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HEALTH AND SAFETY CODE

Division 26 Air Resources

Part 4 Nonvehicular Air Pollution Control

Chapter 4 Enforcement

Article 3 Penalties

§ 42402. Violation of emission limitations; Civil penalty

(a) Except as provided in Sections 42402.1, 42402.2, 42402.3, and 42402.4, any person who violates this part, any order issued pursuant to Section 42316, or any rule, regulation, permit, or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than one thousand dollars ($1,000).

(b) (1) Any person who violates any provision of this part, any order issued pursuant to Section 42316, or any rule, regulation, permit or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than ten thousand dollars ($10,000).

(2) (A) If a civil penalty in excess of one thousand dollars ($1,000) for each day in which a violation occurs is sought, there is no liability under this subdivision if the person accused of the violation alleges by affirmative defense and establishes that the violation was caused by an act that was not the result of intentional nor negligent conduct.

(B) Subparagraph (A) shall not apply to a violation of federally enforceable requirements that occur at a Title V source in a district in which a Title V permit program has been fully approved.

(C) Subparagraph (A) does not apply to a person who is determined to have violated an annual facility emissions cap established pursuant to a market based incentive program adopted by a district pursuant to subdivision (b) of Section 39616.

(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) of Section 42400, to the health and safety of a considerable number of persons or the public, is liable for a civil penalty of not more than fifteen thousand dollars ($15,000).

(d) Each day during any portion of which a violation occurs is a separate offense.

Added Stats 1975 ch 957 § 12. Amended Stats 1979 ch 239 § 6, effective July 10, 1979; Stats 1981 ch 1127 § 2; Stats 1983 ch 608 § 2, effective September 1, 1983; Stats 1985 ch 414 § 2; Stats 1986 ch 1453 § 5; Stats 1992 ch 1252 § 6 (AB 1572); Stats 1993 ch 1166 § 15 (AB 2288); Stats 1994 ch 734 § 1 (SB 1000), effective September 21, 1994; Stats 2000 ch 805 § 10 (SB 1865).

Amendments:

1979 Amendment: (1) Deleted the comma after “41701”; (2) deleted “prohibiting or limiting the discharge of air contaminants into the air,” after “this part,”; and (3) added the second sentence.

1981 Amendment: (1) Designated the former section to be subd (a); (2) amended subd (a) by (a) deleting “intentionally or negligently” before “violates Section”; (b) adding the comma after “41701”; (c) substituting “one thousand dollars ($1,000)” for “five hundred dollars ($500)”; and (d) substituting “the” for “such” before “violation”; and (3) added subd (b).

1983 Amendment: (1) Added “or any order issued pursuant to Section 42316,” in the first sentence of subd (a); (2) substituted “is” for “shall be” after “this part,” in the first sentence of subd (a) and after “There” in subd (b); and (3) substituted “precludes” for “shall preclude” in the second sentence of subd (a).

1985 Amendment: Amended subd (a) by (1) substituting “any provision of this part” for “Section 41700 or 41701”; (2) adding “order, permit,”; (3) adding “, including a district hearing board,”; and (4) substituting “Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive” for “this part”.

1986 Amendment: (1) Amended the first sentence of subd (a) by (a) adding “Except as otherwise provided in Section 42402.1 or 42402.2,” at the beginning of the subdivision; (b) adding a comma after “rule”; (c) substituting “of not more than” for “not to exceed” after “penalty”; and (d) deleting “for each day in which the violation occurs” at the end of the sentence; (2) deleted the former second sentence of subd (a); (3) amended subd (b) by (a) deleting the comma after “subdivision(a)”; and (b) substituting “was” for “is” after “violation”; and (4) added subd (c).

1992 Amendment: (1) Amended subd (a) by (a) substituting “subdivision (b) or in Section 42402.1, 42402.2, or 42402.3” for “Section 42402.1 or 42402.2,”; and (b) adding “strictly” after “inclusive, is”; (2) adding subd (b)(1); (3) redesignated former subd (b) to be subd (b)(2); and (4) substituted “Where a civil penalty in excess of one thousand dollars ($1,000) for each day in which the violation occurs is sought, there is no liability under this subdivision” for “There is no liability under subdivision (a)” in the beginning of subd (b)(2).

1993 Amendment: (1) Deleted “any provision of” after “person who violates” in subd (a); (2) substituted “rule, regulation, permit, or order” for “order, permit, rule, or regulation” after “Section 42316, or any “each time it appears in subds (a) and (b); (3) added “strictly” after “, inclusive, is” in subd (b); and (4) added the last sentence in subd (b)(2).

1994 Amendment: (1) Redesignated former subd (b)(2) to be subd (b)(2)(A); (2) amended subd (b)(2)(A) by deleting (a) “Where” in the beginning; and (b) the last former sentence which read: “In a district in which a Title V permit program has been fully approved, this paragraph shall not apply to a violation of federally enforceable requirements that occurs at a Title V source.”; and (3) added subds (b)(2)(B) and (b)(2)(C).

2000 Amendment: (1) Amended subd (a) by (a) deleting “otherwise” after “Except as”; (b) substituting “Sections” for “subdivision (b) or in Section”; (c) deleting “or” after “42402.2,”; (d) adding “and 42402.4,”; (2) deleted the comma after “regulation, permit” in subd (b)(1); (3) amended subd (b)(2)(A) by (a) substituting “a violation” for “the violation”; (b) substituting “that was not” for “which was not”; (c) substituting “nor negligent” for “or negligent”; (4) substituted “shall not apply” for “does not apply” in subd (b)(2)(B); (5) substituting “market based” for “market-based” in subd (b)(2)(C); and (6) added subd (d).

Historical Derivation: (a) Former § 24369, as added Stats 1968 ch 747 § 2.

(b) Former § 39261, as added Stats 1970 ch 694 § 4, amended Stats 1973 ch 1028 § 1, ch 1110 § 1, Stats 1974 ch 455 § 4.

Note- Stats 1981 ch 1127 provides:

SECTION 1. The Legislature finds that vigorous enforcement of state and local air pollution regulations is important in providing cleaner air to the citizens of the state. The Legislature intends that, in carrying out this policy, enforcing agencies institute no civil penalty action for violations which fall within the range of error of measurement for each contaminant and enforcing agencies are encouraged to adopt guidelines to carry out this intent.

Stats 1993 ch 1166 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: Civil actions: H & S C §§ 42403, 42404.

Payment of penalty: H & S C § 42405.

Lien on vessel: H & S C § 42406.

Collateral References: 12 Witkin Summary (10th ed) Real Property §§ 899, 900.

Annotations:

Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute. 81 ALR3d 1258.

Liability insurance coverage for violations of antipollution laws. 88 ALR3d 182.

Liability insurance coverage for violations of antipollution laws. 87 ALR4th 444.

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