8-4-103. Criminal, civil, and administrative penalties.

8-4-103. Criminal, civil, and administrative penalties. (a)Criminal Penalties. (1)(A) Any person that violates any provision of this chapter, that commits any unlawful act under it, or that violates any rule or order of the Arkansas Pollution Control and Ecology Commission or the Division of Environmental Quality shall be guilty of a misdemeanor. (B)(i) Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to: (a) Imprisonment for not more than one (1) year; (b) A fine of not more than twenty-five thousand dollars ($25,000); or (c) Both such fine and imprisonment. (ii) For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense. (2)(A) It shall be unlawful for a person to: (i) Violate any provision of this chapter, commit any unlawful act under it, or violate any rule or order of the commission or the Division of Environmental Quality and leave the state or remove his or her person from the jurisdiction of this state; (ii) Purposely, knowingly, or recklessly cause pollution of the waters or air of the state in a manner not otherwise permitted by law and thereby create a substantial likelihood of adversely affecting human health, animal or plant life, or property; or (iii) Purposely or knowingly make any false statement, representation, or certification in any document required to be maintained under this chapter or falsify, tamper with, or render inaccurate any monitoring device, method, or record required to be maintained under this chapter. (B)(i) A person that violates subdivision (a)(2)(A) of this section shall be guilty of a felony. (ii)(a) Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to: (1) Imprisonment for not more than five (5) years; (2) A fine of not more than fifty thousand dollars ($50,000); or (3) Both such fine and imprisonment. (b) For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense. (3)(A) Any person that purposely, knowingly, or recklessly causes pollution of the waters or air of the state in a manner not otherwise permitted by law and thereby places another person in imminent danger of death or serious bodily injury shall be guilty of a felony. (B)(i) Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to: (a) Imprisonment for not more than twenty (20) years; (b) A fine of not more than two hundred fifty thousand dollars ($250,000); or (c) Both such fine and imprisonment. (ii) For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense. (4) Notwithstanding the limits on fines set in subdivisions (a)(1)-(3) of this section, if a person convicted under subdivision (a)(1) of this section, subdivision (a)(2) of this section, or subdivision (a)(3) of this section has derived or will derive pecuniary gains from commission of the offenses, then the person may be sentenced to pay a fine not to exceed two (2) times the amount of the pecuniary gain. (b) Civil Penalties. The Division of Environmental Quality may institute a civil action in any court of competent jurisdiction to accomplish any of the following: (1) Restrain any violation of or compel compliance with the provisions of this chapter and of any rules, orders, permits, or plans issued pursuant to this chapter; (2) Affirmatively order that remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of this chapter; (3) Recover all costs, expenses, and damages to the Division of Environmental Quality and any other agency or division of the state in enforcing or effectuating the provisions of this chapter, including, but not limited to, natural resource damages; (4) Assess civil penalties in an amount not to exceed ten thousand dollars ($10,000) per day for violations of this chapter and of any rules, permits, or plans issued pursuant to this chapter; or (5) Recover civil penalties assessed pursuant to subsection (c) of this section. (c)(1)(A) Any person that violates any provision of this chapter and rules, permits, or plans issued pursuant to this chapter may be assessed an administrative civil penalty not to exceed ten thousand dollars ($10,000) per violation. (B) Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessment. (2)(A) No civil penalty may be assessed until the person charged with the violation has been given the opportunity for a hearing in accordance with rules adopted by the commission. (B) All hearings and appeals arising under this chapter shall be conducted in accordance with the procedures prescribed by §§ 8-4-205, 8-4-212, and 8-4-218 — 8-4-229. (C) These administrative procedures may also be used to recover all costs, expenses, and damages to the Division of Environmental Quality and any other agency or subdivision of the state in enforcing or effectuating the provisions of this chapter, including, but not limited to, natural resource damages. (d)(1)(A) Before assessing a civil penalty under subsection (c) of this section, the Director of the Division of Environmental Quality shall provide public notice of and a reasonable opportunity to comment on the proposed issuance of the order. (B) If the civil penalty is being assessed under an order on consent, the order shall not be effective until thirty (30) days after the publication of notice of the order. (C) Notice shall also be given to each member of the commission. (D) If a civil penalty is being assessed for a violation that occurs within the corporate limits of any municipality in Arkansas, a copy of the public notice shall be delivered to the chief executive officer of the municipality in which the alleged violation occurred, along with a copy of any proposed order concerning the violation, and the municipality shall be given a reasonable opportunity to comment on the proposed order consistent with the public notice and comment requirements of this chapter and rules promulgated under this chapter. (2) Notice of any administrative enforcement order shall contain the following: (A) The identity of the person or facility alleged to be in violation; (B) The location by city or county of the alleged violation; (C) A brief description by environmental media, that is, water, air, solid waste, or hazardous waste, impacted by the alleged violation; (D) The type of administrative action proposed, that is, a consent order, a notice of violation, or an emergency order; and (E) The amount of penalty to be assessed. (3)(A) Any