COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT 

HAZARDOUS MATERIALS AND WASTE MANAGEMENT DIVISION 

HAZARDOUS WASTE 

CIVIL AND ADMINISTRATIVE 

ENFORCEMENT RESPONSE POLICY

This policy describes the enforcement options that the Colorado Department of Public Health and 

Environment, Hazardous Materials and Waste Management Division, may pursue for violations of the 

Colorado Hazardous Waste Act and its implementing regulations so as to expedite correction of those 

violations and promote compliance. 

original /s/ by Gary W. Baughman 8/27/08

 ______________________________ __________________________ 

 Date 

Gary Baughman 

Division Director 
TABLE OF CONTENTS

 Page 

I. INTRODUCTION 1 

II. RELATIONSHIP TO OTHER AGENCY POLICY AND GUIDANCE 1 

III. DEFINITIONS 2 

IV. CLASSIFICATIONS OF NON-COMPLIANCE 3 

 1. Significant Non-Compliers 3

 2. Secondary Violators 3 

V. APPROPRIATE ENFORCEMENT RESPONSE 3 

 A. Informal Enforcement Response 4 

 B. Formal Enforcement Response 5 

VI. RESPONSE TIME GUIDELINES 6 

 A. Evaluation Date 6 

B. Informal Enforcement Response Time 7 

C. Case Development Meetings 7 

D. Formal Enforcement Response Time 7 

 E. Exceedance of Formal Enforcement Response Time 9 

 

VII. EPA ACTION IN AUTHORIZED STATES 9 
COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

HAZARDOUS MATERIALS AND WASTE MANAGMENT DIVISION

HAZARDOUS WASTE 

CIVIL AND ADMINISTRATIVE ENFORCEMENT RESPONSE POLICY

I. INTRODUCTION 

The goal of the Colorado Hazardous Waste Act and its implementing regulations, the state 

equivalent of the federal Resource Conservation and Recovery Act , is to attain and maintain a 

high rate of compliance within the regulated community with hazardous waste regulatory 

requirements. Establishing a comprehensive monitoring and inspection program, and addressing 

the most serious violators with timely, visible, and effective enforcement actions accomplish this 

goal, in part. A timely and effective enforcement action will return the facility to compliance as 

expeditiously as possible, as well as deter future non-compliance, both at the subject facility as 

well as at other facilities. This Enforcement Response Policy sets forth the response parameters 

for violations occurring pursuant to the Colorado Hazardous Waste Regulations where the 

Hazardous Materials and Waste Management Division (the “Division”) intends to pursue an 

enforcement action, including administrative or judicial action. In so doing, this Enforcement 

Response Policy sets out how the Division will respond, and defines timeframes in which this 

response will occur. 

Through implementation of this Enforcement Response Policy, the Division will endeavor to 

provide fair and equitable treatment of all violators. 

The policies and procedures set out in this document are intended solely for the guidance of 

Division personnel. They are not intended to and cannot be relied upon to create rights, 

substantive or procedural, enforceable by any person or party in litigation with the Division. The 

Division reserves the right to be at variance with this policy. The Division also reserves the right 

to change this policy at any time with appropriate publication.

II. RELATIONSHIP TO OTHER AGENCY POLICY AND GUIDANCE

The Enforcement Response Policy is one of several documents that, considered together, define 

the administrative portion of compliance assurance in the Hazardous Waste Program within the 

Division. The Enforcement Response Policy provides a general framework for responding to 

violations and violators of concern by describing timely and appropriate enforcement responses 

to non-compliance. The Enforcement Response Policy should be read in conjunction with other 

Division and Departmental policies and guidance including: 

1. The Division’s Hazardous Waste Penalty Policy; 

2. The Department’s Supplemental Environmental Projects Policy; 

Page 1
3. The Department’s Environmental Audit and Immunity Law Implementation 

Policy, still in draft; and 

4. The Division’s Memorandum of Agreement between the State of Colorado and 

the Region VIII Office of the USEPA for Administration of the RCRA Hazardous 

Waste Program, dated 9/22/00. 

