First Regular Session
Sixty-second General Assembly
LLS NO. 99-0298.01 Pam Cybyske SENATE BILL 99-138
STATE OF COLORADO
BY SENATOR Thiebaut
STATE, VETERANS, & MILITARY AFFAIRS
A BILL FOR AN ACT
101 CONCERNING THE ENACTMENT OF THE "POLLUTION PREVENTION AND
102 COMMUNITY RIGHT-TO-KNOW ACT".
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
Creates the "Pollution Prevention and Community Right-to-Know
Act". Requires a court, when sentencing an entity that is regulated by
environmental law ("regulated entity") for a felonious environmental
offense, to order an environmental compliance audit at the expense of that
entity. Gives a court discretion to order an environmental compliance
audit in misdemeanor criminal or civil cases if the offense caused or may
cause harm to human health or the environment.
Allows a regulated entity to conduct a voluntary environmental
audit in order to achieve reduced civil penalties and limitations on referral
for criminal prosecution by the department of public health and
environment ("department"). Sets forth the requirements for an
environmental audit to qualify for the reduced civil penalties and
limitations on referral for criminal prosecution.
Requires a qualifying environmental audit to be based on 1 of 3
approaches:
Comprehensive internal audit that is verified by an
independent external expert;
An audit that is requested by the affected community; or
A pollution prevention or work place safety audit.
Orders the department to create a comprehensive program to
provide incentives to small businesses to encourage their participation in
environmental assistance programs.
Clarifies that environmental audits are subject to discovery
[ ] denotes HOUSE amendment. { } denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate material to be deleted from existing statute.
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pursuant to the rules of civil, criminal, or administrative procedure.
Prohibits the department from requesting an environmental audit
report from a regulated entity that has not voluntarily disclosed such
report unless there is an active investigation underway, and an
independent basis, other than the report, exists to believe the regulated
entity is in violation of environmental law.
Requires a regulated entity that intends to conduct a qualifying
environmental audit to notify the department and the affected community
60 days before the audit begins. Compels such regulated entity to publish
and file with the department a summary of the qualifying environmental
audit 45 days after the audit is completed.
Mandates the regulated entity to make copies of the qualifying
environmental audit summary and the audit itself available to all public
libraries within the entity's region.
Allows a regulated entity to withhold trade secret information from
the public. Requires the regulated entity to submit trade secret
information to the department indicating that it is trade secret
information.
Establishes criteria for the regulated entity to claim that
information is a trade secret. Allows the executive director of the
department ("executive director") to find that information claimed as
trade secret is not a trade secret and mandate its disclosure. Enables a
regulated entity to request a hearing concerning the trade secret
information before the executive director renders a decision on that issue.
Allows local governments to enact more stringent regulations.
Permits a person whose health, home, or livelihood has been
damaged by the actions of a regulated entity to sue the regulated entity
and requires the regulated entity to prove by a preponderance of the
evidence that its actions did not cause the harm claimed.
Authorizes the executive director to promulgate rules to implement
the "Pollution Prevention and Community Right-to-Know Act".
Repeals laws protecting documents arising from environmental
self-evaluation and voluntary clean-up laws.
1 Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. Title 25, Colorado Revised Statutes, is amended BY
3 THE ADDITION OF A NEW ARTICLE to read:
4 ARTICLE 6.8
5 Pollution Prevention and Community Right-to-Know Act
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1 25-6.8-101. Short title. THIS ARTICLE SHALL BE KNOWN AND MAY
