penalty can be liable for up to 3 times
the amount plus additional costs incurred, interest, and attorney fees.
Figures MA-1 through MA-5 outline the procedures used in Massachusetts to assess
administrative penalties in various circumstances.
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MASSACHUSmTS
1.Significant
impact
2.Willful
3.Failure to report
>VIOLATION/NONCOMPLIANCE
Region (inspects and)
finds noncompliance
NOTICE OF
NONCOMPLIANCE
1. Pattern of noncompliance
2. Non compliance beyond
deadline given in last
notice
Region (inspects and) finds
continued noncompliance
ADMINISTRATIVE PENALTY
NOTICE
a) decide whether penalty is
appropriate
b) decide how much to access
c) notify company of penalty and
opportunity for hearing
d) notify central office for records
and consistency
1. Injunctive relief necessary
2. 21 E cost recovery
3. Potential criminal case
4. "Impact litigation" case
5. Large complex case involving
very large penalty
6. Penalty appropriate, but not
possible
yATTORNEY GENERAL'S OFFICE
ENFORCEMENT STRATEGY
FIGURE MA-1
FLOWCHART OF ADMINISTRATIVE PENALTIES - GENERAL
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MASSACHUSETTS
Systems violation of regs 310 CMR 22.00 or noncompliance
With a guideline under Chap 111 160A
Chap 111 5G
Chap 111 170
Chap 21 6.
DWS notifies system/owner of violation by issuing a
NON (Notice of non compliance)
System Complies
with NON
requirements
I
System receives
"1 paragraph1
notice of compliance
(NOC) with
NON
System does not comply
with NON
Region assess a penalty
based on DWSiclassification
System pays penalty
and complies with NON
requirement
System
request
hearing
AP Procedure
continues as
regulated
FIGURE MA-2
FLOWCHART OF DRINKING WATER ADMINISTRATIVE PENALTIES - GENERAL
65
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MASSACHUSETTS
1st Violation System violates MCL or M/R
NON is sent requiring
notification and/or action
to prevent the reoccurrence
of the violation, etc.
>System does
not comply
2nd Violation System complies >"
I AP process
vs continue as
System again violates required
MCL or M/R I
NON is sent requiring
notification and/or specific
action, meeting/compliance
schedule etc. Notes problem is
becoming persistent and if it
reoccurs a penalty will be
assessed i system does
not comply
System complies
i
AP process
continue as
required
3rd Violation System violates the same or
similar MCL/or M/R for the
3rd time
A penalty can be assessed
based on reoccurrence of the
same or similar violation
4-
AP process continue.
FIGURE MA-3
FLOWCHART OF DRINKING WATER ADMINISTRATIVE PENALTIES - MCL
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MASSACHUSETTS
Survey performed
1. Appropriate parts of the official DWS
sanitary survey report form filled out,
including recommendation/comment page
No violation'of regs noted
no noncompliance with DWS
technical guidelines noted
4,
Assume system is in com-
pliance
Copy of sanitary survey report
form sent to water supplier/
Boston office
Violation of 'regs'and/or
noncompliance with DWS technical
guidance noted (non-compliance
with guidelines must result in
an estimateable significant risk
to the health of consumers to
use the statutes of the General
Laws).
Copy of sanitary survey report
form is sent along with an NON
or ORDER if any non-compliance
is noted*
AP process continue as required
and necessary
* By sending out the sanitary survey form and NON together, one
step of the procedure is removed therefore simplifying the
process and meeting the purpose of the Administrative Penalties
Law. Please note that the time given for response can reflect
the workload of the region thereby extending the period.
FIGURE MA-4
FLOWCHART OF DRINKING WATER ADMINISTRATIVE PENALTIES
SANITARY SURVEYS
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MASSACHUSETTS
Flow Chart
Public Water System fails to
submit monthly chemical addition
report forms to DWS
DWS reminds PWS that report must
be submitted to DWS within 10 days.
PWS complies
No further action
required
i
PWS does not comply with reporting
requirement
DWS issues a NON (Notice of noncompliance)
to system/owner of violation
PWS complies
No further action
required
PWS does not comply with NON
PAN (Penalty Assessment Notice) is either
issued with NON or a separate letter is issued
PWS comp ies and pays penalty
System requests
hearing*
FWS receives letter of
compliance (NOC) with NON
*DWS will continue enforcement action
compliance is met.
FIGURE MA-5
FLOWCHART OF DRINKING WATER ADMINISTRATIVE PENALTIES
CHEMICAL REPORT
68
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NEW YORK
NEW YORK
Under the authority of New York's Public Health Law, sections 10, 12-a, and 206,
and the State Administrative Procedures Act, Articles 2 and 3, a Public Health
Administrative Tribunal was established in the State Department of Health with the
authority to impose fines and penalties.
A regulatory proceeding begins with a finding of violation issued by a Department
Inspector. The finding of violation contains a history of the violation, citations of the laws
and regulations being violated, information that enables the violator to calculate the
potential maximum penalty, notification of a hearing, and information on proceeding
procedures.
The alleged violator has 7 days to respond to a finding of violation. The violator can
contest or admit to the allegations. If the violator contests, a hearing will be held in which
a tribunal or tribunal representative presides. Each party has the right to be represented
by counsel, to present evidence, and to question witnesses. A written decision sustaining or
dismissing the finding of violation is given by the tribunal representative promptly after the
hearing concludes. The decision contains the findings of facts, any orders issued, and any
administrative penalties assessed. The respondent has the right to appeal the decision
within 15 days, and the tribunal has 30 days to respond. Final orders and determinations
of the tribunal are subject to further review.
If the violator admits to the charges or does not respond to a finding of violation, the
right to a hearing is waived. In addition, hearings can be waived if a stipulation is reached
between the respondent and the Department; stipulations may include the assessment of a
penalty.
The department may impose penalties up to $2,000 for violations relating to a
permanent source of violation. Following prosecution for a misdemeanor, violations relating
to temporary sources of contamination may result in fines not exceeding $2,000 for each
violation and/or imprisonment for up to 1 year.
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NORTH CAROLINA
NORTH CAROLINA
The Secretary of Environment, Health and Natural Resources or designee has the
authority to assess administrative penalties and to institute legal action for injunctive relief
for violations of the North Carolina Drinking Water Act or rules adopted thereunder.
A notice of monitoring violation is issued upon determination that a violation has
occurred; the notice specifies the violation and the action required for compliance. Informal
agreements for compliance action and/or schedules may be used prior to formal action by
penalty or civil suit. Generally, a notice of penalty assessment is issued rather than a
compliance order.
North Carolina General Statutes ง 130A-22(b) provides the legislative authority for
penalty assessment. The maximum administrative penalty is $25,000' per day that a violation
continues. If an administrative appeal of a penalty is requested, a hearing before an
independent administrative law judge would be held. A final agency decision resulting from
the hearing is subject to judicial review.
Action for injunctive relief may be instituted by the Secretary or a designee. Civil
action may also be instituted to collect penalties assessed by the agency. A violation of the
laws or regulations constitutes a misdemeanor. Willful or wanton tampering with,
contamination of, or damaging a public water system constitutes a felony.
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OHIO
OHIO
Ohio's Environmental Protection Agency has the authority to enforce provisions of
the State's Safe Drinking Water Act. Section 6109.04, paragraph (7) gives the Director the
authority to issue, modify, and revoke orders. The Division of Public Drinking Water's
Enforcement and Policy Development Section has the ability to issue the Director's final
findings and orders and to collect civil penalties. These penalties must be negotiated
between the Division and the public water system; if no bilateral agreement is reached on
the amount of a penalty, the Division must then go through the court system. The Attorney
General, at the request of the Agency's Director, can bring an action for a civil penalty, not
to exceed $10,000 per violation. All paid penalties are credited to the State's General Fund.
In the past, the Division has attempted to draft legislation to obtain statutory
authority for the unilateral assessment of administrative penalties but has been unsuccessful
in getting the legislation passed.
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OKLAHOMA
OKLAHOMA
The Oklahoma State Department of Health has the statutory power to issue orders
requiring compliance with all drinking water regulations. Administrative penalty
proceedings are initiated by a written notice of violation that identifies the alleged violation.
Within 15 days after service of the notice of violation, unless otherwise specified, an
administrative order requiring the respondent to comply within a specific period may be
issued by the Commissioner. Each order specifies an administrative penalty, not to exceed
$10,000 per day of noncompliance, to be assessed if the respondent fails to comply with the
order within the prescribed time. In determining the penalty, the Department considers the
seriousness of the violation and any efforts to comply with the applicable requirements. The
respondent may request a hearing within 30 days. If the hearing extends beyond the
compliance deadline specified in the order, administrative penalties levied in the order will
continue to accrue during the hearing process.
After the administrative order is issued and after the hearing, if any, the hearing
examiner retains jurisdiction. If, at any time, the Department believes the order has been
violated, an application alleging the period of noncompliance and the amount of the
administrative penalty that has accrued is filed with the hearing examiner. A copy of the
application also must be provided to the respondent. The respondent may request a hearing
within 5 days of receiving notice of the Department's application. An Assessment Order is
issued by the Hearing Examiner on behalf of the Commissioner of Health following
determination of the application. The order must state the nature of the violation, the
period of the violation, whether or not the violation continues, and a computation of the
amount of the administrative penalty levied by the order. The penalty is due and payable
immediately upon issuance of the order. A copy of the order is provided to the respondent.
