Section 25-8-205.5 - Pollution from agricultural chemicals - rules(1)Legislative declaration. The general assembly hereby declares that the public policy of this state is to protect state waters and the environment from impairment or degradation due to the improper use of agricultural chemicals while allowing for their proper and correct use, in particular, to provide for the management of agricultural chemicals to prevent, minimize, and mitigate their presence in state waters and to provide for the education and training of agricultural chemical applicators and the general public regarding the protection of state waters, agricultural chemical use, and the use of other agricultural methods.(3)Powers and duties of the commissioner of agriculture.(a) The commissioner of agriculture shall identify agricultural management areas in the state.(b) The commissioner shall promulgate rules for the following:(I) Facilities for the storage of pesticides in bulk, except for facilities storing pesticides used for water treatment at public water systems, which are systems used to provide the public with piped water for human consumption, and domestic wastewater treatment works;(II) Mixing and loading areas where any of the following are handled in any one-year period: (A) Five hundred gallons or more, in the aggregate, of formulated product or combination of formulated products of liquid pesticides;(B) Three thousand pounds or more, in the aggregate, of formulated product or combination of formulated products of dry pesticides;(C) One thousand five hundred pounds or more, in the aggregate, of active ingredients of pesticides;(III) Storage facilities where any liquid fertilizer is stored in any container or series of interconnected containers having a capacity greater than five thousand gallons;(IV) Storage facilities where fifty-five thousand pounds or more, in the aggregate, of formulated product or combination of formulated products of bulk dry fertilizer are stored;(V) Mixing and loading areas at any storage facility subject to the provisions of this section.(b.1) No rule promulgated pursuant to paragraph (b) of this subsection (3) shall apply to any field mixing and loading of agricultural chemicals.(b.2) Every rule promulgated pursuant to paragraph (b) of this subsection (3) shall include a three-year phase-in period after promulgation of the rule for persons subject to the rule.(b.3) Pursuant to paragraph (h) of this subsection (3), the commissioner is authorized to enforce rules promulgated pursuant to paragraph (b) of this subsection (3).(c) The commissioner may, in his discretion, develop best management practices for any other activity relating to the use of any agricultural chemical.(d) If the commissioner determines that the use of best management practices is ineffective or insufficient to prevent or mitigate the pollution of state waters, the commissioner may require, by rule adopted pursuant to article 4 of title 24, the use of agricultural management plans.(e) The commissioner is authorized to adopt, pursuant to article 4 of title 24, C.R.S., any other reasonable rules and regulations for the administration and implementation of this section.(f) The commissioner is authorized to enter into an agreement with the Colorado cooperative extension service to provide training and education as specified in subsection (4) of this section.(g) The commissioner shall perform the monitoring specified in subsection (5) of this section. The commissioner shall enter into an agreement with the department of public health and environment to assist in the identification of agricultural management areas and to perform analysis, interpretation, and reporting of state waters monitoring data supplied by the commissioner.(h) With respect to any rule or regulation adopted pursuant to paragraph (b) of this subsection (3) only, the commissioner shall have the following investigation and enforcement powers: (I) At any reasonable time during regular business hours, the commissioner shall have free and unimpeded access upon consent or upon obtaining an administrative search warrant: (A) To all areas, buildings, yards, warehouses, and storage facilities in which any agricultural chemicals are kept, stored, handled, processed, or transported; and(B) To all records, if any, required to be kept and to make copies of such records.(II) The commissioner shall have full authority to administer oaths and take statements, to issue administrative subpoenas requiring the attendance of witnesses before him and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by such witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court shall be punishable as a contempt of court.(III) Any complaints of record made to the commissioner and the results of his investigations may, in the discretion of the commissioner, be closed to public inspection, except as provided by court order, during the investigatory period and until dismissed or until notice of hearing and charges are served on any such person subject to a rule or regulation adopted pursuant to paragraph (b) of this subsection (3).(IV)(A) Whenever the commissioner has reasonable cause to believe that a violation of any rule or regulation adopted pursuant to paragraph (b) of this subsection (3) has occurred and immediate enforcement is deemed necessary, he may issue a cease-and-desist order, which may require any person to cease violating any such rule or regulation. Such cease-and-desist order shall set forth the rule or regulation alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions be ceased forthwith.(B) At any time after the date of the service of the order to cease and desist, the person may request a hearing on the question of whether or not such violation has occurred. Such hearing shall be concluded in not more than ten days after such request, excluding Saturdays, Sundays, and any legal holidays, and shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S.(C) In the event that any person fails to comply with a cease-and-desist order within twenty-four hours, the commissioner may bring a suit for a temporary restraining order and injunctive relief to prevent any further or continued violation of such order.(D) No stay of a cease-and-desist order shall be issued before a hearing thereon involving both parties.(E) Matters brought before a court pursuant to this section shall have preference over other matters on the court's calendar.