This document includes Senate Committee Amendments incorporated into the bill on Thu, Feb 26, 2015 at 1:26 PM by lpoole.



Chief Sponsor: Luz Escamilla

House Sponsor: Rebecca Chavez-Houck


8     General Description:
9          This bill modifies the penalties for a violation of Title 19, Chapter 2, Air Conservation
10     Act, and extends the statute of limitations for a violation of Title 19, Environmental
11     Quality Code.
12     Highlighted Provisions:
13          This bill:
14          ▸     increases civil penalties against a person who violates the Air Conservation Act;
15          ▸     authorizes the Department of Environmental Quality to use a portion of penalty
16     money for environmental remediation;
17          ▸     states that the statute of limitations for a violation of the Environmental Quality
18     Code is five years;
19          ▸     authorizes the Department of Environmental Quality to retain a percentage of the
20     money collected from civil penalties to use on environmental programs; 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          78B-2-302, as last amended by Laws of Utah 2010, Chapter 89
30     ENACTS:
31          78B-2-307.5, Utah Code Annotated 1953

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 19-2-115 is amended to read:
35          19-2-115. Violations -- Penalties -- Reimbursement for expenses.
36          (1) As used in this section, the terms "knowingly," "willfully," and "criminal
37     negligence" shall mean as defined in Section 76-2-103.
38          (2) (a) A person who violates this chapter, or any rule, order, or permit issued or made
39     under this chapter is subject in a civil proceeding to a penalty not to exceed [$10,000] $37,000
40     per day for each violation.
41          (b) Subsection (2)(a) also applies to rules made under the authority of Section
42     19-2-104, for implementation of 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
43     Subchapter II - Asbestos Hazard Emergency Response.
44          (c) Penalties assessed for violations described in 15 U.S.C.A. 2647, Toxic Substances
45     Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the
46     amounts specified in that section and shall be used in accordance with that section.
47          (3) A person is guilty of a class A misdemeanor and is subject to imprisonment under
48     Section 76-3-204 and a fine of not more than [$25,000] $45,000 per day of violation if that
49     person knowingly violates any of the following under this chapter:
50          (a) an applicable standard or limitation;
51          (b) a permit condition; or
52          (c) a fee or filing requirement.
53          (4) A person is guilty of a third degree felony and is subject to imprisonment under
54     Section 76-3-203 and a fine of not more than [$25,000] $45,000 per day of violation who
55     knowingly:
56          (a) makes any false material statement, representation, or certification, in any notice or
57     report required by permit; or
58          (b) renders inaccurate any monitoring device or method required to be maintained by

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

90          (c) A person is guilty of a second degree felony and is subject to imprisonment under
91     Section 76-3-203 and a fine of not more than [$50,000] $75,000 per day of violation if that
92     person:
93          (i) knowingly releases into the ambient air any hazardous air pollutant; and
94          (ii) knows at the time that the person is placing another person in imminent danger of
95     death or serious bodily injury.
96          (d) If a person is an organization, it shall, upon conviction of violating Subsection
97     (8)(c), be subject to a fine of not more than $1,000,000.
98          (e) (i) A defendant who is an individual is considered to have acted knowingly under
99     Subsections (8)(c) and (d), if:
100          (A) the defendant's conduct placed another person in imminent danger of death or
101     serious bodily injury; and
102          (B) the defendant was aware of or believed that there was an imminent danger of death
103     or serious bodily injury to another person.
104          (ii) Knowledge possessed by a person other than the defendant may not be attributed to
105     the defendant.
106          (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
107     knowledge, including evidence that the defendant took affirmative steps to be shielded from
108     receiving relevant information.
109          (f) (i) It is an affirmative defense to prosecution under this Subsection (8) that the
110     conduct charged was freely consented to by the person endangered and that the danger and
111     conduct charged were reasonably foreseeable hazards of:
112          (A) an occupation, a business, a profession; or
113          (B) medical treatment or medical or scientific experimentation conducted by
114     professionally approved methods and the other person was aware of the risks involved prior to
115     giving consent.
116          (ii) The defendant has the burden of proof to establish any affirmative defense under
117     this Subsection (8)(f) and shall prove that defense by a preponderance of the evidence.
118          (9) (a) Except as provided in Subsection (9)(b) or (c), and unless prohibited by federal
119     law, all penalties assessed and collected under the authority of this section shall be deposited in
120     the General Fund.

121          (b) The department may reimburse itself and local governments from money collected
122     from civil penalties for extraordinary expenses incurred in environmental enforcement
123     activities.
124          (c) The department shall:
125          (i) retain Ŝ→ up to ←Ŝ 50% of the money collected from a civil penalty, minus the
125a     reimbursement as
126     described in Subsection (9)(b) Ŝ→ , but no more than $200,000 total may be retained by the
126a     department per fiscal year ←Ŝ ; and
127          (ii) use the money described in Subsection (9)(c)(i) for environmental remediation
128     efforts and programs described in Title 19, Chapter 2, Part 2, Clean Air Retrofit, Replacement,
129     and Off-Road Technology Program.
130          [(c)] (d) The department shall regulate reimbursements by making rules in accordance
131     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
132          (i) define qualifying environmental enforcement activities; and
133          (ii) define qualifying extraordinary expenses.
134          Section 2. Section 78B-2-302 is amended to read:
135          78B-2-302. Within one year.
136          An action may be brought within one year:
137          (1) for liability created by the statutes of a foreign state;
138          (2) upon a statute for a penalty or forfeiture where the action is given to an individual,
139     or to an individual and the state, except when the statute imposing it prescribes a different
140     limitation;
141          (3) except as provided in Section 78B-2-307.5, upon a statute, or upon an undertaking
142     in a criminal action, for a forfeiture or penalty to the state;
143          (4) for libel, slander, false imprisonment, or seduction;
144          (5) against a sheriff or other officer for the escape of a prisoner arrested or imprisoned
145     upon either civil or criminal process;
146          (6) against a municipal corporation for damages or injuries to property caused by a
147     mob or riot;
148          (7) except as otherwise expressly provided by statute, against a county legislative body
149     or a county executive to challenge a decision of the county legislative body or county
150     executive, respectively; or
151          (8) on a claim for relief or a cause of action under Title 63L, Chapter 5, Utah Religious

152     Land Use Act.
153          Section 3. Section 78B-2-307.5 is enacted to read:
154          78B-2-307.5. Within five years.
155          An action may be brought within five years upon a statute in Title 19, Environmental
156     Quality Code, for a forfeiture or penalty to the state.

Legislative Review Note
     as of 2-12-15 3:11 PM

Office of Legislative Research and General Counsel