Unittd States    .     OfficaofWator        EP^| 570^1-001
Environmental Pr90tซc*bn    (WH-SSOf**         January 1991
State Drinking Water
Administrative Penalty
Programs
An Inventory Of
State Practices
                     J.3. BivfroaiHiemtaT ^roteotlon Agency
                     Region 5, Library (3FL :"}
                     250 S. Dearborn Street, liooa 167Q
                     CUicago, 1L  fi0604
                                 Print* o* fiKyciKi Pap*

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                                                                  EXECUTIVE SUMMARY

                           EXECUTIVE SUMMARY

      Approximately 200,000 public water systems are regulated under the Safe Drinking
Water Act. Currently, 54 States (including territorial possessions) have primary enforcement
responsibility for public water systems.  A number of these States have the ability to issue
administrative penalties; when an agency has  this authority, it can assess fines without
utilizing the court system. This report presents an overview of State enforcement practices,
provides case-study descriptions of six States with administrative penalty authority, includes
a comparative analysis of State programs, and discusses and provides examples of language
that can be used in a legislative authority for administrative penalty assessment powers.

      Of the 54  States, 43 submitted information on their drinking water enforcement
programs.  Of these States, 18 have the authority to assess administrative penalties and 5
additional States can issue penalties if they reach an agreement with the violator. Of the
25 responding States that do not have unilateral administrative penalty assessment authority,
11 States have tried,  are in the process of trying, or intend to try to obtain authority.

      Six States  (California,  Connecticut, Florida, Pennsylvania, South  Carolina, and
Washington), representing five EPA regions, were contacted for a more indepth case-study
analysis.  An effort was made to select States that represented all geographical areas, but
this was impossible because no State having an administrative penalty program and located
in the Midwest could participate in the case study.  However, the six case-study States
provide a good cross-section of State programs.  One program matured during a 6-year
period, and full administrative penalty assessment powers were granted in 1983; legislation
for another State program was approved in  June 1990.  One State prefers using an
enforcement alternative other than penalty assessments, one State uses penalties as part of
a multifaceted enforcement program, and several States claim that before the authority to
assess penalties was obtained, few enforcement actions took place. Although the belief that
using administrative  enforcement actions enhances compliance was found to be virtually
universal, there are unique components in each State program. Each program (in order of
implementation date) is summarized below.

      South Carolina's program was fully implemented by 1983. The Department of Health
and Environmental Control is responsible for the State's drinking water program, and the
Bureau of Drinking Water Protection in the Department's Office of Environmental Quality
Control is the lead program unit. The Bureau's Compliance Section and District personnel
identify violations and try to  obtain  compliance;  local officials   are  not involved.
Enforcement actions  are pursued by the Bureau's Enforcement Section after referral from
either the Compliance Section or a District.  The Enforcement Section determines a fair
penalty  and meets with the alleged violator.   During this conference, the Enforcement
Section tries to reach an agreement with the violator so a consent order can be issued. If
no agreement is reached, an administrative penalty will be assessed unilaterally. During a

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EXECUTIVE SUMMARY

14-month period, the Bureau issued 113 orders of which 95 were consent orders and 18 were
unilateral.

      In Pennsylvania, administrative penalty authority was granted in 1984 but the program
was not implemented until 1987.  Pennsylvania's Department of Environmental Resources,
Division of Water Supplies, is responsible for the drinking water program, and the entire
field staff (over 150 people) plays a role. Local officials are also active in enforcing drinking
water requirements.  The Division may use several enforcement tools.  Field orders that
compel  compliance are issued by field staff; compliance orders are issued for more serious
violations.  Consent orders and  letter agreements are used when an agreement can be
reached with the violator.  Summary  citations  (a criminal proceeding)  and formal court
proceedings are used infrequently. Administrative penalties can be assessed either through
negotiated settlement or unilaterally.  In 1989, the Pennsylvania Division of Water Supplies
took 289 enforcement actions in the  form of 91 field orders, 41 compliance orders, 11
consent orders, 2 unilateral penalty assessments,  141 negotiated penalties, 2 summary
citations, and 1 court case.

      Connecticut's law giving the Commissioner of Health Services the authority to impose
penalties was passed in  1985. However, current practice requires that a petition must be
presented to the court before an assessment.  Consequently, the Department of Health
Services does not assess  administrative penalties.  Instead, the Department prefers to work
with the Department of Public Utility Control and utilize joint takeover provisions. Jointly,
the two departments can order the acquisition of a water company and the violating system
can be assigned to another system.  Connecticut has no field offices for drinking water, and
local officials play a secondary support role in the program.  Although the  Enforcement
Officer  in  the Department's Water Supply Section is  the only full-time enforcement
employee for the program, all staff members participate.

      California's drinking water administrative penalty program began in  1986.  The
Department  of Health Services, Office of  Drinking Water, is responsible  for its
implementation. Local Health Officers are responsible for small systems and have the same
enforcement authority as the State agency. Field staff identify a violation, and a letter of
correction is sent to the  public water system.  If the violation is not corrected, a citation or
compliance order is  issued.   (Citations are issued  for short-term violations requiring
inexpensive corrective actions; compliance orders are issued for  violations requiring long-
term expensive improvement projects.) If the violation is not corrected, a second citation
containing an administrative penalty assessment is issued. If a third citation is necessary,
the penalty is increased. Compliance orders may be amended, if necessary.  In 1989, the
Office of Drinking Water assessed $900 in administrative penalties  and found that most
water systems were responding to the first citation.

      Washington's administrative penalty program also began in 1986, and the Department
of Health is responsible for implementation. Local health agencies  in some counties are

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                                                                  EXECUTIVE SUMMARY

responsible  for small  systems. All  counties  have the  authority  to  assess  penalties
administratively. After determining that a violation has occurred, the Department usually
takes several enforcement steps before issuing an order; these may include site visits, letters,
and telephone calls. All orders are signed by the Secretary of Health or designee. The first
order contains the threat of a penalty. If the violation continues, an administrative penalty
is assessed. If compliance is not obtained, a second penalty sometimes is assessed or a court
action is initiated.  In 1989, 22 orders were issued and 6 administrative penalties were
assessed.

       During the past 5 years, Florida's Department of Environmental Regulation has tried
three times to obtain  administrative penalty authority from the legislature.  In June 1990,
it received authority to assess noncompliance fees for reporting and monitoring violations.
As a result of previous  efforts, the Department learned that  the term "penalty" received
unfavorable reactions and that unaffected entities worried  about statutory authorities that
granted broad  powers  because a precedent could be  established.   Consequently, the
Department  proposed  legislation  that  was  specific and  that focused on compliance.
Assessing noncompliance fees was portrayed as a preventive program because the fees
would be levied before serious environmental problems occurred.

       In addition to the 6 case-study States, 17 of the other States that responded assess
administrative penalties; of these States, 5 (Idaho, Ohio, Utah, Vermont, and Virginia) can
assess  a penalty only with the agreement of the violator.

       During a hearing initiated by Georgia's Director of the Division of Environmental
Protection, Department of Natural Resources, an administrative penalty can be assessed for
$1,000 for noncontinuing violations and  $500 per day for continuing violations.   Iowa's
Department  of Natural Resources has  established  guidelines for determining penalty
amounts based on economic benefit, gravity of the violation, and violator's culpability; the
Department has the authority to assess penalties up to $1,000 for minor violations; failure
to pay a  penalty  results in  interest  charges being assessed.   The Department of
Environmental Quality Engineering in Massachusetts also has a formula for determining
penalty amounts; adjustments are made after consideration of the gravity of the violation,
the  economic  benefit  obtained  through  noncompliance,  and  other factors.   The
Massachusetts department can assess administrative penalties up to $1,000,  and if there is
a refusal to pay, the violator may be liable for up to three times the original amount. A
Public Health Administrative Tribunal was established in New York's Department of Health
with the authority to  impose fines and administrative penalties up to $2,000.  Oregon's
Assistant Director of the State Health Division can assess penalties administratively that do
not exceed $500 per day; penalties are determined by the number of people served by the
water  system.  In  Tennessee,  the  Commissioner of the Department  of Health  and
Environment can assess administrative penalties up to $5,000  per day of violation.
                                         111

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EXECUTIVE SUMMARY

      Although Hawaii's Department of Health Director can assess administrative penalties
up to $25,000 per day, the Department has been successful in gaining compliance without
the use of penalties. Rhode Island's Department of Health Director can assess a maximum
administrative penalty of $5,000 per day, but the State has been successful in using informal
enforcement procedures and no administrative penalties have been assessed.  In addition,
the Rhode Island department has the option to  refer complaints to the  Mobile Home
Commission, which can take management authority away from trailer park owners.

      Of the six case-study States, three State agencies encountered no difficulties in getting
the authority to assess penalties, two State agencies received opposition, and the governing
board of the other State agency increased administrative penalty assessment powers over a
6-year period following passage of the authorizing  law.   All  States link the use  of
administrative penalties with the ability to compel compliance, and all States prefer using
administrative enforcement actions over court proceedings.  In addition, most States prefer
using more informal administrative actions; bilateral consent agreements  are frequently
issued following negotiations with a violator.

      A number of State programs include provisions found in EPA's civil penalty policy,
issued in 1984. Eight States specified that the seriousness of a violation is considered in the
gravity component used for penalty amount determinations; three States include  an
economic benefit component. The Federal policy and several State programs also include
the consideration of a violator's ability to pay, the history of noncompliance, and the degree
of negligence and cooperation when determining a penalty amount.

      Despite the similarities in their rationale for having administrative penalties, the
implementation of specific procedures differs from State to State.   After analyzing the
programs in 23 States, the most conclusive finding is that each State is unique. Some States
have adopted the policy of mitigating penalty amounts if the violator consents to the order,
while others believe this is a self-defeating practice; several States provide justification for
assessing low monetary penalties, while other States believe higher administrative penalties
are needed; and some States still allow a system to  apply the penalty toward  imp; ovements,
while others have ceased using this practice. Although some States  noted  that the threat
of an administrative penalty assessment often will result in compliance, an agency must have
the reputation of being firm in its enforcement actions before these threats can be effective.

      The review of State legislation showed vast differences in laws granting agencies the
authority to assess penalties.  Some State authorities are extremely general and allow for
varying means of implementation.  Other State laws are highly specific and many steps of
the enforcement  process are mandated by the statute.  Only two State authorities (for
Pennsylvania and Rhode Island) contain statutory language that is even remotely similar.
One reason for the wide diversity in legislative authorities can be  assumed to be that the
various laws are necessary to meet specific State requirements.  For example, each  State
agency must comply with the established administrative procedures prescribed by law.  In
                                         IV

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                                                                  EXECUTIVE SUMMARY

addition, unique characteristics, such as geographic location, the size and type of regulated
water systems, departmental or agency financial resources, and the organizational structure
could determine the components of a  State authority.

      Consequently, instead of presenting a single model law to meet all circumstances, a
list of various authorities with suggested language is presented; States can review the
itemized options and select the features that would be most suitable in that State. General
authorities can provide an agency with overall enforcement powers over the drinking water
program, the ability to enter into agreements so that penalties can be assessed in consent
orders (following negotiation with a violator), and nonspecific powers to assess penalties.
If more detailed legislation is required, a State can consider including the following program
components:   penalty limits, penalty  schedules,  assessment procedures, penalty amount
determination,  penalty payment procedures,  penalty  allocation,  penalty  nonpayment
procedures, internal appeal procedures, and judicial appeal  procedures.

