§ 25-7-115 — Enforcement - civil actions - definitions - reporting

Colorado § 25-7-115

• Jurisdiction: Colorado
• Title 25: Public
• Art.: Air Quality Control

Text

(1) (a) The
division shall enforce compliance with the emission control regulations of the
commission, the requirements of the state implementation plan, and the provisions
of parts 1 to 4 and part 11 of this article, including terms and conditions of any
permit required pursuant to this article.

(b) The division shall enforce the provisions of part 5 of this article pursuant
to sections 25-7-112, 25-7-113, and 25-7-511.

(2) (a) If a written complaint is filed with the division alleging that, or if the
division itself has cause to believe that, any person is violating or failing to comply
with any rule of the commission issued pursuant to parts 1 to 4 of this article 7,
order issued pursuant to section 25-7-118, requirement of the state implementation
plan, or provision of parts 1 to 4 of this article 7, including any term or condition of a
permit required pursuant to this article 7, the division shall cause a prompt and
diligent investigation to be made unless:

(I) The complaint clearly appears on its face to be frivolous, falsified, or
trivial; or

(II) The complainant withdraws the complaint within the time allotted for the
complaint to be investigated.

(b) Within thirty days after receipt of a complaint filed pursuant to
subsection (2)(a) of this section, the division shall respond to a complainant to
outline the steps of the complaint investigation.

(c) (I) If the division investigation determines that any violation or failure to
comply exists, the division shall act expeditiously and within the period prescribed
by law to formally notify the owner or operator of the air pollution source after the
discovery of the alleged violation or noncompliance. The notice must specify the
provision alleged to have been violated or not complied with and the facts alleged
to constitute the violation or noncompliance.

(II) If the division is acting in response to a complaint, the division shall notify
the complainant that an investigation has commenced at the time that the division
provides notice to the owner or operator of the air pollution source pursuant to
subsection (2)(c)(I) of this section.

(d) The division shall accept and consider all relevant evidence it receives or
acquires in investigating and determining whether a violation or noncompliance
occurred, including audio, video, and testimonial evidence, unless the evidence is,
on its face, falsified.

(3) (a) Within thirty calendar days after notice has been given, the division
shall confer with the owner or operator of the source to determine whether a
violation or noncompliance did or did not occur and, if such violation or
noncompliance occurred, whether a noncompliance penalty must be assessed
under subsection (5) of this section. The division shall provide an opportunity to the
owner or operator at such conference, and may provide further opportunity
thereafter, to submit data, views, and arguments concerning the alleged violation or
noncompliance or the assessment of any noncompliance penalty.

(b) (I) If, after the conference pursuant to subsection (3)(a) of this section,
the division determines that a violation or noncompliance has occurred, the division
shall issue an order requiring the owner or operator or any other responsible person
to comply.

(II) If a complaint is filed pursuant to subsection (2)(a) of this section alleging
the violation or noncompliance, the division shall send the order to the complainant.

(III) The order issued in accordance with subsection (3)(b)(I) of this section
may:

(A) Include the termination, alteration, or revocation and reissuance of the
subject permit;

(B) Include the assessment of civil penalties in accordance with section 25-7-122 and subsection (3)(b)(IV) of this section;

(C) In addition to civil penalties, include a requirement to perform one or
more projects to mitigate violations related to excess emissions;

(C.5) In addition to civil penalties, include a requirement to perform one or
more projects to reduce the potential for a recurrence of a violation for which the
division commenced enforcement pursuant to subsection (2)(c)(I) of this section;
and

(D) Require the calculation of a noncompliance penalty under subsection (5)
of this section.

(IV) In determining the amount to assess for a civil penalty for a violation or
noncompliance, the division shall:

(A) Consider the factors described in section 25-7-122 (2)(a); and

(B) Not assess a penalty for a violation or noncompliance that is less than the
economic benefit that the owner or operator derived from the violation or
noncompliance.

(V) Unless enforcement of its order has been stayed as provided in
subsection (4)(b) of this section, the division may seek enforcement, in the district
court for the district where the affected air pollution source is located, of:

(A) Pursuant to section 25-7-121 or 25-7-122, an applicable rule of the
commission;

(B) An order issued pursuant to section 25-7-121 or 25-7-122 or the
applicable rule of the commission;

(C) An order issued pursuant to section 25-7-118;

(D) A requirement of the state implementation plan;

(E) A provision of this article 7; or

(F) The terms or conditions of a permit required pursuant to this article 7.

