First Substitute S.B. 64

Senator Luz Robles proposes the following substitute bill:

1 AIR QUALITY RULES AND PENALTIES
2 2014 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Luz Robles
5 House Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies the rulemaking authority of the Division of Air Quality, modifies
10 regulations regarding the incineration of medical waste, and extends the statute of
11 limitations for violations of the Environmental Quality Code.
12 Highlighted Provisions:
13 This bill:
14 . repeals provisions prohibiting the Air Quality Board from making rules that are
15 more stringent than federal regulations;
16 . increases civil penalties against a person who violates the Air Conservation Act;
17 . beginning January 1, 2015, prohibits the incineration of medical waste within a
18 five-mile radius of a residential area;
19 . states that the statute of limitations for a violation of the Environmental Quality
20 Code is five years; and
21 . makes technical changes.
22 Money Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None

26 Utah Code Sections Affected:
27 AMENDS:
28 19-2-115 , as last amended by Laws of Utah 2012, Chapter 360
29 19-6-122 , as renumbered and amended by Laws of Utah 1991, Chapter 112
30 78B-2-302 , as last amended by Laws of Utah 2010, Chapter 89
31 ENACTS:
32 78B-2-307.5 , Utah Code Annotated 1953
33 REPEALS:
34 19-2-106 , as renumbered and amended by Laws of Utah 1991, Chapter 112
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 19-2-115 is amended to read:
38 19-2-115. Violations -- Penalties -- Reimbursement for expenses.
39 (1) As used in this section, the terms "knowingly," "willfully," and "criminal
40 negligence" shall mean as defined in Section 76-2-103 .
41 (2) (a) A person who violates this chapter, or any rule, order, or permit issued or made
42 under this chapter is subject in a civil proceeding to a penalty not to exceed [$10,000] $37,000
43 per day for each violation.
44 (b) Subsection (2)(a) also applies to rules made under the authority of Section
45 19-2-104 , for implementation of 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
46 Subchapter II - Asbestos Hazard Emergency Response.
47 (c) Penalties assessed for violations described in 15 U.S.C.A. 2647, Toxic Substances
48 Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the
49 amounts specified in that section and shall be used in accordance with that section.
50 (3) A person is guilty of a class A misdemeanor and is subject to imprisonment under
51 Section 76-3-204 and a fine of not more than [$25,000] $45,000 per day of violation if that
52 person knowingly violates any of the following under this chapter:
53 (a) an applicable standard or limitation;
54 (b) a permit condition; or
55 (c) a fee or filing requirement.
56 (4) A person is guilty of a third degree felony and is subject to imprisonment under

57 Section 76-3-203 and a fine of not more than [$25,000] $45,000 per day of violation who
58 knowingly:
59 (a) makes any false material statement, representation, or certification, in any notice or
60 report required by permit; or
61 (b) renders inaccurate any monitoring device or method required to be maintained by
62 this chapter or applicable rules made under this chapter.
63 (5) Any fine or penalty assessed under Subsections (2) or (3) is in lieu of any penalty
64 under Section 19-2-109.1 .
65 (6) A person who willfully violates Section 19-2-120 is guilty of a class A
66 misdemeanor.
67 (7) A person who knowingly violates any requirement of an applicable implementation
68 plan adopted by the board, more than 30 days after having been notified in writing by the
69 director that the person is violating the requirement, knowingly violates an order issued under
70 Subsection 19-2-110 (1), or knowingly handles or disposes of asbestos in violation of a rule
71 made under this chapter is guilty of a third degree felony and subject to imprisonment under
72 Section 76-3-203 and a fine of not more than [$25,000] $45,000 per day of violation in the case
73 of the first offense, and not more than [$50,000] $75,000 per day of violation in the case of
74 subsequent offenses.
75 (8) (a) As used in this section:
76 (i) "Hazardous air pollutant" means any hazardous air pollutant listed under 42 U.S.C.
77 Sec. 7412 or any extremely hazardous substance listed under 42 U.S.C. Sec. 11002(a)(2).
78 (ii) "Organization" means a legal entity, other than a government, established or
79 organized for any purpose, and includes a corporation, company, association, firm, partnership,
80 joint stock company, foundation, institution, trust, society, union, or any other association of
81 persons.
82 (iii) "Serious bodily injury" means bodily injury which involves a substantial risk of
83 death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
84 protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
85 (b) (i) A person is guilty of a class A misdemeanor and subject to imprisonment under
86 Section 76-3-204 and a fine of not more than [$25,000] $45,000 per day of violation if that
87 person with criminal negligence:

88 (A) releases into the ambient air any hazardous air pollutant; and
89 (B) places another person in imminent danger of death or serious bodily injury.
90 (ii) As used in this Subsection (8)(b), "person" does not include an employee who is
91 carrying out the employee's normal activities and who is not a part of senior management
92 personnel or a corporate officer.
93 (c) A person is guilty of a second degree felony and is subject to imprisonment under
94 Section 76-3-203 and a fine of not more than [$50,000] $75,000 per day of violation if that
95 person:
96 (i) knowingly releases into the ambient air any hazardous air pollutant; and
97 (ii) knows at the time that the person is placing another person in imminent danger of
98 death or serious bodily injury.
99 (d) If a person is an organization, it shall, upon conviction of violating Subsection
100 (8)(c), be subject to a fine of not more than $1,000,000.
101 (e) (i) A defendant who is an individual is considered to have acted knowingly under
102 Subsections (8)(c) and (d), if:
103 (A) the defendant's conduct placed another person in imminent danger of death or
104 serious bodily injury; and
105 (B) the defendant was aware of or believed that there was an imminent danger of death
106 or serious bodily injury to another person.
107 (ii) Knowledge possessed by a person other than the defendant may not be attributed to
108 the defendant.
109 (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
110 knowledge, including evidence that the defendant took affirmative steps to be shielded from
111 receiving relevant information.
112 (f) (i) It is an affirmative defense to prosecution under this Subsection (8) that the
113 conduct charged was freely consented to by the person endangered and that the danger and
114 conduct charged were reasonably foreseeable hazards of:
115 (A) an occupation, a business, a profession; or
116 (B) medical treatment or medical or scientific experimentation conducted by
117 professionally approved methods and the other person was aware of the risks involved prior to
118 giving consent.

119 (ii) The defendant has the burden of proof to establish any affirmative defense under
120 this Subsection (8)(f) and shall prove that defense by a preponderance of the evidence.
121 (9) (a) Except as provided in Subsection (9)(b), and unless prohibited by federal law,
122 all penalties assessed and collected under the authority of this section shall be deposited in the
123 General Fund.
124 (b) The department may reimburse itself and local governments from money collected
125 from civil penalties for extraordinary expenses incurred in environmental enforcement
126 activities.
127 (c) The department shall regulate reimbursements by making rules in accordance with
128 Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
129 (i) define qualifying environmental enforcement activities; and
130 (ii) define qualifying extraordinary expenses.
131 Section 2. Section 19-6-122 is amended to read:
132 19-6-122. Facilities to meet local zoning requirements -- Restriction on
133 incineration of medical waste.
134 (1) Notwithstanding any provisions of this part, persons seeking to operate a
135 commercial hazardous waste disposal facility or site shall meet all local zoning requirements
136 before beginning operations.
137 (2) Beginning on January 1, 2015, incineration of medical waste is prohibited within a
138 five-mile radius of a residential area.
139 Section 3. Section 78B-2-302 is amended to read:
140 78B-2-302. Within one year.
141 An action may be brought within one year:
142 (1) for liability created by the statutes of a foreign state;
143 (2) upon a statute for a penalty or forfeiture where the action is given to an individual,
144 or to an individual and the state, except when the statute imposing it prescribes a different
145 limitation;
146 (3) except as provided in Section 78B-2-307.5 , upon a statute, or upon an undertaking
147 in a criminal action, for a forfeiture or penalty to the state;
148 (4) for libel, slander, false imprisonment, or seduction;
149 (5) against a sheriff or other officer for the escape of a prisoner arrested or imprisoned

150 upon either civil or criminal process;
151 (6) against a municipal corporation for damages or injuries to property caused by a
152 mob or riot;
153 (7) except as otherwise expressly provided by statute, against a county legislative body
154 or a county executive to challenge a decision of the county legislative body or county
155 executive, respectively; or
156 (8) on a claim for relief or a cause of action under Title 63L, Chapter 5, Utah Religious
157 Land Use Act.
158 Section 4. Section 78B-2-307.5 is enacted to read:
159 78B-2-307.5. Within five years.
160 An action may be brought within five years upon a statute in Title 19, Environmental
161 Quality Code, for a forfeiture or penalty to the state.
162 Section 5. Repealer.
163 This bill repeals:
164 Section 19-2-106 , Rulemaking authority and procedure.