2 BE CITED AS THE "POLLUTION PREVENTION AND COMMUNITY
3 RIGHT-TO-KNOW ACT".
4 25-6.8-102. Definitions. AS USED IN THE ARTICLE, UNLESS THE
5 CONTEXT OTHERWISE REQUIRES:
6 (1) "AFFECTED COMMUNITY" MEANS PERSONS WHO ARE SUBJECT
7 TO AN ACTUAL OR POTENTIAL HEALTH, ECONOMIC, OR ENVIRONMENTAL
8 THREAT OF POLLUTION FROM A REGULATED ENTITY'S ACTIVITIES.
9 (2) "DEPARTMENT" MEANS THE DEPARTMENT OF PUBLIC HEALTH
10 AND ENVIRONMENT CREATED IN SECTION 24-1-119, C.R.S.
11 (3) "ENVIRONMENTAL AUDIT" MEANS A VOLUNTARY, SYSTEMATIC,
12 DOCUMENTED, PERIODIC, AND OBJECTIVE REVIEW OF A REGULATED
13 ENTITY'S OPERATIONS OR PRACTICES TO ENSURE THAT IT MEETS
14 DESIGNATED ENVIRONMENTAL LAW.
15 (4) "ENVIRONMENTAL AUDIT REPORT" MEANS THE WRITTEN
16 DOCUMENTATION RELATING TO AN ENVIRONMENTAL AUDIT, INCLUDING
17 BUT NOT LIMITED TO THE FACTUAL INFORMATION OR DATA UNDERLYING
18 SUCH AUDIT.
19 (5) "ENVIRONMENTAL JUSTICE AREA OF CONCERN" MEANS ANY
20 AREA OR COMMUNITY WHERE LOW-INCOME POPULATIONS OR PEOPLE OF
21 COLOR ARE EXPERIENCING ADVERSE HEALTH OR ENVIRONMENTAL EFFECTS
22 BELIEVED TO BE CAUSED BY A REGULATED ENTITY'S FACILITY.
23 (6) "ENVIRONMENTAL LAW" MEANS ANY REQUIREMENT
24 CONTAINED IN ARTICLE 20.5 OF TITLE 8, C.R.S., ARTICLES 7, 8, 11, AND 15
25 OF THIS TITLE, OR ARTICLE 20 OF TITLE 30, C.R.S., IN RULES PROMULGATED
26 UNDER SUCH PROVISIONS, OR IN ANY ORDERS, PERMITS, LICENSES, OR
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1 CLOSURE PLANS UNDER SUCH PROVISIONS.
2 (7) "ENVIRONMENTAL OFFENSE" MEANS A CRIMINAL OR CIVIL
3 VIOLATION OF ANY ENVIRONMENTAL LAW SET FORTH IN SUBSECTION (6) OF
4 THIS SECTION.
5 (8) "EXECUTIVE DIRECTOR" MEANS THE EXECUTIVE DIRECTOR OF
6 THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT.
7 (9) "GRAVITY COMPONENT" MEANS THE PUNITIVE PORTION OF A
8 PENALTY THAT IS OVER AND ABOVE THE ECONOMIC BENEFIT.
9 (10) "PERSISTENT TOXIC SUBSTANCE" MEANS ANY TOXIC
10 SUBSTANCE WITH A HALF-LIFE IN WATER OF MORE THAN EIGHT WEEKS.
11 (11) "PRECAUTIONARY PRINCIPLE" MEANS THAT TO AVOID
12 IRREPARABLE HARM TO THE ENVIRONMENT OR HUMAN HEALTH, A
13 REGULATED ENTITY SHALL TAKE PRECAUTIONARY ACTION WHENEVER IT
14 IS ACKNOWLEDGED THAT A PRACTICE OR SUBSTANCE COULD CAUSE HARM,
15 EVEN WITHOUT CONCLUSIVE SCIENTIFIC EVIDENCE THAT IS HAS CAUSED
16 HARM OR DOES CAUSE HARM. IF IT IS ACKNOWLEDGED THAT A PRACTICE
17 OR SUBSTANCE COULD CAUSE HARM, THE PRACTICE OR EMISSIONS OF THE
18 SUBSTANCE SHALL BE PREVENTED AND ELIMINATED BY THE REGULATED
19 ENTITY.
20 (12) "QUALIFYING ENVIRONMENTAL AUDIT" MEANS AN
21 ENVIRONMENTAL AUDIT CONDUCTED BY A REGULATED ENTITY OR A THIRD
22 PARTY OVER A LIMITED PERIOD OF TIME, NOT TO EXCEED ONE MONTH IN
23 DURATION, THAT OCCURS ON AN INDIVIDUAL UNIT OR FACILITY NO MORE
24 THAN TWICE PER CALENDAR YEAR, CONSISTENT WITH THE CRITERIA IN
25 SECTION 25-6.8-104.
26 (13) "REGULATED ENTITY" MEANS ANY ENTITY REGULATED
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1 PURSUANT TO ENVIRONMENTAL LAW.
2 (14) "SMALL BUSINESS" MEANS A PERSON, CORPORATION,
3 PARTNERSHIP OR OTHER ENTITY THAT EMPLOYS ONE HUNDRED OR FEWER
4 INDIVIDUALS ACROSS ALL FACILITIES AND OPERATIONS OWNED BY THE
5 ENTITY.
6 (15) "TOXIC SUBSTANCE" MEANS A SUBSTANCE THAT CAN CAUSE
7 DEATH, DISEASE, BEHAVIORAL ABNORMALITIES, CANCER, OR GENETIC
8 MUTATIONS OR THAT CAN BECOME POISONOUS AFTER CONCENTRATION IN
9 THE FOOD CHAIN OR IN COMBINATION WITH OTHER SUBSTANCES.
10 (16) "VOLUNTARY" MEANS AN ACTION THAT IS NOT REQUIRED BY
11 STATUTE, RULE, PERMIT, SETTLEMENT, OR ORDER.
12 25-6.8-103. Environmental compliance audit - court order.
