SCS CSHB 51(FIN): "An Act relating to the Department of Environmental Conservation; amending Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective date."
00SENATE CS FOR CS FOR HOUSE BILL NO. 51(FIN) 01 "An Act relating to the Department of Environmental Conservation; amending 02 Rules 79 and 82, Alaska Rules of Civil Procedure; and providing for an effective 03 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) sec. 3 of this Act advances the public interest by enacting administrative 05 penalty authority in order to meet the minimum federal requirements for maintaining state 06 primary enforcement authority for the federal drinking water program. 07 * Sec. 2. AS 46.03.020 is amended to read: 08 Sec. 46.03.020. Powers of the department. The department may 09 (1) enter into contracts and compliance agreements necessary or 10 convenient to carry out the functions, powers, and duties of the department; 11 (2) review and appraise programs and activities of state departments 12 and agencies in light of the policy set out in AS 46.03.010 for the purpose of 13 determining the extent to which the programs and activities are contributing to the 14 achievement of that policy and to make recommendations to the departments and 15 agencies, including but not limited to, environmental guidelines; 16 (3) consult with and cooperate with 17 (A) officials and representatives of any nonprofit corporation or 18 organization in the state; 19 (B) persons, organizations, and groups, public and private, 20 using, served by, interested in, or concerned with the environment of the state; 21 (4) appear and participate in proceedings before any state or federal 22 regulatory agency involving or affecting the purposes of the department; 23 (5) undertake studies, inquiries, surveys, or analyses it may consider 24 essential to the accomplishment of the purposes of the department; these activities may 25 be carried out by the personnel of the department or in cooperation with public or 26 private agencies, including educational, civic, and research organizations, colleges, 27 universities, institutes, and foundations; 28 (6) at reasonable times , enter and inspect with the consent of the owner 29 or occupier any property or premises to investigate either actual or suspected sources 30 of pollution or contamination or to ascertain compliance or noncompliance with a 31 regulation that may be adopted under AS 46.03.020 - 46.03.040; information relating
01 to secret processes or methods of manufacture discovered during investigation is 02 confidential; 03 (7) conduct investigations and hold hearings and compel the attendance 04 of witnesses and the production of accounts, books, and documents by the issuance of 05 a subpoena; 06 (8) advise and cooperate with municipal, regional, and other local 07 agencies and officials in the state, to carry out the purposes of this chapter; 08 (9) act as the official agency of the state in all matters affecting the 09 purposes of the department under federal laws now or hereafter enacted; 10 (10) adopt regulations necessary to effectuate the purposes of this 11 chapter, including, by way of example and not limitation, regulations providing for 12 (A) control, prevention, and abatement of air, water, or land or 13 subsurface land pollution; 14 (B) safeguard standards for petroleum and natural gas pipeline 15 construction, operation, modification, or alteration; 16 (C) protection of public water supplies by establishing minimum 17 drinking water standards, and standards for the construction, improvement, and 18 maintenance of public water supply systems; 19 (D) collection and disposal of sewage and industrial waste; 20 (E) collection and disposal of garbage, refuse, and other 21 discarded solid materials from industrial, commercial, agricultural, and 22 community activities or operations; 23 (F) [REPEALED 24 (G)] control of pesticides; 25 (G) [(H)] other purposes as may be required for the 26 implementation of the policy declared in AS 46.03.010; 27 (H) [(I)] handling, transportation, treatment, storage, and 28 disposal of hazardous wastes; 29 (11) after consultation with other state agencies and local government 30 officials, identify and propose for addition or deletion, by regulation, other licenses, 31 permits, or authorizations for which the provisions of AS 46.35 are applicable;
