CO Code § 25-7-115 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 7 - Air Quality Control|Part 1 - Air Quality Control Program|§ 25-7-115. Enforcement

     The division shall enforce compliance with the emission control regulations of the commission, the requirements of the state implementation plan, and the provisions of parts 1 to 4 and part 11 of this article, including terms and conditions of any permit required pursuant to this article.    The division shall enforce the provisions of part 5 of this article pursuant to sections 25-7-112, 25-7-113, and 25-7-511.       If a written and verified complaint is filed with the division alleging that, or if the division itself has cause to believe that, any person is violating or failing to comply with any regulation of the commission issued pursuant to parts 1 to 4 of this article, order issued pursuant to section 25-7-118, requirement of the state implementation plan, provision of parts 1 to 4 of this article, including any term or condition of a permit required pursuant to this article, the division shall cause a prompt investigation to be made; and, if the division investigation determines that any such violation or failure to comply exists, the division shall act expeditiously and within the period prescribed by law in formally notifying the owner or operator of such air pollution source after the discovery of the alleged violation or noncompliance. Such notice shall specify the provision alleged to have been violated or not complied with and the facts alleged to constitute the violation or noncompliance.      Within thirty calendar days after notice has been given, the division shall confer with the owner or operator of the source to determine whether a violation or noncompliance did or did not occur and, if such violation or noncompliance occurred, whether a noncompliance penalty must be assessed under subsection (5) of this section. The division shall provide an opportunity to the owner or operator at such conference, and may provide further opportunity thereafter, to submit data, views, and arguments concerning the alleged violation or noncompliance or the assessment of any noncompliance penalty.    If, after any such conference, a violation or noncompliance is determined to have occurred, the division shall issue an order requiring the owner or operator or any other responsible person to comply, unless the owner or operator demonstrates that the violation occurred during a period of start-up, shutdown, or malfunction and timely notice was given to the division of the condition. The order may include termination, modification, or revocation and reissuance of the subject permit, the assessment of civil penalties in accordance with section 25-7-122, and, in addition to civil penalties, a requirement to perform one or more projects to mitigate violations related to excess emissions. The order may also require the calculation of a noncompliance penalty under subsection (5) of this section. Unless enforcement of its order has been stayed as provided in subsection (4)(b) of this section, the division may seek enforcement, pursuant to section 25-7-121 or 25-7-122, of the applicable rule of the commission, order issued pursuant to section 25-7-121 or 25-7-122 or the applicable rule of the commission, order issued pursuant to section 25-7-118, requirement of the state implementation plan, provision of this article 7, or terms or conditions of a permit required pursuant to this article 7 in the district court for the district where the affected air pollution source is located. The court shall issue an appropriate order, which may include a schedule for compliance by the owner or operator of the source.    The order for compliance shall set forth with specificity the final determination of the division regarding the nature and extent of the violation or noncompliance by the named persons and facilities and shall also include, by reference, a summary of the proceedings at the conference held after the notice of violation and an evaluation of the evidence considered by the division in reaching its final determinations. Any order issued under this subsection (3) which is not reviewed by the commission in accordance with the provisions of subsection (4) of this section shall become final agency action.           Within twenty calendar days after receipt of an order issued pursuant to subsection (3) of this section, the recipient thereof may file with the commission a written petition requesting a hearing to determine all or any of the following: (a) (I)Within twenty calendar days after receipt of an order issued pursuant to subsection (3) of this section, the recipient thereof may file with the commission a written petition requesting a hearing to determine all or any of the following:   Whether the alleged violation or noncompliance exists or did exist;    Whether a revision of the state implementation plan or revision of a regulation or standard which is not part of the state implementation plan should be implemented with respect to such violation or noncompliance;    Whether the owner or operator is subject to civil or noncompliance penalties under subsection (5) of this section.       Such hearing shall allow the parties to present evidence and argument on all issues and to conduct cross-examination required for full disclosure of the facts and shall otherwise be conducted in accordance with section 25-7-119.       Except with respect to actions taken pursuant to section 25-7-112 or 25-7-113, upon the filing of such petition, the order and the provisions of the state implementation plan which relate to the alleged violation or noncompliance shall be stayed pending determination of the petition by the commission. Any stay pursuant to this paragraph (b) shall be effective only as to the specific source covered by the order and such petition.           