1     
ENVIRONMENTAL CODE FINES

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Luz Escamilla

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the penalties for a violation of Title 19, Chapter 2, Air Conservation
10     Act.
11     Highlighted Provisions:
12          This bill:
13          ▸     increases civil penalties against a person who violates the Air Conservation Act;
14     and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          19-2-115, as last amended by Laws of Utah 2012, Chapter 360
23     

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 19-2-115 is amended to read:
26          19-2-115. Violations -- Penalties -- Reimbursement for expenses.
27          (1) As used in this section, the terms "knowingly," "willfully," and "criminal

28     negligence" shall mean as defined in Section 76-2-103.
29          (2) (a) A person who violates this chapter[,] or any rule, order, or permit issued or
30     made under this chapter is subject in a civil proceeding to a penalty not to exceed [$10,000]
31     $26,000 per day for each violation.
32          (b) Subsection (2)(a) also applies to rules made under the authority of Section
33     19-2-104, for implementation of 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
34     Subchapter II - Asbestos Hazard Emergency Response.
35          (c) Penalties assessed for violations described in 15 U.S.C.A. 2647, Toxic Substances
36     Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the
37     amounts specified in that section and shall be used in accordance with that section.
38          (3) A person is guilty of a class A misdemeanor and is subject to imprisonment under
39     Section 76-3-204 and a fine of not more than [$25,000] $65,000 per day of violation if that
40     person knowingly violates any of the following under this chapter:
41          (a) an applicable standard or limitation;
42          (b) a permit condition; or
43          (c) a fee or filing requirement.
44          (4) A person is guilty of a third degree felony and is subject to imprisonment under
45     Section 76-3-203 and a fine of not more than [$25,000] $65,000 per day of violation who
46     knowingly:
47          (a) makes any false material statement, representation, or certification, in any notice or
48     report required by permit; or
49          (b) renders inaccurate any monitoring device or method required to be maintained by
50     this chapter or applicable rules made under this chapter.
51          (5) Any fine or penalty assessed under [Subsections] Subsection (2) or (3) is in lieu of
52     any penalty under Section 19-2-109.1.
53          (6) A person who willfully violates Section 19-2-120 is guilty of a class A
54     misdemeanor.
55          (7) A person who knowingly violates any requirement of an applicable implementation
56     plan adopted by the board, more than 30 days after having been notified in writing by the
57     director that the person is violating the requirement, knowingly violates an order issued under
58     Subsection 19-2-110(1), or knowingly handles or disposes of asbestos in violation of a rule

59     made under this chapter is guilty of a third degree felony and subject to imprisonment under
60     Section 76-3-203 and a fine of not more than [$25,000] $65,000 per day of violation in the case
61     of the first offense, and not more than [$50,000] $130,500 per day of violation in the case of
62     subsequent offenses.
63          (8) (a) As used in this section:
64          (i) "Hazardous air pollutant" means any hazardous air pollutant listed under 42 U.S.C.
65     Sec. 7412 or any extremely hazardous substance listed under 42 U.S.C. Sec. 11002(a)(2).
66          (ii) "Organization" means a legal entity, other than a government, established or
67     organized for any purpose, and includes a corporation, company, association, firm, partnership,
68     joint stock company, foundation, institution, trust, society, union, or any other association of
69     persons.
70          (iii) "Serious bodily injury" means bodily injury which involves a substantial risk of
71     death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
72     protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
73          (b) (i) A person is guilty of a class A misdemeanor and subject to imprisonment under
74     Section 76-3-204 and a fine of not more than [$25,000] $65,000 per day of violation if that
75     person with criminal negligence:
76          (A) releases into the ambient air any hazardous air pollutant; and
77          (B) places another person in imminent danger of death or serious bodily injury.
78          (ii) As used in this Subsection (8)(b), "person" does not include an employee who is
79     carrying out the employee's normal activities and who is not a part of senior management
80     personnel or a corporate officer.
81          (c) A person is guilty of a second degree felony and is subject to imprisonment under
82     Section 76-3-203 and a fine of not more than [$50,000] $130,500 per day of violation if that
83     person:
84          (i) knowingly releases into the ambient air any hazardous air pollutant; and
85          (ii) knows at the time that the person is placing another person in imminent danger of
86     death or serious bodily injury.
87          (d) If a person is an organization, it shall, upon conviction of violating Subsection
88     (8)(c), be subject to a fine of not more than $1,000,000.
89          (e) (i) A defendant who is an individual is considered to have acted knowingly under

90     Subsections (8)(c) and (d), if:
91          (A) the defendant's conduct placed another person in imminent danger of death or
92     serious bodily injury; and
93          (B) the defendant was aware of or believed that there was an imminent danger of death
94     or serious bodily injury to another person.
95          (ii) Knowledge possessed by a person other than the defendant may not be attributed to
96     the defendant.
97          (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
98     knowledge, including evidence that the defendant took affirmative steps to be shielded from
99     receiving relevant information.
100          (f) (i) It is an affirmative defense to prosecution under this Subsection (8) that the
101     conduct charged was freely consented to by the person endangered and that the danger and
102     conduct charged were reasonably foreseeable hazards of:
103          (A) an occupation, a business, a profession; or
104          (B) medical treatment or medical or scientific experimentation conducted by
105     professionally approved methods and the other person was aware of the risks involved prior to
106     giving consent.
107          (ii) The defendant has the burden of proof to establish any affirmative defense under
108     this Subsection (8)(f) and shall prove that defense by a preponderance of the evidence.
109          (9) (a) Except as provided in Subsection (9)(b), and unless prohibited by federal law,
110     all penalties assessed and collected under the authority of this section shall be deposited in the
111     General Fund.
112          (b) The department may reimburse itself and local governments from money collected
113     from civil penalties for extraordinary expenses incurred in environmental enforcement
114     activities.
115          (c) The department shall regulate reimbursements by making rules in accordance with
116     Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
117          (i) define qualifying environmental enforcement activities; and
118          (ii) define qualifying extraordinary expenses.







Legislative Review Note
Office of Legislative Research and General Counsel