(VI) The court shall issue an appropriate order, which may include a schedule
for compliance by the owner or operator of the source.

(c) The order for compliance shall set forth with specificity the final
determination of the division regarding the nature and extent of the violation or
noncompliance by the named persons and facilities and shall also include, by
reference, a summary of the proceedings at the conference held after the notice of
violation and an evaluation of the evidence considered by the division in reaching its
final determinations. Any order issued under this subsection (3) which is not
reviewed by the commission in accordance with the provisions of subsection (4) of
this section shall become final agency action.

(4) (a) (I) Within twenty calendar days after receipt of an order issued
pursuant to subsection (3) of this section, the recipient thereof may file with the
commission a written petition requesting a hearing to determine all or any of the
following:

(A) Whether the alleged violation or noncompliance exists or did exist;

(B) Whether a revision of the state implementation plan or revision of a
regulation or standard which is not part of the state implementation plan should be
implemented with respect to such violation or noncompliance;

(C) Whether the owner or operator is subject to civil or noncompliance
penalties under subsection (5) of this section.

(II) Such hearing shall allow the parties to present evidence and argument on
all issues and to conduct cross-examination required for full disclosure of the facts
and shall otherwise be conducted in accordance with section 25-7-119.

(III) If a hearing is requested pursuant to subsection (4)(a)(I) of this section,
the commission shall provide at least forty-five days' notice to any complainant that
filed a complaint pursuant to subsection (2)(a) of this section alleging a violation or
noncompliance at issue in the hearing. The complainant may participate as a party
to the hearing.

(b) Except with respect to actions taken pursuant to section 25-7-112 or 25-7-113, upon the filing of such petition, the order and the provisions of the state
implementation plan which relate to the alleged violation or noncompliance shall be
stayed pending determination of the petition by the commission. Any stay pursuant
to this paragraph (b) shall be effective only as to the specific source covered by the
order and such petition.

(5) (a) (I) Any order issued pursuant to subsection (3) of this section which
pertains to an alleged violation described in section 120(a)(2)(A) of the federal act
shall also require each person who is subject to such order, within forty-five
calendar days after the issuance of such order, to calculate the penalty owed in
accordance with paragraph (b) of this subsection (5) and submit the calculation,
together with a payment schedule and all information necessary for an independent
verification thereof, to the division. If the order has been stayed pursuant to
subsection (4) of this section, the penalty calculation shall be submitted by the
owner or operator to the division within forty-five calendar days after issuance of a
final determination of the commission that:

(A) A violation or noncompliance occurred;

(B) If a revision to the state implementation plan has been requested, all or
part of such request should be denied; except that, if only part of such request is
denied, the penalty calculation shall not be submitted for any aspect of the
violation or noncompliance which is excused by reason of approval of a requested
revision of the state implementation plan;

(C) The violation is one described in section 120(a)(2)(A) of the federal act;
and

(D) If an exemption pursuant to subsection (7) of this section has been
claimed, the owner or operator is not entitled thereto.

(II) The division shall review the penalty calculation and schedule submitted
pursuant to subparagraph (I) of this paragraph (a) and shall issue an order
assessing the noncompliance penalty and providing a payment schedule therefor.

(b) (I) The amount of the penalty which shall be assessed under this
subsection (5) shall be equal to:

(A) The amount, determined in accordance with section 120 of the federal act
and rules and regulations promulgated under said act by the United States
environmental protection agency, which shall be no less than the sum of the
quarterly equivalent of the capital costs of compliance and debt service over a
normal amortization period of not longer than ten years, operation and maintenance
costs foregone as a result of noncompliance, and any additional value which a delay
in compliance beyond July 1, 1979, may have for the owner or operator of such
stationary source; less

(B) The amount of any expenditure made by the owner or operator of such
stationary source during any such quarter for the purpose of bringing the source
into, and maintaining compliance with, such requirement to the extent that such
expenditure has not been taken into account in the calculation of the penalty under
sub-subparagraph (A) of this subparagraph (I).