13 (1) WHEN SENTENCING A REGULATED ENTITY FOR AN ENVIRONMENTAL
14 OFFENSE THAT IS A FELONY, A COURT SHALL ORDER THE PERFORMANCE OF
15 AN ENVIRONMENTAL COMPLIANCE AUDIT AT THE EXPENSE OF SUCH
16 REGULATED ENTITY. THE COURT, IN ITS DISCRETION, MAY ORDER AN
17 ENVIRONMENTAL COMPLIANCE AUDIT AT THE EXPENSE OF A REGULATED
18 ENTITY IN CASES INVOLVING MISDEMEANOR ENVIRONMENTAL OFFENSES,
19 OR CIVIL OFFENSES THAT CAUSE OR MAY CAUSE HARM TO THE
20 ENVIRONMENT OR HUMAN HEALTH.
21 (2) IF THE COURT ORDERS AN ENVIRONMENTAL COMPLIANCE AUDIT
22 PURSUANT TO SUBSECTION (1) OF THIS SECTION, THE COURT SHALL ALSO
23 APPOINT AN INDEPENDENT EXPERT TO CONDUCT SUCH ENVIRONMENTAL
24 COMPLIANCE AUDIT. SUCH EXPERT SHALL HAVE HAD NO PRIOR
25 INVOLVEMENT IN THE MANAGEMENT OF THE REGULATED ENTITY ORDERED
26 TO UNDERGO SUCH ENVIRONMENTAL COMPLIANCE AUDIT AND SHALL
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1 HAVE DEMONSTRATED ABILITIES TO PROPERLY CONDUCT SUCH AUDITS.
2 (3) AN ENVIRONMENTAL COMPLIANCE AUDIT SHALL:
3 (a) IDENTIFY ALL CAUSES OF AND FACTORS RELATING TO THE
4 OFFENSE; AND
5 (b) RECOMMEND SPECIFIC MEASURES THAT SHOULD BE TAKEN BY
6 THE REGULATED ENTITY TO PREVENT A RECURRENCE OF THOSE CAUSES
7 AND FACTORS AND AVOID POTENTIAL ENVIRONMENTAL OFFENSES. SUCH
8 MEASURES SHALL NOT REQUIRE THE VIOLATION OF AN ENVIRONMENTAL
9 LAW.
10 25-6.8-104. Qualifying environmental audit. (1) AN
11 ENVIRONMENTAL AUDIT SHALL QUALIFY FOR THE BENEFITS OF THE
12 PROVISIONS OF THIS ARTICLE IF IT IS BASED ON ONE OF THE FOLLOWING
13 THREE APPROACHES:
14 (a) Comprehensive internal audits that are verified by an
15 independent external source. SUCH AN AUDIT SHALL BE A
16 COMPREHENSIVE REVIEW OF GENERAL ENVIRONMENTAL COMPLIANCE
17 MATTERS OR AN ANALYSIS OF SPECIFIC REQUIREMENTS UNDER AN
18 INDIVIDUAL STATUTE. IF AN AUDIT IS CONDUCTED BY THE EMPLOYEES OF
19 A REGULATED ENTITY, SUCH AUDIT SHALL BE EXTERNALLY VERIFIED FOR
20 COMPLIANCE WITH ESTABLISHED STANDARDS FOR COMPREHENSIVE
21 AUDITING. A REGULATED ENTITY PLANNING TO CONDUCT ITS OWN AUDIT
22 SHALL APPLY TO THE EXECUTIVE DIRECTOR TO IDENTIFY AND SELECT AN
23 INDEPENDENT PERSON TO VERIFY SUCH AUDIT.
24 (b) Affected community audit. A REGULATED ENTITY MAY
25 CONDUCT AN AUDIT IN RESPONSE TO SPECIFIC CONCERNS OF PEOPLE WHO
26 LIVE IN AN AFFECTED COMMUNITY. THE AFFECTED COMMUNITY RESIDENTS
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1 SHALL SET THE SCOPE OF THE AUDIT, SUPERVISE THE EXPERTS DURING THE