      Administrative penalties are used to obtain  compliance,  as  a deterrent to future
noncompliance, and as a valuable enforcement option that  lends itself to quick and cost-
effective resolutions.   Several  strategies stand  out as primary contributors to program
effectiveness.  These include developing a program that is easy to implement; establishing
a sound  case before initiating an action; providing  for flexibility in penalty assessments;
establishing an agency reputation for standing firm on  enforcement decisions; maintaining
good communications among program staff and with water systems; and ensuring State-wide
consistency.   Most of these features stem from implementation  of  the program, but the
degree of flexibility and level of consistency could depend on legislative  requirements.

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                                TABLE OF CONTENTS
                                                                                       page
Executive Summary  	  i
Introduction	1
  Enforcement Overview	1
  Purpose of Study	1
  Procedures Used To Compile Inventory of Enforcement Activities	2
  Initial Findings of the Inventory 	2
  Case-Study Procedures	7
State Administrative Penalty Programs - Case Studies	9
  California	 11
  Connecticut	 15
  Florida	20
  Pennsylvania  	?5
  South Carolina	 30
  Washington  	,  . . . 40
State Administrative Penalty Programs - Other State Information	 50
  Georgia	51
  Guam 	52
  Hawaii	53
  Idaho	54
  Iowa 	55
  Kentucky	59
  Massachusetts 	60
  New York 	69
  North Carolina	70
  Ohio 	71
  Oklahoma 	72
  Oregon  	73
  Rhode Island	74
  Tennessee 	76
  Utah	77
  Vermont  	78
  Virginia	79
Comparative Analysis of Administrative Penalty Programs	80
  Federal Program Components 	80
  State Program Comparisons	81
Model  State Legislation	87
Conclusion	97
Appendices
  A:  State Contact List
  B:  Summary Chart of State Administrative Penalty Components
  C:  Inventory of State Enforcement Activities
                                               VI

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                                                                     INTRODUCTION

                               INTRODUCTION
ENFORCEMENT OVERVIEW

      Approximately 200,000 public water systems (PWSs) are regulated under the Safe
Drinking Water Act (SDWA).  Section 1413 of the SDWA provides for States to assume the
primary enforcement responsibility (primacy) for PWSs if drinking water regulations that are
no less  stringent than the national primary drinking water regulations  are adopted and
enforced. U.S. Environmental Protection Agency (EPA) regulations on the implementation
of national primary drinking water regulations (40 CFR Part 142) require the States to have
adequate procedures for enforcing the regulations and specify that they must have statutory
or regulatory enforcement authority adequate to compel compliance. This authority must
include  the ability to sue in courts of competent jurisdiction to enjoin any violation and to
assess civil  or criminal  penalties  for  violations.   Currently, 54  States have primary
enforcement responsibility; in the District of Columbia, Indiana, and Wyoming the program
is implemented by EPA regional offices.  (As provided in the SDWA,  the definition of
"State" includes all territorial possessions, Indian tribes, and the District  of Columbia.)
PURPOSE OF STUDY

      A number  of  States have  instituted administrative penalties as part of  their
enforcement responsibilities. The authority to assess penalties administratively allows a
State agency to levy fines and other monetary penalties without utilizing the court system.
The 1986 SDWA  amendments provided  EPA with administrative order authority and
mandated its use. The priorities of EPA's drinking water program continue to support the
goal of protecting consumer health  through voluntary compliance. However, the Agency
believes  that  voluntary compliance  will  increase when more PWSs   realize  that
noncompliance carries a real risk  because  formal  enforcement, with its accompanying
penalties, is being pursued. By strengthening the  enforcement component, a stronger
deterrent to violation is created; thus, compliance should improve.

      The purpose of this study is  to inventory State enforcement activities, identify the
States with administrative penalty programs, evaluate the components of these programs
(their strengths and weaknesses), and present suggested statutory language for legislative
administrative penalty assessment authority. This report is directed at State drinking water
officials with the intent of providing sufficient information to assist them in implementing
or improving their own administrative penalty programs. It contains case studies of 6 States
with administrative penalty programs  that describe the range of State  authorities and
program  procedures;  descriptions  of  17  additional States with  administrative penalty
programs; and a  comparative analysis of these programs.

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INTRODUCTION

PROCEDURES USED TO COMPILE INVENTORY OF ENFORCEMENT ACTIVITIES

       Names of potential State contacts were solicited from each of the 10 EPA regional
Public Water Supply Section Chiefs. The Section Chiefs were also asked if there were any
specific State sensitivities that should be considered.  One regional Section Chief requested
that State officials in that region (Region 10) not be contacted; information on those States
was provided by EPA regional personnel.  A letter requesting general information on
drinking water enforcement activities was sent to all of the other States with primacy.
Subsequent attempts to obtain information from non-responding States also were made.
Each State contact then was  given the  opportunity  to review the information as it  was
presented in the draft report.


INITIAL FINDINGS OF THE INVENTORY

       Table 1 lists the States that responded and those  that did not respond.
                                       TABLE 1
                     STATE RESPONSES TO INFORMATION REQUEST
States that responded (431

Alaska (regional response)
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Guam
Hawaii
Idaho (regional response)
Illinois
Iowa
Louisiana
Kentucky
Maryland
Massachusetts
Michigan
Minnesota
Montana
Nebraska
Nevada
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon (regional response)
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington (regional response)
West Virginia
Wisconsin
States that did
not respond (11)

Alabama
American Samoa
Kansas
Maine
Mississippi
Missouri
New Hampshire
New Jersey
Northern Marianas
Palau
Virgin Islands

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                                                                       INTRODUCTION

       Responses were received  from 43 of the 54 States.  The information that was
submitted includes laws, regulations, policies,  procedures, and statistics.  A list of State
contacts  is provided in Appendix A;  a chart  of State administrative penalty program
components is provided is Appendix B; and a general inventory of State drinking water
enforcement activities is provided in Appendix C.

       Over 50  percent  of the responding States  indicated that the first step in the
enforcement process was to issue a formal written complaint, generally identified as a notice
of violation. These notices may identify the violation, establish a schedule for compliance,
and inform the recipient that a conference may be requested. Several States indicated that
these notices can be bypassed if a system has a record of noncompliance. If the recipient
of a notice fails to apply for a conference to discuss the violation, it is often  considered an
admission of guilt. Some States can include administrative penalty assessments with the
initial  notice; in these  cases  the  recipient is afforded the right to  a  more formal
administrative hearing.

       Over 80 percent of the responding States provide for the issuance of administrative
orders or compliance orders. Administrative or compliance orders are unilateral directives
that  require corrective action and in some States may include an  administrative penalty
assessment. Generally, such orders are the second step after a notice of violation has been
sent, and are issued following a conference decision or if the violator fails  to apply for a
conference.

       A number of States identified the use of consent orders/agreements. Consent orders
or letter  agreements often contain the same requirements as administrative or compliance
orders.  However, where administrative orders are issued unilaterally, consent orders
represent an agreement that has been reached with the violator. Like administrative orders,
consent orders can contain the assessment of an administrative penalty.

       Penalty amounts vary depending on the type of action. Most States have a maximum
administrative penalty  of $5,000; however, the maximum penalty in some States is as high
as $25,000. Penalties were generally assessed based on the following factors: (1) costs saved
by noncompliance (i.e., economic benefit); (2) gravity of the violation; (3) culpability; (4)
the maximum penalty authorized;  and (5)  the system's compliance  record.   Civil and
criminal  penalty amounts vary depending on  the seriousness of the violation; criminal
penalties are generally higher and include the possibility of imprisonment.

       Appeals are conducted in accordance with administrative procedures outlined for
each State.  In all cases, a  final  appeal can be pursued through the court system  when
proper procedures are  followed.

       When reviewing the State information,  which often included an assessment of the
State's program, it became obvious that the concept of administrative penalty assessment

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INTRODUCTION

differed.  Some States claimed they did not have the authority because a penalty could not
be assessed in an unilateral order.  Other States included consent or agreed orders in their
discussions  of  administrative penalty  assessments.    For  this  report,  summaries  of
administrative penalty programs have been included both for States that can assess a penalty
unilaterally and for States where bilateral agreement with the violator is required.  Based
on  that criterion,  the  following  States  were identified as having administrative penalty
programs (see Table 2).
                                        TABLE 2
                           STATE ADMINISTRATIVE PENALTIES
       States having administrative
       penalty authority (23)

       California
       Connecticut
       Florida
       Georgia
       Guam
       Hawaii
       Idaho*
       Iowa
       Kentucky
       Massachusetts
       New York
       North Carolina
       Ohio*
       Oklahoma
       Oregon
       Pennsylvania
       Rhode Island
       South Carolina
       Tennessee
       Utah*
       Vermont*
       Virginia  *
       Washington

       * Bilateral consent/agreed orders only.
States that have tried, are trying, or will try to get
unilateral administrative penalty authority (11)

Alaska
Arkansas
Illinois
Louisiana
Maryland
Michigan
Montana
North Dakota
Ohio
Virginia
Wisconsin
       Eleven of the States that responded discussed efforts to obtain administrative penalty
authority.   In Arkansas, administrative penalty provisions will be proposed in the  1991
legislative session;  the only anticip aed obstacles  are political in nature.  Montana and
Louisiana also are hoping for legislative approval in 1991. Language is being drafted for

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                                                                         INTRODUCTION

a proposed bill in Maryland and provisions for a "penalty order" are being developed in
Virginia.  In Michigan, legislation has been drafted so that administrative penalties can be
used to enforce monitoring requirements. The Wisconsin Department of Natural Resources
has been  trying for several years to obtain authority and plans to continue its efforts. In
addition,  officials in Alaska and North Dakota are currently considering administrative
penalty authority.

       Two additional States have tried to obtain administrative penalty authority. Although
Ohio's Division of Public Drinking Water can assess administrative penalties in final findings
and orders that are negotiated with the violator, it has been unsuccessful in its attempts to
obtain authority for unilateral assessments.  Illinois also has failed to receive administrative
penalty authority.

       Several States discussed their reasons for not having  an administrative penalty
program.    Colorado believes  it would  be  difficult  to convince the legislature  that
administrative penalties are necessary.  Colorado officials noted that another program has
administrative penalty authority but is under continual fire from the legislature for "picking
on the little guy" or "big industry." Both Arkansas and Texas strive for voluntary compliance
by providing technical assistance to water systems.  In Nebraska, noncompliance results in
the revocation of the public water system operating license, and officials believe that timely
and effective compliance has been achieved without the use of administrative penalties.

       Figure 1 depicts the geographical distribution of States in terms of the following:
States without primacy, States that submitted enforcement information, States having
administrative penalty programs, and State efforts to get the authority to assess penalties
administratively.

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INTRODUCTION

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                                                                                 INTRODUCTION

CASE-STUDY PROCEDURES

       To evaluate further State administrative penalty programs, a list of questions was
developed.   It was  intended  that  the  answers  to these  questions would provide  a
comprehensive profile of State programs.  Questions are listed in Table 3.

                                           TABLES

                         QUESTIONS FOR IN-DEPTH STATE ANALYSES

       •       What  is the language of the statutory authority granting the  agency
               administrative penalty authority?

       •       What agencies are involved in drinking water regulation and enforcement?

       •       Are there any idiosyncracies in definitions or terminology?

       •       How long has the administrative penalty program been in existence?

       •       How do administrative penalties relate to civil and criminal penalties?

