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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.
A. The control officer may grant to any person a conditional order for each air pollution source which allows such person to vary from any provision of A.R.S. Title 49, Chapter 3, Article 3, this title, or any nonfederally enforceable requirement of a permit issued pursuant to this title if the control officer makes each of the following findings:
1. Issuance of the conditional order will not endanger public health or the environment, impede attainment or maintenance of the national ambient air quality standards, or constitute a violation of the Clean Air Act, and
2. Either of the following is true:
a. There has been a breakdown of equipment or upset of operations beyond the control of the petitioner which causes the source to be out of compliance with the requirements of this title, the source was in compliance with the requirements of this title before the breakdown or upset, and the breakdown or upset may be corrected within a reasonable time.
b. There is no reasonable relationship between the economic and social cost of, and benefits to be obtained from, achieving compliance.
B. The control officer may not issue a conditional order which allows a source to vary from the requirement to obtain a permit issued pursuant to Section 17.11.090.
C. The following procedures shall apply to a person seeking a conditional order:
1. The person shall file a petition for a conditional order with the control officer. The petition shall contain at a minimum:
a. A description of the breakdown or upset.
b. A description of corrective action being undertaken to bring the source back into compliance.
c. An estimate of emissions related to the breakdown or upset.
d. A compliance schedule with a date of final compliance and interim dates as appropriate.
e. A detailed analysis of the economic and social costs and benefits of achieving compliance with the requirement for which the variance is sought, if the petition is based on subsection (A)(2)(b) of this section.
2. If the issuance of the conditional order requires a public hearing pursuant to Sections 17.12.190(E) and 17.13.210(E), the control officer shall set the hearing date within thirty days after the filing of the petition and the hearing shall be held within sixty days after the filing of the petition.
4. At the time the control officer publishes the first notice, the applicant shall post a notice containing the information required in Sections 17.12.190(D) and 17.13.210(D) at the site where the source is or may be located. Consistent with federal, state, and local law, the posting shall be prominently placed at a location under the applicant's legal control, adjacent to the nearest public roadway, and visible to the public using the public roadway. The applicant shall place an additional posting providing notice of the hearing. Any posting shall be maintained until the public comment period is closed.
5. The control officer shall provide at least thirty days from the date of its first notice for public comment. The control officer shall keep a record of the commenters and of the issues raised during the public participation process and shall prepare written responses to all comments received. At the time a final decision is made, the record and copies of the control officer's responses shall be made available to the applicant and all commenters.
D. Decisions on petitions for a conditional order shall be made as follows:
1. For any conditional order that requires a revision to the SIP, the control officer shall comply with the requirements contained in 40 CFR 51, Subpart F.
2. For any other conditional order, the control officer shall grant or deny the petition on such terms and conditions as the control officer deems appropriate within thirty days after the conclusion of any required hearing, or, if no hearing is held, within sixty days after the filing of the petition.
E. A fee to cover the costs of processing conditional orders may be charged by the control officer prior to issuance of the conditional order according to Section 17.12.220(I) or (J) and shall be deposited in the Air Quality Revenue Fund.
F. The terms of a conditional order or its renewal shall conform to the following:
1. A conditional order issued by the control officer shall be valid for such period as the control officer prescribes but in no event for more than one year in the case of a source that is required to obtain a permit pursuant to this title and Title V of the Act (Permits), and three years in the case of any other source that is required to obtain a permit pursuant to this title.
2. The terms and conditions which are imposed as a condition to the granting or the continued existence of a conditional order shall include:
a. A detailed plan for completion of corrective steps needed to conform to the provisions of A.R.S. Title 49, Chapter 3, Article 3, this title and the requirements of any permit issued pursuant to this title.
b. A requirement that necessary construction shall begin as specified in the compliance schedule.
c. Written reports, at least quarterly, of the status of the source and construction progress.
d. The right of the control officer to make periodic inspection of the facilities for which the conditional order is granted.
e. Such additional terms and conditions as the control officer finds necessary to meet the requirements of this section and A.R.S. § 49-437.
3. A holder of a conditional order may petition the control officer to renew the order. The total term of the initial period and all renewals shall not exceed three years from the date of initial issuance of the order. Petitions for renewal may be filed at any time not more than sixty days nor less than thirty days prior to the expiration of the order. The control officer, within thirty days of receipt of a petition, shall renew the conditional order for one year if the petitioner is in compliance and conforming with the terms and conditions imposed. The control officer may refuse to renew the conditional order if, after a public hearing held within thirty days of receipt of a petition, the control officer finds that the petitioner is not in compliance and conforming with the terms and conditions of the conditional order. If, after a period of three years from the date of original issuance the petitioner is not in compliance and conforming with the terms and conditions, the control officer may renew a conditional order for a total term of two additional years only if the control officer finds that failure to comply and conform is due to conditions beyond the control of such petitioner.
4. If the control officer amends or adopts any rule imposing conditions on the operation of an air pollution source which have become effective as to the source by reason of the action of the control officer or otherwise, and which require the implementation of control strategies necessitating the installation of additional or different air pollution control equipment, the control officer may renew a conditional order for an additional term. The term of the renewal shall be governed by the preceding subsections of this section, except that the total term of the renewal shall not exceed two years.
5. A conditional order issued by the control officer shall be effective when issued unless:
a. The conditional order varies from the requirements of the applicable implementation plan, in which case the conditional order shall be submitted to the administrator as a revision to the applicable implementation plan pursuant to Section 110(L) of the Act (Implementation Plans), and shall become effective upon approval by the administrator.
b. The conditional order varies from the requirements of a permit issued for a facility that is required to obtain a permit pursuant to Title V of the Act (Permits), in which case the conditional order shall be submitted to the administrator if required by Section 505 of the Act (Notification to administrator and Contiguous States), and shall be effective at the end of the review period specified in such section, unless objected to within such period by the administrator.
G. If the terms and conditions of the conditional order are being violated, the control officer may seek to revoke or suspend the conditional order. In such event, the control officer shall serve notice of such violation on the holder of the conditional order in the manner provided in A.R.S. § 49-498. The notice shall specify the nature of such violation and the date on which a hearing will be held to determine if a violation has occurred and whether the conditional order should be suspended or revoked. The date of the hearing shall be within thirty days from the date the notice is served upon the holder of the conditional order.
(Ord. 2017-20 § 3 (part), 2017: Ord. 1995-87 § 52, 1995: Ord. 1994-83 § 72, 1994: Ord. 1993-128 § 7 (part), 1993)
17.28.110 Evasion of basic requirements.
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