Colo. Rev. Stat. § 25-7-110.5, Required analysis of proposed air quality rules

(1) In addition to the requirements of section 25-7-110.8, whenever the commission proposes a rule, the technical secretary of the commission shall provide to the public upon request at cost, at the time the notice for public rule-making is published, a proposed rule-making packet containing:

(a) A memorandum of notice, as required by subsection (3) of this section;

(b) The actual language of the proposed rule;

(c) A statement describing the fiscal and economic impact of the proposed rule, as required by subsection (4) of this section;

(d) A statement describing the potential justification for terms differing from federal requirements, as required by subsection (5) of this section;

(e) On or before July 1, 1997, a statement describing the risk analysis, if required by the general assembly under subsection (6) of this section;

(f) The range of regulatory alternatives, including the no-action alternative, to be considered in adopting the proposed rule; and

(g) Any other concise background material that would assist the interested and affected public in understanding the impact of the proposed rule.

(1.5) As used in this section, rule includes an amendment to an existing rule.

(2) The requirements of subsections (1)(c) to (1)(f), (3)(g), and (4) of this section shall not apply to any rule-making packet for any commission rule, and the requirements of subsections (3)(g) and (4) of this section shall not apply to any commission rule, which adopts by reference applicable federal rules or which rule is adopted to implement prescriptive state statutory requirements, where the commission is allowed no significant policy-making options, or which rule will have no regulatory impact on any person, facility, or activity.

(3) Whenever the commission proposes a rule, the technical secretary of the commission, in cooperation with the proponent of the rule, shall provide a memorandum of notice containing:

(a) An explanation of the proposed rule;

(b) A disclosure of materials contained in the proposed rule;

(d) An explanation of the problem sought to be remedied by the proposed rule;

(e) An analysis of how the proposed rule solves the problem delineated in paragraph (d) of this subsection (3);

(f) An explanation of the process that was used to develop the proposed rule;

(g) An initial analysis of the economic effects of the proposed rule pursuant to subsection (4) of this section;

(h) An explanation of the substantive differences with federal requirements and the requirements of Utah, Arizona, and New Mexico, where relevant;

(i) An explanation of how the proposed rule may be implemented;

(j) Whether there will be any time constraints on the regulated community and state agencies as a result of implementation or a delay in implementation of the proposed rule;

(k) A contact person or persons who may provide additional information on the proposed rule to interested persons; and

(l) A no-action analysis.

(4) (a) Before any permanent rule is proposed pursuant to this section, an initial economic impact analysis shall be conducted in compliance with this subsection (4) of the proposed rule or alternative proposed rules. Such economic impact analysis shall be in writing, developed by the proponent, or the division in cooperation with the proponent and made available to the public at the time any request for hearing on a proposed rule is heard by the commission. A final economic impact analysis shall be in writing and delivered to the technical secretary and to all parties of record five working days prior to the prehearing conference or, if no prehearing conference is scheduled, at least ten working days before the date of the rule-making hearing. The proponent of an alternative proposal will provide, in cooperation with the division, a final economic impact analysis five working days prior to the prehearing conference. The economic impact analyses shall be based upon reasonably available data. Except where data is not reasonably available, or as otherwise provided in this section, the failure to provide an economic impact analysis of any noticed proposed rule or any alternative proposed rule will preclude such proposed rule or alternative proposed rule from being considered by the commission. Nothing in this section shall be construed to restrict the commission's authority to consider alternative proposals and alternative economic impact analyses that have not been submitted prior to the prehearing conference for good cause shown and so long as parties have adequate time to review them.

(b) Before any emergency rule is adopted, any person may request that a regulatory analysis, as defined in section 24-4-103 (4.5), C.R.S., be prepared and made available to the public five working days prior to the hearing, unless there is an imminent and serious hazard to health, welfare, or the environment.