       •       How often have administrative penalties been assessed?

       •       How is the administrative penalty program administered?

       •       How are administrative penalties enforced?

       •       How successful has the follow-up been?

       •       How many people are involved in enforcement activities?

       •       How labor-intensive is the follow-up?

       •       How is the penalty amount determined?

       •       Is a monetary limit established for the penalty amount?

       •       What is the cost to implement the administrative penalty program?

       •       What is the disposition of collected penalties?

       •       Are penalties assessed for specific violations?

       •       Is there any distinction between large and small systems?

       •       Is there any distinction for systems serving different types of populations?

       •       What  authority  do  local  jurisdictions/counties  have  in  exercising
               administrative penalty authority?

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INTRODUCTION

                                       TABLE 3 (cont.)

       •      How does local enforcement work?

       •      What difficulties were encountered in  obtaining the authority to use
              administrative penalties?

       •      What is the agency's relationship with the State Attorney General's office?

       •      How does the appeal procedure work?

       •      How many have used or successfully gone through the appeal process?

       •      How well is the administrative penalty program working?

       •      What benefits have resulted from the administrative penalty program?

       •      What problems have there been with the administrative penalty program?

       •      Has any correlation between the amount of the penalty and compliance rates
              been noted?

       •      Are there any plans to change the administrative penalty program?

       •      Are there any plans to implement an administrative penalty program?

       Preliminary answers to these questions were retrieved from the information supplied
as a result of the initial request.  Given  time and funding limitations, it was not feasible to
contact all States or even all States with administrative penalties.  After systematic review
of the answers to the questions, it was decided that six of the States would be contacted for
more in-depth analysis.  For each State selected, specific question;; relating to that State's
program were  developed.    The identified State  official  was contacted, a copy of the
questions was forwarded, and the official identified a convenient time when a conference
call could take place. Table 4 lists the States for which case-study descriptions are provided.

                                          TABLE 4

                                    CASE-STUDY STATES

                                          California
                                         Connecticut
                                           Florida
                                         Pennsylvania
                                       South Carolina
                                         Washington

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                                                                        CASE STUDIES
             STATE ADMINISTRATIVE PENALTY PROGRAMS
                                 CASE STUDIES
       Six case-study States were selected to represent five EPA regions (Regions 1, 3, 4,
9, and 10). An effort was made to select States that would cover all geographical regions,
but as Figure 1 indicates, few States in the Midwest have administrative penalty programs
and  no Midwest State was able to  participate in  a case study during the time  frame
provided. Pennsylvania was selected because it represented the only State in Region 3 that
submitted information (at the time  selection was  made) pertaining to  administrative
penalties. To provide a cross-section of State administrative penalty usage, Connecticut was
selected  to represent Region 1 after  the preliminary review indicated the State preferred
using an alternative enforcement action.  South Carolina had provided much information
and appeared to be a long-standing program; a second State from Region 4 (Florida) was
selected  to provide  insight into current State efforts to obtain administrative penalty
authority. California was selected to represent Region 9 be'cause Hawaii, the  only other
State with a program, has  not used its  authority to assess administrative penalties.
Washington was selected for Region 10 at the suggestion of the region's  Public Water
Supply Section Chief.   The  six case-study States provide a broad spectrum of agency
requirements, program procedures, and  the role penalties play in overall enforcement
efforts.

       The following case studies provide summaries of submitted laws, regulations, policies,
procedures, and letters from and telephone conversations with State officials. Although the
emphasis of the case-study analyses was on administrative penalties, it was impossible to
separate the assessment of penalties from the overall enforcement process.  Consequently,
individual State studies also include discussions on civil and criminal enforcement options.
The relationships and interactions of the various enforcement components often highlight
the differences  between the State programs.

       In addition, because each State's program is different, terminology also varies.  As
previously mentioned, some States provided discussions of administrative penalty programs
as they pertain  to assessments in consent or agreed orders while others believed  they did
not have a program unless the penalty could be assessed in a unilateral order. In addition,
some States specifically use the term "administrative penalties" when discussing penalties
assessed  by an administrative agency; other States refer to them as "civil penalties  assessed
administratively"; while still other  States simply use the term "civil penalties" and imply
administrative penalties through  their description of the process.  (Regardless of the term
used by the State, an administrative penalty is a  penalty assessed by an executive agency and
not by a court.) The description  of orders also  varies. Orders that a violator agrees to are
called "consent  orders," "agreed orders," "bilateral consent agreements," etc., while orders
that a violator does not agree to are called "administrative orders," "compliance orders," etc.

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CASE STUDIES
Every effort has been made in the State summaries to try and reduce the confusion resulting
from different terms being used to express the same concept or action.
                                         10

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                                                                          CALIFORNIA

CALIFORNIA


INTRODUCTION

       California (Region 9) has an estimated population of 29,615,500 (1990 estimate).
According to information provided by EPA's Region 9, there were a total of 11,408 public
water systems in 1990.  The distribution of these systems (as defined by the California Safe
Drinking Water Act) is shown hi Table CA-1.

                                    TABLE CA-1

                        CALIFORNIA'S PUBLIC WATER SYSTEMS

                   Large community systems*                         1,403
                   Small community systems**                        2,843
                   Noncommunity systems                            5,489
                   State small systems***                             1.673
                   TOTAL                                       11,408
                     * A  large  community  system  has  200  or more
                       connections.
                    ** A small community system has between 15 and 199
                       connections.
                   *** A State small system has between 5 and 14 connections.

       Agency Responsibilities:  The Department of Health Services, Office  of Drinking
Water, currently has  authority over public  water systems  with 200  or more service
connections and is responsible for the implementation of the State's drinking water program.
Article 7, section 4032, of California's Health and Safety Code gives the Department the
authority to issue citations and assess civil penalties.  Administrative penalties for violations
of a primary drinking water standard (excluding turbidity) cannot exceed $1,000 per day.
Administrative penalties for failing to  comply with  an order or citation pertaining to
violations of turbidity and secondary water standards cannot exceed $250 per  day.

       History of Agency Authority: The authority to assess administrative penalties was
granted in 1986. The  Chief of the Office of Drinking Water anticipated the need and with
the help of the Legal Counsel wrote the proposed  law. No difficulties were encountered in
moving the law through the legislature;  other State agencies  had administrative penalty
authority, and counties already had the right to assess penalties for drinking water violations.
Before this authority was passed, real enforcement actions, such as the  issuance of
administrative orders, were  rninimal; most enforcement activities were  in the form of
corrective action letters, which were not very effective.
                                         11

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CALIFORNIA

ENFORCEMENT ACTIVITIES

      The Office of Drinking Water has not utilized its right to seek civil relief in the
courts, always initiating administrative proceedings instead.  If a violation occurred that
resulted in someone becoming ill, the Office would seek criminal prosecution. Tampering
with a public water system is a felony and carries a fine of $30,000. California has not had
to initiate enforcement actions for this particular violation. However, if one should occur,
and the violator were someone outside the public water system, the Office would question
its authority to pursue any action.  A case of tampering may belong under the purview of
the District Attorney.

      One lawyer dedicated to Office activities discusses legal questions, prepares cases for
appeal, and is  involved in developing regulations and implementing the law. At one point,
because of the lack of funds, the Office had to compete with other offices for legal services.
Now, using EPA grant money, they can again afford to have  a lawyer assigned to their
needs.

      Procedures:  First, Office of Drinking Water field staff identify a violation. A letter
of correction is written that specifies the violation.  If there is no response to the lette;,  :u:n
a citation or compliance order is issued. (If a violator has a history of noncompliance,  the
citation or compliance order is often issued without a letter of correction being sent first.)
A citation is issued if it is a short-term violation and correction requires minimal expense,
e.g., monitoring  violations.  A  compliance  order is  issued  if a long-term,  high-cost
improvement project is necessary, e.g., the construction of a treatment plant. The field staff
writes the citation/compliance order, the District Engineer  reviews it, and the Regional
Chief signs it.  Both citations and compliance orders provide the history of the violation, cite
the law or regulation being violated,  and  contain a schedule for compliance.  After a
citation/compliance order is issued, a copy is sent to the Chief of Field Operations, to all
District Engineers and  Regional Offices, and to the  in-house  attorney.   The attorney
conducts spot checks while the Chief of Field Operations reads all citations and compliance
orders.

      Administrative penalties are not usually included in the  first citation.  If corrective
action is  not taken, a second citation is issued that does include an administrative penalty.
If this second citation is also ignored, a third citation, containing a higher penalty, is issued.
If the violator  does not comply after the third citation, the issue is referred to the Attorney
General  (depending on a number of factors).  If a violator stonewalls a compliance order,
the issue may  be immediately turned over to the Attorney General. The Office has used
Attorneys General in Sacramento, San Francisco, and Los Angeles and has found them to
be responsive  and cooperative.  However, use of the court system is expensive in terms of
money and resources. For example, one action was in court for approximately 2 years; 2,500
hours were expended, including upwards of 50 percent of the District Engineer's time.
                                         12

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                                                                         CALIFORNIA

      Presently, Local County Health Officers are responsible for systems that supply fewer
than 200 service connections.  Counties have the same citation and compliance order
authority as the Office  of Drinking  Water.  Some counties provide more attention to
enforcement  than others;  local  Boards of Supervisors set priorities  and  for some,
enforcement of drinking water requirements may not be high on the  list.  Currently, the
Office can take actions against small systems under certain conditions  (if there have been
violations for 90 days or if there is an imminent and substantial danger to system users).
The Office has no authority over what a county does and cannot compel a Local Health
Officer to pursue enforcement actions.  Consequently, the  Office cannot ensure that a
consistent State-wide program is being implemented. However, the Office does assist local
health department officials in developing and issuing citations and compliance orders until
they are comfortable with the procedures.

      In August 1990, legislation was passed (Assembly Bill 2158) that gives the Office of
Drinking Water authority over all public water systems in July 1992. Counties will have the
option of contracting with the State to manage their regulatory and enforcement programs.
The law provides for a fee system that is supposed to generate funds for local programs.

      For the 1988/89 fiscal year, a total of 3 person-years of field staff time was expended
on enforcement matters. This total includes activities pertaining to citations and compliance
orders, but it does not include the time spent  for correction or field activities; the time spent
for management; or the time spent by the legal counsel.  The percentage of time devoted
to the assessment of penalties cannot be determined.

      Penalty Assessments:  Since 1986, the Office has issued hundreds of citations and
compliance  orders  to large water  systems.  The Office has  not  historically issued
administrative penalties for large monetary amounts; only one or two penalties for $2,500
have  been  issued.  In 1989, the Office assessed  only  $900  in administrative penalties.
Usually, water systems respond to the first citation, which does not include a penalty.  The
Office believes it is justified in assessing penalties of low amounts because their primary goal
is to get correction and the threat of fines is used more often for leverage to achieve
compliance.  All administrative penalties collected are deposited in the State's General
Fund.

      Appeals: An internal appeal process is utilized for citations. An Administrative Law
Judge in the Department hears the appeal; the  District Engineer files a brief and appears
on behalf of the Office at the hearing. At the conclusion of the hearing, the Administrative
Law Judge sends a decision to the Director of Health Services as a recommendation.  The
Office of Drinking Water has won most, but not all, of its appeals.  The Office infrequently
disagrees with the Administrative Law Judge's recommendation.
                                        13

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CALIFORNIA

      There is no administrative appeal for compliance orders. The Office believes that
the compliance order has more  impact because the only appeal is through the courts.
Although  their attorney  has  discussed initiating administrative appeal procedures for
compliance orders, the Office believes that an internal process is not necessary because
compliance orders are issued with reasonable long-term schedules. In addition, if a violator
questions the reasonableness of a compliance order, an informal appeal can be made to the
Regional Engineer to have the order amended.

