Colo. Rev. Stat. § 25-7-135, Ozone protection fund created

(1) There is hereby created in the state treasury an ozone protection fund, which shall consist of fees collected pursuant to section 25-7-105 (11). In accordance with section 24-36-114, C.R.S., all interest derived from the deposit and investment of moneys in the fund shall be credited to the general fund. Any moneys not appropriated by the general assembly shall remain in the ozone protection fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year.

(2) (Deleted by amendment, L. 2003, p. 723, � 2, effective July 1, 2003.)

Source: L. 92: Entire section added, p. 1294, � 5, effective July 1. L. 94: (1) amended, p. 2785, � 505, effective July 1. L. 98: (2) amended, p. 1335, � 50, effective June 1. L. 2003: Entire section amended, p. 723, � 2, effective July 1.

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.

25-7-136. Air pollution data collection and technical evaluation - repeal. (Repealed)

Source: L. 95: Entire section added, p. 1118, � 1, effective May 31. L. 96: IP(3)(a), (3)(a)(I), (3)(b)(I)(A), (3)(b)(II), and (4) amended and (3)(a.5) and (3.5) added, pp. 800, 802, ��1, 2, effective May 23.

Editor's note: Subsection (4) provided for the repeal of this section, effective July 1, 1999. (See L. 96, p. 802.)

25-7-137. Requirements for legislative approval of Grand Canyon visibility transport commission or successor body advisory recommendations, reports, and interpretations. (1) The general assembly hereby finds, determines, and declares:

(a) That the Grand Canyon visibility transport commission (GCVTC) was created pursuant to section 169B of the federal act to issue a report directed toward protecting visibility in the Grand Canyon national park;

(b) That the GCVTC's tasks assigned under the federal act have been completed, and a successor body is being proposed;

(c) That protecting visibility is important to the people of Colorado, is an interstate issue, and is highly technical, complex, and subject to varying interpretations; and

(d) That the provisions of this section are enacted to preserve Colorado sovereignty and to enhance public notice and awareness of the GCVTC or its successor bodies' advisory recommendations, reports, or interpretations, and to ensure public confidence in the fairness of the implementation of any Colorado requirements.

(2) The governor or the governor's designee is encouraged to attend and participate in the successor body to the GCVTC. A stakeholder process shall be implemented to include representatives of the general assembly. The governor shall provide an annual report of the activities of the GCVTC or its successor bodies to the general assembly until such time as the governor has forwarded to the federal environmental protection agency notification that the state shall comply with the provisions of Title 40, code of federal regulations, part 51.308, adopted in accordance with the federal act. The goal of this process is to protect the interest of Colorado over air quality issues.

(3) No final recommendation or report or other action of the GCVTC or its successor bodies may impose any new or different requirements upon the regulated community or citizens of the state of Colorado unless approved or enacted by the general assembly acting by bill.

Source: L. 97: Entire section added, p. 1625, � 1, effective August 6. L. 2000: (2) amended, p. 1552, � 29, effective August 2.

25-7-138. Housed commercial swine feeding operations - waste impoundments - odor emissions - fund created. (1) All new or expanded anaerobic process wastewater vessels and impoundments, including, but not limited to, treatment or storage lagoons, constructed or under construction for use in connection with a housed commercial swine feeding operation as defined in section 25-8-501.1 (2)(b) shall be covered, or operated with technologies or practices that are as effective as covers at minimizing odor from the operation, to capture, recover, incinerate, or otherwise manage odorous gases to minimize, to the greatest extent practicable, the emission of such gases into the atmosphere. The housed commercial swine feeding operation shall submit to the department of public health and environment information sufficient to demonstrate that the technologies and practices used are as effective as covers at minimizing odor from the operation. The housed commercial swine feeding operation shall manage odor emissions such that odor emissions from the operation shall not be detected at or beyond the property boundary after the odorous air has been diluted with seven volumes of odor-free air. The housed commercial swine feeding operation shall manage odor emissions such that odor emissions from the operation shall not be detected at any off-site receptor after the odorous air has been diluted with two volumes of odor-free air. For purposes of this section, receptor means any occupied dwelling used as a primary dwelling or its curtilage, a public or private school, or a place of business. As used in this section, anaerobic means a waste treatment method that, in whole or in part, does not utilize air or oxygen. All new aerobic impoundments shall employ technologies to ensure maintenance of aerobic conditions or otherwise to minimize the emission of odorous gases to the greatest extent practicable. As used in this section, aerobic means a waste treatment method that utilizes air or oxygen.

(2) All existing anaerobic process wastewater vessels and impoundments, including, but not limited to, aeration tanks and treatment or storage lagoons, owned or operated for use in connection with a housed commercial swine feeding operation as defined in section 25-8-501.1 (2)(b) shall be covered, or operated with technologies or practices that are as effective as covers at minimizing odor from the operation, to capture, recover, incinerate, or otherwise manage odorous gases to minimize, to the greatest extent practicable, the emission of such gases into the atmosphere. The housed commercial swine feeding operation shall submit to the department of public health and environment information sufficient to demonstrate that the technologies and practices used are as effective as covers at minimizing odor from the operation. The housed commercial swine feeding operation shall manage odor emissions such that odor emissions from the operation shall not be detected at or beyond the property boundary after the odorous air has been diluted with seven volumes of odor-free air. The housed commercial swine feeding operation shall manage odor emissions such that odor emissions from the operation shall not be detected at any off-site receptor after the odorous air has been diluted with two volumes of odor-free air. For purposes of this section, receptor means any occupied dwelling used as a primary dwelling or its curtilage, a public or private school, or a place of business. All existing aerobic impoundments shall employ technologies to ensure maintenance of aerobic conditions or otherwise to minimize the emission of odorous gases to the greatest extent practicable.

(3) The commission shall, by rules promulgated on or before March 1, 1999, require that all housed commercial swine feeding operations employ technology to minimize to the greatest extent practicable off-site odor emissions from all aspects of its operations, including odor from its swine confinement structures, manure and composting storage sites, and odor and aerosol drift from land application equipment and sites.

(4) No new land waste application site or new waste impoundment used in connection with a housed commercial swine feeding operation, shall be located less than:

(a) One mile from an occupied dwelling without the written consent of the owner of the dwelling;

(b) One mile from a public or private school without the written consent of the school's board of trustees or board of directors; and

(c) One mile from the boundaries of any incorporated municipality without the consent of the governing body of the municipality by resolution. As used in this subsection (4), a new land waste application site and new waste impoundment are those that were not in use as of June 1, 1998.

(5) The division shall enforce the provisions of this section. The division may delegate enforcement of the provisions of this section to any county or district public health agency. If the division delegates enforcement of this section, the division shall monitor the actions of any county or district public health agency as such actions pertain to enforcement of this section. The division shall assess a housed commercial swine feeding operation an annual fee, not to exceed seven cents per animal, based on the operation's working capacity, to offset the division's direct and indirect costs of enforcement, compliance, and regulation pursuant to this section. This fee shall be designated to fund an inspection and complaint response and enforcement program. By mutual agreement, any county or district public health agency that assists in enforcement of this section shall receive funding to conduct inspections and respond to complaints. As used in this subsection (5), working capacity means the number of swine the housed commercial swine feeding operation is capable of housing at any one time. In addition, any person who may be adversely affected by a housed commercial swine feeding operation may enforce these provisions directly against the operation by filing a civil action in the district court in the county in which the person resides.

(6) All moneys collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the housed commercial swine feeding operation fund, which fund is hereby created in the state treasury. The moneys in such fund shall be subject to annual appropriation by the general assembly for the purposes of this section, including the reimbursement of county or district public health agencies for assistance in the enforcement of this section. Any interest earned on moneys in the fund shall remain in the fund and shall not revert to the general fund at the end of any fiscal year.

Source: Initiated 98: Entire section added, effective upon proclamation of the Governor, December 30, 1998. L. 2005: (2) and (3) amended, p. 282, � 20, effective August 8. L. 2006: (1), (2), and (5) amended and (6) added, p. 1105, � 1, effective May 25. L. 2010: (5) and (6) amended, (HB 10-1422), ch. 419, p. 2103, � 118, effective August 11.

Editor's note: (1) This section was contained in an initiated measure that was adopted by the people at the general election held November 3, 1998. The measure enacting this section was effective upon proclamation of the Governor, December 30, 1998.

(2) The vote count on the measure at the general election held November 3, 1998, was as follows:

FOR: 790,852

AGAINST: 438,873

25-7-139. Methyl tertiary butyl ether - prohibition - phase-out - civil penalty. (1) The general assembly finds and declares that methyl tertiary butyl ether (MTBE) is an oxygenate used in gasoline and other fuel products in this state and in the United States. The general assembly also finds that MTBE may leak into and contaminate groundwater supplies, and that MTBE is water soluble and therefore is difficult and costly to remove from water. MTBE is colorless, tastes and smells like turpentine, and can be tasted and detected by smell at extremely low concentrations. MTBE may be a human carcinogen and poses other potential health risks, including but not limited to memory loss, asthma, and skin irritation.

