Violations & Enforcement

Page Index

Violations

Violation Types

Enforcement

Enforcement Targeting Tool

 

Violations

Violations are issued when a public water system does not meet all of the requirements mandated by the Safe Drinking Water Act or the Maine Rules Related to Drinking Water.

Initial violations result in a Notice of Noncompliance, or “NON”, advising the PWS of the drinking water requirements that were missed and the steps and timeline to be followed for returning to compliance. Quite often these will include submitting missing samples and/or required documentation as well as certification that a public notice was posted. Public notices advise consumers of the nature of the violation and the PWS’s plan to correct the lapse in compliance.

If the instructions contained in the NON are followed, then the PWS will return to compliance and no further action is necessary. However, when a PWS does not follow the instructions for returning to compliance after a NON, the DWP begins the administrative enforcement process, outlined in Maine statute and the Maine Rules Relating to Drinking Water.

Health-Based and Non-Health-Based Violations

• Health-based violations are issued when water sample results show the presence of contaminant(s) at concentrations above a maximum contaminant level (MCL) or when a treatment technique (TT) requirement is not met. The maximum contaminant level is set by the EPA and is based on human health and safety standards. Treatment techniques are specified processes intended to reduce the level of a contaminant.


• Non-health-based violations are violations that are not directly related to human health and safety. These types of violations typically arise when public water systems fail to test drinking water for a regulated contaminant (failure to monitor), neglect to report test results to the DWP, and/or fail to notify their customers of violations of the SDWA.

 

Violation Types  

Maximum Contaminant Level (MCL) Exceedance

A maximum contaminant level is the highest level of a contaminant that is allowed in drinking water. These levels are set as close as feasible to the maximum contaminant level goal, or MCLG. The MCLG is the level of a contaminant in drinking water below which there is no known or expected health risk. When the MCL level is set for a contaminant, public health, available technology, and cost are all taken into consideration. When a PWS exceeds the MCL for any regulated contaminant, they are in violation of drinking water standards.

Treatment Technique (TT) Failure

Treatment techniques are water treatment processes that reduce the level of contamination in drinking water. For certain contaminants, the EPA establishes treatment techniques instead of an MCL, such as those established for viruses, bacteria, and turbidity under the Surface Water Treatment Rule. Other rules have established treatment techniques as well, such as conducting lead education or creating corrosion control treatment plans per the Lead and Copper Rule, or failing to complete a level assessment or corrective actions under the Revised Total Coliform Rule (RTCR). Failure to correctly follow treatment techniques is a violation.

Failure to Monitor (FTM)

All public water systems are required to regularly sample and test their water to ensure that it meets federal and State drinking water standards, and is safe to drink. Every spring, the DWP provides water systems with their annual testing requirements. Water tests must be performed by an accredited laboratory, and the test results must be submitted to the DWP. Failure to sample and test water as detailed in a PWS sampling schedule is a violation.

Failure to Report

Public Water Systems are expected to generate a series of operational and maintenance reports over the course of a year, augmenting their scheduled sample tests. Some scheduled activities, such as seasonal start-up procedures, require the PWS to report their completion to the DWP. Furthermore, most violations include a reporting requirement, obliging the PWS to notify their consumers when a drinking water standard has been violated and the steps the system will take to correct the issue. Additionally, a PWS is required to notify the DWP when instructions included in a NON have been followed and the system is returning to compliance. Failure to provide required notification is a violation.

 

Enforcement

Enforcement action against a PWS occurs when the system violates federal or State drinking water regulations and does not address the non-compliance issue in a timely manner. Under its primacy agreement with EPA, as well as the Maine Water for Human Consumption Act, DWP is authorized to enforce State and federal drinking water regulations using administrative enforcement actions to address any PWS violations that remain out of compliance after an initial NON is mailed.

The following provides an overview of this administrative enforcement process.

1. Administrative Consent Order: In the rare occurrence that a PWS fails to meet the deadlines and requirements of the NON, the DWP will offer the system an Administrative Consent Order (“consent order”). A consent order is a signed agreement between the DWP and the PWS, wherein both parties agree to negotiated terms for bringing the PWS back into compliance. A schedule for compliance is set within the order for the PWS to follow.

   Consent orders include deadlines for both formalizing an agreement for returning to compliance as well as addressing outstanding violations. If any of those deadlines are missed, and the PWS has not requested an extension, the DWP may proceed to the next enforcement stage.



2. Administrative Compliance Order and Conditional Penalty Assessment: Should a PWS miss a deadline (without being granted an extension) or fail to meet the terms of the finalized consent order, an Administrative Compliance Order (“compliance order”) is issued.

   A compliance order directs a PWS to return to compliance on a strict set of actions and deadlines. The terms of a compliance order are not negotiable; they generally detail a list of unresolved PWS violations, along with specific directives for resolving those violations. The order is final and binding; however, because it is a final agency action, the PWS may request an administrative hearing.



