(1) Legislative
declaration. The general assembly hereby declares that the public policy of this
state is to protect state waters and the environment from impairment or
degradation due to the improper use of agricultural chemicals while allowing for
their proper and correct use, in particular, to provide for the management of
agricultural chemicals to prevent, minimize, and mitigate their presence in state
waters and to provide for the education and training of agricultural chemical
applicators and the general public regarding the protection of state waters,
agricultural chemical use, and the use of other agricultural methods.
(2) Repealed.
(3) Powers and duties of the commissioner of agriculture. (a) The
commissioner of agriculture shall identify agricultural management areas in the
state.
(b) The commissioner shall promulgate rules for the following:
(I) Facilities for the storage of pesticides in bulk, except for facilities storing
pesticides used for water treatment at public water systems, which are systems
used to provide the public with piped water for human consumption, and domestic
wastewater treatment works;
(II) Mixing and loading areas where any of the following are handled in any
one-year period:
(A) Five hundred gallons or more, in the aggregate, of formulated product or
combination of formulated products of liquid pesticides;
(B) Three thousand pounds or more, in the aggregate, of formulated product
or combination of formulated products of dry pesticides;
(C) One thousand five hundred pounds or more, in the aggregate, of active
ingredients of pesticides;
(III) Storage facilities where any liquid fertilizer is stored in any container or
series of interconnected containers having a capacity greater than five thousand
gallons;
(IV) Storage facilities where fifty-five thousand pounds or more, in the
aggregate, of formulated product or combination of formulated products of bulk
dry fertilizer are stored;
(V) Mixing and loading areas at any storage facility subject to the provisions
of this section.
(b.1) No rule promulgated pursuant to paragraph (b) of this subsection (3)
shall apply to any field mixing and loading of agricultural chemicals.
(b.2) Every rule promulgated pursuant to paragraph (b) of this subsection (3)
shall include a three-year phase-in period after promulgation of the rule for persons
subject to the rule.
(b.3) Pursuant to paragraph (h) of this subsection (3), the commissioner is
authorized to enforce rules promulgated pursuant to paragraph (b) of this
subsection (3).
(c) The commissioner may, in his discretion, develop best management
practices for any other activity relating to the use of any agricultural chemical.
(d) If the commissioner determines that the use of best management
practices is ineffective or insufficient to prevent or mitigate the pollution of state
waters, the commissioner may require, by rule adopted pursuant to article 4 of title
24, the use of agricultural management plans.
(e) The commissioner is authorized to adopt, pursuant to article 4 of title 24,
C.R.S., any other reasonable rules and regulations for the administration and
implementation of this section.
(f) The commissioner is authorized to enter into an agreement with the
Colorado cooperative extension service to provide training and education as
specified in subsection (4) of this section.
(g) The commissioner shall perform the monitoring specified in subsection
(5) of this section. The commissioner shall enter into an agreement with the
department of public health and environment to assist in the identification of
agricultural management areas and to perform analysis, interpretation, and
reporting of state waters monitoring data supplied by the commissioner.
(h) With respect to any rule or regulation adopted pursuant to paragraph (b)
of this subsection (3) only, the commissioner shall have the following investigation
and enforcement powers:
(I) At any reasonable time during regular business hours, the commissioner
shall have free and unimpeded access upon consent or upon obtaining an
administrative search warrant:
(A) To all areas, buildings, yards, warehouses, and storage facilities in which
any agricultural chemicals are kept, stored, handled, processed, or transported; and
(B) To all records, if any, required to be kept and to make copies of such
records.
(II) The commissioner shall have full authority to administer oaths and take
statements, to issue administrative subpoenas requiring the attendance of
witnesses before him and the production of all books, memoranda, papers, and
other documents, articles, or instruments, and to compel the disclosure by such
witnesses of all facts known to them relative to the matters under investigation.
Upon the failure or refusal of any witness to obey any subpoena, the commissioner
may petition the district court, and, upon a proper showing, the court may enter an
order compelling the witness to appear and testify or produce documentary
evidence. Failure to obey such an order of the court shall be punishable as a
contempt of court.
(III) Any complaints of record made to the commissioner and the results of
his investigations may, in the discretion of the commissioner, be closed to public
inspection, except as provided by court order, during the investigatory period and
until dismissed or until notice of hearing and charges are served on any such person
subject to a rule or regulation adopted pursuant to paragraph (b) of this subsection
(3).
(IV) (A) Whenever the commissioner has reasonable cause to believe that a
violation of any rule or regulation adopted pursuant to paragraph (b) of this
subsection (3) has occurred and immediate enforcement is deemed necessary, he
may issue a cease-and-desist order, which may require any person to cease
violating any such rule or regulation. Such cease-and-desist order shall set forth
the rule or regulation alleged to have been violated, the facts alleged to have
constituted the violation, and the requirement that all actions be ceased forthwith.
(B) At any time after the date of the service of the order to cease and desist,
the person may request a hearing on the question of whether or not such violation
has occurred. Such hearing shall be concluded in not more than ten days after such
request, excluding Saturdays, Sundays, and any legal holidays, and shall be
conducted pursuant to the provisions of article 4 of title 24, C.R.S.