      If a water system does not accept the Department's final decision, it can go to court.
STATE'S ASSESSMENT OF PROGRAM EFFECTIVENESS

      The Office of Drinking Water believes that the use of citations and compliance
orders has been effective in bringing long-time recalcitrant water systems into compliance,
primarily because of its ability to levy fines.

      Although it often takes a tremendous toll on its resources, the Office is committed
to seeing every enforcement action through to a final decision. This demonstrates to the
violating water system, and to other water systems, that the Office is serious about bringing
the action to a close. As word of such enforcement actions spreads, it becomes easier to
obtain cooperation from other systems.

      Office officials believe that the current authority provides the Office with the powers
it needs, and current enforcement practices work.  One official noted that an improvement
could be to increase administrative penalty amounts.  Now, initial penalties are between
$100 and $200, which may be a deterrent for smaller systems but has little impact for larger
systems. (Penalties collected in a  civil action or criminal proceeding can be as high  as
$25,000 per day.)
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                                                                      CONNECTICUT

CONNECTICUT


INTRODUCTION

      Connecticut (Region 1) has a population of 3,107,576 (1980 census). According to
State officials, a total of 670 public water systems serve more than 25 persons or have more
than 15 service connections.

      Agency Responsibilities:  The Department  of Health Services has jurisdiction over
all matters concerning the purity and adequacy of any source of water. The Commissioner
of Health Services has the authority to impose a civil penalty of up to $5,000 for violations
of water supply plan, testing, and reporting requirements.

      History of Agency Authority:   Public Act 85-450 (House Bill 7601), giving the
Commissioner of Health Services the power to impose civil penalties, was passed in 1985.
During  the  public  hearing, only two  comments were  submitted; no  problems were
encountered in obtaining this authority.  The provisions in the bill augment the authority
found in section 25-32, which is the enabling legislation providing the Department of Health
Services with jurisdiction over all matters concerned with public water and requiring that
the Commissioner adopt drinking water regulations.


ENFORCEMENT ACTIVITIES

      Connecticut has no drinking water field offices, and the State Department of Health
Services has sole responsibility for the program.  The Enforcement Officer in the Water
Supply Section is the only full-time enforcement  employee for the drinking water program;
however, the total number of people involved in enforcement actions varies depending on
the type and complexity of the violation.  Local health departments provide a secondary
support role; they may take water samples, check for notification, and perform followups for
cross-connections.  All  enforcement actions are based on the severity of the violation.
Although there is nothing in the State statutes that results in relief for smaller systems,  the
Department tries to avoid formal actions, and small systems usually comply after they realize
the Department has the  ability and the authority to levy penalties.

      Procedures:  Public Act 85-450 specifies procedures that must be  followed when
assessing administrative penalties.  The Commissioner of Health Services was directed to
establish a schedule of  the amounts (or  ranges  of  amounts) of penalties  that may be
assessed.  In establishing this schedule, the Commissioner was to  consider the level of
assessment necessary to  ensure immediate and  continued compliance, the character  and
degree of injury  or impairment to or interference with drinking water and public health,
                                        15

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CONNECTICUT

whether or not the system is taking steps to correct the violation, and prior violations
committed by the system.

      The act also specified that if the Commissioner has reason to believe that a violation
had occurred, an administrative penalty could be imposed; and that the Commissioner must
send a notice of violation containing references to the law or regulation allegedly being
violated, a short statement regarding the matters of the case, a statement of the amount of
the penalty, the initial date of the imposition of the penalty, and a statement about the
system's right to a hearing.

      According to the act, the penalty is payable on the date specified in the notice and
for each day that the violation continues.  Within 20 days after receiving a notice, a system
can request a hearing to contest an adverse  determination.   If after the  hearing, the
Commissioner finds that the violation still exists (or if the water system does not request a
hearing), the penalty would continue from the original date of imposition. Upon receiving
notification of correction from the system, the Commissioner must determine if the violation
has been corrected.

      Hearings are conducted under provisions provided by law.  The Commissioner is
allowed to mitigate an administrative penalty under any terms  and conditions determined
to be proper or necessary. A final order of the Commissioner  is subject to appeal after a
hearing takes place.   No challenges are  allowed if the violator does not request an
administrative appeal.

      If any system fails  to  pay an administrative penalty,  the Attorney General,  upon
request of the Commissioner, is authorized to  bring an action in the Superior Court to
obtain enforcement of the penalty by the court.

      Regulations concerning administrative penalties were adopted by the Department of
Health Services, Water Supplies  Section, in August 1986.  The  regulatory requirement for
calculating the amount of the total penalty assessment is to add all the applicable penalties
specified and count each day the violation continues  as a separate violation. Table  CT-1
presents the schedules of penalties established by the Commissioner.

                                    TABLE CT-1

                              SCHEDULE OF PENALTIES

                   Violation                         Amount of penalty

                   MONITORING REQUIREMENTS
                   Testing for bacteria                           $45
                   Testing for all physical parameters                 60
                   Testing for a single physical parameter              30

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                                                                              CONNECTICUT

                                    TABLE CT-1 (cont.)

                     Violation                           Amount of penalty

                     Testing for all inorganic chemicals                 480
                     Testing for a single inorganic chemical parameter      70
                     Testing for all pesticides                          670
                     Testing for a single pesticide                      145
                     Testing for all organic chemicals                  1,000
                     Testing for a single organic chemical parameter     $170
                     Testing for all radiological parameters              900
                     Testing for a single radiological parameter           245
                     Testing for free chlorine residual                   30
                     Testing for corrosion control chemicals              70
                     Reading source meter                            50
                     Monitoring reservoir                             75
                     Monitoring ground water source                    75
                     Monitoring water use                             75

                     REPORTING REQUIREMENTS
                     Submitting watershed survey                    $5,000
                     Submitting test results                            10
                     Submitting reservoir status report                   50
                     Submitting ground water status report               50
                     Submitting water use report                       25
                     Submitting cross-connection report                5,000
                     Making public notice                           1,000

                     WATER SUPPLY PLAN REQUIREMENTS
                     Submitting water supply plan                   $5,000
                     Revising water supply plan                      1,000

       Orders are fairly simple to issue, there is a standardized format, a draft order is given
to an Attorney General who reviews it and discusses the history of the violation and the
Department's case, and then the Bureau Chief signs it.

       Attorneys General  are consulted for legal advice and interpretation whenever the
Bureau Chiefs  signature is required, such as for notices of violation, orders,  and consent
agreements.

       However, in accordance with current practices, if the Department wishes to assess
a penalty, it must go to a Superior Court judge and petition to have the penalty levied.
Many judges place drinking water as a low priority and often tell the Department to go back
to the system and discuss the violation.  The Department has approached judges twice and
in both cases were unsuccessful in their petition to assess the penalty.
                                            17

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CONNECTICUT

      The preferred enforcement action in cases of serious or continuing violations is to
utilize joint takeover provisions with the Department of Public Utility Control.  The two
departments enjoy a close working relationship concerning the regulation of water systems.
For example, both departments must jointly evaluate all phases of all applications for
constructing or expanding community water systems; joint  approval is required before a
certificate of public convenience and necessity is issued.

      Section 16-262o of Title 16,  Chapter 283  (Department of Public Utility Control)
states that the Department, in consultation with the Department of Health Services, can
order the acquisition of a water company after determining that the costs of improvements
to and the acquisition of the company are necessary and reasonable.   In  making the
determination, the Department of Public Utility Control must consider the geographical
proximity of the acquiring entity to the water system; whether or not the acquiring entity has
the financial, managerial, and technical resources to operate the water system  in a reliable
and efficient manner; and any other factors deemed relevant. The water company must take
immediate steps required for the transfer, and the acquiring entity must make any necessary
improvements to assure the availability and potability of water.

      Due process is followed closely during the entire takeover process; the water system
is given every opportunity to present its case. After a water system fails to comply with an
order pertaining to the availability or  potability  of water or the provision  of water at
adequate  volume and pressure, the Departments of Public  Utility Control  and Health
Services must  conduct  a hearing to  determine  what actions  may  be  taken  and the
expenditures that may be required. If the decision is to take over the system, another
system is located, preferably nearby, that can assume all responsibilities.  The  Department
of Public Utility Control assigns the violating system to this new system. The Superior Court
does not become involved unless a temporary receiver is appointed to supervise or manage
a system.  No takeover has been challenged, probably because of the close attention paid
to ensuring full due process.  In addition, consumers usually are in full support of takeover
actions.

      Penalty Assessments: No administrative penalties have been assessed in Connecticut.
If money were collected, it would be deposited into the General Fund.

      Appeals: A water system may petition the Commissioner for a hearing to contest a
notice of violation's determination that a violation occurred, a determination that a violation
has not been corrected, the initial date on which an administrative penalty was imposed, or
the penalty imposition itself.  This request must be made within 20 days after the notice has
been sent. Appeals rarely take place. Of 50 orders issued over the past 3 to 4 years, only
2 have been appealed. This can probably be attributed to the Department having developed
a sound case and establishing a thorough paper trail.  Formal appeals of final orders may
be made in the appropriate court.
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                                                                      CONNECTICUT

STATE'S ASSESSMENT OF PROGRAM EFFECTIVENESS

      The State has found joint takeover proceedings to be successful.  The only negative
incident in 4 to 5 years of use occurred when the citizens of Greenwich objected to their
bills increasing $5 to $6 a year after a water company was taken over in Lebanon; this suit
is still pending.  Most of the systems that have been taken over are in subdivisions that were
developed in the late 1950's and early 1960's and now are deteriorating.  The overall policy
of the "greatest good  for the greatest number" appears to  be working.   However, the
Department would like to be able to assess administrative penalties without the need to
petition the court.
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FLORIDA

FLORIDA
      When Florida was selected for inclusion as a case study, it was in the process of again
trying to obtain administrative penalty authority through the legislature. Florida (Region
4) has an estimated population of 12,671,000 (1989 estimate) and approximately 8,000 public
water systems. During the past 5 years, the Department of Environmental Regulation had
tried three times to move administrative penalty authority through the legislature. The issue
is highly controversial in the State and at times, an entire legislation package has been
delayed because of an administrative penalty provision. As  a result  of their efforts, the
Department made a number of observations:  one was that the term "penalty" received
unfavorable reactions; another was that regulated entities feared any  new legislation that
could set a precedent and ultimately affect them some time in the future.

      With the proposal of Senate Bill 1100, the Department decided to link the issue of
compliance with the ability to assess penalties.  Using the fact that the foundation of the
drinking water program is  based on the  timely and accurate submission  of reports, the
Department proposed legislation that would allow them to assess a "noncompliance fee" for
failure to comply with reporting and monitoring requirements. The Department believed
that the enforcement of these reporting and monitoring requirements was its most difficult
task, and that this mechanism could make the violation of these requirements uneconomical.
In addition, the Department had learned that by keeping legislation as specific as possible,
there was less  likelihood for opposition.

      The noncompliance  fee was portrayed as a preventive program with the focus on
compliance. The fee would be assessed for violations that did  not represent, in themselves,
an environmental problem, but if not corrected could result in more serious problems.

