CO Code § 25-7-109.3 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 7 - Air Quality Control|Part 1 - Air Quality Control Program|§ 25-7-109.3. Colorado Hazardous Air Pollutant Control and Reduction Program - Rules

  The commission shall promulgate appropriate regulations pertaining to hazardous air pollutants as defined in section 25-7-103 (13) which are consistent with this section and the requirements of and emission standards promulgated pursuant to section 112 of the federal act, including any standard required to be imposed under section 112(r) of the federal act. The commission shall monitor the progress and results of the risk studies performed under section 112 of the federal act to show that Colorado's hazardous air pollutant control and reduction program is consistent with the national strategy.    Except as provided in section 25-7-114.4 (5), the commission may only promulgate rules pertaining to hazardous air pollutants as defined in section 25-7-103 (13) in accordance with this section. In order to minimize additional regulatory and compliance costs to the state's economy, any program created by the commission pursuant to this section must contain a provision that exempts those sources or categories of sources that it determines to be of minor significance from the requirements of the program. Consistent with the provisions of section 25-7-105.1, the commission shall authorize synthetic minor sources of hazardous air pollutants by the issuance of construction permits or prohibitory or other rules. Such permits or rules must only be as stringent as necessary to establish synthetic minor status. The commission shall expeditiously implement this subsection (2) to assure that all sources may be able to timely qualify as a synthetic minor source, thereby avoiding the costs of the operating permit program.        As soon as adequate scientific, technological, and hazardous air pollutant emissions information is available, the commission may promulgate regulations for the control of hazardous air pollutants utilizing Colorado GACT or Colorado MACT technology-based emission reduction requirements, as defined in section 25-7-103 (6.7) and (6.8). (a) (I)As soon as adequate scientific, technological, and hazardous air pollutant emissions information is available, the commission may promulgate regulations for the control of hazardous air pollutants utilizing Colorado GACT or Colorado MACT technology-based emission reduction requirements, as defined in section 25-7-103 (6.7) and (6.8).    The division may establish schedules of compliance of up to five years leading to final compliance for any such regulation, which shall be enforced through regulations or conditions in construction permits issued pursuant to section 25-7-114.2 or 25-7-114.5. In determining any schedule of compliance, the division shall consider the current availability of technology, costs of compliance, and the consequence of delay to the public health or environment or economy.    The division shall issue its determination of Colorado GACT or Colorado MACT and the compliance schedule in writing.    Within thirty calendar days after receipt of a determination by the division requiring installation of Colorado GACT or Colorado MACT and the compliance schedule, pursuant to this subsection (3), a source may appeal such a determination or compliance schedule by filing with the commission a written petition requesting a hearing to review the determination on a de novo basis.    Such hearing shall allow the parties to present evidence and argument on all issues and to conduct cross-examination required for full disclosure of the facts and shall otherwise be conducted in accordance with section 25-7-119.       This section shall only apply to sources emitting a hazardous air pollutant identified in the list established or amended pursuant to subsection (5) of this section which:   Are not included in categories or subcategories of sources listed or proposed to be listed by the environmental protection agency under section 112 of the federal act and thus will not be required to comply with GACT or MACT under the federal act, as defined in section 25-7-103 (12.1) and (16.5); or    Are included in categories or subcategories of sources listed or proposed to be listed under section 112 of the federal act and which have:   Levels of emissions of hazardous air pollutants listed under section 112 (b) of the federal act which are below thresholds established under the federal act and thus will not be required to comply with GACT and MACT under the federal act and as defined in section 25-7-103 (12.1) and (16.5); except that this section shall not apply to a source included in a category or subcategory for which a lesser quantity emission rate has been proposed or adopted under section 112 of the federal act; or    Hazardous air pollutant emissions above a threshold level of the substance listed under subparagraph (II) of paragraph (a) and paragraph (b) of subsection (5) of this section.  (b.1) The commission may recognize similarities among regulated sources or apply, when appropriate, previous control requirements established by the commission in making a determination about the need for such regulation under this subsection (3). The commission shall also consider fundamentally different factors between sources in making these determinations.           The commission shall designate by regulation those classes of minor or insignificant sources of emissions of hazardous air pollutants which are exempt from the requirements of this section because their emissions of hazardous air pollutants will result in an inconsequential risk to public health.      