If the Department believes that violations of the administrative order are continuing after
the issuance of the assessment order, the Department may, at any time, apply for the
issuance of additional assessment orders to cover periods during which the violation
continues but were not covered by the issuance of the previous assessment orders. The
Department may apply for the issuance of an assessment order whether or not the original
administrative order is being appealed, for as long as the administrative order remains in
effect.
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OREGON
OREGON
Oregon Revised Statutes, section 448.285, gives the Assistant Director of the Oregon
State Health Division the authority to impose a penalty not to exceed $500 per day. An
administrative penalty cannot be imposed until the person incurring the penalty has received
5 days of advance notice from the Division. In imposing an administrative penalty, the
following factors are taken into consideration: individual's history in correcting violations,
prior violations, and the economic or financial condition of the individual.
An individual has 20 days upon receiving a penalty notice to apply for a hearing
before the Division. Hearings are conducted in accordance with the provisions of Oregon
Revised Statutes, sections 183.310-183.550. An order may be issued after the hearing.
Unless the penalty is paid within 10 days after an order becomes final, the order will
constitute a judgment and can be treated in the same manner as a judgment from a court
of record. Administrative penalties are paid into the State Treasury and credited to the
General Fund.
Section 331-61-090, paragraph 5, of the Oregon Administrative Rules establishes
penalties based on the population served by the water system (see Table OR-1).
TABLE OR-1
MAXIMUM PENALTIES BY POPULATION SIZE
Daily population served Maximum civil penalty
10-100 $ 50/day
101-300 $100/day
301-1,500 $250/day
over 1,500 $500/day
The Oregon State Health Division encountered no obstacles in obtaining the
authority to impose administrative penalties. Administrative penalties have been used for
monitoring requirements, and there have been no appeals. The Division has found that
issuing a notice stating that a penalty may be assessed is usually effective in getting a system
to monitor. Systems that fail to monitor, even after receiving a notice, often have many
reasons for not complying and may not monitor consistently, even after paying a penalty.
The Division estimates only 50 percent of the systems that have paid administrative
penalties consistently monitor after payment.
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RHODE ISLAND
RHODE ISLAND
Title 46, Chapter 13 (Public Drinking Water Supply), section 16, paragraph c of
Rhode Island's laws gives the Director of the Department of Health the authority to assess
a maximum penalty of $5,000 per day per violation. The person charged with an
administrative penalty has 30 days to pay the penalty in full or file for an appeal with the
Director. Failure to appeal within 30 days results in a waiver of all legal rights to contest
the violation or amount of the penalty. Administrative penalties collected are paid into the
Water Development Fund.
Rhode Island has been successful using informal enforcement procedures; of 35
notices of violation issued, only 3 compliance agreements and 1 compliance order were
necessary. No administrative penalties have been assessed.
As an alternative enforcement action, specific complaints can be referred to the
Mobile Home Commission. This commission can, and has, taken management authority
away from trailer park owners for reasons such as inadequate water and sewer services. A
flowchart of Rhode Island's enforcement policy is provided in Figure RI-1.
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RHODE ISLAND
MAXIMUM CONTAMINANT LEVEL VIOLATION
| 46-13-16
NOV Issued; response required
within 7 days with Corrective
Action Plan; Must be complete
within 90 days after response
Enforcement Policy
46-13-3. 46-13-9
IMMINENT HEALTH HAZARD
~~ | 46-13-10
Immediate Compliance Order
Issued by Director of Health
Public Notice
46-13-17.6. 46-13-16.8
Superior Court
Injunction to
enforce the order
AC brings criminal
charges for violation
of order 46-13-16(b)
OTHER VIOLATIONS
|
NOV Issued under 46-13-.2
Unsafe Condition
I
Submission of Corrective
Action Plan with informal
compliance schedule
I
Public Notice
Non Community system
Non Transient-Non Community
system
I
Bottled water
!
System inactive
I
Monthly Compliance checks
Community System
Boil water if appropriate
Bottled water if necessary
I
Sanitary survey and/or site visit
Inadequate progress made toward problem resolution or no response
I
Preheating meeting with Department Attorney Corrective Action
Plan and Informal Compliance Schedule required
Administrative Hearing
42-35-8. 42-35-9
Compliance Order to Access civil penalty
correct unsafe conditions up to SSOOO/violation/
with formal Compliance day 46-13-16(c)
Schedule 42-35-12. 46-13-12
Revoke approval as PWS
or registration as a
Food Service Establishment
Administrative Appeal
in Superior Court 42-35-15
I
Appeal to Supreme Court
42-35-16
DOH seeks Superior
Court Injuntive Relief
to enforce order
42-35-15. 46-13-16(a)
AC brings criminal charges:
$500 fine, imprisonment for
1 year for each day/each violation
46-13-16(b)
46-13-17 Civil liability unimpaired
FIGURE RI-1
FLOWCHART OF RHODE ISLAND'S ENFORCEMENT POLICY
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TENNESSEE
TENNESSEE
Section 68-13-705, paragraph (9) of the Tennessee Safe Drinking Water Act provides
the Commissioner of the Tennessee Department of Health and Environment with the
authority to assess civil penalties. Administrative penalties may not be less than $50 or
more than $5,000 per day for each day of violation.
A written petition requesting a hearing before the Water Quality Control Board may
be filed with the Commission by any person against whom an assessment has been issued.
If a petition is not filed within 30 days, the assessment becomes final.
The Commissioner, through the Attorney General, may initiate proceedings for
assessment in the appropriate chancery court.
In assessing an administrative penalty, the following factors may be considered: harm
to the public or the environment, the economic deterrent, the economic benefit, any efforts
put forth toward compliance, enforcement costs incurred, and the amount of penalty set by
the Board for specific categories of violations.
Administrative penalties collected are earmarked for use by the Division of Water
Supply.
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UTAH
UTAH
Section 26-12-5 of the Utah Safe Drinking Water Act provides the Utah Drinking
Water Committee with the authority to enter into agreements. The Department of Health
enters into bilateral consent agreements that may include penalties with noncomplying
systems as an alternative to court action. Agreements are signed by both parties and by a
State Judge. The Department does not have the authority to assess unilateral administrative
penalties.
Enforcement actions are generally initiated with the issuance of a notice of violation.
Bilateral consent agreements are a preferred method of obtaining compliance. An order
requiring corrective action will be issued if the situation cannot be resolved. The recipient
of a notice has 30 days to request a hearing before the Committee. The recipient also has
30 days to secure judicial review of the Committee decision.
Civil proceedings carry a maximum civil penalty of $1,000 per day per violation. A
maximum penalty for willful violation is $5,000 per day per violation.
In addition, a water system may be downgraded to "not approved." This may result
in a system becoming ineligible for federally insured home loans (e.g., FHA, VA).
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VERMONT
VERMONT
The Commissioner of the Department of Health has the authority to issue Assurances
of Discontinuance, which are documents signed by both parties. These documents may
include a fine for violations of schedules included in the document. The Department waives
the ability to press charges for past violations and the water system waives its appeal for
contesting the agreed-upon compliance schedule. The Department does not have the
authority to assess unilateral administrative penalties.
Enforcement actions are initiated with a notification of violation. The Commissioner
may issue an order requiring corrective action within 30 days. A recipient has 30 days to
appeal to the Board of Health for a hearing.
Civil proceedings can carry a maximum penalty of $10,000 per day per violation.
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VIRGINIA
VIRGINIA
Whenever there is a reason to believe a violation has occurred, a notice of violation
(NOV) citing the regulation and/or law allegedly violated, the requirement for providing
public notice, and a draft notice for the owner's use is sent to the suspected violator. An
order requiring corrective action may be issued following an emergency that invokes ง 32.1-
175 of the Virginia Code (an imminent threat of health), the owner agrees to enter into a
consent order and thus waives the right to an administrative hearing, or a hearing conducted
in accordance with Virginia's Administrative Procedures Act is held. When a violation
occurs, it is placed in one of four categories.
Category I violations are subject to formal enforcement actions in which an informal
hearing is scheduled with the owner(s) and a consent order is negotiated. If the owner fails
to sign an order, formal action from the State or EPA will follow.
Category II violations receive a letter from the Central Office requesting an
explanation from the owner with a plan for compliance.
Category III violations receive a letter from the Regional Director(s) requesting an
explanation.
Category IV violations are placed on a "Watch List." Formal enforcement action,
such as a civil action, criminal action, administrative action, or penalty order (currently being
developed) may result if the owner fails to respond satisfactorily.
Civil penalties of not more than $5,000 per day may be recovered in a civil action
brought by the Attorney General. In addition, paragraph (D) of section 32-1-27 of Virginia's
Health Laws states that with the consent of the violator, the State Board of Health may
include provisions for the payment of penalties in an order. These penalties are in lieu of
civil penalties imposed by a court but have the same maximum of $10,000 per day for failing
to obey an order. Penalties are paid into the State's General Fund.