      The Department's Drinking Water Section contributed to the writing of the initial
draft of the bill; the bill received industry  support; and unlike  the bill's proposed user fees,
the noncompliance  fee provision received little  opposition.  The bill  passed in June and
became effective in July 1990.

      Before  passage,   the   Department  of  Environmental  Regulation  could  take
administrative actions to establish liability and to require corrective action. The Department
would send a  notice of violation that specified  the law or regulation suspected of being
violated and the facts relating to the case.  An order for corrective action could be included
with the notice.  Orders became effective after an administrative hearing or after 20 days
if no hearing was requested. The order could require, in addition to corrective action, that
the violator pay the State for expenses incurred during the investigation and hearing.  Civil
penalties, imposed by a  court of competent jurisdiction, could not exceed $5,000 per day.
In addition, the Department could reach an agreement with the violator; the system would
                                        20

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                                                                            FLORIDA

meet with the Department and using a penalty matrix, the Department would indicate what
the civil penalty would be if the issue was taken to court; if the system agrees to the terms
of the consent  order, the penalty is often reduced and ean be collected administratively
through the bilateral agreement.

       The Department sees its main mission as one of ensuring compliance and believes
there is no need for formal enforcement actions if compliance is obtained.  Even so, various
departmental enforcement actions have resulted in collection of approximately $3 million
in penalties.

       The provisions of the new law allow the Department to assess a noncompliance fee
for failure to comply with reporting requirements for microbiological, inorganic, or organic
contaminants; turbidity; radionuclides; or secondary standards.  For the  first and second
violations of the microbiological reporting requirements and for the first violation of other
reporting requirements, the Department must  allow the water system 30 days to comply
before assessing a fee. The Department must first issue a notice of violation that contains
the facts alleged to constitute the reporting violation; the specific provision of the law, rule,
or order alleged to have been violated; the corrective action needed to bring the facility into
compliance; and the potential penalties that may be imposed. Subsequent violations (of the
same nature) do not require 30-day notices during any 36-month period.

       When the Department wishes to issue a noncompliance fee, it must give the system
written notice that contains the amount assessed; the specific provision of law, rule, or order
alleged to be violated; the facts of the case; required corrective action(s);  and the rights
available under chapter 120 to challenge the  assessment.  The assessment is final and
effective unless an administrative proceeding is requested within 20 days.

       For microbiological reporting requirements, the  fee cannot exceed $250; the total
noncompliance  fees assessed cannot exceed $1,000 per assessment for all reporting violations
attributable to a specific facility during any one month.  For other reporting requirements,
the fee cannot exceed $50 per day of violation; the total assessed can not exceed $2,000.

       Assessing a noncompliance fee is in lieu of any civil action that may be instituted by
the Department in a court of competent jurisdiction. However, the Department still may
initiate a civil action for nonpayment of a fee. Fees collected will be deposited in the Water
Quality Assurance  Trust Fund or the appropriate Public Health Unit Trust Fund.

       No fee may be assessed until the Department of Environmental Regulation has
adopted  rules to implement the provisions of the law.  The rules will establish  specific
procedures and assessment amounts for noncompliance fees; fees will be set on a sliding
scale based on  the type of violation, the degree of noncompliance, and the potential for
harm.  In addition, the rules will allow for adjustment factors such as good faith efforts, the
                                        21

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FLORIDA

lack or degree of willfulness or negligence; the system's previous history; and the system's
ability to pay.

       The new law also authorizes county public health units to enforce its statutory and
resulting regulatory provisions. However, after January 2,1991, no county public health unit
may be designated  or approved unless it can carry out all functions of the drinking water
program. The Department of Environmental Regulation will be responsible for overseeing
these county activities. Fees collected by county public health units will be deposited in the
appropriate Public Health Unit Trust Fund.
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                                                                      PENNSYLVANIA

PENNSYLVANIA


INTRODUCTION

      Pennsylvania (Region 3) has a population of 11,863,895 (1980 census).

      Agency Responsibilities: The Department of Environmental Resources, Division of
Water Supplies, is responsible for the implementation of the State's drinking water program.
Section 13, paragraph (g) of the Pennsylvania Safe Drinking Water Act (Act 1984-43) gives
the Department the authority to assess a civil penalty. The maximum administrative penalty
that may be assessed is $5,000 per day for each violation. The Department works closely
with the Public Utility Commission. The Commission can penalize and can also place a
system under receivership. The two departments currently have an informal agreement that
they intend to formalize with a Memorandum of Understanding.

      History of Agency Authority: The authority to assess administrative penalties was
granted  in 1984 with the passage of the  Safe  Drinking Water Act.  No administrative
penalties were issued until 1987 because the Department needed time to develop an overall
enforcement strategy and policy and to delegate the authority for issuing field orders. The
authority to assess administrative penalties is fairly common for Pennsylvania enforcement
agencies; nonenforcement agencies (e.g., Education, Health, Welfare) neither have nor need
the authority.


ENFORCEMENT ACTIVITIES

      The entire field staff of the Division of Water Supplies is responsible for enforcement
and  includes  the  following: 6 environmental  protection managers (1 per region);  6
environmental compliance specialists (1 per region); 6 technical services section chiefs; 30
sanitary engineers with permitting responsibilities; 18 supervisors; and 90 field sanitarians.

      Four  counties have County Health Departments that enforce drinking  water
regulations. County Health Departments are essentially autonomous. They require support
only in the area of permit review; permits cannot be issued by the county. In addition, the
county departments  may take the same  enforcement actions  as  the  Department  of
Environmental Resources except for unilateral administrative penalty assessments. Laws
governing the Environmental Hearing Board do not recognize  the county department;
consequently, no mechanism for an appeal would be available for the public water system.
Therefore, county departments attempt to negotiate a letter agreement where payment is
in lieu of a civil penalty. Some money collected goes back to the county for training and
                                        23

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PENNSYLVANIA

equipment. (Although counties have been trying to initiate direct payments, they have been
unsuccessful thus far.)

      There is  no direct departmental relationship between the Department and  the
Attorney General  because the Attorney General is an elected position.  Departmental
lawyers are under the Chief Counsel, who reports directly to the Governor.  Any criminal
proceeding or appeal would go to the county court with the  District Attorney or County
Solicitor. Civil and criminal penalties can be assessed by the courts for amounts as high as
$50,000.

      Most enforcement activities start at the district (regional) level.  An environmental
compliance specialist reviews the first draft of an order. Field orders are distributed to the
litigation counsel and the Central Office.  Other orders are sent on for legal concurrence.
Only four people in the Central Office are authorized to initiate an action, and this happens
infrequently.  Usually Central Office actions concern out-of-State bottled water sellers that
must be permitted. If the seller does not utilize a Pennsylvania-certified laboratory (the
most common offense), an order is issued; failure to comply with the order results in the
permit being revoked.

      Procedures: The Department has several tools at its disposal to compel compliance.
Field orders are  essentially compliance orders issued by field enforcement officers. A field
order is issued for violations that present a risk to the public, such as failing to notify the
public or to  respond to  an emergency, failing to disinfect, and failing to  respond  to a
bacterial or turbidity maximum contaminant violation.  Field  orders are appealable.

      Compliance orders are also appealable and are final  orders issued for  priority
violations, which if left uncorrected could have a serious result; these include reporting and
managerial (permit) violations.  The order  generally sets  forth a long-term compliance
schedule.

      Consent  orders are used primarily  to avoid a  long appeal process.   In most
circumstances, before a compliance order is issued, the Department meets with the water
system in an effort to resolve the problem. Benefits to issuing a consent order are that both
parties are required to abide by the terms of the order and neither party can alter it without
mutual consent.  Contingency penalties are  usually set at a lower amount than those that
otherwise would be assessed.  The order also establishes  measurable goals that can  be
monitored.

      Summary citations are considered criminal proceedings. For some staff, they may be
easier to implement;  however, they are now used infrequently.  The staff member goes
before a District Magistrate to request the issuance of a citation; issuing a summary citation
is similar to  issuing a traffic violation.  However, this procedure  is very  time-intensive
because the law requires that the Department must hold  a  pre-enforcement conference

                                        24

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                                                                      PENNSYLVANIA

before filing for a summary citation. In addition, hearings can be lengthy and heated. Many
times the Magistrate must be educated regarding the law and the seriousness of drinking
water violations. If the system is found guilty or admits to guilt, the result will be creation
of a criminal record.  The Department would  prefer to avoid this  and to keep  the
enforcement process in-house.

      Another enforcement option available  to the Department is  initiation of court
proceedings. The Pennsylvania court system is set up so that County Courts and Courts of
Common Pleas can hear original jurisdiction, and appeals are heard first by the Superior
Court and then by the Supreme Court.  A Commonwealth Court was established to hear
both original jurisdiction and appeals.  (Any action an agency takes that can result in an
administrative hearing must go to the Commonwealth Court for appeal.)  The Department
can go to a  court of original jurisdiction, either before or after a departmental order  has
been issued, to have the  court issue an order requiring the system to  perform specified
actions. The Department can also request  that the system be  held  in contempt;  the
Department infrequently  requests this because if a system does not comply with a court
order, it is automatically in contempt. The Department goes to court primarily for sensitive
cases  because, for one reason, the  proceeding removes  the  case  from departmental
jurisdiction.

      Two categories of administrative penalties can be assessed: unilateral penalties  and
penalties through consent negotiation.  Unilateral penalties are appealable  through  the
Environmental Hearing Board.   The Board has a good track record  in supporting  the
Department of Environmental Resources; however, no drinking water unilateral penalty has
gone to appeal. Generally, the Department negotiates with the system beforehand to avoid
the appeal process.

      Negotiated  settlements,  such  as  letter  agreements,  use a  penalty  matrix  for
determining amounts based on the seriousness of the violation, the population supplied by
the system, and the culpability of the violator.  Unilateral administrative penalty amounts
are dependent on  the same criteria; however,  they are usually considerably higher than
negotiated penalties (the maximum is $5,000 per day for each violation).

      If the system chooses to initiate a hearing, the Department has a history of  not
backing down from its original assessment; consequently, many systems eventually agree to
a negotiated settlement  before the hearing starts.  Letter  agreements for negotiated
penalties are not difficult to produce. The letter clearly outlines the requirements, and if
the penalty amount is less than $500 (the pre-established maximum), there is no need for
an attorney's pre-approval, which would be an impediment to the process.

      There is no provision in an administrative penalty assessment that requires future
compliance;  the only incentive is that subsequent violations will result in higher penalties.
                                        25

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PENNSYLVANIA

      Penalty Assessments: Since receiving primacy in early 1985, enforcement activity in
the State has increased from virtually nothing in 1986 to 289 actions in 1989. These 289
actions represent 91 field orders,  41  compliance orders, 11 consent orders, 2 unilateral
administrative penalty assessments, 141 negotiated  administrative penalties, 2  summary
citations, and 1  county court case. From 1986 to February 1990, a total of $538,059 has
been collected;  in 1988, an  administrative penalty of $341,850 was paid by a community
water system and  in  1989, a  $50,000 administrative penalty  was paid by a  chemical
manufacturer. The disposition of penalties goes to the Safe Drinking Water Account, which
is allocated to the Deputy Secretary.  The Drinking Water Program receives a percentage
of this account,  which supplements funding received from the legislature and EPA grants.
A summary of FY89 enforcement actions is presented in Table PA-1; the money collected
in penalty assessments is shown in Table PA-2.

