10- 144 C.M.R. ch. 231, § 1-C

Current through 2024-51, December 18, 2024

Section 144-231-1-C - SAFE DRINKING WATER ADMINISTRATIVE ENFORCEMENT

Pursuant to 22 M.R.S. §2617 the Department may seek and impose Administrative Remedies for any noncompliance with the state drinking water laws, regulations and rules. The purpose of the Administrative Remedies is to enable the Department to establish an effective enforcement program to meet primacy requirements of the United States Environmental Protection Agency and thereby to protect the public health. Pursuant to 22 M.R.S. §2620-C the Department is authorized to adopt rules regarding the notice and the issuance, amendment and withdrawal, of the Administrative Consent and Compliance Orders. Further, pursuant to 22 M.R.S. §2620(2), the Department is authorized to adopt rules establishing a schedule of Administrative Penalties. In seeking and imposing enforcement actions, the Department may pursue any combination of administrative and judicial remedies depending upon the circumstances and gravity of each case and provided that the Department follows the procedures established by statute and further established by these rules. The penalties and remedies prescribed by 22 M.R.S. §2617et seq. shall be deemed to be concurrent and the existence of an exercised remedy shall not prevent the Department from exercising any other remedy.

A.Preconditions for Assessment of Administrative Remedies

1. An Administrative Remedy discussed below may only be administered for a violation or a failure to comply that, at the time it occurred, constituted noncompliance with statutes or regulations under the jurisdiction of the Department's Drinking Water Program:

a. which was then in effect; and

b. to which the person was then subject; and

c. to which these rules apply.

2. The imposition of Administrative Remedies shall not be deemed in any way to extend any deadline for compliance.

3. A Notice of Non-Compliance shall be issued as part of the Administrative Remedy process, unless exempt under 22 M.R.S. §2620-B. A Notice of Non-Compliance will be issued by the Department within 30 days after a violation is identified under 22 M.R.S. §2601et seq., and shall contain the following information:

a. Identification of the violation(s);

b. A compliance deadline; and

c. The possible consequences of continued noncompliance.

B.Notice and Issuance, Amendment and Withdrawal of Administrative Consent Orders

1. The Department may propose an Administrative Consent Order after a Notice of Non-Compliance has been issued and after the system has failed to resolve the violation(s) cited in the Notice of Non-Compliance as specified below:

a. The Administrative Consent Order may be proposed by the Department and sent to the owner of the public water system; and

b. The Department's proposal of an Administrative Consent Order shall initiate the Department's effort to negotiate in good faith; and

c. The Administrative Consent Order shall be sent via certified mail and service shall be effective the date of receipt of the certified mail. If the certified mail is not received or claimed by the Public Water System Supplier, then the Department shall send the Administrative Consent Order by sheriff; and

d. The date of the Department's good faith effort shall be deemed to be initiated upon the date of the receipt of the certified mail; and

e. The Owner of the Water System shall have the responsibility to contact the Department to accept the offer to negotiate in good faith. Otherwise, after 10 calendar days if the Department has received no acceptance to negotiate in good faith from the owner of the Water System, then the Department shall be deemed to have fulfilled its good faith effort requirement; and

f. The Administrative Consent Order shall state with reasonable specificity the nature of the violation the public water system is alleged to have violated, specify a reasonable time frame for compliance, and clearly specify the terms under which the Department may cease to negotiate in good faith and therefore revoke the offer; and

g. Generally, the Department will be deemed to have fulfilled its obligation to negotiate in good faith if, after 60 calendar days from the date of receipt of notice, no agreement has been reached except for the following types of violations: monitoring violations, public notification violations and collection of fees. For monitoring violations, public notification violations, and collection of fees the Department's good faith effort obligation will be deemed to be fulfilled if after thirty calendar days the system has failed to enter into an agreement to rectify its non-compliance; and

h. If the Department has fulfilled its obligation to negotiate in good faith as specified above, then the Department may revoke its offer to enter into an Administrative Consent Order.

2. The Administrative Consent Order shall become final on the date of the last signatory. The Department shall be the last signatory.

3. The amendment of an Administrative Consent Order may only occur with the consent of both parties to the agreement. Any requests to amend the agreement must be placed in writing.

