CO Code § 25-7-114.7 (2021)
2021 Colorado Code|Title 25 - Public Health and Environment|Article 7 - Air Quality Control|Part 1 - Air Quality Control Program|§ 25-7-114.7. Emission Fees - Fund - Rules - Definition - Repeal

  As used in this section, unless the context otherwise requires:   Indirect and direct costs include, but are not limited to:   Reviewing and acting upon any application for such a permit;    Implementing and enforcing the terms and conditions of any permit or rule, not including court costs or other legal costs associated with any enforcement action;    Emissions and ambient monitoring;    Preparing generally applicable regulations or guidance;    Modeling, analyses, and demonstrations;    Preparing inventories and tracking emissions; and    Establishing and administering a small business stationary source technical and environmental compliance program, pursuant to section 25-7-109.2.         “Regulated pollutant” means: (b) (I) “Regulated pollutant” means:   A volatile organic compound;    Each pollutant regulated under section 25-7-109 or section 111 of the federal act;    Each pollutant regulated under section 112 (b) of the federal act;    Each pollutant for which a national primary ambient air quality standard has been promulgated, except for carbon monoxide.       The term “regulated pollutant”, for the purpose of assessing fees, shall not include fugitive dust or any fraction thereof.              Except as specified in subsection (2)(a)(VII) of this section, the commission shall designate by rule those classes of sources of air pollution that are exempt from the requirement to pay an annual emission fee. Every owner or operator of an air pollution source not otherwise exempt in accordance with such commission rules shall pay an annual fee as follows: (a) (I)Except as specified in subsection (2)(a)(VII) of this section, the commission shall designate by rule those classes of sources of air pollution that are exempt from the requirement to pay an annual emission fee. Every owner or operator of an air pollution source not otherwise exempt in accordance with such commission rules shall pay an annual fee as follows:   For state fiscal year 2020-21, the fee is thirty-two dollars per ton of regulated pollutant reported in the most recent air pollution emission notice on file with the division. For state fiscal year 2021-22, the fee is thirty-six dollars per ton of regulated pollutant reported in the most recent air pollution emission notice on file with the division. Thereafter, the commission may adjust the fee by rule to cover the indirect and direct costs required to develop and administer the programs established pursuant to this article 7. (A.5) A late payment fee. Such fee shall be assessed at the rate of one percent per month for accounts more than sixty days past due; except that no late payment fee may be assessed during a period in which an account is under administrative review by the division in order to respond to a reasonable request by the owner or operator of a source for allocation of the fees among multiple sources or to resolve a good-faith claim by the owner or operator of a source that there has been an error in calculation of the amount of fees due. At the end of the administrative review, the division shall inform the owner or operator of the source in writing of any findings.    For state fiscal year 2020-21, in addition to the annual fee set forth in subsection (2)(a)(I)(A) of this section, for hazardous air pollutants, including ozone-depleting compounds, an annual fee of two hundred sixteen dollars per ton. For state fiscal year 2021-22, in addition to the annual fee set forth in subsection (2)(a)(I)(A) of this section, for hazardous air pollutants, including ozone-depleting compounds, there is an annual fee of two hundred thirty-nine dollars per ton. Thereafter, the commission may adjust the fee by rule to cover the indirect and direct costs required to develop and administer the programs established pursuant to this article 7.    Every local air pollution control authority that adopts any air pollution resolution or ordinance that is more stringent than corresponding state provisions shall pay for the state's enforcement costs.       In no event shall an owner or operator of a major source pay more than a fee based upon total annual emissions of four thousand tons of each regulated pollutant per source.    Every owner or operator subject to the requirements to pay fees set forth in subsection (2)(a)(I) of this section shall also pay a processing fee for the costs of processing any application other than an air pollution emission notice under this article 7. Every significant user of prescribed fire, including federal facilities, submitting a planning document to the commission pursuant to section 25-7-106 (8)(b) shall pay a fee for costs of evaluating the documents. For state fiscal year 2020-21, the division shall assess a fee for work it performs, up to a maximum of thirty hours at a rate of one hundred eight dollars and twelve cents per hour. For state fiscal year 2021-22, the division shall assess a fee for work it performs, up to a maximum of thirty hours at a rate of one hundred nineteen dollars per hour. Thereafter, the commission may adjust the fee by rule to cover the indirect and direct costs required to develop and administer the programs established pursuant to this article 7. If the division requires more than thirty hours to process the application or evaluate the prescribed fire-related planning documents, the division shall provide the stationary source with an estimate of what the actual charges may be before working more than thirty hours.    and    Repealed.    Notwithstanding subparagraph (III) of this paragraph (a), the division shall not assess a fee for work performed to negotiate a voluntary agreement under part 12 of this article above a maximum of one hundred hours at a rate of fifty-nine dollars and ninety-eight cents per hour unless the owner or operator proposing the voluntary agreement consents to a greater fee in writing.    