5235-S

AN ACT Relating to enforcement of public water system requirements; amending RCW 70.119A.030, 70.119A.040, and 70.119A.050; adding a new section to chapter 70.119A RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 70.119A.030 and 1991 c 304 s 3 are each amended to read as follows:

(1) The secretary or his or her designee or the local health officer may declare a public health emergency. As limited by RCW 70.119A.040, the department may impose penalties for violations of laws or regulations that are determined to be a public health emergency.

(2) As limited by RCW 70.119A.040, the department may impose penalties for ((~~failure to comply with an order of the department, or of an authorized local board of health, when the order:~~

(a) Directs any person to stop work on the construction or alteration of a public water system when plans and specifications for the construction or alteration have not been approved as required by the regulations, or when the work is not being done in conformity with approved plans and specifications;

~~(b) Requires any person to eliminate a cross-connection to a public water system by a specified time; or~~

(c) Requires any person to cease violating any regulation relating to public water systems, to take specific actions within a specified time to place a public water system in compliance with regulations adopted under chapters 43.20 and 70.119 RCW, to apply for an operating permit as required under RCW 70.119A.110 or to comply with any conditions or requirements imposed as part of an operating permit)) violation of laws or rules regulating public water systems and administered by the department of health.

Sec. 2. RCW 70.119A.040 and 1990 c 133 s 8 are each amended to read as follows:

(1) In addition to or as an alternative to any other penalty ((~~provided~~)) or action allowed by law, ((~~every~~)) any person who ((~~commits any of the acts or omissions in RCW 70.119A.030 shall be subjected~~)) violates a law or rule regulating public water systems and administered by the department of health is subject to a penalty ((~~in an amount of not less than five hundred dollars. The maximum penalty shall be~~)) of not more than five thousand dollars per day for every such violation, or, in the case of a violation that has been determined to be a public health emergency, a penalty of not more than ten thousand dollars per day for every such violation. Every such violation shall be a separate and distinct offense. The amount of fine shall reflect the health significance of the violation and the previous record of compliance on the part of the public water supplier. In case of continuing violation, every day's continuance shall be a separate and distinct violation. In addition, a person who constructs, modifies, or expands a public water system or who commences the construction, modification, or expansion of a public water system without first obtaining the required departmental approval is subject to fines of not more than ten thousand dollars per service connection, or, in the case of a system serving a transient population, a fine of not more than four hundred dollars per person based on the highest average daily population the system is anticipated to serve. Every person who, through an act of commission or omission, procures, aids, or abets ((~~in the~~)) a violation ((~~shall be~~)) is considered to have violated the provisions of this section and ((~~shall be~~)) is subject to the penalty provided in this section.

(2) The penalty provided for in this section shall be imposed by a notice in writing to the person against whom the civil fine is assessed and shall describe the violation. The notice shall be personally served in the manner of service of a summons in a civil action or in a manner that shows proof of receipt. A penalty imposed by this section is due twenty-eight days after receipt of notice unless application for ((~~remission or mitigation is made as provided in subsection (3) of this section or unless application for~~)) an adjudicative proceeding is filed as provided in subsection ((~~(4)~~)) (3) of this section.

(3) ((Within fourteen days after the notice is received, the person incurring the penalty may apply in writing to the department for the remission or mitigation of such penalty. Upon receipt of the application, the department may remit or mitigate the penalty upon whatever terms the department in its discretion deems proper, giving consideration to the degree of hazard associated with the violation, provided the department deems such remission or mitigation to be in the best interests of carrying out the purposes of this chapter. The department shall not mitigate the fines below the minimum penalty prescribed in subsection (1) of this section. The department shall have authority to ascertain the facts regarding all such applications in such reasonable manner as it may deem proper. When an application for remission on mitigation is made, a penalty incurred under this section is due twenty-eight days after receipt of the notice setting forth the disposition of the application, unless an application for an adjudicative proceeding to contest the disposition is filed as provided in subsection (4) of this section.

~~(4)~~)) Within twenty-eight days after notice is received, the person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules of the department or board of health.