C.Notice and Issuance, Amendment and Withdrawal of Administrative Compliance Orders

1. The Department may issue an Administrative Compliance Order pursuant to 22 M.R.S. §2617et seq. as specified below, provided that the Department has issued a Notice of Non-Compliance, the Water System has failed to resolve the violations cited in the Notice of Non-Compliance, and the Department has fulfilled its good faith obligation or has made the determination that the violation creates a serious risk to public health as specified at 22 M.R.S. §2620-B.

a. The Administrative Compliance Order may be issued by the Department and sent to the owner of the water system; and

b. The Administrative Compliance Order shall be sent via certified mail and service shall be effective the date of receipt of the certified mail; and

c. The Administrative Compliance Order shall state with reasonable specificity the nature of the violation the public water system is alleged to have violated, specify a reasonable time frame for compliance, provide the owner of the water system with an opportunity to request a hearing within 30 calendar days of receipt of notice and specify a penalty that shall be assessed if the system fails to comply with the order.

2.Requests for Adjudicatory Hearings

a. Adjudicatory Hearings shall be conducted by the Department's Hearings Unit in accordance with the Administrative Procedure Act at 5 M.R.S. §9051et seq. A request for a Hearing shall be placed in writing and directed to the Director, Maine Center for Disease Control and Prevention; and

b. The Hearing Officer's decision shall be deemed to be the Department's final agency action and shall be binding on the Department. Otherwise a party aggrieved with the decision has a right to judicial review.

3. The Administrative Compliance Order may only be amended by the Department. If a public water system desires an extension of time to the Administrative Compliance Order, then the system must place a request in writing to the Department prior to the passage of the deadline. The written request for an extension of time shall clearly specify actions taken by the system to attempt to prevent the non-compliance with a deadline, establish that the delay in compliance is beyond the control of the water system, and the length of time needed for compliance. Otherwise, the passage of the deadline of an Administrative Compliance Order shall constitute non-compliance with the Administrative Compliance Order and shall trigger the notice of penalty assessment which shall contain a penalty.

4. If the Department determines that a violation creates a serious risk to public health, then the Department is exempt from issuing a Notice of Non-Compliance and from offering to negotiate an Administrative Consent Order in good faith and may immediately issue an Administrative Compliance Order.

a. The term "serious risk to public health" may include, but not be limited to, an MCL or Treatment Technique Violation.

D.Procedures for Imposing Administrative Penalties

1. In the case of a violation of a requirement of a statute, rule, or order for which the applicable statute authorizes an Administrative Penalty and which imposes an affirmative duty on a person, the person upon whom the duty is imposed by the statute, rule or order shall be subject to the imposition of an Administrative Penalty.

2. In the case of a violation of a requirement of a statute, rule, or order for which the applicable statute authorizes an Administrative Penalty and which prohibits one or more specified acts, any person who commits the act(s) shall be subject to the imposition of an Administrative Penalty.

E.Assessment of Administrative Penalties Generally

1. An Administrative Penalty shall be assessed via a Notice of Penalty Assessment. An Administrative Penalty may be assessed as part of an Administrative Compliance Order and shall be assessed as a result of a violation of an Administrative Compliance Order.

2. The earliest that an Administrative Penalty may be assessed is at the date good faith efforts cease and the Department has failed to enter into an Administrative Consent Order or on the date that a public water system fails to comply with an Administrative Compliance Order.

3. In the event that a penalty is not specified for a particular violation, the Department may assess a penalty for the violation that reflects the Type of violation. The penalty assessed may be no greater than $750 per violation per day except that for public water systems serving more than 10,000 people, an administrative penalty may not be less than $1,000 per violation per day. Each day that a violation remains uncorrected may be counted as a separate violation.

F.Assessment of Administrative Penalties

1. The Penalty assessed for public water systems serving more than 10,000 people shall be determined by the Type of violation. A violation shall be deemed either as Type 1, a Type 2, or a Type 3 violation. In no case shall the penalty assessed pursuant to this subsection be less than $1,000 per violation per day.

a. A Type 1 violation shall be deemed to have a direct impact on public health, a serious risk to public health and/or immediate threat to public health. The maximum penalty for Type 1 violation shall be $2,000 per violation per day.

b. Type 2 violations may have a direct impact on public health, but are mainly non-compliance with technical safeguards. The maximum penalty shall be $1,500per violation per day. Such violations include, but are not limited to, the following:

i. failure to comply with monitoring requirements; and/or

ii. failure to complete public notification.

c. Type 3 violations may have an indirect impact on public health and are generally related to poor record keeping. The penalty shall be $1,000 per violation per day. Such violations include, but are not limited to, the following:

i. failure to submit monitoring or other required reports;

ii. late submittal of monitoring or other required reports; and/or

iii. failure to keep records on file as required

2. The Penalty assessed for public water systems serving less than 10,000 people shall be determined by the Type of violation. A violation shall be deemed either as a Type 1, a Type 2, or a Type 3 violation.

a. A Type 1 violation shall be deemed to have a direct impact on public health, a serious risk to public health and/or an immediate threat to public health. The maximum penalty for Type I violations shall be $750per violation per day.

b. Type 2 violations may have a direct impact on public health, but are mainly non-compliance with technical safeguards. Such violations include, but are not limited to, the following:

i. failure to comply with monitoring requirements; and/or

ii. failure to complete public notification.