In the Department of Health's Division of Water Supply Engineering, consent orders
signed by the water system and the State Health Commissioner are regularly issued but none
has included a penalty assessment.
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COMPARATIVE ANALYSIS
COMPARATIVE ANALYSIS OF ADMINISTRATIVE PENALTY PROGRAMS
FEDERAL PROGRAM COMPONENTS
On June 19, 1986, Congress amended the Safe Drinking Water Act (SDWA) by
adding a new provision, section 1414(g). This section provides the EPA Administrator with
the authority to issue compliance orders to violators of Part B (applicable to public water
suppliers) or section 1445 of the SDWA (applicable to public water suppliers and
underground injectors), and to enforce such orders administratively.
Under section 1414(g), any civil penalty that does not exceed $5,000 can be assessed
by the Administrator after a notice is issued and the violator is given the opportunity for a
hearing. The U.S. Environmental Protection Agency is currently in the process of finalizing
regulations for penalties assessed for SDWA violations that will conform to existing
procedures contained in 40 CFR Part 22 (Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits).
These rules currently govern adjudicatory proceedings for other Federal acts, including the
Clean Air Act, Solid Waste Disposal Act, and Toxic Substances Control Act.
EPA's civil penalty policy, issued in 1984, lists the policy objectives for penalty
assessments in EPA administrative and judicial enforcement actions as follows:
deterrence;
fair and equitable treatment of the regulated community; and
swift resolution of environmental problems.
The violator and the general public must be convinced that the penalty places the
violator in a worse position than those who complied in a timely fashion. Penalties should,
at a minimum, remove any significant economic benefits resulting; from failure to comply
(economic benefit component of the penalty). The penalty also should include an additional
amount that reflects the seriousness of the violation (gravity component of the penalty).
Penalties must display both consistency and flexibility. All preliminary deterrence
amounts should be increased or mitigated for the following factors to account for differences
between cases:
degree of willingness and/or negligence;
history of noncompliance;
ability to pay;
degree of cooperation/noncooperation; and
other unique factors specific to the violator or the case.
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COMPARATIVE ANALYSIS
The Agency has two basic approaches for promoting quick settlements:
To provide incentives for settling and instituting prompt remedial
action, such as considering the reduction of the gravity component of
the penalty when the violator institutes expeditious remedies and the
mitigation of the penalty for additional environmental cleanup.
To provide disincentives for delaying compliance by notifying the
violator that the penalty will increase if the violation continues beyond
the expected duration.
A number of the State programs analyzed encompass these features. For example,
from the information received, it was found that eight States (Connecticut, Florida, Iowa,
Massachusetts, Pennsylvania, South Carolina, Tennessee, Washington) include a gravity
component in their determination of a penalty amount, and three States (Iowa,
Massachusetts, Tennessee) specified having an economic component. One State law
(Connecticut) called for an administrative penalty schedule that would ensure immediate
and continued compliance. Another State policy (Massachusetts) required penalties to
achieve the goals of protecting public health and deterring noncompliance in a fair and
lawful manner. Five States (Connecticut, Florida, Massachusetts, Oregon, Washington)
consider the violator's noncompliance history, and four States (Florida, Massachusetts,
Oregon, South Carolina) consider the ability to pay when determining the penalty amount.
Three States (Florida, Iowa, Pennsylvania) consider the degree of negligence, and five States
(Connecticut, Florida, Massachusetts, Oregon, Tennessee) consider the system's efforts to
mitigate damages and to achieve compliance. In addition to considerations provided in the
Federal guidelines, three States (Oregon, Pennsylvania, Washington) also consider the
population affected by a violation when determining the penalty amount.
STATE PROGRAM COMPARISONS
Of the six case studies, agencies in three States (California, Connecticut,
Pennsylvania) had no difficulty obtaining the legislative authority to assess administrative
penalties, two States (Florida, Washington) received some opposition, while one State
(South Carolina) received its authority in phases. Restrictions placed on South Carolina's
authority were imposed by the governing board of the Department and were not legislatively
imposed limits; consequently, eventual changes required no legislative amendment.
South Carolina's Bureau of Drinking Water Protection could assess penalties with the
consent of the violator or approval from the Board of Health and Environmental Control
in 1977, but could not assess unilateral penalties for the full statutory amount of $5,000 per
day until 1983. Pennsylvania's Division of Water Supplies received its authority in 1984 but
did not implement its program until 1987. Connecticut's Department of Health Services was
81
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COMPARATIVE ANALYSIS
granted the authority in 1985, but current practices still require it to submit a petition to the
court before a penalty can be assessed. Programs in Washington's Department of Health
and California's Office of Drinking Water began in 1986 and legislation granting Florida's
Department of Environmental Regulation authority to assess noncompliance fees passed in
June 1990.
Florida is the only State that believed it was necessary to avoid usage of the term
"penalty" and uses "noncompliance fee" to relate compliance with the enforcement action
and to avoid possible negative connotations.
Legislative authorities identify what actions a State agency must initiate and other
discretionary actions it is allowed to take. The program requirements that are specified in
authorizing legislation as being mandatory vary. No State authority reviewed requires an
agency to assess administrative penalties. However, laws in Oregon and Tennessee require
that a schedule of penalties be established. Laws in Connecticut and Iowa mandate that
specific requirements be met if a penalty schedule is established, and laws in Connecticut,
Massachusetts, and Oregon include factors the agency must consider when assessing
administrative penalties. In Connecticut, Hawaii, and Massachusetts, laws provide
procedures that must be followed during the administrative penalty assessment process. The
authority language used in Pennsylvania and Rhode Island is almost identical, while South
Carolina's authority is unique in its simplicity.
Four of the case-study States (Connecticut, Pennsylvania, South Carolina,
Washington) have maximum administrative penalties of $5,000; $1,000 per day is the
maximum in California, and $2,000 is the maximum in Florida. Three of the States that
responded (Kentucky, North Carolina and Hawaii) have penalty maximums of $25,000.
Several States provide justifications for keeping administrative penalties low, while other
States believe that penalty assessments would be more effective if amounts were higher.
States also differ on the issue of penalty mitigation. Some States rely on the ability to
reduce administrative penalties as an incentive for obtaining quick compliance, while other
States believe reducing a pre-established penalty hurts the Agency's image of being
equitable and willing to take strong enforcement actions. The policy of allowing systems to
apply penalty money toward system improvements also varies; while this practice was used
frequently in the past, there appears to be a trend toward maintaining the punitive aspect
of the administrative penalty, and many States have eliminated this as an option. No direct
correlation between the amount of an administrative penalty and the ability to obtain
compliance was found.
Eleven of the States (California, Connecticut, Delaware, Hawaii, Idaho, Iowa, Ohio,
Oregon, South Carolina, Virginia, Washington) are required to deposit collected penalties
into the State's General Fund. In Florida, compliance fees will be deposited into a trust
fund; Pennsylvania's Division of Water Supplies gets a percentage of the penalties deposited
into the Safe Drinking Water account; and special accounts exist for penalties collected in
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Rhode Island and Tennessee. Some States believe that having penalty money allocated
directly to the drinking water program would result in stiffer administrative penalties being
assessed and may indirectly affect the State agency's ability to assess fair amounts; however,
Rhode Island's agency assesses no administrative penalties even though funds collected
would be deposited into a special program account.
Providing an economic incentive for timely payment is a basic component of many
programs. To force payment of an administratively assessed penalty, State agencies must
obtain a court order. However, in Iowa, nonpayment of a penalty can result in the
assessment of interest payments, and in Massachusetts, a violator who neglects to pay a
penalty could be liable for as much as three times the original amount, in addition to
interest and other costs. California increases a penalty if it is not paid, and Washington will
assess a second penalty.
Obtaining enforcement consistency throughout the State is essential. South Carolina
achieves this by retaining central control, and other States have found it necessary to
promulgate legislation that requires some form of centralization. In four of the case-study
States (California, Florida, Pennsylvania, Washington), local officials assume an active role
in drinking water enforcement. Counties in California and Washington had the right to
assess administrative penalties before the State agency was granted the same authority.
Local officials are not involved in South Carolina's program, and local authorities play a
secondary support role in Connecticut's program. In California, local officials have been
responsible for systems with fewer than 200 service connections and have the same
enforcement authority as the State Office. The State Office had no authority over local
officials; however, a new law providing this authority should improve enforcement
consistency throughout the State. Similarly, in Florida, a recently passed bill requires local
public health units to be able to carry out all functions of the drinking water program under
the oversight of the Department of Environmental Regulation; local authorities previously
reported to one of two agencies, depending on the function.
The reliance placed on field personnel for identifying violations, encouraging
compliance, and initiating enforcement actions is apparent. There are no drinking water
field offices in Connecticut, but the other four case-study States with existing programs
(California, Pennsylvania, South Carolina, Washington) rely on field staff to initiate most
actions. In Pennsylvania, field orders may be issued directly for violations that present a risk
to the public. In California, field staff write the citation or compliance order and a Regional
Chief signs it. In Washington, field engineers can request that an order be issued, and the
Secretary of Health or designee signs.
