CO Code § 25-7-114.5 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 7 - Air Quality Control|Part 1 - Air Quality Control Program|§ 25-7-114.5. Application Review - Public Participation

  Prior to submitting an application for a permit, the applicant may request and, if so requested, the division shall grant a planning meeting with the applicant. At such meeting, the division shall advise the applicant of the applicable permit requirements, including the information, plans, specifications, and data required to be furnished with the permit application.    The division shall evaluate permit applications to determine, for construction permits, whether operation of the proposed new source at the date of start-up and for operating permits, whether the permitted emissions, will comply with all applicable emission control regulations, regulations for the control of hazardous pollutants, and requirements of part 2 or 3 of this article.    The division shall also determine whether applications are for a new source activity that may have an impact upon areas which, as of the projected new source start-up date, are in compliance with national ambient air quality standards as of the date of the permit application, or for new source activity that may have an impact upon areas which, as of the projected new source start-up date, are not in compliance with national ambient air quality standards as of the date of the permit application.    The division shall prepare its preliminary analysis regarding compliance, as set forth in subsection (2) of this section, and regarding the impact on attainment or nonattainment areas, as set forth in subsection (3) of this section, as expeditiously as possible. For construction permits not subject to part 2 of this article, such preliminary analysis shall be completed no later than sixty calendar days after receipt of a completed permit application. Applicants must be advised within sixty calendar days after receipt of any application, or supplement thereto, if and in what respects the subject application is incomplete. Upon failure of the division to so notify the applicant within sixty calendar days of its filing, the application shall be deemed complete. Applications for construction permits subject to part 2 of this article shall be approved or disapproved within twelve months of receipt of a complete application. Applications for renewable operating permits shall be approved or disapproved within eighteen months after the receipt of the completed permit application; except that those applications submitted within the first year after the effective date of the operating permit program shall be subject to a phased schedule for acting on such permit applications established by the division. The phased schedule shall assure that at least one-third of such permits will be acted on by the division annually over a three-year period. The commission may establish a phased schedule for acting on applications for which a deferral has been granted pursuant to the federal act. A timely and complete permit application operates as a defense to enforcement action for operating without a permit for the period of time during which the division or the commission is reviewing the application and until such time as the division or the commission makes a final determination on the permit application; except that this defense to an enforcement action shall not be available to an applicant which files a fraudulent application.    For those types of projects or activities for which a construction permit application has been filed, defined, or designated by the commission as warranting public comment with respect thereto, the division shall, within fifteen calendar days after it has prepared its preliminary analysis, give public notice of the proposed project or activity by at least one publication in a newspaper of general distribution in the area in which the proposed project or activity, or a part thereof, is to be located or by such other method that is reasonably designed to ensure effective general public notice. The division shall also during such period of time maintain in the office of the county clerk and recorder of the county in which the proposed project or activity, or a part thereof, is located a copy of its preliminary analysis and a copy of the application with all accompanying data for public inspection. The division shall receive and consider public comment thereon for a period of thirty calendar days thereafter.      For any construction permit application subject to the requirements of a new or modified major source in a nonattainment area, or for prevention of significant deterioration as provided in part 2 of this article, or for any application for a renewable operating permit, within fifteen calendar days after the issuance of its preliminary analysis, the division shall:   Forward to the applicant written notice of the applicant's right to a formal hearing before the commission with respect to the application; and    Give public notice of the proposed source or modification and the division's preliminary analysis thereof by at least one publication in a newspaper of general distribution in the area of the proposed source or modification, or by such other method that is reasonably designed to ensure effective general public notice. Such notice shall advise of the opportunity for a public hearing for interested persons to appear and submit written or oral comments to the commission on the air quality impacts of the source or modification, the alternatives to the source or modification, the control technology required, if applicable, and other appropriate considerations. Any such notice shall be printed prominently in at least ten-point bold-faced type. The division shall receive and consider any comments submitted.       