18 AAC 80.1220. Calculation of penalty

(a) Subject to (f) of this section and the limits imposed by AS 46.03.761 (g), the per day per violation administrative penalty will be calculated in accordance with the following formula:

penalty = (A x B x C x $10) + D

where:

A = the point value assigned under (b) of this section;

B = the point value assigned under (c) of this section;

C = the point value assigned under (d) of this section;

D = the number determined under the formula set out in (e) of this section.

(b) For the amount "A" in the penalty formula in (a) of this section, the department will assign to the violation a point value reflecting the public health risk factor, as follows:

(1) for the following violations that have a minor effect on the public health:

(A) failure to comply with 18 AAC 80.1040 (Consumer Confidence Reports): one point;

(B) failure to meet a secondary MCL required under 18 AAC 80.300(c) - (d): one point;

(C) a violation of the requirements under this chapter that the department determines to have a minor effect on the public health: one point;

(2) for the following violations that prevent the department's assessment of safety:

(A) failure to submit to the department information required by this chapter: two points;

(B) failure to submit documentation sealed by a registered engineer if required by this chapter: two points;

(C) failure to perform routine sampling and analysis as required under 18 AAC 80.310(a) , other than a failure described in (4)(A) or (4)(B) of this subsection: two points;

(D) failure to correct, within the department's specified timeframe, deficiencies found during a sanitary survey, other than significant deficiencies: two points;

(E) a violation of the requirements under this chapter that the department determines to prevent the department's assessment of safety: two points;

(3) for the following violations that could prevent the public water system from supplying drinking water to the public:

(A) construction, installation, alteration, renovation, or improvement of a public water system without approval as required under 18 AAC 80.200(b) : three points;

(B) failure to operate with a certified operator in accordance with 18 AAC 80.007: three points;

(D) failure to meet the separation distance requirements of 18 AAC 80.020 without a waiver under that section: three points;

(E) a violation of the requirements under this chapter that the department determines could prevent the public water system from supplying drinking water to the public: three points;

(4) for the following violations in which a known, specific health concern exists:

(A) failure to perform routine sampling and analysis as required under 18 AAC 80.310(a) to determine compliance with a treatment technique requirement under 18 AAC 80.655 - 18 AAC 80.665: four points;

(B) failure to monitor for coliform bacteria, as required under 18 AAC 80.405, or to conduct nitrate and nitrite monitoring as required by 18 AAC 80.315(d) - (e): four points;

(D) failure to cover a reservoir if required under 40 C.F.R. 141.170(c), adopted by reference in 18 AAC 80.010(a) : four points;

(E) failure to meet the MCL for a contaminant in 18 AAC 80.300 other than nitrate, nitrite, or total nitrate and nitrite as set out in 18 AAC 80.300(b) (1), and other than total coliform bacteria as set out in 18 AAC 80.300(b) (5): four points;

(F) failure to perform public education or public notification, if required under 40 C.F.R. 141.85, adopted by reference in 18 AAC 80.101, or if required under 40 C.F.R. 141.201 - 141.210, adopted by reference in 18 AAC 80.010, other than a failure described in (6)(I) of this subsection: four points;

(G) a violation of the requirements under this chapter for which the department determines that a known, specific health concern exists: four points;

(5) for the following violations that could result in an unapproved or deficient public water system in use:

(A) operation of a public water system without a valid final or interim approval to operate as required under 18 AAC 80.200(b) and 18 AAC 80.210(g) and (j): five points;

(B) failure to make physical modifications as required by the department under 18 AAC 80.200(e) : five points;

(C) failure to correct, within the department's specified timeframe, significant deficiencies found during a sanitary survey: five points;

(D) a violation of the prohibition of cross-connections under 18 AAC 80.025(a) , or failure to install, maintain, or test a backflow prevention device as required under 18 AAC 80.025(b) : five points;

(E) a violation of the requirements under this chapter that the department determines could result in an unapproved or deficient public water system in use: five points;

(6) for the following violations that could result in an immediate threat to the public health:

(A) failure to perform repeat monitoring if required under this chapter: six points;

(B) failure to monitor fluoridation as required under 18 AAC 80.315 and 18 AAC 80.340: six points;

(D) failure to comply with a treatment technique requirement: six points;

