A. Whenever, on the basis of any information, the director determines that any person has violated, is violating or threatens to violate any requirement of the Solid Waste Act, any regulation promulgated pursuant to that act or any condition of a permit issued under that act, the director may:

(1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or

(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

B. Any order issued pursuant to Subsection A of this section may include a suspension or revocation of any permit issued by the director. Any penalty assessed in the order shall not exceed five thousand dollars ($5,000) per day of noncompliance for each violation. In assessing such penalty, the director shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.

C. If a violator fails to take corrective action within the time specified in a compliance order, the director may:

(1) assess a civil penalty of not more than ten thousand dollars ($10,000) for each day of continued noncompliance with the order; and

(2) suspend or revoke any permit issued to the violator under the Solid Waste Act.

D. Whenever on the basis of any information the director determines that there is or has been a release of contaminants into the environment from a solid waste facility, the director may issue an order requiring corrective action, including corrective action beyond a solid waste facility's boundaries or such other response measure as he deems necessary to protect human health or the environment, or may commence an action in district court in the district in which the solid waste facility is located for appropriate relief, including a temporary or permanent injunction.

E. Any order issued under Subsection D of this section may include a suspension or revocation of a permit to operate a solid waste facility and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance. If any person named in an order fails to comply with the order, the director may assess and such person shall be liable to the state for a civil penalty in an amount not to exceed five thousand dollars ($5,000) for each day of noncompliance with the order.

F. Any order issued pursuant to this section, any other enforcement proceeding initiated under this section or any claim for personal or property injury arising from any conduct for which financial responsibility must be provided may be issued to or taken against the insuror or guarantor of an owner or operator of a solid waste facility if:

(1) the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the federal Bankruptcy Code [11 U.S.C. § 101 et seq.]; or

(2) jurisdiction in any state or federal court cannot with reasonable diligence be obtained over an owner or operator likely to be solvent at the time of judgment.

G. Any order issued pursuant to this section shall become final unless, no later than thirty days after the order is served, the person or persons named therein submit a written request to the director for a public hearing. Upon such request the director shall promptly conduct a public hearing. The director shall appoint an independent hearing officer to preside over the public hearing. That hearing officer shall make and preserve a complete record of the proceedings and forward his recommendation based thereon to the director, who shall make the final decision.

H. In connection with any proceeding under this section, the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.

I. Penalties collected pursuant to an administrative order shall be deposited in the state treasury to be credited to the solid waste facility grant fund.

History: Laws 1990, ch. 99, § 36.