HB2405 - 541R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 49-262, Arizona Revised Statutes, is amended to read:

START_STATUTE49-262. Injunctive relief; civil penalties; recovery of litigation costs; affirmative defense; interim operator or manager

A. Whether or not a person has requested a hearing, the director, through the attorney general, may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health if the director has reason to believe either of the following:

1. That a person is in violation of:

(a) Any provision of article 2, 3, 3.1, or 3.2 or 3.3 of this chapter.

(b) A rule adopted pursuant to section 49‑203, subsection A, paragraph 6.

(d) A discharge limitation or any other condition of a permit issued under article 2, 3, 3.1, or 3.2 or 3.3 of this chapter.

2. That a person is creating an actual or potential endangerment to the public health or environment because of acts performed in violation of this chapter.

B. Notwithstanding any other provision of this chapter, if the director, the county attorney or the attorney general has reason to believe that a person is creating an imminent and substantial endangerment to the public health or environment because of acts performed in violation of article 2, 3, 3.1, or 3.2 or 3.3 of this chapter or a rule adopted or a condition of a permit issued pursuant to section 49‑203, subsection A, paragraph 2, 6 or 7, the county attorney or attorney general may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health.

C. A person who violates any provision of article 2, 3, 3.1 or 3.2 of this chapter or a rule, permit, discharge limitation or order issued or adopted pursuant to article 2, 3, 3.1 or 3.2 of this chapter is subject to a civil penalty of not more than twenty‑five thousand dollars $25,000 per day per violation. A person who violates any rule adopted or a condition of a permit issued pursuant to section 49‑203, subsection A, paragraph 6 is subject to a civil penalty of not more than five thousand dollars $5,000 per day per violation. A person who violates any rule adopted, permit condition or any other provision of article 3.3 of this chapter is subject to a civil penalty of not more than five thousand dollars $5,000 per day per violation. The attorney general may, and at the request of the director shall, commence an action in superior court to recover civil penalties provided by this section.

D. The court, in issuing any final order in any civil action brought under this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any substantially prevailing party if the court determines such an award is appropriate. If a temporary restraining order is sought, the court may require the filing of a bond or equivalent security.

E. All civil penalties except litigation costs obtained under this section shall be deposited, pursuant to sections 35‑146 and 35‑147, in the state general fund.

F. Except as applied to permits issued or authorized pursuant to article 3.1, or 3.2 or 3.3 of this chapter, it shall be is an affirmative defense to civil liability under this section and section 49‑261 for causing or contributing to a violation of a water quality standard established pursuant to this chapter, or a violation of a permit condition prohibiting a violation of an aquifer water quality standard or limitation at the point of compliance or a surface water quality standard if the release that caused or contributed to the violation came from a facility owned or operated by a party that has either:

1. Undertaken a remedial or response action approved by the director or the administrator under this title or CERCLA in response to the release of a hazardous substance, pollutant or contaminant that caused or contributed to the violation of article 2 of this chapter and is in compliance with that remedial or response action.

2. Otherwise resolved its liability for the release of a hazardous substance that caused or contributed to the violation of article 2 of this chapter in whole or in part by the execution of a settlement agreement or consent decree with the director or administrator under this article, CERCLA or any other environmental law and is in compliance with that settlement agreement or consent decree.

G. Subsection F of this section does not prevent the director from taking an appropriate enforcement action to address the release of a hazardous substance, pollutant or contaminant or the violation of a permit condition before or as an element of an approved remedial or response action, settlement agreement or consent decree.

H. In determining the amount of a civil penalty for a violation under article 3, 3.1, or 3.2 or 3.3 of this chapter, the court shall consider the following factors:

1. The seriousness of the violation or violations.

2. The economic benefit, if any, that results from the violation.

3. Any history of similar violations.

4. Any good faith efforts to comply with the applicable requirements.

5. The economic impact of the penalty on the violator.

6. The extent to which the violation was caused by a third party.

7. Other matters as justice may require.

I. A single operational upset that leads to simultaneous violations of more than one pollutant limitation in a permit issued or authorized pursuant to section 49‑255.01 constitutes a single violation for purposes of any penalty calculation.

J. If a permittee holds both a permit issued or authorized pursuant to article 3 of this chapter and a permit issued or authorized pursuant to article 3.1, or 3.2 or 3.3 of this chapter and the permittee violates a similar provision in both permits simultaneously, the department shall not recover penalties for violations of both permits based on the same act or omission.

K. For a wastewater treatment facility or system that is regulated as a public service corporation by the corporation commission, the department may make a written request to the corporation commission to take necessary corrective actions within thirty calendar days after both of the following occur:

1. The department does any one or more of the following:

(a) Determines that the wastewater treatment facility or system is out of compliance with an administrative order issued by the department for a violation of this chapter.