All of these documents are available on the Department or Division web pages. These pages are: 

 Division Web Page www.cdphe.state.co.us/hm

 Department Web Page www.cdphe.state.co.us

 EPA Web Page www.epa.gov

This Enforcement Response Policy does not address the use of an administrative compliance 

order to compel corrective action; the use of an order to compel monitoring, testing and analysis; 

or the use of an administrative compliance order to address situations that may present an 

imminent and substantial endangerment to human health or the environment. In addition, this 

Enforcement Response Policy does not address violations determined to be potentially criminal 

in nature and investigated and prosecuted pursuant to Federal or State criminal authorities. 

III. DEFINITIONS 

1. Enforceable means the instrument creates an independent, affirmative obligation to 

comply and imposes sanctions for the prior failure to comply. 

2. Evaluation Date is the first day of the inspection or record review during which a 

violation is identified, regardless of the duration of the inspection or the stage in the 

inspection at which the violation is identified. 

3. Formal Enforcement is an action that mandates compliance and initiates a civil, criminal, 

or administrative process that results in an enforceable agreement or order. 

 

4. Informal Enforcement is those actions other than formal enforcement that notify the 

facility of its non-compliance and establish a date by which the non-compliance is to be 

corrected. 

5. Facilities will be deemed to have Returned to Compliance when they are in full 

compliance with regulatory and/or statutory requirements or when they are in full 

compliance with a compliance schedule established in a formal enforcement action 

(either an order or an agreement). 

 

6. Sanctions include penalties as well as other tangible obligations, beyond returning to 

compliance, that are imposed upon the violator. 

Page 2
IV. CLASSIFICATIONS OF NON-COMPLIANCE

Violators are classified based on an analysis of the facility's overall compliance with the 

Colorado Hazardous Waste Regulations. This analysis considers prior recalcitrant behavior 

and/or a history of non-compliance. This Enforcement Response Policy establishes two 

categories of violators: Significant Non-Compliers (SNC), also known as Class 1 Violators; and 

Secondary Violators (SV), also known as Class 2 Violators. Facilities that meet any of the SNC 

criteria may be considered SNCs. For instance, a facility with substantial deviations from 

regulatory requirements may be a SNC even though they may be a first-time violator. However, 

the Division’s decision to take formal enforcement against a violator does not necessarily 

constitute a finding that the violator is a SNC. 

1. Significant Non-Compliers (SNCs) are those facilities which: 

 

a. Have caused actual exposure or a substantial likelihood of exposure to people 

or the environment from hazardous waste or hazardous waste constituents. The 

actual or substantial likelihood of exposure should be evaluated using facilityspecific environmental and exposure information whenever possible. This may 

include evaluating potential exposure pathways and the mobility and toxicity of 

the hazardous waste being managed. It should be noted that environmental 

impact alone is sufficient to cause a facility to be a SNC, particularly when the 

environmental media affected require special protection (e.g., wetlands or 

sources of underground drinking water.); 

b. Are chronic or recalcitrant violators (Facilities should be evaluated on a multimedia basis; however, a facility may be found to be a chronic or recalcitrant 

violator based solely on prior Colorado Hazardous Waste Regulation 

violations.); or 

 

c. Deviate substantially from the terms of a permit, order, agreement, or from the 

Colorado Hazardous Waste Act or regulatory requirements. 

 

2. Secondary Violators (SVs) are facilities which: 

a. Are typically first time violators of hazardous waste regulations (A facility 

classified as an SV should not have a history of recalcitrant or non-compliant 

conduct.); 

b. Pose no actual threat or a low potential threat of exposure to hazardous waste or 

constituents (Violations associated with an SV should be of a nature to permit 

prompt return to compliance with all applicable regulations. “Prompt return to 

compliance” should be less than 30 days.); or 

c. Do not meet the criteria listed above for SNCs. 

Page 3
V. APPROPRIATE ENFORCEMENT RESPONSE 

The selection of an appropriate enforcement response is an integral component of the Colorado 

Hazardous Waste Act enforcement and compliance assurance program. An appropriate response 

will achieve a timely return to compliance, serve as a deterrent to future non-compliance, and 

eliminate any economic advantage received by the violator. This section establishes the criteria 

for determining when formal and informal enforcement responses are appropriate. 

1. INFORMAL ENFORCEMENT RESPONSE 

The Division’s informal enforcement mechanism is the Compliance Advisory. Every facility 

at which significant violations are discovered is issued a Compliance Advisory at the 

closeout meeting concluding the inspection, or via mail shortly thereafter. The Compliance 

Advisory includes an invitation for the facility to meet with Division staff in a meeting called 

an “Informal Conference.” Informal Conferences are an opportunity for the facility to 

provide additional information, rebut violations, and ask questions. 