      Appeals: A public water system charged with a penalty has 30 days to file an appeal
with the Environmental Hearing Board. The last paragraph of each field and compliance
order includes the procedure for requesting an appeal, the citation of the law granting the
Board authority,  and the  telephone  number and address of the  Board.  It is the
responsibility of the individual to acquire the necessary forms and file for the appeal.

      Appeals  are heard  by  the Environmental  Hearing Board,  which is  a quasi-
independent  agency;  appeals  have  been requested for  approximately 10 percent of
departmental decisions.
STATE'S ASSESSMENT OF PROGRAM EFFECTIVENESS

      Assessing administrative penalties is considered to be  less expensive  and much
quicker than other enforcement options because it is handled in-house and in many cases
does not require the use of an attorney. The Department considers the program to be off
to a reasonable start when compared to sister programs (waste management, water quality)
at the same level of development. Difficulties have occurred because the program is dealing
with a large number of systems and there tends to be a lack of uniformity  in  penalty
assessments among the various districts.  In addition, some infrastructure handicaps are
evident: some systems do not have the population base to raise rates for improvements;
some problems are associated with private  ownership; and municipal systems rarely care
about making a profit and thus do not have a backup fund in case of emergencies.

      Other areas of improvement could include treating municipal systems the same as
other systems and assessing larger, stiffer administrative penalties to emphasize the value
of water in the State.
                                        26

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                                                          PENNSYLVANIA
                        TABLE PA-1


          SUMMARY OF ENFORCEMENT ACTIONS
                FREQUENCY & RZASOH FOR ENFORCEMENT ACTIONS
                               FY'89
Action
Field Order




Compliance Order













Consent Order and
Agreement (CO/A)

County Court
Unilateral Civil
Penalties

Negotiated Civil
Penalties






Summary Citations

CWS
8
21
15
1
4
20
2
0
1
1
0
1
1
1
0
1
1
1
1
1
1

1

2
2
1
1
1

1
1

1
3
6
1
16
1
5
2
3
1
0
1
NCWS
20
21
0
0
1
1
0
2
0
0
1
0
0
0
1
0
0
0
0
0
0
0
0
0

0
0
0
0
0
0

0
0

74
7
6
1
0
0
10
4
0
0
1
0
Reason
Failed to Respond-Bacti MCL
Disinfection Failed
No Water
Failed to Respond-Turb MCL
Using Water of Unknown Quality
Failed to Apply for Permit
Giardia Contamination
Persistent Bacti MCL Violator
Persistent Turb MCL Violator
Failed to Respond FPPE w/ Giardia
Failed to Continuously Disinfect
Persistent Nitrate MCL Violator
Iron & Manganese MCL Violator
Manganese MCL Violator
Barium MCL Violator
No Emergency Response Plan
Using Source w/o Permit
Permit & Bacti Monitoring Violations
Permit & Barium MCL Violations
Low Pressure
Failed to Treat as Required
Failed to Issue Public Notice
Failed to Monitor for VOC's
Cross Connection

Persistent Turb MCL Violator
Giardia Contamination
FPPE Case with Giardia contamination
Bacti & Turbidity Monitoring Violator
Released SOC's into source used by CWS
Failed to Apply for Permit

Giardia & Turbidity MCL Violator
No Water (Field Order Follow-up)

Bacti M/R Violator - Persistent
Bacti M/R Violator - Intermittent
Disinfection Failed (Field Order Follow-up;
Disinfection Failed (Only Action)
Failed to Apply for Permit
Using Unpermltted Source
Bacti MCL Violator (Field Order Follow-up)
Bacti MCL Violator (Only Action)
No Water (Field Order Follow-up)
Low Pressure
Bacti M/R Violator
Disinfection Failed (Field Order Follow-up)
TOTAL Number
139
150
                           27

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PENNSYLVANIA
                                                   TABLE PA-2
                                         PENALTY ASSESSMENTS
       iKfORCEMENT ACTIONS FOR FEBRUARY 1990 AT COMMUNITY HATER SYSTEM

REGION
Norrtstown
Bucks CHO
Chesttr CHO
wilkes-Barre
Harrlsburg
*H11aซBport
Pittsburgh
Allegheny CM)
feadvUle
Erie DC
TOTALS
ENFORCEMENT ACTIONS

REGION
NorHstown
Sucks CHO
Chester CHO
wilkes-Barre
Harrlsburg
will Import
Pittsburgh
Allegheny
Meadvllle
Erie CHD
TOTALS

ORDER1
1
0
0
0
0
0
0
0
0
0
1
FIELD
ORDER
0
0
0
0
2
1
0
0
0
0
3
FOR FEBRUARY 1990

ORDER
0
0
0
0
0
0
0
0
0
0
0
FIELD
ORDER
0
0
0
0
0
0
0
0
0
0
0

CO/A*
0
0
0
0
1
0
0
0
0
0
1
CIVIL
PENALTY*
0
0
0
0
0
0
0
0
0
0
0
LETTER
AGREE.4
0
0
0
1
2
2*
1
0
0
0
6
SUHWRT
ACTION*
0
0
0
0
0
0
0
0
0
0
0
COHMON.
COURT*
0
0
0
0
0
0
0
0
0
0
0
COUNTY
COURT'
0
0
0
0
0
0
0
0
0
0
0
TOTAL
ACTIONS
1
0
0
1
S
3
1
0
0
0
11
PENALTIES
COLLECTED
$ 0.00
S 0.00
$ 0.00
$ 1725.00
$ 4250.00
S 350.00
$ 288.00
$ 0.00
$ 0.00
( 0.00
$ 6613.00
AT NONCOMMITY MATER SYSTEMS

CO/A
0
0
0
0
0
0
0
0
0
0
0
CIVIL
PENALTY
0
0
0
0
0
0
0
0
0
0
-

LETTER
AGREE.
0
0
0
0
1
4
3
0
0
0
._.

SIM4ARY
ACTION
0
0
0
0
0
0
0
0
0
0
0
•ป ENFORCEMENT ACTIONS FOR a 1990

SYSTEM TYPE
CHS
NCVS
ALL PUS'S


YEAR/SYSTEM TYPE
a 1986-ALL PWS'J
a 1967-AU PWS'S
a 1988-ALL PWS'S
a 1989-ALL PWS'S
******•>•* *•ซ•••*•***

ORDER
S
0
S


ORDER
1
16
24
47
FIELD
ORDER
3
2
10

FIELD
ORDER
0
17
64
86*

CO/A
1
0
1
M

CO/A
0
5
7
7
CIVIL
PENALTY
0
0
0
'• SUMMARY
CIVIL
PENALTY
0
0
4
2
LETTER
AGREE.
8
9
17
OF PAST
LETTER
AGREE.
0
8
126
13S
SUWARY
ACTION
0
0
0
COMMON.
COURT
0
0
0
0
0
0
0
0
0
0
~o
COUNTY
COURT
0
0
0
0
0
0
0
0
0
0
o
TOTAL
ACTIONS
0
0
0
0
1
4
3
0
0
0
-
PENALTIES
COLLECTED
S 0.00
$ 0.00
' S 0.00
$ 0.00
s 100.00
J 1925.00
S 150.00
1 0.00
S 0.00
S 0.00
$ 2175.00
- THROUGH FEBRUARY •ป•
COMMON.
COURT
0
0
0
COUNTY
COURT
0
0
0
TOTAL
ACTIONS
22
11
33
PENALTIES
COLLECTED
S 8113.00
S 2475.00
J 10588.00
ENFORCEMENT ACTIVITY *••
SUMMARY
ACTION
0
1
13
2
COMMON.
COURT
0
1
1
0
COUNTY
COURT
0
0
1
1
TOTAL
ACTIONS
1
48
240
280
PENALTIES
COLLECTED
JO. 00
{6,550.00
$405.259.25
illS.662.00
        > ORDER-COMPLIANCE ORDER • * CO/A-CONSENT ORDER 4 AGREEMENT • * CIVIL PENALTY-UNILATERAL CIVIL PENALTY ASSESSMENT •
        4 LETTER AGREE. -NEGOTIATED CIVIL PENALTY ASSESSMENT • • SUMMARY ACTION-CRIMINAL CASE BEFORE DISTRICT JUSTICE •
        • COMMON. COURT-ORIGINAL ACTION (NOT APPEAL) TAKEN TO COMMONWEALTH COURT •
        ' COUNTY COURT-ORIGINAL ACTION TAKEH BYc^™K
        One letter agreement MS Issued to a Certified Laboratory for failing to notify OER of 3 Bactt savples above the MX.
                                                           28

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                                                                          PENNSYLVANIA
       Overall, the State considers negotiated administrative  penalty assessments (letter
agreements, consent orders) a success, particularly in returning monitoring violators to long-
term compliance.
                                          29

-------
SOUTH CAROLINA

SOUTH CAROLINA


INTRODUCTION

      South Carolina (EPA Region  4)  has a population of 3,121,833  (1980 census).
According to State agency statistics compiled on June 29,1990, the State has a total of 2,621
public water systems.  The distribution of these systems is shown in Table SC-1.

                                    TABLE SC-1

                     SOUTH CAROLINA'S PUBLIC WATER SYSTEMS

                      Community                          891
                      Non-transient/Non-community            379
                      Non-community                       560
                      State-defined*                        791
                      TOTAL                            2621

                      *  A State-defined  water  system  serves at
                         least two but  less than  15 service
                         connections and less than 25 individuals.

      Agency Responsibilities: The Department of Health and Environmental Control is
responsible for the State's drinking water program. Section 44-55-90 of South Carolina's
Safe Drinking Water Act gives the Department the authority to administer penalties. This
function is performed by the Department's Office of Environmental Quality Control, Bureau
of Drinking Water Protection.  The  Enforcement Section  of the Bureau  is not only
responsible for issuing administrative orders and assessing  penalties but also revises and
drafts new regulations. The entire Office assumes the responsibility of notifying system
owners of upcoming regulations, holding training sessions, and issuing a quarterly newsletter.
The Department established  a separate enforcement section in 1983, at the same time EPA
was encouraging better State enforcement.  Previously,  water engineers in the Bureau
handled enforcement actions in addition to their other responsibilities.  Since the delegation
of program  responsibilities in South Carolina is diffuse, agency organizational charts are
provided in Figures SC-1, SC-2, and SC-3 to illustrate the  relationship between the various
participants.

      The governing body of the Department is the Board of Health and Environmental
Quality (Board).   The Board is  composed of seven members; because  members are
appointed by the Governor for 2-year terms, the Board reflects the current mood  of the
State and experiences a high rate of turnover.  The Board is responsible for establishing
policy and approving  regulations  and, historically,  has been supportive of the Bureau's
endeavors.

