1     
WATER QUALITY ACT AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Paul Ray

5     
Senate Sponsor: Jacob L. Anderegg

6     

7     LONG TITLE
8     General Description:
9          This bill addresses enforcement of water quality provisions.
10     Highlighted Provisions:
11          This bill:
12          ▸     attributes to an organization the actions of an individual acting wholly within the
13     individual's employment with the organization;
14          ▸     provides that an individual acting wholly within the individual's employment with
15     an organization is not subject to certain legal actions; and
16          ▸     makes technical changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          19-5-115, as last amended by Laws of Utah 2013, Chapter 237
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 19-5-115 is amended to read:
27          19-5-115. Violations -- Penalties -- Civil actions by director -- Ordinances and
28     rules of political subdivisions -- Acts of individuals.
29          [(1) The terms "knowingly," "willfully," and "criminal negligence" are as defined in
30     Section 76-2-103.]
31          (1) As used in this section:
32          (a) "Criminal negligence" means the same as that term is defined in Section 76-2-103.
33          (b) "Knowingly" means the same as that term is defined in Section 76-2-103.
34          (c) "Organization" means a legal entity, other than a government, established or
35     organized for any purpose, and includes a corporation, company, association, firm, partnership,
36     joint stock company, foundation, institution, trust, society, union, or any other association of
37     persons.
38          (d) "Serious bodily injury" means bodily injury that involves a substantial risk of death,
39     unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted
40     loss or impairment of the function of a bodily member, organ, or mental faculty.
41          (e) "Willfully" means the same as that term is defined in Section 76-2-103.
42          (2) [Any] A person who violates this chapter, or any permit, rule, or order adopted
43     under [it] this chapter, upon a showing that the violation occurred, is subject in a civil
44     proceeding to a civil penalty not to exceed $10,000 per day of violation.
45          (3) (a) A person is guilty of a class A misdemeanor and is subject to imprisonment
46     under Section 76-3-204 and a fine not exceeding $25,000 per day who, with criminal
47     negligence:
48          (i) discharges pollutants in violation of Subsection 19-5-107(1) or in violation of any
49     condition or limitation included in a permit issued under Subsection 19-5-107(3);
50          (ii) violates Section 19-5-113;
51          (iii) violates a pretreatment standard or toxic effluent standard for publicly owned
52     treatment works; or
53          (iv) manages sewage sludge in violation of this chapter or rules adopted under [it] this
54     chapter.
55          (b) A person is guilty of a third degree felony and is subject to imprisonment under
56     Section 76-3-203 and a fine not to exceed $50,000 per day of violation who knowingly:
57          (i) discharges pollutants in violation of Subsection 19-5-107(1) or in violation of any
58     condition or limitation included in a permit issued under Subsection 19-5-107(3);
59          (ii) violates Section 19-5-113;
60          (iii) violates a pretreatment standard or toxic effluent standard for publicly owned
61     treatment works; or
62          (iv) manages sewage sludge in violation of this chapter or rules adopted under [it] this
63     chapter.
64          (4) A person is guilty of a third degree felony and subject to imprisonment under
65     Section 76-3-203 and shall be punished by a fine not exceeding $10,000 per day of violation if
66     that person knowingly:
67          (a) makes a false material statement, representation, or certification in any application,
68     record, report, plan, or other document filed or required to be maintained under this chapter, or
69     by any permit, rule, or order issued under [it] this chapter; or
70          (b) falsifies, tampers with, or knowingly renders inaccurate [any] a monitoring device
71     or method required to be maintained under this chapter.
72          [(5) (a) As used in this section:]
73          [(i) "Organization" means a legal entity, other than a government, established or
74     organized for any purpose, and includes a corporation, company, association, firm, partnership,
75     joint stock company, foundation, institution, trust, society, union, or any other association of
76     persons.]
77          [(ii) "Serious bodily injury" means bodily injury which involves a substantial risk of
78     death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
79     protracted loss or impairment of the function of a bodily member, organ, or mental faculty.]
80          [(b)] (5) (a) A person is guilty of a second degree felony and, upon conviction, is
81     subject to imprisonment under Section 76-3-203 and a fine of not more than $250,000 if that
82     person:
83          (i) knowingly violates this chapter, or any permit, rule, or order adopted under [it] this
84     chapter; and