The number of people involved in drinking water enforcement actions is widely
divergent. In California, for the 1988/89 fiscal year, 3 person-years of field staff time were
expended specifically on issuing and following up on compliance orders and citations. In
Connecticut, although the Water Supply Section has only one full-time enforcement officer,
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the total number of people involved in enforcement varies. The entire field staff (over 150
people) plays a role in enforcement in Pennsylvania. Enforcement actions in Washington
usually involve a field engineer, the Public Health Advisor, an attorney, and a secretary.
In most States, the use of attorneys is informal, and good working relationships exist
between the agency and legal counsel; in most cases, lawyers do not hinder administrative
enforcement actions. The use of lawyers by the five case-study States with existing
programs, although similar, varies. Three States (Connecticut, South Carolina, Washington)
have Attorneys General assigned to the Department, and three States (California,
Pennsylvania, South Carolina) utilize in-house attorneys. California has a lawyer dedicated
to the Office who conducts spot checks of citations and compliance orders; cases involving
noncooperative violators are referred to the Attorney General. In Connecticut, an Attorney
General is consulted whenever the Bureau Chiefs signature is required. The Attorney
General is an elected official in Pennsylvania, so departmental lawyers are used. In South
Carolina, an Assistant Attorney General is assigned to the staff but the Bureau of Drinking
Water Protection prefers to use the seven lawyers in the Department's Office of General
Counsel. The Assistant Attorney General assigned to Washington's Department of Health
reviews and signs the more complex orders and gets more formally involved for civil actions
and if there is a failure to pay.
Although the overall enforcement philosophy is highly similar, the actual procedures
followed for assessing administrative penalties are specific to each State. No State assesses
a penalty before the water system has an opportunity to come into compliance. Informal
efforts to obtain compliance are pursued before more formal administrative actions are
taken. In California, a letter of correction is sent followed by a citation that does not
contain an administrative penalty; a second citation would contain a penalty assessment; and
if a third citation were necessary, a higher penalty would be imposed. In Florida, a notice
of violation will be issued, in some cases a second notice will also be required, and then the
noncompliance fee can be assessed. South Carolina's organization of having separate
compliance, enforcement, and criminal investigation sections did not appear to be utilized
in any other State. In South Carolina, the Central Office issues the notice of enforcement
conference; once the Enforcement Section decides to act on a referral, it will send a Notice
of Enforcement Conference and meet with the alleged violator; if an agreement on a
consent order cannot be reached, a unilateral order may be issued. Washington's process
begins with informal enforcement steps that may include site visits to, letters to, and
telephone calls with the alleged violator. Orders are issued if these multiple attempts fail
to compel compliance. If a system continues to be in noncompliance, then an administrative
penalty will be issued; a second penalty may be assessed if the violator continues to fail to
comply. These procedures emphasize State beliefs that the primary goal of their drinking
water programs is to obtain compliance; much effort is expended to achieve this without the
need for formal enforcement action.
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COMPARATIVE ANALYSIS
The emphasis placed on compliance is also indicated by the fact that States do not
often utilize the provision to pursue criminal prosecution for drinking water violations, but
it will be considered for serious cases. Taking criminal action is considered more difficult,
requiring much more proof. In addition, some drinking water violations are not considered
criminal acts, and therefore pursuing criminal prosecution is not an option. Washington has
never pursued criminal prosecution for a drinking water violation. In South Carolina, a few
cases have been referred to the Office of Criminal Investigation, but its requests have been
denied and no criminal proceeding has taken place. California's Office of Drinking Water
would seek criminal prosecution if someone became ill as a result of a violation.
Pennsylvania usually initiates court proceedings only for sensitive cases, but it can also
request that the court issue a summary citation; of the 289 enforcement actions taken in
1989, only three were criminal proceedings.
State administrative procedures acts require an internal appeal process for agency
decisions. The implementation of internal hearings is fairly similar among the case-study
States. In California, an Administrative Law Judge from the Department presides over
citation appeals. However, there is no internal appeal process for compliance orders;
California's Office of Drinking Water believes this gives the order more impact. In
Washington, the presiding Administrative Law Judge is from the Office of Hearings, an
independent agency; appeals of the Administrative Law Judge's decision go to a
departmental Review Judge. In Pennsylvania, a quasi-independent agency, the
Environmental Hearing Board, presides. A Hearing Examiner is appointed by South
Carolina's Commissioner of Health and Environmental Control to preside over adjudicatory
hearings. In all cases, a water system has the option to take a dispute to court, usually after
all administrative appeals have been exhausted. Most States have few appeals and credit
this to their efforts to establish a good case and impose fair penalties.
Connecticut is the only case-study State that prefers not to use administrative
penalties. Instead, the Department of Health Services works with the Department of Public
Utility Control to utilize the provisions allowing for the joint takeover of violating water
systems. Similarly, Rhode Island has the enforcement option of referring specific complaints
to the Mobile Home Commission, which can, and will, take management authority away
from trailer park owners. Pennsylvania's Department of Environmental Resources also has
a close relationship with another agency; the Public Utility Commission can place a system
under receivership. Other States also indicated that unilaterally assessing penalties was not
a preferred enforcement alternative. Pennsylvania, South Carolina, and Washington stated
that assessing a penalty through negotiation is more efficient, less costly, and more likely to
result in compliance.
South Carolina's program, with its tiering process and detailed research, appears to
be working in that State. On the other hand, the relative ease of Iowa's program (it is
similar to issuing traffic citations) is a main reason for its success. The enforcement
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COMPARATIVE ANALYSIS
philosophy varies from State to State and each program has unique procedures; however,
all States expressed the belief that their administrative enforcement actions are effective.
Conversely, all case-study States also believed some improvements could be made in
thek administrative penalty program. The ability to assess larger penalties was cited by
some officials, and in Connecticut, officials would like to have the ability to assess a penalty
without having to first petition the court. Other suggested improvements were to isolate
further the program from political interference; to strengthen other aspects of the
enforcement program; and to streamline the process.
The analysis of State programs revealed basic components of a successful program.
An administrative penalty program should be easy to implement (this is a primary objective).
Although a degree of flexibility for penalty assessments should be provided, State-wide
consistency must be maintained. Good communications, background research, and
establishing a reputation of remaining firm in enforcement actions also contribute to
developing an effective administrative penalty program.
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MODEL STATE LEGISLATION
An administrative agency is a governmental body that is neither a court nor a
legislature but that has authority to affect the rights of private persons, groups, and
businesses. Administrative agencies do not fit neatly into one of the three branches of
government (executive, legislative, judicial), but their functions reach into all three areas.
One of the reasons for creating administrative agencies was the belief that combining the
three governmental functions into a single entity would result in the ability to address
problems more efficiently.
Often, the statute that creates an agency and/or defines the agency's powers does so
in general terms allowing for broad discretion. However, agency actions are scrutinized and
courts will invalidate a law that appears to grant too much legislative or judicial power to
an agency. For example, due process (guaranteeing the right to life, liberty, and property)
requirements and the right to a jury trial for criminal proceedings restrict the scope of
agency actions, and agencies cannot be given the power to determine criminal guilt and to
impose criminal penalties. However, agencies can impose fines or assess administrative
penalties.
As a general rule, administrative agencies do not follow the civil procedures
established for courts; actions and decisionmaking efforts are more informal. Over the
years, however, procedures have been established to govern how agencies take action; as a
result, a body of administrative law has been produced. In 1946, the Administrative
Procedures Act (5 U.S.CA. ง551 etseq.) was enacted to make the methods used by Federal
agencies fair and consistent. In 1961, the National Conference of Commissioners on
Uniform State Laws promulgated a revised Model State Administrative Procedures Act.
Over three-quarters of the States have general legislation governing procedures. Specific
provisions, however, vary from State to State and from agency to agency.
In drafting legislation to grant an agency the authority to assess administrative
penalties, the first step must be to review the State law pertaining to administrative
procedures. All proposed administrative actions must fall within the scope of that law and
comply with the requirements. In addition, the agency should consider and decide in
advance the extent of power desired. The authority should be broad enough to enable the
agency to achieve its intended goal, yet narrow enough to avoid opposition (legislative,
judicial, and public reaction).
In reviewing the various State administrative penalty programs, it was observed that
each program contains unique features. The reason a particular procedure is initiated can
be because it is mandated by other State statutes, such as the Administrative Procedures
Act, or because of specific State characteristics, such as financial resources, organizational
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structure, geography, types of water systems regulated, etc. Although it is unlikely that a
single law could meet the needs of all States, or even a majority of States, there are specific
requirements that States should consider when preparing to implement an administrative
penalty program.
Therefore, instead of presenting one model legislation that satisfies all circumstances,
several options are provided for consideration. The actual authority giving an agency the
power to issue administrative penalties can stand alone, as it does in South Carolina, or it
can be accompanied with various restrictions or procedures that the legislature either
mandates or suggests. In addition, laws granting an agency general enforcement powers or
the authority to enter agreements may also be interpreted to include the authority to issue
administrative penalties. The following sections provide examples of legislative language
used in general authorities. All examples for proposed requirements are taken from existing
laws. Several options are provided to give a broad range of possible provisions and wording
options. Where appropriate, specific features of the provision are listed.
