Colo. Rev. Stat. § 25-7-122

Current through 11/5/2024 election

Section 25-7-122 - Civil penalties - rules - definitions

(1) Upon application of the division, the division may collect penalties as determined under this article 7 by instituting an action in the district court for the district in which the air pollution source affected is located, in accordance with the following provisions:

(a) (Deleted by amendment, L. 92, p. 1220, § 23, effective July 1, 1992.)

(b) Any person who violates any requirement or prohibition of a final order of the division or commission, an applicable emission control regulation of the commission, the state implementation plan, a construction permit, any provision for the prevention of significant deterioration under part 2 of this article 7, any provision related to attainment under part 3 of this article 7, or any provision of or commission rule adopted pursuant to section 25-7-105, 25-7-106, 25-7-106.3, 25-7-108, 25-7-109, 25-7-109.5, 25-7-111, 25-7-112, 25-7-113, 25-7-114.2, 25-7-114.5, 25-7-118, 25-7-141, 25-7-146, 25-7-206, 25-7-403, 25-7-404, 25-7-405, 25-7-407, 42-4-403, 42-4-404, 42-4-405, 42-4-406, 42-4-407, 42-4-409, 42-4-410, or 42-4-414 is subject to a civil penalty of not more than forty-seven thousand three hundred fifty-seven dollars per day for each day of the violation; except that:

(I) 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; and

(II) Civil penalties shall not be assessed or collected against persons who violate emission regulations promulgated by the commission for the control of odor until a compliance order issued pursuant to section 25-7-115 and ordering compliance with the odor regulation has been violated.

(c) Any person failing to comply with the provisions of section 25-7-114.1 shall be subject to a civil penalty of not more than one thousand dollars per day per violation.

(d) Any person who violates any requirement, prohibition, or order respecting an operating permit issued pursuant to section 25-7-114.3, including failure to obtain such a permit, to operate in compliance with any term or condition of the permit, or to pay the permit fee required under section 25-7-114.7 (2), or who commits a violation of section 25-7-109.6 is subject to a civil penalty of not more than forty-seven thousand three hundred fifty-seven dollars per day for each 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.

(e) Any person who violates any provision of section 25-7-139 shall be subject to a civil penalty of not more than one thousand dollars.

(f) Any person who owns or operates storage tanks at a gasoline dispensing facility, as defined by regulations promulgated by the air quality control commission, who violates any requirement to maintain a vapor collection system pursuant to air quality control regulations shall be subject to a civil penalty of not more than fifteen thousand dollars per day for each day of such a violation.

(g) Any person who owns or operates a gasoline dispensing facility, as defined by regulations promulgated by the air quality control commission, who violates any requirement to maintain records required pursuant to air quality control commission regulations and the air pollution control division shall be subject to a civil penalty of not more than five thousand dollars. For a second violation, the civil penalty shall be not more than ten thousand dollars. For a third or subsequent violation, the civil penalty shall be not more than fifteen thousand dollars.

(h) The division, in consultation with stakeholders from gasoline dispensing facilities and gasoline transport truck companies, as defined by regulations promulgated by the air quality control commission, shall develop design, operation, and maintenance guidelines by June 30, 2021. The guidelines will assist owners and operators of gasoline dispensing facilities and gasoline transport trucks in complying with the requirements of air quality control commission regulations.

(i)

(I) On and after January 1, 2024, and except as provided in subsection (1)(i)(II) of this section, an owner of a covered building that violates section 25-7-142 (3) or (6) is subject to a civil penalty of up to five hundred dollars for a first violation and up to two thousand dollars for each subsequent violation. As part of the requirement that the commission adopt rules to establish performance standards pursuant to section 25-7-142 (8)(c), the commission shall establish by rule, with regard to a violation of the performance standards, civil penalties in an amount not to exceed two thousand dollars for a first violation and five thousand dollars for a subsequent violation.

(II) The division shall not assess a civil penalty for a violation related to a public building.

(III) Notwithstanding section 25-7-129, the division shall transmit civil penalties collected pursuant to this subsection (1)(i) to the state treasurer, who shall credit them to the climate change mitigation and adaptation fund created in section 24-38.5-102.6.

(IV) As used in this subsection (1)(i):

(A) "Covered building" has the meaning set forth in section 25-7-142 (2)(j).

(B) "Owner" has the meaning set forth in section 25-7-142 (2)(r).

(j)

(I) A person who violates section 25-7-144 is subject to a civil penalty in the following amount:

(A) For each motor vehicle for which the violation was committed, a person who owns or operates ten or more motor vehicles as part of the person's business or commercial activities is subject to a penalty of up to one thousand dollars for a first violation, up to seven thousand five hundred dollars for a second violation, and up to fifteen thousand dollars for a third or subsequent violation; or

(B) For each motor vehicle for which the violation was committed, a person who owns or operates nine or fewer motor vehicles is subject to a penalty of up to two hundred dollars for the first violation, up to five hundred dollars for the second violation, and up to one thousand two hundred dollars for a third or subsequent violation.

(II) Notwithstanding subsection (1)(j)(I)(B) of this section, a person who violates section 25-7-144 by tampering with, or assisting another person in tampering with, an emission control system for profit is subject to a penalty under subsection (1)(j)(I)(A) of this section regardless of the number of motor vehicles owned or operated.