If a facility is found to be in violation, but is not designated a SNC, it is automatically 

designated a SV. A Compliance Advisory is the minimally appropriate enforcement 

response for all SVs. A Compliance Advisory includes a recitation of the violations 

discovered during the inspection and a schedule for returning the facility to full compliance 

with all substantive and procedural requirements of applicable regulations, permits and 

statutes. Facilities that fail to return to compliance following issuance of a Compliance 

Advisory will be re-classified as a SNC. 

A Compliance Advisory may also present areas of potential violation or concern. These 

items may be accompanied by a request for further information so that a final compliance 

determination can be made. It is possible that, after submittal of the requested information, 

the Division may determine that formal enforcement should be pursued. 

The objectives of a Compliance Advisory are to request the violator to cease its noncompliant activities and ensure that full compliance is achieved in the shortest possible time 

frame. In general, the date included in the Compliance Advisory requiring a full return to 

compliance will be within 30 days of the Compliance Advisory issue date. 

If a violator is unable to meet the assigned compliance deadline it must immediately notify 

the Division and provide documentation supporting the inability to correct violations by the 

prescribed compliance date. A decision to extend the compliance date should be made only 

when supported by sufficient documentation. Failure to achieve full compliance by the 

compliance date or a failure to notify the Division of the inability to correct violations should 

result in an escalation to formal enforcement. If the conditions of the Compliance Advisory 

are not met to the satisfaction of the Division, the date of the inspection is to be considered 

the evaluation date for the purpose of escalating the action to a formal enforcement response. 

Page 4
Depending on the circumstances of the case, the Division may pursue a formal enforcement 

action against an SV. Taking a formal enforcement action against an SV is a decision wholly 

within the discretion of the Division. 

2. FORMAL ENFORCEMENT RESPONSE 

A formal enforcement response will mandate compliance and initiate a civil, criminal, or 

administrative process that results in an enforceable agreement or order. Any formal 

enforcement response should seek injunctive relief that ensures the non-compliant facility 

expeditiously returns to full compliance. The types of formal enforcement response available 

to the Division are: 

a. Compliance Order on Consent – This is the most common type of formal 

enforcement action taken by the Division. A Compliance Order on Consent is a 

document finalized through settlement negotiations with the violator. The 

Division and the violator agree upon the Order requirements, the penalty, and the 

penalty package. 

b. Unilateral Compliance Order with or without penalties – This type of Order is 

issued by the Division to the violator and includes compliance requirements, and 

may include penalties. Penalties may also be assessed at a later date. In these 

cases, the Division believes that the violator needs to return to compliance 

immediately. The violator is allowed to appeal a Unilateral Order. At the 

Division’s discretion, the violator may be allowed to convert it to a Compliance 

Order on Consent through the Informal Conference process. 

c. Early Settlement Agreement – An Early Settlement Agreement is intended to 

expedite finalization of certain cases with a few easily correctable violations 

and/or small penalties. In these cases, the Division believes that extended 

settlement negotiations may not be necessary. 

d. Civil Action – Occasionally, it is necessary for the Division to file a civil action 

against a violator. In these cases, there is always a serious extenuating 

circumstance, like recalcitrance or recidivism, that requires stronger action than is 

available to the Division administratively. 

e. Criminal Referral to the Colorado Attorney General’s Office or other criminal 

enforcement authorities – If potential criminal activity is discovered during an 

inspection or investigation, the Division may refer the case to the Colorado 

Attorney General’s Office or other enforcement agency for criminal investigation 

and follow up. In these cases, an administrative enforcement action may be 

pursued in addition to any criminal proceedings. 

f. Referrals to EPA, Region VIII – There are certain cases that, because of 

extenuating circumstances, the Division may refer the case to EPA Region VIII. 

This may include, but not be limited to, cases where legal precedent could be 

Page 5
established or where federal involvement is necessary to ensure national 

consistency or cases involving multi-state “national” violators. 

An enforcement response against a SNC will include economic sanctions in the form of 

penalties. Penalties incorporated in the formal enforcement response must recover the 

economic benefit of non-compliance and should also include some appreciable amount 

reflecting the gravity of the violation. Determination of the appropriateness or amount of 

penalties is not within the scope of this policy, but is explained in the Division’s 

Hazardous Waste Penalty Policy . 

