To repeal sections 640.102, 640.115, 640.120, 640.125, 640.130, 644.101, 644.116 and 644.122, RSMo 1994, and section 640.100, RSMo Supp. 1996, relating to public drinking water, and to enact in lieu thereof twelve new sections relating to the same subject with penalty provisions.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

     Section A. Sections 640.102, 640.115, 640.120, 640.125, 640.130, 644.101, 644.116 and 644.122, RSMo 1994, and section 640.100, RSMo Supp. 1996, are repealed and twelve new sections enacted in lieu thereof, to be known as sections 640.100, 640.102, 640.107, 640.115, 640.120, 640.125, 640.130, 640.131, 640.137, 644.101, 644.116 and 644.122, to read as follows:

     640.100. 1. The safe drinking water commission created in section 640.105 shall promulgate rules necessary [for the] to ensure the safe quality and adequate quantity of water dispensed by public drinking water systems, including implementation, administration and enforcement of sections 640.100 to 640.140.

     2. No standard, rule or regulation or any amendment or repeal thereof shall be adopted except after a public hearing to be held by the commission after at least thirty days prior notice in the manner prescribed by the rulemaking provisions of chapter 536, RSMo, and an opportunity given to the public to be heard; the commission may solicit the views, in writing, of persons who may be affected by, knowledgeable about, or interested in proposed rules and regulations, or standards. Any person heard or registered at the hearing, or making written request for notice, shall be given written notice of the action of the commission with respect to the subject thereof. No rule or portion of a rule promulgated under the authority of this chapter shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.

     3. The commission shall promulgate rules and regulations for the certification of public water system operators, backflow assembly testers, and of laboratories conducting tests pursuant to sections 640.100 to 640.140 and for collection of samples and analysis of water furnished by municipalities, corporations, companies, state establishments, federal establishments or individuals to the public. The department of natural resources or the department of health shall, at the request of any supplier, make any analyses or tests required pursuant to the terms of section 192.320, RSMo, and sections 640.100 to 640.140. The department shall collect fees to cover the reasonable cost of laboratory services, both within the department of natural resources and the department of health, laboratory certification and program administration as required by sections 640.100 to 640.140, except that no fees shall be collected from political subdivisions pursuant to this subsection. The laboratory services and program administration fees pursuant to this subsection shall not exceed two hundred dollars for a supplier supplying less than four thousand one hundred service connections, three hundred dollars for supplying less than seven thousand six hundred service connections, five hundred dollars for supplying seven thousand six hundred or more service connections, and five hundred dollars for testing surface water. Such fees shall be deposited in the safe drinking water fund as specified in section 640.110. The analysis of all drinking water required by section 192.320, RSMo, and sections 640.100 to 640.140 shall be made by the department of natural resources laboratories, department of health laboratories or laboratories certified by the department of natural resources.

     4. The department of natural resources shall establish and maintain an inventory of public water supplies and conduct inspections and sanitary surveys of public water systems, including inspection of cross-connection control programs. Such records shall be available for public inspection during regular business hours.

     5. (1) For the purpose of complying with federal requirements for maintaining the primacy of state enforcement of the federal Safe Drinking Water Act, the department is hereby directed to request appropriations from the general revenue fund and all other appropriate sources to fund the activities of the public drinking water program and in addition to the fees authorized pursuant to subsection 3 of this section, an annual fee for each customer service connection with a public water system is hereby authorized to be imposed upon all customers of public water systems in this state. The fees collected shall not exceed the amounts specified in this subsection and the commission may set the fees, by rule, in a lower amount by proportionally reducing all fees charged pursuant to this subsection from the specified maximum amounts. Each customer of a public water system shall pay an annual fee for each customer service connection.

     (2) The annual fee per customer service connection for unmetered customers and customers with meters not greater than one inch in size, shall be based upon the number of service connections in the water system serving that customer, and shall not exceed:

     1 to 1,000 connections ............................. $2.00

     1,001 to 4,000 connections ......................... 1.84

     4,001 to 7,000 connections ......................... 1.67

     7,001 to 10,000 connections ........................ 1.50

     10,001 to 20,000 connections ....................... 1.34

     20,001 to 35,000 connections ....................... 1.17

     35,001 to 50,000 connections ....................... 1.00

     50,001 to 100,000 connections ...................... .84

     More than 100,000 connections ...................... .66.

     (3) The annual user fee for customers having meters greater than one inch but less than or equal to two inches in size shall not exceed five dollars; for customers with meters greater than two inches but less than or equal to four inches in size shall not exceed twenty-five dollars; and for customers with meters greater than four inches in size shall not exceed fifty dollars.

