1997 Regular Session
To: Environment Prot, Cons and Water Res
By: Senator(s) Gunn
Senate Bill 2802
AN ACT TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-2, MISSISSIPPI CODE OF 1972, TO SPECIFY THE PURPOSE OF THIS CHAPTER AND EXPRESS THE FINDINGS AND INTENT OF THE LEGISLATURE; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-6, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT RULES OF THE BOARD BE NO MORE STRINGENT THAN FEDERAL RULES, IF A MATTER IS ADDRESSED IN FEDERAL RULES; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-8, MISSISSIPPI CODE OF 1972, TO REQUIRE APPROVAL BY THE DIRECTOR OF PLANS FOR CONSTRUCTION OR CHANGES TO COMMUNITY PUBLIC WATER SYSTEMS AND NONTRANSIENT, NONCOMMUNITY PUBLIC WATER SYSTEMS; TO REQUIRE THE SUBMISSION AND APPROVAL OF OPERATION AND MAINTENANCE PLANS; TO REQUIRE APPLICANTS FOR A NEW COMMUNITY PUBLIC WATER SYSTEM AND NONTRANSIENT, NONCOMMUNITY PUBLIC WATER SYSTEM TO SUBMIT FINANCIAL AND MANAGERIAL INFORMATION TO THE PUBLIC UTILITIES STAFF; TO REQUIRE THE EXECUTIVE DIRECTOR OF THE PUBLIC UTILITIES STAFF TO CERTIFY THE FINANCIAL AND MANAGERIAL VIABILITY OF A SYSTEM PRIOR TO RECEIVING APPROVAL FROM THE DIRECTOR; TO PROHIBIT THE DIRECTOR FROM APPROVING PLANS FOR CHANGES TO EXISTING SYSTEMS UNDER CERTAIN CIRCUMSTANCES; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-23, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE STATE DEPARTMENT OF HEALTH TO ASSESS AND COLLECT FEES FOR DRINKING WATER QUALITY ANALYSIS AND TO LIMIT THE AMOUNT OF THOSE FEES; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-25, MISSISSIPPI CODE OF 1972, TO CREATE THE PUBLIC WATER SYSTEM ASSISTANCE FUND, THE PUBLIC WATER SYSTEM TECHNICAL ASSISTANCE ACCOUNT AND THE PUBLIC WATER SYSTEM BOND OPERATIONS ACCOUNT AND TO PROVIDE FOR THEIR USE; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 41-26-31, MISSISSIPPI CODE OF 1972, TO ESTABLISH CIVIL PENALTIES FOR VIOLATIONS; TO AUTHORIZE THE DIRECTOR TO INSTITUTE LEGAL PROCEEDINGS FOR RELIEF; TO PRESCRIBE FACTORS TO BE CONSIDERED IN PENALTY CALCULATIONS; TO AUTHORIZE CERTAIN ACTIONS BY THE DIRECTOR IN LIEU OF OR IN ADDITION TO THE CIVIL PENALTY; TO PROVIDE FOR THE DISPOSITION OF PENALTY PROCEEDS; TO AMEND SECTION 41-26-3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE DEFINITION OF AND TO DEFINE CERTAIN TERMS; TO AMEND SECTION 41-26-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE POWERS AND DUTIES OF THE BOARD CONCERNING SAFE DRINKING WATER AND TO REQUIRE THE BOARD TO ESTABLISH A TECHNICAL ASSISTANCE PROGRAM; TO AMEND SECTION 41-26-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE POWERS AND DUTIES OF THE DIRECTOR CONCERNING SAFE DRINKING WATER; TO AMEND SECTION 41-26-15, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR UNLAWFUL ACTS; TO AMEND SECTION 41-26-17, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE FILING OF COMPLAINTS REGARDING VIOLATIONS; TO REQUIRE THE DIRECTOR TO NOTIFY THE ALLEGED VIOLATOR AND REQUIRE THE VIOLATOR TO APPEAR AT A HEARING; TO AUTHORIZE THE DIRECTOR TO ENTER AN ORDER REQUIRING CORRECTIVE ACTIONS AND IMPOSING CIVIL PENALTIES; TO AMEND SECTION 41-26-19, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE CONDUCT OF HEARINGS UNDER THIS CHAPTER; TO PROVIDE FOR THE POWERS OF THE DIRECTOR IN CONDUCTING A HEARING; TO AMEND SECTION 41-26-21, TO AUTHORIZE APPEALS FROM AN ORDER OF THE DIRECTOR; TO AMEND SECTIONS 41-26-1, 41-26-9, 41-26-11 AND 41-26-13, MISSISSIPPI CODE OF 1972, TO MAKE TECHNICAL AND CONFORMING AMENDMENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 41-26-2, Mississippi Code of 1972:
41-26-2. (1) The Legislature finds that:
(a) An adequate supply of safe, pure drinking water is essential to the public health and welfare and the maintenance of that supply through viable water systems is an important natural resource in the economic development of the state;