2 COURSE OF THE AUDIT, AND OVERSEE THE IMPLEMENTATION OF ANY
3 RECOMMENDATIONS.
4 (c) Pollution prevention or work place safety audit. A
5 REGULATED ENTITY MAY CONDUCT AN AUDIT OF ONE OR MORE
6 PRODUCTION UNITS OR ACTIVITIES IN ORDER TO IDENTIFY OPPORTUNITIES
7 TO:
8 (I) REDUCE THE UTILIZATION OF TOXIC SUBSTANCES OR PERSISTENT
9 TOXIC SUBSTANCES;
10 (II) PRODUCE ZERO DISCHARGE TO ALL ENVIRONMENTAL MEDIA OF
11 TOXIC SUBSTANCES OR PERSISTENT TOXIC SUBSTANCES CURRENTLY BEING
12 DISCHARGED; OR
13 (III) PROMOTE SAFETY IN THE WORK PLACE. THE AUDITOR MAY BE
14 AN EMPLOYEE OF THE REGULATED ENTITY OR A THIRD PARTY, BUT SUCH
15 AUDITOR SHALL HAVE SPECIAL EXPERTISE IN POLLUTION PREVENTION AND
16 WORK PLACE SAFETY.
17 (2) IF A REGULATED ENTITY'S FACILITY IS LOCATED WITHIN AN
18 ENVIRONMENTAL JUSTICE AREA OF CONCERN, IN ORDER FOR AN AUDIT TO
19 BE CONSIDERED A QUALIFYING ENVIRONMENTAL AUDIT, THE REGULATED
20 ENTITY SHALL INVOLVE THE AFFECTED COMMUNITY RESIDENTS IN THE
21 AUDITING PROCESS ACCORDING TO OF PARAGRAPH (b) OF SUBSECTION (1)
22 OF THIS SECTION.
23 25-6.8-105. Compliance incentives for small businesses.
