(1) The division of administration of the department may institute a civil action or administrative action, as described in subsection (2.5) of this section, against any person who violates a final enforcement order of the department issued for a violation of any minimum general sanitary standard or regulation adopted pursuant to section 25-1.5-202. Such civil action shall be brought in the district court of the county in which the violation of the standard or regulation is alleged to have occurred.
(2) Upon finding that a final enforcement order of the department has been violated and that the violation of the standard or regulation described in the order in fact occurred, the court shall:
(a) Impose a civil penalty on the violator of not more than one thousand dollars per day for each day the violation of the standard or regulation occurred if the court determines the violation was willful; or
(b) Enter such order as the public health may require, taking into consideration, where appropriate, the cost and time necessary to comply; or
(c) Impose such civil penalty and enter such order.
(2.5) (a) Any person who violates any minimum general sanitary standard and regulation promulgated pursuant to section 25-1.5-202 or 25-1-114 (1)(h), or any final enforcement order issued by the department, shall be subject to an administrative penalty as follows:
(I) For systems that serve a population of more than ten thousand people, an amount not to exceed one thousand dollars per violation per day; or
(II) For systems that serve a population of ten thousand people or less, an amount not to exceed one thousand dollars per violation per day, but only in an amount, as determined by the division, that is necessary to ensure compliance.
(b) Penalties under this subsection (2.5) shall be determined by the executive director or the executive director's designee and may be collected by the division of administration by an action instituted in a court of competent jurisdiction for collection of such penalty. The final decision of the executive director or the executive director's designee may be appealed to the water quality control commission, created pursuant to section 25-8-201. A stay of any order of the division ending judicial review shall not relieve any person from any liability with respect to past or continuing violations of any minimum general sanitary standard or any regulation promulgated pursuant to section 25-1.5-202 or 25-1-114 (1)(h), but the reason for the request for judicial review shall be considered in the determination of the amount of the penalty. In the event that such an action is instituted for the collection of such penalty, the court may consider the appropriateness of the amount of the penalty, if such issue is raised by the party against whom the penalty was assessed. Any administrative penalty collected under this section shall be credited to the general fund.
(3) The department may request the attorney general to bring a suit for a temporary restraining order or a preliminary or permanent injunction to prevent or abate any violation of a minimum general sanitary standard or regulation adopted pursuant to section 25-1.5-202 or to prevent or abate any release or imminent release that causes or is likely to cause contamination resulting in liability under section 25-1.5-207, and the department, in such a suit, may collect, on behalf of political subdivisions or public water systems, the damages incurred by such political subdivisions or public water systems under section 25-1.5-207. The department shall pay to such political subdivisions or public water systems all damages collected on their behalf. The department is not required to issue an enforcement order prior to institution of such a suit. Upon a de novo finding by the court that such a violation has occurred, is occurring, or is about to occur or that such release or imminent release exists, the court may enjoin such violation, release, or imminent release and enter such order as the public health may require, taking into consideration, where appropriate, the cost and time necessary to comply. An enforcement settlement with the state under the provisions of this subsection (3) shall bar a separate action by a political subdivision or public water system under section 25-1.5-207 whenever notice and adequate opportunity to comment on the proposed settlement have been given to the political subdivision or public water system, damages have been collected on behalf of and paid to such political subdivision or public water system by the state, and the release or imminent release has been prevented or abated by means of the settlement.
(4) Suits brought pursuant to subsection (3) of this section shall be brought in the district court of the county in which the violation is alleged to have occurred. The institution of such a suit by the division of administration shall confer upon such court exclusive jurisdiction to determine finally the subject matter of the proceeding; except that the exclusive jurisdiction of the court shall apply only to such proceeding and shall not preclude assessment of any civil penalties or any other enforcement action or sanction authorized by this section.
(4.5) An action for civil penalties under this section may be joined with a civil action to recover the state's costs pursuant to subsection (3) of this section.
(5) The powers of the department established by this section shall be in addition to, and not in derogation of, any powers of the department.
(6) (a) The attorney general, at the request of the department, or the district attorney of the county in which an affected public water system is located or the attorney of the supplier of water may institute a civil action against any person, association, or corporation, or the officers thereof, who tampers, attempts to tamper, or threatens to tamper with a public water system or with drinking water after its withdrawal for or treatment by a public water system. Such action shall be brought in the district court of the county in which the violation is alleged to have occurred. As used in this subsection (6), tamper means to introduce a contaminant into a public water system or into drinking water or to otherwise interfere with drinking water or the operation of a public water system with the intention of harming persons or public water systems. Tamper does not include the standardized and accepted treatment procedures performed by a supplier of water in preparing water for human consumption.
