HOUSE BILL 23-1294
BY REPRESENTATIVE(S) Bacon and Willford, Amabile, Boesenecker,
Brown, deGruy Kennedy, Dick son, English, Epps, Garcia,
Gonzales-Gutierrez, Hamrick, Jodeh, Joseph, Kipp, Lindsay, Lindstedt,
Mabrey, Marshall, Michaelson Jenet, Ortiz, Parenti, Ricks, Sharbini, Story,
Valdez, Velasco, Woodrow, Froelich, Herod, Mauro, McCormick, Sirota,
Titone, Vigil, Snyder, Weissman;
also SENATOR(S) Winter F. and Gonzales, Bridges, Cutter, Danielson,
Exum, Hansen, Jaquez Lewis, Kolker, Priola, Fenberg.
C
ONCERNING MEASURES TO PROTECT COMMUNITIES FROM POLLUTION , AND,
IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. Legislative declaration. (1) The general assembly
finds that:
(a) All people have the right to breathe clean air, yet poor air quality
frequently puts public health at risk in communities across Colorado,
particularly in disproportionately impacted communities that are subjected
to adverse cumulative impacts from multiple pollution sources;
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. (b) In particular, Coloradans have long suffered from high levels of
ground-level ozone pollution, which is connected to severe health impacts
including respiratory problems, cardiovascular disease, adverse birth
outcomes, and premature death and poses a significant threat to vulnerable
populations including children, the elderly, people with respiratory ailments,
the outdoor workforce, and otherwise healthy individuals who recreate
outdoors;
(c) The threats posed by ozone pollution are even more devastating
for communities of color and low-income communities that bear outsized
environmental burdens due to past and present discriminatory
environmental policies, endure higher health risks from exposure,
experience systemic injustice, and have faced exclusion from government
decision-making and enforcement efforts;
(d) Although Colorado has an ongoing ozone crisis that will worsen
with climate change, the state has repeatedly failed to meet federal ozone
standards established to protect public health and welfare in the Denver
metro/North Front Range nonattainment area where a majority of
Coloradans live, which was downgraded to a severe nonattainment area in
2022 and has been consistently ranked among the worst areas in the nation
for ozone pollution by the American lung association;
(e) The federal "Clean Air Act" requires that Colorado have
enforceable procedures in place to assess the air quality impacts of new
sources and modifications and to prevent the construction of new sources
and modifications that would cause or contribute to a violation of federal
standards;
(f) "Minor" sources of pollution, including many oil and gas sources
that are among the largest contributors to ozone, can cause and contribute
to exceedances of federal standards and have a devastating cumulative
impact on already overburdened, disproportionately impacted communities,
yet they often escape air quality impact analyses in Colorado's permitting
processes;
(g) Impacted Coloradans across the state face significant barriers
and a lack of transparency when filing complaints and submitting evidence
of permit violations and action is necessary to ensure that agencies are
empowered to respond to complaints appropriately; and
PAGE 2-HOUSE BILL 23-1294 (h) Because industrial operations also support many jobs in
Colorado, impacts on workers associated with air quality control measures
should be considered.
(2) The general assembly determines that state action to reduce
pollution is necessary to achieve environmental justice, and the state can
and should act to lower ozone and precursor levels to address the serious
health impacts experienced by communities across Colorado, especially as
the impacts of the climate crisis intensify.
(3) Therefore the general assembly determines and declares that:
(a) State agencies have a duty and a responsibility to collaborate to
protect Coloradans from harmful pollution and to comply with federal
health-based standards, which are essential steps in achieving
environmental justice and health equity for all communities;
(b) Extraordinary air quality measures should be included in the
state implementation plan for ozone when the federal environmental
protection agency classifies a nonattainment area in the state as a serious,
severe, or extreme nonattainment area;
(c) It is imperative for members of the public to be meaningfully
engaged as partners and stakeholders in Colorado's permitting processes and
enforcement of permit violations once permits are issued; and
(d) This act is necessary to ensure that Colorado addresses the
disproportionate cumulative impacts of pollution, including environmental
and health impacts, that communities across the state experience.
SECTION 2. In Colorado Revised Statutes, add 25-7-145 as
follows:
25-7-145. Legislative interim committee on ozone air quality -
created - members - repeal. (1) N
OTWITHSTANDING SECTION 2-3-303.3,
THE LEGISLATIVE INTERIM COMMITTEE ON OZONE AIR QUALITY , REFERRED
TO IN THIS SECTION AS THE
"COMMITTEE", IS CREATED.