Many times, the Division will settle a formal enforcement action with the facility. 

Settlement includes agreement on the language in the formal enforcement document, as 

well as agreement on the penalty amount and penalty package. The “penalty package” 

defines the portion of the penalty to be paid in cash, and may include a portion offset by 

the facility’s agreement to implement one or more Supplemental Environmental Projects 

(SEPs), and any other alternative punitive measures or sanctions agreed to be 

implemented by the facility. “Other punitive measures or sanctions” includes, but is not 

limited to, such items as permit decisions, “in-kind” contributions, suspension and 

debarment proceedings. This policy is not intended to define how the Division 

approaches or implements settlement of enforcement cases. 

The Division may issue the formal enforcement document unilaterally. In these cases, 

the formal enforcement document may include penalties. The amount of any penalties 

included will have been calculated in a manner consistent with the Hazardous Waste 

Penalty Policy. If the unilateral formal enforcement document does not include penalties, 

then the Division reserves its right to assess penalties for the violations at a later date. 

VI. RESPONSE TIME GUIDELINES 

This section establishes response time guidelines for formal and informal enforcement actions. 

The guidelines are designed to expeditiously return non-compliant facilities to compliance with 

all applicable requirements of the Colorado Hazardous Waste Regulations. A timeline depicting 

these guidelines is attached. 

1. EVALUATION DATE 

The evaluation date, which triggers each standard response time guideline, is defined as the 

first day of any inspection or record review during which a violation is identified, regardless 

of the duration of the inspection or the stage in the inspection at which the violation is 

identified. For violations detected through some method other than record reviews or 

inspection, the evaluation date will be the date upon which information (e.g., 3007 letter 

response, self-reported violations) becomes available to the Division. In the case of a referral 

from EPA, the evaluation date will be considered the date of the referral to the Division. In 

the case of facilities that are reclassified for failure to return to compliance (see Section V.1 

Page 6
above), the evaluation date will be considered the first day of discovery of non-compliance 

with the compliance schedule established through the informal enforcement response. 

2. INFORMAL ENFORCEMENT RESPONSE TIME 

The issuance of a Compliance Advisory should occur during, or shortly after, the inspection. 

The standard response time guideline for issuing Compliance Advisories will be no later than 

10 days after the evaluation date. If additional information is received by the Division, a 

Compliance Advisory Addendum will be issued within 10 days.

3. CASE DEVELOPMENT MEETING

The Division will determine whether to use formal or informal enforcement at a Case 

Development Meeting to be held no more than 45 days after the evaluation date.

Many times, classification of a facility as an SV is clear and unambiguous. In these cases, 

the inspector and his/her supervisor will have an informal Case Development Meeting where 

the SV determination and the informal resolution path will be confirmed. 

If the inspector or the supervisor believe a case may warrant a SNC determination or formal 

enforcement response to an SV, a Case Development Meeting will be convened to determine 

the appropriate path forward. This will include a review of evidence obtained, a plan to get 

any evidence still needed, and a determination as to whether formal enforcement action is 

necessary and appropriate. Generally, attendees at Case Development Meetings will include 

the lead inspector, the inspector’s supervisor, and a Solid and Hazardous Waste Program 

Legal Assistant. Case Development Meetings will also include the Solid and Hazardous 

Waste Program Manager, when available. 

4. FORMAL ENFORCEMENT RESPONSE TIME 

If formal enforcement is necessary, a decision will be made at the Case Development 

Meeting, or as soon thereafter as is feasible, as to which formal enforcement mechanism will 

be utilized: a) a Compliance Order on Consent, b) a Unilateral Compliance Order without 

penalties, c) a Unilateral Compliance Order with penalties, d) an Early Settlement 

Agreement, e) a civil action, f) referral to the Attorney General’s Office for criminal 

investigation, or g) referral to EPA Region VIII. 

Each of these types of formal enforcement response has different standard response time 

guidelines as follows: 

a. Compliance Order on Consent-the standard response time guideline for finalizing 

Compliance Orders on Consent will be no later than 300 days after the evaluation 

date. If settlement negotiations for a Compliance Order on Consent fail to yield a 

settlement within 300 days, then the Division will issue a Unilateral Compliance 

Order with penalties on, or very shortly after, the 300th day. 

