Colorado Legislative Council Staff

NO FISCAL IMPACT

TITLE:            CONCERNING REPEAL OF CERTAIN PROVISIONS OF THE ENVIRONMENTAL SELF-EVALUATION LAWS, AND, IN CONNECTION THEREWITH, REPEALING THE IMMUNITY AGAINST CRIMINAL PENALTIES FOR ENVIRONMENTAL VIOLATIONS THAT ARE VOLUNTARILY DISCLOSED AND ELIMINATING THE SUNSET DATE FOR THE ENVIRONMENTAL SELF-EVALUATION PROVISIONS.

Summary of Assessment

            The bill repeals the immunity against criminal penalties for environmental violations that are negligent acts and are voluntarily disclosed to the Department of Public Health and Environment (DPHE). It also eliminates the June 30, 1999, sunset date for: (1) immunity against civil and administrative penalties for voluntarily disclosed violations; and (2) the environmental audit privilege. The bill includes an effective date of July 1, 1998, and section 3 applies to voluntary disclosures made on or after said date.

            Background. SB 94-139, concerning environmental self-evaluation, and, in connection therewith, creating an environmental self-evaluation privilege and creating a presumption against the imposition of any administrative, civil, or criminal penalties for voluntary disclosures arising out of any environmental self-evaluation, established immunity against criminal penalties for voluntarily disclosed environmental violations (negligent acts) to DPHE. Current law does not extend any other immunity for environmental crimes. To date, the department has identified 28 voluntarily disclosed cases. Of these, 15 have been closed, 18 have received immunity, 5 have been denied immunity, and 5 are pending. DPHE does not identify these cases in a manner that isolates which ones may or may not be subject to civil and or criminal penalties.

            According to DPHE, the state’s hazardous waste and clean air laws establish criminal negligence as a crime together with crimes requiring a state of mind (knowing, reckless, intentional, etc.). In its practice of making referrals for criminal prosecution of environmental violations, DPHE does not make a distinction between criminal negligence and other environmental crimes; prosecutors determine the appropriate charges. DPHE indicates that only the Air Quality Control Division (AQCD) and the Hazardous Materials and Waste Management Division (HMWMD) have the authority to pursue criminal referrals. AQCD has done none and HMWMD does a small number annually. To date, there have been no convictions on criminal negligence relative to environmental crimes according to DPHE. It is not anticipated that there will be any increase or decrease in criminal referrals by DPHE as a result of HB 98-1418. Thus, the bill is assessed as having no fiscal impact.

Departments Contacted

            Public Health and Environment

            Law