(b) The federal Safe Drinking Water Act, as amended, provides a comprehensive framework for regulating the collection, treatment, storage and distribution of potable water; and
(c) It is in the public interest of the state to assume primary enforcement responsibility under the federal Safe Drinking Water Act, as amended.
(2) The purposes of this chapter shall be:
(a) To establish a state program to assure provision of safe drinking water to the public by establishing drinking water standards consistent with the federal act and developing a state program to implement and enforce the standards. The standards shall protect the public health and welfare to the extent feasible using technology, treatment techniques and other means which are generally available.
(b) To develop a process for implementing plans for the provision of safe drinking water in emergencies;
(c) To provide public notice of potentially hazardous conditions that may exist in a water supply; and
(d) To authorize the director to prevent the creation of new potentially nonviable community water systems, to provide technical assistance to existing potentially nonviable systems to help those systems become viable and to encourage the elimination of nonviable systems whose problems cannot be corrected.
(3) It is the intent of the Legislature that the board in implementing Section 41-26-5(3), shall work cooperatively with organizations, such as the Mississippi Rural Water Association, which provide training and assistance to rural water systems. The board shall, consistent with state and federal law and rules and regulations and subject to the availability of funds, contract annually with and provide funding for those organizations. Any contract and funding shall be contingent upon receipt of an acceptable scope of work and cost proposal, as determined by the department and upon the contractor satisfactorily meeting performance objectives established in the contract.
SECTION 2. The following shall be codified as Section 41-26-6, Mississippi Code of 1972:
41-26-6. (1) The board may adopt rules and regulations governing public water systems, but those rules and regulations shall, except as expressly required by law, be no more stringent or extensive in scope, coverage and effect than regulations promulgated by the United States Environmental Protection Agency.
(2) If federal regulations do not provide a standard, criteria or guidance addressing public water systems, the board may promulgate rules and regulations to address these matters when the board determines that the rules and regulations are necessary to protect the public health and welfare.
(3) Nothing in this section shall prohibit the director by order or in the approval of plans for construction or changes from placing additional requirements on a public water system on a case by case basis in order to provide for the quantity and quality of drinking water or to protect the public health and welfare.
SECTION 3. The following shall be codified as Section 41-26-8, Mississippi Code of 1972:
41-26-8. (1) The director shall exercise general supervision over the construction and operation of public water systems throughout the state. The general supervision shall include all of the features of construction and operation of public water systems which do or may affect the sanitary quality or the quantity of the water supply.
(2)(a) No person shall construct or change any community public water system or nontransient, noncommunity public water system until the plans for that construction or change have been submitted to and approved by the director. Plans for the construction or change must be prepared by a professional engineer registered in this state.
(b) In addition, each applicant for a new community public water system or nontransient, noncommunity public water system shall submit an operation and maintenance plan for review and approval by the director. The plan must be approved before beginning construction.
