No. 37797 (Amendment): Rule R309-405. Compliance and Enforcement: Administrative Penalty

(Amendment)

DAR File No.: 37797
Filed: 06/27/2013 03:59:42 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes are in response to S.B. 21 and S.B. 11 passed in the 2012 General Legislative Session. In addition, the division's legal counsel recommends some additional changes. Specifically these changes include changing the word "should" to "shall".

Summary of the rule or change:

Because of the realigning of responsibilities mandated by S.B. 21 (2012) the following changes, where appropriate, must be made to the Board's rules. When the words "Board" and "Executive Secretary" are used and refer to the performance of an executive task, they must be changed to "Division Director". Changes have also been made to the rule to accommodate S.B. 11 (2012) which covers the appeals process. In addition, the division's legal counsel recommends some additional changes. Specifically these changes include changing the word "should" to "shall".

State statutory or constitutional authorization for this rule:

• Section 19-4-104

Anticipated cost or savings to:

the state budget:

No impact--The rule change distinguishes an ability to pay a penalty, an unwillingness to and allows for payment plan as an option.

local governments:

No impact--The rule change distinguishes an ability to pay a penalty, an unwillingness to and allows for payment plan as an option.

small businesses:

No impact--The rule change distinguishes an ability to pay a penalty, an unwillingness to and allows for payment plan as an option.

persons other than small businesses, businesses, or local governmental entities:

No impact--The rule change distinguishes an ability to pay a penalty, an unwillingness to and allows for payment plan as an option.

Compliance costs for affected persons:

No impact--The rule change distinguishes an ability to pay a penalty, an unwillingness to and allows for payment plan as an option.

Comments by the department head on the fiscal impact the rule may have on businesses:

The executive director agrees with the fiscal impacts detailed above.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Drinking WaterRoom Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Patti Fauver at the above address, by phone at 801-536-4196, by FAX at 801-536-4211, or by Internet E-mail at [e-mail]
• Ken Bousfield at the above address, by phone at 801-536-4207, by FAX at 801-536-4211, or by Internet E-mail at [e-mail]
• Jennifer Yee at the above address, by phone at 801-536-4216, by FAX at 801-536-4211, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/14/2013

This rule may become effective on:

11/12/2013

Authorized by:

Ken Bousfield, Director

RULE TEXT

R309. Environmental Quality, Drinking Water.

R309-405. Compliance and Enforcement: Administrative Penalty.

R309-405-1. Authority.

Utah Code Annotated, Sections 19-4-104 and 19-4-109

 

R309-405-2. Purpose, Scope, and Applicability.

(1) This rule sets the criteria and procedures the [Board]Director will use in assessing penalties to public drinking water systems for violation of its rules.

(2) This guidance and ensuing criteria is intended to be flexible and liberally construed to achieve a fair, just, and equitable result with the intent of returning a public water system to compliance.

(3) This rule is applicable to all public drinking water systems.

 

R309-405-3. Limits on Authority and Liability.

Nothing in this rule should be construed to limit the [Board's]Director's ability to take enforcement actions under Utah Code Annotated, Section 19-4-109.

 

R309-405-4. Assessment of a Penalty and Calculation of Settlement Amounts.

(1) Where the [Executive Secretary]Director determines that a penalty may be appropriate, the [Executive Secretary]Director shall propose a penalty amount by sending a notice of agency action[, under Title 63, chapter 46b of the Administrative Procedures Act,] to the public water system. The notice of agency action shall provide that the public water system may submit comments and/or information on the proposed penalty to the [Executive Secretary]Director within 30 days. The criteria the [Executive Secretary]Director will use in establishing a proposed penalty amount shall be as follows:

(a) Major Violations: $600 to $1000 per day for each day of violation. This category includes violations with high potential for impact on drinking water users, major deviations from the requirements of the rules or Safe Drinking Water Act, intentional fraud, falsification of data, violations which result in a public water system being considered by the Environmental Protection Agency to be: "Significant Non-Compliers" (SNC), or violations that may have a substantial adverse effect on the regulatory program. Specific violations that are subject to a major violation category can include the following:

(i) Violations subject to $1000 per day penalty:

(A) Any violation defined by R309-220-5 which would trigger a Tier 1 public notification.