A source subject to the requirements of this section may be exempt from installation of Colorado MACT or Colorado GACT or any Colorado health-based requirement if the division makes a determination that an alternative level of control, including no emission controls, will result in an inconsequential risk to public health. (d) (I) A source subject to the requirements of this section may be exempt from installation of Colorado MACT or Colorado GACT or any Colorado health-based requirement if the division makes a determination that an alternative level of control, including no emission controls, will result in an inconsequential risk to public health.    The division shall issue its determination of a source's request for exemption under this paragraph (d) in writing within sixty days of receipt of a complete application for an exemption and shall publish notice of its determination by at least one publication in a newspaper of general distribution in the area of the source requesting the exemption.    Within thirty calendar days after receipt of a determination by the division of a request for exemption by a source under this paragraph (d), the source or any person may appeal such determination by filing with the commission a written petition requesting a hearing to review the exemption request on a de novo basis.    Such hearing shall allow the parties to present evidence and argument on all issues and to conduct cross-examination required for full disclosure of the facts and shall otherwise be conducted in accordance with section 25-7-119.       Any source as defined in section 112(i) of the federal act, and regulations promulgated thereunder, that participates in the early reduction program pursuant to section 112(i) of the federal act, or this article, shall be exempt from the requirements of this section for the same period of time exemptions from federal requirements or requirements under this article are allowed under the early reduction program.    This section shall not apply to sources subject to national emission standards for hazardous air pollutants (NESHAP) established by the administrator pursuant to the federal act, but only for those emissions for which a NESHAP is established.    This section shall not impose requirements on sources included in categories or subcategories of sources which are listed in section 112(n) of the federal act which are inconsistent with the timing of studies or assessments conducted under or definitions set forth in section 112(n) of the federal act.           On or after the risk-based studies required under sections 112(k)(3), 112(o), and 112(f) of the federal act are completed and received by the commission, the commission may adopt regulations pertaining to those sources identified as emitting hazardous air pollutants regulated under this section which may include additional emission reduction requirements to address any residual risk of health effects with respect to actual persons living in the vicinity of sources after installation of technology-based controls. Imposition of such requirements may be made upon a determination by the commission that operation of sources without health-based controls does not or will not represent an inconsequential threat to public health. Regulations as finally adopted pursuant to this subsection (4) may apply on a source-specific basis. (a) (I)On or after the risk-based studies required under sections 112(k)(3), 112(o), and 112(f) of the federal act are completed and received by the commission, the commission may adopt regulations pertaining to those sources identified as emitting hazardous air pollutants regulated under this section which may include additional emission reduction requirements to address any residual risk of health effects with respect to actual persons living in the vicinity of sources after installation of technology-based controls. Imposition of such requirements may be made upon a determination by the commission that operation of sources without health-based controls does not or will not represent an inconsequential threat to public health. Regulations as finally adopted pursuant to this subsection (4) may apply on a source-specific basis.    Repealed.       Repealed.    Subject to paragraph (a) of this subsection (4), for existing sources not subject to regulation under section 25-7-114.3, or not subject to regulation as a modified source, the commission may promulgate health-based regulations on a source-by-source basis, with the exceptions specified in paragraph (d) of this subsection (4).    The commission may recognize similarities among regulated sources or apply, when appropriate, previous control requirements established by the commission pursuant to paragraph (a) of this subsection (4) in making a determination about the need for such regulation under this subsection (4). The commission shall also consider fundamentally different factors between sources in making these determinations.    The commission may establish schedules of compliance leading to final compliance for any regulation promulgated pursuant to this subsection (4).    A hearing conducted by the commission under this subsection (4) shall be conducted in accordance with section 25-7-110 or 25-7-119 or article 4 of title 24, C.R.S., as applicable.    In reaching a determination under this subsection (4), the commission shall give consideration to the technical availability of methods of compliance, the costs of compliance, and the consequences of delay. The commission shall also consider cost-benefit analysis and risk-benefit analysis pursuant to section 24-4-103 (4.5), C.R.S.    