(E) failure to meet the monthly coliform MCL set out in 18 AAC 80.300(b) (5): six points;

(F) failure to disinfect a newly constructed or reworked well as required under 18 AAC 80.05(b)(6): six points;

(G) failure to use a certified laboratory: six points;

(H) failure to meet the MCL for nitrate, nitrite, or total nitrate and nitrite, as set out in 18 AAC 80.300(b) (1) and determined according to 18 AAC 80.305(b) : six points;

(I) failure to provide public notification, as required under 40 C.F.R. 141.201 - 141.210, adopted by reference in 18 AAC 80.010, for a violation of the MCL for a contaminant or the MRDL for a disinfectant that might pose an acute risk to human health: six points;

(J) failure to meet the monitoring requirements of 18 AAC 80.660 for a Class A or Class B public water system that uses a surface water source or a GWUDISW source and that does not provide filtration treatment: six points;

(K) a violation of the requirements under this chapter that the department determines could result in an immediate threat to the public health: six points.

(c) For the amount "B" in the penalty formula in (a) of this section, the department will assign to the violation a point value reflecting the entity's previous record of compliance under this chapter, as follows:

(1) if, within five years before the date when the department issues a preliminary determination under 18 AAC 80.1230, a notice of violation has been issued under AS 46.03.850 for a violation under (b)(4) - (b)(6) of this section by the entity: seven points;

(2) if, within one year before the date when the department issues a preliminary determination under 18 AAC 80.1230, a notice of violation has been issued under AS 46.03.850 for a violation under (b)(1) - (b)(3) of this section by the entity: three points;

(3) if the entity's compliance history does not include circumstances described in (1) or (2) of this subsection: one point.

(d) For the amount "C" in the penalty formula in (a) of this section, the department will assign to the violation a point value reflecting the population that the entity serves, as follows:

(1) for a transient non-community water system: one point;

(2) for a non-transient non-community water system, or for a community water system with fewer than 100 service connections: two points;

(3) for a community water system with 100 - 500 service connections: three points;

(4) for a community water system with 501 - 999 service connections: four points;

(5) for a community water system with 1,000 - 9,999 service connections: five points;

(6) for a community water system with 10,000 or more service connections: six points.

(e) For the amount "D" in the penalty formula in (a) of this section, the department will assign a number calculated in accordance with the following formula:

D = (economic savings + department's reasonable costs) УЖ number of days of violation

(f) The department may increase or decrease the penalty computed under the formula in (a) of this section based on the consideration of the following factors:

(1) whether the violation prevented the entity from supplying drinking water to the public;

(2) the extent to which the violation reduced the quality of water being provided to the public;

(3) the extent to which the violation negatively impacted the integrity of the source;

(4) the likelihood that the penalty amount will deter future violations of this chapter by the entity subject to the penalty;

(5) whether the entity achieved compliance with the violated requirement within the shortest feasible time, taking into consideration

(A) the cost of compliance;

(B) the availability of professional or technical personnel;

(D) the extent to which major construction or alteration of facilities was needed to bring the public water system into compliance with applicable statutes and this chapter;

(6) whether the expenditures that would have prevented or minimized the violation are relatively small in comparison to the overall investment in infrastructure by the public water system;

(7) whether any delay in compliance was out of the control of the entity; for purposes of this paragraph, a delay out of the control of the entity includes a delay

(A) because parts or chemicals that had been timely ordered by the entity were on back order or delayed in transit;

(B) due to circumstances beyond the entity's reasonable control and ability to foresee, and despite the due diligence of the entity; for purposes of this subparagraph, circumstances beyond the entity's reasonable control and ability to foresee

(i) include war, riots, and acts of God; and

(ii) do not include increased costs of compliance with this chapter, or reasonably foreseeable seasonal fluctuations in the weather conditions of the region; and

(C) due to the timing of regular flights or other freight transportation into the community where the public water system is located;

(8) whether the entity knowingly violated the regulations, order, permit, approval, or certificate of the department.

History: Eff. 9/21/2002, Register 163; am 1/11/2004, Register 169; am 5/2/2004, Register 170; am 1/11/2006, Register 177

Authority: AS 46.03.020

AS 46.03.761

AS 46.03.850

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