19-5-115 - Violations -- Penalties -- Civil actions by board -- Ordinances and rules of political subdivisions.
19-5-115. Violations -- Penalties -- Civil actions by board -- Ordinances and rules ofpolitical subdivisions.
(1) The terms "knowingly," "willfully," and "criminal negligence" shall mean as definedin Section 76-2-103.
(2) Any person who violates this chapter, or any permit, rule, or order adopted under it,upon a showing that the violation occurred, is subject in a civil proceeding to a civil penalty notto exceed $10,000 per day of violation.
(3) (a) A person is guilty of a class A misdemeanor and is subject to imprisonment underSection 76-3-204 and a fine not exceeding $25,000 per day who with criminal negligence:
(i) discharges pollutants in violation of Subsection 19-5-107(1) or in violation of anycondition or limitation included in a permit issued under Subsection 19-5-107(3);
(ii) violates Section 19-5-113;
(iii) violates a pretreatment standard or toxic effluent standard for publicly ownedtreatment works; or
(iv) manages sewage sludge in violation of this chapter or rules adopted under it.
(b) A person is guilty of a third degree felony and is subject to imprisonment underSection 76-3-203 and a fine not to exceed $50,000 per day of violation who knowingly:
(i) discharges pollutants in violation of Subsection 19-5-107(1) or in violation of anycondition or limitation included in a permit issued under Subsection 19-5-107(3);
(ii) violates Section 19-5-113;
(iii) violates a pretreatment standard or toxic effluent standard for publicly-ownedtreatment works; or
(iv) manages sewage sludge in violation of this chapter or rules adopted under it.
(4) A person is guilty of a third degree felony and subject to imprisonment under Section76-3-203 and shall be punished by a fine not exceeding $10,000 per day of violation if thatperson knowingly:
(a) makes a false material statement, representation, or certification in any application,record, report, plan, or other document filed or required to be maintained under this chapter, orby any permit, rule, or order issued under it; or
(b) falsifies, tampers with, or knowingly renders inaccurate any monitoring device ormethod required to be maintained under this chapter.
(5) (a) As used in this section:
(i) "Organization" means a legal entity, other than a government, established ororganized for any purpose, and includes a corporation, company, association, firm, partnership,joint stock company, foundation, institution, trust, society, union, or any other association ofpersons.
(ii) "Serious bodily injury" means bodily injury which involves a substantial risk ofdeath, unconsciousness, extreme physical pain, protracted and obvious disfigurement, orprotracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(b) A person is guilty of a second degree felony and, upon conviction, is subject toimprisonment under Section 76-3-203 and a fine of not more than $250,000 if that person:
(i) knowingly violates this chapter, or any permit, rule, or order adopted under it; and
(ii) knows at that time that he is placing another person in imminent danger of death orserious bodily injury.
(c) If a person is an organization, it shall, upon conviction of violating Subsection (5)(a),
be subject to a fine of not more than $1,000,000.
(d) (i) A defendant who is an individual is considered to have acted knowingly if:
(A) the defendant's conduct placed another person in imminent danger of death or seriousbodily injury; and
(B) the defendant was aware of or believed that there was an imminent danger of deathor serious bodily injury to another person.
(ii) Knowledge possessed by a person other than the defendant may not be attributed tothe defendant.
(iii) Circumstantial evidence may be used to prove that the defendant possessed actualknowledge, including evidence that the defendant took affirmative steps to be shielded fromreceiving relevant information.
(e) (i) It is an affirmative defense to prosecution under Subsection (5) that the conductcharged was consented to by the person endangered and that the danger and conduct chargedwere reasonably foreseeable hazards of:
(A) an occupation, a business, or a profession; or
(B) medical treatment or medical or scientific experimentation conducted byprofessionally approved methods and the other person was aware of the risks involved prior togiving consent.
(ii) The defendant has the burden of proof to establish any affirmative defense under thisSubsection (5)(e) and must prove that defense by a preponderance of the evidence.
(6) For purposes of Subsections 19-5-115(3) through (5), a single operational upsetwhich leads to simultaneous violations of more than one pollutant parameter shall be treated as asingle violation.
(7) (a) The board may begin a civil action for appropriate relief, including a permanent ortemporary injunction, for any violation or threatened violation for which it is authorized to issuea compliance order under Section 19-5-111.
(b) Actions shall be brought in the district court where the violation or threatenedviolation occurs.
(8) (a) The attorney general is the legal advisor for the board and its executive secretaryand shall defend them in all actions or proceedings brought against them.
(b) The county attorney or district attorney as appropriate under Sections 17-18-1,17-18-1.5, and 17-18-1.7 in the county in which a cause of action arises, shall bring any action,civil or criminal, requested by the board, to abate a condition that exists in violation of, or toprosecute for the violation of, or to enforce, the laws or the standards, orders, and rules of theboard or the executive secretary issued under this chapter.
(c) The board may itself initiate any action under this section and be represented by theattorney general.
(9) If any person fails to comply with a cease and desist order that is not subject to a staypending administrative or judicial review, the board may, through its executive secretary, initiatean action for and be entitled to injunctive relief to prevent any further or continued violation ofthe order.
(10) Any political subdivision of the state may enact and enforce ordinances or rules forthe implementation of this chapter that are not inconsistent with this chapter.
(11) (a) Except as provided in Subsection (11)(b), all penalties assessed and collectedunder the authority of this section shall be deposited in the General Fund.
(b) The department may reimburse itself and local governments from money collectedfrom civil penalties for extraordinary expenses incurred in environmental enforcement activities.
(c) The department shall regulate reimbursements by making rules that:
(i) define qualifying environmental enforcement activities; and
(ii) define qualifying extraordinary expenses.
Amended by Chapter 324, 2010 General Session