CO Code § 30-20-113 (2021)
2021 Colorado Code|Title 30 - Government - County|Article 20 - Public Improvements|Part 1 - Solid Wastes Disposal Sites and Facilities|§ 30-20-113. Inspection - Enforcement - Nuisances - Violations - Civil Penalty

  A person shall not:   Abandon a solid wastes disposal site and facility or operate, maintain, or close such a facility in a manner that violates any of the provisions of this part 1, any rule or regulation adopted pursuant thereto, or any certificate of designation issued under section 30-20-104;    Dispose of solid waste at a location other than a site designated for such use by a county or municipality, unless otherwise exempted by this part 1 or unless the person is disposing of his or her own waste on his or her own property;    Dispose of solid wastes in any manner that violates any of the provisions of part 10 of this article or any rule adopted pursuant thereto;    Repealed.    Violate any provision of part 14 of this article or any rule adopted pursuant to part 14 of this article.         Whenever the department finds that any solid wastes disposal site and facility or any person is in violation of subsection (1) of this section, the department may issue an order requiring that the site and facility or person comply with any such requirement, rule, or certificate of designation and may request the attorney general to bring suit for injunctive relief or for penalties pursuant to this section. The department shall not be required to conduct a hearing in accordance with section 24-4-105, C.R.S., before issuing an order pursuant to this subsection (2).      An order issued pursuant to this subsection (2) may include an administrative penalty assessment as provided in subsection (4) or (5) of this section. In lieu of imposing an administrative penalty assessment for a violation of subsection (1) of this section, the department may seek to have a civil penalty imposed, as provided in subsection (4) or (5) of this section, for such violation. The department shall bring an action for a civil penalty in the district court for the judicial district in which the violation occurred. (b) (I) An order issued pursuant to this subsection (2) may include an administrative penalty assessment as provided in subsection (4) or (5) of this section. In lieu of imposing an administrative penalty assessment for a violation of subsection (1) of this section, the department may seek to have a civil penalty imposed, as provided in subsection (4) or (5) of this section, for such violation. The department shall bring an action for a civil penalty in the district court for the judicial district in which the violation occurred.    If the department issues an order that does not contain an administrative penalty assessment, the department shall not be precluded from subsequently imposing an administrative penalty assessment or seeking a civil penalty for the violations detailed in the order.       The department shall serve an order issued pursuant to this subsection (2) on the person who is the subject of the order by personal service or by certified mail. In addition to imposing an administrative penalty, the order may prohibit the person from engaging in specified activity in violation of subsection (1) of this section or may require the person to comply with the requirements of part 1 or part 10 of this article. The order shall take effect upon issuance unless otherwise specified in the order. (2.5)   A person against whom an order has been issued, referred to in this section as the ”requesting party“, may submit a written request to the office of administrative courts in the department of personnel for a hearing on the order and shall provide a copy of the request to the executive director of the department or the executive director's designee. The requesting party shall file the request for hearing by personal service or by certified mail within thirty calendar days after the effective date of the order. An administrative law judge from the office of administrative courts shall conduct the hearing in accordance with section 24-4-105, C.R.S., except as otherwise specified in this section.    If a request for a hearing is filed, payment of any monetary penalty is stayed pending a final decision by the administrative law judge after the hearing on the merits. Absent a motion to stay the order pursuant to paragraph (c) of this subsection (2.5), the requesting party shall comply with any other requirements of the order. If the administrative law judge grants a motion to stay the order, the department shall not be precluded from imposing a penalty against the requesting party for subsequent violations of subsection (1) of this section.      The requesting party may submit a motion to the administrative law judge to stay the enforcement of the order pending the outcome of the hearing. The administrative law judge may grant the motion to stay any portion of the order if he or she determines that the balance of equities favors the requesting party. In making his or her determination, the administrative law judge shall consider the following factors: (c) (I) The requesting party may submit a motion to the administrative law judge to stay the enforcement of the order pending the outcome of the hearing. The administrative law judge may grant the motion to stay any portion of the order if he or she determines that the balance of equities favors the requesting party. In making his or her determination, the administrative law judge shall consider the following factors:   The probability of serious harm to the requesting party if the motion for a stay is denied;    The probability that no serious harm to the public health or the environment will occur if the motion for a stay is granted;    The merits of the requesting party's case; and    The public interest.       