Page 7
b. Unilateral Compliance Order without penalties – the standard response time 

guideline for issuance of Unilateral Compliance Orders without penalties will be 

no later than 150 days after the evaluation date, with an additional 30-day appeal 

period. (section 25-15-308, C.R.S.) 

c. Unilateral Compliance Order with penalties – the standard response time 

guideline for issuance of Unilateral Compliance Orders with penalties will be no 

later than 180 days after the evaluation date, with an additional 30-day appeal 

period OR no later than 30 days after settlement discussions terminate, but in no 

case later than 300 days after the evaluation date. The extra time initially, as 

compared to Unilateral Compliance Orders without penalties, will be for penalty 

calculation preparation and review. 

d. Early Settlement Agreement – because the Division uses Early Settlement 

Agreements only in certain circumstances as a means to expedite finalization of 

cases with small numbers of violations and/or small penalties, the standard 

response time guideline for issuance of Early Settlement Agreements will be no 

later than 180 days after the evaluation date. 

e. Civil Action – the standard response time for filing a civil action in the 

appropriate legal venue will be no more than 180 days after the evaluation date. 

f. Criminal Referral to the Colorado Attorney General’s Office – the standard 

response time guideline for criminal referral will be no later than 180 days after 

the evaluation date. 

g. Referral to EPA Region VIII – the standard response time guideline for referral of 

a case to EPA Region VIII will be no later than 180 days after the evaluation date. 

The attached timeline depicts the standard response times for each type of enforcement 

action listed above. 

For the purpose of applying the standard response time guidelines listed above in this 

section, the following definitions will apply: 

a. Final or consent orders are those documents for which no appeal remains before 

the trier of fact. These orders represent the agreement of the parties involved or 

the decision of a trier of fact. 

b. Unilateral or initial orders are issued by the Division and assert the Division's 

position that violations have occurred. However, the respondent/defendant is 

afforded the opportunity to appeal the agency's determination of violations to a 

trier of fact for 30 days after receiving the Division-issued Unilateral Order. 

Page 8
c. A referral to the State Attorney General's Office occurs when the matter is 

officially transmitted to that office for civil action. 

5. EXCEEDANCE OF FORMAL ENFORCEMENT RESPONSE TIME 

Every effort will be made to adhere to the response times articulated in the previous section. 

However, circumstances may dictate an exceedance of the standard response times. EPA 

Region VIII allows Colorado a ceiling of 20% exceedances per year for consideration of 

cases involving unique factors that may preclude the Division from meeting the standard 

response times. However, rather than using a percentage of cases to determine timeliness, 

the Division will use average number of days. This will be determined separately for each 

type of action (Compliance Advisories, Compliance Orders on consent, Unilateral 

Compliance Orders, Early Settlement Agreements, etc.) on a six- and twelve-month basis. 

So long as the average number of days is less than the timeliness guideline presented below, 

the Division will consider itself timely. 

VII. EPA ACTION IN AUTHORIZED STATES 

EPA has authorized Colorado for implementation of the Resource Conservation and Recovery 

Act because of the demonstrated equivalency of the Colorado Hazardous Waste Act and the 

Colorado Hazardous Waste Regulations to the Resource Conservation and Recovery Act and its 

implementing regulations. In deciding to take direct action in Colorado, EPA will use the 

criteria presented in the Memorandum of Agreement (MOA) between the State of Colorado and 

the Region VIII Office of the USEPA for Administration of the RCRA Hazardous Waste 

Program, dated 9/22/00. 

The above-referenced MOA details the process EPA will use to notify the Division of EPA’s 

intent to initiate an independent enforcement action. The EPA Region VIII office may need to 

conduct its own case development inspection, and prepare additional documentation before 

proceeding to initiate an enforcement action. 

If the Division decides to refer a case to EPA Region VIII for federal enforcement, the Division 

will provide all case development information to the Region as part of the referral package. This 

should facilitate a reduction in the time needed for Federal case development. 

Page 9
ATTACHMENT 1

ENFORCEMENT RESPONSE POLICY TIMELINES

ENFORCEMENT RESPONSE TIMELINE

 Inspection Report Early Settlement Agreement  Finalized and and Evaluation Date Compliance Advisory Case Development Unilateral Order Unilateral Order 

 Mtg w/out penalties with penalties 

 Day 0 Day 10 Day 45 Day 150 Day 180