00 SENATE BILL NO. 50 01 "An Act relating to administrative penalties for violation of public water supply 02 system requirements; amending Alaska Rule of Civil Procedure 82 regarding 03 attorney's fees; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. FINDINGS. The legislature finds that 06 (1) the federal government has required, in the federal Safe Drinking Water 07 Act amendments of 1996 (P.L. 104-182), that states have minimum administrative penalty 08 authority in order to maintain primary enforcement authority for the federal drinking water 09 program (42 U.S.C. 300f - 300j-26); 10 (2) the state cannot receive federal money for construction of public drinking 11 water systems unless it maintains primacy under the federal program (sec. 130, P.L. 104-182); 12 (3) maintaining state primary enforcement authority for the federal program 13 is in the best interests of the state so as to provide maximum flexibility and local control of 14 this program and to ensure continued federal money for Alaska public water supply system 01 construction projects; 02 (4) ensuring public health through protection of public water supplies is of 03 fundamental importance to the people of the state; 04 (5) this Act is in the public interest by enacting administrative penalty authority 05 in order to meet the minimum federal requirements for maintaining state primary enforcement 06 authority for the federal drinking water program. 07 * Sec. 2. AS 46.03 is amended by adding a new section to read: 08 Sec. 46.03.761. Administrative penalties. (a) The department may assess 09 an administrative penalty against a person who violates or causes or permits to be 10 violated a provision of AS 46.03.720(b) or a term or condition of a regulation, order, 11 permit, approval, or certificate of the department issued or adopted under 12 AS 46.03.720(b). 13 (b) An administrative penalty assessed under this section may not exceed 14 $1,000 per day per violation if the affected public water supply system serves a 15 population of more than 10,000 persons. An administrative penalty assessed under this 16 section may not exceed $750 per day per violation if the affected public water supply 17 system serves a population of 10,000 or fewer persons. Each provision, term, or 18 condition violated is a separate and distinct violation. If a violation of a provision, 19 term, or condition continues from day to day, each day is a separate violation. 20 (c) In determining the amount of a penalty assessed under this section, the 21 department shall consider 22 (1) the effect of the violation on the public health or the environment; 23 (2) reasonable costs incurred by the state in the detection, investigation, 24 and attempted correction of the violation; 25 (3) the economic savings realized by the person by not complying with 26 the requirement for which a violation is charged; 27 (4) any previous history of compliance or noncompliance with this 28 chapter, AS 46.04, AS 46.09, and AS 46.14; 29 (5) the need to deter future violations; 30 (6) the extent and seriousness of the violation, including the potential 31 for the violation to threaten public health or the environment; 01 (7) whether the person achieved compliance with the requirement 02 violated within the shortest feasible time; and 03 (8) other factors considered relevant to the assessment that are adopted 04 by the department in regulation. 05 (d) If a penalty is assessed under this section, the department shall provide the 06 assessment notice to the person assessed by personal service or by certified mail, 07 return receipt requested. The notice must inform the person of the amount of the 08 proposed penalty and that the person has 30 days within which to file a notice with the 09 department contesting the proposed penalty. If, within 30 days after the receipt of the 10 notification issued by the department, the person fails to file a notice contesting the 11 proposed penalty, the proposed penalty is considered a final order. The department 12 may extend the time periods specified in this subsection for good cause. 13 (e) If a person files notice contesting a proposed penalty under (d) of this 14 section, the department shall afford an opportunity for a hearing in accordance with 15 its adjudicatory hearing procedures. After an opportunity for a hearing, the department 16 shall issue an order, based upon findings of fact, affirming, modifying, or rescinding 17 the administrative penalty. The order is the final agency action on the penalty. 18 (f) A person against whom an administrative penalty is assessed may obtain 19 judicial review of the administrative penalty by filing a notice of appeal in the superior 20 court as provided by the Alaska Rules of Appellate Procedure. An order of the 21 department under (e) of this section becomes final and is not subject to review by any 22 court if a notice of appeal is not filed with the superior court within the period 23 provided for by the Alaska Rules of Appellate Procedure. 24 (g) Action under this section by the department does not limit or otherwise 25 affect the authority of the department to otherwise enforce this chapter, AS 46.04, 26 AS 46.08, AS 46.09, AS 46.14, or regulations adopted under those statutes, or to 27 recover damages, restoration expenses, investigation costs, court costs, attorneys fees, 28 or other necessary expenses. The court shall set off against a judicial civil assessment 29 subsequently awarded under AS 46.03.760 any amount ordered to be paid under this 30 section by the same person for the same violation. 31 (h) If a person fails to pay an administrative penalty assessed under this 01 section after the penalty becomes final, the department may bring an action to collect 02 the penalty. The amount of the penalty is not subject to review by the court in such 03 an action. 04 (i) If the department prevails in a collection action brought under (h) of this 05 section, the court shall order the person to pay full reasonable attorney's fees and costs 06 incurred by the department in the collection action. 07 * Sec. 3. TRANSITION: REGULATIONS. The Department of Environmental 08 Conservation may immediately proceed to adopt regulations to implement changes made by 09 this Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 10 before the effective date of secs. 1 and 2 of this Act. 11 * Sec. 4. The provisions of AS 46.03.761(i), added by sec. 2 of this Act, have the effect 12 of amending Alaska Rule of Civil Procedure 82 by allowing the recovery of full reasonable 13 attorney's fees and costs in certain actions. 14 * Sec. 5. AS 46.03.761(i), added by sec. 2 of this Act, takes effect only if sec. 4 of this 15 Act receives the two-thirds majority vote of each house of the legislature required by art. IV, 16 sec. 15, Constitution of the State of Alaska. 17 * Sec. 6. Section 3 of this Act takes effect immediately under AS 01.10.070(c). 18 * Sec. 7. Except as provided in sec. 6 of this Act, this Act takes effect on the effective date 19 of regulations adopted by the United States Environmental Protection Agency (EPA) 20 implementing the state administrative penalty requirement for state primary enforcement 21 authority under 42 U.S.C. 300g-2 of the federal Safe Drinking Water Act or, if EPA 22 determines that regulations are not necessary, on the date EPA requires under the authority 23 of that statute that the state must have administrative penalty authority to maintain its state 24 primacy over the federal drinking water program, whichever event occurs first in time. The 25 commissioner of environmental conservation shall notify the lieutenant governor and the 26 revisor of statutes of the effective date of the state administrative penalty authority 27 requirement.