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When the control officer has reasonable cause to believe that any person has violated or is in violation of any provision of this title or any requirement of a permit issued pursuant to this title, he may serve upon such person by certified mail or in person an order of abatement or may file a complaint in superior court alleging a violation pursuant to A.R.S. 49-513. The order shall state with particularity the act constituting the violation, shall state in its entirety the certain requirement, provision or rule violated, shall state the duration of the order and shall state that the alleged violator is entitled to a hearing, if such hearing is requested in writing within thirty days after the date of issuance of the order. The order may be conditional and require a person to refrain from particular acts unless certain conditions are met. An order issued under this section shall require the persons to whom it is issued to comply with the requirement, provision or rule as expeditiously as practicable. In the case of a source required to obtain a permit pursuant to this title and Title V of the Clean Air Act (Permits), the order shall require compliance no later than one year after the date the order was issued, and shall be nonrenewable.
(Ord. 1997-79 § 12, 1997; Ord. 1993-128 § 7 (part), 1993)
When the control officer has reasonable cause to believe that any person has violated or is in violation of any provision of this title or any requirement of a permit issued pursuant to this title, he may request, in writing, that such person produce all existing books, records and other documents evidencing tests, inspections or studies which may reasonably relate to compliance or noncompliance with provisions of this title within the time period specified in the written request.
(Ord. 1993-128 § 7 (part), 1993)
A. The county attorney, at the request of the control officer, shall file an action for a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief provided by law, if the control officer has reasonable cause to believe that any of the following is occurring:
1. A person has violated or is in violation of any provision of this title or any provision of a permit issued pursuant to this title.
2. A person has violated or in violation of an effective order of abatement.
3. A person is creating an imminent and substantial endangerment to the public health or the environment because of a release of a harmful air contaminant, unless that release is subject to enforcement under A.R.S. Title 3, Chapter 2, Article 6.
B. In the preliminary hearing in an action for an injunction or restraining order brought pursuant to this article, any findings of the hearing board shall be prima facie evidence of the fact or facts found therein until rebutted.
(Ord. 1993-128 § 7 (part), 1993)
For the benefit of the people of the state, court actions and proceedings brought under this title shall be given precedence and brought to trial ahead of other litigation concerning private interests and other matters that do not affect public health and welfare.
(Ord. 1993-128 § 7 (part), 1993)
It is the purpose of this title to provide additional and cumulative remedies to prevent, abate, and control air pollution in the state. Nothing contained in this title shall be construed to abridge or alter rights of action or remedies in equity under the common law or statutory law, criminal or civil, nor shall any provisions of this title, or any act done by virtue thereof, be construed as estopping the state or any municipality, or owners of land from the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.
(Ord. 1993-128 § 7 (part), 1993; Ord. 1990-113 § 8, 1990: Ord. 1989-165 § 24 (part), 1989: Ord 1979-93 (part), 1979)
A. A person who violates any provision of this title, any permit or permit condition issued pursuant to this title, any fee or filing requirement, an effective order of abatement issued pursuant to this title or any duty to allow or carry out inspection, entry or monitoring activities, is subject to a civil penalty of not more than ten thousand dollars per day per violation. The county attorney at the request of the control officer shall file an action in superior court to recover penalties provided for in this section.
B. For purposes of determining the number of days of violation for which a civil penalty may be assessed under this section, if the control officer has notified the source of the violation and makes a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the date of notice, the days of violations shall be presumed to include the date of such notice and each day thereafter until the violator establishes that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature. Notice under this section is accomplished by the issuance of a notice of violation or order of abatement or by filing a complaint in superior court that alleges any violation described in subsection A of this section.
C. In determining the amount of a civil penalty 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 on the violator.
6. The duration of the violation as established by 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 factors as the court deems relevant.
D. All penalties collected pursuant to this section shall be deposited in the special public health fund prescribed in A.R.S. 49-480.
(Ord. 1993-128 § 7 (part), 1993)
Text of section effective after October 31, 1994:
A. A person who knowingly releases into the ambient air any extremely hazardous substance listed pursuant to 42 U.S.C. 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, director or control officer 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 subdivisions 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 title and under Title V of the Clean Air Act (Permits) and who knowingly operates such source without a permit issued by the control officer and without having filed a complete application for renewal of an existing permit in accordance with Title V of the Clean Air Act (Permits) and this title 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 title and under Title V of the Clear Air Act (Permits), 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 title and who knowingly violates such order is guilty of a Class 5 felony.
E. A person who is required by the control officer pursuant to this title 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 control officer to maintain any monitoring device pursuant to this title, and who knowingly alters, modifies or destroys such monitoring device in order to render the results 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 title 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 control officer to be material pursuant to A.R.S. 49-464, Subsection G.
H. A person who is required to obtain a permit before commencing construction of a source both under this title and under Title V of the Clean Air Act (Permits), and who knowingly commences construction of such source without a permit issued by the control officer 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 title, and who knowingly operates such source without a permit issued by the control officer and without having filed a complete application for renewal of an existing permit in accordance with this title is guilty of a Class 6 felony.
J. A person who is required by the control officer pursuant to this title 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 title but not under Title V of the Clean Air Act (Permits), and who acting with criminal negligence commences construction of such source without a permit issued by the control officer 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 (Prevention of Significant Deterioration of Air Quality or Plan Requirements for Nonattainment Areas).
3. Violates a fee or filing requirement established both under this title and under Title V of the Clean Air Act (Permits).
4. Violates any other provision of this title 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. 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 on the violator.
6. The duration of the violation as established by 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 factors as the court deems relevant.
O. 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.
P. 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 control officer 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 control officer 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.
c. 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 subdivision 1 of this subsection.
Q. 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 above shall be deemed to be advice that no permit was necessary for purposes of this subsection.
R. The defendant may establish an affirmative defense provided by this section by a preponderance of the evidence.
S. For purposes of this section, the term "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. The term "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 or control officer.
T. Under this section, to prove a knowing violation the county shall prove actual knowledge of circumstances constituting each element of the offense which, as defined, requires proof of a culpable mental state. Actual knowledge may by 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.
(Ord. 1993-128 § 7 (part), 1993)
A. An order of abatement issued by the control officer shall become effective immediately upon the expiration of the time during which a request for a hearing may be made pursuant to A.R.S. 49-511 unless the person or persons named in such order shall have made a timely request for a hearing before the hearing board. If a hearing is requested, the hearing board shall hold the hearing within thirty days from receipt of the request unless such time is extended by the hearing board. Written notice of the time and place of the hearing shall be sent by the hearing board to the person or persons requesting the hearing and to the control officer at least fifteen days before the hearing.
B. If the board, after the hearing, determines that the act or acts set forth in the order constitute a violation of any provision of this title or any requirement of a permit or conditional order issued pursuant to this title and that no conditional order is justified, the board shall affirm or modify the order of abatement. The order may be conditional and require a person to refrain from the particular act or acts unless certain conditions are met.
(Ord. 1993-128 § 7 (part), 1993)
17.28.100 Conditional orders.
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