(c) The proponent and the division shall select one or more of the following economic impact analyses. The commission may ask affected industry to submit information with regard to the cost of compliance with the proposed rule, and, if it is not provided, it shall not be considered reasonably available. The economic impact analysis required by this subsection (4) shall be based upon reasonably available data and shall consist of one or more of the following:

(I) Cost-effectiveness analyses for air pollution control that identify:

(A) The cumulative cost including but not limited to the total capital, operation, and maintenance costs of any proposed controls for affected business entity or industry to comply with the provisions of the proposal;

(B) Any direct costs to be incurred by the general public to comply with the provisions of the proposal;

(D) The cost per unit of air pollution reductions caused by the proposal; and

(E) The cost for the division to implement the provisions of the proposal; or

(II) Industry studies that examine the direct costs of the proposal on directly affected entities that may be either in the form of a business analysis (The regulatory impacts on the general business climate or subsets thereof) or an industry analysis (the regulatory impacts on specific industries), including:

(A) The characteristics and current economic conditions of the impacted business or industry sector; and

(B) The projected impacts on the growth of the affected industry sectors with and without implementation of the proposal; and

(D) The direct cost of the proposal on the affected industry sector; or

(III) An economic impact analysis that:

(A) Identifies the industrial and business sectors that will be impacted by the proposal; and

(B) Quantifies the direct cost to the primary affected business or industrial sector; and

(C) Incorporates an estimate of the economic impact of the proposal on the supporting business and industrial sectors associated with the primary affected business or industry sectors.

(d) Repealed.

(e) Except as provided in subsection (4)(f) of this section, the economic impact analysis required by this subsection (4) must not consist of an analysis of any nonmarket costs or external costs asserted to occur notwithstanding compliance by a source with applicable environmental regulations.

(f) For a rule that implements section 25-7-105 (1)(e) that may materially affect greenhouse gas emissions, the economic impact analysis required by this subsection (4) must include an analysis of the social cost of greenhouse gases related to the estimated emission reductions from the proposed rule. The analysis must use the most recent assessment of the social cost for those greenhouse gases for which the federal government has determined the cost, and the consideration of the social cost of greenhouse gases must be consistent with existing law and include use of a discount rate of no more than two and one-half percent; except that the social cost of greenhouse gases that is used may not be lower than that established in 2016, using a two and one-half percent discount rate, by the federal interagency working group on the social cost of carbon or than the final social cost of greenhouse gases, using a two and one-half percent or lower effective discount rate, established by the federal interagency working group on the social cost of greenhouse gases pursuant to federal executive order 13990, dated January 20, 2021, whichever is higher.

(g) With regard to the changes made in 2021 by House Bill 21-1266:

(I) Nothing:

(A) Alters the greenhouse gas emission reduction goals previously established in section 25-7-102 (2)(g), in either amount or timing; or

(B) Detracts from the air quality control commission's existing authority to require more than the minimum greenhouse gas emission reduction goals and deadlines previously established in section 25-7-102 (2)(g); and

(II) The changes add to, but do not otherwise alter, the air quality control commission's authority and obligation to publish and promulgate rules pursuant to sections 25-7-102 (2)(g), 25-7-105, and 25-7-140.

(5) (a) Whenever the commission proposes any rule that exceeds the requirements of the federal act or differs from the federal act or rules thereunder, the commission shall make available in writing a copy of any such proposed rule and a detailed, footnoted explanation of the differences between the rule and the federal requirements.

(b) The written explanation required pursuant to paragraph (a) of this subsection (5) shall contain an explanation of the following information:

(I) Any federal requirements that are applicable to this situation with a commentary on those requirements;

(II) Whether the applicable federal requirements are performance-based or technology-based and whether there is any flexibility in those requirements, and if not, why not;

(III) Whether the applicable federal requirements specifically address the issues that are of concern to Colorado and whether data or information that would reasonably reflect Colorado's concern and situation was considered in the federal process that established the federal requirements;

(IV) Whether the proposed requirement will improve the ability of the regulated community to comply in a more cost-effective way by clarifying confusing or potentially conflicting requirements (within or cross-media), increasing certainty, or preventing or reducing the need for costly retrofit to meet more stringent requirements later;

(V) Whether there is a timing issue which might justify changing the time frame for implementation of federal requirements;

(VI) Whether the proposed requirement will assist in establishing and maintaining a reasonable margin for accommodation of uncertainty and future growth;

(VII) Whether the proposed requirement establishes or maintains reasonable equity in the requirements for various sources;

(VIII) Whether others would face increased costs if a more stringent rule is not enacted;

(IX) Whether the proposed requirement includes procedural, reporting, or monitoring requirements that are different from applicable federal requirements and, if so, why and what the compelling reason is for different procedural, reporting, or monitoring requirements;

(X) Whether demonstrated technology is available to comply with the proposed requirement;

(XI) Whether the proposed requirement will contribute to the prevention of pollution or address a potential problem and represent a more cost-effective environmental gain; and

(XII) Whether an alternative rule, including a no-action alternative, would address the required standard.

(6) Repealed.