(2) The general assembly further finds and declares that water is precious and vital to this state's growing population, agricultural industry, and unique environment. Therefore it is the intent of the general assembly in enacting this section to halt further contamination and pollution of this state's groundwater supplies by MTBE.

(3) (a) (I) Except as otherwise provided in this paragraph (a), a person may not sell, offer for sale, or store any fuel product containing or treated with MTBE.

(II) The provisions of this paragraph (a) shall not apply if the presence of MTBE in a fuel product is caused solely by incidental commingling of MTBE with the fuel product during storage or transfer of the fuel product. In no event shall the provisions of this subsection (3) be construed to permit the knowing or willful addition of MTBE to any fuel product.

(b) (Deleted by amendment, L. 2005, p. 283, � 21, effective August 8, 2005.)

(c) For purposes of this section, fuel product means gasoline, reformulated gasoline, benzine, benzene, naphtha, benzol, and kerosene and any other volatile and inflammable liquid that is produced, compounded, and offered for sale or used for the purpose of generating power in internal combustion engines or generating heat or light or used for cleaning or for any other similar usage.

(4) Any person who violates the provisions of this section shall be subject to a civil penalty as provided in section 25-7-122 (1)(e).

Source: L. 2000: Entire section added, p. 762, � 1, effective September 1. L. 2005: (3)(a)(I) and (3)(b) amended, p. 283, � 21, effective August 8.

25-7-140. Greenhouse gas emissions - data collection - legislative declaration - rules - reporting - forecasting - public information - definitions. (1) Legislative declaration. The general assembly hereby:

(a) Finds that:

(I) Greenhouse gas emissions reporting requirements were first established in Colorado in 2008 with executive order D 004-08. The policies established by this executive order were continued under the next governor and require the department of public health and environment to report every five years on estimates of greenhouse gas emissions by sector. The last report by the department was issued in 2014 and the next report is due in 2019.

(II) Executive order D 2017-015 directed the department to propose a state greenhouse gas reporting rule that mirrors the current federal reporting rule, 40 CFR 98, by December 30, 2018, and established the following goals:

(A) Reducing greenhouse gas emissions statewide by more than twenty-six percent below 2005 levels by 2025;

(B) Reducing carbon dioxide emissions from the electricity sector by twenty-five percent below 2012 levels by 2025 and thirty-five percent below 2012 levels by 2030; and

(b) Declares that it is in the state's interest to leverage data collected and analyses conducted for its greenhouse gas emissions inventories and forecasts and make data sets available to local governments.

(2) Rules. (a) The commission shall:

(I) Adopt rules requiring greenhouse gas-emitting entities to monitor and publicly report their emissions as the commission deems appropriate to support Colorado's greenhouse gas emission inventory efforts and to facilitate implementation of rules that will timely achieve Colorado's greenhouse gas emission reduction goals. The commission shall consider what information is already being publicly reported by the federal environmental protection agency and tailor new reporting requirements to fill any gaps in data, as it determines is appropriate, to allow for maintaining and updating state inventories that are sufficiently comprehensive and robust. The rules must include requirements for providers of retail or wholesale electric service in the state of Colorado to track and report emissions from all generation sources within the state and elsewhere that electricity consumption by their customers in this state causes to be emitted. The commission may require emitting entities to report the amount of emissions of each of the seven individual components of greenhouse gases as well as the carbon dioxide equivalent of those emissions.

(II) Direct the division to update the statewide inventory of greenhouse gas emissions by sector, up to on an annual basis as determined by the commission, but in no event less frequently than every two years. The division shall update the inventory in a manner that allows reasonable tracking of progress in reducing greenhouse gas emissions over time. The commission shall take reasonable steps to ensure that emission abatement that counts toward meeting the state's greenhouse gas emission reduction goals is durable and rigorously tracked. The inventory must include a forecast of Colorado's greenhouse gas emissions for the milestone year of 2025, as well as 2030, 2035, 2040, and 2045. The division shall make publicly available the data upon which projections are based, including the sources of that data, the inputs for any model used, and a description of the analysis underlying the projections. The forecast must include at least one scenario that does not include emission reductions projected to occur from any federal, state, or local law, rule, regulation, policy, or program that is not in place as of the date of publication of the inventory. The initial inventory required under this subsection (2) must include a recalculation of Colorado's 2005 greenhouse gas emissions to serve as a baseline for measuring progress against Colorado's greenhouse gas emission reduction goals.

(III) By July 1, 2020, publish a notice of proposed rule-making that proposes rules to implement measures that would cost-effectively allow the state to meet its greenhouse gas emission reduction goals.

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

(A) Nothing alters the greenhouse gas emission reduction goals previously established in section 25-7-102 (2)(g), in either amount or timing, or 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

(B) 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 this section and sections 25-7-102 (2)(g) and 25-7-105.

(b) All rules promulgated pursuant to this section are subject to all applicable requirements, including applicable requirements specific to greenhouse gas abatement, provided in this article 7.

(3) Public information. The division shall:

(a) Publicly release the findings of the inventory on the division's website and maintain the data through at least 2030; and

(b) Notwithstanding section 24-1-136 (11), report the findings to the governor, the public utilities commission, and the general assembly.

(4) Nothing in this section alters the regulatory exemptions provided in section 25-7-109 (8)(a).

(5) This section is intended to facilitate prompt state action to address greenhouse gas emissions and nothing in this section or the emissions inventory provisions in section 25-7-102 shall be construed to slow, interfere with, or impede state action to timely adopt rules that reduce greenhouse gas emissions to meet the state's greenhouse gas emission reduction goals.

(6) Definition. For the purposes of this section, greenhouse gas includes carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6), and nitrogen trifluoride (NF3).

Source: L. 2019: Entire section added, (SB 19-096), ch. 361, p. 3341, � 1, effective May 30. L. 2021: (2)(a)(I) and (2)(a)(II) amended and (2)(a)(IV) added, (HB 21-1266), ch. 411, p. 2749, � 17, effective July 2.

Editor's note: Section 24 of chapter 411 (HB 21-1266), Session Laws of Colorado 2021, provides that the act changing this section applies to conduct occurring on or after July 2, 2021.

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.

25-7-141. Air toxics - duties of covered entities - public notice of air quality incidents - monitoring - corrective action - legislative declaration - definitions - rules. (1) Legislative declaration. The general assembly hereby:

(a) Finds that:

(I) Air toxics are pollutants that cause or may cause cancer or other serious health effects, such as adverse reproductive effects or birth defects, or adverse environmental and ecological effects; and

(II) Disproportionately impacted communities often include low-income neighborhoods and residents who identify as Black, Indigenous, Latino, and people of color and are disproportionately affected by air toxics emissions;

(b) Determines that:

(I) Colorado communities have a right to know about exposures to air toxics in real time;

(II) Colorado communities are increasingly concerned about the potential health impacts of air toxics resulting from routine facility operations, fugitive leaks, upset conditions, or emergency situations;

(III) Real-time air monitoring, including fenceline and community-based monitoring systems, can provide valuable air quality data to assess the potential impacts of air toxics emissions in nearby communities, to understand temporal variations in air toxics emissions, and to advise facilities of significant changes in air toxics emissions;

(IV) Community-based monitoring is useful for estimating air toxics exposures and health risks and in determining trends in air pollutant levels over time; and

(V) Fenceline monitoring is useful for detecting or estimating leaks, the quantity of fugitive emissions, and other air emissions from a certain facility; and

(c) Declares that facilities that emit air toxics have a responsibility to collect real-time air toxics data and to provide monitoring results as quickly as possible in a publicly accessible format to help communities understand their level of exposure.

(2) Definitions. As used in this section, unless the context otherwise requires:

(a) Community-based monitoring means monitoring using equipment that measures and records air pollutant concentrations in the ambient air, including concentrations of covered air toxics, at or near sensitive receptor locations near a covered facility.

(b) Covered air toxic means:

(I) Hydrogen cyanide, hydrogen sulfide, and benzene; and

(II) Any other hazardous air pollutant that the commission lists, by rule, pursuant to subsection (3) of this section.

(c) Covered facility means a stationary source that is covered by one of the following North American industry classification system codes established by the federal office of management and budget:

(I) 324110, petroleum refineries;

(II) 336413, other aircraft parts and auxiliary equipment manufacturing;

(III) 424710, petroleum bulk stations and terminals, if the source is within an eight-hour ozone control area and has reported emissions of benzene in its federal toxics release inventory filing pursuant to 42 U.S.C. sec. 11023 for the years 2017 through 2019, as of July 1, 2020; or

(IV) Any other code listed by rule pursuant to subsection (3) of this section.

(d) Emergency notification service has the meaning established in section 29-11-101 (11).