     (4) Customers served by multiple connections shall pay an annual user fee based on the above rates for each connection, except that no single facility served by multiple connections shall pay a total of more than five hundred dollars per year.

     6. Fees imposed pursuant to subsection 5 of this section shall become effective on August 28, 1992, and shall be collected by the public water system serving the customer. The commission shall promulgate rules and regulations on the procedures for billing, collection and delinquent payment. Fees collected by a public water system pursuant to subsection 5 of this section are state fees. The annual fee shall be enumerated separately from all other charges, and shall be collected in monthly, quarterly or annual increments. Such fees shall be transferred to the director of the department of revenue at frequencies not less than quarterly. Two percent of the revenue arising from the fees shall be retained by the public water system for the purpose of reimbursing its expenses for billing and collection of such fees.

     7. Imposition and collection of the fees authorized in subsection 5 of this section shall be suspended on the first day of a calendar quarter if, during the preceding calendar quarter, the federally delegated authority granted to the safe drinking water program within the department of natural resources to administer the Safe Drinking Water Act, 42 U.S.C. 300g-2, is withdrawn. The fee shall not be reinstated until the first day of the calendar quarter following the quarter during which such delegated authority is reinstated.

     8. Fees imposed pursuant to subsection 5 of this section shall expire on September 1, 2002.

     640.102. When used in sections 640.100 to 640.140 and in rules promulgated under authority of sections 640.100 to 640.140, the following words and phrases shall have the meanings ascribed to them in this section:

     (1) "Commission", the safe drinking water commission established in section 640.105;

     (2) "Conference, conciliation and persuasion", a process of verbal or written communications consisting of meetings, reports, correspondence or telephone conferences between authorized representatives of the department and the alleged violator. The process shall, at a minimum, consist of one offer to meet with the alleged violator tendered by the department. During any such meeting, the department and the alleged violator shall negotiate in good faith to eliminate the alleged violation and shall attempt to agree upon a plan to achieve compliance;

     [(2)] (3) "Customer", any person who receives water from a public water system, except those persons receiving water for resale;

     [(3)] (4) "Director", the director of the department of natural resources;

     (5) "Minor violation", a violation which possesses a small potential to harm the environment or human health or cause pollution, was not knowingly committed, and is not defined by the United States Environmental Protection Agency as other than minor;

     (6) "Person", any individual, partnership, copartnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision or any agency, board, department or bureau of the state or federal government or any other legal entity whatever which is recognized by law as the subject of rights and duties;

     [(4)] (7) "Public water system", a system for the provision to the public of [piped] water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least sixty days per calendar year. Such system includes any collection, treatment, storage or distribution facilities used in connection with such system.

     640.107. The safe drinking water commission shall establish criteria for priorities for drinking water loans under the federal Safe Drinking Water Act, as amended, and shall develop an intended use plan for submittal to the clean water commission.

     640.115. 1. Every municipal corporation, private corporation, company, partnership, federal establishment, state establishment or individual supplying or authorized to supply drinking water to the public within the state shall file with the department of natural resources a certified copy of the plans and surveys of the waterworks with a description of the methods of purification, treatment technology and [of the] source from which the supply of water is derived, and no source of supply shall be used without a written permit of approval [from] issued to the continuing operating authority by the department of natural resources, or water dispensed to the public without first obtaining such written permit of approval. The permit shall terminate upon change in ownership of the water system.

     2. Construction, extension or alteration of a public water system shall be in accordance with the rules and regulations of the department of natural resources.

     3. Permit applicants shall show, as part of their application and in accordance with rules and regulations promulgated by the commission, that a permanent organization exists which will serve as the continuing operating authority for the management, operation, replacement, maintenance and modernization of the facility. Such continuing operating authority for all community water systems and nontransient, noncommunity water systems commencing operation after October 1, 1999, shall be required to have and maintain the managerial, technical and financial capability, as determined by the department, to comply with sections 640.100 to 640.140 and regulations promulgated thereunder.

     4. Any community water system or nontransient, noncommunity water system against which an administrative order has been issued for one or more violations of the federal Safe Drinking Water Act, as amended, sections 640.100 to 640.140 or any rule or regulation promulgated thereunder shall be required to show that a permanent organization exists that serves as the continuing operating authority for the facility and that such continuing operating authority has the managerial, technical and financial capability to comply with sections 640.100 to 640.140 and regulations promulgated thereunder. If the water system cannot show to the department's satisfaction that such continuing operating authority exists, or if the water system is not making substantial progress toward compliance, the water system's permit may be revoked. The continuing operating authority may reapply for a permit in accordance with rules promulgated by the commission. The commission may promulgate rules to assure technical, managerial and financial capacity of community and nontransient, noncommunity water systems.