GENERAL AUTHORITY: To provide for broad enforcement powers.
The director may perform any and all acts necessary to carry out the purposes and
requirements of this chapter.
The Director shall have and may exercise the following powers and duties: To exercise all
incidental powers necessary to carry out the purposes of this Act.
To carry out the provisions of this subtitle and in addition to the powers set forth elsewhere in
this subtitle, the Secretary may perform any act necessary to carry out the provisions of this
subtitle that relate to adopting and enforcing State primacy drinking water regulations.
The department shall have the power and its duties shall be to issue such orders and initiate
such proceedings as may be necessary and appropriate for the enforcement of drinking water
standards, any other provisions of law notwithstanding.
GENERAL AUTHORITY: To enter into agreements, which could include consent orders
or agreed orders.
To carry out the provisions and purposes of this article, the Department is authorized and
empowered to enter into agreements, under such terms and conditions as it deems appropriate,
with other state, federal or interstate agencies, municipalities, educational institutions, local
health departments or other organizations and individuals.
The director may enter into agreements, contracts, or cooperative agreements with any person.
The Director of the Agency is authorized to enter into such contracts and agreements as may
be necessary, and as expeditiously as necessary, to carry out the Agency's duties under this
subsection.
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MODEL LEGISLATION
With the consent of any person who has violated or failed, neglected or refused to obey any
regulation or order of the Board or Commissioner or any provision of this title, the Board may
provide, in an order issued by the Board against such person, for the payment of civil charges
for past violations in specific sums, not to exceed the limits specified in ง 32.1-27.1 and
subsection C of this section.
[FEATURES: consent order specific]
GENERAL AUTHORITY: To assess administrative penalties either for all drinking
water violations or for specific violations.
If, upon review, investigation or inspection, the commissioner of health services determines that
a water company has violated any provision of section 25-32d of the general statutes or any
regulation adopted thereunder or any regulation in the public health code relating to the testing
of water supplies or any report of such testing he may impose a civil penalty not to exceed five
thousand dollars upon such water company.
[FEATURES: includes penalty maximum]
In addition to proceeding under any other remedy available at law or in equity for a violation
of any provision of this act, any rule or regulation of the department or order of the department
or any term or condition of any permit issued by the department, the department may assess
a civil penalty upon a person for such violation.
The department may administer penalties as otherwise provided herein for violations of this
article, including any other permit, regulation or standard.
If the director determines that any person is violating any provision of this part, any rule
adopted thereunder, or any variance, exemption, permit, or other written authorization issued
pursuant thereto, the director may have that person served with a notice of violation and an
order. The order may require that the alleged violator do any or all of the following: cease
and desist from the violation, pay a civil penalty as specified in the order and answer the
charges complained of.
[FEATURES: assessment is included in order]
The Commissioner shall have the following powers, duties, and responsibilities: To assess civil
penalties for violation of any provision of this chapter, or any rule, regulation, standard adopted
or order issued by the board or commissioner pursuant to this part.
If a general authority is insufficient and additional provisions are required, the
following components of an administrative penalty program can be considered for inclusion.
Each program component is followed by language used in existing programs. No judgment
regarding the effectiveness of specific options is provided; each statutory provision should
be equally successful if used in the appropriate situation. The options are provided so a
State can select the language that would best meet its requirements; comply with established
administrative procedures; cause the least disruption for existing enforcement activities; and
be received most favorably by the legislature, industry, and the public in that State. A State
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can determine which components should be added to the proposed law and then choose to
use wording that has worked elsewhere; modify existing verbiage, as necessary; or compose
its own requirement.
PROGRAM COMPONENT: Penalty maximums and minimums (per day, per violation, or
cumulative).
The maximum civil penalty which may be assessed pursuant to this section is $5,000 per day for
each violation.
[FEATURES: daily maximum]
No civil penalty shall exceed $500 per day.
[FEATURES: daily maximum]
No civil administrative penalty assessed hereunder shall be less than one hundred dollars.
[FEATURES: penalty minimum]
Any person who fails to comply with or otherwise violates the provisions of chapter one
hundred and eleven F enforceable by the department shall be liable for a civil administrative
penalty not to exceed two hundred and fifty dollars per day for each day that such violation
continues and the department shall follow the procedures set forth herein in assessing such
penalty. For any other failure to comply with any regulation, order, license or approval issued
or adopted by the department, or any law which the department has authority or responsibility
to enforce, the civil administrative penalty for each failure to comply shall not exceed one
thousand dollars.
[FEATURES: maximums set per day or per violation depending on the
infraction]
PROGRAM COMPONENT: The option or requirement to establish a schedule of
penalties and the considerations that may or must be
observed during its development.
The assistant director of the division shall adopt by rule a schedule or schedules establishing
the amount of civil penalty that may be imposed for a particular violation.
[FEATURES: schedule is mandated]
The commissioner of health services shall adopt regulations in accordance with the provisions
of chapter 54 of the general statutes, establishing a schedule or schedules of the amounts, or
the ranges of amounts, of civil penalties which may be imposed under this section. In adopting
such regulations, the commissioner shall consider the level of assessment necessary to insure
immediate and continued compliance with such provision, and the character and degree of
injury or impairment to or interference with or threat thereof to: (1) the purity of drinking
water supplies; (2) the adequacy of drinking water supplies and (3) the public health, safety or
welfare.
[FEATURES: schedule is mandated; considerations for insuring compliance
and regarding the seriousness of the violation may be made]
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The commission may establish, by rule, a schedule or range of civil penalties which may be
administratively assessed. The schedule shall provide procedures and criteria for the
administrative assessment of penalties of not more than one thousand dollars for minor
violations of this chapter or rules, permits or orders adopted or issued under this chapter. In
adopting a schedule or range of penalties and in proposing or assessing a penalty, the
commission and director shall consider among other relevant factors the following: (a) the
costs saved or likely to be saved by noncompliance by the violator; (b) the gravity of the
violation; (c) the degree of culpability of the violator; and (d) the maximum penalty authorized
for that violation under this chapter.
/FEATURES: schedule not mandated but considerations of economic and
gravity components, culpability, and the maximum penalty
allowed are required]
Such regulations may provide for: a schedule of the amount of civil penalty which can be
assessed by the commissioner for certain specific violations or categories of violations.
[FEATURES: schedule not mandated]
PROGRAM COMPONENT: Procedures for when and how an administrative penalty may
be assessed.
Penalties may be administratively assessed only after an opportunity for a contested case
hearing which may be combined with a hearing on the merits of the alleged violation.
[FEATURES: requires hearing opportunity]
The Department may assess a civil administrative penalty on a person who fails to comply with
any provision of any regulation, order, license or approval issued or adopted by the department,
or of any law which the department has the authority or responsibility to enforce; provided,
however, that such noncompliance occurred after the department had given such person written
notice of such noncompliance, and after reasonable time, as determined by the department and
stated in said notice, had elapsed for coming into compliance; and provided, further, that the
department may assess such penalty without providing such written notice if such failure to
comply: (1) was part of a pattern of noncompliance and not an isolated instance, or (2) was
willful and not the result of error, or (3) resulted in significant impact on public health, safety,
welfare or the environment, or (4) consisted of failure to promptly report to the department.
[FEA TURES: requires notice but includes provisions for when a notice is not
required]
If the commissioner has reason to believe that a violation has occurred, he may impose a
penalty if compliance is not achieved by a specific date and send to the violator, by certified
mail, return receipt requested, or personal service, a notice which shall include: (1) a reference
to the sections of the statute or regulation involved; (2) a short and plain statement of the
matters asserted or charged; (3) a statement of the amount of the civil penalty or penalties to
be imposed; (4) the initial date of the imposition of the penalty, and (5) a statement of the
party's right to a hearing.
[FEATURES: requires notice as well as the notice's contents]
When the department assesses a civil penalty, it shall inform the person of the amount of the
penalty. The person charged with the penalty shall then have 30 days to pay the penalty in full
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or, if the person wishes to contest either the amount of the penalty or the fact of the violation,
the person shall within the 30-day period, file an appeal of the action with the Environmental
Hearing Board.
[FEATURES: requires notice and opportunity for a hearing]
PROGRAM COMPONENT: Considerations that must be made or that are allowed to be
made when determining the amount of a penalty in an
individual case.
In imposing a penalty pursuant to the schedule or schedules adopted pursuant to this section,
the assistant director shall consider the following factors: (a) the past history of the person
incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct
any violation; (b) any prior violations of statutes, rules, orders and permits pertaining to the
water system; and (c) the economic and financial conditions of the person incurring the penalty.
[FEATURES: requires consideration of violator's past efforts to comply,
noncompliance history, violator's financial conditions]
The penalty imposed under this section may be remitted or mitigated upon such terms and
conditions as the division considers proper and consistent with the public health and safety.
