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HEALTH AND SAFETY CODE

Division 26 Air Resources

Part 4 Nonvehicular Air Pollution Control

Chapter 4 Enforcement

Article 3 Penalties

§ 42400. Criminal penalty for violations

(a) Except as otherwise provided in Section 42400.1, 42400.2, 42400.3, 42400.3.5, or 42400.4, any person who violates this part, or any rule, regulation, permit, or order of the state board or of a district, including a district hearing board, adopted pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is guilty of a misdemeanor and is subject to a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than six months, or both.

(b) If a violation under subdivision (a) with regard to the failure to operate a vapor recovery system on a gasoline cargo tank is directly caused by the actions of an employee under the supervision of, or of any independent contractor working for, any person subject to this part, the employee or independent contractor, as the case may be, causing the violation is guilty of a misdemeanor and is punishable as provided in subdivision (a). That liability shall not extend to the person employing the employee or retaining the independent contractor, unless that person is separately guilty of an action that violates this part.

(c) Any person who owns or operates any source of air contaminants in violation of Section 41700 that causes actual injury, as defined in subdivision (d), to the health or safety of a considerable number of persons or the public is guilty of a misdemeanor and is subject to a fine of not more than fifteen thousand dollars ($15,000) or imprisonment in the county jail for not more than nine months, or both.

(d) As used in this section, “actual injury” means any physical injury that, in the opinion of a licensed physician and surgeon, requires medical treatment involving more than a physical examination.

(e) Each day during any portion of which a violation of subdivision (a) or (c) occurs is a separate offense.

Added Stats 1975 ch 957 § 12. Amended Stats 1979 ch 499 § 1; Stats 1982 ch 1047 § 1; Stats 1985 ch 414 § 1; Stats 1986 ch 1453 § 1; Stats 1992 ch 1252 § 2 (AB 1572); Stats 1993 ch 1165 § 2 (AB 709), ch 1166 § 12 (AB 2288); Stats 1994 ch 727 § 8 (AB 3119); Stats 2000 ch 805 § 3 (SB 1865).

Amendments:

1979 Amendment: (1) Designated the former first and second paragraphs to be subds (a) and (b); and (2) added subd (c).

1982 Amendment: (1) Added all that part following “guilty of a misdemeanor” in subd (a); (2) substituted “the” for “such” after “portion of which” in subd (b) and “that” for “such” before “liability shall” in the last sentence of subd (c); and (3) deleted “of this section” after “subdivision (a)” in subd (c).

1985 Amendment: Amended subd (a) by (1) adding “permit,” after “any order,”; (2) adding “, including a district hearing board,”; (3) substituting “Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive)” for “this part”; (4) substituting “is” for “shall be” after “misdemeanor and”; and (5) substituting “to exceed” for “exeeding” wherever it appears.

1986 Amendment: (1) Amended subd (a) by (a) adding “Except as otherwise provided in Section 42400.1 or 42400.2”; (b) substituting “of not more than” for “not to exceed” after “fine”; (c) deleting the comma after “($1,000)”; and (d) substituting “not more than” for “a period not to exceed”; (2) deleted former subd (b); (3) redesignated former subd (c) to be subd (b); (4) added “and is punishable as provided in subdivision (a)” at the end of the first sentence in subd (b); and (5) added subds (c) and (d).

1992 Amendment: Substituted “Section 42402, 42402.1, 42402.2, or 42402.3” for “Section 42402, 42402.1, or 42402.2,” in subd (c).

1993 Amendment: (1) Amended subd (a) by (a) substituting “, 42400.2 or 42400.3” for “or 42400.2”; (b) deleting “any provision of” after “person who violates”; and (c) substituting “rule, regulation, permit, or order” for “order, permit, rule, or regulation” after “part, or any”; and (2) substituted “an action that violates” for “any action violating any provision of” near the end of subd (b).

1994 Amendment: (1) Substituted “42400.3, or 42400.4” for “or 42400.3”; (2) added subd (c); (3) redesignated former subds (c) and (d) to be (d) and (e); and (4) added “or (c)” in subd (e).

