2021 Colorado Code
Title 25 - Public Health and Environment
Article 7 - Air Quality Control
Part 1 - Air Quality Control Program
§ 25-7-109. Commission to Promulgate Emission Control Regulations

1. 1. Except as provided in sections 25-7-130 and 25-7-131, as promptly as possible, the commission shall adopt, promulgate, and from time to time modify or repeal emission control regulations which require the use of effective practical air pollution controls:
      1. For each significant source or category of significant sources of air pollutants;
      2. For each type of facility, process, or activity which produces or might produce significant emissions of air pollutants.

   2. The requirements and prohibitions contained in such regulations shall be set forth with as much specificity and clarity as is practical. Upon adoption of an emission control regulation under subparagraph (II) of paragraph (a) of this subsection (1) for the control of a specific facility, process, or activity, such regulation shall apply to the exclusion of other emission control regulations adopted pursuant to subparagraph (I) of paragraph (a) of this subsection (1); prior to such adoption, the general regulations adopted pursuant to subparagraph (I) of paragraph (a) of this subsection (1) shall be applicable to such facility, process, or activity. In the formulation of each emission control regulation, the commission shall take into consideration the following:
      1. The state policy regarding air pollution, as set forth in section 25-7-102;
      2. Federal recommendations and requirements;
      3. The degree to which altitude, topography, climate, or meteorology in certain portions of the state require that emission control regulations be more or less stringent than in other portions of the state;
      4. The degree to which any particular type of emission is subject to treatment, and the availability, technical feasibility, and economic reasonableness of control techniques;
      5. The extent to which the emission to be controlled is significant;
      6. The continuous, intermittent, or seasonal nature of the emission to be controlled;
      7. The economic, environmental, and energy costs of compliance with such emission control regulation;
      8. Whether an emission control regulation should be applied throughout the entire state or only within specified areas or zones of the state, and whether it should be applied only when a specified class or type of pollution is concerned.

2. Such emission control regulations may include, but shall not be limited to, regulations pertaining to:
   1. Visible pollutants;
   2. Particulates;
   3. Sulfur oxides, sulfuric acids, hydrogen sulfide, nitrogen oxides, carbon oxides, hydrocarbons, fluorides, and any other chemical substance;
   4. Odors, except for livestock feeding operations that are not housed commercial swine feeding operations as defined in section 25-8-501.1 (2)(b);
   5. Open burning activity;
   6. Organic solvents;
   7. Photochemical substances;
   8. Hazardous air pollutants.

3. Emission control regulations adopted pursuant to this section shall include, but shall not be limited to, regulations pertaining to the following facilities, processes, and activities:
   1. Incinerator and incinerator design;
   2. Storage and transfer of petroleum products and any other volatile organic compounds;
   3. Activities which frequently result in particulate matter becoming airborne, such as construction and demolition operations;
   4. Specifications, prohibitions, and requirements pertaining to fuels and fuel additives, such as tetraethyl lead;
   5. Wigwam waste burners, pulp mills, alfalfa dehydrators, asphalt plants, and any other industrial or commercial activity which tends to emit air pollutants as a by-product;
   6. Industrial process equipment;
   7. Industrial spraying operations;
   8. Airplanes;
   9. Diesel-powered machines, vehicles, engines, and equipment;
   10. Storage and transfer of volatile compounds and hazardous or toxic gases or other hazardous substances which may become airborne.

4. The commission shall promulgate appropriate regulations pertaining to hazardous air pollutants.
5. The commission shall promulgate appropriate regulations setting conditions and time limitations for periods of start-up, shutdown, or malfunction or other conditions which justify temporary relief from controls. Operations of any air pollution source during periods of start-up, shutdown, and malfunction shall not constitute representative conditions for the purpose of a performance or compliance test.
6. The commission shall establish test methods and procedures for determining compliance with emission control regulations promulgated under this section and, in so doing, shall, to the maximum degree consistent with the purposes of this article, consider the test methods and procedures established by the United States environmental protection agency and shall adopt such test methods and procedures as shall minimize the possibility of inconsistency or duplication of effort.
7. All regulations promulgated pursuant to this section shall conform with the provisions of part 5 of this article concerning asbestos control.
8. 1. Notwithstanding any other provision of this section, the commission shall not regulate emissions from agricultural, horticultural, or floricultural production such as farming, seasonal crop drying, animal feeding operations that are not housed commercial swine feeding operations as defined in section 25-8-501.1 (2)(b), and pesticide application; except that the commission shall regulate such emissions if they are “major stationary sources”, as that term is defined in 42 U.S.C. sec. 7602 (j), or are required by Part C (prevention of significant deterioration), Part D (nonattainment), or Title V (minimum elements of a permit program), or are participating in the early reduction program of section 112 of the federal act, or is not required by section 111 of the federal act, or is not required for sources to be excluded as a major source under this article.
   2. Nothing in paragraph (a) of this subsection (8), 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.

9. 1. The commission shall adopt a procedure consistent with the federal environmental protection agency requirements for determining when there has been a net significant emissions increase which results in a major modification that subjects a source to the permitting requirements of the prevention of significant deterioration program or the nonattainment area new source review. The commission's procedure shall also prohibit sources from circumventing the new source review requirements in a manner consistent with the federal environmental protection agency guidance. Such procedure shall be the same for both the prevention of significant deterioration program and the nonattainment area new source review program and shall not apply to hazardous air pollutants. Such net emissions increase procedure shall be as described in paragraph (b) of this subsection (9), unless and until the federal environmental protection agency requires otherwise or unless after January 1, 1998, the commission:
      1. Undertakes a collaborative process with the affected industries to determine the cost and emission impacts associated with any proposed changes in this procedure;
      2. Reviews at least three years of emissions increases and decreases under the procedures described in paragraph (b) of this subsection (9);
      3. Delivers reports on the matters required in subparagraphs (I) and (II) of this paragraph (a) to the general assembly for its review;
      4. Determines through rule-making that an applicability procedure for major modifications more stringent than that described in paragraph (b) of this subsection (9) is equitable when considering minor, area, and mobile source controls; and
      5. Determines through rule-making that such more stringent applicability procedure is necessary to attain and to maintain the national ambient air quality standards.