The maximum penalty shall be $350per violation per day.

c. Type 3 violations may have an indirect impact on public health and are generally related to poor record keeping. Such violations include, but are not limited to, the following:

i. failure to submit monitoring or other required reports;

ii. late submittal of monitoring or other required reports; and/or

iii. failure to keep records on file as required.

The maximum penalty shall be $50per violation per day.

3. The Department may reduce the maximum penalty assessed based on, but not limited to, the following criteria:

a. Whether steps were taken by the public water system to prevent the violation;

b. Whether steps were taken by the public water system to remediate or mitigate damages resulting from the violation;

c. The financial condition of the public water system; and

d. The best interest of the public.

4. However, for public water systems serving more than 10,000 people, the penalty must not be reduced to less than $1,000per day per violation. The Department may increase the maximum penalty established for each violation provided that no penalty assessed shall be greater than $750per violation per day for public water systems serving fewer than 10,000 people based on, but not limited to, the following:

a. The nature and duration of the violation;

d. The level of assessment necessary to ensure immediate and continued compliance;

e. Whether the public water system has a history of violations;

f. Whether or not compliance is less costly than committing the violation; and

e. Deterrence of future noncompliance.

G.Assessment of Administrative Penalties - Hearing

1. Any person against whom the Department seeks to assess an Administrative Penalty for a violation of a statute, rule, or order has the right to request a Hearing. The request for a Hearing must be filed with the Department within 30 days after the service of Notice of Penalty Assessment.

2. The Hearing Officer's decision shall be deemed to be the Department's final agency action and shall be binding on the Department. Otherwise, a party aggrieved with the decision has a right to judicial review.

H.Assessment of Administrative Penalties - Enforcement

1. The Department's issuance of an Administrative Penalty shall be a binding order on the person issued the Penalty by the Department upon the person's election to waive, or failure to timely request, an Adjudicatory Hearing on the violation and/or the penalty. Each day during which the person fails to pay said penalty, or otherwise fails to comply with an order of the Department, constitutes a separate and distinct violation.

I.Administrative Penalty Schedule

1.Type 1 Violations

a. For failure to complete an engineering study/engineering order as required by 22 M.R.S. §2612(4) /10-144 CMR 231 Section 1(E)(1).

b. For a violation of an Emergency Order/Boil Order as required at 22 M.R.S. §2614 /10-144 CMR 231 Section 1(F).

c. For failure to apply appropriate disinfection to water treatment plants at 10-144 CMR 231 Section 3(F)(2)(c).

d. For failure to apply appropriate disinfection of wells prior to the use of the wells as a source of public drinking water as required at Section 3(F)(2)(d).

e. For failure to appropriately disinfect a surface water source as required at 10-144 CMR 231 Sections 3(H)(1)(a) and 7(H)(3).

f. For systems using ground water sources that fail to install facilities for chlorinating as required at 10-144 CMR 231 Section 3(H)(2)(a).

g. For systems using ground water sources that fail to store or use hazardous chemicals outside of the proximity of the well, as required at 10-144 CMR 231 Section 3(H)(2)(b).

h. For failure to immediately report to the Department the occurrence of spills of hazardous chemicals within the wellhead protection area, as required at 10-144 CMR 231 Section 3(H)(2)(d) and Section 3(I)(2).

i. For failure to continuously disinfect a dug well or spring, if required by the Department at 10-144 C.M.R. 231, Section 4(D).

j. For failure of a community water system to provide a minimum positive pressure of 20 p.s.i. at the curb stop (curb cock), as required at 10-144 CMR 231 Section 4(A).

k. For failure to comply with the Maximum Contaminant Level requirements for inorganic chemicals, as required at 10-144 CMR 231 Section 7(B)(1).

l. For failure to comply with the Maximum Contaminant Level requirements for organic chemicals, as required at 10-144 CMR 231 Section 7(B)(2).

m. For failure to comply with the Maximum Contaminant Level requirements for radionuclides, as required at 10-144 CMR 231 Section 7(B)(6).

n. For failure to comply with the Maximum Contaminant Level for organic contaminants, as required at 10-144 CMR 231 Section 7(G)(2).

o. For failure to comply with the Maximum Contaminant Level for inorganic contaminants, as required at 10-144 CMR 231 Section 7(G)(3).