person that comments on a proposed assessment of a penalty under this subsection shall be given notice of any hearing held under this subsection. (B) In any hearing held under this subsection, the person shall have a right to intervene upon timely application. (4)(A)(i) If no adjudicatory hearing is held on a proposed order, any person that commented on the proposed order may petition the commission to set aside the order and provide an adjudicatory hearing. (ii) A petition to set aside such an order must be filed with the commission within thirty (30) days of service of the order. (B) If the evidence presented by the petitioner is material and was not considered in the issuance of the order and the commission finds in light of the new evidence that the order is not reasonable and appropriate, it may set aside the order and provide a hearing. (C) If the commission denies a hearing under this subdivision (d)(4), it shall provide to the petitioner notice of and its reasons for the denial. The denial of such a hearing may be appealed pursuant to § 8-4-222. (5) On its own initiative, the commission may institute review of any enforcement action taken by the director within thirty (30) days of the effective date of the order. (e) As an alternative to the limits on civil penalties set in subsections (b) and (c) of this section, if a person found liable in actions brought under subsection (b) of this section or subsection (c) of this section has derived pecuniary gain from commission of the offenses, then he or she may be ordered to pay a civil penalty equal to the amount of the pecuniary gain. (f)(1) All moneys collected as reimbursement for expenses, costs, and damages to the Division of Environmental Quality shall be deposited into the operating fund of the Division of Environmental Quality. (2) All moneys collected as civil penalties shall be deposited into the Hazardous Substance Remedial Action Trust Fund as provided by § 8-7-509. (3)(A) In his or her discretion, the director may authorize in-kind services or cash contributions as partial mitigation of cash penalties for use in projects or programs designed to advance environmental interests. (B) The violator may provide in-kind services or cash contributions as directed by the Division of Environmental Quality by utilizing the violator's own expertise, by hiring and compensating subcontractors to perform the services, by arranging and providing financing for the services, or by other financial arrangements initiated by the Division of Environmental Quality in which the violator and the Division of Environmental Quality retain no monetary benefit, however remote. (C) The services shall not duplicate or augment services already provided by the Division of Environmental Quality through appropriations of the General Assembly. (4) All moneys collected that represent the costs, expenses, or damages of other agencies or subdivisions of the state shall be distributed to the appropriate governmental entity. (g)(1) Pursuant to duly promulgated ordinances or regulations, any governmental entity permitted to operate a publicly owned treatment works shall have the authority to collect in a court of competent jurisdiction civil or criminal penalties in an amount not to exceed one thousand dollars ($1,000) for each violation by industrial users of pretreatment standards or requirements. (2) Such a criminal or civil action may be initiated only after a majority vote of the entity's governing body resolves to pursue such an action. (3) For the purpose of this subsection, each day of a continuing violation may be deemed a separate violation. (h) The culpable mental states referenced throughout this section shall have the same definitions as set out in § 5-2-202. (i) Solicitation, as defined by § 5-3-301 et seq., or conspiracy, as defined by § 5-3-401 et seq., to commit any criminal act proscribed by this section and §§ 8-6-204 and 8-7-204 shall be punishable as follows: (1) Any solicitation or conspiracy to commit an offense under this section that is a misdemeanor shall be a misdemeanor subject to: (A) Fines not to exceed fifteen thousand dollars ($15,000) per day of violation; (B) Imprisonment for more than six (6) months; or (C) Both such fines and imprisonment; (2) Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of fifty thousand dollars ($50,000) per day or imprisonment up to five (5) years shall be a felony subject to: (A) Fines up to thirty-five thousand dollars ($35,000) per day; (B) Imprisonment up to two (2) years; or (C) Both such fines and imprisonment; (3) Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of one hundred thousand dollars ($100,000) per day or imprisonment up to ten (10) years shall be a felony subject to: (A) Fines up to seventy-five thousand dollars ($75,000) per day; (B) Imprisonment up to seven (7) years; or (C) Both such fines and imprisonment; and (4) Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of two hundred fifty thousand dollars ($250,000) per day or imprisonment up to twenty (20) years shall be a felony subject to: (A) Fines up to one hundred fifty thousand dollars ($150,000) per day; (B) Imprisonment up to fifteen (15) years; or (C) Both such fines and imprisonment. (j) In cases considering suspension of sentence or probation, efforts or commitments by the defendant to remediate any adverse environmental effects caused by the defendant's activities may be considered by the court to be restitution as contemplated by § 5-4-301. (k) A business organization or its agents or officers may be found liable under this section in accordance with the standards set forth in § 5-2-501 et seq. and sentenced to pay fines in accordance with the provisions of § 5-4-201(d) and (e). (l)(1) A person that uses a cleaning agent in violation of this chapter upon conviction is guilty of a violation and is subject to a fine not exceeding one hundred dollars ($100). (2) A person that sells, distributes, or manufactures a cleaning agent in violation of this chapter upon conviction is guilty of a violation and is subject to a fine not exceeding one thousand dollars ($1,000). (3)(A) The Division of Environmental Quality may seize any cleaning agent held for sale or distribution in violation of this chapter. (B) The seized cleaning agents are considered forfeited.