24 (1) THE DEPARTMENT SHALL CREATE A COMPREHENSIVE PROGRAM TO
25 PROVIDE INCENTIVES TO SMALL BUSINESSES TO ENCOURAGE THEM TO
26 PARTICIPATE IN ENVIRONMENTAL COMPLIANCE ASSISTANCE PROGRAMS,
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1 TO CONDUCT ENVIRONMENTAL AUDITS, AND TO PROMPTLY CORRECT
2 VIOLATIONS OF ENVIRONMENTAL LAW.
3 (2) THE EXECUTIVE DIRECTOR MAY ADOPT RULES AS ARE
4 NECESSARY TO CREATE THE PROGRAM SET FORTH IN SUBSECTION (1) OF
5 THIS SECTION. SUCH PROGRAM SHALL INCLUDE EXISTING STATE AND
6 FEDERAL INCENTIVES. THE EXECUTIVE DIRECTOR SHALL SEEK PUBLIC
7 INPUT THROUGHOUT THE PROCESS OF CREATING THE PROGRAM.
8 25-6.8-106. Reduction of civil penalties - limitation on criminal
9 referrals. (1) IF A REGULATED ENTITY VOLUNTARILY NOTIFIES THE
10 DEPARTMENT OF AN ENVIRONMENTAL OR HEALTH AND SAFETY LAW THAT
11 IS IDENTIFIED IN THE COURSE OF THE PERFORMANCE OF A QUALIFYING
12 ENVIRONMENTAL AUDIT, THE DEPARTMENT SHALL CONSIDER THIS
13 VOLUNTARY DISCLOSURE IN DETERMINING WHETHER OR NOT TO
14 PROSECUTE SUCH ENTITY FOR THE VIOLATION. AT A MINIMUM, THE
15 DEPARTMENT SHALL ELIMINATE THE GRAVITY COMPONENT OF ANY
16 POTENTIAL CIVIL PENALTY FOR A REGULATED ENTITY ENGAGING IN SUCH
17 DISCLOSURES AND MEETING THE CONDITIONS SET FORTH IN SECTION
18 25-6.8-108, IF THE VIOLATIONS CAUSED NO ACTUAL OR POTENTIAL HARM
19 TO HUMAN HEALTH OR THE NATURAL ENVIRONMENT. IF THE VIOLATIONS
20 CREATE POTENTIAL BUT NOT ACTUAL HARM, THE REGULATED ENTITY MAY
21 QUALIFY FOR THE ELIMINATION OF THE GRAVITY COMPONENT OF ANY
22 POTENTIAL CIVIL PENALTY IF IT CAN PROVE THAT A TOXIC SUBSTANCE IS
23 NOT HARMFUL TO HUMAN HEALTH OR THE ENVIRONMENT AND ALL OF THE
24 CONDITIONS SET FORTH IN SECTION 25-6.8-108 ARE MET.
25 (2) (a) THE DEPARTMENT SHALL NOT RECOMMEND THAT CRIMINAL
26 CHARGES BE BROUGHT AGAINST A REGULATED ENTITY IF THE DEPARTMENT
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1 DETERMINES THAT ALL OF THE CONDITIONS SET FORTH IN SECTION
2 25-6.8-108 ARE MET AND THE CIRCUMSTANCES OF THE IDENTIFIED
3 VIOLATION DO NOT DEMONSTRATE:
4 (I) A PREVALENT CORPORATE MANAGEMENT PHILOSOPHY OR
5 PRACTICE THAT CONCEALED OR CONDONED ENVIRONMENTAL OR HEALTH
6 AND SAFETY VIOLATIONS; OR
7 (II) HIGH-LEVEL CORPORATE OFFICIALS' OR MANAGERS' CONSCIOUS
8 INVOLVEMENT IN OR WILLFUL BLINDNESS TO ENVIRONMENTAL OR HEALTH
9 AND SAFETY VIOLATIONS.
10 (b) IF THE DEPARTMENT DETERMINES PURSUANT TO THIS SECTION
11 THAT A CRIMINAL REFERRAL AGAINST THE REGULATED ENTITY IS
12 INAPPROPRIATE, THE DEPARTMENT MAY NEVERTHELESS MAKE CRIMINAL
13 REFERRALS AGAINST INDIVIDUAL EMPLOYEES TO THE EXTENT THE
14 EVIDENCE DEMONSTRATES WILLFUL, KNOWING, OR RECKLESS VIOLATIONS
15 OF LAW BY SUCH INDIVIDUALS.
16 (3) THE BURDEN OF PROOF SHALL REST WITH A REGULATED ENTITY
17 SEEKING THE BENEFITS OF THIS ARTICLE TO DEMONSTRATE VOLUNTARY
18 DISCLOSURE, GOOD FAITH, AND LACK OF POTENTIAL HARM AND THAT ITS
19 ACTIONS ARE CONSISTENT WITH THE PRECAUTIONARY PRINCIPLE. IF THE
20 DEPARTMENT HAS REASON TO BELIEVE THAT A DISCLOSURE IS NOT
21 VOLUNTARY UNDER THIS ARTICLE, THE REGULATED ENTITY HAS THE
22 BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT SUCH
23 DISCLOSURE WAS VOLUNTARY.
24 25-6.8-107. Discovery - no privilege - audit report requests.
25 (1) ALL ENVIRONMENTAL AUDITS CONDUCTED PURSUANT TO THIS ARTICLE
26 SHALL BE SUBJECT TO DISCOVERY PURSUANT TO THE RULES OF CIVIL,
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1 CRIMINAL, OR ADMINISTRATIVE PROCEDURE BY GOVERNMENT AND
2 PRIVATE PARTIES AND SHALL NOT BE CONSIDERED PRIVILEGED UNDER ANY
3 PRINCIPLE OF LAW.
4 (2) IN THE ABSENCE OF A VOLUNTARY DISCLOSURE PURSUANT TO
5 THIS ARTICLE, THE DEPARTMENT SHALL NOT REQUEST AN ENVIRONMENTAL
6 AUDIT REPORT FROM A REGULATED ENTITY UNLESS A CIVIL OR CRIMINAL
7 INVESTIGATION IS ALREADY UNDERWAY AND A BASIS EXISTS INDEPENDENT
8 OF THE ENVIRONMENTAL AUDIT REPORT FOR BELIEVING THAT A VIOLATION
9 HAS OCCURRED.
10 25-6.8-108. Conditions for the reduction of civil penalties.
11 (1) IN ORDER TO REDUCE CIVIL PENALTIES ACCORDING TO SECTION
12 25-6.8-106, A REGULATED ENTITY SHALL:
