49-152.02. Enforcement of engineering controls; civil penalty

A. If the director determines that an engineering control has not been maintained in accordance with the maintenance plan required by section 49-152.01, or that an engineering control has failed and the owner has failed to adequately implement the contingency plan required by section 49-152.01, the director shall give notice of the failure to maintain or failure to implement the contingency plan to the owner by certified mail. If the owner fails to adequately implement the contingency plan, initiate satisfactory maintenance or complete the required maintenance within a reasonable time as specified in the notice, the director may issue an order that requires the implementation of the contingency plan or the maintenance or restoration of the control within a reasonable time period.

B. If the department determines that a person has failed to obtain or maintain a financial assurance mechanism approved by the department under section 49-152.01, the department may issue an order requiring that the financial assurance mechanism be obtained or restored within a reasonable amount of time.

C. An order that is issued under this section shall state with reasonable specificity the nature of the deficiency, a general description of the actions to be taken to remedy the deficiency, a time for remedying the deficiency and the right to a hearing.

D. An order that is issued pursuant to this section becomes final and enforceable in superior court unless within thirty days after the receipt of the order the recipient requests a hearing pursuant to title 41, chapter 6, article 10. If a hearing is requested, the order does not become final until the department has issued a final decision on the appeal.

E. If the director determines that an owner has failed to comply with a final order issued pursuant to this section and as a result has created a condition that represents an actual or potential endangerment to public health or the environment, the director may enter the property and maintain or restore the engineering control. The department shall be entitled to recover all reasonable and necessary costs of such maintenance or restoration to the extent that the maintenance or restoration is within the scope of the remedial actions specified in the order. In seeking cost recovery, the department shall access the financial assurance mechanism pursuant to section 49-152.01, subsection B. To the extent that funds in the financial assurance mechanism are insufficient to cover the recoverable costs of maintenance or restoration, the department may seek to recover the unpaid amount from the owner, the institutional and engineering control fund established by section 49-159, or any other source of funds authorized by law for that purpose.

F. If the director determines that an owner's failure to maintain or restore an engineering control has created an imminent and substantial endangerment to the public health or the environment, the director may request that the attorney general commence a civil action. An action that is filed pursuant to this subsection shall have precedence over all other matters pending before the court. The action may seek to do any or all of the following:

1. Request a temporary restraining order, a preliminary injunction or a permanent injunction to mitigate or prevent the endangerment.

2. Access the financial assurance mechanism pursuant to section 49-152.01, subsection B to mitigate or prevent the endangerment. An action that is filed pursuant to this subsection shall have precedence over all other matters pending before the court.

G. An owner who fails to comply with a final order issued pursuant to subsection A of this section is subject to a civil penalty up to one thousand dollars per day for each day of noncompliance. The total civil penalties that may be imposed on an owner pursuant to this subsection shall not exceed two hundred fifty thousand dollars for each final order that is violated. At the request of the director the attorney general shall file an action in superior court to recover penalties provided in this section. In determining the amount of a civil penalty, the court shall consider the following factors:

1. The level of actual or potential threat to public health or the environment posed by the owner's failure to comply with the order.

2. Whether the reason for the owner's failure to comply with the order, if known, was beyond the reasonable control of the owner.

3. Whether the owner made any good faith attempt to comply with the order.

4. The financial status of the owner.

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

6. Other matters as justice may require.