49-464

49-464. Violation; classification; penalties;
definition

A. A person who knowingly releases into the ambient air any extremely hazardous
substance listed pursuant to 42 United States Code section 11002(a)(2) or any hazardous
air pollutant and who knows at the time that he thereby places another person in
imminent danger of death or serious bodily injury shall be guilty of a class 2
felony. For any air pollutant for which the administrator or director has established a
standard by regulation or in a permit, a release of such pollutant in accordance with
that standard shall not constitute a violation of this subsection. For purposes of
determining whether a defendant who is an individual knew that the violation placed
another in imminent danger of serious bodily injury both of the following shall apply:

1. The defendant is responsible only for actual awareness or actual belief
possessed.

2. Knowledge possessed by another person but not by the defendant may not be
attributed to the defendant.

Notwithstanding paragraphs 1 and 2 of this subsection, circumstantial evidence, including
evidence that the defendant took affirmative steps to be shielded from relevant
information, may be used to prove knowledge.

B. A person who operates a source that is required to have a permit both under this
article and under title V of the clean air act and who knowingly operates such source
without a permit issued by the director and without having filed a complete application
for renewal of an existing permit in accordance with title V of the clean air act and
this article is guilty of a class 5 felony.

C. A person who operates a source that is subject to an emission standard that is
required to be imposed in the source's permit both under this article and under title V
of the clean air act, and who knowingly violates such emission standard is guilty of a
class 5 felony.

D. A person who is subject to an effective order of abatement issued under this
article and who knowingly violates such order is guilty of a class 5 felony.

E. A person who is required by the director pursuant to this article to conduct
performance tests, and who knowingly alters or modifies any such performance test in
order to render the results inaccurate is guilty of a class 5 felony.

F. A person who is required by the director to maintain any monitoring device
pursuant to this article, and who knowingly alters, modifies or destroys such monitoring
device in order to render the device inaccurate is guilty of a class 5 felony.

G. A person who operates a source that is required to have a permit issued pursuant
to this article and that is subject to a material permit condition other than an emission
standard identified in subsection C of this section, and who knowingly violates such
permit condition is guilty of a class 6 felony. For purposes of this subsection a
material permit condition means a permit condition determined by the director by rule to
be material after considering the following criteria:

1. The effect of the permit condition on public health and the environment.

2. The effect of the permit condition on the department's ability to enforce the
permit program.

3. The effect of noncompliance with the permit condition on emissions.

4. The effect of the permit condition on the director's ability to determine a
source's compliance status.

The director shall adopt the rules required by this subsection and section 49-514,
subsection G by November 1, 1993.

H. A person who is required to obtain a permit before commencing construction of a
source both under this article and under title V of the clean air act, and who knowingly
commences construction of such source without a permit issued by the director is guilty
of a class 6 felony.

I. A person who operates a source that is not identified in subsection B of this
section and that requires a permit under this article, and who knowingly operates such
source without a permit issued by the director and without having filed a complete
application for renewal of an existing permit in accordance with this article is guilty
of a class 6 felony.

J. A person who is required by the director pursuant to this article to operate a
monitoring device, and who knowingly fails to maintain, operate or repair such monitoring
device in order to render the device inaccurate is guilty of a class 6 felony.

K. A person who is required to obtain a permit to commence construction of a source
under this article but not under title V of the clean air act, and who acting with
criminal negligence commences construction of such source without a permit issued by the
director is guilty of a class 1 misdemeanor.

L. A person who acting with criminal negligence does any of the following is guilty
of a class 1 misdemeanor:

1. Violates a permit condition not described in subsection C or G of this section.

2. Violates an opacity standard, unless the opacity standard is required by section
111 or title I, part C or D, of the clean air act.

3. Violates a fee or filing requirement established both under this article and
under title V of the clean air act.

4. Violates any other provision of this article for which a penalty is not
otherwise prescribed.

M. Under this section, a knowing violation that continues for more than one day,
but that results from a single act or series of related acts, constitutes the commission
of a single offense.

N. The attorney general may enforce the provisions of this section.

O. In determining the amount of a fine under this section, the court shall consider
all of the following:

1. The seriousness of the violation.

2. As an aggravating factor only, the economic benefit, if any, resulting from the
violation.

3. Any history of that violation.

4. Any good faith efforts to comply with the applicable requirements.

5. The economic impact of the penalty of the violator.

6. The duration of the violation as established by any credible evidence including
evidence other than the applicable test method.

7. Payment by the violator of penalties previously assessed for the same violation.

8. Other aggravating and mitigating factors as the court deems relevant.

P. It shall be an affirmative defense to any prosecution under subsection A of this
section that the conduct charged was freely consented to by the person endangered and
that the danger and conduct charged were reasonably foreseeable hazards of either of the
following:

1. An occupation, business or profession.

2. Medical treatment or medical or scientific experimentation conducted by
professionally approved methods provided that the person endangered was made aware of the
risk involved in the treatment or experimentation prior to giving consent.

Q. It shall be an affirmative defense to any prosecution for violation of an
emission standard or opacity standard under subsection C or G or subsection L, paragraph
1, 2 or 4 of this section that both of the following conditions were satisfied:

1. The violation was reported by verbal or facsimile notification to the director
within twenty-four hours after the source first learned of the violation.

2. The owner or operator of the source provided written notification to the
director containing all of the following information within seventy-two hours following
the verbal or facsimile notification:

(a) Confirmation of the violation for which verbal or facsimile notification was
provided.

(b) Identification of the practicable corrective measures that have been undertaken
or will be undertaken to control and minimize emissions until compliance with the
applicable standard is achieved.

In the case of continuous or recurring violations, the notification requirement shall be
satisfied if the source provides the required notification after violations are first
detected and includes in such notification an estimate of the time the violations will
continue. Violations occurring after the estimated time period shall require additional
notification pursuant to the first sentence of this paragraph.

R. It shall be an affirmative defense to any prosecution under subsection B, H, I
or K of this section for operating a source or commencing construction without a permit
that, after accurately disclosing in writing all relevant information that is necessary
to assess the requirement to obtain a permit and that is requested by a permitting
authority, the defendant obtained and relied upon the written advice of a permitting
authority that no permit was necessary. Failure of a permitting authority to respond in
writing to a request for a determination under this subsection within fourteen days after
receiving the information described in this subsection shall be deemed to be advice that
no permit was necessary for purposes of this subsection.

S. The defendant may establish an affirmative defense provided by this section by a
preponderance of the evidence.

T. Under this section, to prove a knowing violation the state must prove actual
knowledge of circumstances constituting each element of the offense which, as defined,
requires proof of a culpable mental state. Actual knowledge may be proved by either
direct or circumstantial evidence, including evidence that the person deliberately
avoided acquiring such knowledge. A person's knowledge may not be inferred merely by his
or her position within an enterprise.

U. All civil or criminal penalties or fines assessed pursuant to this section shall
be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

V. For purposes of this section, "emission standard" means a numeric limitation on
the volume or concentration of air pollutants in emissions from a source or a specific
design, equipment or work practice standard, the purpose of which is to eliminate or
reduce the volume or concentration of pollutants emitted by a source. Emission standard
does not include opacity standards. Violations of emission standards shall be
determined in the manner prescribed by the applicable regulations issued by the
administrator or the director.