85          (ii) knows at that time that the person is placing another person in imminent danger of
86     death or serious bodily injury.
87          [(c)] (b) If a person is an organization, [it] the organization shall, upon conviction of
88     violating Subsection (5)[(b)](a), be subject to a fine of not more than $1,000,000.
89          [(d)] (c) (i) A defendant who is an individual is considered to have acted knowingly if:
90          (A) the defendant's conduct placed another person in imminent danger of death or
91     serious bodily injury; and
92          (B) the defendant was aware of or believed that there was an imminent danger of death
93     or serious bodily injury to another person.
94          (ii) Knowledge possessed by a person other than the defendant may not be attributed to
95     the defendant.
96          (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
97     knowledge, including evidence that the defendant took affirmative steps to be shielded from
98     receiving relevant information.
99          [(e)] (d) (i) It is an affirmative defense to prosecution under this Subsection (5) that the
100     conduct charged was consented to by the person endangered and that the danger and conduct
101     charged were reasonably foreseeable hazards of:
102          (A) an occupation, a business, or a profession; or
103          (B) medical treatment or medical or scientific experimentation conducted by
104     professionally approved methods and the other person was aware of the risks involved [prior
105     to] before giving consent.
106          (ii) The defendant has the burden of proof to establish [any] an affirmative defense
107     under this Subsection (5)[(e)](d) and shall prove that defense by a preponderance of the
108     evidence.
109          (6) For purposes of Subsections [19-5-115] (3) through (5), a single operational upset
110     that leads to simultaneous violations of more than one pollutant parameter shall be treated as a
111     single violation.
112          (7) (a) The director may begin a civil action for appropriate relief, including a
113     permanent or temporary injunction, for any violation or threatened violation for which [it] the
114     director is authorized to issue a compliance order under Section 19-5-111.
115          (b) [Actions shall be brought] The director shall bring a civil action in the district court
116     where the violation or threatened violation occurs.
117          (8) (a) The attorney general is the legal advisor for the board and the director and shall
118     defend [them in all actions or proceedings] the board or director in an action or proceeding
119     brought against [them] the board or director.
120          (b) The county attorney or district attorney, as appropriate under Section 17-18a-202 or
121     17-18a-203, in the county in which a cause of action arises, shall bring [any] an action, civil or
122     criminal, requested by the director, to abate a condition that exists in violation of, or to
123     prosecute for the violation of, or to enforce, the laws or the standards, orders, and rules of the
124     board or the director issued under this chapter.
125          (c) The director may initiate [any] an action under this section and be represented by
126     the attorney general.
127          (9) If [any] a person fails to comply with a cease and desist order that is not subject to a
128     stay pending administrative or judicial review, the director may initiate an action for and be
129     entitled to injunctive relief to prevent any further or continued violation of the order.
130          (10) [Any] A political subdivision of the state may enact and enforce ordinances or
131     rules for the implementation of this chapter that are not inconsistent with this chapter.
132          (11) (a) Except as provided in Subsection (11)(b), [all] penalties assessed and collected
133     under the authority of this section shall be deposited [in] into the General Fund.
134          (b) The department may reimburse itself and local governments from money collected
135     from civil penalties for extraordinary expenses incurred in environmental enforcement
136     activities.
137          (c) The department shall regulate reimbursements by making rules, in accordance with
138     Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that:
139          (i) define qualifying environmental enforcement activities; and
140          (ii) define qualifying extraordinary expenses.
141          (12) (a) For purposes of this section or an ordinance or rule enacted by a political
142     subdivision under Subsection (10), an act performed by an individual wholly within the scope
143     of the individual's employment with an organization, is attributed to the organization.
144          (b) Notwithstanding the other provisions of this section, an action may not be brought
145     against an individual acting wholly within the scope of the individual's employment with an
146     organization if the action is brought under:
147          (i) this section;
148          (ii) an ordinance or rule issued by a political subdivision under Subsection (10); or
149          (iii) any local law or ordinance governing discharge.