(e) Fenceline monitoring means monitoring using equipment that encompasses the covered facility and continuously measures and records air pollutant concentrations at or adjacent to a covered facility's boundary.

(f) Incident means the emission by a covered facility of an air pollutant at a rate or quantity that exceeds allowable emissions as a result of anticipated or unanticipated circumstances, including a malfunction, start-up, shutdown, upset, or emergency.

(g) Method 325A means the test method titled Volatile Organic Compounds from Fugitive and Area Sources: Sampler Deployment and VOC Sample Collection adopted by the air emission measurement center of the federal environmental protection agency.

(h) Method 325B means the test method titled Volatile Organic Compounds from Fugitive and Area Sources: Sampler Preparation and Analysis promulgated by the air emission measurement center of the federal environmental protection agency.

(i) Method TO-15A means the test method titled Determination of Volatile Organic Compounds (VOCs) in Air Collected in Specially-Prepared Canisters and Analyzed by Gas Chromatography / Mass Spectrometry (GC/MS) published in the second edition of the federal environmental protection agency's Compendium of Methods from the Determination of Toxic Organic Compounds in Ambient Air.

(j) Notification threshold means acute exposure levels with an averaging time of one hour as established by the division pursuant to subsection (5)(a)(III) of this section.

(k) Optical remote sensing technology means technology with the ability to provide real-time measurements of air pollutant concentrations along an open path as described in EPA Handbook: Optical and Remote Sensing for Measurement and Monitoring of Emissions Flux of Gases and Particulate Matter by the federal environmental protection agency.

(l) (I) Petroleum refinery means an establishment that is located on one or more contiguous or adjacent properties that processes crude oil to produce more usable products such as gasoline, diesel fuel, aviation fuel, lubricating oils, asphalt, or petrochemical feedstocks. The term includes auxiliary facilities such as boilers, wastewater treatment plants, hydrogen production facilities, sulfur recovery plants, cooling towers, blowdown systems, compressor engines, and power plants.

(II) Petroleum refinery processes include separation processes, including atmospheric or vacuum distillation and light ends recovery; petroleum conversion processes, including cracking, reforming, alkylation, polymerization, isomerization, coking, and visbreaking; petroleum treating processes, including hydrodesulfurization, hydrotreating, chemical sweetening, acid gas removal, and deasphalting; and feedstock and product handling, including storage, crude-oil blending, non-crude-oil feedstock blending, product blending, loading, and unloading.

(m) Real time means the actual or near actual time during which covered air toxics or other air pollutant emissions occur.

(n) Relevant area means the area within three miles of a covered facility where communities may be exposed to covered air toxics.

(o) Relevant languages means the two most prevalent languages spoken in the relevant area, as identified in the latest American community survey published by the federal census bureau.

(3) Review of covered air toxics and industry codes for covered facilities. In order to better protect public health, the commission shall:

(a) At least every five years beginning in 2027, or more frequently if it deems it appropriate to do so, including pursuant to a request by an interested person based on data evidencing potential exposure to a pollutant at levels posing a significant risk to human health, review the best available science, the list of covered air toxics, and the North American industry classification system codes for covered facilities to determine whether additional hazardous air pollutants should be listed as covered air toxics and whether any additional stationary sources should be included as covered facilities;

(b) Based on its review, adjust the lists of covered air toxics and covered facilities by rule; and

(c) If the commission adjusts the list of covered air toxics or covered facilities, adjust by rule the annual amount that the division may annually spend to conduct the community-based monitoring required by subsection (6)(a) of this section.

(4) Emergency notifications. Each covered facility shall:

(a) Conduct outreach to representatives of the community in the relevant area to discuss communications regarding the occurrence of an incident, including:

(I) Methods by which the covered facility can disseminate information to the community in the relevant area and methods by which community members can contact the covered facility regarding an incident; and

(II) Provisions for communications in the relevant languages;

(b) Use an emergency notification service through which the covered facility will, as soon as possible, communicate in the relevant languages with, and make data available to, the community in the relevant area and the division regarding the occurrence of an incident or an exceedance of a notification threshold identified by a fenceline monitoring system;

(b.5) For two years, maintain a record of all communications made through an emergency notification service, including whether any other action was taken in response to the incident or exceedance of a notification threshold, which record must be available to the public;

(d) Pay all costs associated with its use of the emergency notification service.

(5) Fenceline monitoring. (a) (I) Beginning on January 1, 2023, a covered facility that is a petroleum refinery shall conduct fenceline monitoring of covered air toxics in real time and shall disseminate all fenceline monitoring data to the public as described in subsection (5)(h) of this section.

(II) Beginning on July 1, 2024, all covered facilities not subject to subsection (5)(a)(I) of this section shall conduct fenceline monitoring of covered air toxics in real time and shall disseminate all fenceline monitoring data to the public as described in subsection (5)(h) of this section.

(III) The division shall establish notification thresholds for each covered air toxic. In establishing the notification thresholds, the division shall take a precautionary approach to assure protection of public health. The notification thresholds:

(A) Shall be based on scientific research that is publicly available and peer-reviewed about the potential human health impacts of short-term exposures to pollutants;

(B) May be based on acute exposure levels or guidelines utilized by a federal agency or another state; and

(b) At least one year before a covered facility begins conducting fenceline monitoring, the covered facility shall submit an initial draft fenceline monitoring plan to the division. Each fenceline monitoring plan must:

(I) Provide for monitoring consistent with method 325A, method 325B, and method TO-15A combined, or the most up-to-date emissions test or measurement methods for fenceline monitoring approved or promulgated by the federal environmental protection agency;

(II) Provide for monitoring of covered air toxics using optical remote sensing technology or other monitoring technology with the ability to provide real-time spatial and temporal data to understand the type and amount of emissions;

(III) Be submitted to the division in the relevant languages; and

(IV) Identify:

(A) The equipment to be used to continuously monitor, record, and disseminate emission data for each covered air toxic in real time, including equipment to continuously record wind speed and wind direction data;

(B) Siting and equipment specifications;

(C) Procedures for air monitoring equipment maintenance and failures, maintenance plans and schedules, temporary back-up measures to implement during equipment failures, data management, quality assurance, and quality control; and

(D) Methods for disseminating fenceline monitoring data to the public, local governments, area schools, and the division in real time via the website specified in subsection (5)(h)(I) of this section.

(c) Upon receipt of an initial draft fenceline monitoring plan or plan that is resubmitted pursuant to subsection (5)(i) of this section, the division shall:

(I) Promptly post the plan on the division's website;

(II) Ensure that the plan is subject to at least ninety days of public comment;

(III) Respond in writing to all comments received;

(IV) Consult with local governments in the relevant area about the plan; and

(V) Consult community members and hold at least two public hearings regarding the plan before the division acts on the plan. The hearings must:

(A) Be held at a location near the covered facility, prioritizing disproportionately impacted communities;

(B) Be held once during the evening and once during a weekend;

(D) Include interpretation services in the relevant languages that are not the same language in which the hearing is conducted; and

(E) Provide child care services for the attendees.

(d) (I) No later than four months after the submission of an initial draft fenceline monitoring plan or plan that is resubmitted pursuant to subsection (5)(i) of this section, the covered facility may submit a revised plan to the division.

(II) Upon receipt of a revised plan, the division shall promptly post the revised plan on the division's website. If the initial plan failed to include the required elements under subsection (5)(b) of this section, the division shall again comply with subsection (5)(c) of this section with respect to the revised plan, in which case the deadline in subsection (5)(e) of this section is extended for ninety days.

(e) If the division determines that the covered facility is emitting hazardous air pollutants in quantities that may pose a risk to public health in the relevant area, the division may require as part of the plan the reporting of pollutants other than covered air toxics that the monitors are reasonably capable of measuring. The division shall approve or disapprove a fenceline monitoring plan no later than eight months after it is initially submitted to the division. If the division disapproves of a monitoring plan, it shall promptly modify the monitoring plan to ensure compliance with subsection (5)(b) of this section prior to approval.

(f) Once the division approves a fenceline monitoring plan, the division shall promptly post the plan on its website. Within three weeks after approval, the covered facility shall make the approved plan available to the division and the public in the relevant languages, and the division shall promptly post the translated plan on the division's website. The covered facility shall make hard copies of the approved and translated plans available at any public libraries in the relevant area.

(g) If a covered facility is a major source, as that term is defined in section 25-7-114 (3), the division shall incorporate fenceline monitoring requirements into the covered facility's operating permit required by section 25-7-114.3.

(h) Each covered facility shall collect real-time data from the fenceline monitoring system, shall maintain records of the data, and shall disseminate the data to the division and the public. The dissemination must:

(I) Be available in real time on a website maintained by the covered facility and include a map of all fenceline monitoring equipment locations and the ability to access historical fenceline monitoring data;

(II) Be in the relevant languages spoken in the relevant area;

(III) Include descriptions in the relevant languages of covered air toxics and their possible health effects as specified by the federal centers for disease control and prevention; and

(IV) Include data about air concentrations of any hazardous air pollutant other than covered air toxics that the division determined under subsection (5)(e) of this section must be included in the fenceline monitoring plan.