(II) To the extent that any expenditure under sub-subparagraph (B) of
subparagraph (I) of this paragraph (b) made during any quarter is not subtracted for
such quarter from the costs under sub-subparagraph (A) of subparagraph (I) of this
paragraph (b), such expenditure may be subtracted for any subsequent quarter
from such costs; except that in no event shall the amount paid be less than the
quarterly payment minus the amount attributed to the actual cost of construction.

(c) Any penalty assessed pursuant to subsections (5) to (11) of this section
shall be paid in equal quarterly installments (except as provided in sub-subparagraph (B) of subparagraph (I) of paragraph (b) of this subsection (5)) for the
period which begins either August 7, 1979, if notice pursuant to subsection (2) of
this section is issued on or before such date or which begins on the date of issuance
of notice pursuant to subsection (2) of this section if such notice is issued after
August 7, 1979, and which period ends on the date on which such stationary source
is estimated to come into compliance.

(d) Any person who fails to pay the amount of any penalty with respect to
any stationary source under this subsection (5) on a timely basis shall be required
to pay, in addition, a quarterly nonpayment penalty for each quarter during which
such failure to pay persists. Such nonpayment penalty shall be in an amount equal
to twenty percent of the aggregate amount of such person's penalties and
nonpayment penalties with respect to such stationary source which are unpaid as
of the beginning of such quarter.

(6) Within twenty calendar days after issuance of an order under
subparagraph (II) of paragraph (a) of subsection (5) of this section, the owner or
operator may file with the commission a written petition requesting a hearing to
review such order. Within sixty calendar days after the filing of such petition, the
commission shall hold a hearing and issue a decision thereon.

(7) (a) The owner or operator of any stationary source shall be exempt from
the duty to pay a noncompliance penalty pursuant to this section if after notice the
owner or operator demonstrates at a hearing that the failure of such stationary
source to comply is due solely to:

(I) The conversion by such stationary source from the burning of petroleum
products or natural gas, or both, as the primary energy source to the burning of coal
pursuant to an order under section 119 of the federal act;

(II) In the case of a coal-burning source granted an extension under section
119 of the federal act, a prohibition from using petroleum products or natural gas, or
both, by reason of an order under the provisions of section 2 (a) and (b) of the
federal Energy Supply and Environmental Coordination Act of 1974 or under any
legislation which amends or supersedes those provisions;

(III) The use of innovative technology sanctioned by an enforcement order
under section 113 (d)(4) of the federal act;

(IV) An inability to comply with such requirements for which the stationary
source has received an order pursuant to section 25-7-118, which inability results
from reasons entirely beyond the control of the owner or operator of such
stationary source or of any entity controlling, controlled by, or under common
control with the owner or operator of such stationary source; or

(V) The conditions by reason of which a temporary emergency suspension is
authorized under section 110 (f) or (g) of the federal act;

(b) The division may, after notice and opportunity for a public hearing,
exempt the owner or operator of any stationary source from the duty to pay a
noncompliance penalty pursuant to this section with respect to a particular
instance of noncompliance if it finds that the instance of noncompliance is
inconsequential in nature and duration. If a public hearing is requested by an
interested person, the request must be transmitted to the commission within
twenty calendar days after its receipt by the division. The commission shall, within
sixty calendar days after its receipt of the request, hold a public hearing, and within
thirty calendar days after the hearing, issue its decision.

(c) An exemption under this subsection (7) shall cease to be effective if the
stationary source fails to comply with the interim emission control requirements or
schedules of compliance, including increments of progress, under any such
extension, order, or suspension.

(8) If the owner or operator of a stationary source who receives an order
pursuant to subsection (5) of this section fails to submit a calculation of the
penalty, a schedule for payment, and the information necessary for an independent
verification thereof, the division may enter into a contract with a person who has no
financial interest in the ownership or operation of the stationary source or in any
person controlling, controlled by, or under common control with such stationary
source to assist in determining the penalty assessment or payment schedule with
respect to such stationary source. The cost of such contract may be added to the
penalty to be assessed against the owner or operator of such stationary source.

(9) (a) The division or the commission may adjust the amount of the penalty
assessment or the payment schedule proposed by the owner or operator if the
administrator of the United States environmental protection agency determines
that the penalty or schedule does not meet the requirements of the federal act.