13 (a) DISCOVER THE VIOLATION FOR WHICH THE REDUCTION IN CIVIL
14 PENALTIES IS SOUGHT THROUGH A QUALIFYING ENVIRONMENTAL AUDIT;
15 (b) VOLUNTARILY AND FULLY DISCLOSE THE VIOLATION IN
16 WRITING TO ALL APPROPRIATE FEDERAL, STATE, AND LOCAL AGENCIES
17 WITHIN FOURTEEN DAYS AFTER THE DISCOVERY AND BEFORE:
18 (I) THE COMMENCEMENT OF A FEDERAL, STATE, OR LOCAL AGENCY
19 INSPECTION, INVESTIGATION, OR INFORMATION REQUEST; OR
20 (II) NOTICE OF A CITIZEN LAW SUIT OR LEGAL COMPLAINT BY A
21 THIRD PARTY; OR
22 (III) THE REGULATED ENTITY HAS KNOWLEDGE THAT THE
23 DISCOVERY OF THE VIOLATION BY A REGULATORY AGENCY OR THIRD
24 PARTY WAS IMMINENT.
25 (c) PROVIDE NOTICE AND DISCLOSURE CONSISTENT WITH SECTION
26 25-6.8-109;
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1 (d) CORRECT THE VIOLATION WITHIN SIXTY DAYS AFTER ITS
2 DISCOVERY, OR, IF IT CANNOT CORRECT THE VIOLATION WITHIN SIXTY
3 DAYS, IT MAY REQUEST AN EXTENSION FROM THE DEPARTMENT FOR AN
4 ADDITIONAL SIXTY DAYS. BEFORE THE DEPARTMENT AGREES TO THE
5 EXTENSION, THE PUBLIC SHALL BE NOTIFIED AND GIVE INPUT ON SUCH
6 REQUESTED EXTENSION, PARTICULARLY THOSE PERSONS WHO LIVE IN THE
7 AFFECTED COMMUNITY.
8 (e) IMMEDIATELY REMEDY ANY VIOLATION THAT HAS CAUSED OR
9 MAY CAUSE DAMAGE TO HUMAN HEALTH OR THE ENVIRONMENT;
10 (f) IMPLEMENT MEASURES TO PREVENT A RECURRENCE OF THE
11 VIOLATION;
12 (g) DEMONSTRATE GOOD FAITH BY THE REGULATED ENTITY OR ITS
13 MANAGERS' UNDERSTANDING OF AND COMPLIANCE WITH ENVIRONMENTAL
14 LAW OR HEALTH AND SAFETY REQUIREMENTS. FOR EXAMPLE, BUT NOT BY
15 WAY OF LIMITATION, A REGULATED ENTITY MAY DEMONSTRATE GOOD
16 FAITH BY:
17 (I) HAVING AN EFFECTIVE AUDITING OR SELF-EVALUATION SYSTEM
18 IN PLACE FOR PREVENTING, DETECTING, AND CORRECTING VIOLATIONS
19 THAT IS APPROPRIATE TO THE SIZE AND NATURE OF THE FACILITY; OR
20 (II) HAVING MANAGEMENT POLICIES AND PROCEDURES IN PLACE
21 TO PROMOTE FULL COMPLIANCE WITH ENVIRONMENTAL LAW; OR
22 (III) NOT ALLOWING ANY VIOLATION TO GO UNCORRECTED FOR
23 MORE THAN SIXTY DAYS.
24 (h) COOPERATE AS REQUIRED BY THE DEPARTMENT AND PROVIDE
25 SUCH INFORMATION AS IS NECESSARY AND REQUIRED BY THE
26 DEPARTMENT;
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1 (i) NOT HAVE ANY CONVICTIONS OR PLEAS OF NOLO CONTENDERE
2 WITHIN THE LAST FIVE YEARS OR OTHER WILLFUL VIOLATIONS OF
3 ENVIRONMENTAL OR HEALTH AND SAFETY LAWS;
4 (j) HAVE ADOPTED THE PRECAUTIONARY PRINCIPLE IN ITS POLICIES
5 AND IMPLEMENTED IT IN DECISION-MAKING RELATIVE TO THE AUDIT AND
6 ITS FINDINGS.
7 25-6.8-109. Notice and disclosure requirements. (1) PRIOR TO
8 COMMENCING AN AUDIT THAT IS INTENDED TO QUALIFY FOR THE BENEFITS
9 OF THIS ARTICLE, A REGULATED ENTITY SHALL PROVIDE SIXTY DAYS
10 ADVANCE NOTICE TO THE DEPARTMENT AND THE PEOPLE WHO LIVE IN THE
11 AFFECTED COMMUNITY OF SUCH REGULATED ENTITY'S INTENT TO CONDUCT
12 A QUALIFYING AUDIT.
13 (2) A REGULATED ENTITY THAT CONDUCTS A QUALIFYING
14 ENVIRONMENTAL AUDIT SHALL PUBLISH AND FILE, WITHIN FORTY-FIVE
15 DAYS AFTER THE AUDIT'S COMPLETION, A SUMMARY REPORT WITH THE