Source: L. 95: Entire section added, p. 1335, � 2, effective July 1. L. 96: IP(1), IP(3), (4)(d), and (5)(a) amended and (1.5) added, p. 1285, � 2, effective June 1. L. 97: (4)(d) amended, p. 526, � 8, effective July 1. L. 2001: (4)(d) amended, p. 640, � 1, effective May 30. L. 2003: (4)(d) amended, p. 843, � 1, effective April 7. L. 2009: (4)(d) repealed, (HB 09-1332), ch. 318, p. 1707, � 1, effective June 1. L. 2021: (4)(e) amended and (4)(f) and (4)(g) added, (HB 21-1266), ch. 411, p. 2748, � 16, effective July 2.

Editor's note: Subsection (6)(e) provided for the repeal of subsection (6), effective July 1, 1997. (See L. 95, p. 1335.)

Cross references: For the short title (Environmental Justice Act) and the legislative declaration in HB 21-1266, see sections 1 and 2 of chapter 411, Session Laws of Colorado 2021.

25-7-110.8. Additional requirements for commission to act under section 25-7-110.5. (1) In issuing any final rule intended to reduce air pollution, except for any rule that adopts by reference applicable federal rules, if the commission has no discretion under state law not to adopt the rules or to adopt any alternative rule, the commission shall make a determination that:

(a) Any rule promulgated under section 25-7-110.5 is based on reasonably available, validated, reviewed, and sound scientific methodologies and that all validated, reviewed, and sound scientific methodologies and information made available by interested parties has been considered. Such review may include internal organizational review and not peer review.

(b) Evidence in the record supports the finding that the rule shall result in a demonstrable reduction in air pollution to be addressed by the rule unless such rule is administrative in nature;

(c) On and after July 1, 1997, and in conformance with guidance from the general assembly to incorporate the recommendations of the task force established in section 25-7-110.5 (6), prior to its repeal in 1997, evidence in the record supports the finding that the rule must bring about reductions in risks to human health or the environment or provide other benefits that will justify the cost to government, the regulated community, and to the public to implement and comply with the rule;

(d) The commission shall choose an alternative that is the most cost-effective under the analysis required by section 25-7-110.5 (4), provides the regulated community flexibility, and which achieves the necessary reduction in air pollution. The commission may reject the most cost-effective alternative and shall provide findings of fact detailing why the most cost-effective alternative is unacceptable.

(e) The selection of the regulatory alternative by the commission will maximize the air quality benefits of regulation pursuant to this article in the most cost-effective manner. For purposes of the required analyses under this section, prior to the completion of the rule-making required pursuant to section 25-7-110.5, no benefit (except for air pollution reductions) can be attributed to regulating a facility already operating in compliance with a permit issued pursuant to applicable law.

(1.5) As used in this section, rule includes an amendment to an existing rule.

(2) In the event that the commission and division fail to reasonably comply with requirements of section 25-7-110.5 or this section, the rule shall be void and unenforceable. Judicial review of agency action under this section or section 25-7-110.5 may only be obtained by parties to the rule-making hearing and can only be brought regarding deficiencies or issues alleging a failure to comply with the requirements in section 25-7-110.5 or this section raised during or before the hearing to afford the commission, its staff, or interested parties an opportunity to address the deficiencies or issues raised.

Source: L. 95: Entire section added, p. 1335, � 2, effective July 1. L. 96: IP(1) amended and (1.5) added, p. 1285, � 3, effective June 1. L. 2020: (1)(c) amended, (SB 20-136), ch. 70, p. 295, � 42, effective September 14.

Cross references: For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.

25-7-111. Administration of air quality control programs - directive - prescribed fire - review. (1) The division shall administer and enforce the air quality control programs adopted by the commission. In furtherance of such responsibility of the division, the executive director of the department of public health and environment shall establish within the division a separate air quality control agency, the head of which shall be a licensed professional engineer or shall have a graduate degree in engineering or other specialty dealing with the problems of air quality control. Such person shall also have appropriate practical and administrative experience related to air quality control. Such person shall not be the technical secretary employed pursuant to section 25-7-105 (3). Any potential conflict of interest of such person shall be adequately disclosed prior to appointment and as may from time to time arise.

