CO Code § 25-1-114.5 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 1 - Administration|Part 1 - Department of Public Health Andenvironment|§ 25-1-114.5. Voluntary Disclosure Arising From Self-Evaluation - Presumption Against Imposition of Administrative or Civil Penalties

  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:   The disclosure is made promptly after knowledge of the information disclosed is obtained by the person or entity;    The disclosure arises out of a voluntary self-evaluation;    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.    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.       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.    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.    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.    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.    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.    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.    Unless the context otherwise requires, the definitions contained in section 13-25-126.5 (2), C.R.S., apply to this section.    This section applies to voluntary disclosures that are made and voluntary self-evaluations that are performed on or after June 1, 1994.     History. 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.   ANNOTATION   Law reviews. For comment, “Colorado's Environmental Audit Privilege Statute: Striking the Appropriate Balance?”, see 67 U. Colo. L. Rev. 443 (1996). For article, “Pilot Project Offers New Hope for Colorado's Environmental Self-Audit Law”, see 30 Colo. Law. 71 (Feb. 2001).