p. For failure to comply with the Maximum Contaminant Level for microbiological contaminants, as required at 10-144 CMR 231 Section 7(G)(4) and 7(Y). For failure to comply with Level 1 or Level 2 Assessments under Section 7(Y).

q. For failure to meet criteria for avoiding filtration, as required at 10-144 CMR 231 Section 7(H)(2).

r. For failure to meet disinfection requirements, as required at 10-144 CMR 231 Section 7(H)(3).

s. For failure to meet filtration requirements, as required at 10-144 CMR 231 Section 7(H)(4).

t. For failure to meet source water treatment requirements, as required at 10-144 CMR 231 Section 7(I)(4).

u. For failure to meet Treatment Technique requirements for lead and copper, as required at 10-144 CMR 231 Section 7(K).

v. For failure to meet MCL and Maximum Residual Disinfection Level (hereafter MRDL) requirements, as required at 10-144 C.M.R. 231, Section 7(L).

w. For failure to follow specifications for the disinfection of water mains, as required at 10-144CMR 231 Section 3(F)(2)(a).

x. For failure to follow specifications for the disinfection of a water storage facility prior to being placed in service 10-144 CMR 231 Section 3(F)(2)(b).

y. For failure of a transient non-community water system that is in operation seasonally to complete required water tests for coliform bacteria and nitrate during the first 30 days of operation, as required at 10-144 CMR 231, Section 3(J)(1).

z. For failure of a new transient water system to complete appropriate tests prior to utilizing the source as a water supply, as required at 10-144 CMR 231, Section 3(J)(2).

a-1. For failure to maintain appropriate disinfectant residual or application rate, as required at 10-144 CMR 231, Section 4(D).

b-1. For failure to meet MRDL requirements for disinfection byproducts, as required at 10-144 CMR 231, Section 7(G)(6).

c-1. For failure to meet MCL requirements for residual disinfectant, as required at 10-144 CMR 231, Section 7(G)(7).

d-1. For failure to meet Treatment Technique requirements for disinfection byproducts, as required at 10-144 CMR 231 Section 7(L)(6).

2.Type 2 Violations

a. For failure to employ a licensed water operator as required by 22 M.R.S. §§2623, 2625, and 2630 and 10-144 CMR Section 1(C).

b. For failure to submit plans to be reviewed and approved by the Department specified at 10-144 CMR 231 Section 3(C).

c. For failure to submit for approval plans to protect the surface supply watersheds as required at 10-144 CMR 231 Section 3(G)(1)(a).

d. For failure to submit a map for approval that shows the watershed area delineation and potential sources of contamination, as required at 10-144 CMR 231 Section 3(G)(1)(b).

e. For failure to submit for approval a Preliminary New Well/Final New Well Approval Form, as required at 10-144 C MR 231 Section 10-144 CMR 231 Section 3(G)(2).

f. For failure to discharge water softeners or other treatment techniques in an approved manner, as required at 10-144 CMR 231 Section 3(H)(2)(e).

g. For failure of a community water system to have a sanitary seal at the termination of the well casing, as required at 10-144 CMR 231 Section 3(H)(2)(f).

h. For failure to appropriately cover, disinfect and screen vents of reservoirs, as required at 10-144 CMR 231 Section 4(B).

i. For failure to obtain a permit for a cross connection, as required at 10-144 CMR 231 Section 4(F).

j. For failure to appropriately add fluoride, as required at 10-144 CMR 231 Section 4(J).

k. For failure to comply with rules for bottling water for consumption, as required at 10-144 CMR 231 Section 4(K).

l. For failure to monitor for Coliform, as required at 10-144 CMR 231 Section 7(C)(1).

m. For failure to monitor for Turbidity, as required at 10-144 CMR 231 Section 7(C)(2).

n. For failure to monitor for Inorganic Chemicals, as required at 10-144 CMR 231 Section 7(C)(3).

o. For failure to monitor for Organic Chemicals, as required at 10-144 CMR 231 Section 7(C)(4).

p. For failure to monitor for Radionuclides, as required at 10-144 CMR 231 Section (7)(C)(6).

q. For failure to monitor for Total Trihalomethanes, as required at 10-144 CMR 231 Section (7)(C)(4).

r. For failure to complete special monitoring for inorganic and organic chemicals, as required at 10-144 CMR 231 Section 7(E)(1).

s. For failure to complete special monitoring for sodium, as required at 10-144 CMR 231 Section 7(E)(2).

t. For failure to complete special monitoring for corrosivity characteristics, as required at 10-144 CMR 231 Section 7(E)(3).

u. For failure to comply with the prohibition on use of lead pipes, solder and flux, as required at 10-144 CMR 231 Section 7(E)(4).