[FEATURES: allows discretionary mitigation]
In assessing a civil penalty the following factors may be considered: (1) the harm done to the
public health or the environment; (2) whether the civil penalty imposed will be substantial
economic deterrent to the illegal activity; (3) the economic benefit gained by the violator; (4)
the amount of effort put forth by the violator to remedy this violation; (5) any unusual or
extraordinary enforcement costs incurred by the commissioner; and (6) the amount of penalty
set by the board for specific categories of violations.
[FEATURES: allows consideration of economic and gravity components,
violator efforts to comply, agency costs, maximum penalty
allowed]
In setting a civil penalty in a particular case, the commissioner shall consider factors which he
deems relevant, including, but not limited to, the following: (1) the amount of assessment
necessary to insure immediate and continued compliance with such provision; (2) the character
and degree of impact of the violation on the purity and adequacy of drinking water supplies;
(3) whether the water company incurring the civil penalty is taking all feasible steps or
procedures necessary or appropriate to comply with such provisions or to correct the violation;
(4) any prior violations by such water company of statutes, regulations, orders or permits
administered, adopted or issued by the commissioner, (5) the character and degree of injury
to, or interference with, public health, safety or welfare which has been or may be caused by
such violation.
[FEATURES: requires consideration of gravity component, violator efforts to
comply, noncompliance history; allows other considerations]
In determining the amount of each civil penalty, the department shall! include, but not be
limited to, the following in its considerations: the actual and potential impact on public health,
safety and welfare and the environment of the failure to comply, the actual and potential
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damages suffered, and actual or potential costs incurred, by the commonwealth, or by any other
person; whether the person being assessed the civil administrative penalty took steps to prevent
noncompliance, to promptly come into compliance and to remedy and mitigate whatever harm
might have been done as a result of such noncompliance; whether the person being assessed
the civil administrative penalty has previously failed to comply with any regulation, order,
license or approval issued or adopted by the department, or any law which the department has
the authority or responsibility to enforce; making compliance less costly than noncompliance;
deterring future noncompliance; the financial condition of the person being assessed the civil
administrative penalty, and the public interest.
[FEATURES: requires consideration of gravity and economic components,
violator efforts to comply, noncompliance history, violator's
financial status, public interest; allows other considerations]
PROGRAM COMPONENT: A time limit for penalty payment.
A penalty shall be paid within thirty days of the date the order assessing the penalty becomes
final.
[FEATURES: provides a specified period of time]
Any civil penalty imposed under ORS 448.285 shall become due and payable when the person
incurring the penalty receives a notice in writing from the assistant director of the division.
[FEATURES: due upon receipt of notice]
PROGRAM COMPONENT: A provision for the disposition of money collected from
penalty assessments.
All amounts recovered under this section shall be paid into the State Treasury and credited to
the General Fund.
[FEATURES: pay to State Treasury]
All civil penalties assessed by the department and interest on the penalties shall be deposited
in the general fund of the state.
[FEATURES: deposit in General Fund]
All fines and penalties collected under the penalty provisions of this act and all fees shall be
paid into the State Treasury into a special restricted receipt account in the General Fund known
as the Safe Drinking Water Account administered by the department for use in protecting the
public from the hazards of unsafe drinking water and which funds are hereby appropriated to
the department for such purposes as are authorized in this act.
[FEATURES: paid into a Safe Drinking Water Account in the General Fund]
A small water systems fund is established in the department of environmental quality. The fund
consists of monies appropriated by the legislature and monies obtained as civil penalties
imposed under ง 49-354. Monies in the fund are exempt from lapsing under ง 35-190. Interest
earned on monies in the fund shall be credited to the fund.
{FEATURES: Small Water Systems Fund]
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All fines and penalties collected under the penalty provisions of this act and all fees shall be
paid into the water development fund pursuant to ง 46-15-24.
[FEATURES: Water Development Fund; references other requirements]
PROGRAM COMPONENT: Provisions for nonpayment of penalties.
A person who fails to timely pay a civil penalty assessed by a final order of the department shall
pay, in addition, interest at the rate of one and one-half percent of the unpaid balance of the
assessed penalty for each month or part of a month that the penalty remains unpaid. The
attorney general shall institute, at the request of the department, summary proceedings to
recover the penalty and any accrued interest.
[FEATURES: requires interest payment; Attorney General involvement]
If any water company fails to pay any civil penalty, the attorney general, upon request of the
commissioner of health services, may bring an action in the superior court for the judicial
district of Hartford-New Britain to obtain enforcement of the penalty by the court. All actions
brought by the attorney general pursuant to the provisions of this section shall have precedence
in the order of trial as provided in section 52-191 of the general statutes.
[FEATURES: allows Attorney General involvement]
Each person who fails to pay a civil administrative penalty on time, and each person who issues
a bond pursuant to this section and who fails to pay to the commonwealth on time the amount
required hereunder, shall be liable to the commonwealth for up to three tunes the amount of
civil administrative penalty, together with costs, plus interest from the time the civil
administrative penalty became final and attorneys' fees, including all costs and attorneys' fees
incurred directly in the collection thereof. The rate of interest shall be the rate set forth in
section six C of chapter two hundred and thirty-one.
[FEATURES: allows penalty to be tripled; requires payment of costs, interest,
and attorney's fees]
Unless the amount of the penalty is paid within 10 days after the order becomes final, the order
shall constitute a judgment and may be filed in accordance with the provisions of ORS 18320
to 18370. Execution may be issued upon the order in the same manner as execution upon a
judgment of a court of record.
[FEATURES: requires treatment equivalent to court judgment; references other
requirements]
PROGRAM COMPONENT: Internal appeal procedures.
Whenever the department seeks to assess a civil administrative penalty on any person, such
person shall have the right to an adjudicatory hearing under chapter thirty A whose provisions
shall apply except when they are inconsistent with the provisions of this section.
[FEATURES: references other requirements]
The civil penalty shall be payable for noncompliance on the date specified in subsection (c) of
this section and for each day thereafter until the water company against whom the penalty was
issued notifies the commissioner that the violation has been corrected. Upon receipt of such
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MODEL LEGISLATION
notification, the commissioner shall determine whether or not the violation has been corrected
and shall notify the water company, in writing, of such determination. The water company may,
within twenty days after such notice is sent by the commissioner, request a hearing to contest
an adverse determination. If, after such hearing, the commissioner finds that the violation still
exists, or if the water company fails to request a hearing, the penalty shall continue in force
from the original date of imposition. The water company to whom the notice is addressed shall
have twenty days from the date of mailing of the notice to make written application to the
commissioner for a hearing to contest the imposition of the penalty. All hearings under this
section shall be conducted pursuant to sections 4-177 to 4-184, inclusive, or the general statutes.
[FEATURES: mandates several steps; references other requirements]
The person to whom the notice is addressed shall have 20 days from the date of mailing to the
notice in which to make written application from a hearing before the division. All hearings
shall be conducted pursuant to the provisions of ORS 183.310 to 183.550 applicable to a
contested cases.
[FEATURES: references other requirements]
The director shall afford to the alleged violator an opportunity for a fair hearing before the
department under the Administrative Procedure Act.
[FEATURES: general requirement but references other requirements]
PROGRAM COMPONENT: Final or judicial appeals and restrictions on when a court
appeal will not be allowed.
Any person who institutes proceedings for judicial review of the final assessment of a civil
administrative penalty shall place the full amount of the final assessment in an interest-bearing
escrow account in the custody of the clerk/magistrate of the reviewing court.
[FEATURES: requires assessed penalty to be deposited in an escrow account
before judicial review allowed]
A person aggrieved by a rule, standard, or order adopted or issued pursuant to this part may
appeal to the district court. While the appeal is pending, the rule, standard, or order is in
force.
[FEATURES: order stands through court appeal]
A final order of the commissioner assessing a civil penalty shall be subject to appeal as set forth
in section 4-183 of the general statutes after a hearing before the commissioner pursuant to
subsection (e) of this section, except that any such appeal shall be taken to the superior court
for the judicial district of Hartford-New Britain and shall have precedence in the order of trial
as provided in section 52-191 of the general statutes. Such final order shall not be subject to
appeal under any other provision of the general statutes. No challenge to any such final order
shall be allowed as to any issue which could have been raised by an appeal of an earlier order,
notice, permit, denial or other final decision by the commissioner.
[FEATURES: judicial relief disallowed if administrative hearing opportunities
not pursued first]
Any party aggrieved by a final judgment of the superior court may, within thirty (30) days from
the date of entry of the judgment, petition the supreme court for a writ of certiorari to review
95
-------
MODEL LEGISLATION
any questions of law. The petition shall set forth the errors claimed. Upon the filing of the
petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ
of certiorari.
[FEATURES: procedures for petitioning the Supreme Court]
Additional judicial review may not be sought after the order becomes final.
[FEATURES: restricts judicial review]
In addition to general authorities that can provide for administrative penalty
assessments and legislative requirements pertaining to specific program components, a State
agency must be sure that adequate regulatory promulgation and responsibility delegation
powers are provided. Some States may also want to include provisions for local authority
responsibilities. However, it must be stressed that the effectiveness of a drinking water
enforcement program lies more in its interpretation and implementation than in the
language of the law itself.