2000 Amendment: (1) Added “42400.3.5,” in subd (a); (2) substituted subd (c) for former subd (c) which read: “(c)(1) Any person who knowingly violates any rule, regulation, permit, order, fee requirement, or filing requirement of the state board or of a district, including a district hearing board, that is adopted for the control of toxic air contaminants pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, and for which delegation or approval of implementation and enforcement authority has been obtained pursuant to subdivision (1) of Section 112 of the Clean Air Act (42 U.S.C. Sec. 7412(1)), or the regulations adopted pursuant thereto, is guilty of a misdemeanor and is subject to a fine of not more than ten thousand dollars ($10,000) or imprisonment in the county jail for not more than six months, or both.“(2) Any person who knowingly makes any false material statement, representation, or certification in any form or in any notice or report required by a rule or regulation adopted or permit issued for the control of toxic air contaminants pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, and for which delegation or approval of implementation and enforcement authority has been obtained pursuant to subdivision (1) of Section 112 of the Clean Air Act (42 U.S.C. Sec. 7412(1)), or the regulations adopted pursuant thereto, or who knowingly renders inaccurate any monitoring device required by that toxic air contaminant rule, regulation, or permit is guilty of a misdemeanor and is subject to a fine of not more than ten thousand dollars ($10,000) or imprisonment in the county jail for not more than six months, or both.“(3) Paragraphs (1) and (2) apply only to violations that are not otherwise subject to a fine of ten thousand dollars ($10,000) or more pursuant to Section 42400.1, 42400.2, or 42400.3.”; and (3) substituted subd (d) for former subd (d) which read: “(d) The recovery of civil penalties pursuant to Section 42402, 42402.1, 42402.2, or 42402.3 precludes prosecution pursuant to this section for the same offense. When a district refers a violation to a prosecuting agency, the filing of a criminal complaint is grounds requiring the dismissal of any civil action brought pursuant to this article for the same offense.”

Historical Derivation: (a) Former §§ 24253, 24277, 24282, as added Stats 1947 ch 632 § 1.

(b) Former § 24360.10, as added Stats 1974 ch 455 § 1.

(c) Former §§ 39296.1, 39299, as added Stats 1970 ch 1579 § 2.

(d) Former § 39438, as added Stats 1967 ch 1545 § 5.

Note- Stats 1993 ch 1166 also provides:

SECTION 1. It is the intent of the Legislature that this act provide authority in state law for the implementation of the operating permit program required by Title V of the federal Clean Air Act (42 U.S.C. 7661 et seq.) without affecting the issuance of permits as required by any other provision of state law.

Cross References: Definition of misdemeanor, and penalties therefor: Pen C §§ 17, 19, 19a.

Collateral References: Witkin & Epstein, Criminal Law (3d ed), Crimes Against Public Peace and Welfare § 365.

12 Witkin Summary (10th ed) Real Property § 899.

Law Review Articles:

California legislation on air contaminant emissions from stationary sources. 1 ELQ 203.

Rule enforcement by the Los Angeles County Air Pollution Control District. 3 ELQ 507.

NOTES OF DECISIONS

Orders of the trial court dismissing three prosecutions under Health & Saf. Code, § 42400, for violating the rules of the South Coast Air Quality Management District, were not appealable by the People, where the dismissals were ordered after the People had announced their inability to proceed following the court's refusal at trial to take judicial notice of the district's rules and regulations. The fact that the court's ruling on the motion to take judicial notice was based on a finding that the rules were adopted in a constitutionally invalid manner did not transform such ruling into an appealable “judgment for the defendant upon the sustaining of a demurrer” under Pen. Code, § 1466, subd. 1(b). Similarly, Pen. Code, § 1466, subd. 1(a), providing for appeal by the People from an order or judgment dismissing or otherwise terminating an action before the defendant has been placed in jeopardy, or where the defendant has waived jeopardy, had no application under the circumstances. People v. A-1 Roofing Service, Inc. (1978, Cal App Dep't Super Ct) 87 Cal App 3d Supp 1, 151 Cal Rptr 522, 1978 Cal App LEXIS 2200.

Rules and regulations adopted by the South Coast Air Quality Management District in compliance with Health & Saf. Code, §§ 40703, 40704, are valid. The import of the relevant provisions regarding the district (Health & Saf. Code, §§ 40001, 40402, 40412, 40700) is that the district is a local, rather than state, agency, and therefore is not required to file its rules and regulations with the Secretary of State, or to publish them in the Administrative Code, pursuant to Gov. Code, §§ 11380, 11409, 11422. Thus, a roofing company was properly convicted of violations of the district's rules and regulations (Health & Saf. Code, § 42400), where it conceded that the district gave proper advance notice of its rules and regulations, and where the company failed to overcome the presumption (Evid. Code, §§ 660, 664) that the district had regularly performed its official duty of filing its rules and regulations with the Air Resources Board as required by Health & Saf. Code, § 40704. People v. A-1 Roofing Service, Inc. (1978, Cal App Dep't Super Ct) 87 Cal App 3d Supp 1, 151 Cal Rptr 522, 1978 Cal App LEXIS 2200.

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