CO Code § 25-8-608 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 8 - Water Quality Control|Part 6 - Violations, Remedies, and Penalties|§ 25-8-608. Civil Penalties - Rules - Fund Created - Temporary Moratorium on Penalties for Minor Violations - Definitions - Repeal

  A person who violates this article 8, a permit issued under this article 8, a control regulation promulgated pursuant to this article 8, or a final cease-and-desist order or clean-up order is subject to a civil penalty of not more than fifty-four thousand eight hundred thirty-three dollars per day per violation; except that, on or before December 31, 2021, the commission shall, by rule, annually adjust the amount of the maximum civil penalty based on the percentage change in the United States department of labor's bureau of labor statistics consumer price index for Denver-Aurora-Lakewood for all items and all urban consumers, or its successor index. In determining the amount of a penalty under this part 6, the following factors shall be considered:   The potential damage from the violation;    The violator's compliance history;    Whether the violation was intentional, reckless, or negligent;    The impact upon or threat to the public health or environment as a result of the violation;    The duration of the violation; and    The economic benefit realized by the violator as a result of the violation. (1.5) All penalties collected pursuant to subsection (1) of this section shall be transmitted to the state treasurer, who shall credit the same to the water quality improvement fund, which is hereby created. The moneys in such fund shall be subject to annual appropriation. Any interest earned on moneys in the fund shall remain in the fund to be used for purposes of this section. (1.7)   The department shall expend moneys in the water quality improvement fund for the following purposes:   Improving the water quality in the community or water body impacted by the violation;    Providing grants for storm water projects or to assist with planning, design, construction, or repair of domestic wastewater treatment works;    Providing the nonfederal match funding for nonpoint source projects under 33 U.S.C. sec. 1329; or    Providing grants for storm water management training and best practices training to prevent or reduce the pollution of state waters.       The division may retain five percent of the moneys in the water quality improvement fund to cover the cost of administering the projects or grants under paragraph (a) of this subsection (1.7).    The commission shall promulgate rules as may be necessary to administer this subsection (1.7), including, but not limited to, rules defining who is eligible for grants, and what criteria shall be used in awarding grants. Any rules shall be promulgated in accordance with article 4 of title 24, C.R.S.      If there is money still available after fully funding all purposes specified in subsection (1.7)(a) of this section, the department shall expend the following amounts: (d) (I) If there is money still available after fully funding all purposes specified in subsection (1.7)(a) of this section, the department shall expend the following amounts:   Up to three hundred thousand dollars for fiscal year 2017-18, three hundred thousand dollars for fiscal year 2018-19, and three hundred thousand dollars for fiscal year 2019-20 for grants for lead testing as authorized by the public school lead testing grant program established in section 25-1.5-203 (1)(f); and    One hundred forty thousand dollars for fiscal year 2017-18, one hundred thousand dollars for fiscal year 2018-19, and one hundred thousand dollars for fiscal year 2019-20 to implement the public school lead testing grant program established in section 25-1.5-203 (1)(f), including technical support for schools, grant administration, and reporting.       This subsection (1.7)(d) is repealed, effective September 1, 2025.  (1.8) Notwithstanding any provision of subsection (1.5) or (1.7) of this section to the contrary, on April 20, 2009, the state treasurer shall deduct seven hundred thousand dollars from the water quality improvement fund and transfer such sum to the general fund.  (1.9) The division shall include in a separate section of the annual report required pursuant to section 25-8-305 a full accounting of all projects funded pursuant to this section for the preceding year.             The division may institute a civil action or administrative action to impose and collect penalties under this section. Upon application of the division, penalties shall be determined by the executive director or his or her designee. The final decision of the executive director or his or her designee may be appealed to the commission. The final decision of the commission is subject to judicial review in accordance with article 4 of title 24, C.R.S. Any penalty may be collected by the division by action instituted in a court of competent jurisdiction for collection of such penalty. A stay of any order of the division pending judicial review shall not relieve any person from any liability under subsection (1) of this section, 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.       Repealed.    Notwithstanding subsections (1.5) and (1.7) of this section, on June 30, 2020, the state treasurer shall transfer four hundred eighty-three thousand five hundred thirty-five dollars from the water quality improvement fund to the general fund.     History. Source: L. 81: Entire article R&RE, p. 1334, § 1, effective July 1. L. 83: (1) amended, p. 1080, § 5, effective July 1. L. 90: (1) amended, p. 1345, § 4, effective July 1. L. 2006: Entire section amended, p. 1273, § 2, effective May 26. L. 2009: (1.8) added,(SB 09-208), ch. 149, p. 624, § 23, effective April 20. L. 2011: (1.7)(a)(II) and (1.7)(a)(III) amended and (1.7)(a)(IV) added,(HB 11-1026), ch. 159, p. 550, § 2, effective August 10. L. 2012: IP(1) amended and (3) added,(HB 12-1119), ch. 264, p. 1378, § 1, effective June 6. L. 2016: (4) added,(HB 16-1413), ch. 138, p. 409, § 2, effective July 1. L. 2017: (1.7)(d) added,(HB 17-1306), ch. 399, p. 2080, § 3, effective June 8. L. 2020: (5) added,(HB 20-1406), ch. 178, p. 813, § 14, effective June 29; IP(1) and (1.7)(d)(II) amended,(HB 20-1143), ch. 219, p. 1082, § 2, effective July 2.    Editor's note:    Subsection (3)(d) provided for the repeal of subsection (3), effective July 1, 2013. (SeeL. 2012, p. 1378.)    Subsection (4)(b) provided for the repeal of subsection (4), effective September 1, 2017. (SeeL. 2016, p. 409.)     Cross references:   For the short title (“Safe Water in Schools Act”) in HB 17-1306, see section 1 of chapter 399, Session Laws of Colorado 2017.   ANNOTATION   Law reviews. For article, “Liabilities of Nonoperating Mineral Interest Owners”, see 51 U. Colo. L. Rev. 153 (1980).   Subsection (2) provides only for additional review of the amount of an existing penalty using an abuse of discretion standard, but does not authorize a de novo determination of the amount of the penalty. The familiar and generally accepted meaning of the words compels the conclusion that the amount of the penalty has already been determined and the role of the court is to consider only its appropriateness. Water Quality Control Div. v. Casias, 843 P.2d 665 (Colo. App. 1992).