2021 Colorado Code
Title 25 - Public Health and Environment
Article 7 - Air Quality Control
Part 1 - Air Quality Control Program
§ 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:
   1. (Deleted by amendment,L. 92, p. 1220, § 23, effective July 1, 1992.)
   2. Any person who violates any requirement or prohibition of 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 section 25-7-105, 25-7-106, .3, 25-7-108, 25-7-109, 25-7-111, 25-7-112, 25-7-113, 25-7-114.2, 25-7-114.5, 25-7-118, 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:
      1. 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
      2. 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.

   3. 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 five hundred dollars.
   4. 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.
   5. 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.
   6. 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.
   7. 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.
   8. 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.
   9. 1. 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. (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.
      2. The division shall not assess a civil penalty for a violation related to a public building.
      3. 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.
      4. As used in this subsection (1)(i):
         1. “Covered building” has the meaning set forth in section 25-7-142 (2)(j).
         2. “Owner” has the meaning set forth in section 25-7-142 (2)(r).

2. 1. In determining the amount of any civil penalty, the following factors shall be considered:
      1. The violator's compliance history;
      2. Good-faith efforts on behalf of the violator to comply;
      3. Payment by the violator of penalties previously assessed for the same violation;
      4. Duration of the violation;
      5. Economic benefit of noncompliance to the violator;
      6. Impact on, or threat to, the public health or welfare or the environment as a result of the violation;
      7. Malfeasance; and
      8. Whether legal and factual theories were advanced for purposes of delay.

   2. In addition to the factors set forth in paragraph (a) of this subsection (2), the following circumstances shall be considered as grounds for reducing or eliminating civil penalties:
      1. The voluntary and complete disclosure by the violator of such violation in a timely fashion after discovery of the noncompliance;
      2. 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;
      3. The existence and scope of a regularized and comprehensive environmental compliance program or an environmental audit program;
      4. Substantial economic impact of a penalty on the violator;
      5. Nonfeasance; and
      6. Other mitigating factors.

   3. 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. Notwithstanding any other provision in this section, no action for civil enforcement of this article 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)(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 January 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. 141, p. 617, § 4, effective June 29; IP(1), (1)(b), and (1)(d) amended,(HB 20-1143), ch. 219, p. 1081, § 1, effective July 2; IP(1) and (1)(b) amended,(HB 20-1167), ch. 56, p. 193, § 6, effective September 14. L. 2021: (1)(i) added,(HB 21-1286), ch. 326, 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. 1. Amendments to subsection IP(1) by SB 20-218, HB 20-1143, and HB 20-1167 were harmonized. (3) (a) Amendments to subsection IP(1) by SB 20-218, HB 20-1143, and HB 20-1167 were harmonized.
   2. Amendments to subsection (1)(b) by HB 20-1143 and HB 20-1167 were harmonized.

4. Section 6(2) of chapter 326 (HB 21-1286), Session Laws of Colorado 2021, provides that the act changing this section applies to conduct occurring on or after September 7, 2021.

The plain language found in this section and in § 25-7-121 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 ).

Legislative intent to impose civil rather than criminal penalties for violation of air pollution control standards is clear from the history of the 1970 air pollution control act. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).

The express language of the enforcement provisions belies any contention that the general assembly intended this section to effect criminal rather than civil penalties. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).

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 § 25-7-121 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 ).

Civil penalty cannot be imposed 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).

Nor until notice of violation given. A civil penalty cannot be imposed 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).

No provision for jury determination. The air pollution control act contains no provision for trial by a jury or for penalty assessment by a jury. Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd., 191 Colo. 463 , 553 P.2d 800 (1976).