Any order issued pursuant to subsection (3) of this section which pertains to an alleged violation described in section 120(a)(2)(A) of the federal act shall also require each person who is subject to such order, within forty-five calendar days after the issuance of such order, to calculate the penalty owed in accordance with paragraph (b) of this subsection (5) and submit the calculation, together with a payment schedule and all information necessary for an independent verification thereof, to the division. If the order has been stayed pursuant to subsection (4) of this section, the penalty calculation shall be submitted by the owner or operator to the division within forty-five calendar days after issuance of a final determination of the commission that: (a) (I)Any order issued pursuant to subsection (3) of this section which pertains to an alleged violation described in section 120(a)(2)(A) of the federal act shall also require each person who is subject to such order, within forty-five calendar days after the issuance of such order, to calculate the penalty owed in accordance with paragraph (b) of this subsection (5) and submit the calculation, together with a payment schedule and all information necessary for an independent verification thereof, to the division. If the order has been stayed pursuant to subsection (4) of this section, the penalty calculation shall be submitted by the owner or operator to the division within forty-five calendar days after issuance of a final determination of the commission that:   A violation or noncompliance occurred;    If a revision to the state implementation plan has been requested, all or part of such request should be denied; except that, if only part of such request is denied, the penalty calculation shall not be submitted for any aspect of the violation or noncompliance which is excused by reason of approval of a requested revision of the state implementation plan;    The violation is one described in section 120(a)(2)(A) of the federal act; and    If an exemption pursuant to subsection (7) of this section has been claimed, the owner or operator is not entitled thereto.       The division shall review the penalty calculation and schedule submitted pursuant to subparagraph (I) of this paragraph (a) and shall issue an order assessing the noncompliance penalty and providing a payment schedule therefor.         The amount of the penalty which shall be assessed under this subsection (5) shall be equal to: (b) (I) The amount of the penalty which shall be assessed under this subsection (5) shall be equal to:   The amount, determined in accordance with section 120 of the federal act and rules and regulations promulgated under said act by the United States environmental protection agency, which shall be no less than the sum of the quarterly equivalent of the capital costs of compliance and debt service over a normal amortization period of not longer than ten years, operation and maintenance costs foregone as a result of noncompliance, and any additional value which a delay in compliance beyond July 1, 1979, may have for the owner or operator of such stationary source; less    The amount of any expenditure made by the owner or operator of such stationary source during any such quarter for the purpose of bringing the source into, and maintaining compliance with, such requirement to the extent that such expenditure has not been taken into account in the calculation of the penalty under sub-subparagraph (A) of this subparagraph (I).       To the extent that any expenditure under sub-subparagraph (B) of subparagraph (I) of this paragraph (b) made during any quarter is not subtracted for such quarter from the costs under sub-subparagraph (A) of subparagraph (I) of this paragraph (b), such expenditure may be subtracted for any subsequent quarter from such costs; except that in no event shall the amount paid be less than the quarterly payment minus the amount attributed to the actual cost of construction.       Any penalty assessed pursuant to subsections (5) to (11) of this section shall be paid in equal quarterly installments (except as provided in sub-subparagraph (B) of subparagraph (I) of paragraph (b) of this subsection (5)) for the period which begins either August 7, 1979, if notice pursuant to subsection (2) of this section is issued on or before such date or which begins on the date of issuance of notice pursuant to subsection (2) of this section if such notice is issued after August 7, 1979, and which period ends on the date on which such stationary source is estimated to come into compliance.    Any person who fails to pay the amount of any penalty with respect to any stationary source under this subsection (5) on a timely basis shall be required to pay, in addition, a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to twenty percent of the aggregate amount of such person's penalties and nonpayment penalties with respect to such stationary source which are unpaid as of the beginning of such quarter.       Within twenty calendar days after issuance of an order under subparagraph (II) of paragraph   of subsection (5) of this section, the owner or operator may file with the commission a written petition requesting a hearing to review such order. Within sixty calendar days after the filing of such petition, the commission shall hold a hearing and issue a decision thereon.         The owner or operator of any stationary source shall be exempt from the duty to pay a noncompliance penalty pursuant to this section if after notice the owner or operator demonstrates at a hearing that the failure of such stationary source to comply is due solely to:   The conversion by such stationary source from the burning of petroleum products or natural gas, or both, as the primary energy source to the burning of coal pursuant to an order under section 119 of the federal act;    In the case of a coal-burning source granted an extension under section 119 of the federal act, a prohibition from using petroleum products or natural gas, or both, by reason of an order under the provisions of section 2 (a) and (b) of the federal “Energy Supply and Environmental Coordination Act of 1974” or under any legislation which amends or supersedes those provisions;    The use of innovative technology sanctioned by an enforcement order under section 113 (d)(4) of the federal act;    An inability to comply with such requirements for which the stationary source has received an order pursuant to section 25-7-118, which inability results from reasons entirely beyond the control