La. Admin. Code tit. 51 § XII-505

Current through Register Vol. 50, No. 11, November 20, 2024

Section XII-505 - Calculation of Daily Penalties [formerly section 3.1 of paragraph III of appendix A]

A.R.S. 40:5.9(A) authorizes the state health officer to assess a civil penalty up to $3,000 a day for each day of violation and for each act of violation of a provision of an administrative compliance order.

B. [formerly section 3.2 of paragraph III of appendix A] For purposes of implementation of R.S. 40:5.9, violation of one or more provisions of an administrative compliance order shall be handled as follows.

1. All violations for a given public water system shall be handled as a package (i.e., the statutory maximum daily penalty of $3,000 per day per violation will be handled as a maximum daily penalty of $3,000 per day per public water system regardless of the number of individual violations). The daily penalty assessment amount shall be based upon the most serious uncorrected violation. As the level of seriousness classification or the level of culpability associated with the most serious uncorrected violation in the package changes, the daily penalty assessment amount will be recalculated accordingly from that time forward and added to any previously calculated assessment amounts.

2. In lieu of the requirements of §505. B.1 above, the state health officer, at his sole discretion, is authorized to impose a penalty of no less than $1,000 per day per violation for those public water systems serving more than 10,000 individuals [see Fed. Reg.: April 28, 1999 (Volume 63, Number 81, page 23,367)].

C. [formerly section 3.3 of paragraph III of appendix A] The maximum daily penalty applicable to a particular public water system in violation of one or more of the provisions of an administrative compliance order shall be determined as follows.

1. When a penalty is calculated pursuant to §505. B.1 above, the maximum daily penalty shall be set at $1 per service connection per day based upon the number of service connections listed on Office of Public Health records on the day the administrative order was first issued, but within the following limitations and restrictions.

a. The maximum daily penalty for public water systems having more than 3,000 service connections shall be $3,000 per day.

b. The maximum daily penalty for public water systems having less than 30 service connections shall be $30 per day.

2. When a penalty is calculated pursuant to §505. B.2 above, the maximum daily penalty shall be set at $1 per service connection per day per violation based upon the number of service connections listed on Office of Public Health records on the day the administrative order was first issued, but within the following limitations and restrictions.

a. The maximum daily penalty for public water systems having more than 3,000 service connections shall be $3,000 per day per violation.

b. The maximum daily penalty for public water systems having 2,500 service connections (i.e., equivalent to 10,000 individuals served) shall be $2,500 per day per violation.

D. [formerly section 3.4 of paragraph III of appendix A] Pursuant to §505. B and C above, the exact level of the daily penalty shall be based on the seriousness of the violation and culpability of the owner and/or operator as follows.

1. Using the maximum daily penalty specified in §505. C above as the basis for calculation, 50 percent of the maximum daily penalty amount shall be judged on the seriousness of the violation and the other 50 percent shall be judged on the culpability of the owner and/or operator.

2. The decision regarding the exact penalty assessment amounts for the seriousness of the violation(s) and the accompanying culpability of the owner and/or operator shall be made by the state health officer after considering a staff recommendation based upon the "Accompanying Guidelines to the Civil Penalty Assessment Rule" (Chapter 7 of this Part, formerly Appendix B).

3. When the state health officer utilizes §505. B.2 above as the basis for penalty calculation, the minimum daily penalty assessment amount shall in no case be less than $1,000 per day per violation after the provisions of §505. D.1 are applied [see Fed. Reg.: April 28, 1999 (Volume 63, Number 81, page 23,367)].

E. [formerly section 3.5 of paragraph III of appendix A] The duration of non-compliance with a provision of the administrative compliance order shall be determined as follows.

1. Once an administrative order has become final and not subject to further administrative review, the state health officer shall direct staff to conduct an initial investigation for the purpose of determining compliance/non-compliance with the provision(s) of the administrative order. The initial investigation shall be conducted within five working days after the time limit granted for compliance within the administrative order ends. If upon agency investigation it is found that non-compliance still exists, staff will immediately provide a copy of the investigatory report to the person on-site in responsible charge of the public water system which will serve to notify the person to whom the administrative order was issued that the agency has determined that non-compliance still exists and that daily penalty assessments shall begin to accrue immediately from this date forward until such time as the agency has been notified by the public water system that compliance has been achieved. If a representative of the public water system is not present or reasonably available at the time of the agency's investigation, staff shall, on the same day as the investigation, attempt to contact via telephone or facsimile machine the person to whom the administrative order was issued or such other responsible person in the employ of the public water system in order to provide speedy notification of results which are deemed by agency staff to cause the continuance of daily penalty assessments. In the latter case involving only verbal or electronic communication, agency staff shall, as soon as possible thereafter, transmit a copy of the investigatory report to the person to whom the administrative order was issued by one of the methods of mailing stated in §503. A.1 of this Part.

2. After the agency has conducted the initial investigation, determined that non-compliance with a provision of the administrative order still exists, and has provided a copy of the investigatory report as stated in §505. E.1 above, it then becomes incumbent upon the person to whom the administrative order was issued to notify the agency when compliance has been achieved. In order to show proof and date of service, such notice advising the agency of compliance shall be transmitted to the agency in the same manner as described in §503. A 1, 2, or 3 of this Part. Until such time as the agency has been properly notified of correction, the agency will consider the duration to begin on the date of the initial investigation and will presume that such violation is continuing on a daily basis until such time as the agency has received notification of correction. Once the agency is notified of correction, agency staff shall conduct a follow-up investigation in order to confirm compliance. Such follow-up investigation shall be conducted within 10 working days of agency receipt of the public water system's notice of compliance. If upon agency's follow-up investigation it is found that non-compliance still exists, staff will so advise the public water system in the same manner as done for initial investigations with the exception that the public water system will be advised that previously running daily penalty assessments have and will continue to accrue pending yet additional notification of compliance by the public water system to the agency. When the results of the follow-up investigation confirm that compliance has in fact been achieved, then the date that the agency received notification of compliance from the public water system for the particular provision of the administrative order in question shall be considered the last day of non-compliance for purposes of calculating the duration for non-compliance with this particular provision.

3. The steps described in §505. E.1 above may continue for an indefinite period of time but shall end once compliance has been confirmed by agency staff unless such violation is found to reoccur while the administrative order is still in effect.

La. Admin. Code tit. 51, § XII-505

Promulgated by the Department of Health and Hospitals, Office of Public Health, LR 28:1329 (June 2002).

AUTHORITY NOTE: Promulgated in accordance with R.S 40:5 (6) and R.S. 40:5.9 (A)(4).