16 DEPARTMENT. THE SUMMARY REPORT SHALL CONTAIN A:
17 (a) CERTIFICATION THAT THE APPLICABLE REQUIREMENTS OF THIS
18 ARTICLE HAVE BEEN COMPLIED WITH;
19 (b) DISCLOSURE OF ALL VIOLATIONS OF ENVIRONMENTAL LAWS
20 AND HEALTH AND SAFETY REQUIREMENTS THAT WERE IDENTIFIED IN THE
21 QUALIFYING ENVIRONMENTAL AUDIT AND A BRIEF DESCRIPTION OF ALL
22 COMPLETED OR PROPOSED ACTIONS TO CORRECT THE VIOLATIONS;
23 (c) COMMITMENT SIGNED BY THE OWNER OR OPERATOR OF THE
24 FACILITY TO CORRECT THE VIOLATIONS AS EXPEDITIOUSLY AS REQUIRED
25 BY SECTION 25-6.8-108 (1) (d);
26 (d) NOTICE AS TO THE LOCATION WHERE INTERESTED INDIVIDUALS
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1 MAY READ THE SUMMARY REPORT AND THE ENVIRONMENTAL AUDIT
2 REPORT.
3 (3) THE SUMMARY REPORT AND THE ENVIRONMENTAL AUDIT
4 REPORT SHALL BE MADE AVAILABLE TO ALL PUBLIC LIBRARIES IN THE
5 REGULATED ENTITY'S REGION. THE REGULATED ENTITY SHALL NOTIFY THE
6 PUBLIC OF THE AVAILABILITY OF THE REPORTS THROUGH ALL THE PRIMARY
7 MEDIA OUTLETS IN THE REGULATED ENTITY'S REGION.
8 (4) A REGULATED ENTITY THAT HAS CONDUCTED A QUALIFYING
9 ENVIRONMENTAL AUDIT SHALL ATTACH TO EACH DOCUMENT OR
10 INFORMATION REQUIRED TO BE REPORTED PURSUANT TO ANY STATE LAW
11 OR RULE A WRITTEN STATEMENT THAT CONTAINS THE FOLLOWING
12 LANGUAGE:
13 "DURING THIS REPORTING PERIOD, WE CONDUCTED A
14 QUALIFYING ENVIRONMENTAL AUDIT PURSUANT TO THE
15 "POLLUTION PREVENTION AND COMMUNITY
16 RIGHT-TO-KNOW ACT", AND THE AUDIT SUMMARY AND THE
17 ENVIRONMENTAL AUDIT REPORT ARE AVAILABLE FOR
18 REVIEW BY THE PUBLIC. THE AUDIT SUMMARY IS
19 AVAILABLE UPON REQUEST BY WRITING TO:
20 ______________. THE SUMMARY REPORT AND
21 ENVIRONMENTAL AUDIT REPORT ARE AVAILABLE AT THE
22 FOLLOWING PUBLIC LIBRARIES: ______________."
23 (5) TRADE SECRET INFORMATION MAY BE WITHHELD FROM
24 PUBLICLY DISCLOSED REPORTS IF SUCH INFORMATION HAS BEEN PROPERLY
25 CLAIMED AND APPROVED BY THE DEPARTMENT AS A TRADE SECRET
26 ACCORDING TO SECTION 25-6.8-110; EXCEPT THAT SUCH INFORMATION
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1 SHALL BE INCLUDED IN A DUPLICATE SUBMITTAL TO THE DEPARTMENT
2 WITH THE APPROPRIATE DEMARCATION OF THE INFORMATION TO BE
3 WITHHELD FROM THE PUBLIC.
4 (6) INFORMATION CONTAINED IN AN ENVIRONMENTAL AUDIT
5 REPORT SHALL BE CONSIDERED TO BE INFORMATION IN THE PUBLIC
6 DOMAIN; EXCEPT THAT TRADE SECRETS THAT HAVE BEEN PROPERLY
7 SUBMITTED PURSUANT TO SECTION 25-6.8-110, SHALL BE TREATED AS
8 CONFIDENTIAL UNDER PART 2 OF ARTICLE 72 OF TITLE 24, C.R.S., AND THE
9 FEDERAL "FREEDOM OF INFORMATION ACT", 5 U.S.C. SEC. 552, AS
10 AMENDED.
11 25-6.8-110. Trade secret information - procedure for claiming
12 - hearing. (1) A REGULATED ENTITY MAY WITHHOLD TRADE SECRET
13 INFORMATION FROM THE PUBLICLY DISCLOSED VERSION OF THE AUDIT
14 REPORTS IF SUCH ENTITY SUBMITS THE INFORMATION TO THE DEPARTMENT
15 PURSUANT TO SECTION 25- 6.8-109 (5) AND:
16 (a) CLAIMS THAT SUCH INFORMATION IS A TRADE SECRET ON THE
17 BASIS OF THE FACTORS LISTED IN 42 U.S.C. SEC. 11042; AND
18 (b) JUSTIFIES WHY THE INFORMATION QUALIFIES AS A TRADE