(C) In the event that any person fails to comply with a cease-and-desist order
within twenty-four hours, the commissioner may bring a suit for a temporary
restraining order and injunctive relief to prevent any further or continued violation
of such order.
(D) No stay of a cease-and-desist order shall be issued before a hearing
thereon involving both parties.
(E) Matters brought before a court pursuant to this section shall have
preference over other matters on the court's calendar.
(V) Whenever the commissioner possesses evidence satisfactory to him that
any person has engaged in or is about to engage in any act or practice constituting
a violation of any rule or regulation adopted pursuant to paragraph (b) of this
subsection (3), he may apply to any court of competent jurisdiction to temporarily
or permanently restrain or enjoin the act or practice in question and to enforce
compliance with the rule or regulation. In any such action, the commissioner shall
not be required to plead or prove irreparable injury or the inadequacy of the remedy
at law. Under no circumstances shall the court require the commissioner to post a
bond.
(VI) (A) Any person who violates any rule or regulation adopted pursuant to
paragraph (b) of this subsection (3) is subject to a civil penalty, as determined by
the commissioner. The maximum penalty shall not exceed one thousand dollars per
violation. Each day the violation occurs shall constitute a separate violation.
(B) No civil penalty may be imposed unless the person charged is given
notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.
(C) If the commissioner is unable to collect such civil penalty or if any person
fails to pay all or a set portion of the civil penalty as determined by the
commissioner, the commissioner may recover such amount plus costs and attorney
fees by action in any court of competent jurisdiction.
(D) Before imposing any civil penalty, the commissioner may consider the
effect of such penalty on the ability of the person charged to stay in business.
(4) Training and education. The Colorado cooperative extension service,
acting in cooperation with the commissioner of agriculture and pursuant to any
contract authorized in paragraph (f) of subsection (3) of this section, shall
disseminate information and provide training regarding agricultural management
areas, best management practices, and agricultural management plans.
(5) Monitoring. Pursuant to the commissioner's duties as set forth in any
contract authorized in subsection (3)(g) of this section, the commissioner shall
identify agricultural management areas and shall conduct monitoring programs to
determine:
(a) The presence of any agricultural chemical in state waters at a level that
meets or exceeds any water quality standard applicable under this article 8 or that
has a reasonable likelihood of meeting or exceeding any such standard; or
(b) The likelihood that an agricultural chemical will enter the state waters,
based upon the existence of sufficient, valid scientific data that reasonably predict
the behavior of a particular agricultural chemical in the soil.
(6) Reporting of monitoring results - regulation. (a) If the division
determines that any agricultural chemical exists at a level which meets or exceeds
any water quality standard or which has a reasonable likelihood of meeting or
exceeding any such standard, it shall so notify the commissioner of agriculture and
shall provide him with any written reports it deems necessary or desirable to define
the extent of such occurrence. When the commissioner has been notified of such an
occurrence related to an agricultural chemical which is registered as a pesticide, he
shall take reasonable steps to notify the registrant of any such pesticide. When the
commissioner has been notified of such an occurrence related to any other
agricultural chemical, he shall take reasonable steps to notify the distributors of
such chemical in the area affected by such occurrence.
(b) Unless such occurrence is determined by the commissioner of agriculture
and the water quality control commission to require a control regulation as set forth
in paragraph (c) of this subsection (6), the commissioner of agriculture may
promulgate rules and regulations regarding the use of any agricultural chemical
giving rise to the occurrence.
(c) If continued monitoring reveals that rules and regulations adopted by the
commissioner pursuant to this section are not preventing or mitigating the
presence of the subject agricultural chemical to the extent necessary, the
commissioner of agriculture and the water quality control commission shall confer
and determine whether an amendment to such rules and regulations may be
sufficient to prevent or mitigate the occurrence to the extent necessary. Only if the
commissioner of agriculture and the water quality control commission determine
that such rules and regulations have been or will be insufficient to meet the
requirements of state law or the federal act shall the occurrence be referred to the
water quality control commission for the promulgation of a control regulation. In
the event that the commissioner of agriculture and the water quality control
commission fail to agree on such a determination, the authority of the water quality
control commission shall be final.
(7) Promulgation of control regulations. (a) With respect to the regulation
of pollutants from agricultural chemicals, the water quality control commission is
authorized to promulgate control regulations only when:
(I) Any occurrence has been referred to the commission pursuant to
subsection (6) of this section; or
(II) Incentive, grant, and cooperative programs are determined by the water
quality control commission to be inadequate as set forth in section 25-8-205 (5).
(b) Any such control regulations shall be promulgated in consultation with
the commissioner of agriculture.
(8) Groundwater protection fund - transfer of moneys to the plant health,
pest control, and environmental protection cash fund - fees. The fees as specified
and collected pursuant to sections 35-9-118 (3)(a) and 35-12-106 (1), C.R.S., and any
civil fines imposed pursuant to subparagraph (VI) of paragraph (h) of subsection (3)
of this section shall be transmitted to the state treasurer, who shall credit the same
to the plant health, pest control, and environmental protection cash fund created in
section 35-1-106.3, C.R.S. Within sixty days after July 1, 2009, the unexpended and
unencumbered balance of the groundwater protection fund, as that fund existed
prior to July 1, 2009, shall be transferred to the plant health, pest control, and
environmental protection cash fund.
(9) Repealed.