2021 Colorado Code
Title 25 - Public Health and Environment
Article 7 - Air Quality Control
Part 1 - Air Quality Control Program
§ 25-7-121. Injunctions

1. In the event any person fails to comply with a final order of the division or the commission that is not subject to stay pending administrative or judicial review or in the event any person violates any emission control regulation of the commission, the requirements of the state implementation plan, or any provision of parts 1 to 4 of this article, including any term or condition contained in any permit required under this article, the division or the commission, as the case may be, may request the district attorney for the district in which the alleged violation occurs or the attorney general to bring, and if so requested it is his or her duty to bring, a suit for an injunction to prevent any further or continued violation.
2. In any proceedings brought pursuant to this section to enforce an order of the division or the commission, a temporary restraining order or preliminary injunction, if sought, shall not issue if there is probable cause to believe that granting such temporary restraining order or preliminary injunction will cause serious harm to the affected person or any other person and:
   1. That the alleged violation or activity to which the order pertains will not continue or be repeated; or
   2. That granting such temporary restraining order or preliminary injunction would be without sufficient corresponding public benefit.

3. Notwithstanding any other provision in this section, no action for injunction may be taken where the source has obtained a renewable operating permit and conducts its operations in compliance with the permit terms, as provided in section 25-7-114.4 (3).

History. Source: L. 79: Entire article R&RE, p. 1044, § 1, effective June 20. L. 84: (1) and IP(2) amended, p. 775, § 12, effective July 1. L. 92: Entire section amended, p. 1220, § 22, effective July 1. L. 2016: (1) amended,(HB 16-1094), ch. 94, p. 268, § 16, effective August 10.

This section deals only with future conduct. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 179 Colo. 223 , 499 P.2d 1176 (1972).

Injunctive relief cannot be granted until one violates a final cease-and-desist order, not subject to a stay pending review, which has been issued pursuant to the air pollution control act. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 179 Colo. 223 , 499 P.2d 1176 (1972).

Or until notice of violation given. An injunction cannot issue until after notice is given of the alleged violation. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 179 Colo. 223 , 499 P.2d 1176 (1972).

The plain language found in this section and in § 25-7-122 allows the division to seek injunctions and civil penalties when a person violates an emissions control regulation of the commission or a requirement of the state implementation plan (SIP) regardless of whether the division has issued a final order. United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).

The use of “or” indicates that the general assembly intended to provide the division a choice: sue for violating an agency order or sue a person for violating an emission regulation. United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).

Any person who violates an emission regulation or the SIP shall be subject to civil penalties. United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).

This section and § 25-7-122 operate independently of § 25-7-115 . United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).

The general assembly intended to allow the state, through its attorney general, to sue in a court of law without requiring a final order from the division. United States v. K.P. Kauffman Co., 389 F. Supp. 3d 935 (D. Colo. 2019 ).

Showing of irreparable injury not necessary. The terms of this section do not dictate that a showing of irreparable injury must be made prior to the granting of an injunction. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).

A violation of the air quality standards embodies sufficient injury to the public interest to permit the injunctive remedy. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).

Resolution of inconsistencies with C.R.C.P. 65(d). Where the proceeding is a special statutory proceeding under the air pollution control act, any inconsistency regarding the form and scope of an injunction between C.R.C.P. 65(d) and § 25-7-102 is resolved in favor of the statutory section. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).