(1) On or after the date specified in section 25-15-102 (3), no person shall:
Dispose of any hazardous waste off-site at any facility that does not have state orfederal interim status, a federal permit, or a permit granted by the department pursuant to section 25-15-303;
Dispose of on-site, treat, or store any hazardous waste without having therefor eitherstate or federal interim status, a federal permit, or a permit granted by the department pursuant to section 25-15-303;
Substantially alter any hazardous waste treatment, storage, or disposal facility or sitewithout first obtaining from the department a modification of an existing permit or a new permit.
(2) (a) Whenever the department finds that any person is or has been in violation of any permit, rule, regulation, or requirement of this part 3, the department may issue an order identifying the factual and legal elements of such violation with particularity and requiring such person to comply with any such permit, rule, regulation, or requirement and may request the attorney general to bring suit for injunctive relief or for penalties pursuant to section 25-15-309 or 25-15-310.
Such orders may contain an administrative penalty assessment as provided in section25-15-309. Issuance of an administrative order without a penalty assessment shall not preclude the department from subsequently seeking an administrative or civil penalty for the violations detailed in the order. A hearing pursuant to section 24-4-105, C.R.S., shall not be required prior to the issuance of an order pursuant to this section.
Any order issued pursuant to this section shall be served upon the person who is thesubject of such order by personal service or by registered mail, return receipt requested. Any such order may be prohibitory or mandatory in effect. Unless provided otherwise in such order, the order shall be effective immediately upon issuance.
(3) (a) Any appeal of an order issued by the department pursuant to this section shall be taken in accordance with the provisions of this section. Notice of appeal shall be filed by personal service or by registered mail, return receipt requested, with the office of administrative courts in the department of personnel, with the executive director of the department or the executive director's designee, and with the commission in the case of an appeal of an administrative law judge's determination concerning an administrative penalty assessment. Notice of appeal shall be filed no later than thirty calendar days after the effective date of the order which is the subject of the appeal.
The filing of an appeal of any order shall stay the obligation to submit payment ofany monetary penalty pursuant to such order. Such filing shall not negate the appellant's obligation to otherwise comply with the order. An appellant may seek a stay of any other provision of an order in accordance with this section. The issuance of a stay shall not prevent the department from subsequently imposing a penalty for any subsequent violation by an appellant.
Any person appealing an order may make a motion that the administrative law judgestay the enforcement of such order. The administrative law judge may stay the enforcement of any portion of an order if the administrative law judge determines that the balance of equities favors the moving party. An administrative law judge shall consider the following factors in considering a request for a stay of an order:
The probability of serious harm to the moving party if the motion for a stay is denied;
The probability that no serious harm to the public health or the environment willoccur if the motion for a stay is granted;
The merits of the moving party's case on appeal; and(IV) The public interest.
The stay of any portion of an order shall have no effect on the recipient's obligationsunder applicable statutes, regulations, permits, and valid, existing orders.
The administrative law judge shall expedite hearing and determinations in regards toa motion for a stay pursuant to this subsection (3). The moving party shall have the burden of proof in any hearing regarding a motion for a stay.
Any hearing held by an administrative law judge pursuant to this section shall beconducted in accordance with section 24-4-105, C.R.S., except as otherwise provided in this section. Except as provided in paragraph (e) of this subsection (3), the department shall bear the burden of proof by a preponderance of the evidence in any hearing before an administrative law judge pursuant to this section.
Upon motion of a party to the appeal, and in the discretion of the administrative lawjudge, an administrative law judge may request an interpretive rule from the commission pertaining to any rule which is at issue in the appeal only in the event that there is no genuine issue of material fact or in the event that the parties have stipulated to the material facts for the purposes of such interpretive rule. The administrative law judge may adjust the schedule of the appeal to accommodate the receipt of such information. Notwithstanding the provisions of section 24-4-103 (1), C.R.S., in the event that an interpretive rule is requested by an administrative law judge and the commission agrees to issue such an interpretation, notice to the public of the interpretive rule-making proceeding shall be given in accordance with the provisions of section 24-4-103, C.R.S. Such notice shall be provided within forty-five days following the receipt of the request. The commission shall accept written material, not to exceed fifteen pages in length, that is received from any interested person no later than fifteen days following the date that notification is given. The commission shall issue the written interpretive rule no later than thirty days following the deadline for the receipt of any such written material. The legal effect of any such interpretive rule shall be determined in accordance with applicable law and is not presumed to be binding on any party to the appeal.
Except as provided in paragraph (i) of this subsection (3) and notwithstanding theprovisions of section 24-4-105 (15), C.R.S., any appeal of the determination of the administrative law judge pursuant to this section or section 25-15-301 (4)(b) shall be taken to the district court in accordance with section 24-4-106, C.R.S.
Questions raised upon appeal of the determination of an administrative law judge asto the amount of penalty assessed by an order issued pursuant to this section shall be heard by the commission based upon the record developed by the administrative law judge. Notwithstanding the provisions of section 24-4-103 (1), C.R.S., in the event that the commission is requested to review the amount of a penalty, notice to the public of such penalty review shall be given in accordance with the provisions of section 24-4-103, C.R.S. Such notice shall be provided within forty-five days following receipt of such request for review of a penalty.
(4) (a) Any action pursuant to this part 3 shall commence within two years after the date upon which the department discovers an alleged violation of this part 3 or within five years after the date upon which the alleged violation occurred, whichever date occurs earlier; except that such limitation period is tolled during any period that the alleged violation is intentionally concealed. For the purposes of this section, "intentionally" shall have the meaning provided for such term in section 18-1-501 (5), C.R.S.
(b) If any action has not been commenced within the limitation period provided by paragraph (a) of this subsection (4) in connection with any disposal of hazardous waste without either state or federal interim status, a federal permit, or a permit granted by the department pursuant to section 25-15-303, the department, within two years after the date upon which the department discovers such disposal, may issue an order pursuant to this section requiring action to remediate such disposal. The department is not authorized under these circumstances to seek any administrative, civil, or criminal penalties for such disposal of hazardous waste.
Source: L. 81: Entire article R&RE, p. 1357, § 1, effective July 1. L. 83: (1) amended, p. 1104, § 24, effective November 2, 1984. L. 92: (1)(a), (1)(b), and (2) amended and (3) and (4) added, p. 1247, § 10, effective August 1. L. 95: (3)(a) amended, p. 664, § 99, effective July 1. L. 2005: (3)(a) amended, p. 858, § 24, effective June 1.
Editor's note: Although the act repealing and reenacting this article was effective July 1, 1981, this section was not effective until November 2, 1984. (See § 25-15-102 (3).)