Temporary exceptional authority.   (A) This subparagraph (I) shall apply until such time as the commission is authorized to act pursuant to paragraph (a) of this subsection (4). If the executive director of the department of public health and environment finds that a source in a category or subcategory of sources listed or proposed to be listed under section 112 of the federal act for which MACT or GACT is not scheduled for proposal until after 1997 and presents an unacceptable threat of actual health effects, then the executive director may direct the commission to evaluate and, as necessary, study such actual health effects. If the commission finds by a preponderance of the evidence that waiting until the source would be required to install GACT or MACT under section 112 of the federal act will cause an unacceptable incremental threat of actual health effects to persons living in the vicinity of such source, the commission may promulgate regulations for the control of hazardous air pollutants for the source. The control regulations may include the least restrictive control that will adequately protect the public, including but not limited to: Chemical substitution, pollution prevention, work process modifications, additional control technologies, or Colorado MACT or GACT. In promulgating Colorado GACT or MACT for the source, the commission shall consider and be as consistent as possible with GACT or MACT under section 112 of the federal act, minimization of duplicative capital expenditures and minimization of substantial reconstruction time. The commission shall provide a schedule of compliance leading to final compliance which considers matters identified in paragraphs (c), (e), (f), and (g) of this subsection (4).    Until such time as the commission is authorized to act pursuant to paragraph (a) of this subsection (4) and upon the recommendation of the executive director of the department of public health and environment, the governor may find, as expressed in an executive order, that after an existing source has installed Colorado or federal MACT or GACT, or Colorado MACT or GACT has been proposed for a new source or a modification of an existing source, the source presents an unacceptable threat of actual health effects. The governor may then direct the commission to evaluate and, as necessary, conduct studies on actual health effects. If the commission determines by a preponderance of the evidence that emissions of hazardous air pollutants by the source will cause an unacceptable threat of actual health effects to persons living in the vicinity of such source, the commission may then promulgate additional technology-based control regulations, pollution prevention, or health-based measures to protect the public health. The commission shall provide a schedule of compliance leading to final compliance which considers matters identified in paragraphs (c), (e), (f), and (g) of this subsection (4).    This paragraph (h) shall remain effective only until such time as the commission acts pursuant to its authority under paragraph (a) of this subsection (4).            The substances listed in or pursuant to section 112(b) of the federal act, and the following substances, are declared to be hazardous air pollutants and are subject to regulation by the commission under this section:    The commission may promulgate a regulation which amends by adding to, or deleting from, the list of hazardous air pollutants subject to regulation under this section within the state which are not listed as hazardous air pollutants under the federal act. In amending the list of hazardous air pollutants in paragraph (a) of this subsection (5), the commission shall utilize the same standards and criteria which section 112 of the federal act requires the administrator to utilize in amending the list of hazardous air pollutants under the federal act.    The commission shall by regulation establish de minimis emission levels for each hazardous air pollutant beneath which levels emissions are considered to be of minor significance.    The rule-making authorized under paragraphs (b) and (c) of this subsection (5) shall include a hearing to allow the parties to present evidence and argument on all issues and to conduct cross-examination required for full disclosure of the facts and shall otherwise be conducted in accordance with section 25-7-119.    Proceedings of the commission to amend the list of hazardous air pollutants under paragraph (b) of this subsection (5) shall be conducted on a substance-by-substance basis and there shall not be a consolidation of proceedings wherein more than five substances are considered for listing as a hazardous air pollutant in one proceeding.        History. Source: L. 92: Entire section added, p. 1180, § 13, effective July 1. L. 94: (2) amended, p. 1419, § 2, effective May 25; (4)(h)(I)(A) and (4)(h)(II) amended, p. 2782, § 499, effective July 1. L. 96: (1) amended, p. 1257, § 150, effective August 7. L. 2016: (3)(b.1), (3)(d)(III), (4)(d), (4)(h)(I)(A), (4)(h)(II), and (5)(b) amended and (4)(a)(II) and (4)(b) repealed,(SB 16-189), ch. 210, p. 771, § 64, effective June 6. L. 2021: (2) amended,(HB 21-1266), ch. 411, p. 2748, § 15, 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 1994 act amending subsections (4)(h)(I)(A) and (4)(h)(II), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 1996 act amending this section, 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.     ANNOTATION   Law reviews. For article, “Colorado's New Clean Air Program”, see 22 Colo. Law. 541 (1993).