(i) A covered facility shall update and resubmit for division approval its fenceline monitoring plan every five years; except that the division may require an updated plan before the expiration of five years based on:

(I) Its own determination that there has been a substantial change in the covered facility's operations or emissions; or

(II) A written request submitted by a member of the public that the division determines justifies an updated plan.

(6) Community-based monitoring. (a) Beginning no later than January 1, 2023, the division shall conduct community-based monitoring of covered air toxics in the relevant areas. The community-based monitoring must occur for no less than thirty cumulative days during each quarter of every year. The division may expend up to eight hundred thousand dollars from the general fund to purchase and equip a mobile air-quality monitoring van for use in the northern metropolitan Denver area, Henderson, the city of Pueblo, and other communities, to conduct community-based monitoring pursuant to this subsection (6).

(b) Subject to subsection (3)(c) of this section, the division shall not spend more than one million dollars annually to conduct the community-based monitoring required by subsection (6)(a) of this section.

(I) Post a list of intended community-based monitoring equipment locations on the division's website in the relevant languages;

(II) Ensure that the list of intended monitoring equipment locations is subject to at least ninety days of public comment; and

(III) Consider input from local governments and school districts in the relevant areas about the list of intended monitoring equipment locations.

(d) The division shall make community-based monitoring data available to the public.

(7) Costs paid by covered facilities. (a) Each covered facility is responsible for the cost of installing, operating, and maintaining all fenceline monitoring equipment used pursuant to the monitoring plan as well as the cost of disseminating the data to the public.

(b) A covered facility shall pay a processing fee pursuant to section 25-7-114.7 (2)(a)(III) to cover the division's indirect and direct costs of reviewing and approving fenceline monitoring plans.

(c) Covered facilities shall pay the division for the covered facility's annual pro rata share of the direct and indirect costs of conducting community-based monitoring, which money shall be credited to the stationary sources control fund created in section 25-7-114.7 (2)(b)(I). Payment will be received in advance of performing community-based monitoring unless the division expressly authorizes reimbursement.

Source: L. 2020: Entire section added, (HB 20-1265), ch. 218, p. 1079, � 1, effective July 2. L. 2021: Entire section amended, (HB 21-1189), ch. 334, p. 2150, � 1, effective June 24.

25-7-142. Energy benchmarking - data collection and access - utility requirements - task force - rules - reports - exemptions - definitions - legislative declaration. (1) Legislative declaration. The general assembly finds, determines, and declares that the regulation of building performance is a matter of statewide concern because:

(a) As of 2020, buildings represented a significant source of greenhouse gas pollution in the state of Colorado;

(b) Energy consumption and greenhouse gas emissions associated with a building produce impacts far beyond its walls and the boundaries of the local government within which the building is located, including costs to utility ratepayers for increased energy production, community health costs associated with air pollution, and broader societal costs of anthropogenic climate change;

(c) Many building owners have made proactive efforts to reduce the energy use and greenhouse gas emissions of their buildings, yet more remains to be done to help the state meet its greenhouse gas reduction goals;

(d) Building tenants that pay energy bills often lack the ability to implement building upgrades that could improve performance, reduce emissions, and reduce those costs;

(e) The commission has both the statutory authority and obligation to require a reduction of greenhouse gas emissions in the state in every sector including buildings;

(f) (I) Benchmarking and building performance standards will support job growth in Colorado. According to the United States Climate Alliance, before January 1, 2020, the fastest growing clean energy industries in Colorado included:

(A) Traditional heating, ventilation, and air conditioning, totaling ten thousand four hundred thirty-eight jobs; and

(B) Energy Star and efficient lighting, totaling eleven thousand one hundred fifty-six jobs.

(II) Additionally, analysis conducted by Advanced Energy Economy identified more than sixty thousand advanced energy jobs in Colorado, with more than fifty percent of those jobs in energy efficiency.

(g) The state of Colorado provides many low- and no-cost options for Colorado property owners to finance building performance improvements, including:

(I) Property-assessed clean energy financing that the Colorado new energy improvement district created in section 32-20-104 provides, whereby qualifying energy efficiency and renewable energy improvements are paid back via an assessment on annual property taxes; and

(II) Performance contracting, whereby improvements are paid for by contractually guaranteed savings from efficiency upgrades;

(h) Many public utilities in the state also provide technical assistance and financial incentives to help property owners implement building performance improvements; and

(i) It is in the interest of the state to:

(I) Establish a program to help Colorado citizens understand and track energy use and greenhouse gas emissions from large buildings; and

(II) Develop performance standards necessary to meet state greenhouse-gas-emission-reduction goals.

(1.5) The general assembly further finds and declares that:

(a) Energy consumption by Colorado's built environment, including large commercial and residential properties, is a significant contributor to statewide greenhouse gas pollution;

(b) Reducing the greenhouse gas emissions arising from energy consumption by the built environment is necessary to achieve the 2050 net-zero greenhouse gas emission reduction goal set forth in section 25-7-102 (2)(g);

(c) The commission satisfied the objectives set forth in subsections (8)(a)(II) and (8)(c)(II) of this section by adopting benchmarking and performance standard rules in August 2023; and

(d) In implementing the requirements of this section and the commission's rules adopted pursuant to this section, the division should, consistent with section 25-7-122 (2), consider an owner's effort to comply with building performance standards when implementing enforcement and assessing penalties pursuant to section 25-7-122 and this section.

(2) Definitions. As used in this section, unless the context otherwise requires:

(a) Aggregated data means electric or gas meter data from which any unique identifier or other personal information has been removed and that a qualifying utility collects and aggregates in at least monthly intervals for an entire covered building.

(b) Aggregation threshold means, for each qualifying utility, the minimum number of customer accounts associated with a covered building for which the qualifying utility may provide the owner of the covered building with aggregated data upon request without requiring each customer's consent to have the customer's energy-use data accessed or shared.

(b.5) (I) Agricultural building means a building or structure used to house agricultural implements, hay, unprocessed grain, poultry, livestock, or other agricultural products or inputs primarily for the purpose of maintaining or operating an agricultural process.

(II) Agricultural implements include agricultural equipment as described in section 39-3-122.

(III) Agricultural implements do not include implements that are primarily for rent or sale.

(c) Benchmark means to input benchmarking data into a benchmarking tool to measure and assess the energy performance and greenhouse gas pollution for a covered building for the reporting year.

(d) Except as the commission may modify by rule pursuant to subsection (7) of this section, benchmarking data means the information related to a covered building that is input into or calculated by a benchmarking tool and includes, at a minimum:

(I) A physical description of the covered building and descriptions of its operational characteristics, including:

(A) The name of the covered building, if any;

(B) The address of the covered building;

(D) The covered building's gross floor area; and

(E) The years in which the covered building has been certified by Energy Star and the most recent date of certification, if applicable; and

(II) Data generated by the benchmarking tool, including:

(A) The Energy Star score, if available;

(B) Monthly energy use by fuel type;

(D) Weather-normalized site and source energy-use intensity;

(E) Confirmation that data quality has been checked;

(F) Annual maximum electricity demand, in kilowatts;

(G) If available for reporting through the benchmarking tool, monthly peak electricity demand; and

(H) Greenhouse gas emissions, including total, indirect, and direct emissions.

(e) Except as the commission may modify by rule pursuant to subsection (7) of this section, benchmarking tool means the Energy Star Portfolio Manager® or a successor online resource used to track and assess the performance of certain properties relative to similar properties.

(f) Biomedical research laboratory means a scientific laboratory used to conduct research relating to both biology and medicine.

(g) (I) Campus means a collection of two or more buildings that are owned and operated by the same person and that have a shared purpose and function as a single property.

(II) Campus includes two or more of the buildings that comprise the capitol complex.

(h) Colorado energy office or office means the Colorado energy office created in section 24-38.5-101.

(i) Correctional facility means:

(I) A correctional facility, as defined in section 17-1-102 (1.7);

(II) A private contract prison, as defined in section 17-1-102 (7.3);

(III) A local jail, as defined in section 17-1-102 (7);

(IV) A municipal jail, as authorized in section 31-15-401 (1)(j); and

(V) A juvenile detention facility governed by part 15 of article 2.5 of title 19.

(j) (I) Except as the commission may modify by rule pursuant to subsection (7) of this section, covered building means a building comprising a gross floor area of fifty thousand square feet or more that is occupied by a single occupant or group of tenants.

(II) Covered building does not include:

(A) A storage facility, stand-alone parking garage, or airplane hangar that lacks heating and cooling;

(B) A building in which more than half of the gross floor area is used for manufacturing or industrial purposes;

(D) An agricultural building.

(k) Energy Star means the federal program authorized by 42 U.S.C. sec. 6294a, as amended, to help customers, businesses, and industry save money and protect the environment through the adoption of energy-efficient products and practices.