     640.120. 1. The department of natural resources shall require tests or treatment techniques, or both, for those contaminants in water which are included in the state drinking water regulations, for those contaminants included in the national primary drinking water regulations, for those contaminants for which monitoring is otherwise required under the federal Safe Drinking Water Act, and for any other contaminants which the department of natural resources finds may be hazardous to public health.

     2. A water system shall be tested for each contaminant at the frequency required under federal drinking water regulations or a flexible monitoring program allowed under the federal Safe Drinking Water Act, as amended, unless the department determines, after public notice and comment, that testing at a greater frequency for that contaminant is necessary to protect the health of persons served by that system. In an emergency situation, the director may order more frequent testing in order to protect the public health.

     3. Water sampling conducted pursuant to this section for lead or other contaminants suspected to be originating in privately owned plumbing attached to the water system shall include a representative number of first draw samples collected at the tap. Samples taken from private property not part of the facilities owned by a public water system may be taken only with the permission of the owner or lessee of the property.

     4. The department of natural resources may authorize variances and exemptions from state primary water regulations.

     5. Duly authorized representatives of the department of natural resources, with prior notice, may enter at reasonable times upon any private or public property to inspect and investigate conditions relating to the construction, maintenance and operation of a public water supply, and take samples for analysis. If the director or his representative has probable cause to believe that a public water supply system is located on any premises, he shall be granted entry for the purpose of inspection and sample collection. Should entry be denied, a suitably restricted search warrant, upon a showing of probable cause in writing and upon oath, shall be issued by any judge or associate circuit judge having jurisdiction to any representative of the department to enable him to make such inspections.

     6. The department of natural resources shall publish annually a census of Missouri public water systems. The department shall make available for public review, [which shall state] for each public water system, the most recent level found of each contaminant for which it is required to test under subsection 1 of this section. The department shall notify the public annually by press release directed to the newspaper or newspapers of general circulation or radio stations in the area served by each community water system as to the availability of an annual report on the condition of [the] drinking water quality [of the community]. The [press release] report shall describe testing procedures, identify contaminants tested for and the levels of contamination found, and indicate trends which have been observed in water quality in [the community] public water [system] systems.

     7. Only lead-free materials, as determined by the department by rule, shall be used in construction and repair of any public water system and on plumbing in any building in this state which is connected to any public water system; provided, however, that lead may be used to repair lead joints connecting cast iron pipes which were in use prior to August 28, 1989.      640.125. 1. The [supplier of] public water system shall report to the department of natural resources, in accordance with the rules and regulations promulgated under section 192.320, RSMo, and sections 640.100 to 640.140, and to each customer in accordance with the federal Safe Drinking Water Act, as amended, and regulations promulgated thereunder, the results of all tests required by the state drinking water regulations.

     2. Any owner or operator of a public water system subject to the provisions of section 192.320, RSMo, and sections 640.100 to 640.140 shall retain in its premises, or at a convenient location near its premises, for a period of time specified by the department of natural resources the following records: records of operation; records of bacteriological analyses; records of chemical and physical analyses made pursuant to section 192.320, RSMo, and sections 640.100 to 640.140; records of action taken by the system to correct violations of state drinking water rules and regulations; copies of any written reports, summaries or communications relating to sanitary surveys of the system conducted by the system itself, by a private consultant, or by any local, state or federal agency; and records concerning a variance or exemption granted to the system. If a public water system fails to comply with the state drinking water rules and regulations, monitoring requirements, or has been granted a variance or exemption, or fails to comply with the schedule or conditions prescribed pursuant to a variance or exemption, the department of natural resources shall require the supplier of water to notify its users and the public of the extent and nature of the noncompliance. Notification shall be in form and manner prescribed or otherwise approved by the department of natural resources.

     3. When an investigation of any water supply, plant or methods used is undertaken by the department of natural resources, the person in charge of the water supply shall furnish on demand to the department such information as the rules and regulations promulgated require to determine the quality of the water being dispensed.      

