(1) On or after the
date specified in section 25-15-102 (3), no person shall:
(a) Dispose of any hazardous waste off-site at any facility that does not have
state or federal interim status, a federal permit, or a permit granted by the
department pursuant to section 25-15-303;
(b) Dispose of on-site, treat, or store any hazardous waste without having
therefor either state or federal interim status, a federal permit, or a permit granted
by the department pursuant to section 25-15-303;
(c) Substantially alter any hazardous waste treatment, storage, or disposal
facility or site without first obtaining from the department a modification of an
existing permit or a new permit.
(2) (a) Whenever the department finds that a person is or has been in
violation of any permit, rule, regulation, or requirement of this part 3 or part 10 of
article 17 of this title 25, the department may issue an order identifying the factual
and legal elements of such violation with particularity and requiring such person to
comply with any such permit, rule, regulation, or requirement and may request the
attorney general to bring suit for injunctive relief or for penalties pursuant to
section 25-15-309 or 25-15-310.
(b) Such orders may contain an administrative penalty assessment as
provided in section 25-15-309. Issuance of an administrative order without a
penalty assessment shall not preclude the department from subsequently seeking
an administrative or civil penalty for the violations detailed in the order. A hearing
pursuant to section 24-4-105, C.R.S., shall not be required prior to the issuance of
an order pursuant to this section.
(c) Any order issued pursuant to this section shall be served upon the person
who is the subject of such order by personal service or by registered mail, return
receipt requested. Any such order may be prohibitory or mandatory in effect. Unless
provided otherwise in such order, the order shall be effective immediately upon
issuance.
(3) (a) Any appeal of an order issued by the department pursuant to this
section shall be taken in accordance with the provisions of this section. Notice of
appeal shall be filed by personal service or by registered mail, return receipt
requested, with the office of administrative courts in the department of personnel,
with the executive director of the department or the executive director's designee,
and with the commission in the case of an appeal of an administrative law judge's
determination concerning an administrative penalty assessment. Notice of appeal
shall be filed no later than thirty calendar days after the effective date of the order
which is the subject of the appeal.
(b) The filing of an appeal of any order shall stay the obligation to submit
payment of any monetary penalty pursuant to such order. Such filing shall not
negate the appellant's obligation to otherwise comply with the order. An appellant
may seek a stay of any other provision of an order in accordance with this section.
The issuance of a stay shall not prevent the department from subsequently
imposing a penalty for any subsequent violation by an appellant.
(c) Any person appealing an order may make a motion that the administrative
law judge stay the enforcement of such order. The administrative law judge may
stay the enforcement of any portion of an order if the administrative law judge
determines that the balance of equities favors the moving party. An administrative
law judge shall consider the following factors in considering a request for a stay of
an order:
(I) The probability of serious harm to the moving party if the motion for a stay
is denied;
(II) The probability that no serious harm to the public health or the
environment will occur if the motion for a stay is granted;
(III) The merits of the moving party's case on appeal; and
(IV) The public interest.
(d) The stay of any portion of an order shall have no effect on the recipient's
obligations under applicable statutes, regulations, permits, and valid, existing
orders.
(e) The administrative law judge shall expedite hearing and determinations in
regards to a motion for a stay pursuant to this subsection (3). The moving party
shall have the burden of proof in any hearing regarding a motion for a stay.
(f) Any hearing held by an administrative law judge pursuant to this section
shall be conducted in accordance with section 24-4-105, C.R.S., except as
otherwise provided in this section. Except as provided in paragraph (e) of this
subsection (3), the department shall bear the burden of proof by a preponderance
of the evidence in any hearing before an administrative law judge pursuant to this
section.
(g) Upon motion of a party to the appeal, and in the discretion of the
administrative law judge, an administrative law judge may request an interpretive
rule from the commission pertaining to any rule which is at issue in the appeal only
in the event that there is no genuine issue of material fact or in the event that the
parties have stipulated to the material facts for the purposes of such interpretive
rule. The administrative law judge may adjust the schedule of the appeal to
accommodate the receipt of such information. Notwithstanding the provisions of
section 24-4-103 (1), C.R.S., in the event that an interpretive rule is requested by an
administrative law judge and the commission agrees to issue such an interpretation,
notice to the public of the interpretive rule-making proceeding shall be given in
accordance with the provisions of section 24-4-103, C.R.S. Such notice shall be
provided within forty-five days following the receipt of the request. The commission
shall accept written material, not to exceed fifteen pages in length, that is received
from any interested person no later than fifteen days following the date that
notification is given. The commission shall issue the written interpretive rule no
later than thirty days following the deadline for the receipt of any such written
material. The legal effect of any such interpretive rule shall be determined in
accordance with applicable law and is not presumed to be binding on any party to
the appeal.
(h) Except as provided in paragraph (i) of this subsection (3) and
notwithstanding the provisions of section 24-4-105 (15), C.R.S., any appeal of the
determination of the administrative law judge pursuant to this section or section
25-15-301 (4)(b) shall be taken to the district court in accordance with section 24-4-106, C.R.S.
(i) Questions raised upon appeal of the determination of an administrative
law judge as to the amount of penalty assessed by an order issued pursuant to this
section shall be heard by the commission based upon the record developed by the
administrative law judge. Notwithstanding the provisions of section 24-4-103 (1),
C.R.S., in the event that the commission is requested to review the amount of a
penalty, notice to the public of such penalty review shall be given in accordance
with the provisions of section 24-4-103, C.R.S. Such notice shall be provided within
forty-five days following receipt of such request for review of a penalty.
(4) (a) Any action pursuant to this part 3 or part 10 of article 17 of this title 25
shall commence within two years after the date upon which the department
discovers an alleged violation of this part 3 or part 10 of article 17 of this title 25 or
within five years after the date upon which the alleged violation occurred,
whichever date occurs earlier; except that such limitation period is tolled during
any period that the alleged violation is intentionally concealed.
(b) If any action has not been commenced within the limitation period
provided by paragraph (a) of this subsection (4) in connection with any disposal of
hazardous waste without either state or federal interim status, a federal permit, or a
permit granted by the department pursuant to section 25-15-303, the department,
within two years after the date upon which the department discovers such disposal,
may issue an order pursuant to this section requiring action to remediate such
disposal. The department is not authorized under these circumstances to seek any
administrative, civil, or criminal penalties for such disposal of hazardous waste.
(5) As used in this section, intentionally has the meaning set forth in
section 18-1-501 (5).