(b) Upon making a determination that a stationary source which is subject to
a penalty assessment pursuant to this section is in compliance, the division shall
review the actual expenditures made by the owner or operator of such stationary
source for the purpose of attaining and maintaining compliance and, within one
hundred eighty days after such stationary source comes into compliance, shall
either provide reimbursement with interest at appropriate prevailing rates for any
overpayment by such person or assess and collect any additional payment with
interest at prevailing rates for any underpayment by such person.

(10) Any orders, payments, sanctions, or other requirements under this
section shall be in addition to any other orders, payments, sanctions, or other
requirements of this article.

(11) The division or the commission may request the district attorney for the
district in which the alleged violation or noncompliance, or any part thereof,
occurred or may request the attorney general to bring, and if so requested it is his
or her duty to bring, a suit for recovery of any penalty or nonpayment penalty, with
interest, imposed pursuant to subsection (5) of this section if the penalty is not paid
when due.

(12) (a) Repealed.

(b) On or before April 1, 2025, and on or before February 1 of each year
thereafter, the division shall prepare an air quality enforcement report and post the
report on the division's website. The first report must cover the federal fiscal year
starting October 1, 2023, through September 30, 2024, and each subsequent report
must cover the federal fiscal year period of October 1 through September 30
preceding the issuance of the report. The reports prepared pursuant to this
subsection (12)(b) must include the following statewide information:

(I) The total number of enforcement actions that the division commenced
pursuant to subsection (2)(c)(I) of this section;

(II) The number of complaints received pursuant to subsection (2)(a) of this
section that resulted in an enforcement action that the division commenced under
subsection (2)(c)(I) of this section and the identifying case number;

(III) The total number of decisions not to impose a penalty for an
enforcement action that the division commenced pursuant to subsection (2)(c)(I) of
this section;

(IV) The total number of formal enforcement actions that the division
resolved pursuant to subsection (3)(b) of this section and the total number of
actions that included violations within areas of concern, such as:

(A) The area that the United States environmental protection agency has
designated an ozone nonattainment area; and

(B) An area that is in a disproportionately impacted community; and

(V) With respect to civil penalties assessed pursuant to section 25-7-122
(1)(b), the total amount of civil penalties, the average civil penalty, the median civil
penalty, the highest civil penalty, the lowest civil penalty, and the total amount of
civil penalties assessed for each action that includes violations in areas of concern,
such as:

(A) The area that the United States environmental protection agency has
designated an ozone nonattainment area; and

(B) An area that is in a disproportionately impacted community.

(13) The division shall implement an air quality enforcement email mailing
group or a similar communication function to share enforcement-related updates
with interested parties that opt in to the email mailing group or similar
communication function. The division may share information through the email
mailing group or similar communication function that includes:

(a) A notice of violation or noncompliance sent pursuant to subsection
(2)(c)(I) of this section;

(b) A settlement or other order issued pursuant to subsection (3)(b) of this
section to resolve a case; and

(c) A link to the annual air quality enforcement benchmark report that the
division prepares pursuant to subsection (12) of this section.

Legislative History

Source: L. 79: Entire article R&RE, p. 1034, � 1, effective June 20. L. 84: IP(4)(a), (4)(b), IP(5)(a)(I), (6), (7)(b), (9)(a), and (11) amended, p. 771, � 7, effective July 1. L. 87: (1) and (2) amended, p. 1152, � 6, effective July 1. L. 92: (1)(a), (2), (3)(b), (3)(c), and (4)(a) amended, p. 1217, � 19, effective July 1. L. 97: (1)(a) amended, p. 1090, � 3, effective July 1. L. 2016: (11) amended, (HB 16-1094), ch. 94, p. 268, � 15, effective August 10. L. 2021: (3)(b) amended, (HB 21-1266), ch. 411, p. 2735, � 11, effective July 2. L. 2023: (2), (3)(b), and (7)(b) amended and (4)(a)(III) added, (HB 23-1294), ch. 401, p. 2405, � 3, effective June 6. L. 2024: IP(3)(b)(III) and (3)(b)(III)(C) amended and (3)(b)(III)(C.5), (12), and (13) added, (SB 24-229), ch. 183, p. 987, � 3, effective May 16.