     640.130. 1. Whenever the department of natural resources determines that an emergency exists which endangers or could be expected to endanger the public health and safety with regard to drinking water supplies, the department of natural resources may, without notice or hearing, issue an order reciting the existence of such a condition and requiring the person to take such action as will lessen or abate the danger. Notwithstanding any provisions of section 192.320, RSMo, and sections 640.100 to 640.140, such order shall be effective immediately.

     2. At the request of the department, the attorney general may bring an injunctive action or other appropriate action in the name of the people of the state to enforce provisions of section 192.320, RSMo, and sections 640.100 to 640.140, the rules promulgated pursuant to section 192.320, RSMo, and sections 640.100 to 640.140 and the orders of the department of natural resources issued under section 192.320, RSMo, and sections 640.100 to 640.140.

     3. Whenever the department of natural resources determines that a public water system is in violation of sections 640.100 to 640.140, or any rules promulgated pursuant thereunder, the department of natural resources may issue an administrative order requiring the public water system to comply with such rule or statute.

     [3.] 4. The court may impose a [fine] civil penalty of not more than [fifty] five thousand dollars [for the first] per day, or part thereof, for each violation of section 192.320, RSMo, and sections 640.100 to 640.140, including any order issued under this section, or any rules or regulations promulgated pursuant to sections 640.100 to 640.140. [; one hundred dollars for the second violation and for each violation thereafter.] The department shall not seek a civil monetary penalty under this section for a violation where an administrative penalty was assessed and collected. Any offer of settlement to resolve a civil penalty under this section shall be in writing, shall state that an action for imposition of a civil penalty may be initiated by the attorney general under authority of this section and shall identify any dollar amount as an offer of settlement which shall be negotiated in good faith through conference, conciliation and persuasion.

     [4.] 5. Any person aggrieved by an emergency order may appeal within thirty days after the issuance of the order to the circuit court of the county in which the public water [supply] system is located or if the public water [supply] system is located in more than one county, to the circuit court of any such county. [The circuit court shall within ten days after the filing of the appeal hear the cause and determine the same.]      640.131. 1. In addition to any other remedy provided by law, upon a determination by the director that a provision of sections 640.100 to 640.140 or a standard, limitation, order, rule or regulation promulgated thereunder, or a term or condition of any permit has been violated, the director may issue an order assessing an administrative penalty upon the violator under this section. An administrative penalty shall not be imposed until the director has sought to resolve the violations through conference, conciliation and persuasion, and shall not be imposed for minor violations of sections 640.100 to 640.140 or minor violations of any standard, limitation, order, rule or regulation promulgated pursuant to sections 640.100 to 640.140 or minor violations of any term or condition of a permit issued pursuant to sections 640.100 to 640.140. If the violation is resolved through conference, conciliation and persuasion, no administrative penalty shall be assessed unless the violation has caused, or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution, or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor.

     2. The commission shall promulgate rules and regulations for the assessment of administrative penalties. The maximum amount of administrative penalties assessed under this section for public water systems serving ten thousand or more persons shall be no more than five thousand dollars per day, or part thereof, for each violation. Administrative penalties for public water systems serving less than ten thousand persons shall be no more than two hundred fifty dollars per day, or part thereof, for each violation. The maximum amount of administrative penalties that may be assessed on a public water system, per violation, is twenty-five thousand dollars. In determining the amount of the administrative penalty, the department shall take into consideration all relevant circumstances, including, but not limited to, the harm or potential harm which the violation causes or may cause, the violator's previous compliance record, the nature and persistence of the violation, any corrective actions taken, and any other factors which the department may reasonably deem relevant.

     3. Any order assessing an administrative penalty shall state that an administrative penalty is being assessed under this section and that the person subject to the penalty may appeal as provided by this section. Any such order which fails to state the law or regulation under which the penalty is being sought, the manner of collection or rights of appeal shall result in the state's waiving any right to collection of the penalty. An administrative penalty shall be paid within sixty days from the date of issuance of the order assessing the penalty. Any person subject to an administrative penalty may appeal to the commission. Any appeal shall stay the due date of such administrative penalty until the appeal is resolved. Any person who fails to pay an administrative penalty by the final due date shall be liable to the state for a surcharge of fifteen percent of the penalty plus ten percent per annum on any amounts owed. Any administrative penalty paid pursuant to this section shall be handled in accordance with section 7 of article IX of the state constitution. An action may be brought in the appropriate circuit court to collect any unpaid administrative penalty, and for attorney's fees and costs incurred directly in the collection thereof.