of the owner or operator of such stationary source or of any entity controlling, controlled by, or under common control with the owner or operator of such stationary source; or    The conditions by reason of which a temporary emergency suspension is authorized under section 110 (f) or (g) of the federal act;       The division may, after notice and opportunity for a public hearing, exempt any stationary source from the duty to pay a noncompliance penalty pursuant to this section with respect to a particular instance of noncompliance if it finds that such instance of noncompliance is inconsequential in nature and duration. Any instance of noncompliance occurring during a period of start-up, shutdown, or malfunction shall be deemed to be inconsequential. If a public hearing is requested by an interested person, the request shall be transmitted to the commission within twenty calendar days of its receipt by the division. The commission shall, within sixty calendar days of its receipt of the request, hold a public hearing with respect thereto and within thirty calendar days of such hearing issue its decision.    An exemption under this subsection (7) shall cease to be effective if the stationary source fails to comply with the interim emission control requirements or schedules of compliance, including increments of progress, under any such extension, order, or suspension.       If the owner or operator of a stationary source who receives an order pursuant to subsection (5) of this section fails to submit a calculation of the penalty, a schedule for payment, and the information necessary for an independent verification thereof, the division may enter into a contract with a person who has no financial interest in the ownership or operation of the stationary source or in any person controlling, controlled by, or under common control with such stationary source to assist in determining the penalty assessment or payment schedule with respect to such stationary source. The cost of such contract may be added to the penalty to be assessed against the owner or operator of such stationary source.      The division or the commission may adjust the amount of the penalty assessment or the payment schedule proposed by the owner or operator if the administrator of the United States environmental protection agency determines that the penalty or schedule does not meet the requirements of the federal act.    Upon making a determination that a stationary source which is subject to a penalty assessment pursuant to this section is in compliance, the division shall review the actual expenditures made by the owner or operator of such stationary source for the purpose of attaining and maintaining compliance and, within one hundred eighty days after such stationary source comes into compliance, shall either provide reimbursement with interest at appropriate prevailing rates for any overpayment by such person or assess and collect any additional payment with interest at prevailing rates for any underpayment by such person.       Any orders, payments, sanctions, or other requirements under this section shall be in addition to any other orders, payments, sanctions, or other requirements of this article.    The division or the commission may request the district attorney for the district in which the alleged violation or noncompliance, or any part thereof, occurred or may request the attorney general to bring, and if so requested it is his or her duty to bring, a suit for recovery of any penalty or nonpayment penalty, with interest, imposed pursuant to subsection (5) of this section if the penalty is not paid when due.     History. Source: L. 79: Entire article R&RE, p. 1034, § 1, effective June 20. L. 84: IP(4)(a), (4)(b), IP(5)(a)(I), (6), (7)(b), (9)(a), and (11) amended, p. 771, § 7, effective July 1. L. 87: (1) and (2) amended, p. 1152, § 6, effective July 1. L. 92: (1)(a), (2), (3)(b), (3)(c), and (4)(a) amended, p. 1217, § 19, effective July 1. L. 97: (1)(a) amended, p. 1090, § 3, effective July 1. L. 2016: (11) amended,(HB 16-1094), ch. 94, p. 268, § 15, effective August 10. L. 2021: (3)(b) amended,(HB 21-1266), ch. 411, p. 2735, § 11, effective July 2.    Editor's note:   Section 24 of chapter 411 (HB 21-1266), Session Laws of Colorado 2021, provides that the act changing this section applies to conduct occurring on or after July 2, 2021.   Cross references:   For the short title (“Environmental Justice Act”) and the legislative declaration in HB 21-1266, see sections 1 and 2 of chapter 411, Session Laws of Colorado 2021.   ANNOTATION   Notice of each inspection is required, regardless of when it occurs, even where the alleged violator is already the subject of a cease-and-desist order. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).   When notice should be given. A party who is subject to an inspection that may result in a cease-and-desist order is entitled to notice that an inspection has been conducted within a reasonably short period of time following the inspection. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).   Due process contemplates that notice should be given of a visual opacity reading by the department of health within a reasonably short period of time following the completion of inspection of air pollution. Air Pollution Variance Bd. v. W. Alfalfa Corp., 191 Colo. 455 , 553 P.2d 811 (1976).   Because surprise may play a crucial role in the course of some inspections, prior or contemporary notice of the inspection is not required. Basic fairness is achieved in this context by delivering actual notice to a plant manager or officer or agent thereof within a short period of time following the inspection. Air Pollution Variance Bd. v. W. Alfalfa Corp., 191 Colo. 455 , 553 P.2d 811 (1976).   Investigation of a notice of violation is not a precondition to issuance of a construction permit, because this section addresses enforcement of air quality laws and does not create a separate permitting requirement. Citizens for Clean Air & Water v. Colo. Dept. of Pub. Health & Env't, 181 P.3d 393 (Colo. App. 2008).   Sections 25-7-121 and 25-7-122 operate independently of this section. United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).