6 Colo. Code Regs. § 1007-1-13.5

Current through Register Vol. 47, No. 11, June 10, 2024

Section 6 CCR 1007-1-13.5 - Notification and Imposition

13.5.1 If the Department has reason to believe, based upon facts available to the Department, that a person has committed any violation of any licensing or registration provision of 25-11-103 or 25-11-104, CRS, regulation, any license or registration certificate, or order issued thereunder, it shall notify such person within a reasonable time specifying:

13.5.1.1 The date and factual basis of each act or omission with which such person is charged;

13.5.1.2 The particular provision of the statute, rule, regulation, order, license, or registration certificate violated; and

13.5.1.3 Necessary actions required to bring the licensee or registrant into compliance.

13.5.2 The notification required by 13.5.1 shall be sent by the Department by certified or registered mail, return receipt requested, to the last known address of the alleged violator or the Department shall personally serve the notice of the violation upon the alleged violator or the alleged violator's agent. Any notice may be served by the Department by publication in a newspaper of general circulation in the area of the licensed facility or activity that is the subject of the notice, if the Department's efforts to serve by mail are unsuccessful. Service shall not be incomplete due to any refusal to accept service.

13.5.3 The alleged violator shall have thirty (30) days following the receipt or publication of the notice to submit a written response containing data, views, and arguments concerning the alleged violations and proposing a reasonable time for abatement. In addition, the alleged violator may request an informal conference with Department personnel within fifteen days after receiving the notice to discuss the alleged violations. Such conference is to be held within the thirty (30) days allowed for a written response.

13.5.4 After consideration of any written response and informal conference, the Department shall issue a letter within thirty days after the date of the informal conference or the receipt of a written response, whichever is later, affirming or dismissing or otherwise disposing of the violation. Any remaining corrective measures that are necessary, and any administrative penalty determined to be appropriate, will be incorporated into an administrative order.

13.5.4.1 The time for abatement shall be that reasonably necessary to achieve compliance given the severity of the violation and the actions necessary to correct the violation.

13.5.4.2 The order may be modified and the time for abatement extended for good cause shown.

13.5.4.3 Immediate abatement may be ordered to the extent necessary to remove an imminent danger to public health, worker safety or the environment.

13.5.5 For any person subject to an administrative penalty as specified in 13.3.1, the amount of the penalty will be determined in accordance with the provisions of 25-11-107, CRS. The factors contained in 13.5.5.1 and 13.5.5.3 will be used to determine the severity of the violation and establish the base penalty amount. The factors contained in 13.5.5.2, 13.5.5.4 and 13.5.5.5 are aggravating factors and may be applied with other factors to increase the penalty amount. The factors contained in 13.5.5.7, 13.5.5.8, and 13.5.5.9 are mitigating factors and may be applied with other factors to reduce any administrative penalty. The factor contained in 13.5.5.10 may be an aggravating or mitigating factor and may be used to increase or decrease the penalty amount as determined by the department. The economic benefit factor in 13.5.5.6 will be added to the adjusted penalty to reach the final penalty amount. The existence of multiple violations and the duration of the violation(s) will be considered in assessing a final administrative penalty.

13.5.5.1 the seriousness of the violation;

13.5.5.2 whether the violation was intentional, reckless, or negligent;

13.5.5.3 the impact on, or threat to, the public health or the environment as a result of the violation;

13.5.5.4 the degree of recalcitrance, if any, on the part of the violator;

13.5.5.5 whether the violator is a recidivist;

13.5.5.6 the economic benefit realized by the violator as a result of the violation;

13.5.5.7 the violator's voluntary, timely, and complete disclosure of the violation, if prior to the department's knowledge of the violation, and if all reports required pursuant to state environmental control laws have been submitted as required;

13.5.5.8 the violator's full and prompt cooperation with the department following disclosure or discovery of a violation, including, when appropriate, entering into and implementing, in good faith, a legally enforceable agreement with the department to undertake compliance and remediation efforts;

13.5.5.9 the existence of a comprehensive regulatory compliance program or an audit program that the violator adopted in good faith and in a timely manner, which program includes measures determined by the department to be sufficient to identify and prevent future noncompliance; and

13.5.5.10 any other aggravating or mitigating circumstance.

13.5.6 The Department may compromise, mitigate, or remit any such administrative penalty as justified by written documentation. The department may enter into a settlement agreement regarding any administrative penalty or claim. The settlement agreement may include payment or contribution of moneys to state or local agencies for other environmentally beneficial purposes.

13.5.7 The letter or order specified in 13.5.4 shall notify the alleged violator of the right to request a hearing within thirty (30) days, such hearing to be held in accordance with 24-4-105, CRS., to determine all of the following:

13.5.7.1 Whether the alleged violation exists or did exist;

13.5.7.2 Whether the actions taken or to be taken are or will be adequate to correct the violation;

13.5.7.3 Whether the time set for abatement was reasonable; and

13.5.7.4 Whether the administrative penalty is reasonable in light of the statutory criteria upon which it is based.

13.5.8 Upon the request for such a hearing, the order shall be stayed pending the results of the hearing and any subsequent judicial review.

13.5.8.1 The alleged violator shall address each alleged violation in the request for the hearing and shall specify which of the alleged violations the alleged violator is appealing. An allegation not addressed in the request for the hearing shall be deemed admitted.

13.5.8.2 No person engaged in conducting the hearing or participating in a decision or an initial decision shall be responsible for or subject to the supervision or direction of any Department employee engaged in the performance of an investigatory or prosecuting function for the department.

13.5.8.3 The final action of the Department is subject to judicial review pursuant to section 24-4-106, CRS.

13.5.9 At the request of the Department, the Attorney General may institute a civil action to collect any civil or administrative penalty imposed pursuant to these regulations.

6 CCR 1007-1-13.5

Colorado Register, Vol 37, No. 14. July 25, 2014, effective 8/14/2014

38 CR 02, January 25, 2015, effective 2/14/2015

38 CR 05, March 10, 2015, effective 3/30/2015

38 CR 12, June 25, 2015, effective 7/15/2015

38 CR 14, July 25, 2015, effective 8/14/2015

39 CR 02, January 25, 2016, effective 2/14/2016

39 CR 16, August 25, 2016, effective 9/14/2016

39 CR 22, November 25, 2016, effective 12/15/2016

40 CR 11, June 10, 2017, effective 6/30/2017

40 CR 20, October 25, 2017, effective 11/14/2017

42 CR 24, December 25, 2019, effective 1/14/2020

43 CR 14, July 25, 2020, effective 8/14/2020

43 CR 18, September 25, 2020, effective 10/15/2020

44 CR 11, June 10, 2021, effective 7/15/2021

44 CR 14, July 25, 2021, effective 8/14/2021

45 CR 22, November 25, 2022, effective 12/15/2022