(l) Energy Star score means the one-to-one-hundred numeric rating generated by the Energy Star Portfolio Manager® as a measurement of a building's energy efficiency.

(m) Energy-use intensity means a building's energy use, expressed as total site energy use per square foot per year.

(n) Financial hardship means that a property is experiencing at least one of the following conditions:

(I) The property has been included on a city's, county's, or city and county's annual tax lien sale list within the previous two years;

(II) The property is an asset subject to a court-appointed receiver that controls the asset due to financial stress;

(III) The property is owned by a financial institution as a result of a default by a borrower;

(IV) The property has been acquired by a deed in lieu of foreclosure;

(V) The property is the subject of a senior mortgage subject to a notice of default; or

(VI) Due to the governor declaring a disaster emergency pursuant to section 24-33.5-704 (4), the property, in at least two of the previous five years, generated annual rental income or revenue that totals sixty percent or less of the five-year average immediately preceding the disaster emergency declaration.

(o) Greenhouse gas has the meaning set forth in section 25-7-140 (6).

(p) Gross floor area means the total building area, as measured from the outside surface of each exterior wall of the building, including above-grade and below-grade space.

(q) Local government means a statutory or home rule municipality, county, or city and county.

(q.5) Operator means an owner, tenant, or other individual or entity:

(I) Occupying or named on the utility bill for a covered building; and

(II) That has access to utility data for the covered building.

(r) Owner means a person possessing title to a property or the person's designated agent.

(s) Performance standards means standards that the commission establishes by rule pursuant to subsection (8)(c) or (8.5)(a) of this section and with which owners of covered buildings are required to comply.

(t) Public building means a covered building owned by:

(I) The state;

(II) A local government;

(III) A district or special district regulated under title 32;

(IV) A state institution of higher education;

(V) A private institution of higher education as defined in section 23-18-102 (9);

(VI) A school district created pursuant to article 30 of title 22; and

(VII) A charter school authorized pursuant to part 1 of article 30.5 of title 22.

(u) Qualifying utility means:

(I) An electric or gas utility with five thousand or more active commercial and industrial service connections, accounts, or customers in the state, including:

(A) An investor-owned electric or gas utility;

(B) A cooperative electric association; or

(II) A natural gas supplier with five or more active commercial or industrial connections, accounts, or customers in the state.

(v) State institution of higher education:

(I) Has the meaning set forth in section 23-1-108 (7)(g)(II);

(II) Includes the Auraria higher education center, governed pursuant to article 70 of title 23; and

(III) Does not include a biomedical research laboratory.

(w) Tenant means a person that, pursuant to a rental or lease agreement, occupies or holds possession of a building or part of a building or premises.

(x) Unique identifier means a customer's contact information displayed on a utility bill such as the customer's name, mailing address, telephone number, or email address.

(y) Utility customer means the building owner or tenant listed on the utility's records as the customer liable for payment of the utility service or additional charges assessed on the utility account.

(3) Benchmarking requirements on owners and operators. (a) Notwithstanding the rules that the commission adopted before July 2025, beginning in 2026 for 2025 benchmarking data and for each subsequent year, the owner of a covered building shall submit a report of the benchmarking data for the previous calendar year to the office on or before November 1.

(b) Notwithstanding subsection (3)(a) of this section, beginning in 2025 for 2024 benchmarking data and for each subsequent year, if an owner of a covered building demonstrates to the office that it lacks access to benchmarking data, the operator of the covered building shall, on or before November 1 of each year, submit to the office a report of the benchmarking data for the covered building for the previous calendar year.

(c) Before providing a benchmarking report pursuant to subsection (3)(a) of this section, an owner of a covered building or operator shall run any automated data checking function of the benchmarking tool and correct any errors discovered.

(d) The following owners and operators may comply with this subsection (3) collectively at the campus-wide level:

(I) The owner or operator of multiple covered buildings that are part of a master metered group of buildings without submetering;

(II) The owner or operator of a correctional facility; and

(III) The owner or operator of a public building that is a covered building.

(4) Utility data requirements. (a) On or before June 1, 2022, a qualifying utility shall:

(I) Establish an aggregation threshold that is four or fewer utility customer accounts;

(II) Publish its aggregation threshold on its public website; and

(III) Upon request of an owner of a covered building, begin providing energy-use data to the owner.

(b) Energy-use data that a qualifying utility provides an owner pursuant to this subsection (4) must be:

(I) Available on, or able to be requested through, an easily navigable web portal or online request form using up-to-date standards for digital authentication, including single one-time passwords or multi-factor authentication;

(II) Provided to the owner within:

(A) Ninety days after receiving the owner's valid written or electronic request if the request is received in 2022;

(B) Thirty days after receiving the owner's valid written or electronic request if the request is received in 2023 or later;

(III) Directly uploaded to the owner's benchmarking tool account, delivered in the spreadsheet template specified by the benchmarking tool, or delivered in another format approved by the office;

(IV) Provided to the owner on at least an annual basis until the owner revokes the request for energy-use data or sells the covered building;

(V) Provided in accordance with this subsection (4), regardless of whether the owner is named on the utility account for the covered building; and

(VI) If the qualifying utility is an investor-owned utility, provided in accordance with the public utilities commission's rules concerning customer data and personally identifying information.

(c) For covered buildings that do not meet the qualifying utility's aggregation threshold, and thus require utility customer consent to access or share energy-use data, the consent:

(I) May be in written or electronic form;

(II) May be provided in a lease agreement provision;

(III) Is valid until the utility customer revokes it; and

(IV) Is not required if a utility customer vacates the covered building before explicitly denying the owner consent to access and share the utility customer's energy-use data.

(d) To meet the requirements of this subsection (4), a qualifying utility that is not an investor-owned utility may seek and use grant funding from the Colorado clean energy fund, a nonprofit corporation, or the energy fund created in section 24-38.5-102.4 (1)(a)(I).

(5) Benchmarking waivers and extensions of time. (a) An owner of a covered building may seek a waiver from the benchmarking requirements set forth in subsection (3) of this section if the owner submits documentation to, and receives approval from, the office, which documentation establishes that the covered building has met one or more of the following conditions for the calendar year to be benchmarked:

(I) The covered building was unoccupied for at least thirty consecutive days of the year;

(II) A demolition permit was issued for the entire covered building;

(III) The covered building met one or more of the conditions for financial hardship;

(IV) The covered building does not meet a qualifying utility's aggregation threshold, one or more of the utility customers refused to provide the owner with permission to access the utility customer's relevant energy-use data, the owner provides proof to the office that it requested permission from the utility customer or utility customers withholding consent at least thirty days before the benchmarking report was due, and the owner submits a plan to include an energy-use data sharing permission provision in the next lease renewal; or

(V) The covered building has four or more utility customers, is not located within a qualifying utility's service territory, and the owner is unable to get aggregated data from the utility that serves the covered building.

(b) An owner of a covered building may request a time extension from the office to submit a benchmarking report if the owner submits documentation to the office demonstrating that, despite the owner's good-faith effort, the owner was unable to complete the benchmarking report in a timely manner because of the failure or refusal of a qualifying utility or a utility customer to provide the necessary information or permission, as applicable.

(c) The office shall notify the division of all approved waivers and extensions of time, the approval of which is solely within the office's discretion.

(d) Pursuant to subsection (7) of this section, the commission may, by rule, modify the requirements for obtaining a waiver or extension of time pursuant to this subsection (5).

(6) Requirements upon sale or lease of a covered building. (a) At the time of listing a covered building or a portion of a covered building for sale or lease, the owner of the covered building shall furnish an electronic copy of reported benchmarking data from the previous calendar year or from the most recent twelve-month period of continuous occupancy to the following:

(I) Prospective buyers or lessees;

(II) Any brokers, as defined in section 12-10-201 (6), who make inquiry about the property; and

(III) Major commercial real estate listing services on which the property is listed.

(b) Upon receipt of the benchmarking data, a commercial real estate listing service that lists properties in the state shall include in the property's listing, at a minimum, the property's Energy Star score, if applicable, and the property's energy-use intensity.

(c) If a covered building changes ownership, the former owner shall make available to the new owner the energy-use data; utility customer consent documentation, if any; and any other information about the property that is necessary to benchmark the covered building. The former owner shall transfer to the new owner both the record representing the covered building within the benchmarking tool and the request to a qualified utility for aggregated data. The new owner may request and receive from a qualifying utility the aggregated data necessary to fulfill benchmarking reporting requirements.

(7) Benchmarking rules. The commission may promulgate rules to implement the benchmarking program set forth in this section. Additionally, the commission may, by rule, modify the following:

(a) The provisions regarding waivers and extensions of time set forth in subsection (5) of this section;

(b) The definition of benchmarking data, but only if the modified definition concerns data that:

(I) Is capable of being recorded by the benchmarking tool; and

(II) Includes the greenhouse gas emissions, the Energy Star score, if applicable, and energy-use intensity;

(d) Data verification requirements; and

(e) After June 1, 2029, the minimum gross floor area included in the definition of covered building.