If within thirty calendar days of publication of such public notice the applicant or an interested person submits a written request for a public hearing to the division, the division shall transmit such request to the commission along with the application, the division's preliminary analysis, and any written comments received by the division, within five calendar days of the end of such thirty-day period. The commission shall, within sixty calendar days after receipt of the application, comments, and analysis, unless such greater time is agreed to by the applicant and the division, hold a public hearing to elicit and record the comment of any interested person regarding the sufficiency of the preliminary analysis and whether the permit application should be approved or denied. At least thirty calendar days prior to such public hearing, notice thereof shall be mailed by the commission to the applicant, printed in a newspaper of general distribution in the area of the proposed source or modification, and submitted for public review with the county clerk and recorder of the county wherein the project or activity is proposed.         Within thirty calendar days following the completion of the division's preliminary analysis for applications for construction permits not subject to part 2 of this article, or within thirty calendar days following the period for public comment provided for in subsection (5) of this section, or for applications for construction permits subject to part 2 of this article and for renewable operating permits, if a hearing is held, within the appropriate time period established pursuant to this article, the division or the commission, as the case may be, shall grant or deny the permit application. Any permit required pursuant to this article shall be granted by the division or the commission, as the case may be, if it finds that:   The source or activity will meet all applicable emission control regulations and regulations for the control of hazardous air pollutants;    The source or activity will meet the requirements of part 2 or 3 of this article, if applicable;    For construction permits, the source or activity will meet any applicable ambient air quality standards and all applicable regulations;  (III.5) For renewable operating permits, the source or activity will meet all applicable regulations; and     For renewable operating permits, the United States environmental protection agency has not made a timely objection to issuance of such permit pursuant to the federal act.       Failure of the division or commission, as the case may be, to grant or deny the permit application or permit renewal application within the time prescribed shall be treated as a final permit action for purposes of obtaining judicial review in the district court in which the source is located, to require that action be taken on such application by the commission or division, as appropriate, without additional delay.    If an applicant has submitted a timely and complete application for a renewable operating permit required by this article, including renewals, but final action has not been taken on such application, and, if required to have a construction permit, such construction permit is in place and valid, the source's failure to have a renewable operating permit shall not be a violation of this article, unless the delay in final action was due to the failure of the applicant to timely submit information required or requested by the division to process the application.       If the division denies a permit or imposes conditions upon the issuance of a permit which are contested by the applicant or if the division revokes a permit pursuant to subsection (12) of this section, the applicant may request a hearing before the commission. The hearing shall be held in accordance with sections 25-7-119 and 24-4-105, C.R.S. The commission may, after review of the evidence presented at the hearing, affirm, reverse, or modify the decision of the division but shall, in any event, assure that all the requirements of subsections (6) and (7) of this section are met.    Renewable operating permits shall summarize existing operating restrictions pursuant to section 25-7-114.4 (3).    A permit amendment will not be required to authorize a change in practice which is otherwise permitted pursuant to this article, the state implementation plan, or the federal act merely because an existing permit does not address the practice. Changes in industrial practices and procedures that are not inconsistent with the terms of a renewable operating permit can be made without seeking any change to the terms of said permit.    An order of the division or commission shall be final upon issuance. Any participant in the public comment process and any other person who could obtain judicial review under applicable law shall have standing for purposes of seeking review of any final order of the commission or division regarding applications, renewals, or revisions of any permits. The public participation requirements of subsections (5) and (6) of this section shall apply to all renewable operating permit applications, revisions, and renewals.      A permitted entity shall notify the division within fifteen days after the commencement of any activity for which a construction permit has been issued. Within one hundred eighty days after commencement of operation for which a construction permit has been issued, the source shall demonstrate to the division compliance with the terms and conditions of the construction permit or the division may, pursuant to rules that are adopted by the commission based upon the results of the study conducted under section 25-7-114.7 (2)(a)(V), inspect the project or activity to determine whether or not the terms and conditions of the construction permit have been properly satisfied. At the end of one hundred eighty days after the commencement of operation, the division must:   Revoke the construction permit; or    Continue the construction permit, if applicable; or    Notify the owner or operator that the source has demonstrated compliance with the construction permit.       