(1) Except as allowed by rule of the state board: (a) No person shall acquire, own, possess, or use any radioactive material occurring naturally or produced artificially without having been granted a license therefor from the department; or (b) Transfer to another or dispose of such material without first having been granted approval of the department therefor. (2) Except as allowed by rule of the state board, no person shall knowingly use, manufacture, produce, transport, transfer, receive, send, acquire, own, or possess any source of radiation unless such person is licensed by or registered with the department. The exceptions promulgated by the state board shall include use of domestic television receivers, computer monitors, household microwave ovens, radiant heat devices, cellular telephones, incandescent gas mantles, and vacuum tubes. (2.5) No person shall knowingly use any radiation machine to treat or diagnose any disease or conditions of the human body if the radiation machine is not certified for such treatment or diagnosis as provided in section 25-11-104 (8). (3) Any person who violates the provisions of subsection (1), (2), or (2.5) of this section commits a class 2 misdemeanor. (4) If a person does not pay the fee for radiation control services, the department may request the attorney general to commence a civil action against the person. If the court finds in such action that such person has not paid the fee for radiation control services, the court shall require such person to pay the fee together with a penalty not greater than twice the amount of the fee or one thousand dollars, whichever is greater. All civil penalties collected pursuant to this subsection (4) shall be transmitted to the state treasurer, who shall credit them to the general fund. (5) (a) Any person who violates subsection (1), (2), or (2.5) of this section, any licensing or registration provision, any rule or order issued under this part 1, or any term, condition, or limitation of any license or registration certificate issued pursuant to this part 1 is subject to an administrative penalty not to exceed fifteen thousand dollars per day for each violation. (b) If the department has reason to believe, based upon facts available to it, that a person has committed any of the violations designated in paragraph (a) of this subsection (5), it shall send the person, within a reasonable time, a written notice of the violation specifying: (I) The factual basis of each act or omission with which the person is charged; and (II) The particular provision of the statute, rule, order, license, or registration certificate violated. (c) (I) The department shall send the notice required by paragraph (b) of this subsection (5) by certified or registered mail, return receipt requested, to the last-known address of the alleged violator, or the department shall personally serve the notice of the violation upon the alleged violator or the alleged violator's agent. (II) The alleged violator shall have thirty days following the receipt of the notice to submit a written response containing data, views, and arguments concerning the alleged violation and potential corrective measures. (III) In addition, the alleged violator may request an informal conference with department personnel to discuss the notice of violation required by paragraph (b) of this subsection (5). The alleged violator shall request the informal conference within fifteen days after receiving the notice, and the conference shall be held within the thirty days allowed for a written response. (IV) After consideration of any written response and informal conference, the department shall issue a letter, within thirty days after the date of the informal conference or the receipt of a written response, whichever is later, affirming or dismissing the violation. Any remaining corrective measures that are necessary, and any administrative penalty determined to be appropriate, will be incorporated into an administrative order. (c.3) In determining the amount of any administrative penalty, the department shall consider the factors in subparagraphs (I) to (X) of this paragraph (c.3). The factors contained in subparagraphs (VII), (VIII), and (IX) of this paragraph (c.3) are mitigating factors and may be applied, with other factors, to reduce any administrative penalty. Such factors are: (I) The seriousness of the violation; (II) Whether the violation was intentional, reckless, or negligent; (III) The impact on, or threat to, the public health or the environment as a result of the violation; (IV) The degree of recalcitrance, if any, on the part of the violator; (V) Whether the violator is a recidivist; (VI) The economic benefit realized by the violator as a result of the violation; (VII) The violator's voluntary, timely, and complete disclosure of the violation, if prior to the department's knowledge of the violation, and if all reports required pursuant to state environmental control laws have been submitted as required; (VIII) The violator's full and prompt cooperation with the department following disclosure or discovery of a violation, including, when appropriate, entering into and implementing, in good faith, a legally enforceable agreement with the department to undertake compliance and remediation efforts; (IX) The existence of a comprehensive regulatory compliance program or an audit program that the violator adopted in good faith and in a timely manner, which program includes measures determined by the department to be sufficient to identify and prevent future noncompliance; and (X) Any other aggravating or mitigating circumstance. (c.5) In accordance with article 4 of title 24, C.R.S., and based upon the factors enumerated in paragraph (c.3) of this subsection (5), the state board shall adopt rules for determining