If the administrative law judge grants a stay of all or a portion of the order, the requesting party shall not be excused from its obligations under applicable laws, rules, permits, and valid, existing orders.    The administrative law judge shall expedite hearings and determinations on a motion to stay an order. The requesting party bears the burden of proof in a motion to stay an order.       Except as provided in subparagraph (III) of paragraph (c) of this subsection (2.5), the department bears the burden of proof by a preponderance of the evidence in a hearing pursuant to this subsection (2.5).      Upon the motion of a party to the hearing, and in the discretion of the administrative law judge, an administrative law judge may request an interpretive rule from the solid and hazardous waste commission pertaining to any rule that is at issue in the hearing, but only if there is no genuine issue of material fact or the parties have stipulated to the material facts for the purposes of the interpretive rule. The administrative law judge may adjust the schedule of the hearing to accommodate the receipt of an interpretive rule. In making a determination on a motion to request an interpretive rule, the administrative law judge shall consider the following factors: (e) (I) Upon the motion of a party to the hearing, and in the discretion of the administrative law judge, an administrative law judge may request an interpretive rule from the solid and hazardous waste commission pertaining to any rule that is at issue in the hearing, but only if there is no genuine issue of material fact or the parties have stipulated to the material facts for the purposes of the interpretive rule. The administrative law judge may adjust the schedule of the hearing to accommodate the receipt of an interpretive rule. In making a determination on a motion to request an interpretive rule, the administrative law judge shall consider the following factors:   Whether the plain language of the rule in question is clear and unambiguous;    Whether the proposed construction of the rule in question would lead to an absurd result; and    Whether the solid and hazardous waste commission has previously issued an interpretive rule concerning the subject of the request for an interpretive rule.       Notwithstanding section 24-4-103 (1), C.R.S., if the administrative law judge requests, and the solid and hazardous waste commission agrees to issue, an interpretive rule, the commission shall give notice to the public of the interpretive rule-making proceeding in accordance with section 24-4-103, C.R.S. The commission shall provide the notice within forty-five days after receipt of the request. The commission shall accept written material, not to exceed fifteen pages in length, from any interested person if it is provided within fifteen days after the date that notification is given. The commission shall issue the written interpretive rule no later than thirty days after the deadline for the submission of 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 hearing.       Notwithstanding section 24-4-105 (15), C.R.S., any appeal of a determination of the administrative law judge pursuant to this subsection (2.5) shall be filed in the appropriate district court in accordance with section 24-4-106, C.R.S. (2.7) The department shall bring an action for a violation of subsection (1) of this section within two years after the date the department discovers an alleged violation or within five years after the date the alleged violation occurred, whichever date occurs earlier; except that the limitation period is tolled during any period that a person intentionally conceals the alleged violation. For the purposes of this section, ”intentionally“ shall have the meaning provided for such term in section 18-1-501 (5) , C.R.S.          Any solid wastes disposal site and facility found to be abandoned or inactive or that is operated, maintained, or closed in a manner so as to violate any of the provisions of this part 1 and part 10 of this article or any rule adopted pursuant thereto shall be deemed a public nuisance, and such violation may be enjoined by the department, the board of county commissioners of the county wherein the violation occurred, or the governing body of the municipality wherein the violation occurred.    Any person who violates paragraphs (b) and (c) of subsection (1) of this section shall be subject to a clean-up and cease-and-desist order issued by the department or by the board of county commissioners if the violation occurred in the unincorporated area of the county or by the governing body of a municipality if the violation occurred within the municipality. Any person who fails to comply with such orders shall be subject to an administrative or civil penalty of not more than ten thousand dollars for each day of such violation. The violation and civil penalty shall be determined and enforced by a court of competent jurisdiction upon action instituted by the board or governing body that issued the orders. The violation and administrative penalty shall be determined and enforced in accordance with subsections (2), (2.5), and (5.5) of this section. Any penalty collected shall be distributed to the county or municipality that instituted the action.      