3. Administrative Penalty Assessment: An Administrative Penalty Assessment is an enforcement tool utilized by the DWP that enables the Program to assess monetary penalties (fines) should a PWS fail to meet its obligations under the compliance order. These penalties are determined by the severity of the accrued violations covered by the compliance order. If the DWP did not include an administrative penalty with the compliance order, the Program may assess an administrative penalty to the PWS after the system fails to meet the terms of the compliance order.

   If the PWS fails to pay a penalty within 30 days, DWP will refer the PWS to the Office of the Maine Attorney General (OAG) for civil enforcement, which could result in court action, including complaints for injunctive relief and civil penalties, as well as payment of attorney fees.

4. Referral to the Maine Attorney General (OAG) or the Environmental Protection Agency (EPA): The Maine CDC will refer a pubic water system to either the OAG or EPA when the above stages of administrative enforcement actions are exhausted and the PWS remains out of compliance with drinking water regulations.

   In instances where a PWS is referred to the OAG, a civil complaint will be filed against the PWS in District Court, seeking an order to address outstanding violations as well as administrative and civil penalties (and possible attorney fees).

   Ultimately, if the PWS does not comply with a Court Order, the Court may issue a Default Judgment that could include additional fines and penalties and, eventually, a warrant for the arrest of the PWS owner.

   In cases referred to the EPA, that agency will issue an administrative order requiring the PWS to take specific actions to return to compliance. These actions could include collecting samples, reporting results, installing water quality treatment, hiring a water operator, etc. However, once referred to the EPA, the PWS is subject to federal enforcement action under federal law, which could result in substantially higher fines and penalties than those under State law.

 

Enforcement Targeting Tool

The EPA’s Enforcement Targeting Tool (ETT) is a method for determining which public water systems require enforcement actions. The tool extracts data from each primacy agency in the country, including the DWP, in order to identify public water systems with violations that do not appear to have been resolved or addressed. It uses a set formula based on violation type and on the length of time the violations have remained unresolved.

Using this formula, public water systems are prioritized for enforcement action in an effort to facilitate a return to compliance. Any public water system scoring 11 points or higher is considered “priority” status. The DWP must address or resolve priority status systems within 60 days of the EPA’s quarterly Enforcement Targeting Tool report. Each quarter, the DWP researches the accuracy of all of Maine’s priority-status public water systems on the Enforcement Targeting Tool list and reports progress or status of each system to the EPA.

• Formal Enforcement

  EPA has a very specific set of parameters that qualify actions as formal enforcement. Examples of acceptable enforcement measures employed by the DWP include administrative consent orders, administrative compliance orders and administrative penalties. For Maine to maintain its primacy status, the DWP must properly initiate these enforcement actions against those PWSs that violated drinking water regulations and failed to return to compliance within the specific deadlines outlined in the initial Notices of Noncompliance.

• ETT Scoring

  The ETT assigns points for each unaddressed violation at a public water system within the last 5 years, which are added together to create a total score for each PWS. The specific formula is the Sum of (S1 + S2 + S3 + …) + n. “S” means the violation severity, generally based on the Public Notice Tiers in 40 CFR 140, Subpart Q and the Administrative Penalty Schedule in Maine’s Rules Relating to Drinking Water at 10-144 CMR 231, Section 1-C (I). Therefore, those violations causing more threat to public health, such as exceeding the Maximum Contaminant Level for Coliform, will receive a larger “S” factor than a CCR Rule violation. And the “n” values equal the maximum number of years since the PWS’s oldest unaddressed violation. For example, if the PWS’s oldest unaddressed violation in the past five years occurred in the current calendar year, an “n” factor of zero is assigned. If it occurred two years ago, an “n” factor of 2 is assigned.

• Red Flags

  The ideal score for any PWS is zero; however the EPA requires the DWP to address any PWS with a score of 11 or higher, because they are considered “Nationally Significant.” Each quarter, the DWP must research the compliance status of each PWS in Maine with a nationally significant score, and report to EPA whether the PWS returned to compliance, whether the PWS violations were addressed by enforcement, whether the PWS remains active, along with causes of the violations and plans for resolving the violations, if they remain outstanding.

• ETT accuracy

  Less than 30% of the PWSs on the list actually require DWP enforcement. Why not 100% accurate? There are a number of factors, some of which include the time lag. Data used for the report is at least three months old, so, during that time, the PWS may have returned to compliance, received an administrative order or closed. Another possible factor contributing to inaccuracy is EPA’s data extraction not detecting the DWP enforcement actions.

• PWS on the ETT

  View the Quarterly Report (PDF).  Please note: Due to the manner in which EPA freezes and extracts the data from Maine’s database to calculate the ETT, the data used to calculate the list is always at least one quarter old.

For more information about enforcement or the ETT, contact Sara Flanagan:  Email, or phone (207) 441-9371

Updated 5/11/2023