(b) Files a civil action against the owner or operator of the wastewater treatment facility or system for a violation of this chapter.

2. The department determines that the corporation commission taking necessary corrective actions would expedite the wastewater treatment facility's or system's return to compliance with this chapter. END_STATUTE

Sec. 2. Section 49-354, Arizona Revised Statutes, is amended to read:

START_STATUTE49-354. Enforcement; violation; classification; compliance orders; judicial review; injunctive relief; civil administrative penalties; interim operator or manager; civil penalties

A. A person who violates this article or a rule adopted pursuant to this article is guilty of a class 2 misdemeanor for each violation. In the instance of a continuing violation, each day a violation continues constitutes a separate offense.

B. If the director determines that a person is in violation of this article or a rule adopted pursuant to this article, the director may issue an order requiring compliance immediately or within a specified time period. A compliance order shall state with reasonable specificity the nature of the violation, a time for compliance if applicable and the right to a hearing. The director shall transmit the compliance order to the alleged violator by certified mail, return receipt requested, or by hand delivery. A compliance order becomes final and enforceable in the superior court unless within thirty days after the receipt of the order the alleged violator requests a hearing before an administrative law judge pursuant to title 41, chapter 6, article 10. If a hearing is requested, the order does not become final until the administrative law judge has issued a final decision on the appeal. Except as provided in section 41‑1092.08, subsection H, a final administrative decision is subject to judicial review pursuant to title 12, chapter 7, article 6. At the request of the director the attorney general may begin an action in superior court to enforce orders issued under this subsection after an order becomes final.

C. If the director determines that a person is in violation of this article or a rule adopted pursuant to this article to implement the requirements contained in 40 Code of Federal Regulations parts 141 and 142, including the national primary drinking water regulations, the director may issue a compliance order pursuant to subsection B of this section imposing a civil administrative penalty. All penalty amounts shall be calculated as follows:

1. If the violator is a public water system that serves more than ten thousand persons, the director may impose a civil administrative penalty of up to one thousand dollars $1,000 per day per violation up to ten thousand dollars $10,000 per violation.

2. If the violator is a public water system that serves five hundred to ten thousand persons, the director may impose a civil administrative penalty that does not exceed five hundred dollars $500 per day per violation up to five thousand dollars $5,000 per violation.

3. If the violator is a public water system that serves fewer than five hundred persons, the director may impose a civil administrative penalty that does not exceed one hundred dollars $100 per day per violation up to one thousand dollars $1,000 per violation.

D. When determining the amount of a civil administrative penalty pursuant to subsection C of this section, the director shall consider all of the following:

1. The size of the public water system.

2. Any good faith effort by the public water system to maintain compliance with national primary drinking water regulations.

3. The seriousness of the violation.

4. Any history of violation of the national primary drinking water regulations.

5. Any history of recalcitrance by the violator.

6. Any economic benefit resulting from the violation, as an aggravating factor only.

7. Any other factor deemed relevant.

E. For a public water system that is regulated as a public service corporation by the corporation commission, the department may make a written request to the corporation commission to take necessary corrective actions within thirty calendar days after both of the following conditions occur:

1. The department does any one or more of the following:

(a) Determines that the facility is out of compliance with an administrative order issued by the department for a violation of this chapter.

(b) Files a civil action against the owner or operator of the public water system for a violation of this chapter.

2. The department determines that the corporation commission taking necessary corrective actions would expedite the public water system's return to compliance with this chapter.

E. F. Civil administrative penalties may not be recovered pursuant to subsection C of this section if civil penalties are sought pursuant to subsection G H of this section for the same violation.

F. G. All civil administrative penalties obtained pursuant to subsection C of this section shall be deposited, pursuant to sections 35‑146 and 35‑147, in the state general fund.

G. H. In addition to the authority provided in subsection C of this section, the attorney general may, and at the request of the director shall, begin an action in superior court to recover civil penalties in an amount of not more than five hundred dollars $500 per violation per day from any person who violates this article or a rule adopted pursuant to this article. All civil penalties obtained under this subsection shall be deposited, pursuant to sections 35‑146 and 35‑147, in the state general fund. Civil penalties may not be recovered pursuant to this subsection if civil administrative penalties are sought pursuant to subsection C of this section for the same violation.

H. I. If the director has reason to believe that a person is in violation of this article or a rule adopted or an order issued pursuant to this article or believes that a person is creating an actual or potential endangerment to the public health because of acts performed in violation of this article or a rule adopted pursuant to this article, the director, through the attorney general, may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health. END_STATUTE