     4. An administrative penalty shall not be increased in those instances where department action, or failure to act, has caused a continuation of the violation that was a basis for the penalty. Any administrative penalty shall be assessed within two years following the department's initial discovery of such alleged violation, or from the date the department in the exercise of ordinary diligence should have discovered such alleged violation.

     5. Any final order imposing an administrative penalty is subject to judicial review upon the filing of a petition pursuant to section 536.100, RSMo, by any person subject to the administrative penalty. No judicial review shall be available, however, until all administrative remedies are exhausted.

     6. The state may elect to assess an administrative penalty, or, in lieu thereof, to request that the attorney general or prosecutor file an appropriate legal action seeking a civil penalty in the appropriate circuit court.     

     640.137. 1. The department may, upon availability of appropriate funding, determine and specify the boundaries of the areas in the state from which one or more public water systems receive supplies of drinking water, using reasonably available hydrogeologic information and any other information the department deems appropriate. The department shall identify the origins of drinking water contaminants for which monitoring is required and any unregulated contaminants which the department has determined may present a threat to public health to determine the susceptibility of the public water system in the specified area to such contaminants. The department may use, to the extent appropriate, information from existing programs to meet the requirements of this section including, but not limited to, vulnerability assessments, sanitary surveys, monitoring, wellhead protection, or assessment of surface or groundwater sources under other federal or state laws or rules. The department shall make the results of the source water assessments available to the public.

     2. The department may establish a source water protection petition program under which the owner or operator of a community water system or a political subdivision of the state may request the department's assistance in the development of a voluntary, incentive-based partnership among the persons likely to be affected by the recommendations of the partnership. The commission may promulgate rules to implement this voluntary program.

     644.101. The state may provide assistance, as funds are available, pursuant to this chapter, to any county, municipality, public water district, public sewer district, or any combination of the same to assist them in the construction of public drinking water and water pollution control projects as authorized by the clean water commission. The state may provide assistance pursuant to this chapter, including but not limited to the purchase of water and/or wastewater revenue or general obligation bonds, bonds of any county, instrumentality of the state, state entity, municipality, public sewer district, public water district, community water system, nonprofit noncommunity water system or any combination of the same.

     644.116. The commission's determination of the relative need, the priority of projects, and the standards of construction shall be based on rules and regulations as adopted by the commission pursuant to this chapter for wastewater projects. The clean water commission, in consultation with the safe drinking water commission, shall approve the intended use plan.

     644.122. 1. There is hereby created in the state treasury for use of the commission a fund to be known as "The Water and Wastewater Loan Fund". All moneys received by the department for activities authorized in subdivisions (1), (3), (4), (5), and (6) of subsection 2 of this section shall be deposited in the fund.

     2. The commission is hereby authorized to expend or use moneys deposited in the water and wastewater loan fund, upon appropriation by the general assembly to the department, for one or more of the following purposes as the same relate to the construction of public drinking water and water pollution control projects as authorized by the commission pursuant to this chapter:

     (1) To make loans to any county, instrumentality of the state, municipality, public water district, public sewer district, community water system, nonprofit noncommunity water system or any combination of the same;

     (2) For the costs of administering programs and projects financed, in part, by the water and wastewater loan fund;

     (3) As a source of revenue or security for the payment of principal and interest on revenue or general obligation bonds or notes issued by the state or any agency or instrumentality thereof;

     (4) To buy or refinance the debt obligation of any county, instrumentality of the state, municipality, public water district, public sewer district, community water system, nonprofit noncommunity water system, or any combination of the same;

     (5) To guarantee, or purchase insurance for, notes or obligations of any county, instrumentality of the state, municipality, public water district, public sewer district, community water system, nonprofit noncommunity water system or any combination of the same, where such action would improve credit market access or reduce interest rates;

     (6) To provide loan guarantees for similar revolving funds established by any county, instrumentality of the state, municipality, public water district, public sewer district, community water system, nonprofit noncommunity water system or any combination of the same; and

     (7) To earn interest on the water and wastewater loan fund accounts.

     3. The unexpended balance in the water and wastewater loan fund at the end of the biennium shall not be transferred to the ordinary revenue fund of the state treasury and accordingly shall be exempt from the provisions of section 33.080, RSMo, relating to transfer of funds to the ordinary revenue funds of the state by the state treasurer.

     4. For purposes of this section, public drinking water and water pollution control projects shall include, but not be limited to, the planning, design, and construction of [publicly owned] water and/or publicly owned wastewater facilities and the planning, design, and construction of nonpoint source control facilities identified in a nonpoint source control plan prepared by the department of natural resources.