(b) Upon finding that tampering, attempting to tamper, or threatening to tamper has occurred, the court shall have the authority to:
(I) Order appropriate injunctive relief;
(II) Impose a civil penalty on the violator of not more than fifty thousand dollars for each act of tampering or of not more than twenty thousand dollars for each act of attempting to tamper or threatening to tamper;
(III) Impose on the violator all costs incurred by the state and by the affected public water system in assessing and remedying all consequences of the tampering, attempting to tamper, or threatening to tamper; and
(IV) Impose on the violator all court costs associated with remedying consequences of the tampering, attempting to tamper, or threatening to tamper.
(7) Any person subject to an action brought pursuant to subsection (3) of this section or section 25-1.5-207 shall have an affirmative defense to such action if such person's potential liability results from a discharge of contaminants or substances authorized by and in substantial compliance with an existing federal or state permit which controls the quality of the release of the contaminant or substance.
Source: L. 77: Entire section added, p. 1262, � 1, effective July 1. L. 83: (1) and (2) amended and (3) and (5) added, p. 1029, � 1, effective July 1. L. 87: (6) added, p. 610, � 22, effective July 1. L. 88: (3) amended and (4.5) and (7) added, p. 996, � 3, effective May 11. L. 98: (1) amended and (2.5) added, p. 889, � 2, effective August 5. L. 2003: (1), IP(2.5)(a), (2.5)(b), (3), and (7) amended, p. 706, � 32, effective July 1. L. 2008: (2.5)(b) amended, p. 430, � 1, effective August 5.
25-1-114.5. Voluntary disclosure arising from self-evaluation - presumption against imposition of administrative or civil penalties. (1) For the purposes of this section, a disclosure of information by a person or entity to any division or agency within the department of public health and environment regarding any information related to an environmental law is voluntary if all of the following are true:
(a) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person or entity;
(b) The disclosure arises out of a voluntary self-evaluation;
(c) The person or entity making the disclosure initiates the appropriate effort to achieve compliance, pursues compliance with due diligence, and corrects the noncompliance within two years after the completion of the voluntary self-evaluation. Where such evidence shows the noncompliance is the failure to obtain a permit, appropriate efforts to correct the noncompliance may be demonstrated by the submittal of a complete permit application within a reasonable time.
(d) The person or entity making the disclosure cooperates with the appropriate division or agency in the department of public health and environment regarding investigation of the issues identified in the disclosure.
(2) For the purposes of paragraph (c) of subsection (1) of this section, upon application to and at the discretion of the department of public health and environment, the time period within which the noncompliance is required to be corrected may be extended if it is not practicable to correct the noncompliance within the two-year period. A request for a de novo review of the decision of the department of public health and environment may be made to the appropriate district court or administrative law judge.
(3) If a person or entity is required to make a disclosure to a division or agency within the department of public health and environment under a specific permit condition or under an order issued by the division or agency, then the disclosure is not voluntary with respect to that division or agency.
(4) If any person or entity makes a voluntary disclosure of an environmental violation to a division or agency within the department of public health and environment, then there is a rebuttable presumption that the disclosure is voluntary and therefore the person or entity is immune from any administrative and civil penalties associated with the issues disclosed and is immune from any criminal penalties for negligent acts associated with the issues disclosed. The person or entity shall provide information supporting its claim that the disclosure is voluntary at the time that the disclosure is made to the division or agency.
(5) To rebut the presumption that a disclosure is voluntary, the appropriate division or agency shall show to the satisfaction of the respective commission in the department of public health and environment or the state board of health, if no respective commission exists, that the disclosure was not voluntary based upon the factors set forth in subsections (1), (2), and (3) of this section. A decision by the commission or the state board of health, whichever is appropriate, regarding the voluntary nature of a disclosure is final agency action. The division or agency may not include any administrative or civil penalty or fine or any criminal penalty or fine for negligent acts in a notice of violation or in a cease-and-desist order on any underlying environmental violation that is alleged absent a finding by the respective commission or the state board of health that the division or agency has rebutted the presumption of voluntariness of the disclosure. The burden to rebut the presumption of voluntariness is on the division or agency.
(6) The elimination of administrative, civil, or criminal penalties under this section does not apply if a person or entity has been found by a court or administrative law judge to have committed serious violations that constitute a pattern of continuous or repeated violations of environmental laws, rules, regulations, permit conditions, settlement agreements, or orders on consent and that were due to separate and distinct events giving rise to the violations, within the three-year period prior to the date of the disclosure. Such a pattern of continuous or repeated violations may also be demonstrated by multiple settlement agreements related to substantially the same alleged violations concerning serious instances of noncompliance with environmental laws that occurred within the three-year period immediately prior to the date of the voluntary disclosure.
(7) Except as specifically provided in this section, this section does not affect any authority the department of public health and environment has to require any action associated with the information disclosed in any voluntary disclosure of an environmental violation.
