2 Colo. Code Regs. § 404-1-523

Current through Register Vol. 47, No. 19, October 10, 2024

Section 2 CCR 404-1-523 - ENFORCEMENT

a.Identification of Alleged Violations. If, on the Director's own initiative or based on a complaint, reasonable cause exists to believe that a violation of the Act or any Commission Rule, order, or permit has occurred, the Director will require the Operator to remedy the violation and may commence an enforcement action by issuing an NOAV. Reasonable cause requires, at least, evidence of the alleged violation, as verified by the Director.

b.Resolution of Alleged Violations without Penalties.

(1) When the Director has reasonable cause to believe a violation of the Act or any Commission Rule, order, or permit has occurred, the Director may resolve the alleged violation without seeking a penalty if all of the following apply:

A. The Commission Rule allegedly violated is not a Class 3 rule and the degree of actual or threatened impact is minor or moderate pursuant to the Commission's Penalty Schedule, Rule 525.c.(1);

B. The Operator has not received a previous warning letter or corrective action required inspection report regarding the same violation;

C. The Director determines the alleged violation can be corrected without undue delay; and

D. The Operator timely performs all corrective actions required by the Director and takes any other actions necessary to promptly return to compliance.

(2) The Director retains discretion to seek penalties for any violation of the Act, or a Commission Rule, order, or permit, even if all of the factors in Rule 523.b.(1) apply.

c.Enforcement Actions Seeking Penalties for Alleged Violations. When the Director determines that Rule 523.b.(1) does not apply or otherwise elects to seek penalties for an alleged violation, the Director will commence an enforcement action by issuing an NOAV.

(1)Content of an NOAV. An NOAV will identify the provisions of the Act or Commission's Rules, orders, or permits allegedly violated, and will contain a short and plain statement of the facts alleged to constitute each alleged violation. The NOAV may propose appropriate corrective action and an abatement schedule required by the Director to correct the alleged violation.

(2)Answer. An answer to an NOAV will be filed within 28 days of the Operator's receipt of an NOAV, unless an exception or extension is granted by the Director. An answer will, at a minimum, discuss the allegations contained in the NOAV, responding to each; identify corrective actions taken in response to the NOAV, if any; and identify facts known to the Operator at the time that are relevant to the Operator's response to the alleged violations. If the Operator fails to file an answer within 28 days, the Director may request the Commission, Administrative Law Judge, or Hearing Officer enter a default judgment.

(3)Procedural Matters.

A. Service of an NOAV constitutes commencement of an enforcement action or other proceeding for purposes of § 34-60-115, C.R.S.

B. Issuance of an NOAV does not constitute final agency action for purposes of judicial review.

C. A monetary penalty for a violation may only be imposed by Commission order.

d.Resolution of Enforcement Actions.

(1)Administrative Order by Consent. Except as provided in Rule 523.d.(2), an enforcement action is resolved upon the Commission's entry of an order approving an agreement between the Operator and the Director or by a recommended order becoming a final decision of the Commission.

A. A proposed agreement to resolve an enforcement action will be memorialized in an AOC executed by the Director and the Operator.

B. A complainant who has filed a written complaint on a Form 18, Complaint Report, will be informed of the terms of a draft proposed AOC resolving alleged violations arising directly out of their written complaint and will be given 14 days to comment on the draft settlement terms before the AOC is finalized and presented to an Administrative Law Judge or Hearing Officer for a recommended order approving it. The Director will provide a copy of the final proposed AOC to the complainant. A complainant who objects to the final proposed AOC may file a Petition for Review pursuant to Rule 524.c.

C. AOCs that are not subject to a pending complainant's Petition for Review will be reviewed by an Administrative Law Judge or Hearing Officer to issue a recommended order. A recommended order on an AOC becomes the decision of the Commission within 20 days after service upon the parties, unless the Commission stays the recommended order on the AOC within that time.

D. If the Commission stays the recommended order on the AOC, the Commission may:

i. Remand the matter to the Director for further proceedings; or

ii. Direct the parties to appear before the Commission for hearing.

(2)Orders Finding Violation.

A. An enforcement action may not be resolved by the Director and will be heard by an Administrative Law Judge or Hearing Officer, unless the Commission directs otherwise, when:

i. The Director alleges the Operator is responsible for gross negligence or knowing and willful misconduct that resulted in an egregious violation;

ii. The Director alleges the violation resulted in the death or serious injury of a person;

iii. The Director alleges the Operator has engaged in a pattern of violations; or

iv. The Commission sets an OFV hearing pursuant to Rule 510.f.(3).

e.Rescinding an NOAV. If, after issuance of an NOAV the Director no longer has reasonable cause to believe a violation of the Act, or of any Commission Rule, order, or permit occurred, the Director will rescind the NOAV in writing.

f.Failure to Comply with Commission Orders. An Operator's failure to diligently implement corrective action pursuant to an AOC, OFV, or other Commission order constitutes an independent violation that may result in an NOAV, additional penalties, or corrective action requirements.

2 CCR 404-1-523

37 CR 16, August 25, 2014, effective 9/30/2014

38 CR 01, January 10, 2015, effective 2/14/2015

38 CR 03, February 10, 2015, effective 3/2/2015

38 CR 07, April 10, 2015, effective 4/30/2015

38 CR 16, August 25, 2015, effective 9/14/2015

39 CR 04, February 25, 2016, effective 3/16/2016

41 CR 05, March 10, 2018, effective 4/1/2018

41 CR 06, March 25, 2018, effective 5/1/2018

41 CR 23, December 10, 2018, effective 12/30/2018

42 CR 02, January 25, 2019, effective 2/14/2019

42 CR 17, September 10, 2019, effective 9/30/2019

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

43 CR 17, September 10, 2020, effective 9/30/2020

43 CR 13, July 10, 2020, effective 11/2/2020

43 CR 24, December 25, 2020, effective 1/15/2021

45 CR 07, April 10, 2022, effective 4/30/2022

45 CR 09, May 10, 2022, effective 5/30/2022

45 CR 13, July 10, 2022, effective 7/30/2022