The commission shall establish, by rule, a fee per ton of greenhouse gas, in the form of carbon dioxide equivalent, that was reported in the most recent air pollutant emission notice on file with the division in an amount that is sufficient to cover the indirect and direct costs required to develop and administer the programs established pursuant to this article 7 that pertain to emissions of greenhouse gas. The commission may set thresholds of reported greenhouse gas below which no such fee shall be assessed. No more frequently than annually, the commission may adjust the fee for greenhouse gas by rule to cover the indirect and direct costs required to develop and administer the programs established pursuant to this article 7 that pertain to emissions of greenhouse gas.         The moneys collected pursuant to this section shall be remitted to the state treasurer, who shall credit the same to the stationary sources control fund, which fund is hereby created. From such fund, the general assembly shall appropriate to the department of public health and environment, at least annually, such moneys as may be necessary to cover the division's direct and indirect costs required to develop and administer the programs established pursuant to parts 1 to 4 and 10 of this article for the control of air pollution from stationary sources. Any permit fee moneys not appropriated by the general assembly and any appropriated funds not spent by the division shall remain in the stationary sources control fund and shall not revert to the general fund of the state at the end of any fiscal year. Any such moneys shall be separately accounted for. All interest earned on moneys in the stationary sources control fund shall remain in the fund and shall not revert to the general fund or to any other fund. (b) (I) The moneys collected pursuant to this section shall be remitted to the state treasurer, who shall credit the same to the stationary sources control fund, which fund is hereby created. From such fund, the general assembly shall appropriate to the department of public health and environment, at least annually, such moneys as may be necessary to cover the division's direct and indirect costs required to develop and administer the programs established pursuant to parts 1 to 4 and 10 of this article for the control of air pollution from stationary sources. Any permit fee moneys not appropriated by the general assembly and any appropriated funds not spent by the division shall remain in the stationary sources control fund and shall not revert to the general fund of the state at the end of any fiscal year. Any such moneys shall be separately accounted for. All interest earned on moneys in the stationary sources control fund shall remain in the fund and shall not revert to the general fund or to any other fund.    Of the portion of fee revenue attributable to the increases enacted during the first regular session of the sixty-third general assembly, the department shall allocate one hundred fifty thousand dollars per year for the purpose of modernizing and maintaining the computer system used for the administration of the stationary source program so as to make the overall system more efficient, and seventy thousand dollars for the purpose of enhancing county and district public health agency participation in air quality control activities. The department may reallocate moneys between these two purposes as reasonably necessary so long as the total amount devoted to such purposes remains at two hundred twenty thousand dollars annually.    The division shall expend the portion of the fee revenue collected pursuant to subsections (2)(a)(I)(A), (2)(a)(I)(B), (2)(a)(III), and (2)(a)(VII) of this section and section 25-7-114.1 (6)(a) attributable to the increases authorized in 2020 by Senate Bill 20-204 and in 2021 by House Bill 21-1266 for the following purposes:   Ensuring that requirements imposed by rules to minimize emissions are included in permits and complied with;    Deploying more resources to find, and cause oil and gas operators to repair, leaks and releases of hydrocarbons such as benzene that contribute to ozone nonattainment and human health risks;    Increasing compliance by stationary sources with all applicable air quality requirements;    Increasing the number of inspections and enforcement actions taken by the division;    Expanding the division's capacity to conduct monitoring of stationary source emissions;    Developing new emission control strategies;    Expanding the division's capacity to quickly respond to and better understand public health issues that are related to exposure to air toxics, such as benzene and other volatile organic compounds;    Improving the division's complaint management systems as they relate to air quality and associated health impacts;    Enabling outreach to and engagement of disproportionately impacted communities; and       The division shall report annually regarding how the fees authorized by this section have been utilized, what related efficiency and process improvements have been made, and a projection of short-term and long-term capital operating expenditures. Before making any fee adjustment after fiscal year 2021-22 that is authorized by section 25-7-114.1 (6)(a) or subsection (2)(a)(I)(A), (2)(a)(I)(B), or (2)(a)(III) of this section, the division shall report annually about how existing fees have been utilized and engage in a stakeholder process with impacted stationary sources. The division shall initiate this stakeholder process at least six months before any rule that increases fees becomes effective unless emergency rule-making pursuant to section 24-4-103 is necessary. The stakeholder process must involve discussion of:   Ongoing efficiency improvement projects and progress toward completion of those projects, including database improvements and replacing the existing air pollution emission notice process with an improved emission inventory process; and    The justification and necessity of additional fee increases, including an outline of where increases in fees will be utilized moving forward.          