01 (12) [REPEALED 02 (13)] inspect the premises of sellers and suppliers of paint, vessels, and 03 marine and boating supplies, and take other actions necessary to enforce AS 46.03.715. 04 * Sec. 3. AS 46.03 is amended by adding a new section to read: 05 Sec. 46.03.761. Administrative penalties. (a) The department may assess 06 an administrative penalty against an entity that violates or causes or permits to be 07 violated a provision of AS 46.03.720(b) or a term or condition of a regulation, order, 08 permit, approval, or certificate of the department issued or adopted under 09 AS 46.03.720(b). 10 (b) Before assessing an administrative penalty under this section, the 11 department shall 12 (1) communicate about the alleged noncompliance with the entity and 13 the governing body of the community or municipality whose residents are served by 14 the public water system; communication under this paragraph must be in language 15 designed to be easily understood by the entity and governing body and must clearly 16 describe the nature of the alleged noncompliance; 17 (2) offer technical assistance to aid in correcting the alleged 18 noncompliance when the department has reason to believe that the entity may lack the 19 resources or expertise to get technical assistance from other sources; and 20 (3) unless the alleged noncompliance poses an immediate threat to the 21 public health, give the entity a reasonable amount of time to correct the alleged 22 noncompliance after the department has complied with (1) and (2) of this subsection. 23 (c) If, after complying with (b) of this section, the department determines that 24 noncompliance still exists and the violation is subject to a penalty under this section, 25 the department may make a preliminary determination to assess the penalty. The 26 department shall provide notice to the entity of its preliminary determination. The 27 entity may, within 10 days after receiving the notice, request the department to 28 reconsider its decision. If a timely request for reconsideration is made, the department 29 shall reconsider its preliminary determination and may affirm or modify the 30 determination. The department shall notify the entity of the decision. If a timely 31 request for reconsideration is not received or if, after reconsideration, the department
01 determines that a penalty should be assessed, the department may assess the penalty. 02 The department shall provide notice of the assessment and instructions for contesting 03 and appealing the assessment to the entity by personal service or by certified mail, 04 return receipt requested. The notice must inform the entity of the amount of the 05 proposed penalty and that the entity has 45 days within which to file a notice with the 06 department contesting the proposed penalty. If, within 45 days after receiving the 07 notification issued by the department, the entity fails to file a notice contesting the 08 proposed penalty, the proposed penalty is considered a final order. The department 09 may extend the time periods specified in this subsection for good cause. 10 (d) If an entity sends notice to the department contesting a proposed penalty 11 under (c) of this section, the department shall afford an opportunity for a hearing in 12 accordance with its adjudicatory hearing procedures. After an opportunity for a 13 hearing, the department shall issue an order, based upon findings of fact, affirming, 14 modifying, or rescinding the administrative penalty. The order must include notice that 15 the entity may appeal the order to the superior court and the address of the appropriate 16 superior court. The order is the final agency action on the penalty. 17 (e) An entity against whom an administrative penalty is assessed under this 18 section may obtain judicial review of the administrative penalty by filing a notice of 19 appeal in the superior court as provided by the Alaska Rules of Appellate Procedure. 20 An order of the department under (d) of this section becomes final and is not subject 21 to review by a court if a notice of appeal is not filed with the superior court within the 22 period provided for by the Alaska Rules of Appellate Procedure. 23 (f) Unless the notice of appeal is incomplete or otherwise not in conformance 24 with court rules, a notice of appeal under (e) of this section is considered to be filed 25 with the superior court on the day the entity delivers the appropriate documents and 26 fee to the appropriate superior court. Determining whether the notice of appeal is 27 complete and otherwise in conformance with court rules is the responsibility of the 28 superior court. 29 (g) An administrative penalty assessed under this section may not exceed (1) 30 $1,000 a day for each violation if the affected public water supply system serves a 31 population of more than 10,000 persons; (2) $250 a day for each violation if the