(8) Rules. (a) and (b) Repealed.

(III) The commission shall not adopt rules to rescind or modify the exemptions for owners of public buildings from payment of the annual fee, as set forth in section 24-38.5-112 (1)(e)(II); from payment of the building decarbonization fee, as set forth in section 24-38.5-125 (5)(b); or from payment of civil penalties, as set forth in section 25-7-122 (1)(i).

(IV) The commission shall, as necessary, adopt rules to modify or continue the performance standards until 2050 in order to achieve or exceed greenhouse gas emission reduction targets set forth in section 25-7-102 (2)(g).

(d) to (f) Repealed.

(8.5) 2040 performance standard targets - division to propose standards - commission to adopt rules - task force - membership - repeal. (a) (I) To help achieve or exceed greenhouse gas emission reduction targets pursuant to subsection (8)(c)(IV) of this section, the commission shall adopt, by rule, 2040 performance standards in accordance with section 25-7-102 (2)(g).

(II) On or before June 1, 2029, the division, after consultation with the office, shall consider recommendations from the task force created pursuant to subsection (8.5)(c) of this section and shall propose 2040 performance standards to the commission for consideration in the rules adopted pursuant to subsection (8.5)(a)(I) of this section.

(b) The division, in proposing 2040 performance standards, and the commission, in adopting 2040 performance standards, shall consider whether targets that are included in the 2040 performance standards to reduce emissions from covered buildings are consistent with meeting the economy-wide emission reduction goals set forth in section 25-7-102 (2)(g), taking into consideration:

(I) The capital planning periods for covered buildings;

(II) The feasibility of an owner planning and implementing a building upgrade project ahead of the compliance date for the 2040 performance standards that the commission sets by rule pursuant to subsection (8.5)(a)(I) of this section; and

(III) That all rules that the commission adopts must be technologically feasible and economically reasonable pursuant to the requirements set forth in section 25-7-102 (1).

(c) (I) On or before July 1, 2027, the director of the office shall appoint and convene a task force. The task force shall review the benchmarking data submitted for calendar years 2021 through 2026 and, on or before July 1, 2028, develop and provide recommendations to the division regarding the 2040 performance standards.

(II) As part of the recommendations developed pursuant to subsection (8.5)(c)(I) of this section, the task force shall consider:

(A) The economy-wide emission reduction goals set forth in section 25-7-102 (2)(g);

(B) The capital planning periods for covered buildings and the feasibility of an owner planning and implementing a building upgrade project ahead of the compliance date;

(C) Whether the building performance program should allow a covered building owner to meet performance targets through the implementation of energy efficiency improvements or other eligible measures;

(D) Improvements that materially advance compliance with the performance standards and avoid premature replacement of equipment that remains within its useful service life;

(E) The establishment of individualized compliance pathways, including the ability of the office to enter into agreements with covered building owners to define alternative compliance metrics and schedules that are consistent with operational necessity and that avoid unnecessary financial burdens; and

(F) Elements from prior rules regarding building performance standards, which rules may require revision. The task force shall make recommendations regarding any rule revisions that it believes are necessary.

(d) The task force consists of the following members, all of whom, except the representatives of the office, the public utilities commission, and the division, are voting members:

(I) The director of the office or the director's designee;

(II) The director of the division or the director's designee;

(III) The director of the public utilities commission or the director's designee;

(IV) One member who is an owner of commercial covered buildings or who represents owners of commercial covered buildings;

(V) One member who is an owner of a multifamily residential covered building or who represents owners of multifamily residential covered buildings;

(VI) One member who represents an affordable housing organization;

(VII) One member who has direct experience in, or is a member of an organization representing workers in, mechanical, HVAC, or electrical work at the commercial or multifamily building level;

(VIII) One member who represents architects;

(IX) One member who represents professional engineers and who has experience working on systems for buildings;

(X) One member who has extensive experience as a building operating engineer;

(XI) One member who represents an electric utility, a gas utility, or a combined electric and gas utility;

(XII) One member who is from an environmental conservation or environmental justice group with experience in energy efficiency or the built environment;

(XIII) One member who is from a local government that has enacted or adopted a benchmarking or building energy performance ordinance or resolution;

(XIV) Three members who have relevant building performance expertise, as determined by the director of the office;

(XV) One member representing hospitals or other health-care facilities; and

(XVI) One member who is a representative of a mixed-use commercial office.

(e) An individual applying to serve on the task force must submit a recommendation from a member of the group that the individual seeks to represent on the task force or, if a trade organization exists that represents the group, a recommendation from the trade organization.

(f) In making appointments to the task force, the director of the office shall strive to ensure varied geographic representation.

(g) The task force shall conduct a comprehensive economic analysis of its recommendations for the 2040 performance standards prior to providing the recommendations to the division.

(8.6) Notwithstanding any rules that the commission adopts pursuant to this section before July 1, 2025:

(a) (I) An owner of a covered building that meets its performance standards using the standard percentage reduction building performance pathway, as established by rule of the commission, may use 2019 benchmarking data as an alternate baseline if the owner submits complete and accurate 2019 benchmarking data to the office no later than November 1, 2027;

(II) An owner of a covered building located within the jurisdiction of a local government that has adopted and implemented a building performance standards program or other similar program intended to reduce greenhouse gas emissions from covered buildings is deemed in compliance with this section and rules adopted by the commission pursuant to this section by complying with the requirements of the local program if:

(A) The owner of the covered building maintains compliance with the local program and certifies its affirmative compliance status by submitting an affidavit, which affidavit attests that the covered building meets the requirements of the local program, in annual benchmarking reports submitted to the office; and

(B) The office has determined that the greenhouse gas emission reductions from covered buildings complying with the local program are reasonably similar to the greenhouse gas emission reductions that would have been achieved through compliance with performance standards established under this section;

(III) A local jurisdiction that has adopted and implemented a building performance standards program may issue a certification or report to the office confirming which covered buildings are in compliance with the program; and

(IV) Decisions made by the office regarding equivalence pursuant to subsection (8.6)(a)(II)(B) of this section are subject to judicial review pursuant to section 24-4-106.

(b) (I) Notwithstanding subsection (8.6)(a) of this section and any rules adopted by the commission before July 1, 2025, an owner may either comply with the 2026 performance standards or track its progress toward compliance by submitting benchmarking reports in accordance with subsections (3) and (8.6)(b)(II) of this section.

(II) Beginning with the 2025 benchmarking reports submitted in 2026, and each year thereafter, a covered building owner or operator shall, as part of its benchmarking reports submitted to the office:

(A) Respond to any standard progress-related questions included in the benchmarking form to help assess whether the building is on a path toward future compliance;

(B) Indicate whether technical assistance or guidance from the office would be helpful; and

(C) Provide any additional nonproprietary information requested by the office that is relevant to understanding implementation trends or common barriers to compliance.

(III) The reports required under subsection (8.6)(b)(II) of this section must include only answers to the questions that are minimally necessary to assess the covered building owner's progress toward the performance standard targets.

(IV) Any rules the commission adopted before July 1, 2025, that impose additional compliance obligations upon a covered building owner that fails to timely meet a building performance standard do not apply until 2031 for the 2030 building performance standards.

(V) The office shall prioritize any grant money that is made available for owners of covered buildings:

(A) That comply with or establish plans to go beyond the 2026 performance standards; or

(B) That comply with the 2030 performance standard early or establish plans to go beyond the 2030 performance standards.

(VI) Nothing in this subsection (8.6)(b) precludes or modifies the division's authority to enforce against an owner of a covered building for noncompliance with 2030 performance standards or performance standards set for subsequent years.

(8.7) Notwithstanding the requirements of subsection (8)(a)(II) of this section or rules adopted pursuant to that subsection, subsection (8.6) of this section is necessary for covered buildings to effectively implement the performance standards. The commission is not required to revise rules that were adopted pursuant to this section before July 1, 2025.

(8.8) (a) Energy use that a covered building owner demonstrates is attributable to electric vehicle charging shall not be included in a covered building's total energy usage for purposes of compliance with building performance standards.

(b) A covered building owner may, after consultation with the office, request documentation demonstrating that:

(I) The covered building is in current compliance with the commission's rules adopted in accordance with this section; and

(II) The covered building is on a path toward meeting upcoming compliance obligations, based on the performance standards, conditions, and building-specific plans that are in effect at the time of the covered building owner's request.

(c) Consistent with rules adopted by the commission, the office shall develop guidance concerning individualized target and compliance guidelines for covered building owners that demonstrate a significant increase in energy use due to the expansion of a data center or telecommunications operation. A covered building owner's individualized energy efficiency target can reflect increased electricity consumption over time from a data center or telecommunications operation if all cost-effective energy efficiency and electrification measures have been performed. Consistent with rules adopted by the commission regarding timelines and adjustments for building performance standard targets, individualized targets and compliance timelines may be adjusted multiple times based on the evolving growth of energy consumption by the covered building.