(2) In addition to authority specified elsewhere in this article, the division has the power to:

(a) Conduct or cause to be conducted studies and research with respect to air pollution and the control, abatement, or prevention thereof, as requested by the commission;

(b) Collect data, by means of field studies and air monitoring conducted by the division or by individual stationary sources or individual indirect air pollution sources, and determine the nature and quality of existing ambient air throughout the state;

(c) Enter and inspect any property, premises, or place for the purpose of investigating any actual, suspected, or potential source of air pollution or ascertaining compliance or noncompliance with any requirement of this article or any order or permit, or term or condition thereof, issued or promulgated pursuant to this article; and the division may, at reasonable times, have access to and copy any record, inspect any monitoring equipment or method, or sample any emissions required pursuant to section 25-7-106 (6) or part 5 of this article; except that, if such entry or inspection is denied or not consented to and no emergency exists, the division is empowered to and shall obtain from the district or county court for the district or county in which such property, premises, or place is located a warrant to enter and inspect any such property, premises, or place prior to entry and inspection. The district and county courts of this state are empowered to issue such warrants upon a proper showing of the need for such entry and inspection. Any information relating to secret processes or methods of manufacture or production obtained in the course of the inspection or investigation shall be kept confidential; except that emission data shall not be withheld from the division as confidential. A duplicate of any analytical report or observation of an air pollutant by the division shall be furnished promptly to the person who is suspected of causing such air pollution.

(d) Furnish technical advice and services relating to air pollution problems and control techniques;

(e) Inform the appropriate governmental agency of the results of atmospheric tests conducted in its jurisdiction and notify the affected city, town, county, or city and county whenever tests establish that the ambient air or source of emission of smoke or air pollution fails to meet the standards established under this article;

(f) Designate one or more persons or agencies in any area of the state as an air pollution control authority as agent of the division to exercise and perform such powers and duties of the division as may be specified in such designation;

(g) Furnish such personnel to the commission as the commission may reasonably require to carry out its duties and responsibilities under this article;

(h) Certify, or otherwise designate, to any other agency or department of this state or of any other state or of the federal government that any facility, land, building, machinery, or equipment, or any part thereof, has been constructed, erected, installed, or acquired in conformity with the requirements of this state or of this article for control of air pollution or in conformity with the requirements for control of air pollution of any other state or the federal government;

(i) Require any source to furnish information which the division may reasonably require relating to emissions of the source or to any investigation authorized by this article. If such request for information is refused, the division is empowered to and may obtain from the district or county court for the district or county in which the source is located a subpoena to compel production of such information.

(3) Repealed.

(4) The division shall assure that any information obtained by the division which is entitled to protection as a trade secret under federal or Colorado law is kept confidential and protected against disclosure, except as required by the federal act.

(5) Repealed.

Source: L. 79: Entire article R&RE, p. 1027, � 1, effective June 20. L. 84: (2)(c) and (2)(g) amended, p. 769, � 5, effective July 1. L. 87: (2)(c) amended, p. 1152, � 4, effective July 1. L. 92: (2)(c) amended and (2)(i), (3), and (4) added, pp. 1197, 1293, 1198, �� 14, 3, 15, effective July 1. L. 94: (1) amended, p. 2783, � 500, effective July 1. L. 96: (3) repealed, p. 1258, � 153, effective August 7. L. 2004: (1) amended, p. 1311, � 58, effective May 28. L. 2009: (5) added, (HB 09-1199), ch. 411, p. 2278, � 4, effective June 3. L. 2019: (1) amended, (SB 19-083), ch. 13, p. 54, � 2, effective August 2.

Editor's note: Subsection (5)(d) provided for the repeal of subsection (5), effective July 1, 2011. (See L. 2009, p. 2278.)

Cross references: For the legislative declaration contained in the 1994 act amending subsection (1), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 1996 act repealing subsection (3), see section 1 of chapter 237, Session Laws of Colorado 1996. For the legislative declaration in SB 19-083, see section 1 of chapter 13, Session Laws of Colorado 2019.

25-7-112. Air pollution emergencies endangering public health anywhere in this state. (1) Whenever the division determines, after an investigation initiated either independently by the division or upon the request of an affected member of the public living or working in the vicinity of a suspected discharge, that any person is either engaging in any activity involving a significant risk of air pollution or is discharging or causing to be discharged into the atmosphere, directly or indirectly, any air pollutants and such activity or discharge constitutes a clear, present, and immediate danger to the environment or to the health of the public, or that any such activity or discharge of air pollutants, if permitted to continue unabated, will result in a condition of clear, present, and immediate danger to the health of the public, the division shall:

(a) Issue a written cease-and-desist order to said person requiring immediate discontinuance of such activity or the discharge of such pollutant into the atmosphere, and, upon receipt of such order, such person shall immediately discontinue such activity or discharge; or

