5 CCR 1001-2-V Statements of Basis, Specific Statutory Authority and Purpose

• Library: Colorado Administrative Code
• Edition: 2023
• Currency: Current through Register Vol. 46, No. 24, December 25, 2023
• Citation: 5 CCR 1001-2-V
• Year: 2023

V.A. Adopted December 14, 1978- Definitions

Rationale and Justification for Revisions to the Common Provisions Regulation

The principal reason for revising the Common Provisions Regulation is the need for the addition of certain definitions required by the revisions of the other regulations. Opportunity was taken at the same time to revise some definitions in an effort to add clarity. Few changes were made in I., even though some questions were raised regarding I.D.- Intent.

Consideration was given to the suggestions of the Division and the Parties to the hearing with respect to the definitions. In some instances, the original definitions were retained; in others, they were modified. For example:

(1) the original definition of "air contaminant" was retained; the Union Oil suggestion was far less precise;

(2) the Public Service Company definition of "air contaminant source- new source," replaces the original version;

(3) for "steel production cycle," the CF&I version was adopted. Generally, the Commission worked through the original definitions and the various suggestions for change and finally adopted those versions they concluded were best in terms of clarity and intent Considerable attention was paid to the definition of "modification" and a version selected which would encourage existing sources within the state to install new pollution control equipment even though a slight increase in emissions of sulfur dioxide would result if these increases (a) occurred in a sulfur dioxide attainment area, and (b) if the existing source sulfur dioxide standard would be met. The notification period prior to performance testing was shortened to 30 days with the provision the Division could waive this interval if it so decided. The CF&I request for exemption of sources emitting less than 100 tons per year from performance testing was rejected in that no means would exist to detect violations of the emission standard without such testing. Rationale and Justification Addition to Common Provisions Conflict of Interest The purpose of this regulatory addition is to set forth standards of conduct as it relates to conflict of interest in the course of operation of both the Colorado Air Pollution Control Commission and the Colorado Air Pollution Variance Board. This regulation essentially establishes in written form that which has been the practice of the Commission and the Variance Board during the course of hearings conducted by the respective bodies. This regulation will also bring Colorado into compliance with Section 128 of the Clean Air Act, which requires that "any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed." The Clean Air Act also provides that a state may adopt requirements respecting conflicts of interest for such boards or bodies, which are more restrictive than the requirements of the Act. The Commission believes this regulation satisfies both the requirements of the Federal Act and the State Administrative Procedures Act as well as setting forth expected standards of conduct.

V.B. Adopted June 5, 1980 - Abbreviations and Definitions

Rationale and Justification for the Repeal And Repromulgation of Regulation Number 3 and Common Provisions Regulation as Related to Regulation Number 3

On December 14, 1978, the Air Quality Control Commission revised Regulation Number 3 (concerning requirements for filing air pollution emission notices, obtaining emission permits, and payment of fees with respect to both) for the primary purpose of bringing Colorado's air pollutant emission permit program into conformity with the requirements of the Federal Clean Air Act Amendments of 1977 to the extent authorized by the then effective state statutory authority: "The Air Pollution Control Act of 1970," C.R.S. 1973 25undefined25-7-101 et seq. The regulation as revised in 1978 and which became effective January 30, 1979, was submitted to the U.S. EPA as a revision to the State Implementation Plan ("SIP") pursuant to Subsection 129(c) of the Federal Clean Air Act Amendments of 1977.

Since that submittal, the Colorado General Assembly has repealed and reenacted the state's basic air pollution control statute: Article 25undefined7 of Title 25undefined25, Colorado Revised Statutes, 1973, The new article, known as the "Colorado Air Quality Control Act" (designated House Bill 1109 in the 1979 Legislative session), became effective June 20, 1979, and largely brought the state statute into conformity with the Federal legislation mandating the Commission to develop a comprehensive air pollution control program meeting the requirements of the Federal Clean Air Act.

The primary purpose of this current revision of Regulation Number 3 is to implement the new provisions of HB 1109 and to further bring the permit aspects of the Colorado air pollution control program into compliance with the requirements of the Federal Clean Air Act.

Revisions also respond to the requirements set forth in the October 5, 1979 Federal Register notice which conditionally approved portions of the Colorado SIP and set forth certain requirements for securing their unconditional approval. E.g., see Section IV.D.2.a.(iv) of revised Regulation Number 3 which incorporates the requirements of Section 172(b)(11)(A) of the Clean Air Act. 44 Fed. Reg. 57401, 57408 (1979).

The Commission has made an effort to formulate a permit program meeting the requirement of and paralleling of the provisions of EPA policies and rules to the extent authorized by House Bill 1109 and to the extent deemed appropriate by the Commission for Colorado's particular circumstances. This has been done in order to meet certain specific requirements expressly set forth in the Federal Clean Air Act, to meet certain specific requirements EPA has determined are required for compliance with the Federal Act, and to avoid subjecting sources of air pollution in Colorado to differing State and Federal requirements. The Commission considered the assurance of reasonable further progress toward attainment of National Ambient Air Quality Standards as the primary underlying criterion in developing permit requirements for sources located in or near nonattainment areas.

Consideration has also been given to the opinion of the United States Court of Appeals for the District of Columbia in the case of Alabama Power Company v. Costle ___ F.2d __ D.C. Cir (1979).

APENs

In order to reduce the administrative burden on both the Air Pollution Control Division ("the Division") and owners and operators of air pollution sources, the filing of revised air pollution emission notices for the purpose of reporting significant changes in emissions will be required only on an annual basis, rather than whenever a significant change in emissions occurs In making this revision, the Commission relied on the representations of the Division that annual reporting would be sufficient for purposes of keeping the emissions inventory current.

Street Sanding

With the exception of street sanding (and indirect sources), the exemptions provided in the revised regulation from the APEN-filing and emission permit requirements are for minor or insignificant sources of emissions.

Although not finding that particulate emissions resulting from the application and reentrainment of "sand" applied to snow or ice covered roadways as a traffic safety measure are insignificant, the Commission has exempted sanding from the APEN-filing and permit requirements out of administrative necessity.

Little benefit can be obtained from the filing of APENs in light of the fact that the amount of emissions cannot be predicted with any reasonable accuracy due to varying factors such as weather. APENs would therefore serve little purpose as notices of expected emissions.

It is the judgment of the Commission that protection of persons and property by sanding snow and ice covered roadways is an overriding consideration and that the costs of not taking such safety measures would far outweigh any air quality benefits resulting from requiring permits for sanding. Sanding should not therefore be prohibited - even without a permit. The only reason for imposing a permit requirement would be to facilitate enforcement of control measures to limit emissions which the Commission believes may be accomplished without a permit requirement through emission control regulations and provisions in local elements of the State Implementation Plan.

Major Sources, Major Modifications, and the "Bubble" Concept

The Commission has retained requirements that new "major sources" locating in nonattainment areas and "major modifications" to existing sources in nonattainment areas meet special requirements (Offsets, LAER, etc.) designed to allow the continued development in such areas without interfering with reasonable further progress toward attainment of National Ambient Air Quality Standards. The criteria for determining when a new source or modification to an existing source is "major" however, have been extensively revised.

Prior to the U.S. Court of Appeals Decision in Alabama Power...