                                        30

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                                 SOUTH CAROLINA





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                                                                           SOUTH CAROLINA
                                   Bureau of Drinking
                                    Water Protection
                                                     Administrative
                                                       Specialist
              Water  Supply
              Construction
                Division
               Water Supply
                Permitting
                  Section
               Recreational
                  Waters
                  Section
   Drinking Water
    Quality and
Enforcement Division
     Enforcement
       Section
    Water Quality
   Compliance & Data
  Management Section
                                        Facilities
                                        Compliance
                                         Section
Ground Water
 Protection
  Division
  Trust -Fund
    Section
  Underground
 Storage Tanks
    Section
                           Assessment and
                             Development
                               Section
                                      FIGURE SC-3

ORGANIZATIONAL CHART OF THE BUREAU OF DRINKING WATER PROTECTION
                                            33

-------
SOUTH CAROLINA
      History of Agency Authority: South Carolina's Drinking Water Regulations became
effective in June 1977. In early 1977, penalties could not be assessed administratively except
with the consent of the  violator or with the  permission  of the Board.   However,  in
November 1977, the Board authorized the issuance of departmental orders with penalties
of up to $500 per day without prior Board, approval.  For drinking water, consent orders
could be issued but unilateral administrative orders still required Board approval. On April
24, 1980, the Board authorized departmental assessments of penalties of up to $2,000 per
day not to exceed a maximum of $20,000, without Board approval. The Board approved the
Uniform Enforcement Policy for the Office of Environmental Quality Control on June 24,
1982. On August 25,1983, the Board voted to rescind penalty limitations resulting from the
Uniform Enforcement Policy and authorized that departmental orders, with or without the
consent of the violating party, could contain administrative penalties of any amount up to
the statutory maximum. As specified in South Carolina's Safe Drinking Water Act, the full
statutory limit for drinking water penalties is $5,000 per day with no set maximum.
ENFORCEMENT ACTIVITIES

      South Carolina law requires that the Department follow guidelines established by the
Administrative Procedures Act and exhaust all administrative remedies before taking a court
action.

      The Department has at its disposal an Assistant Attorney General assigned to work
with the staff and seven lawyers in its Office of General Counsel. These lawyers receive
their assignment by  district.  The  Bureau  rarely uses the assigned Assistant Attorney
General, preferring to rely on departmental  staff.

      The Office of Criminal Investigation  handles all criminal proceedings.  The Office
was established 3 to 4 years ago in hazardous waste but is now available to the Office of
Environmental Quality Control.  No civil actions are initiated while a criminal investigation
is in process.  The Enforcement Section decides if a case should be referred to the Office.
Violations are considered to be misdemeanors and violators, upon conviction, are subject
to fines of not more than $10,000 for each day of the violation and/or imprisonment for not
more than one year. No criminal penalties have been assessed for drinking water violations
in the State. Although the Enforcement Section has referred cases to the Office of Criminal
Investigation, the Office has turned down these requests and has not pursued criminal
prosecution.  The  Bureau  believes that proving a criminal case is much harder, more
complex, and more time-consuming.

      Procedures:   The drinking water program is run in-house;  the Central Office
schedules  sampling,  and the  districts collect  samples  and run the inspection program.
Individuals from local authorities are not involved in enforcement activities. It has not been
necessary to use local employees, and the current practice averts the application of political

                                        34

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                                                                      SOUTH CAROLINA

pressure from local officials.  The Bureau believes that not using local  authorities has
worked well and has helped maintain consistency.

       Administrative actions are initiated upon confirmation of a violation.  District or
Central Office personnel identify the problem and first try to resolve it.  The Compliance
Section of the Bureau of Drinking Water Protection is responsible for sending out the first
letter to notify the public water system of the potential violation; the District does not send
notices of violations but can send  warning letters that state what must be done to avoid
further enforcement action.  The District Office or the Compliance Section decides if the
violation should be brought to the attention of the Enforcement Section. (The District
Director must approve all District referrals to Enforcement; the Enforcement Section will
not proceed without this approval.  Preliminary decisions  made by District and Central
Office staff are seldom overturned by supervisory personnel because of the communications
that take place before an order is actually requested.)

       After the Enforcement Section receives  a referral, much internal discussion again
takes place before a decision is reached; this is considered to be an essential part of the
overall process. Enforcement actions and the related assessment of administrative penalties
are determined by the merits  of individual cases.   Once a decision is made to begin an
enforcement action, the goal is to negotiate a settlement and issue  a consent order. An
administrative penalty will not be assessed until a good case has been developed.

       The Enforcement Section will forward  a "Notice of Enforcement Conference" to the
responsible party that indicates when the party  should attend a conference to discuss why
further enforcement action should  not take place. Using the information obtained  before
the conference convenes, the Section reaches a predetermination of a fair administrative
penalty and tries  not to deviate much from it.  The Bureau believes that it does not look
good  if major adjustments are made. Previously, the  Bureau would agree that  instead of
paying a high penalty, a system could use that money to improve its system; this resulted in
penalties dropping significantly. The Board  did not like this practice, so  it was stopped.
However, if anything  is said  during a conference that changes the circumstances, the
administrative penalty may be lowered or  even  rescinded.

       The Bureau of Drinking Water has established its own guidelines that are intended
to ensure that assessed administrative penalties are both fair and appropriate for the type
of violation cited and  consistent for similar violations.  The assessment of administrative
penalties is considered both punitive and deterrent in nature, and penalties are considered
an integral part of the enforcement effort to enhance compliance. Historically, the following
types  of violations  have been considered serious  enough to justify the assessment of
administrative penalties: (1) unpermitted construction, expansion, or modification of public
water facilities; (2) unauthorized use of public water facilities; (3) continued unsatisfactory
operation and maintenance of public water facilities; (4) failure of community water system
owners to collect  and analyze water samples for appropriate analyses; (5) failure of water

                                         35

-------
SOUTH CAROLINA

system owners to employ a properly certified operator; (6) failure of - iter system owners
to satisfactorily address water quality problems; and (7) violations of  partmental orders.
Administrative  penalties  assessed by the Bureau are comparatively ^ower than penalties
assessed by other programs in the Office of Environmental Quality Control.  The Bureau
believes it is justified in assessing lower penalties than those assessed for hazardous waste
and wastewater violations because the Bureau's primary intention is to improve or upgrade
systems that  have been  hi  existence  for  a long time.  The State has,  however, been
increasing its administrative  penalty amounts annually.

       Since enforcement actions are based on the merits of each case, some consideration
is  given to small systems.  If there are  benefits to either reducing or eliminating an
administrative penalty so  that it can be used to improve a water system and these potential
benefits outweigh the need for consistency and the punitive aspect of the penalty, the pre-
determined penalty may be less than it would have been if the system were larger.  Under
no circumstances, however, will corrective  action requirements be waived.

       If an agreement cannot be  reached at the conference, an order may be issued without
the party's consent. However, the Bureau has found that unilaterally assessed pena1 ":es are
often more difficult to collect and require more effort than administrative penaltit   ,., 2ssed
by consent. (Consent  orders are  usually paid.) In addition, the Bureau  has not n?d much
success with using the  court system to collect payment; until recently, courts have not been
very supportive of this bill collection effort.

       Usually consent orders and administrative orders with penalties contain the same
penalty amount. Again, reiterating its position of maintaining consistency, the Bureau does
not believe it is a good  practice to increase an administrative penalty just  because the
alleged violator has not signed a consent order. It believes that if the penalty was fair when
the conference started, it  is still fair even though an agreement was not reached as a result
of the conference. However, the Department may add an administrative penalty to an order
that did not  originally contain a penalty if the system violates the order's agreed-upon
requirements.

       If an administrative penalty is not appealed, it is due and payable to the Department
within the time frame established by the administrative action.  If the penalty is not paid,
the Department's Bureau of Finance transmits an invoice for payment. In addition, the
Bureau issues a notice of violation of the order.  Payments of administrative penalties are
tracked in-house. If no action is  received after these two actions, the matter is referred to
the Department's Office  of General Counsel for action in the appropriate court of law.

       Although it is  not clear by the language of the law, all monies collected  by the
Bureau are placed in the General Fund of the State of South Carolina.  Although changes
to this practice have been discussed, it is believed that the likelihood of stiffer administrative
penalties would be greater if the Bureau received the compensation.

                                         36

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                                                                     SOUTH CAROLINA

      Penalty Assessments:  During the period January 1,1988, through February 28,1990,
the Bureau issued  113 orders (18 administrative and  95  consent)  for  drinking water
violations; approximately 90  percent of departmental orders issued are consent orders.  It
is difficult to determine the number of administrative penalties assessed compared to the
number of violations  committed because of District and Compliance Section  efforts  to
eradicate problems and eliminate the need for enforcement actions.

      During the same period (January 1,1988, through February 28,1990), 43 orders were
issued with administrative penalties, totaling approximately $45,000. Approximately $30,000
has been collected. The remaining $15,000 is either due, under appeal, or has been waived.
In a recent report for EPA, South Carolina identified that for a 9-month period, 68 orders
were issued and 48 contained administrative penalties.

      The Bureau of Drinking Water Protection considers  signed orders  (administrative
consent orders) to be valuable commodities.  As discussed previously, the Bureau makes an
attempt in all enforcement cases to negotiate a settlement of documented violations. The
Bureau  has  found  that it  is better  to negotiate  a consent order than to issue  an
administrative order, which is subject to appeal, because the costs associated with an appeal
are significant when charged against the operational budget of the Bureau.  In addition,
violations of consent orders  are easy to justify in court because the responsible party has
agreed to  the requirement(s). As indicated by the fact that 90 percent of its orders are
consent, the Bureau has achieved a  high  success rate  in  reaching  an agreement with
violators.

      Appeals: Once the Enforcement Section reaches a decision, the Bureau's policy is
to stand firm and let disputes go to appeal.  The Bureau has decided that it is too difficult
to evaluate special requests, so if an appeal is desired, the  agency allows the party to pursue
the adjudicatory process. Only one appeal process is used for all actions, and any decision
or order can be appealed.  Requests for an adjudicatory hearing must be served on the
Board of Health and Environmental Control within 15 days following a final administrative
decision by the Department.  The Bureau receives from  two to five requests for hearings
per year. (The low number of adjudicatory hearings also reflects the success the Bureau has
had in reaching consent orders.)

      A Hearing Examiner is appointed by the Commissioner of the Department with the
assistance of the Legal Office. Hearing Examiners are selected from a list of volunteers,
most  of whom are  lawyers; the Bureau has found that having a lawyer as a Hearing
Examiner is important. Since no time frame is provided for the Hearing Examiner to reach
a decision, the Bureau has, on occasion, become disenchanted with a particular individual
who takes too long to decide and has asked that the individual no longer be considered  as
a Hearing Examiner.
                                        37

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SOUTH CAROLINA

      Once a Hearing  Examiner is selected,  a written pleading to present  the  case
commences the hearing process.  Any party (usually the Department) submits, to the
Hearing Examiner, an answer to the pleading within 10 days. If it is shown that an answer
to the initial pleading cannot be made based on the written allegations, a motion to make
the pleading more definite may be filed.  .

      The Hearing Examiner must notify all involved parties within  10 days of the time and
location of the hearing.  The rules of evidence used by the Count  of Common Pleas are
observed, with the exception of hearsay evidence. The Hearing Officer may request general,
technical, or scientific facts; has the right to issue subpoenas; and may order testimony of
a witness be taken  by deposition, in accordance  with specified  procedures.  All testimony
is given under oath.  The Hearing Examiner may cross-examine any witness and make
requests concerning evidence.  All proceedings are recorded. A party has the right, before
the close of a hearing, to argue orally.  Briefs may  be filed before,  during, or after the
course of a hearing, if served within 10 days after the hearing has concluded. Prior to the
Hearing Examiner submitting a decision, any party may move that the hearing be reopened
to receive new  evidence  or the Hearing Examiner  may  make a  motion to reopen the
hearing.