(B) Not having any elements of a source protection plan as required in R309-600 for ground water sources and R309-605 for surface water sources.

(C) Failure to respond to an Administrative Order issued by the [Drinking Water Board]Director.

(D) Introduction by the water system of a source water that has not been evaluated and approved for use as a public drinking water source under R309-515.

(E) Construction or use of an interconnection to another public water system which has not been reviewed and approved in accordance with R309-550-9.

(F) Having over 20 IPS points (Improvement Priority System points based on R309-400, the Water System Rating Criteria) specifically for operating pressures below that required by R309-105-9.

(G) Having 50 IPS points specifically for an inadequate well seal as required in R309-515.

(H) Having over 50 IPS points (not including the deficiencies in (F) and (G) above) specifically assessed in the physical facility section of an IPS report.

(I) Use of a surface water source without proper filtration treatment in accordance with R309-525 or 530.

(J) Exceeding the rated water treatment plant capacity as determined by review under R309-525 or 530.

(K) Insufficient disinfection contact time as evaluated under R309-215-7.

(ii) Violations subject to $800 per day penalty:

(A) Not having any of the required components of a cross connection control program in place as required by R309-105-12.

(B) Any violation of the turbidity requirements outlined in R309-215-9(4)(b)(iii -iv) for individual filter turbidities using consecutive readings taken 15 minutes apart.

(b) Moderate Violations: $400 to $600 per day for each day of violation. This category includes violations with a moderate potential for impact on drinking water users, moderate deviations from the requirements of the rules or Safe Drinking Water Act with some requirements implemented as intended, or violations that may have a significant notable adverse effect on the regulatory program. Specific violations that are subject to a moderate violation category can include the following:

(i) Violations subject to $600 penalty:

(A) Any violation defined by R309-220-6 which would trigger a Tier 2 public notification.

(B) Having a disapproved status on a source protection plan (R309-600 and 605) for a period longer than 90 days.

(C) Installation or use of disinfection equipment that has not been evaluated and approved for use under R309-520.

(D) Having measured turbidity spikes of greater than 0.5 or 1.0 NTU in two consecutive fifteen minute readings as defined in R309-215-9(4)(b)(i) or (ii) respectively.

(E) Insufficient source capacity, storage capacity, or delivery capacity as established by review of the system design under R309-500 through 550.

(F) Not complying with plan approval requirements as set forth in R309-500. The term infrastructure can include the disinfection process, surface water treatment process, and physical facilities such as water treatment plants, storage reservoirs, sources and distribution piping.

(c) Minor Violations: Up to $400 per day for each day of violation. This category includes violations with a minor potential for impact on drinking water users, slight deviations from the rules or Act with most of the requirements implemented, or violations that may have a minor adverse effect on the regulatory program. Specific violations that are subject to a minor violation category can include the following:

(i) Violations subject to $400 per day penalty:

(A) Any violation defined by R309-220-7 which would trigger a Tier 3 public notification or a violation of the monitoring requirements of R309-515-4(5), except for turbidity monitoring for surface water treatment facilities and violations termed as minor monitoring as outlined in R309-400-3 (minor bacteriological routine monitoring violation, minor bacteriological repeat monitoring violation and minor chemical monitoring violation).

(B) Failure to upgrade a Preliminary Evaluation Report for a source protection plan as required in R309-600 and 605.

(C) Failure to update a source protection plan as required in R309-600 and 605.

(D) Construction or use of a storage reservoir that has not been evaluated for use under R309-545.

(ii) Violations subject to $200 per day penalty:

(A) Lacking individual components of a cross connection control program as required by R309-105-12.

(B) Not having a certified operator on staff as required in R309-300-5(10) after 1 year or 4 operator certification exam cycles.

(C) Any minor monitoring violation as defined by R309-400-3 (minor bacteriological routine monitoring violation, minor bacteriological repeat monitoring violation and minor chemical monitoring violation).