(III) Notwithstanding section 25-7-129, the division shall transmit civil penalties collected pursuant to this subsection (1)(j) to the state treasurer, who shall credit the money:

(A) On or before June 30, 2025, to the catalytic converter identification and theft prevention grant program cash fund created in section 24-33.5-230 (5.5). The Colorado state patrol shall use the money credited to the fund to implement the catalytic converter identification and theft prevention grant program created in section 24-33.5-230 (1).

(B) On or after July 1, 2025, to the AIR account in the highway users tax fund, which account is created in section 42-3-304 (18)(a).

(2)

(a) In determining the amount of any civil penalty, the division shall consider the following factors:

(I) The violator's compliance history, including the compliance history of the violator's corporate affiliates, subsidiaries, and parent organizations;

(II) Lack of good faith efforts on behalf of the violator to comply;

(III) Whether the violator previously committed the same or a similar violation, regardless of whether the division or commission commenced an enforcement action pursuant to section 25-7-115 for any such violation;

(IV) Duration of the violation;

(V) Economic benefit of noncompliance to the violator;

(VI) Impact on, or threat to, the public health or welfare or the environment as a result of the violation;

(VII) Malfeasance;

(VIII) Whether legal and factual theories were advanced for purposes of delay;

(IX) The severity of the violation or noncompliance; and

(X) Whether the violation occurred within or impacted a disproportionately impacted community.

(b) In addition to the factors set forth in subsection (2)(a) of this section, the division shall consider the following circumstances as grounds for reducing or eliminating civil penalties:

(I) The voluntary and complete disclosure by the violator of such violation in a timely fashion after discovery of the noncompliance;

(II) Full and prompt cooperation by the violator following disclosure of the violation including, when appropriate, entering into a legally enforceable commitment to undertake compliance and remedial efforts;

(III) The existence and scope of a regularized and comprehensive environmental compliance program or an environmental audit program;

(IV) Substantial economic impact of a penalty on the violator; and

(V) Repealed.

(VI) Other mitigating factors.

(c) The imposition of civil penalties may be deferred or suspended where appropriate based on consideration of the factors set forth in this subsection (2).

(3) Repealed.

C.R.S. § 25-7-122

Amended by 2024 Ch. 183,§ 6, eff. 5/16/2024, app. to enforcement actions commenced by the division of administration in the department of public health and environment and the energy and carbon management commission on or after 5/16/2024.

Amended by 2023 Ch. 401,§ 4, eff. 6/6/2023, app. to conduct occurring on or after the effective date of this act, including determinations of applications pending on the effective date.

Amended by 2022 Ch. 485, § 3, eff. 8/10/2022.

Amended by 2021 Ch. 326, § 4, eff. 9/7/2021.

Amended by 2020 Ch. 56, § 6, eff. 9/14/2020.

Amended by 2020 Ch. 219, § 1, eff. 7/2/2020.

Amended by 2020 Ch. 141, § 4, eff. 6/29/2020.

L. 79: Entire article R&RE, p. 1044, § 1, effective June 20. L. 84: (1)(a) and (1)(b) amended, p. 775, § 13, effective July 1. L. 92: Entire section amended, p. 1220, § 23, effective July 1. L. 94: (1)(b) amended, p. 1640, § 61, effective May 31; (1)(b) amended, p. 2561, § 67, effective 1/1/1995. L. 2000: (1)(e) added, p. 763, § 2, effective September 1. L. 2003: (1)(b) amended, p. 724, § 4, effective July 1; (1)(b) amended, p. 1026, § 7, effective August 6. L. 2020: IP(1) amended and (1)(f), (1)(g), and (1)(h) added, (SB 20-218), ch. 617, p. 617, § 4, effective June 29; IP(1), (1)(b), and (1)(d) amended, (HB 20-1143), ch. 1081, p. 1081, § 1, effective July 2; IP(1) and (1)(b) amended, (HB 20 -1167), ch. 193, p. 193, § 6, effective September 14. L. 2021: (1)(i) added, (HB 21-1286), ch. 2085, p. 2085, § 4, effective September 7.

(1) Amendments to subsection (1)(b) by Senate Bill 94-001 and Senate Bill 94-206 were harmonized.

(2) Amendments to subsection (1)(b) by Senate Bill 03-066 and House Bill 03-1053 were harmonized.

(3) (a) Amendments to subsection IP(1) by SB 20-218, HB 20-1143, and HB 20-1167 were harmonized

(b) Amendments to subsection (1)(b) by HB 20-1143 and HB 20-1167 were harmonized.

(4) (a) Section 16(1)(b) of chapter 183 (SB 24-229), Session Laws of Colorado 2024, provides that section 6 of the act changing this section takes effect only if HB 24-1338 becomes law and, if so, takes effect upon the effective date of SB 24-229. HB 24-1338 became law and took effect May 28, 2024, and SB 24-229 took effect May 16, 2024.

(b) Section 16(2) of chapter 183 (SB 24-229), Session Laws of Colorado 2024, provides that the act changing this section applies to enforcement actions commenced by the division of administration in the department of public health and environment and the energy and carbon management commission on or after May 16, 2024.

2022 Ch. 485, was passed without a safety clause. See Colo. Const. art. V, § 1(3).

2021 Ch. 326, was passed without a safety clause. See Colo. Const. art. V, § 1(3).

For the legislative declaration in HB 23-1294, see section 1 of chapter 401, Session Laws of Colorado 2023. For the legislative declaration in SB 24-229, see section 1 of chapter 183, Session Laws of Colorado 2024.