v. For failure to meet analytical and monitoring requirements for filtration and disinfection, as required at 10-144 CMR 231 Section 7(H)(5).

w. For failure to meet the monitoring requirements for lead and copper in tap water, as required at 10-144 CMR 231 Section 7(I)(7).

x. For failure to meet the monitoring requirements for water quality parameters, as required at 10-144 CMR 231 Section 7(I)(8).

y. For failure to meet monitoring requirements for lead and copper in source water, as required at 10-144 CMR 231 Section 7(I)(9).

z. For failure to comply with the requirements regarding Non-Centralized Treatment Devices, as required at 10-144 CMR 231 Section 7(J).

a-2. For failure to comply with the siting requirements, as required at 10-144 CMR 231 Section 7(A)(5).

b-2. For failure to comply with MCL requirements for turbidity, as required at 10-144 CMR 231 Section 7(B)(3).

c-2. For failure to meet lead service line replacement requirements, as required at 10-144 CMR 231 Section 7(I)(5).

d-2. For failure to meet public education and supplemental monitoring requirements, as required at 10-144 CMR 231 Section 7(I)(6).

e-2. For failure to install and maintain appropriate hydrants, as required at 10-144 CMR 231 Section 4(G).

f-2. For failure to install appropriate curb stops (curb cocks), as required at 10-144 CMR 231 Section 4(H).

g-2. For failure to monitor for disinfectant residuals, as required at 10-144 CMR 231 Section 7(L)(3).

h-2. For failure to comply with the compliance requirements regarding Disinfection Byproducts, as required at 10-144 CMR 231 Section 7(L)(4).

i-2. For failure to meet filtration sampling requirements, as required at 10-144 CMR 231 Section 7(P)(5).

j-2. For failure to submit disinfection profiling and benchmarking, as required at 10-144 CMR 231 Section 7(P)(3).

k-2. For failure to comply with the recycle provisions, as required at 40 C.F.R. 141.76 and 10 - 144 CMR 231 Section (7)(H)(7).

3.Type 3 Violations

a. For failure of a system to keep water analyses results, as required at 10-144 CMR 231 Section 5(A).

b. For failure of a system to keep records of actions taken by the system to correct violations of drinking water regulations, as required at 10-144 CMR 231 Section 5(B).

c. For failure of a system to keep records of sanitary surveys, as required at 10-144 CMR 231 Section 5(C).

d. For failure of a system to keep records regarding a variance or exemption, as required at 10-144 CMR 231 Section 5(D).

e. For failure of a system to maintain daily operational records, as required at 10-144 CMR 231 Section 5(E).

f. For failure to comply with any reporting requirements, as required at 10-144 CMR 231 Section 6(A).

g. For failure to report analytical testing requirements by the tenth day of the following month in which the samples were analyzed, as required at 10-144 CMR 231 Section 6(B).

h. For failure of community water systems serving municipalities or districts or any public water system that adds chemicals on a continuous basis to file with the Department no later than the 10^thday of each month, monthly operational reports, as required at 10-144 CMR 231 Section 6(C).

i. For failure to report test results, as required at 10-144 CMR 231 Section 7(D)(1).

j. For failure to provide appropriate public notification, as required at 10-144 CMR 231 Section 7(Q)(1).

k. For failure to appropriately maintain records, as required at 10-144 CMR 231 Section 7(D)(3).

l. For failure to provide appropriate public notice pertaining to lead, as required at 10-144 CMR 231 Section 7 (I )(6).

m. For failure to report or provide public notification for certain unregulated contaminants, as required at 10-144 CMR 231 Section 7(E)(1).

n. For failure to meet reporting or record keeping requirements, as required at 10-144 CMR 231 Section 7(H)(6).

o. For failure to meet reporting requirements for lead and copper, as required at 10-144 CMR 231 Section 7(I)(11).

p. For failure to meet record keeping requirements for lead and copper, as required at 10-144 CMR 231 Section 7(I)(12).

q. For failure to meet the reporting requirements, as required at 10-144 CMR 231 Section 7(O).

r. For failure to submit payment to the Department of the Alternative Funding Fee, as required at 10-144 CMR 231 Section 1-A.

s. For failure to have sanitary surveys conducted as part of the Watershed, as required at 10-144 CMR 231 Section 3(H)(1)(C).

t. For failure to meet reporting and recordkeeping requirements for Disinfection Byproducts, as required at 10-144 CMR 231 Section 7(L)(5).

u. For failure to meet reporting and record keeping requirements for Turbidity, as required at 10-144 CMR 231 Section 7(P)(6).

10- 144 C.M.R. ch. 231, § 1-C