   2. The procedure for determining when there has been a net significant emissions increase shall be consistent with requirements of the federal environmental protection agency and:
      1. Such requirements shall apply only if there is, in the first instance, a significant emissions increase from an individual proposed project or modification. If the individual proposed project or modification will not result in a significant emissions increase, it shall be exempt from the prevention of significant deterioration program and the nonattainment area new source review requirements.
      2. If a project or modification is not exempt under subparagraph (I) of this paragraph (b), each pollutant for which the project results in a significant emissions increase shall be subject to the prevention of significant deterioration program or the nonattainment area new source review requirements only if the sum of all source-wide, non-de minimis, contemporaneous, and creditable emissions increases and decreases of that pollutant or that regulated precursor exceed applicable significance levels. Each specific regulated precursor shall be considered independently in determining applicable significance levels.
      3. In determining the non-de minimis net emissions increase during the contemporaneous period, the commission's procedures shall be consistent with the federal environmental protection agency's review procedure for determining net emissions increases and decreases. Non-de minimis increases shall exclude all increases which would be exempt under commission rules from a requirement to obtain a construction permit under section 25-7-114.2.

10. 1. The commission shall adopt rules to minimize emissions of methane and other hydrocarbons, volatile organic compounds, and oxides of nitrogen from oil and natural gas exploration and production facilities and natural gas facilities in the processing, gathering and boosting, storage, and transmission segments of the natural gas supply chain.
    2. 1. The commission shall review its rules for oil and natural gas well production facilities and compressor stations and specifically consider adopting more stringent provisions, including: (b) (I) The commission shall review its rules for oil and natural gas well production facilities and compressor stations and specifically consider adopting more stringent provisions, including:
          1. A requirement that leak detection and repair inspections occur at all well production facilities on, at a minimum, a semiannual basis or that an alternative approved instrument monitoring method is in place pursuant to existing rules;
          2. A requirement that owners and operators of oil and gas transmission pipelines and compressor stations must inspect and maintain all equipment and pipelines on a regular basis;
          3. A requirement that oil and natural gas operators must install and operate continuous methane emissions monitors at facilities with large emissions potential, at multi-well facilities, and at facilities in close proximity to occupied dwellings; and
          4. A requirement to reduce emissions from pneumatic devices. The commission shall consider requiring oil and gas operators, under appropriate circumstances, to use pneumatic devices that do not vent natural gas.

       2. The commission may, by rule, phase in the requirement to comply with this subsection (10)(b) on the bases of production capability, type and age of oil and gas facility, and commercial availability of continuous monitoring equipment. If the commission phases in the requirement to comply with this subsection (10)(b), it shall increase the required frequency of inspections at facilities that are subject to the phase-in until the facilities achieve continuous emission monitoring.

    3. Notwithstanding the grant of authority to the oil and gas conservation commission in article 60 of title 34, including specifically section 34-60-105 (1), the commission may regulate air pollution from oil and gas facilities listed in subsection (10)(a) of this section, including during preproduction activities, drilling, and completion.

History. Source: L. 79: Entire article R&RE, p. 1025, § 1, effective June 20. L. 87: (7) added, p. 1151, § 3, effective July 1. L. 92: (2)(h) amended and (8) added, p. 1177, § 12, effective July 1. L. 94: (9) added, p. 1418, § 1, effective May 25. Initiated 98: (2)(d) and (8) amended, effective upon proclamation of the Governor, December 30, 1998. L. 2005: (8) amended, p. 348, § 4, effective August 8. L. 2019: (10) added,(SB 19-181), ch. 120, p. 502, § 3, effective April 16.

Subsections (2)(d) and (8) were amended by an initiated measure that was adopted by the people at the general election held November 3, 1998. The measure amending subsections (2)(d) and (8) was effective upon proclamation of the Governor, December 30, 1998. The vote count on the measure at the general election held November 3, 1998, was as follows:

FOR: u:780 790,852

AGAINST: u:780 438,873

Law reviews. For comment, “Pre-Enforcement Judicial Review: CF&I Steel Corp. v. Colo. Air Pollution Control Commission”, see 58 Den. L.J. 693 (1981).

Factors to be considered in promulgation. Commission-promulgated regulations may and sometimes must be formulated with regard to the various factors which either constitute, produce, or dispel air pollution: e.g., classifying different types and degrees of air pollution; promulgating regulations applicable to either a part or the whole of the state; describing maximum concentrations of contaminants that can be tolerated depending on variations in altitude, topography, climate, or meteorology; taking into consideration the degree to which any particular type of emission is subject to treatment; and considering the continuous, intermittent, or seasonal nature of the emission to be controlled. Lloyd A. Fry Roofing Co. v. State, 179 Colo. 223 , 499 P.2d 1176 (1972).

Where an electrical generating unit has the same industrial grouping as two other units located on contiguous property and all three units are operated by the same entity, there was no error in concluding that the unit is not a separate source. Therefore, increased emissions from the unit should be considered in conjunction with reduced emissions from the other two units, and the source-wide emission increases did not exceed the applicable significance levels. Citizens for Clean Air & Water v. Colo. Dept. of Pub. Health & Env't, 181 P.3d 393 (Colo. App. 2008).

Applied in CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199 Colo. 270 , 610 P.2d 85 (1980).