96
-------
CONCLUSION
CONCLUSION
The most conclusive finding is that unique provisions tailored to each State are
necessary to make a drinking water administrative penalty program effective. Because
information on enforcement programs in 11 States was not received and the amount and
types of information submitted by the other 43 States were not uniform, this study was
limited by data availability. However, the information reviewed left no doubt that
implementation of administrative penalty programs varies.
The wide diversity among State procedures can probably be attributed to
requirements found in individual administrative procedures acts. In most cases, this act was
not submitted with the State's information on drinking water enforcement; therefore, it was
not possible to determine which provisions are mandated for all State agencies and which
are unique to the drinking water program.
Although it was observed that geographic location played some role in State
enforcement efforts, definitive conclusions could not be drawn. Comprehensive analyses of
the size and type of water systems and unique problems or benefits associated with specific
weather patterns and terrain were not conducted during this study. Consequently, judgments
on a number of factors that may influence the selection of one enforcement option over
another have not been presented.
This study did find that most States prefer to use their authority as leverage to
compel compliance rather than to assess an administrative penalty. On the other hand, if
a public water system does not believe the agency will follow through, the threat of a penalty
is ineffectual. Consequently, agencies must establish a history of strong enforcement actions
so that when a program matures and the agency's reputation spreads, the likelihood of
violating systems coming into compliance (without the need to assess administrative
penalties) will increase.
The option of reaching a consent order with a violator was also more preferable in
many States than unilaterally assessing a penalty; if it is necessary to go to court to obtain
compliance with an order, it is much easier if the violator had previously agreed with the
order's requirements. In addition, if an agreed order can be issued, the appeal process is
avoided. Some States consider assessing lower penalties in consent orders as one incentive
for reaching an agreement; however, other States believe this practice could hurt an agency's
reputation for being equitable and fair.
Administrative actions are preferred over court actions. Although the agency
relationships with the courts vary, court actions are viewed as being more costly in terms of
time and money.
97
-------
CONCLUSION
The study's analyses indicate that implementation of certain procedures and policies
contributes to effective programs. The primary goal is to develop a program that is easy to
implement and that avoids lengthy and costly court proceedings. One procedure that should
be fundamental in all programs is good communication. Whereas, various people have
enforcement responsibilities, the exchange of information and ideas is essential. In addition,
communication with the water system during the enforcement process has been effective in
obtaining compliance without the need for formal enforcement actions. A program also
should allow some degree of flexibility for administrative penalty assessments. However, the
ability to consider special circumstances of individual violations must be balanced with the
need to have a policy that mandates consistency. The need for State-wide uniformity is
supported by the fact that in States where local authorities assume an active role in
enforcement, providing a degree of centralization is now a primary concern. Implementing
a policy that requires comprehensive research before an action can be initiated and
establishing a reputation for being fair but firm in enforcement also can contribute to a
program's success.
Administrative penalty programs are established to obtain compliance, as a deterrent
for future noncompliance, and as a valuable enforcement option that lends itself to quick
and cost-effective resolutions. Existing policies and procedures vary considerably and reflect
the uniqueness of States; however, the State's willingness to enforce against noncompliance
plus the methods used to implement the various program components provide the best
indication of success in assuring compliance.
98
-------
APPENDICES
-------
APPENDIX A
APPENDIX A
STATE CONTACT LIST
Region I
Mr. Peter Karalekas
Public Water Supply Section Chief
EPA Region 1
JFK Federal Building
Boston, MA 02203
(7)617-565-3655
(F)617-835-3468
CONNECTICUT
Clifford A. McClellan Jr.
Enforcement Officer
Water Supplies Section
Connecticut Department of Health
Water Supplies Section
150 Washington Street
Hartford, Connecticut 06106
203-566-1253
MASSACHUSETTS
Mr. David Terry, Acting Director
Department of Environmental Protection
Division of Water Supply
One Winter Street, 9th Floor
Boston, Massachusetts 02108
617-292-5765
MAINE
Mr. Jeffrey Jenks, Director
Drinking Water Program
Division of Health Engineering
Maine Department of Human Services
State House (STA 10)
Augusta, Maine 04333
207-289-5685
NEW HAMPSHIRE
Mr. Bernard D. Lucey, Administrator
Water Supply Engineering Bureau
Department of Environmental Services
Post Office Box 95, Hazen Drive
Concord, New Hampshire 03301
603-271-3139
RHODE ISLAND
Ms. June Swallow, Acting Chief
Drinking Water Quality
Rhode Island Department of Health
Cannon Building
Three Capitol Hill
Providence, Rhode Island 02908-5097
401-277-6867
VERMONT
Jean Nicolai
Permit Specialist
Agency of Human Services
Division of Environmental Health
Vermont Department of Health
60 Main Street
Post Office Box 70
Burlington, Vermont 05402
802-863-7220
Region 11
Mr. Robert Williams
Public Water Supply Section Chief
EPA Region 2
26 Federal Plaza
New York City, NY 10278
(T)212-264-1800
(F)212-264-2194
A-l
-------
APPENDIX A
NEW JERSEY
Mr. Barker Hamill, Chief
Bureau of Safe Drinking Water
Division of Water Resources
New Jersey Department of Environmental
Protection
Post Office Box CN-029
Trenton, New Jersey 08625
609-292-5550
NEW YORK
Mr. Daniel E. Serrell, P.E.
