281.99 Administrative forfeitures for safe drinking water violations.

(1)

(a) The department may directly assess forfeitures in the amounts provided under sub. (2) for violations of safe drinking water program rules promulgated under s. 281.17 (8) or (9).

(b)

1. Subject to subd. 2., if the department proposes to assess a forfeiture for a particular violation, it shall first provide written notice of the alleged violation to the water system owner or operator. The notice shall state the amount of the proposed forfeiture, an explanation of how the amount of the proposed forfeiture was determined under sub. (2) (b) and a proposed order under par. (c). After providing the notice, the department shall attempt to negotiate with the water system owner or operator to remedy the alleged violation. If the water system owner or operator corrects the alleged violation, or if the department and the water system owner or operator reach a compliance agreement, before an order is issued under par. (c), the department may not assess a forfeiture for the alleged violation.

2. The department may directly assess a forfeiture by issuing an order under par. (c) without first providing notice if the alleged violation either creates an acute risk to public health or safety or is part of a documented pattern of noncompliance with one or more rules promulgated under s. 281.17 (8) or (9).

(c) If the department determines that a forfeiture should be assessed for a particular violation, it shall issue an order under s. 281.19 (2) (a) to the water system owner or operator alleged to have committed the violation. Except as provided in par. (b) 2., the department may not issue the order until at least 60 days after the day on which it provided notice under par. (b) 1. The order shall specify the amount of the forfeiture assessed, the violation and the rule alleged to have been violated and shall inform the licensee of the right to contest the order under sub. (3).

(2)

(a) The amount of forfeitures that the department may assess under this section are as follows:

1. For water systems that serve a population of more than 10,000 persons, not less than $10 nor more than $1,000 for each day of each violation, but not more than $25,000 per violation in one order.

2. For water systems that serve a population of 10,000 persons or less, not less than $10 and not more than $500 for each day of violation, but not more than $25,000 in one order.

(b) The department, in determining the amount of forfeiture that it assesses under this section, shall consider the following factors, as appropriate:

1. The gravity of the violation, including the probability of harm to persons served by the water system.

2. Good faith exercised by the water system owner or operator, including past or ongoing efforts to correct problems or achieve compliance with the safe drinking water program.

3. Any previous violations committed by the water system owner or operator at the same water system.

4. The financial benefit to the water system owner or operator of continuing the violation.

5. Any other relevant factors.

(c) While an order issued under this section is contested, suspended, stayed or enjoined, any forfeiture under this section does not accrue.

(3) A water system owner or operator may contest the issuance of an order and the assessment of a forfeiture under this section using the procedure under ch. 227 or s. 281.19 (8). A water system owner or operator that timely requests a hearing under ch. 227 is entitled to a contested case hearing.

(4) All forfeitures shall be paid to the department within 60 days after receipt of the order or according to a schedule agreed to by the department and the water system owner or operator or, if the forfeiture is contested under sub. (3), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.

(5) The attorney general may bring an action as provided in s. 281.19 (2) (a) in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews.

(6) Section 893.80 does not apply to actions commenced under this section.

History: 1997 a. 27, 237; 2003 a. 33.