(9) Saving clause. This section does not restrict:

(a) The ability of a qualifying utility to provide incentives or other energy efficiency program services for covered buildings;

(b) The ability of an investor-owned utility to take credit, as deemed appropriate by the public utilities commission, for energy or greenhouse gas emission savings achieved for covered buildings;

(d) A local government from adopting or implementing an ordinance or resolution that imposes more stringent benchmarking or performance standard requirements.

(10) Agricultural buildings exempted from benchmarking requirements. (a) An owner of an agricultural building may submit for an affirmative exemption from any requirement to report benchmarking data.

(b) An owner of an agricultural building may submit for an exemption to remain valid until there is a change in ownership or a change that renders the building no longer an agricultural building.

(c) For the duration of any exemption, an owner of an agricultural building shall certify, upon request, the exemption status of any building for which an exemption has been granted.

Source: L. 2021: Entire section added, (HB 21-1286), ch. 326, p. 2070, � 1, effective September 7. L. 2022: (2)(i)(V) amended, (SB 22-212), ch. 421, p. 2980, � 61, effective August 10. L. 2023: IP(8)(c)(I) and IP(8)(c)(II) amended, (SB 23-016), ch. 165, p. 734, � 6, effective August 7. L. 2025: (1.5), (2)(q.5), (8.5), (8.6), (8.7), and (8.8) added and (2)(s), (3), (8)(c)(III), and (8)(f) amended, (HB 25-1269), ch. 216, p. 978, � 3, effective May 20; (2)(b.5), (2)(j)(II)(D) and (10) added and (2)(j)(II)(B) and (2)(j)(II)(C) amended, (SB 25-039), ch. 37, p. 182, � 1, effective August 6.

Editor's note: (1) Subsection (8)(f) was amended in HB 25-1269, effective May 20, 2025. For the amendments in HB 25-1269 in effect from May 20, 2025, to July 1, 2025, see chapter 216, Session Laws of Colorado 2025. (L. 2025, p. 978.)

(2) Subsection (8)(f) provided for the repeal of subsections (8)(a), (8)(b), (8)(c)(I), (8)(c)(II), (8)(d), (8)(e), and (8)(f), effective July 1, 2025. (See L. 2025, p. 978.)

(3) Section 10 of chapter 216 (HB 25-1269), Session Laws of Colorado 2025, provides that the act changing this section applies to conduct occurring on or after May 20, 2025.

25-7-143. Emergency stationary engine exception - legislative declaration - rules - notice to revisor - repeal. [Editor's note: This section is effective (see editor's note following this section)]

(1) (a) The general assembly hereby finds that:

(I) The United States armed forces protect the United States, including the people of Colorado, from threats domestic and abroad;

(II) Colorado is home to the North American aerospace defense command, U.S. strategic command, U.S. air force space command, and U.S. northern command;

(III) These command and military facilities play a critical role in aerospace defense, including defense against intercontinental ballistic missiles and weapons of mass destruction; and

(IV) Regulations promulgated under the federal act authorize emergency stationary engines to operate during an emergency event.

(b) Therefore, the general assembly hereby declares that:

(I) Maintaining the operating capacity of Colorado's military facilities is critical to protecting the health, safety, and welfare of the people of Colorado;

(II) Although regulation of emissions is important to the health, safety, and welfare of the people of Colorado, failure to maintain operation at all times of these critical facilities during an emergency event could lead to severe loss of life and devastating environmental consequences in Colorado;

(III) Emergency stationary engines are critical to providing power and other services necessary to maintain the operation of these military facilities at all times;

(IV) This section is self-executing; and

(V) Creation of an exemption for emergency stationary engine use at military installations requires a change to Colorado's state implementation plan, which must be approved by the administrator of the federal environmental protection agency.

(2) Notwithstanding any requirements or emission limits established by state statute or rule, a person may operate an emergency stationary engine, as authorized by the federal act, if:

(a) The emergency stationary engine is providing electric power to or mechanical work for military facilities or facilities under the control of the United States department of defense;

(b) The emergency stationary engine is in compliance with 40 CFR 60, subparts IIII and JJJJ, as in effect on January 1, 2022;

(c) The emergency stationary engine's air pollution control and monitoring equipment is installed, operated, and maintained in compliance with the manufacturer's standards; and

(d) The emergency stationary engine is:

(I) Undergoing routine maintenance or testing; or

(II) Providing primary electrical power or mechanical work during an emergency event pursuant to 40 CFR 60 or 63, as in effect on January 1, 2022, for the duration of the emergency event.

(3) (a) A person that operates an emergency stationary engine at military facilities or facilities under the control of the United States department of defense shall:

(I) Minimize the use of emergency stationary engines as much as practicable, consistent with the health, safety, and welfare of the people of Colorado;

(II) Report an emergency event to the division within the later of forty-eight hours or by noon on the next business day after commencing operation of an emergency stationary engine because of the emergency event; and

(III) Each time an emergency stationary engine is operated, record:

(A) That the emergency stationary engine was operated;

(B) The date that the operation began;

(D) The reason for each operation, including an emergency event, maintenance, or testing; and

(E) Whether any action was taken to mitigate the use of the emergency stationary engine during the emergency event.

(b) A person that installs an emergency stationary engine shall retain for five years and make available for inspection the installation, maintenance, and operation records and data of the emergency stationary engine, including, at a minimum:

(I) Monitoring results;

(II) Operation and maintenance procedures; and

(III) Operation and maintenance records.

(4) A person that operates an emergency stationary engine at military facilities or facilities under the control of the United States department of defense shall submit a compliance report to the division annually on the date the person regularly submits reports in accordance with any permits held by the person. Each compliance report must include the following information:

(a) The installation name and address;

(b) The date of the report and the beginning and end dates of the reporting period;

(d) Any action taken to minimize the operation of the emergency stationary engine; and

(e) A statement by the reporting person, including the person's name, title, and signature, certifying the accuracy of the report.

(5) Compliance with this section is a condition of every air quality permit issued or renewed by the division for emergency stationary engines for military facilities or facilities under the control of the United States department of defense.

(6) (a) No later than September 1, 2025, the governor or the governor's designee shall submit this section to the administrator for inclusion in Colorado's state implementation plan.

(b) This section will take effect only if the administrator approves this section's inclusion in the state implementation plan. The division shall notify the revisor of statutes in writing of the date on which the condition specified in this subsection (6)(b) has occurred by emailing the notice to revisorofstatutes.ga@coleg.gov. This section takes effect on the effective date identified in the notice that the administrator approved this section's inclusion in Colorado's state implementation plan or, if the notice does not specify that date, upon the date of the notice to the revisor of statutes.

(7) If the administrator fails to approve inclusion of this section into Colorado's state implementation plan by September 1, 2027:

(a) This section is repealed, effective October 1, 2027; and

(b) The governor or the governor's designee shall withdraw this section as a state implementation plan revision.

Source: L. 2022: Entire section added, (HB 22-1372), ch. 316, p. 2251, � 2, effective June 2. L. 2025: (6)(a), IP(7), and (7)(a) amended, (SB 25-254), ch. 328, p. 1708, � 2, effective May 31.

Editor's note: Subsection (6)(b) provides that this section is effective if the administrator approves this section's inclusion in the state implementation plan and the division notifies the revisor of statutes. This section takes effect on the date identified in the notice or, if the notice does not specify that date, on the date of the notice to the revisor of statutes. As of publication date, the revisor of statutes has not received the notice referred to in subsection (6)(b).

25-7-144. Tampering with motor vehicle emission control systems - violations - exceptions - rules - reporting - definitions. (1) On or after January 1, 2024, except as provided otherwise in this section, a person shall not:

(a) Tamper with any emission control system;

(b) Sell, offer for sale, or possess for sale to an end user; advertise; manufacture; install; or use any part or component that is intended for use with, or as part of, any motor vehicle if the primary effect of using the part or component with the motor vehicle is to bypass, defeat, or render inoperative, in whole or in part, the emission control system; or

(c) Except with respect to a motor vehicle sold at wholesale or for which the associated ownership document is a salvage certificate of title, a nonrepairable title, or, if issued by another state, a similar document:

(I) Sell, lease, or rent a motor vehicle with an emission control system that has been tampered with;

(II) Offer to sell, lease, or rent a motor vehicle with an emission control system that has been tampered with; or

(III) Transfer or offer to transfer title to, or the right to possess, a motor vehicle with an emission control system that has been tampered with.

(2) (a) Except as provided in subsection (2)(b) of this section, on or after January 1, 2024, a person shall not operate a motor vehicle with an emission control system that has been tampered with if:

(I) The motor vehicle or its engine has been granted a certificate of conformity under the federal act as meeting the federal environmental protection agency's motor vehicle emission standards or, under 42 U.S.C. sec. 7507, also known as section 177 of the federal act, California's motor vehicle emission standards; and

(II) The person knew or, through the exercise of reasonable care, should have known that the emission control system was tampered with.