(b) Apply to any district court of this state for the district in which the said activity or discharge is occurring for a temporary restraining order, temporary injunction, or permanent injunction as provided for in the Colorado rules of civil procedure. Any such action in a district court shall be given precedence over all other matters pending in such district court. The institution of such injunction proceedings by the division shall confer upon said district court exclusive jurisdiction to determine finally the subject matter of the proceeding; or

(1.5) (a) If, upon the request of a member of the public as described in subsection (1) of this section, the division chooses to investigate a suspected discharge, the division shall report the result of its investigation to the person who made the request and shall make such result public no later than sixty days after the completion of the investigation. If the person who made the request is dissatisfied with the result of the investigation, or if no investigation was made, such person may complain to the commission by petition.

(b) Upon receipt of a petition filed under paragraph (a) of this subsection (1.5), the commission shall promptly give notice of receipt of the petition to the owner or operator of the source of the alleged discharge, and, after considering the petition, the response, if any, of such owner or operator, and the response of the division, the commission shall respond to the petition within forty-five days after receipt by:

(I) Ordering the division to proceed with a new or further investigation under this section or section 25-7-113; or

(II) Denying the petition and stating the reasons for denial, which may include, but are not limited to, the lack of a substantial factual basis, the allegation of facts substantially similar to those at issue in a previous or currently pending investigation, or a finding that the petition was interposed for purposes of harassment or delay; or

(III) Providing an opportunity to submit additional factual information in support of, or in response to, the petition. The commission may require any new information to be submitted in writing, or it may convene an informal hearing as soon as is practicable.

(c) A hearing held pursuant to subparagraph (III) of paragraph (b) of this subsection (1.5) shall be subject to the following procedural requirements:

(I) The hearing shall be conducted as an informal hearing, and, in particular, no sworn testimony shall be taken except as the commission deems necessary to clarify the factual basis of the petition;

(II) Parties may represent themselves or be represented by agents who need not be attorneys;

(III) Notice of such hearing shall be given at least twenty days prior to the hearing;

(IV) The purpose of the hearing shall be to enable the commission to decide whether to order an investigation as provided in subparagraph (I) of paragraph (b) of this subsection (1.5); and

(V) To preserve the commission's role as an appellate body, the hearing shall not be used as a forum for determining the merits of the petition.

(2) (a) Whenever the division determines, after investigation, that the condition of the ambient air in any portion of this state constitutes a clear, present, and immediate danger to the environment or to the health of the public, or that any activity or discharge of air pollutants, if permitted to continue unabated, will result in a condition of clear, present, and immediate danger to the health of the public, and that the procedures available to the division under subsection (1) of this section will not adequately protect the public, it shall immediately notify the governor of its determination of either of such conditions, and it shall request the governor to declare a state of air pollution emergency in such portion of this state.

(b) Upon such notification and request by the division, the governor is empowered to declare a state of air pollution emergency in such portion of the state and to take any and all actions necessary to protect the health of the public in such portion of the state, including, but not limited to:

(I) Ordering a halt or curtailment of the movement of all motor vehicles except emergency vehicles; and

(II) Ordering a halt or curtailment of all operations, activities, processes, or conditions which he reasonably believes to be contributing to such emergency.

(c) From time to time, whenever appropriate, the governor, in cooperation with his department heads, shall develop or modify such plans as will be necessary or appropriate to control and abate the air pollution conditions most likely to require the exercise of the powers granted in paragraph (b) of this subsection (2).

Source: L. 79: Entire article R&RE, p. 1029, � 1, effective June 20. L. 92: IP(1) and (2)(a) amended, p. 1198, � 16, effective July 1. L. 94: IP(1) amended and (1.5) added, p. 1420, � 3, effective May 25.

Cross references: For injunctions, see C.R.C.P. 65.

25-7-113. Air pollution emergencies endangering public welfare anywhere in this state. (1) Whenever the division determines, after investigation, that any person is either engaging in any activity involving a significant risk of air pollution or is discharging or causing to be discharged into the atmosphere, directly or indirectly, any air pollutants and such activity or discharge does not constitute a clear, present, and immediate danger to the health of the public, but is of such a nature as to cause extreme discomfort or that it is an immediate danger to the welfare of the public because such pollutants make habitation of residences or the conduct of businesses subjected to the pollutants extremely unhealthy or disruptive, the division shall:

Source: L. 79: Entire article R&RE, p. 1030, � 1, effective June 20.