01 affected public water supply system serves a population of 10,000 or fewer persons but 02 more than 1,000 persons; and (3) $100 a day for each violation if the public water 03 supply system serves 1,000 or fewer persons. Each provision, term, or condition 04 violated is a separate and distinct violation. If a violation of a provision, term, or 05 condition continues from day to day, each day is a separate violation. 06 (h) In determining the amount of a penalty assessed under this section, the 07 department shall consider 08 (1) the effect of the violation on the public health or the environment; 09 (2) reasonable costs incurred by the state in the detection, investigation, 10 and attempted correction of the violation; 11 (3) the economic savings realized by the entity by not complying with 12 the requirement for which a violation is charged; 13 (4) any previous history of compliance or noncompliance by the entity 14 with this chapter, AS 46.04, AS 46.09, and AS 46.14; 15 (5) the need to deter future violations; 16 (6) the extent and seriousness of the violation, including the potential 17 for the violation to threaten public health or the environment; 18 (7) whether the entity achieved compliance with the requirement 19 violated within the shortest feasible time; and 20 (8) other factors considered relevant to the assessment that are adopted 21 by the department in regulation. 22 (i) If an entity fails to pay an administrative penalty assessed under this section 23 after the penalty becomes final, the department may bring an action to collect the 24 penalty. The amount of the penalty is not subject to review by the court in such an 25 action. 26 (j) In a collection action under (i) of this section, the court shall award the 27 prevailing party full reasonable attorney fees and costs incurred in the collection 28 action. 29 (k) Action under this section by the department does not limit or otherwise 30 affect the authority of the department to otherwise enforce this chapter, AS 46.04, 31 AS 46.08, AS 46.09, AS 46.14, or regulations adopted under those statutes, or to
01 recover damages, restoration expenses, investigation costs, court costs, attorney fees, 02 or other necessary expenses. The court shall set off against a judicial civil assessment 03 subsequently awarded under AS 46.03.760 an amount ordered to be paid under this 04 section by the same entity for the same violation. 05 (l) In this section, "entity" means the owner or operator of a public water 06 system. 07 * Sec. 4. AS 46.03.900 is amended by adding a new paragraph to read: 08 (36) "compliance agreement" means a mutual understanding and 09 voluntary, enforceable agreement on a course of action for a specific set of 10 circumstances entered into by the department and a person to control, prevent, or abate 11 air, water, land, or subsurface land pollution. 12 * Sec. 5. COURT RULE CHANGES; ATTORNEY FEES AND COSTS. (a) 13 AS 46.03.761(j), added by sec. 3 of this Act, has the effect of amending Rules 79 and 82, 14 Alaska Rules of Civil Procedure, by allowing the recovery of full reasonable attorney fees and 15 costs in certain actions. 16 (b) AS 46.03.761(j), added by sec. 3 of this Act, takes effect only if this section 17 receives the two-thirds majority vote of each house of the legislature required by art. IV, sec. 18 15, Constitution of the State of Alaska. 19 * Sec. 6. REGULATIONS FOR ADMINISTRATIVE PENALTIES. The Department of 20 Environmental Conservation may immediately proceed to adopt regulations to implement 21 changes made by sec. 3 of this Act. The regulations take effect under AS 44.62 22 (Administrative Procedure Act), but not before the effective date of sec. 3 of this Act. 23 * Sec. 7. Except as provided in sec. 8 of this Act, this Act takes effect on the effective date 24 of regulations adopted by the United States Environmental Protection Agency implementing 25 the state administrative penalty requirement for state primary enforcement authority under 42 26 U.S.C. 300g-2 of the federal Safe Drinking Water Act or, if the Environmental Protection 27 Agency determines that regulations are not necessary, on the date the Environmental 28 Protection Agency requires under the authority of that statute that the state must have 29 administrative penalty authority to maintain its state primacy over the federal drinking water 30 program, whichever occurs first. The commissioner of environmental conservation shall notify 31 the lieutenant governor and the revisor of statutes of the effective date of the state
01 administrative penalty authority requirement. 02 * Sec. 8. Sections 2, 4, and 6 of this Act take effect immediately under AS 01.10.070(c).