(8) Unless the context otherwise requires, the definitions contained in section 13-25-126.5 (2), C.R.S., apply to this section.
(9) This section applies to voluntary disclosures that are made and voluntary self-evaluations that are performed on or after June 1, 1994.
Source: L. 94: Entire section added, p. 1870, � 3, effective June 1; IP(1), (1)(d), (2), (3), (4), (5), and (7) amended, p. 2618, � 30, effective July 1. L. 99: (9) amended, p. 301, � 3, effective April 14.
Cross references: For the legislative declaration contained in the 1994 act amending the introductory portion to subsection (1) and subsections (1)(d), (2), (3), (4), (5), and (7), see section 1 of chapter 345, Session Laws of Colorado 1994.
25-1-114.6. Implementation of environmental self-audit law - pilot project - legislative declaration. (1) (a) The general assembly hereby finds and determines that, in order to encourage the regulated community to utilize the environmental self-audit provisions contained in this section and sections 25-1-114.5, 13-25-126.5, and 13-90-107 (1)(j), C.R.S., a pilot project is established. The general assembly hereby declares that the purpose of the environmental self-audit provisions contained in this section and sections 25-1-114.5, 13-25-126.5, and 13-90-107 (1)(j), C.R.S., is to encourage the regulated community to voluntarily identify environmental concerns and to address them expeditiously without fear of enforcement action by regulatory agencies. The general assembly recognizes that, due to concerns with the environmental self-audit provisions, the United States environmental protection agency has, in the past, taken direct action against entities in the regulated community that have made disclosures under the environmental self-audit provisions. The general assembly further declares that the pilot project enacted by this section is intended to allow entities to proceed under the environmental self-audit provisions with assurance that, if any such entity complies with such environmental self-audit provisions, the United States environmental protection agency will forego any enforcement action based on the disclosures made and addressed under the environmental self-audit pilot project.
(b) The general assembly further recognizes that, under the pilot project enacted by this section, the department of public health and environment will have discretion to consider certain factors in assessing a regulated entity's eligibility for penalty immunity under the environmental laws. The general assembly intends that this additional flexibility to assess an entity's eligibility, along with the protection from federal overfiling that the pilot project provides, will encourage entities to participate in the project and allow the department of public health and environment to assess the effectiveness of the environmental self-audit provisions.
(c) The provisions of this section shall only apply to disclosures made under this section and sections 25-1-114.5, 13-25-126.5, and 13-90-107 (1)(j), C.R.S., after the department of public health and environment and the United States environmental protection agency have entered into a memorandum of agreement binding Colorado and the federal government to enforce environmental laws in a manner consistent with the provisions of this section.
(2) Notwithstanding the provisions of sections 25-1-114.5 (4) and (5), 13-25-126.5, and 13-90-107 (1)(j), C.R.S., on and after May 30, 2000, the department of public health and environment may assess penalties for criminal negligence when available under federal environmental law.
(3) (a) In addition to the provisions of subsection (2) of this section, notwithstanding the provisions of sections 25-1-114.5 (4) and (5), 13-25-126.5, and 13-90-107 (1)(j), C.R.S., on and after May 30, 2000, in determining whether an entity is entitled to penalty immunity under the provisions of section 25-1-114.5, the department of public health and environment may consider:
(I) Whether the activities disclosed may create imminent and substantial endangerment of, or result in serious harm to, public health and the environment; and
(II) Whether the activities disclosed conferred an unfair or excessive economic benefit on the disclosing entity.
(b) Notwithstanding any provision of sections 25-1-114.5 (4) and (5), 13-25-126.5, and 13-90-107 (1)(j), C.R.S., the department of public health and environment has discretion to determine whether and to what degree the factors in paragraph (a) of this subsection (3) apply given the particular circumstances of each situation.
(4) The pilot project created by this section applies to voluntary disclosures made under this section and sections 25-1-114.5, 13-25-126.5, and 13-90-107 (1)(j), C.R.S., on and after the effective dates of both this section (May 30, 2000) and the memorandum of agreement entered into under paragraph (c) of subsection (1) of this section.
(5) Pursuant to the procedures set forth in section 13-25-126.5, C.R.S., the department of public health and environment may obtain access to an environmental self-audit report where the department of public health and environment has independent evidence of any criminal violation of an environmental law. Evidence of a criminal violation constitutes compelling circumstances for purposes of section 13-25-126.5 (3)(c), C.R.S., where the department of public health and environment seeks access to an environmental self-audit report. When a self-audit report is obtained, reviewed, or used in a criminal proceeding under this subsection (5), the privilege provided in section 13-25-126.5, C.R.S., applicable to civil or administrative proceedings is not waived or eliminated.
(6) Repealed.
Source: L. 2000: Entire section added, p. 1377, � 1, effective May 30. L. 2008: (6) repealed, p. 1906, � 98, effective August 5.