Any person who is found pursuant to subsection (2) of this section to be in violation of subsection (1) of this section or who fails to comply with an order issued by the department shall be subject to an administrative or civil penalty of not more than ten thousand dollars for each day of such violation.    Any penalty collected by the department under this part 1 or part 10 of this article shall be paid to the state treasurer; however, notwithstanding this paragraph (b), the department may enter into settlement agreements regarding any penalty or claim under this part 1 or part 10 of this article. Any settlement agreement may include but is not necessarily limited to the payment or contribution of moneys to state or local agencies for environmentally beneficial purposes. (5.5)   In determining the amount of an administrative or civil penalty imposed pursuant to subsection (4) or (5) of this section for a violation of subsection (1) of this section, the department, the administrative law judge, or the court shall consider the following factors:   The seriousness of the violation;    Whether the violation was intentional, reckless, or negligent;    The impact upon or the threat to public health or the environment as a result of the violation;    The degree, if any, of recalcitrance or recidivism upon the part of the violator;    The economic benefit realized by the violator as a result of the violation;    The voluntary and complete disclosure by the violator of the violation in a timely manner after discovery of, and prior to the department's knowledge of, the violation, as long as all reports required to be submitted under state environmental laws have been submitted as and when required;    The full and prompt cooperation by the violator following disclosure of the violation, including, when appropriate, entering into and implementing a good faith and legally enforceable agreement to undertake compliance and remedial efforts;    The existence of a regularized and comprehensive environmental compliance program or an environmental audit program that was adopted in a timely and good faith manner and that includes sufficient measures to identify and prevent future noncompliance; and    Other aggravating or mitigating circumstances or factors.       The factors contained in subparagraphs (VI), (VII), and (VIII) of paragraph (a) of this subsection (5.5) shall be mitigating factors and may be applied, together with other factors, to reduce the amount of the penalty.          The department, by its duly authorized representatives, shall have the power to enter and inspect each solid wastes disposal site and facility, as well as any property, premises, or place in which solid waste is reasonably believed to be located for the purposes of determining compliance with the requirements, rules, and certificate of designation issued pursuant to this part 1 and part 10 of this article. Such employee or representative shall have access to all such sites and facilities during any time when the site or facility is open to the public. If such entry or inspection is denied or not consented to and no emergency exists, the department is empowered to and shall obtain from the district court for the judicial district in which such property, premises, or place is located a warrant to enter and inspect any such property, premises, or place prior to entry and inspection. The district courts of this state are empowered to issue such warrants upon a showing that such entry and inspection is required to verify that the purposes of this part 1 and part 10 of this article are being carried out.    The solid and hazardous waste commission shall establish such rules as are necessary to implement this section.    Nothing in this section shall preclude or preempt the authority of a county or municipality to adopt or enforce its own local resolutions or ordinances.    Notwithstanding any other provision of this part 1 or part 10 of this article other than section 30-20-110.5, the processing, application, storage, or composting of biosolids or other materials under rules promulgated pursuant to section 25-8-205 (1)(e), C.R.S., shall be excluded from this part 1 and part 10 of this article.     History. Source: L. 67: P. 762, § 14. C.R.S. 1963: § 36-23-14 . L. 71: P. 345, § 14. L. 83: Entire section amended, p. 1240, § 3, effective July 1. L. 85: Entire section amended, p. 1067, § 1, effective July 1. L. 98: Entire section amended, p. 884, § 11, effective July 1. L. 2005: (1)(c) added and (3), (4), (5)(b), (6), and (9) amended, p. 1257, §§ 3, 4, effective August 8. L. 2006: (7) and (9) amended, p. 1137, § 22, effective July 1. L. 2009: (2), (4), and (5)(a) amended and (2.5), (2.7), and (5.5) added,(HB 09-1056), ch. 301, p. 1603, § 1, effective May 21. L. 2010: (1)(d) added,(HB 10-1125), ch. 349, p. 1608, § 1, effective August 11. L. 2012: (1)(d) amended,(SB 12-077), ch. 87, p. 287, § 2, effective April 6. L. 2014: IP(1) amended and (1)(e) added,(HB 14-1352), ch. 351, p. 1594, § 6, effective July 1. L. 2020: (1)(d) repealed,(HB 20-1374), ch. 167, p. 772, § 2, effective July 1.    Cross references:   For the legislative declaration contained in the 2005 act enacting subsection (1)(c) and amending subsections (3), (4), (5)(b), (6), and (9), see section 1 of chapter 285, Session Laws of Colorado 2005.   ANNOTATION   The solid waste act imposes a nontortious statutory duty on solid waste facility operators to comply with the substantive provisions of the solid waste act. Bd. of County Comm'rs v. Colo. Dept. of Pub. Health & Env't, 2020 COA 50 , __ P.3d __.   Applied in City & County of Denver v. Eggert, 647 P.2d 216 (Colo. 1982).