(c) In granting any approval under this section, the director may specify any modifications, conditions or limitations as may be required for the protection of the public health and welfare.
(d) The director may also review the source of the water and the quantity of water to be withdrawn.
(e) Records of construction, including plans and descriptions of existing portions of a public water system, shall be made available to the department upon request.
(f) Each applicant for a new community public water system or nontransient, noncommunity public water system shall submit financial and managerial information as required by the public utilities staff. Following review of that information, the executive director of the public utilities staff certify in writing to the director the financial and managerial viability of the system if the executive director determines the system is viable. The director shall not approve the construction until that certification is received.
(g) The director shall not approve any plans for changes to an existing community public water system or nontransient, noncommunity public water system, if the director determines the changes would threaten the viability of the system or if the changes may overload the operational capabilities of the system.
SECTION 4. The following shall be codified as Section 41-26-23, Mississippi Code of 1972:
41-26-23. The department shall charge and collect reasonable annual fees for water quality analysis and related activities as required by the Safe Drinking Water Act, as amended, which shall not exceed One Dollar and Twenty Cents ($1.20) per connection or Twenty Thousand Dollars ($20,000.00) per water system, whichever is less. The proposed fee schedule shall be developed by the department with the advice of an advisory committee before filing the schedule with the Office of the Secretary of State under the Administrative Procedures Act. The advisory committee shall consist of one (1) member appointed by the Mississippi Rural Water Association, one (1) member appointed by the Mississippi Municipal Association and one (1) member appointed by the Mississippi Water and Pollution Control Operators Association, Inc. All such revenues less than Nine Hundred Thousand Dollars ($900,000.00) derived annually as the result of water quality analysis shall be expended solely and exclusively for water quality analysis and related activities within the department and all revenues in excess of Nine Hundred Thousand Dollars ($900,000.00) shall lapse into the State General Fund. All public water suppliers are required to pay the fees when invoiced by the department. Persons making sales to customers of water for residential, noncommercial or nonagricultural use shall indicate on each statement rendered to customers that the water quality analysis fees are required by the federal government under the Safe Drinking Water Act, as amended.
SECTION 5. The following shall be codified as Section 41-26-25, Mississippi Code of 1972:
41-26-25. (1)(a) There is created in the State Treasury a fund to be designated as the "Public Water System Assistance Fund." The fund shall contain two (2) accounts, designated as the "Public Water System Technical Assistance Account" and the "Public Water Systems Bond Operations Account."
(b) Monies in the Public Water System Technical Assistance Account shall be used to pay the reasonable direct and indirect costs of providing technical assistance to public water systems under the program established in Section 41-26-5(3). Monies in the Public Water Systems Bond Operations Account shall be used as ordered by the court under Section 41-26-31.
(2) Expenditures may be made from the fund upon requisition by the director.
(3) The fund shall be treated as a special trust fund. Interest earned on the principal shall be credited by the Treasurer to the fund.
(4) The fund may receive monies from any available public or private source, including, but not limited to, collection of fines, penalties or fees, proceeds from bond or other financial security forfeitures, interest, grants, taxes, public and private donations, petroleum violation escrow funds or refunds, and appropriated funds.
SECTION 6. The following shall be codified as Section 41-26-31, Mississippi Code of 1972:
41-26-31. (1) If the director finds any person guilty of a violation of this chapter, any rule or regulation or written order of the director or any condition or limitation of an approval, the director may assess and levy a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation. Each day of a continuing violation is a separate violation. Any penalty shall be assessed and levied by the director after a hearing as provided in this chapter. Appeals from the imposition of the civil penalty may be taken to the Chancery Court of the First Judicial District of Hinds County or the chancery court of the county of the situs, in whole or in part, as provided in Section 41-26-21. If the appellant desires to stay the execution of a civil penalty assessed under this section, the appellant shall give bond with sufficient sureties of one or more guaranty or surety companies authorized to do business in this state, payable to the State of Mississippi, in an amount equal to double the amount of any civil penalty assessed by the director, as to which the stay of execution is desired. If the judgment is affirmed, the appellant shall pay all costs of the assessment entered against the appellant.