Chief, Compliance and Operations Section
Bureau of Public Water Supply Protection
New York Department of Health
Corning Tower
The Governor Nelson A. Rockefeller
Empire State Plaza
Albany, New York 12237
PUERTO RICO
Mr. Clery Morales, P.E., Acting Director
Public Water Supply Supervision Program
Puerto Rico Department of Health
Edifice A. Centro Medico
Box 70184
San Juan, Puerto Rico 00936
809-763-4307
VIRGIN ISLANDS
Mr. Lenid Reed
Acting Director
Division Environmental Protection Planning &
Natural Resources
Nisky Center, Suite 213
St. Thomas, Virgin Islands 00802
Region III
Mr. Jeffrey Hass
Public Water Supply Section Chief
EPA Region 3
841 Chestnut Building
Philadelphia, PA 19107
(T)215-597-9873
(F)215-597-3359
DELAWARE
Mr. Richard B. Howell, III
Office of Sanitary Engineering
Division of Public Health
Delaware Health and Social Services
Post Office Box 637
Dover, Delaware 19901
302-739-5410
DISTRICT OF COLUMBIA
Mr. James R. Collier
Chief, Water Hygiene Branch
Department of Consumer and Regulatory Affairs
5010 Overlook Avenue, S.W.
Washington, DC 20032
MARYLAND
Mr. John W. Grace
Special Water Supply Project Division
Maryland Department of the Environment
2500 Broening Highway
Dundalk, Maryland 21224
301-631-3714
PENNSYLVANIA
Mr. Frederick A. Marrocco, Chief
Division of Water Supplies
Department of Environmental Resources
Post Office Box 2357
Harrisburg, Pennsylvania 17120
717-787-9037
VIRGINIA
Mr. Evans H. Massie
Compliance Officer
Division of Water Supply Engineering
Virginia Department of Health
James Madison Building
109 Governor Street
Richmond, Virginia 23219
804-786-1756
A-2
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APPENDIX A
WEST VIRGINIA
Mr. Donald A. Kuntz, P.E., Director
Environmental Engineering Division
Office of Environmental Health Services
State Department of Health
East 1900 Kanawha Blvd., East
Charleston, West Virginia 25305
304-348-2901
Region IV
Mr. Michael Leonard
Public Water Supply Section Chief
EPA Region 4
345 Cortland St
Atlanta, GA 30365
(7)404-347-2913
(F)404-257-4702
ALABAMA
Mr. Joe Alan Power, Director
Public Water
Department of Environmental Management
1751 Congressional W.L. Dickinson Drive
Montgomery, Alabama 36130
205-271-7773
FLORIDA
Mr. Kent Kimes, Administrator
Drinking Water Section
Department of Environmental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
904-487-1762
GEORGIA
Mr. Fred D. Lehman, Program Manager
Drinking Water Program
Georgia Department of Natural Resources
Floyd Towers East, Suite 1066
205 Butler Street, SE
Atlanta, Georgia 30334
404-656-5660
KENTUCKY
Mr. John E. Hornback, Branch Manager
Compliance and Enforcement Branch
Division of Water
Kentucky Department for Natural Resources and
Environmental Protection Cabinet
18 Reilly Road
Fort Boone Plaza
Frankfort, Kentucky 40601
502-564-3410
MISSISSIPPI
Mr. James C. McDonald, Director
Division of Water Supply
Mississippi State Department of Health
Post Office Box 1700
Jackson, Mississippi 39205
601-960-7518
NORTH CAROLINA
Mr. Wally Venrick, Chief
Public Water Supply Section
Department of Environment, Health & Natural
Resources
Division of Environmental Health
Post Office Box 27687
Raleigh, North Carolina 27611-7687
919-733-2321
SOUTH CAROLINA
Mr. Robert E. Malpass, P.E., Chief
Bureau of Drinking Water Protection
Department of Health and Environmental Control
Environmental Quality Control
2600 Bull Street
Columbia, South Carolina 29201
803-734-5310
TENNESSEE
Mr. David Draughon, Director
Division of Water Supply
Tennessee Department of Health and Environment
T.E. R.RA. Building
150 9th Avenue, North
Terra Building, 1st Floor
Nashville, Tennessee 37247-3411
615-741-6636
A-3
-------
APPENDIX A
Region V
Mr. Daniel A. Wilson
Public Water Supply Section Chief
EPA Region 5
230 South Dearborn St.
Chicago, IL 60604
(T)312-886-6206
(F)312-886-9096
ILLINOIS
Mr. Roger D. Selburg, Division Manager
Division of Public Water Supplies
Illinois Environmental Protection Agency
2200 Churchill Road P.O. Box 19276
Springfield, Illinois 62794-9276
(T)217-785-8653
(F)217-524-4192
INDIANA
Mr. Arnold J. Viere, Chief
Public Water Supply Section
Indiana Department of Environmental Management
Public Water Supply/Executive
105 South Meridian Street
P.O. Box 6015
Indianapolis, Indiana 46206
(7)317-240-6234
(F)317-243-5092
MICHIGAN
Ms. Karen Kalinowski
Assistant to the Division Chief
Division of Water Supply
Michigan Department of Public Health
P.O. Box 30195
3423 North Logan Street
Lansing, Michigan 48909
(T)517-335-8316
(F)517-335-8298
MINNESOTA
Mr. Gary L. Englund, Chief
Section of Water Supply and Well Management
Minnesota Department of Health
717 SE Delaware Street
P.O. Box 9441
Minneapolis, Minnesota 55441
(7)612-627-5170
(F)612-623-5080
OHIO
Mr. Kirk M. Leifheit, Manager
Enforcement and Policy Development
Section
Division of Public Drinking Water
Ohio Environmental Protection Agency
1800 WaterMark Drive
Post Office Box 1049
Columbus, Ohio 43266-0149
(7)614-644-2752
(F)614-644-2329
WISCONSIN
Mr. Robert A. Baumeister, Chief
Public Water Supply Section
Bureau of Water Supply
Department of Natural Resources
P.O. Box 7921
101 South Webster
Madison, Wisconsin 53707
(7)608-266-2299
(F)608-267-3579
Region VI
Mr. 7om Love
Public Water Supply Section Chief
EPA Region 6
1445 Ross Ave.
Dallas, TX 75202-2733
(7)214-655-7155
(F)214-255-2142
A-4
-------
APPENDIX A
ARKANSAS
Mr. Bob Makin, Assistant Director
Division of Engineering
Arkansas Department of Health
4815 West Markham Street - Mail Slot 37
Little Rock, Arkansas 72205-3867
501-661-2000
LOUISIANA
Mr. T. Jay Ray, Administrator
Office of Public Health
Louisiana Department of Health and Hospitals
Post Office Box 60630
New Orleans, Louisiana 70160
NEW MEXICO
Mr. Robert M. Gallegos, Program Manager
Drinking Water Section
New Mexico Health & Environment Department
1190 St. Francis Drive
Room South 2058
Santa Fe, New Mexico 87503
OKLAHOMA
Mr. John Craig
Water Quality Service
Oklahoma State Department of Health
Post Office Box 53551
Oklahoma City, Oklahoma 73152
TEXAS
Mr. Jack C. Shulze
Surveillance and Technical Assistance Branch
Division of Water Hygiene
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199
512-458-7497
Region VII
Mr. Gerald R. Foree
Public Water Supply Section Chief
Region 7
726 Minnesota Ave.
Kansas City, KS 66101
(T)913-551-7369/(F)913-551-7765
IOWA
Mr. Dennis J. Alt
Surface and Groundwater Protection Bureau
Environmental Protection Division
Iowa Department of Natural Resources
Wallace State Office Building
900 East Grand Street
Des Monies, Iowa 50319
515-281-8998
KANSAS
Mr. David F. Waldo, Chief
Public Water Supply Section
Bureau of Water
Kansas Department of Health and the Environment
Forbes Field
Building 740
Topeka, Kansas 66620
MISSOURI
Mr. Jerry L. Lane, Director
Public Drinking Water Program
Division of Environmental Quality
Department of Natural Resources
Post Office Box 176
Jefferson City, Missouri 65102
NEBRASKA
Mr. Jack L. Daniel, Director
Division of Drinking Water and
Environmental Sanitation
Nebraska Department of Health
301 Centennial Mall South
P.O. Box 95007, 3rd Floor
Lincoln, Nebraska 68509
(T)402-471-2541
Region VIII
Ms. Alicia Alto
EPA Region 8
999 18th St. 500
Denver, CO 80202-2405
(T)303-293-1702
(F)303-564-1647
A-5
-------
APPENDIX A
COLORADO
Mr. Jerry C. Biberstine, Manager
Drinking Water Program
Colorado Department of Health
4210 East llth Avenue
Denver, Colorado 80220
MONTANA
Mr. Dan L. Fraser
Water Quality Bureau
Department of Health and Environmental Sciences
Cogswell BuUding, Room A206
Helena, Montana 59620
NORTH DAKOTA
Mr. D. Wayne Kern, Environmental Engineer
Division of Water Supply and Pollution Control
Department of Health and Consolidated
Laboratories
1200 Missouri Avenue
P.O. Box 5520
Bismarck, North Dakota 58502-5520
(701) 224-2354
SOUTH DAKOTA
Mr. Darron C. Busch
Administrator
Office of Drinking Water
Department of Water and Natural Resources
Joe Foss Building
523 East Capital Avenue
Pierre, South Dakota 57501
605-773-3754
UTAH
Mr. Kenneth H. Bousfield
Compliance Program Manager
Bureau of Drinking Water/Sanitation
Utah Department of Health
Post Office Box 16690
Salt Lake City, Utah 84116-0690
801-538-6159/801-538-6163
WYOMING
Mr. William L. Garland, Administrator
DEQ - Water Quality
Herschler Building
4th Floor West
Cheyenne, 82002
Region IX
Mr. Bill Thurston
Public Water Supply Section Chief
EPA Region 9, W-6-1
75 Hawthorne St.
San Francisco, CA 94105
(7)415-744-1851
(F)415-484-1851
ARIZONA
Mr. Jon Dahl
Arizona Department of Environmental Quality
Drinking Water Compliance Unit
Compliance Section
2005 N. Central Ave., Room 302
Phoenix, Arizona 85004
(1)602-257-2201
CALIFORNIA
Mr. Cliff Sharpe, Chief
Field Operations Branch
Office of Drinking Water
California Department of Health Services
714 P Street, Room 692
P.O. Box 942732
Sacramento, California 94234-7320
916-323-6111
HAWAII
Mr. Thomas E. Arizuimi, Chief
Safe Drinking Water Branch
Environmental Management Division
Five Waterfront Plaza
500 Ala Moana Blvd #250
Post Office Box 3378
Honolulu, Hawaii 96813
NEVADA
Mr. Larry L. Rountreee, R.S.
Environmental Health Specialist III
Consumer Health Protection Services
Nevada Department of Human Resources
505 East King Street, Room 103
Carson City, Nevada 89710
702-687-4750
A-6
-------
APPENDIX A
AMERICAN SAMOA
Mr. Pati Faiai, Director
American Somoa Environmental Protection Agency
American Samoa Government
Office of the Governor
Pago Pago, American Samoa 96799
GUAM
Mr. Fred M. Castro, Administrator
Guam Environmental Protection Agency
D-107 Harmon Plaza
130 Rojas Street
Harmon, Guam 96911
671-646-8863/65
NORTHERN MARIANA ISLANDS
Mr. F. Russell Mechem II, Chief
Division of Environmental Quality
Commonwealth of the Northern Mariana Islands
Dr. Torres Hospital
Post Office Box 1304
Saipan, CM 96950
PALAU
Mr. Marhence Madranchar, Executive Officer
Palau Environmental Quality Protection Board
Republic of Palau
P.O. Box 100
Koror, Palau 96940
IDAHO
Mr. Al E. Murrey, P.E., Chief
Bureau of Water Quality
Division of Environmental Quality
Idaho Department of Health and Welfare
Statehouse Mail
Boise, Idaho 83720
OREGON
Mr. James R. Boydston, Manager
Drinking Water Program, Health Division
Department of Human Resources
1400 S.W. 5th Avenue, Room 608
Portland, Oregon 97201
WASHINGTON
Ms. Ronni Kineen, Public Health Advisor
Department of Health
Mail Drop LD-11, Building 3
Airdustrial Park
Olympia, Washington 98504
206-586-1096
Region X
Mr. J. Larry Worley
Public Water Supply Section Chief
EPA Region 10
1200 Sixth Ave.
Seattle, WA 98101
(1)206-442-1893
(F)206-399-4672
ALASKA
Ms. Charlene Denys, Manager
Alaska Drinking Water Program
Wastewater and Water Treatment Section
Department of Evironmental Conservation
Post Office Box 0
Juneau, Alaska 99811-1800
A-7
-------
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