((~~(5)~~)) (4) A penalty imposed by a final administrative order ((~~after an adjudicative proceeding~~)) is due upon service of the final administrative order. A person who fails to pay a penalty assessed by a final administrative order within thirty days of service of the final administrative order shall pay, in addition to the amount of the penalty, interest at the rate of one percent of the unpaid balance of the assessed penalty for each month or part of a month that the penalty remains unpaid, commencing with the month in which the notice of penalty was served and such reasonable attorneys' fees incurred in securing the final administrative order.

(5) A person who institutes proceedings for judicial review of a final administrative order assessing a civil penalty under this chapter shall place the full amount of the penalty in an interest bearing account in the registry of the reviewing court. At the conclusion of the proceeding the court shall, as appropriate, enter a judgment on behalf of the department and order that the judgment be satisfied to the extent possible from moneys paid into the registry of the court or shall enter a judgment in favor of the person appealing the penalty assessment and order return of the moneys paid into the registry of the court together with accrued interest to the person appealing. The judgment may award reasonable attorneys' fees for the cost of the attorney general's office in representing the department.

(6) ((~~The attorney general may bring an action in the name of the department in the superior court of Thurston county, or of any county in which such violator may do business, to collect a penalty.~~

~~(7)~~)) If no appeal is taken from a final administrative order assessing a civil penalty under this chapter, the department may file a certified copy of the final administrative order with the clerk of the superior court in which the public water system is located or in Thurston county, and the clerk shall enter judgment in the name of the department and in the amount of the penalty assessed in the final administrative order.

(7) A judgment entered under subsection (5) or (6) of this section shall have the same force and effect as, and shall be subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered.

(8) All penalties imposed under this section shall be payable to the state treasury and credited to the ((~~general fund~~)) safe drinking water account established under RCW 70.119A.120. Penalties deposited in the safe drinking water account shall be used by the department for water system training, technical assistance, or for other assistance relating to water system needs.

(9) Except in cases of public health emergencies, the department shall not impose monetary penalties under this section unless a prior effort has been made to resolve the violation informally.

Sec. 3. RCW 70.119A.050 and 1989 c 422 s 8 are each amended to read as follows:

Each local board of health that is enforcing the regulations under an agreement with the department allocating state and local responsibility is authorized to impose and collect civil penalties for violations within the area of its responsibility under the same limitations and requirements imposed upon the department by RCW 70.119A.030 and 70.119A.040, except that judgment shall be entered in the name of the local board of health and penalties shall be placed into the general fund of the county, city, or town operating the local board of health((~~, and the prosecuting attorney, or city, or town attorney shall bring the actions to collect the unpaid penalties~~)).

NEW SECTION. Sec. 4. A new section is added to chapter 70.119A RCW to read as follows:

(1) The secretary or his or her designee have the right to enter a premises under the control of a public water system at a reasonable time in order to determine compliance with laws and rules administered by the department of health, and to that end may test, inspect, or sample features of a public water system and inspect, copy, or photograph monitoring equipment or other features of a public water system, or records required to be kept under laws or rules regulating public water systems.

(2) The secretary or his or her designee may apply for an administrative search warrant to a court official authorized to issue a criminal search warrant. An administrative search warrant may be issued for the purposes of inspecting or examining property, buildings, premises, place, books, records, or other physical evidence, or conducting tests or taking samples. The warrant shall be issued upon probable cause. It is sufficient probable cause to show any of the following:

(a) The inspection, examination, test, or sampling is pursuant to a general administrative plan to determine compliance with laws or rules administered by the department;

(b) The secretary or his or her designee has reason to believe that a violation of a law or rule administered by the department has occurred, is occurring, or may occur; or

(c) The secretary or his or her designee has been refused access to the property, buildings, premises, place, books, records, or physical evidence, or has been prevented from conducting tests or taking samples.

(3) The local health officer or the designee of a local health officer of a local board of health that is enforcing rules regulating public water systems under an agreement with the department allocating state and local responsibility is authorized to conduct investigations and to apply for, obtain, and execute administrative search warrants necessary to perform the local board's agreed-to responsibilities under the same limitations and requirements imposed on the department under this section.