(2) T
HE PURPOSE OF THE COMMITTEE IS TO STUDY OZONE AIR
QUALITY IN THE STATE WITH A FOCUS ON
:
PAGE 3-HOUSE BILL 23-1294 (a) INVESTIGATING THE FACTORS THAT CONTRIBUTE TO OZONE
POLLUTION IN THE STATE
, INCLUDING ANY SCIENTIFIC CONSENSUS AROUND
THE ISSUE OF OZONE POLLUTION
;
(b) A
NALYZING STRATEGIES TO ADDRESS AND IMPROVE
GROUND
-LEVEL OZONE ISSUES; AND
(c) DEVELOPING POLICY, TECHNICAL, AND FINANCIAL SOLUTIONS TO
IMPROVE OZONE AIR QUALITY IN THE STATE
.
(3) T
HE COMMITTEE CONSISTS OF:
(a) S
IX MEMBERS OF THE SENATE, WITH FOUR MEMBERS APPOINTED
BY THE PRESIDENT OF THE SENATE AND TWO MEMBERS APPOINTED BY THE
MINORITY LEADER OF THE SENATE
; AND
(b) SIX MEMBERS OF THE HOUSE OF REPRESENTATIVES , WITH FOUR
MEMBERS APPOINTED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
AND TWO MEMBERS APPOINTED BY THE MINORITY LEADER OF THE HOUSE OF
REPRESENTATIVES
.
(4) T
HE APPOINTING AUTHORITIES SHALL APPOINT THE MEMBERS OF
THE COMMITTEE NO LATER THAN
JUNE 30, 2023. IF A VACANCY ARISES ON
THE COMMITTEE
, THE APPOINTING AUTHORITY SHALL APPOINT A MEMBER TO
FILL THE VACANCY AS SOON AS POSSIBLE
.
(5) T
HE SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL
DESIGNATE THE CHAIR OF THE COMMITTEE
. IN THE CASE OF A TIE VOTE, THE
CHAIR OF THE COMMITTEE SHALL CA ST AN ADDITIONAL DECIDING VOTE
.
(6) T
HE CHAIR OF THE COMMITTEE SHALL SCHEDULE THE FIRST
MEETING OF THE COMMITTEE NO LATER THAN SIXTY DAYS AFTER
JUNE 30,
2023.
THE COMMITTEE MAY MEET UP TO SIX TIMES DURING THE 2023
INTERIM, WHICH MAY INCLUDE FIELD TRIPS.
(7) T
HE LEGISLATIVE COUNCIL AND THE OFFICE OF LEGISLATIVE
LEGAL SERVICES SHALL PROVIDE STAFF ASSISTANCE TO THE COMMITTEE
.
(8) T
HE COMMITTEE SHALL SEEK PRESENTATIONS AND COMMENTS
FROM AFFECTED INDUSTRIES
, WORKERS, LOCAL GOVERNMENTS, RELEVANT
PAGE 4-HOUSE BILL 23-1294 STATE AGENCIES, AND IMPACTED COMMUNITIES EXPERIENCING OZONE
POLLUTION
.
(9) T
HIS SECTION IS REPEALED, EFFECTIVE JULY 1, 2024.
SECTION 3. In Colorado Revised Statutes, 25-7-115, amend (2),
(3)(b), and (7)(b); and add (4)(a)(III) as follows:
25-7-115. Enforcement - civil actions - definitions. (2) (a) If a
written and verified
complaint is filed with the division alleging that, or if
the division itself has cause to believe that, any person is violating or failing
to comply with any regulation
RULE of the commission issued pursuant to
parts 1 to 4 of this article ARTICLE 7, order issued pursuant to section
25-7-118, requirement of the state implementation plan,
OR provision of
parts 1 to 4 of this article
ARTICLE 7, including any term or condition of a
permit required pursuant to this article ARTICLE 7, the division shall cause
a prompt
AND DILIGENT investigation to be made and,
UNLESS:
(I) T
HE COMPLAINT CLEARLY APPEARS ON ITS FACE TO BE
FRIVOLOUS
, FALSIFIED, OR TRIVIAL; OR
(II) THE COMPLAINANT WITHDRAWS THE COMPLAINT WITHIN THE
TIME ALLOTTED FOR THE COMPLAINT TO BE INVESTIGATED
.