(2) In addition to or in lieu of the penalty provided in subsection (1) of this section, the director may institute and maintain in the name of the state any proceedings necessary or appropriate to enforce this chapter, any rule or regulation or written order of the director or any condition or limitation of an approval. The proceedings may be filed and heard in the appropriate circuit, chancery, county or justice court of the county in which venue may lie, or in the Circuit, Chancery or County Court of the First Judicial District of Hinds County, as the case may be. The director may obtain mandatory or prohibitory injunctive relief, either temporary or permanent. In cases of imminent and substantial hazard or endangerment, it shall not be necessary that the state plead or prove: (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written order has first been issued for the alleged violation.
(3) In determining the amount of any penalty under this section, the director shall consider at a minimum:
(a) The willfulness of the violation;
(b) Costs of restoration and abatement;
(c) Economic benefit as a result of noncompliance;
(d) The seriousness of the violation, including any harm or hazard to the public health and welfare; and
(e) Past performance history.
(4)(a) The owner of any public water system found in violation of this chapter may submit to the director a plan for:
(i) The physical consolidation of the system with one or more other viable public water systems;
(ii) The consolidation of significant management and administrative functions of the system with one or more other viable public water systems or contract or satellite management of the system; or
(iii) The transfer of ownership of the system.
(b) If the director approves the plan and the plan is fully implemented as determined by the director, the director shall waive any penalty assessed under this section for a violation identified in the approved plan before the date on which the action specified in the approved plan was completed.
(5)(a) In addition to or in lieu of any other penalty imposed under this section, the director may require the owner of any public water system found in violation to provide a bond or other acceptable financial security instrument to the department. The bond or financial security must be approved by the director. The purpose of the bond or other financial security shall be the protection of the health and welfare of the customers of the system. The board shall establish by regulation the acceptable forms of financial security and the amount of financial security required for the various types and sizes of facilities.
(b) The director may petition the Chancery Court of the First Judicial District of Hinds County for forfeiture of the bond or other financial security, if the director determines that:
(i) The continued operation or lack of operation of the system covered by this section represents a threat to the public health and welfare;
(ii) All reasonable and practical efforts under the circumstances have been made to obtain corrective actions from the violators; and
(iii) It does not appear that corrective actions can or will be taken within an appropriate time as determined by the director, or it appears the facility has been abandoned.
(c) The proceeds of any forfeiture shall be deposited in the Public Water Systems Bond Operations Account of the Public Water Systems Assistance Fund and shall be used as ordered by the court to address or correct the noncompliance at the system. The proceeds shall be in addition to any other funds otherwise appropriated to the department and may be expended under the authority of this section without additional action of the Legislature or the Department of Finance and Administration.
(d) If the court finds that a system has been abandoned or that services of a system have been terminated, the court may enter any orders regarding continued operations of that system as it deems necessary to protect the public health and welfare.
(6)(a) Any penalty assessed by the director under this section shall be due and payable within thirty (30) days after notification of the violator of the order, and shall be due and payable jointly or severally, as the order may require or allow.
(b) If the assessed penalty is not paid within the thirty (30) days, or within any additional time as the director may allow, the director may file suit in the Circuit Court of the First Judicial District of Hinds County or any other court with appropriate jurisdiction to enforce the order, collect the penalty and recover reasonable attorney's fees and all court costs.
(c) A copy of the administrative order shall be sufficient proof as to the decision of the director.
(7) All fines and penalties recovered or collected by the director under subsection (1) of this section shall be deposited in the Public Water Systems Technical Assistance Account of the Public Water Systems Assistance Fund.
