§ 8-5-702 - Remedies for chronic violations.
8-5-702. Remedies for chronic violations.
(a) The Arkansas Department of Environmental Quality may petition a chancery court with competent jurisdiction and proper venue to remedy chronic violations by any common sewage system.
(b) The court may order any relief authorized by applicable laws, including:
(1) The imposition of civil penalties;
(2) The revocation of the entity's permit; and
(3) A court order compelling the entity supplying potable water to the common sewage system to cut off the flow of potable water.
(c) (1) If the court finds that circumstances prevent the owner or operator of a common sewage system from operating and maintaining the system in compliance with the law, the Arkansas Department of Environmental Quality shall nominate two (2) possible receivers, of which the court may appoint one (1) to operate the system, subject to the continuing jurisdiction of the court.
(2) Any such receiver appointed by the court may exercise any and all legal powers and rights assigned by law to the original owner or operator of the common sewage system, but is immune to any personal liability associated with the operation of the common sewage system.
(3) Once a receiver is appointed by the court to operate the common sewage system, the court may make available to the receiver funds pledged by the common sewage system under the minimal financial assurance provision of this subchapter, and, in addition, the receiver may assess rates as necessary to operate and maintain the system. The receiver is explicitly authorized to operate the common sewage system with the proceeds collected from the facilities which are connected to such common sewage system. The receiver shall receive a reasonable professional fee for this service, which shall be determined by the court. The proceeds collected by the receiver shall be maintained in an account at a national bank located within the State of Arkansas. The receiver shall report to the court, from time to time, how the proceeds have been collected and spent by the receiver.
(d) (1) If the court determines that the permitted or registered entity cannot equitably satisfy the provisions of this subchapter or that no feasible alternatives exist, the court shall so certify that determination to the Arkansas Department of Environmental Quality, which shall terminate the entity's permit, and the court shall request a review by the Director of the Department of Health of the public health impact of an order compelling the entity supplying potable water to the common sewage system to cut off the flow of potable water.
(2) (A) If the Director of the Department of Health determines that a greater health hazard exists from the malfunctioning sewage system than from the discontinuance of potable water service, then the Director of the Department of Health shall so certify this determination to the court.
(B) The court shall then issue an order compelling the receiver to notify all users of such system, including landowners and tenants, of the Director of the Department of Health's determination.
(C) Upon evidence of reasonable notice, the court shall then issue the order to cut off the flow of potable water.
(e) The Arkansas Department of Environmental Quality is authorized to institute a civil action in any court of competent jurisdiction to accomplish any or all of the following:
(1) Restrain any violation of or compel compliance with the provisions of this subchapter and of rules, regulations, orders, permits, or plans issued pursuant thereto;
(2) Affirmatively order remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of this subchapter;
(3) Recover all costs, expenses, and damages to the Arkansas Department of Environmental Quality and any other agency or subdivision of the state in enforcing or effectuating the provisions of this subchapter, including, but not limited to, natural resource damages;
(4) Assess civil penalties in an amount not to exceed ten thousand dollars ($10,000) per day for violations of this subchapter and of any rules, regulations, permits, or plans issued pursuant thereto; or
(5) Recover civil penalties assessed pursuant to 8-4-103(c).
(f) (1) In addition to the remedies provided in subsections (a)-(e) of this section, the Arkansas Department of Environmental Quality shall have the authority to prohibit new or additional sewer line connections onto a common sewage system meeting the criteria established by 8-5-701.
(2) Once the Arkansas Department of Environmental Quality is satisfied that the common sewage system is in compliance with state and federal law, the Arkansas Department of Environmental Quality may authorize new or additional sewer line connections onto the common sewage system.