For those sources subject to the renewable operating permit program, a renewable operating permit will be issued within the appropriate time periods if all requirements for a renewable operating permit are met by the source. The construction permit requirements shall remain in effect until the renewable operating permit is issued. (12.5)     Except for sources involved in agricultural, horticultural, or floricultural production such as farming, seasonal crop drying, animal feeding, or pesticide application, upon determination by the division that the criteria set forth in subsection (12.5)(b) of this section applies to a source that is not required to obtain a renewable operating permit, the division may reopen such construction permit for the purpose of imposing any or all of the following additional terms and conditions: (a) (I)Except for sources involved in agricultural, horticultural, or floricultural production such as farming, seasonal crop drying, animal feeding, or pesticide application, upon determination by the division that the criteria set forth in subsection (12.5)(b) of this section applies to a source that is not required to obtain a renewable operating permit, the division may reopen such construction permit for the purpose of imposing any or all of the following additional terms and conditions:   Enhanced record-keeping requirements;    Enhanced emissions and ambient monitoring requirements;    Operating and maintenance requirements;    Emission control requirements pursuant to section 25-7-109.3; and    Additional monitoring requirements for sources affecting disproportionately impacted communities.       Any such condition which is contested by the permittee may be reviewed by the commission in accordance with the provisions of subsection (7) of this section.       With the exception of those sources involved in agricultural, horticultural, or floricultural production such as farming, seasonal crop drying, animal feeding, and pesticide application, a source's construction permit may be reopened for cause for the purposes of subsection (12.5)(a) of this section only upon a determination by the division that the location of the source is significant in terms of its proximity to residential or business areas or a disproportionately impacted community, and one or more of the following criteria apply to the permitted source:   The control equipment utilized by the source requires an unusually high degree of maintenance or operational sensitivity when compared to control equipment in general;    The design characteristics of the source require an unusually high degree of maintenance or operational sensitivity when compared to the design characteristics of all sources in general;    The application of the control equipment utilized is unique or untested;    The operational variability of the source may impact the effectiveness of the controls;    The emissions from the source will threaten public health, as determined pursuant to section 25-7-109.3; or    The emissions from the source will affect a disproportionately impacted community.       Nothing in paragraph (a) or (b) of this subsection (12.5), as amended by House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general assembly, shall be construed as changing the property tax classification of property owned by a horticultural or floricultural operation.          The commission shall, wherever practicable, promulgate regulations for renewable operating permit application requirements that combine requirements for construction permits with renewable operating permits to avoid duplicative efforts by the source and the division.    (Deleted by amendment, L. 2010, (HB 10-1042), ch. 209, p. 909, § 3, effective September 1, 2010.)    Repealed.      If the division experiences a backlog in processing air quality permit applications caused by an occasional need that is seasonal, irregular, or fluctuating in nature, and the department determines or reasonably expects that, as a result, permits would not be issued within statutory time frames, the division shall make available to sources that are not subject to permitting under part C of the federal act the option to have the air quality modeling that is submitted with the applicant's air permit application reviewed for acceptance as demonstrating compliance by a contract consultant selected by the division in lieu of the review being conducted by division staff.    The division shall select and contract with nongovernmental air quality modeling engineers to perform air quality modeling reviews of applicants who choose contract consultant review of their air quality permit modeling. The division is not subject to the requirements of the “Procurement Code”, articles 101 to 112 of title 24, C.R.S., in selecting and contracting with the consultants. The division shall review and exclude from consideration as a contract air quality modeling consultant any contractors with a conflict of interest regarding air quality permit applications. Applicants that choose consultant review of their air quality modeling are responsible for both the consultant's costs associated with the air modeling review as well as the division's costs associated with the review and determination of the air permit application, to be paid to the division. The division shall transfer the money to the state treasurer, who shall credit it to the stationary sources control fund created in section 25-7-114.7 (2)(b)(I).    The division shall use the results of the modeling conducted pursuant to paragraph (b) of this subsection (16) for purposes of the division's permit application analysis.        History. Source: L. 92: Entire section added, p. 1207, § 18, effective July 1. L. 93: (7)(a) amended, p. 1923, § 4, effective July 1. L. 96: IP(12)(a) amended, p. 845, § 2, effective July 1; (15) repealed, p. 1258, § 154, effective August 7. L. 2005: IP(12.5)(a)(I) and IP(12.5)(b) amended and (12.5)(c) added, p. 349, § 5, effective August 8. L. 2010: (12)(a) and (14) amended,(HB 10-1042), ch. 209, p. 909, § 3, effective September 1. L. 2011: (16) added,(SB 11-235), ch. 307, p. 1507, § 1, effective June 9. L. 2021: IP(12.5)(a)(I), (12.5)(a)(I)(C), (12.5)(a)(I)(D), and (12.5)(b) amended and (12.5)(a)(I)(E) added,(HB 21-1266), ch. 411, p. 2733, § 9, 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 legislative declaration contained in the 1996 act repealing subsection (15), see section 1 of chapter 237, Session Laws of Colorado 1996.    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.