SECTION 7. Section 41-26-1, Mississippi Code of 1972, is amended as follows:
41-26-1. This chapter shall be known and cited as the "Mississippi Safe Drinking Water Act of 1997."
SECTION 8. Section 41-26-3, Mississippi Code of 1972, is amended as follows:
41-26-3. For purposes of this chapter, the following terms shall have the meaning ascribed herein unless the context clearly indicates otherwise * * *:
(a) "Administrator" means the Administrator of the United States Environmental Protection Agency or the administrator's designee.
(b) "Board" means the Mississippi State Board of Health.
(c) "Community public water system" means a public water system serving at least fifteen (15) individual service connections used by year-round consumers or regularly servicing at least twenty-five (25) individual consumers year-round.
(d) "Construction" means any placement, assembly or installation of facilities or equipment, including contractual obligations to purchase those facilities or equipment, at the location where the equipment will be used, including any preparation work at any location.
(e) "Contaminant" means any physical, chemical, biological or radiological substance or matter in water.
(f) "Cross connection" means any physical arrangement whereby a public water system is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains, or may contain, contaminated water, sewage or other waste or liquid of unknown or unsafe quality, which may be capable of passing on contamination to the public water system as a result of backflow. Bypass arrangements, jumper connections, removable sections, swivel or change-over devices through which, or because of which, backflow could occur are considered to be cross connections.
(g) "Department" means the Mississippi State Department of Health.
(h) "Director" means the State Health Officer or the health officer's designee.
(i) "Federal act" means the Safe Drinking Water Act of 1974, as amended, principally codified as 42 USCS Section 300(f) et seq.
(j) "Federal agency" means any department, agency or instrumentality of the United States.
(k) "Maximum contaminant level" means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.
(l) "Municipality" means a city, town, village or other public body created by state law, or an Indian tribal organization authorized by law.
(m) "National Primary Drinking Water Regulations" means primary drinking water regulations promulgated by the administrator under the federal act.
(n) "Nontransient, noncommunity public water system" means a public water system that is not a community water system and that regularly serves at least twenty-five (25) of the same persons over six (6) months per year.
(o) "Person" means an individual, corporation, company, association, partnership, municipality or federal agency.
(p) "Public water system" means a system for providing to the public * * * piped water for human consumption through pipes or other constructed conveyances if the system has at least fifteen (15) service connections or regularly serves at least twenty-five (25) individuals. The term includes but is not limited to:
(i) Any collection, treatment, storage and distribution facilities under control of the operator of the system and used primarily in connection with the system; and
(ii) Any collection or pre-treatment storage facilities not under the control which are used primarily in connection with the system.
(q) "Supplier of water" means any person who owns, * * * or controls a public water system.
(r) "Violator" means a public water system, an officer or director of a public water system, an operator, certified or otherwise, or any other person designated by a public water system or the department as the official responsible for the operation of a public water system.
SECTION 9. Section 41-26-5, Mississippi Code of 1972, is amended as follows:
41-26-5. (1) In addition to any other duties required by law, the board shall have the following powers and duties concerning safe drinking water:
(a) To establish policies, requirements or standards governing the source, collection, distribution, purification, treatment and storage of water for public water systems as it deems necessary for the provision of safe drinking water;
(b) To adopt, modify, repeal and promulgate, after due notice and hearing and in accordance with the Mississippi Administrative Procedures Law and Section 41-26-6, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing the powers and duties of the board under this chapter;
(c) To enter into, and to authorize the director to execute contracts, grants and cooperative agreements with, any federal or state agency or subdivision thereof, interstate agency, or any other person in connection with carrying out this chapter; and
(d) To discharge other powers, duties and responsibilities which may be necessary to implement this chapter.
(2)(a) Except as provided in Section 41-26-5(2)(b), regulations adopted under this section shall apply to each public water system in the state * * *.