administrative penalties imposed under this subsection (5). (c.7) The department may compromise, mitigate, or remit an administrative penalty imposed pursuant to this subsection (5). The department may enter into a settlement agreement regarding any penalty or claim resolved under this part 1. The settlement agreement may include the payment or contribution of moneys to state or local agencies for other environmentally beneficial purposes. (d) If the circumstances warrant, the department shall issue an order containing the elements of both the notice of violation specified in paragraph (b) of this subsection (5) and the letter described in subparagraph (IV) of paragraph (c) of this subsection (5). (e) (I) The letter issued pursuant to subparagraph (IV) of paragraph (c) of this subsection (5) and the order issued pursuant to paragraph (d) of this subsection (5) shall notify the alleged violator of the right to request a hearing within thirty days, which hearing shall be held in accordance with section 24-4-105, C.R.S., to determine any of the following: (A) Whether the alleged violation exists or did exist; (B) The reasonableness of the time set for abatement; and (C) Whether the administrative penalty is reasonable in light of the statutory criteria on which it is based. (II) The alleged violator shall address each alleged violation in the request for the hearing and shall specify which of the alleged violations the alleged violator is appealing. An allegation not addressed in the request for the hearing shall be deemed admitted. (III) No person engaged in conducting the hearing or participating in a decision or an initial decision shall be responsible for or subject to the supervision or direction of any department employee engaged in the performance of an investigatory or prosecuting function for the department. (IV) The final action of the department is subject to judicial review pursuant to section 24-4-106, C.R.S. (f) and (g) (Deleted by amendment, L. 2010, (HB 10-1149), ch. 282, p. 1315, § 6, effective May 26, 2010.) (h) At the request of the department, the attorney general may institute a civil action to collect an administrative penalty imposed pursuant to this subsection (5). (i) Except as specified in paragraph (c.3) of this subsection (5), all administrative penalties collected pursuant to this subsection (5) shall be transmitted to the state treasurer, who shall credit them to the general fund. (j) For any site or facility licensed under part 2 of this article determined by the department to have caused a release to the groundwater that exceeds the basic standards for groundwater as established by the water quality control commission, until remediation has been completed, the licensee shall provide annual written notice of the status of the release and any remediation activities associated with the release, by certified or registered mail, return receipt requested, to the current address for each registered groundwater well within one mile of the release as identified in the corrective action monitoring program. Under no circumstances shall remediation be deemed complete until all groundwater wells affected by any release associated with the site or facility are restored to at least the numeric groundwater standards as established by the water quality control commission that apply to the historic uses of the wells. Prior to the application of any numeric groundwater standard different from the baseline standard contained in 10 CFR 40, the standard must have been approved by the United States nuclear regulatory commission in accordance with section 274o of the federal "Atomic Energy Act of 1954", 42 U.S.C. sec. 2021 (o). The licensee shall remediate any release affecting groundwater wells in the most expedited manner reasonably possible using best available active restoration and groundwater monitoring technologies. (k) For any site or facility licensed under part 2 of this article, in addition to any reporting requirements provided in the license or rules, the licensee shall provide notice to the department as soon as practicable upon discovery of any spill or release involving toxic or radioactive materials and shall provide an initial written report within seven days after any such discovery. The department shall post all such written reports on the department's website as soon as practicable, and in no case later than seven days after receipt by the department. (6) Any qualified inspector who incorrectly certifies a machine that is a source of radiation as meeting the applicable specifications as required in section 25-11-104 (8) is subject to disciplinary action in accordance with section 24-4-104, C.R.S. (7) If the department has reasonable cause to believe that a violation of this part 1 or of a license, registration, rule, or order issued under this part 1 has occurred or is occurring, the department may issue a cease-and-desist order setting forth the provision alleged to be violated, the facts alleged to constitute the violation, and the time by which the violation must cease. Except for emergency orders issued to protect the public health or the environment, for which a person to whom the emergency order has been issued may request an immediate hearing pursuant to section 24-4-105 (12), C.R.S., a person to whom a cease-and-desist order has been issued may petition the district court for the district in which the violation is alleged to have occurred or be occurring for a stay of the order. The court shall grant the request to stay if the person demonstrates that immediate and irreparable injury will result if the stay is not granted and that granting the stay will not result in serious harm to the public health, safety, or welfare or the environment.
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