19 SECRET BASED ON THE FACTORS LISTED IN 42 U.S.C. SEC. 11042; AND
20 (c) HAS SUCH TRADE SECRECY CLAIM SIGNED BY A SENIOR
21 COMPANY OFFICIAL AT THE LEVEL OF OWNER, CHIEF EXECUTIVE OFFICER,
22 OR PRESIDENT.
23 (2) IF THE EXECUTIVE DIRECTOR DETERMINES THAT THE
24 INFORMATION SUBMITTED MAY NOT CONSTITUTE A TRADE SECRET, IT
25 SHALL, AFTER PROVIDING THE REGULATED ENTITY THIRTY DAYS NOTICE
26 AND AN OPPORTUNITY FOR A HEARING IN ACCORDANCE WITH SECTION
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1 24-4-105, C.R.S., RENDER A DETERMINATION AS TO WHETHER SUCH
2 INFORMATION IS A TRADE SECRET.
3 25-6.8-111. Relationship to federal and local law. (1) NOTHING
4 IN THIS ARTICLE SHALL PRECLUDE LOCAL GOVERNMENTS FROM ENACTING
5 OR ENFORCING MORE STRINGENT AUDITING STANDARDS OR
6 REQUIREMENTS, NOR FROM ENACTING INCONSISTENT PROVISIONS WITH
7 REGARD TO LOCAL ENVIRONMENTAL PROGRAMS.
8 (2) WHEN THE DEPARTMENT HAS ASSUMED PRIMACY OVER
9 ADMINISTRATION OF A FEDERALLY DELEGATED ENVIRONMENTAL LAW OR
10 PROGRAM, AND ACTION TAKEN BY THE DEPARTMENT UNDER THIS ARTICLE
11 WOULD RESULT IN A STATE PROGRAM LESS STRINGENT THAN THE FEDERAL
12 PROGRAM OR WOULD VIOLATE ANY FEDERAL LAW, RULE, REGULATION, OR
13 POLICY REQUIRED TO MAINTAIN STATE PRIMACY, THE PROVISIONS OF THIS
14 ARTICLE SHALL NOT APPLY.
15 25-6.8-112. Right to compensation. A PERSON WHOSE HEALTH,
16 HOME, OR LIVELIHOOD IS DAMAGED BY THE ACTIONS OF A REGULATED
17 ENTITY IS ENTITLED TO COMPENSATION FROM THE ENTITY FOR SUCH
18 DAMAGE AND MAY FILE SUIT IN ANY COURT OF COMPETENT JURISDICTION.
19 THE BURDEN SHALL BE UPON THE REGULATED ENTITY RESPONSIBLE FOR
20 SUCH DAMAGE TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT ITS
21 ACTIONS DID NOT CAUSE THE DAMAGE FOR WHICH COMPENSATION IS
22 SOUGHT.
23 25-6.8-113. Authority of the executive director - uniform
24 reporting guidelines. (1) THE EXECUTIVE DIRECTOR HAS THE
25 AUTHORITY TO PROMULGATE RULES THAT SPECIFY:
26 (a) STANDARDS FOR QUALIFYING ENVIRONMENTAL AUDITS
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1 PURSUANT TO THIS ARTICLE;
2 (b) CRITERIA FOR SELECTING EXTERNAL VERIFIERS OF INTERNAL
3 AUDITS;
4 (c) CRITERIA FOR DESIGNATING ENVIRONMENTAL JUSTICE AREAS
5 OF CONCERN; AND
6 (d) A PROGRAM OF COMPLIANCE INCENTIVES FOR SMALL
7 BUSINESSES.
8 (2) THE DEPARTMENT SHALL DEVELOP GUIDELINES FOR UNIFORM
9 REPORTING OF A REGULATED ENTITY'S COMPLIANCE DATA SO THAT IT MAY
10 BE INTEGRATED INTO A COMPUTER DATA BASE AND MADE AVAILABLE TO
11 THE PUBLIC THROUGH ELECTRONIC MEDIA.
12 SECTION 2. Repeal. Part 3 of article 16 of title 25 and
13 13-25-126.5, Colorado Revised Statutes, are repealed.
14 SECTION 3. Effective date - applicability. This act shall take
15 effect July 1, 1999, and shall apply to offenses committed on or after said
16 date and to environmental audits conducted on or after said date.
17 SECTION 4. Safety clause. The general assembly hereby finds,
18 determines, and declares that this act is necessary for the immediate
19 preservation of the public peace, health, and safety.