(b) Regulations shall not apply to a public water system:
(i) Which consists only of distribution and storage facilities, and which does not have any collection and treatment facilities;
(ii) Which obtains all of its water from, but is not owned or operated by, a public water system to which such regulations apply;
(iii) Which does not sell water to any person; and
(iv) Which is not a carrier which conveys passengers in interstate commerce.
(3) The board shall develop and implement a technical assistance program to help existing potentially nonviable community public water systems to become viable and to improve the technical, managerial or financial capabilities of small community public water systems. In developing this program, the board shall work cooperatively, as expressed in Section 41-26-2(3), with organizations, such as the Mississippi Rural Water Association, which currently provide training and assistance to rural water systems.
* * *
SECTION 10. Section 41-26-7, Mississippi Code of 1972, is amended as follows:
41-26-7. In addition to any other duties required by law, the director shall have the following powers and duties concerning safe drinking water:
(a) To exercise general supervision over the administration and enforcement of this chapter and applicable rules and regulations;
(b) To make inspections and investigations, collect samples and carry on research and analyses as may be necessary to carry out this chapter and applicable rules and regulations;
(c) To enter at all reasonable times onto any property other than the interior of a private dwelling to make inspections, conduct investigations or studies or enforce this chapter and applicable rules and regulations;
(d) To enter into contracts, grants or cooperative arrangements with any federal or state agency or subdivision thereof, interstate agency or any other person;
(e) To receive financial and technical assistance from the federal government and other public or private agencies or organizations;
(f) To participate in related programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;
(g) To establish adequate fiscal controls and accounting procedures to assure proper disbursement of and account for funds appropriated or otherwise necessary to carry out this chapter;
(h) To hold hearings, issue, modify or revoke orders, levy and collect any administrative fine or penalty and to enforce the laws, rules and regulations governing safe drinking water;
(i) To keep any records and make reports with respect to the activities of the department;
(j) To delegate any powers, duties and responsibilities as deemed appropriate to administer this chapter including delegation of any powers and duties regarding administrative enforcement to a designated administrative law judge or hearing officer; and
(k) To perform all acts necessary to carry out this chapter or the federal act.
SECTION 11. Section 41-26-9, Mississippi Code of 1972, is amended as follows:
41-26-9. The director, upon receipt of information that a contaminant which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the public health * * *, may take any actions deemed necessary * * * to protect the public health * * *. The actions * * * may * * * include, but shall not be limited to:
(a) Issuing any orders either on the initiative of the director or through a designated administrative law judge or hearing officer as may be necessary to protect the public health of * * * users of the system, including travelers; and
(b) Commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction.
SECTION 12. Section 41-26-11, Mississippi Code of 1972, is amended as follows:
41-26-11. The director shall develop an adequate plan for the provision of safe drinking water under emergency circumstances. If, in the judgment of the director, emergency circumstances exist in the state * * * for safe drinking water, the director may take any actions deemed necessary * * * to provide safe drinking water where it otherwise would not be available.
SECTION 13. Section 41-26-13, Mississippi Code of 1972, is amended as follows:
41-26-13. (1) * * * A public water * * * system shall, as soon as practicable, notify the county or district health department, the board and the administrator if one (1) of the following conditions exist: (a) the system is not in compliance with the Mississippi Primary Drinking Water Regulations; (b) the system fails to perform monitoring required by regulations adopted by the board; (c) the system is subject to a variance granted for an inability to meet a maximum contaminant level requirement; (d) the system is subject to an exemption; or (e) the system fails to comply with the requirements prescribed by a variance or exemption. * * *
(2) In addition, the system shall provide public notice. The notice shall be published at least once every three (3) months * * * in a newspaper of general circulation in the area which is served by the water system, as determined by the director. The notice shall not be placed in the legal section of the newspaper. The notice shall be furnished to the other communications media serving the area * * * as soon as practicable after the discovery of any condition for which the notice is required. If the water bills of a public water system are issued more often than once every three (3) months, the notice shall be included in at least one (1) water bill of the system every three (3) months, and if a public water system issues its water bills less often than once every three (3) months, the notice shall be included in each * * * water bill issued by the system.
