Section R309-405-5 - Formal Administrative Enforcement Actions and Assessment of Administrative PenaltiesSection R309-405-5 addresses formal enforcement actions and monetary penalties available to the Director through administrative procedures.
(1) Formal Administrative Enforcement Actions Seeking No Penalties. (a) Whenever the Director issues, under the Safe Drinking Water Act, a notice of violation or administrative order, or a combined notice of violation and administrative order, that does not seek the imposition of administrative penalties, the procedures set forth in Section 19-1-301 and Rule R305-7 shall apply to the issuance and service of the notice of violation or administrative order, or combined notice of violation and order, and any adjudication arising from the issuance and service of the notice of violation or administrative order, or combined notice of violation and administrative order.(2) Formal Administrative Enforcement Actions Seeking Penalties. (a) Whenever the Director issues, under the Safe Drinking Water Act, a notice of violation or administrative order, or a combined notice of violation and administrative order, that seeks the imposition of administrative penalties, the notice of agency action procedures set forth in Section 19-4-109 and Subsection R309-405-5(5) shall apply to the issuance and service of the notice of violation or administrative order, or combined notice of violation and administrative order, and any adjudication arising from the issuance and service of the notice of violation or administrative order, or combined notice of violation and administrative order.(3) Violations of Administrative Orders. (a) If the Director seeks the imposition of administrative penalties arising from the violation of an administrative order, the notice of agency action procedures set forth in Section 19-4-109 and Subsection R309-405-5(5) shall apply to the issuance and service of the notice of agency action and any adjudication arising from the issuance and service of the notice of agency action.(b) The Director may seek judicial enforcement or the imposition of administrative penalties arising from the violation of an administrative order issued under the Safe Drinking Water Act without first issuing a notice of violation.(4) Administrative Penalty Range. (a) Any violation by a public water system serving a population of more than 10,000 individuals shall be subject to a penalty of exactly $1,000 on a per day, per violation basis.(b) Any violation by a public water system serving a population of less than 10,000 individuals shall be subject to a penalty not to exceed $1,000 on a per day, per violation basis, based on the criteria described in Section R309-405-6.(5) Administrative Penalty Assessment, Payment, and Collection Procedures; Adjudications and Appeals. (a) Prior to assessing administrative penalties under the Safe Drinking Water Act and Rule R309-405, the Director shall provide the respondent with a written Notice of Proposed Assessment of Administrative Penalties, in accordance with Section R305-7-402, and provide the respondent with the opportunity of no less than 30 calendar days to submit comments to the Director relating to the proposed penalties. The comments may include evidence of mitigating circumstances the respondent desires the Director to consider prior to assessing penalties.(b) After considering any timely comments or evidence submitted by the respondent, the Director may decline to assess administrative penalties by providing notice to the respondent. If, after considering timely comments and evidence submitted by the respondent, the Director makes the decision to pursue the assessment of penalties, the Director shall proceed as follows: (i) The Director shall issue a Notice of Agency Action and Demand for Payment in accordance with Section 19-4-109 and Title 63G, Chapter 4, Administrative Procedures Act, providing a detailed statement of basis for the assessed penalty, including the Director's evaluation of any comments or evidence submitted by the respondent during the comment period.(ii) The Notice of Agency Action and Demand for Payment shall include notice of the right to a formal adjudicative proceeding in accordance with Subsection 63G-4-201(2)(a)(vi) by filing a written response within 30 days of the mailing date of the Notice of Agency Action and Demand for Payment. The adjudication of administrative penalties shall be conducted as a formal adjudication.(iii) If the respondent does not request an adjudicative proceeding, payment of administrative penalties shall be due within 30 days of the date of issuance of the Notice of Agency Action and Demand for Payment.(iv) If the respondent files a timely written response to the Notice of Agency Action and Demand for Payment pursuant to Section 63G-4-204, the following procedures shall apply:(A) The Director, serving as the presiding officer, shall conduct a formal adjudication pursuant to Title 63G, Chapter 4, Administrative Procedures Act.(B) At the conclusion of the formal adjudicative proceeding, the Director shall issue a final order of the adjudicative proceeding, pursuant to Section 63G-4-208, as the final agency action regarding the assessment of administrative penalties.(C) The final order of the adjudicative proceeding shall be subject to judicial review pursuant to Section 63G-4-403.(6) Settlement. (a) At any time during a notice of violation, administrative order, or penalty assessment or adjudication process, the Director may compromise or settle administrative penalties in accordance with Subsection 19-4-109(3), except that settlements that require the payment of penalties in excess of $25,000 require Board approval under Subsection 19-4-104(1)(c)(vii).(b) The Director's authority to compromise or settle administrative penalties includes providing payment terms and extensions of time, at the discretion of the Director.Utah Admin. Code R309-405-5
Amended by Utah State Bulletin Number 2021-09, effective 4/23/2021