H.B. 182 Enrolled

AIR CONSERVATION ACT AMENDMENTS
2003 GENERAL SESSION
STATE OF UTAH
Sponsor: Michael T. Morley
This act modifies the penalties provision of the Air Conservation Act by making a
knowing violation of asbestos work practices a third degree felony. The act also makes
certain technical changes.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
19-2-115, as last amended by Chapter 271, Laws of Utah 1998
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 19-2-115 is amended to read:
19-2-115. Violations -- Penalties -- Reimbursement for expenses.
(1) [The] As used in this section, the terms "knowingly," "willfully," and "criminal
negligence" shall mean as defined in Section 76-2-103 .
(2) (a) [Any] A person who violates this chapter, or any rule, order, or permit issued or
[adopted] made under this chapter is subject in a civil proceeding to a penalty not to exceed
$10,000 per day for each violation.
(b) Subsection (2)(a) also applies to rules [adopted] made under the authority of
Section 19-2-104 , for implementation of 15 U.S.C.A. 2601 et seq., Toxic Substances Control
Act, Subchapter II - Asbestos Hazard Emergency Response.
(c) Penalties assessed for violations described in 15 U.S.C.A. 2647, Toxic Substances
Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the
amounts specified in that section and shall be used in accordance with [the provisions of] that
section.
(3) A person is guilty of a class A misdemeanor and is subject to imprisonment under
Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person
knowingly violates any of the following under this chapter:
(a) an applicable standard or limitation;

(b) a permit condition; or
(c) a fee or filing requirement.
(4) A person is guilty of a third degree felony and is subject to imprisonment under
Section 76-3-203 and a fine of not more than $25,000 per day of violation who knowingly:
(a) makes any false material statement, representation, or certification, in any notice or
report required by permit; or
(b) renders inaccurate any monitoring device or method required to be maintained by this
chapter or applicable rules made under this chapter.
(5) Any fine or penalty assessed under Subsections (2) or (3) is in lieu of any penalty
under Section 19-2-109.1 .
(6) [Any] A person who willfully violates Section 19-2-120 is guilty of a class A
misdemeanor.
(7) [Any] A person who knowingly violates any requirement of an applicable
implementation plan adopted by the board, more than 30 days after having been notified in
writing by the executive secretary that [he] the person is violating the requirement, [or]
knowingly violates an order issued under [Section] Subsection 19-2-110 (1)(a), or knowingly
handles or disposes of asbestos in violation of a rule made under this chapter is guilty of a third
degree felony and subject to imprisonment under Section 76-3-203 and a fine of not more than
$25,000 per day of violation in the case of the first offense, and not more than $50,000 per day of
violation in the case of subsequent offenses.
(8) (a) As used in this section:
(i) "Hazardous air pollutant" means any hazardous air pollutant listed [pursuant to]
under 42 USC 7412 or any extremely hazardous substance listed [pursuant to] under 42 USC
11002(a)(2).
(ii) "Organization" means a legal entity, other than a government, established or
organized for any purpose, and includes a corporation, company, association, firm, partnership,
joint stock company, foundation, institution, trust, society, union, or any other association of
persons.

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(iii) "Serious bodily injury" means bodily injury which involves a substantial risk of
death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(b) (i) A person is guilty of a class A misdemeanor and subject to imprisonment under
Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person with
criminal negligence:
(A) releases into the ambient air any hazardous air pollutant; and
(B) places another person in imminent danger of death or serious bodily injury.
(ii) As used in this Subsection (8)(b), "person" does not include an employee who is
carrying out [his] the employee's normal activities and who is not a part of senior management
personnel or a corporate officer.
(c) A person is guilty of a second degree felony and is subject to imprisonment under
Section 76-3-203 and a fine of not more than $50,000 per day of violation if that person:
(i) knowingly releases into the ambient air any hazardous air pollutant; and
(ii) knows at the time that he is placing another person in imminent danger of death or
serious bodily injury.
(d) If a person is an organization, it shall, upon conviction of violating Subsection (8)(c),
be subject to a fine of not more than $1,000,000.
(e) (i) A defendant who is an individual is considered to have acted knowingly under
Subsections (8)(c) and (d), if:
(A) the defendant's conduct placed another person in imminent danger of death or serious
bodily injury; and
(B) the defendant was aware of or believed that there was an imminent danger of death
or serious bodily injury to another person.
(ii) Knowledge possessed by a person other than the defendant may not be attributed to
the defendant.
(iii) Circumstantial evidence may be used to prove that the defendant possessed actual
knowledge, including evidence that the defendant took affirmative steps to be shielded from

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receiving relevant information.
(f) (i) It is an affirmative defense to prosecution under this Subsection (8) that the
conduct charged was freely consented to by the person endangered and that the danger and
conduct charged were reasonably foreseeable hazards of:
(A) an occupation, a business, a profession; or
(B) medical treatment or medical or scientific experimentation conducted by
professionally approved methods and the other person was aware of the risks involved prior to
giving consent.
(ii) The defendant has the burden of proof to establish any affirmative defense under this
Subsection (8)(f) and must prove that defense by a preponderance of the evidence.
(9) (a) Except as provided in Subsection (9)(b), and unless prohibited by federal law, all
penalties assessed and collected under the authority of this section shall be deposited in the
General Fund.
(b) The department may reimburse itself and local governments from monies collected
from civil penalties for extraordinary expenses incurred in environmental enforcement activities.
(c) The department shall regulate reimbursements by making rules in accordance with
Title 63, Chapter 46a, Utah Administrative Rulemaking Act, that:
(i) define qualifying environmental enforcement activities; and
(ii) define qualifying extraordinary expenses.

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