1356-S AAS 4/1/93 S2801.1
SHB 1356 - S COMM AMD
By Committee on Ecology & Parks
ADOPTED 4/1/93
Strike everything after the enacting clause and insert the following:
"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)(a) In
addition to or as an alternative to any other penalty ((provided)) or
action allowed by law, ((every)) a 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.
(b) 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 penalties of not more than five thousand dollars per service connection, or, in the case of a system serving a transient population, a penalty of not more than four hundred dollars per person based on the highest average daily population the system is anticipated to serve. The total penalty that may be imposed pursuant to this subsection (1)(b) is five hundred thousand dollars.
(c) 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)) penalty 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 attorney's fees as
are 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 attorney's 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 is 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.
(9) Except in cases of public health emergencies, the department may 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 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)(a) Except as otherwise provided in (b) of this subsection, the secretary or his or her designee shall have the right to enter a premises under the control of a public water system at reasonable times with prior notification in order to determine compliance with laws and rules administered by the department of health to 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. For the purposes of this section, "premises under the control of a public water system" does not include the premises or private property of a customer of a public water system past the point on the system where the service connection is made.
(b) The secretary or his or her designee need not give prior notification to enter a premises under (a) of this subsection if the purpose of the entry is to ensure compliance by the public water system with a prior order of the department or if the secretary or the secretary's designee has reasonable cause to believe the public water system is violating the law and poses a serious threat to public health and safety.
(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; or
(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.
(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."
SHB 1356 - S COMM AMD
By Committee on Ecology & Parks
ADOPTED 4/1/93
On page 1, line 1 of the title, after "requirements;" strike the remainder of the title and insert "amending RCW 70.119A.030, 70.119A.040, and 70.119A.050; adding a new section to chapter 70.119A RCW; and prescribing penalties."
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