The general assembly by bill may annually adjust the fees established in this section and in section 25-7-114.1 as necessary to cover the reasonable costs, both direct and indirect, of the stationary source program and to assure that adequate personnel and funding will be available to administer the permit program.    No permit will be issued if the administrator objects to its issuance in a timely manner under this title.    Repealed.    Notwithstanding the amount specified for any fee in this subsection (2), the commission by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the commission by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.      The division shall prioritize its use of the revenues generated by the fee increases authorized by the general assembly in 2018 to reduce permit processing times for all categories of permits through increased efficiencies and information system improvements that are identified through the stakeholder process identified in subsection (2)(g)(II) of this section. (g) (I) The division shall prioritize its use of the revenues generated by the fee increases authorized by the general assembly in 2018 to reduce permit processing times for all categories of permits through increased efficiencies and information system improvements that are identified through the stakeholder process identified in subsection (2)(g)(II) of this section.    Before September 1, 2018, the division shall convene a stakeholder group consisting of affected industries to:   Identify and assess measures to improve billing practices and increase accounting transparency with respect to application processing fees, including providing more detail on the application review process and the time spent on the process; and    Assess potential efficiency improvements, including associated metrics to measure the division's performance, with respect to division activities financed by the stationary sources control fund.       Beginning in 2019, the division shall present during the legislative session the results of the stakeholder process required by subsection (2)(g)(II) of this section, including improved billing practices, increased accounting transparency, implemented efficiency improvements, and efficiency metrics, to the house of representatives health, insurance, and environment committee and the senate health and human services committee, or any successor committees.    Subsections (2)(g)(II) and (2)(g)(III) of this section and this subsection (2)(g)(IV) are repealed, effective September 1, 2023.       With regard to the changes made in 2021 by House Bill 21-1266:   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       The changes add to, but do not otherwise alter, the air quality control commission's authority and obligation to publish and promulgate rules pursuant to sections 25-7-102 (2)(g), 25-7-105, and 25-7-140.           (J) Paying for the environmental justice ombudsperson created in section 25-1-134 .    History. Source: L. 92: Entire section added, p. 1214, § 18, effective July 1. L. 93: IP(2)(a)(I), (2)(a)(I)(A), and (2)(b) amended, p. 941, § 3, effective May 28. L. 94: (2)(a)(I)(A), (2)(b), and (2)(c) amended and (2)(a)(I)(A.5) and (2)(a)(IV) added, pp. 1390, 1392, §§ 2, 3, effective May 25; (2)(b) amended, p. 2783, § 501, effective July 1. L. 96: (1)(b)(II) amended, p. 1309, § 1, effective June 1; (2)(b) amended, p. 1451, § 2, effective June 1; (2)(a)(I)(A) and (2)(a)(IV) amended and (2)(a)(V) added, p. 846, § 3, effective July 1; (2)(e) repealed, p. 1259, § 155, effective August 7. L. 97: (1)(a)(VII) amended, p. 527, § 9, effective July 1. L. 98: (2)(f) added, p. 1335, § 49, effective June 1; (2)(a)(VI) added, p. 1050, § 2, effective July 1. L. 99: (2)(a)(III) amended, p. 790, § 2, effective May 24. L. 2001: (2)(a)(I)(A), (2)(a)(I)(B), (2)(a)(III), (2)(a)(VI), (2)(b), and (2)(c) amended, p. 642, § 3, effective May 30; (2)(a)(III) amended, p. 1185, § 2, effective July 1. L. 2008: IP(2)(a)(I), (2)(a)(I)(A), (2)(a)(I)(B), and (2)(a)(III) amended, p. 883, § 3, effective May 20. L. 2010: (2)(b)(II) amended,(HB 10-1422), ch. 419, p. 2103, § 117, effective August 11. L. 2018: (2)(a)(I)(A), (2)(a)(I)(B), and (2)(a)(III) amended and (2)(g) added,(HB 18-1400), ch. 218, p. 1394, § 3, effective May 18. L. 2020: (2)(a)(I)(A), (2)(a)(I)(B), and (2)(a)(III) amended and (2)(b)(III) and (2)(b)(IV) added,(SB 20-204), ch. 192, p. 892, § 5, effective July 1. L. 2021: (1)(a)(II), IP(2)(a)(I), IP(2)(b)(III), and (2)(b)(III)(G) amended and (2)(a)(VII), (2)(b)(III)(I), (2)(b)(III)(J), and (2)(h) added,(HB 21-1266), ch. 411, p. 2734, § 10, effective July 2.    Editor's note:    Amendments to subsection (2)(b) by Senate Bill 94-217 and House Bill 94-1029 were harmonized.    Subsection (2)(a)(IV)(C) and (2)(a)(V)(B) provided for the repeal of subsection (2)(a)(IV) and (2)(a)(V), respectively, effective July 1, 1997. (SeeL. 96, p. 846.)    Amendments to subsection (2)(a)(III) by Senate Bill 01-214 and House Bill 01-1326 were harmonized.    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 subsection (2)(b), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 1996 act repealing subsection (2)(e), see section 1 of chapter 237, Session Laws of Colorado 1996. For the legislative declaration in HB 18-1400, see section 1 of chapter 218, Session Laws of Colorado 2018.    For the short title (“Clean Up Colorado's Air Act”) in SB 20-204, see section 1 of chapter 192, Session Laws of Colorado 2020.    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.