SECTION 14. Section 41-26-15, Mississippi Code of 1972, is amended as follows:
41-26-15. The following acts and the causing of these acts are prohibited:
(a) Failure by a supplier of water to comply with the requirements of Section 41-26-13, or dissemination by that supplier of any false or misleading information with respect to notices required under Section 41-26-13, or with respect to remedial actions being undertaken to achieve compliance with Mississippi Primary Drinking Water Regulations;
(b) Failure by a supplier of water to comply with this chapter or applicable rules or regulations promulgated under this chapter, or with conditions of any variances or exemptions granted under this chapter;
(c) Failure by any person to comply with any order issued by the director, administrative law judge or hearing officer under this chapter;
(d) Refusal by a supplier of water to allow an authorized representative of the department to inspect any public water system;
(e) Contamination of a public water system;
(f) Intentionally damaging any pipe or other part of a public water system;
(g) Discharge of sewage or other waste at any location that may come into contact with a public water system intake, unless that discharge is permitted or authorized by a state or federal agency;
(h) Installation, allowing the installation or maintenance of any cross connection, auxiliary intake or bypass, unless the source and quality of water from the auxiliary supply, the method of connection and the use and operation of that cross connection, auxiliary intake or bypass has been approved by the director; and
(i) Abandonment or other termination of water services to more than fifty percent (50%) of the customers of a system by a supplier of water, without providing at least sixty (60) days' notice to all customers served by the public water system and the department.
SECTION 15. Section 41-26-17, Mississippi Code of 1972, is amended as follows:
41-26-17. (1) When the director or an employee of the department has reason to believe that a violation of this chapter, a rule or regulation promulgated under this chapter, any order of the director, or any limitation or condition of an approval has occurred, the director shall cause a written complaint to be served upon the alleged violator. The complaint shall specify the provisions of this chapter, rule or regulation, order or approval alleged to be violated and the facts alleged to constitute that violation. The complaint shall also require the alleged violator to appear before the director at a time and place specified in the notice to answer the charges. The time of appearance shall be at least five (5) days from the date of the service of the complaint.
(2) Except as provided in subsection (1) of this section, upon the filing of a complaint by any person alleging a violation of this chapter, a rule or regulation promulgated under this chapter, any order of the director or any limitation or condition of an approval, the director shall conduct an investigation of the complaint. Any complaint filed under this subsection shall be in writing, signed by the person making the allegation and filed with the director. If the director finds a basis for the complaint, the director shall cause written notice of the complaint, specifying the charges or allegations made, to be served upon the alleged violator. The notice shall also require the alleged violator to appear before the director at a time and place specified in the notice to answer the charges. The time of appearance shall be at least five (5) days from the date of the service of the complaint. If the director finds no basis for the complaint, the director shall dismiss the complaint.
(3) The director shall afford an opportunity for a hearing to the alleged violator at the time and place specified in the notice. On the basis of the facts determined at the hearing, the presiding official shall make findings of fact and conclusions of law and enter an order. The director shall give written notice of that order to the alleged violator and to any other persons appearing at the hearing or making written request for notice of the order. In addition to ordering corrections in the operation or maintenance of a public water system, and other measures which, in the opinion of the director, are necessary to ensure compliance with this chapter or the federal act or to safeguard the public health, the director may assess penalties as provided in Section 41-26-31.
(4) Except as otherwise expressly provided, any notice or other instrument issued by or under authority of this chapter may be served on any person affected and proof of that service may be made in like manner as in case of service of a summons in a civil action. Proof of service shall be filed in the office of the director. In addition, service may be made by mailing a copy of the notice, order or other instrument by certified mail, directed to the person affected at the person's last known post office address as shown by the files or records of the department, and proof thereof may be made by the affidavit of the person who did the mailing, filed in the office of the director.