(D) Any violation of the turbidity requirements outlined in R309-215-9(4)(b)(i-ii) for individual filter turbidities using consecutive readings taken 15 minutes apart.

(2) The [Executive Secretary]Director will assess the penalty, if any, after reviewing information submitted by the public water system. The public water system may appeal the assessment of the penalty [to the Board by requesting a formal hearing under R305-6 and the Utah Administrative Procedures Act within 30 days of the date of assessment of the penalty]as provided in R305-7-302.

 

R309-405-5. Factors for Seeking or Negotiating Amount of Penalties.

The [Executive Secretary]Director, in assessing the penalty, may take into account the following factors:

(1) Economic benefit. The costs a person or organization may save by delaying or avoiding compliance with applicable laws or rules.

(2) Gravity of the violation. This component of the calculation shall be based on:

(a) The extent of deviation from the rules;

(b) The potential for harm to drinking water users, regardless of the extent of harm that actually occurred;

(c) The degree of cooperation or noncooperation and good faith efforts to comply. Good faith takes into account the openness in dealing with the violations, promptness in correction of problems, and the degree of cooperation with the State;

(d) History of compliance or noncompliance. The penalty amount may be adjusted upward in consideration of previous violations and the degree of recidivism. Likewise, the penalty amount may be adjusted downward when it is shown that the violator has a good compliance record; and,

(e) Degree of willfulness or negligence. Factors to be considered include how much control the violator had over the violation and the foreseeability of the events constituting the violation, whether the violator made or could have made reasonable efforts to prevent the violation, whether the violator knew, or should have known, of the legal requirements which were violated, and degree of recalcitrance.

(3) The number of days of non compliance

(4) Public sensitivity. The actual impact of the violation(s) that occurred.

(5) Response and investigation costs incurred by the State and others.

(6) The possible deterrent effect of a penalty to prevent future violations.

 

R309-405-6. Satisfaction of Penalty Under Stipulated Penalty Agreement.

The [Executive Secretary]Director may accept the following methods of payment or satisfaction of a penalty to promote compliance and to achieve the purposes set forth in Utah Code Annotated Section 19-4-109:

(1) Payment of the penalty may be extended based on a person or organization's inability to pay. This [should]shall be distinguished from an unwillingness to pay. In cases of financial hardship, the [Executive Secretary]Director may accept payment of the penalty under an installment plan or delayed payment schedule with interest.

(2) In circumstances where there is a demonstrated financial hardship, the [Executive Secretary]Director may allow a portion of the penalty to be deferred and eventually waived if no further violations are committed within a period designated by the [Executive Secretary]Director.

(3) In some cases, the [Executive Secretary]Director may allow the violator to satisfy the penalty by completing a Supplemental Environmental Project (SEP) approved by the [Executive Secretary]Director. The following criteria shall be used in determining the eligibility of such projects:

(a) The project must be in addition to all regulatory compliance obligations;

(b) The project must relate to some or all of the issues of the violation;

(c) The project must primarily benefit the drinking water users;

(d) The project must be defined, measurable and have a beginning and ending date;

(e) The project must be agreed to in writing between the public water system and the [Executive Secretary]Director;

(f) The project must not generate the public perception favoring violations of the laws and rules.

 

R309-405-7. Penalty Policy for Civil Proceedings.

Pursuant to Utah Code Annotated Section 19-4-109(2)(b), any person who willfully violates any rule or order made or issued pursuant to the Utah Safe Drinking Water Act, Utah Code Annotated Section 19-4-101 et seq, is subject to a civil penalty of not more than $5000 per day for each day of violation. The [Board and Executive Secretary]Director shall apply the provisions of R309-405-4, 5, and 6 in pursuing or resolving willful violations except that the penalty range per day for each day of violation for major violations shall be $3000 to $5000, for moderate violations shall be $2000 to $3000, and for minor violations shall be up to $2000.

 

KEY: drinking water, environmental protection[, administrative procedures], penalties

Date of Enactment or Last Substantive Amendment: [March 8, 2006]2013

Notice of Continuation: March 22, 2010

Authorizing, and Implemented or Interpreted Law: 19-4-104[; 63G-4-202]

 

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