(V) Whenever the commissioner possesses evidence satisfactory to him that any person has engaged in or is about to engage in any act or practice constituting a violation of any rule or regulation adopted pursuant to paragraph (b) of this subsection (3), he may apply to any court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with the rule or regulation. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.(VI)(A) Any person who violates any rule or regulation adopted pursuant to paragraph (b) of this subsection (3) is subject to a civil penalty, as determined by the commissioner. The maximum penalty shall not exceed one thousand dollars per violation. Each day the violation occurs shall constitute a separate violation.(B) No civil penalty may be imposed unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.(C) If the commissioner is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.(D) Before imposing any civil penalty, the commissioner may consider the effect of such penalty on the ability of the person charged to stay in business.(4)Training and education. The Colorado cooperative extension service, acting in cooperation with the commissioner of agriculture and pursuant to any contract authorized in paragraph (f) of subsection (3) of this section, shall disseminate information and provide training regarding agricultural management areas, best management practices, and agricultural management plans.(5)Monitoring. Pursuant to the commissioner's duties as set forth in any contract authorized in subsection (3)(g) of this section, the commissioner shall identify agricultural management areas and shall conduct monitoring programs to determine: (a) The presence of any agricultural chemical in state waters at a level that meets or exceeds any water quality standard applicable under this article 8 or that has a reasonable likelihood of meeting or exceeding any such standard; or(b) The likelihood that an agricultural chemical will enter the state waters, based upon the existence of sufficient, valid scientific data that reasonably predict the behavior of a particular agricultural chemical in the soil.(6)Reporting of monitoring results - regulation.(a) If the division determines that any agricultural chemical exists at a level which meets or exceeds any water quality standard or which has a reasonable likelihood of meeting or exceeding any such standard, it shall so notify the commissioner of agriculture and shall provide him with any written reports it deems necessary or desirable to define the extent of such occurrence. When the commissioner has been notified of such an occurrence related to an agricultural chemical which is registered as a pesticide, he shall take reasonable steps to notify the registrant of any such pesticide. When the commissioner has been notified of such an occurrence related to any other agricultural chemical, he shall take reasonable steps to notify the distributors of such chemical in the area affected by such occurrence.(b) Unless such occurrence is determined by the commissioner of agriculture and the water quality control commission to require a control regulation as set forth in paragraph (c) of this subsection (6), the commissioner of agriculture may promulgate rules and regulations regarding the use of any agricultural chemical giving rise to the occurrence.(c) If continued monitoring reveals that rules and regulations adopted by the commissioner pursuant to this section are not preventing or mitigating the presence of the subject agricultural chemical to the extent necessary, the commissioner of agriculture and the water quality control commission shall confer and determine whether an amendment to such rules and regulations may be sufficient to prevent or mitigate the occurrence to the extent necessary. Only if the commissioner of agriculture and the water quality control commission determine that such rules and regulations have been or will be insufficient to meet the requirements of state law or the federal act shall the occurrence be referred to the water quality control commission for the promulgation of a control regulation. In the event that the commissioner of agriculture and the water quality control commission fail to agree on such a determination, the authority of the water quality control commission shall be final.(7)Promulgation of control regulations.(a) With respect to the regulation of pollutants from agricultural chemicals, the water quality control commission is authorized to promulgate control regulations only when: (I) Any occurrence has been referred to the commission pursuant to subsection (6) of this section; or(II) Incentive, grant, and cooperative programs are determined by the water quality control commission to be inadequate as set forth in section 25-8-205 (5).(b) Any such control regulations shall be promulgated in consultation with the commissioner of agriculture.(8)Groundwater protection fund - transfer of moneys to the plant health, pest control, and environmental protection cash fund - fees. The fees as specified and collected pursuant to sections 35-9-118 (3)(a) and 35-12-106 (1), C.R.S., and any civil fines imposed pursuant to subparagraph (VI) of paragraph (h) of subsection (3) of this section shall be transmitted to the state treasurer, who shall credit the same to the plant health, pest control, and environmental protection cash fund created in section 35-1-106.3, C.R.S. Within sixty days after July 1, 2009, the unexpended and unencumbered balance of the groundwater protection fund, as that fund existed prior to July 1, 2009, shall be transferred to the plant health, pest control, and environmental protection cash fund.Amended by 2019 Ch. 422, § 2, eff. 8/2/2019.Amended by 2014 Ch. 65, § 1, eff. 3/27/2014.L. 90: Entire section added, p. 1330, § 4, effective July 1. L. 91: (8) amended, p. 1918, § 41, effective June 1. L. 93: (3)(b) amended and (3)(b.1), (3)(b.2), and (3)(b.3) added, p. 996, § 1, effective June 2. L. 94: (3)(g) amended, p. 2789, § 519, effective July 1. L. 96: (9) repealed, p. 1260, § 163, effective August 7. L. 2002: (3)(g) and IP(5) amended, p. 1101, § 1, effective June 3. L. 2009: (8) amended, (HB 09 -1249), ch. 319, p. 319, § 15, effective July 1. L. 2014: (3)(b)(I) amended, (SB 14 -142), ch. 289, p. 289, § 1, effective March 27. L. 2019: (1), (3)(d), (3)(g), and (5) amended and (2) repealed, (SB 19-186), ch. 3689, p. 3689, § 2, effective August 2.Section 7 of chapter 422 (SB 19-186), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after August 2, 2019.
For the legislative declaration contained in the 1994 act amending subsection (3)(g), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 1996 act amending this section, see section 1 of chapter 237, Session Laws of Colorado 1996.