SECTION 16. Section 41-26-19, Mississippi Code of 1972, is amended as follows:
41-26-19. (1)(a) Any hearing under this chapter may be conducted by the director or an administrative law judge or an administrative hearing officer designated by the director. The presiding official may conduct the hearings in the name of the director at any time and place as conditions and circumstances may warrant. The presiding official shall have the record of any hearing prepared which the official has conducted for the director.
(b) In any pending matters under this chapter, the director shall have the same powers to subpoena witnesses, administer oaths, examine witnesses under oath and conduct the hearing, as is now vested by law in the Mississippi Public Service Commission, for hearings before it. In addition, the director may issue all subpoenas, both at the instance of the petitioner and of the director. At any hearing the director, the staff of the department, any other petitioner or any other interested person, may offer proof, present witnesses and submit evidence. At the discretion of the presiding official, comments may be taken from members of the public who are subscribers of the public water system. Witnesses who are subpoenaed shall receive the same fees and mileage as in civil actions. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the circuit court shall have jurisdiction, upon application of the director or the director's representative, to issue an order requiring that person to appear and testify or produce evidence as the case may require and any failure to obey that order of the court may be punished by the court as contempt. Failure to appear at any hearing, without prior authorization to do so from the director or the director's representative, may result in the director finding the alleged violator guilty of the charges complained of by default. An order may be entered, including the assessment of a penalty, which, in the opinion of the director, will best further the purposes of this chapter.
(2) All hearings shall be recorded either by a court reporter or by tape or mechanical recorders and subject to transcription upon order of the director or any interested person. If the request for transcription originates with an interested person, that person shall pay the cost prior to the production of the transcription.
SECTION 17. Section 41-26-21, Mississippi Code of 1972, is amended as follows:
41-26-21. Following the hearing, the presiding official shall enter an order which shall become a final order of the director, unless the petitioner or other interested person appearing at the hearing, shall, within ten (10) days after the date the final order was made, appeal to the Chancery Court of the First Judicial District of Hinds County or the chancery court of the county of the situs, in whole or in part. The petitioner or other interested person shall give a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed in the order appealed from. The cost bond shall be filed with and approved by the director, who shall certify the bond, together with a certified copy of the record of the hearing in the matter, to the chancery court, which shall be the record of the cause. Except as provided in this section, an appeal to the chancery court as provided in this section shall not stay the execution of a final order of the director.
Any person who is aggrieved by any final order or other decision issued under this section may, within ten (10) days after the date of that order or decision, petition the Chancery Court of the First Judicial District of Hinds County or the chancery court of the county of the situs, in whole or in part, for an appeal with supersedeas. The chancellor shall grant a hearing on that petition. Upon good cause shown, the chancellor may grant the appeal with supersedeas. The appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the chancellor. Appeals shall be considered only upon the record as made at the hearing before the presiding official. The chancery court shall always be deemed open for hearing of appeals and the chancellor may hear the appeal in termtime or in vacation at any place in the chancellor's district. The appeal shall have precedence over all civil cases, except election contests. The chancery court shall review all questions of law and of fact. If no prejudicial error is found, the matter shall be affirmed and remanded to the director for enforcement. If a prejudicial error is found, the matter shall be reversed and the chancery court shall remand the matter to the director for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken from the chancery court to the Supreme Court in the manner as now required by law, but if a supersedeas is desired by the party appealing to the chancery court, that party may apply for the supersedeas to the chancellor, who shall award a writ of supersedeas, without additional bond, if in the chancellor's judgment material damage is not likely to result. If material damage is likely to result, the chancellor shall require a supersedeas bond as deemed proper, which shall be liable to the state for any damage.
SECTION 18. This act shall take effect and be in force from and after July 1, 1997.