      The Hearing Examiner may issue an initial statement to the Board, in the form of
a recommendation,  or  may  refer  record  of  the hearing  to  the Board without a
recommendation.   Appeals  may be resolved by informal disposition, agreed settlement,
consent orders (with or without penalties), or default.  Hearing Examiners infrequently
overturn Bureau decisions; this may be  attributed to the policy of not pursuing an
enforcement  action until  a good  case has  been  prepared,  and of following  proper
procedures. Any party may object to the Hearing Examiner's recommendation and apply
to the Board for review within 15 days of the determination.

      Based on the complete record of proceedings, testimony, and evidence of the hearing,
the Board makes a final decision that affirms, modifies, or sets  aside the recommendation
of the Hearing  Examiner.  Any person aggrieved by a final decision of the Board  may
appeal the decision to the proper court pursuant to section 24 of A.ct 671 and section 23 of
the Pollution  Control Act.
STATE'S ASSESSMENT OF PROGRAM EFFECTIVENESS

      The Department is proud of its success in addressing environmental problems in the
State and thinks that part of this success can be attributed to the threat of administrative
penalty assessments by the Department. Assessing administrative penalties is a small but
integral part of the entire enforcement program; not much time is spent on penalty
assessments and no one person is responsible for the implementation of this portion of the
program.  It is, however, a vital part of the Bureau's effort.  The Bureau believes it is

                                       38

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                                                                      SOUTH CAROLINA

working effectively, and has had no trouble taking strong enforcement actions.  Since the
Office of Environmental Quality Control has adopted this strong enforcement position on
environmental issues, the Bureau believes that further environmental problems can be
prevented.

       A major component of the enforcement effort is communication and negotiation.
The Bureau attributes part of their success to the degree of flexibility they are allowed; this
assures that enforcement actions, including administrative penalty assessments, are both fair
and dependent upon the circumstances in each individual case.

       It is believed that the enforcement program could be improved if it were isolated
further from political interference.  Since the  Bureau's activities are funded by the State
legislature and legislators have constituents, there is bound to  be pressure.  This is one
additional reason why the Bureau adopts the policy of using the appeal process rather than
extensive negotiations to settle disputes.

       Better legal response is also desired.  Even with seven lawyers, there is still much
competition for their time, and Bureau requests for legal action must be prioritized with
other agency demands.
                                         39

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WASHINGTON

WASHINGTON


INTRODUCTION

      Washington (Region 10) has a population of 4,132,156 (1980 census).  Currently the
State has 13,000 regulated water systems. Of these systems, 4,500  are considered to be
within Group A under EPA guidelines (serving more than 25 individuals or with more than
15 connections).

      Agency Responsibilities:  The  Department  of Health  (formerly part  of the
Department of Social and Health Services) is responsible for implementation of the State's
drinking water program. The Revised Code  of Washington section 70.119A030 gives the
Department the authority to impose penalties. Failure to comply  with an order of the
Department or of an authorized local Board of Health concerning construction, elimination
of cross-connections, or violation of a regulation may result in an administrative penalty not
to exceed $5,000 per day for each violation.

      History of Agency Authority:  A legislator, outside the usual legislative process,
sponsored the bill that proposed administrative penalties for the drinking water program.
A current incident was used to illustrate the  need for administrative penalty authority:  a
tank had fallen, the court system was the only  enforcement option available, and before any
corrective action could be taken a house burned down because of lack of water.  In addition,
the Attorney  General's  office conducted  a  study  on  Washington's  drinking  water
enforcement program  and  recommended,  as the number  one  priority,  establishing
administrative penalty authority for the Department.  Some direct-service departmental
programs already had State-wide authority, and counties also  had administrative penalty
authority; the bill subsequently passed in 1986.
ENFORCEMENT ACTIVITIES

      Administrative procedures are pursued before civil actions are taken.  Formal
enforcement is not a simple process because of the numerous filing requirements, and it is
used only as a last resort. The courts are used  infrequently,  generally only if a penalty
cannot be collected. When used, however, the court system has responded fairly fast, and
there have been no incidents of drinking water being considered a low priority. Most court
appearances are for show-cause hearings where the Department is pursuing a judgment or
injunction.  The Department does not pursue  criminal actions  because the Assistant
Attorney General does not have the authority.  However, county  prosecutors  have been
used.
                                        40

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                                                                         WASHINGTON

      Administrative orders are used only for repeat offenders, and penalties are assessed
in only the most difficult cases.  The Attorney General, assigned to the Department of
Health, reviews and signs all orders and gives advice on developing agreements.  The
Attorney General becomes formally involved when a violator fails to pay an assessed penalty
and in other civil actions.  Approximately. 10 percent of the Attorney General's time is
devoted to drinking water enforcement actions.

      Local health agencies are responsible in some counties for systems with fewer than
100 connections and  may assume responsibility for systems with between 100 and 200
connections.  All counties are authorized to enforce drinking  water regulations and to
impose administrative penalties.

      Counties differ in their approach to and involvement  in enforcement.  One county
sees its primary role as being one of reviewing and approving water system plans. Although
they monitor small public water systems and receive sampling reports, site visits may occur
as infrequently as once every 5 years.  This county is trying to become more active in
enforcement.

      One health district (covering 2 counties, 2 major cities, and  12 other cities) assumes
a very active role in enforcement.  This district takes advantage of local agencies' right to
issue  requirements that are as stringent or more stringent than State rules. The district
office issues notices of violation but  tries to achieve voluntary compliance.  In the past 3
years, it has not assessed any administrative penalties and has not found it necessary to go
to court.  However, the district has threatened injunctive action, which is used frequently in
other programs. Water systems appear to know the district has the authority and willingness
to use this action; consequently,  the threat is often sufficient to obtain compliance.  If
necessary, this  district would go  to  court rather than assess a penalty administratively.
Failure to comply with a court order would result in a criminal penalty and possible jail
sentence.  In addition,  the office has  the leverage of being able to rescind a system's
operating permit if its water supply plan is not approved.

      Procedures: Enforcement procedures are conducted according to a manual, created
in-house, that contains forms; outlines enforcement actions; provides examples of orders and
penalties; and provides  the authority language.   If a situation does  not  merit emergency
attention, the Department begins the enforcement by contacting  the system by letter or
telephone.  An automatic letter generation system goes into effect when a system misses a
reporting deadline.  Often an engineer can simply state that  an order is needed and soon
after basic forms are supplied, the order is issued.  Working with  the field engineers, the
Public Health Advisor writes all legal documents.  Orders are signed by the Secretary of
Health or designee.
                                         41

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WASHINGTON

      Orders are issued to each owner/operator of the water system; and the Department
has found that one of the most complicated tasks in enforcement is determining who these
individuals are. Utilizing the post office and licensing departments has proven to be helpful
for identifying and locating the responsible parties.

      If the system fails to initiate action, an administrative order will be issued.  A threat
of a penalty assessment is included in the order. There is no formal appeal for these orders,
but a State official to contact is identified if the system has any questions. If the system
continues  to  remain in noncompliance, an  administrative penalty will be issued.   The
Department has developed the following formula for calculating penalty amounts:

      PUBLIC HEALTH RISK x NUMBER OF PEOPLE AFFECTED x PREVIOUS RECORD OF COMPLIANCE

The public health risk is assigned values (ranging from 2 to 4) for specific violations (e.g.,
2 for planning document, report, and paperwork violations; 3 for organic contaminant
violations; and 4 for MCL> bacteria violations).  The three variables are multiplied together
and then multiplied by the amount of the penalty per violation.  Although the  statutory
maximum is $5,000, the calculation often is stopped when a total of $1,000 is reached.

      If a  system fails  to  comply  with  an order  and  penalty  payment, a second
administrative penalty is assessed. The Department's aim is to gain compliance, and it will
reduce a penalty if the system signs an agreed order. The Department also considers having
the system use money for repairs; however, this practice may change.

      An average case involves primarily  the Public Health Advisor, an engineer, an
attorney, and a secretary.  Flowcharts are presented for Washington's  formal enforcement
procedures in Figure WA-1 and for State compliance strategies in Figures WA-2 and WA-3.
An example of a printout from the Department's enforcement tracking program is provided
in Table WA-1.

      Penalty Assessments:  Administrative penalties have been assessed for approximately
6 years.  The  Department issues 20 to 25 compliance orders per year, but penalties are
included in only a small percentage of the orders.  The Department's primary goal is to
obtain compliance; it does not see itself as being in the business of collecting money. Of
20 orders issued in 1987, 6 administrative  penalties were issued and 15 systems  have
achieved full compliance. In  1988, 15 orders were  issued and 10 systems have  achieved
compliance; of the remaining 5,1 has started construction, 2 are in partial compliance with
a compliance schedule, 1 is going to court, and 1 is finishing work following a hearing with
the Department.  The status of 1989 actions is provided in Table WA-2.
                                         42

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                                           WASHINGTON
  FORMAL ENFORCEMENT PROCESS
              DEPARTMENTAL ORDER
 STIPULATION AND AGREED
       ORDER
                  MODIFIED ORDER
           NOTICE OF IMPOSITION OF PENALTIES
COMPLAINT TO RECOVER
FOR DEBT DUE AND FOR •
  INJUNCTIVE RELIEF
	NO
 PENALTY
 NOT PAID
REQUEST
  FOR
EARING ?
  NOTICE OF DISPOSITION
      FOR MITIGATION
       OF PENALTY
                               OFFICE OF
                             ADMINISTRATIVE
                               HEARINGS
               OFFICE OF
                APPEALS
                            SUPERIOR COURT
                 FIGURE WA-1
   FLOWCHART OF FORMAL ENFORCEMENT PROCESS
                     43

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WASHINGTON
                         End of Monitoring  Period
                                      (20 days)
                       Violation Noted and  Verified
                           Intentional No Action (LO)
                                      (30 days)
                  Compliance             Non-Compllance
                                       Letter Notification of
                                       Monitoring Requirements (LI)
                                                  I   (30 days)
             Compliance                       Non-Compliance
                                             Letter Notification of
                                             Monitoring Requirements (L2)
                                                         I   (30 days)
                      V                                   4
                  Compliance                        Non-Compllance
                                                           .(30 days)
                                                Contact System 4/or Verify
                                                    Receipt of L2
                                                           I   (30 days)
                           *                                  *•
                      Compliance                         Non-Compllance
                                                       Departmental Order
                                                        Departmental PN
                                                              I (30 days)
                           Compliance                        Non-Compliance
                                                                   (variable
                                                           Litigation 4/or  Ci'- .
                                                                Penalties


                                    FIGURE WA-2

                    FLOWCHART OF COMPLIANCE STRATEGY
ENFORCEMENT PROCESS FOR BACTERIOLOGICAL MONITORING VIOLATIONS
                                          44

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                                                                                       WASHINGTON
                Satisfactory
                Satisfactory PS
                Satisfactory ra
                                     tod of Moolcoring Period
                                                   CO       i,    (Tariable)

Sepertmeatal ?
-------
    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.
                                        60

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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.
                                        61

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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

                                           62

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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.
                                         63

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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
                                     64

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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



                                       66

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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
                                 67

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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.
                                        74

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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

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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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                                                                 COMPARATIVE ANALYSIS

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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COMPARATIVE ANALYSIS

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 LEGISLATION

                        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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MODEL LEGISLATION
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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MODEL LEGISLATION
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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                                                                                 MODEL LEGISLATION

        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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MODEL LEGISLATION
        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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                                                                               MODEL LEGISLATION

        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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MODEL LEGISLATION

       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


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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.
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                                                                         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.


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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.
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APPENDICES

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                                                                                  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

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                                                                                    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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