Title 18 . Environmental Conservation

Chapter 80 . Administrative Enforcement

Section 1230. Issuance of preliminary determination

18 AAC 80.1230. Issuance of preliminary determination

(a) If the entity does not correct the violation within the time allowed under 18 AAC 80.1210(b)(3), the department will make a preliminary determination to assess an administrative penalty. The department will provide to the entity, by personal service or by certified mail, return receipt requested, a written notice of the preliminary determination. The department will send a copy of the notice of the preliminary determination to the governing body of the community or municipality whose residents are served by the public water system.

(b) In the written notice of preliminary determination under (a) of this section, the department will

(1) include each date of each violation;

(2) include a description of the nature of the violation;

(3) list the regulations, order, permit, approval, or certificate that the entity violated;

(4) explain why the department is assessing a penalty;

(5) calculate, in accordance with 18 AAC 80.1220, the amount of the proposed administrative penalty per day per violation;

(6) calculate the number of days in violation;

(7) state that the entity may, within 10 days after receipt of the notice of preliminary determination, request in writing reconsideration of the preliminary determination to assess the penalty, but that a request for reconsideration may not be based upon the amount of technical assistance offered to the entity or whether the department offered technical assistance to the entity;

(8) state that the request for reconsideration submitted under (7) of this subsection must include

(A) information regarding the extent to which the violation has been abated or partially abated;

(B) information whether the violation was out of the entity's control, including information regarding the unavailability of professional or technical personnel or of materials and equipment; and

(C) additional relevant information that was

(i) not initially available to the department; or

(ii) initially available to the department, but that the department overlooked;

(9) inform the entity that the entity may seek an extension of the 10-day period for making a request for reconsideration; the department will describe the requirements of (c)(1) - (c)(2) of this section; and

(10) state that if the department does not receive a timely request for reconsideration, or if after reconsideration the department determines that a penalty should be assessed, the department will issue a notice of assessment and assess the penalty.

(c) An entity may request reconsideration of a preliminary determination made by the department. The request for reconsideration must be made in writing and received by the department within 10 days after the entity's receipt of the notice of preliminary determination, or within the time period allowed in any extension granted by the department under this subsection. The request for reconsideration may not be based upon the amount of technical assistance offered to the entity or whether the department offered technical assistance to the entity. The department will extend the 10-day period for making a request for reconsideration if

(1) the entity requests an extension within the 10-day period; and

(2) the department determines that

(A) the extension is not sought for purposes of delay;

(B) good cause is shown for the extension; and

(C) the public is adequately protected.

(d) If an entity timely submits a request for reconsideration under (c) of this section, the department will base reconsideration on the information submitted in accordance with (b)(8) of this section.

History: Eff. 9/21/2002, Register 163; am 1/11/2006, Register 177

Authority: AS 46.03.020

AS 46.03.761

AS 46.03.850