(b) A person does not operate a motor vehicle in violation of this subsection (2) if another person tampered with the emission control system in relation to, or after committing, theft of the motor vehicle, and the person operating the motor vehicle is neither a complicitor of nor an accessory to the theft.

(c) If a complaint alleging a violation of this subsection (2) is filed against a person who has already been found to have violated this subsection (2) on a previous occasion, the person is strictly liable, and evidence demonstrating the mental state required in subsection (2)(a)(II) of this section need not be shown to prove a subsequent violation.

(3) The following activities constitute separate offenses under this section:

(a) Selling, offering for sale, or possessing for sale to an end user; advertising; manufacturing; installing; or using a part or component of a motor vehicle in violation of subsection (1)(b) of this section; and

(b) Selling, leasing, or renting a motor vehicle; offering to sell, lease, or rent a motor vehicle; or transferring or offering to transfer a title or a right to possess a motor vehicle in violation of subsection (1)(c) of this section.

(4) A person does not violate subsection (1)(b) or (1)(c) of this section if the person engages in the conduct for the purpose of:

(a) Having the motor vehicle's emission control system, or an element or device of an emission control system, repaired, replaced, removed for repair, or removed for replacement to bring the motor vehicle in compliance with emission control standards under the federal act or state law; or

(b) Dismantling a motor vehicle for parts to be sold for repair or replacement purposes.

(5) (a) On and after July 1, 2025, a person is not subject to penalties or an enforcement action for a violation of this section with respect to any motor vehicle for which the person self-reports to the division that the person is not in compliance with this section. If a complaint has been filed against the person with respect to one or more motor vehicles, the person is not subject to penalties or an enforcement action for a violation of this section with respect to any additional motor vehicles for which the person self-reports that the person is not in compliance with this section.

(b) The commission may determine by rule the form, manner, and substance of information required for self-reporting under this subsection (5).

(c) Notwithstanding subsection (5)(a) of this section, if a person self-reports pursuant to this subsection (5) that the person is not in compliance with this section with respect to a motor vehicle, but the person does not become compliant with this section within twelve months after the date of self-reporting with regard to the motor vehicle:

(I) The person is subject to penalties or an enforcement action for a violation of this section with respect to that motor vehicle; and

(II) A certification of emissions control required pursuant to section 42-4-310 shall not be issued until the motor vehicle is brought into compliance with the standards described in subsection (2)(a)(I) of this section.

(d) Nothing in this subsection (5) prevents a directive to repair issued pursuant to this section from requiring compliance with the standards described in subsection (2)(a)(I) of this section.

(6) The commission may adopt rules as necessary to implement this section.

(7) (a) On or before January 1, 2025, and on or before January 1 of each year thereafter, the department of public health and environment may:

(I) Prepare an annual report summarizing the complaints filed pursuant to this section and any enforcement actions taken and penalty amounts assessed pursuant to section 25-7-122 (1)(j); and

(II) Submit the report to the house of representatives energy and environment committee and the senate transportation and energy committee, or their successor committees.

(b) Notwithstanding section 24-1-136 (11)(a)(I), the reporting authorization set forth in subsection (7)(a) of this section continues indefinitely.

(8) As used in this section, unless the context otherwise requires:

(a) (I) Emission control system means a device or element of design that:

(A) The original manufacturer installs on or in a motor vehicle or a motor vehicle engine; and

(B) Is certified to comply with emission control standards under the federal act or state law.

(II) Emission control system includes a catalytic converter and all components required to operate selective catalytic reduction as part of a diesel emissions control system.

(b) Manufacturer means any person that manufactures or assembles new and unused motor vehicles of a type required to be registered pursuant to section 42-3-103.

(c) Motorcycle means an autocycle or a motor vehicle that uses handlebars or any other device connected to the front wheel to steer and that is designed to travel on not more than three wheels in contact with the ground; except that the term does not include a farm tractor, low-speed electric vehicle, or low-power scooter.

(d) Motor vehicle has the meaning set forth in section 42-1-102 (58); except that the term does not include a motorcycle.

(e) Tamper means to deactivate, dismantle, defeat, bypass, alter, modify, remove, or otherwise render inoperable, in whole or in part, mechanical or electrical parts or components of an emission control system.

Source: L. 2022: Entire section added, (SB 22-179), ch. 485, p. 3523, � 5, August 10.

25-7-145. Legislative interim committee on ozone air quality - created - members - repeal. (Repealed)

Source: L. 2023: Entire section added, (HB 23-1294), ch. 401, p. 2404, � 2, effective June 6.

Editor's note: Subsection (9) provided for the repeal of this section, effective July 1, 2024. (See L. 2023, p. 2404.)

25-7-146. Petroleum refinery pollution - assessment - monitoring data - rules - definitions. (1) (a) On or before January 1, 2025, the division shall hire an expert regarding air pollution control regulations for petroleum refineries. The petroleum refinery regulation expert shall:

(I) Assess the feasibility, costs, and benefits for the division to propose to the commission a rule establishing a petroleum refinery control regulation; and

(II) Assess other regulatory and nonregulatory measures.

(b) As part of the assessments required pursuant to subsection (1)(a) of this section, the petroleum refinery regulation expert shall:

(I) Evaluate the impact that petroleum refineries have on air quality in the state, including an evaluation of criteria air pollutants listed pursuant to the federal act and hazardous air pollutants;

(II) Investigate the regulatory framework governing petroleum refineries in other states and at the federal level;

(III) Identify best practices and technologies for minimizing emissions from petroleum refineries; and

(IV) Determine actions needed to reduce emissions, including the potential for developing a specific petroleum refinery rule. If the division deems it appropriate, the division shall propose a rule specifically based on the expert's assessment on or before July 1, 2026.

(c) Notwithstanding the timeline set forth in subsection (1)(b)(IV) of this section and notwithstanding any existing authority that the commission has under the law, the commission may adopt, and the division may propose, a rule establishing a petroleum refinery control regulation at any time.

(2) (a) On and after January 1, 2025, a petroleum refinery in the state shall disseminate to the division, in real time through an application programming interface, push data gathered through:

(I) Continuous emission monitoring systems and continuous monitoring systems required under state or federal law;

(II) Fenceline monitoring systems as required under section 25-7-141 (5);

(III) Community-based monitoring required under section 25-7-141 (6); and

(IV) Compliance with a state-issued compliance order.

(b) The data disseminated to the division pursuant to subsection (2)(a) of this section must be provided through the push in a one-minute averaged resolution.

(3) (a) On or before December 31, 2024, a petroleum refinery shall install and operate at least six community-based monitoring systems to monitor, at a minimum, for:

(I) Benzene;

(II) Toluene;

(III) Ethylbenzene;

(IV) Xylene;

(V) Carbon monoxide;

(VI) Nitrogen dioxide;

(VII) PM2.5;

(VIII) Hydrogen sulfide;

(IX) Sulfur dioxide;

(X) Total volatile organic compounds;

(XI) Temperature;

(XII) Relative humidity;

(XIII) Wind speed; and

(XIV) Wind direction.

(b) The community-based monitoring systems installed and operated pursuant to this subsection (3) must be installed, certified, and operated in accordance with a plan developed by the division.

(4) As used in this section, unless the context otherwise requires:

(a) Application programming interface means a set of rules, protocols, and tools that:

(I) Enable the interaction and communication between software applications;

(II) Serve as an intermediary that facilitates the exchange of data, requests, and commands between distinct software systems, allowing the distinct software systems to work together seamlessly; and

(III) Enable the development of interconnected and interoperable applications.

(b) Community-based monitoring has the meaning set forth in section 25-7-141 (2)(a).

(I) Required to meet the data acquisition and availability requirements set forth in a construction permit or a renewable operating permit or as set forth in federal law; and

(II) That is used to sample; condition, if applicable; analyze; and provide a record of emissions on a continuous basis.

(d) Continuous monitoring system means a set of instruments and equipment that is designed to continuously measure and record various parameters that may affect emissions of air pollutants in real time and is required under a construction permit, a renewable operating permit, or federal law.

(e) Fenceline monitoring has the meaning set forth in section 25-7-141 (2)(e).

(f) Petroleum refinery means a stationary source covered by the North American industry classification system code 324110, as established by the federal office of management and budget.

(g) PM2.5 means particulate matter with a diameter of less than two and one-half micrometers.

(h) Push means, in the context of an application programming interface, a mechanism by which a server or data source proactively sends information or updates to the division without the division explicitly requesting the information.

(i) Real time means the instantaneous or near-instantaneous provision of data, without a delay of more than fifteen minutes, to ensure that data is conveyed promptly and without undue latency.

Source: L. 2024: Entire section added, (HB 24-1338), ch. 259, p. 1716, � 4, effective May 28.