(b) W
ITHIN THIRTY DAYS AFTER RECEIPT OF A COMPLAINT FILED
PURSUANT TO SUBSECTION
(2)(a) OF THIS SECTION, THE DIVISION SHALL
RESPOND TO A COMPLAINANT TO OUTLINE THE STEPS OF THE COMPLAINT
INVESTIGATION
.
(c) (I) If the division investigation determines that any such
violation or failure to comply exists, the division shall act expeditiously and
within the period prescribed by law in TO formally notifying NOTIFY the
owner or operator of such THE air pollution source after the discovery of the
alleged violation or noncompliance. Such THE notice shall MUST specify the
provision alleged to have been violated or not complied with and the facts
alleged to constitute the violation or noncompliance.
(II) I
F THE DIVISION IS ACTING IN RESPONSE TO A COMPLAINT , THE
DIVISION SHALL NOTIFY THE COMPLAINANT THAT AN INVESTIGATION HAS
COMMENCED AT THE TIME THAT THE DIVISION PROVIDES NOTICE TO THE
PAGE 5-HOUSE BILL 23-1294 OWNER OR OPERATOR OF THE AIR POLLUTION SOURCE PURSUANT TO
SUBSECTION
(2)(c)(I) OF THIS SECTION.
(d) T
HE DIVISION SHALL ACCEPT AND CONSIDER ALL RELE VANT
EVIDENCE IT RECEIVES OR ACQUIRES IN INVESTIGATING AND DETERMINING
WHETHER A VIOLATION OR NONCOMPLIANCE OCCURRED
, INCLUDING AUDIO,
VIDEO, AND TESTIMONIAL EVIDENCE, UNLESS THE EVIDENCE IS, ON ITS FACE,
FALSIFIED.
(3) (b) (I) If, after any such
THE conference PURSUANT TO
SUBSECTION
(3)(a) OF THIS SECTION, THE DIVISION DETERMINES THAT a
violation or noncompliance is determined to have
HAS occurred, the
division shall issue an order requiring the owner or operator or any other
responsible person to comply. unless the owner or operator demonstrates
that the violation occurred during a period of start-up, shutdown, or
malfunction and timely notice was given to the division of the condition.
(II) IF A COMPLAINT IS FILED PURSUANT TO SUBSECTION (2)(a) OF
THIS SECTION ALLEGING THE VIOLATION OR NONCOMPLIANCE
, THE DIVISION
SHALL SEND THE ORDER TO THE COMPLAINANT
.
(III) The order may:
(A) Include
THE termination, modification
ALTERATION, or
revocation and reissuance of the subject permit;
(B) I
NCLUDE the assessment of civil penalties in accordance with
section 25-7-122 and
SUBSECTION (3)(b)(IV) OF THIS SECTION;
(C) In addition to civil penalties,
INCLUDE a requirement to perform
one or more projects to mitigate violations related to excess emissions; The
order may also AND
(D) Require the calculation of a noncompliance penalty under
subsection (5) of this section.
(IV) I
N DETERMINING THE AMOUNT TO ASSESS FOR A CIVIL PENALTY
FOR A VIOLATION OR NONCOMPLIANCE
, THE DIVISION SHALL:
(A) C
ONSIDER THE FACTORS DESCRIBED IN SECTION 25-7-122 (2)(a);
PAGE 6-HOUSE BILL 23-1294 AND
(B) NOT ASSESS A PENALTY FOR A VIOLATION OR NONCOMPLIANCE
THAT IS LESS THAN THE ECONOMIC BENEFIT THAT THE OWNER OR OPERATOR
DERIVED FROM THE VIOLATION OR NONCOMPLIANCE
.
(V) Unless enforcement of its order has been stayed as provided in
subsection (4)(b) of this section, the division may seek enforcement,
IN THE
DISTRICT COURT FOR THE DISTRICT WHERE THE AFFECTED AIR POLLUTION
SOURCE IS LOCATED
, OF:
(A) Pursuant to section 25-7-121 or 25-7-122, of the
AN applicable
rule of the commission;
(B) A
N order issued pursuant to section 25-7-121 or 25-7-122 or the
applicable rule of the commission;
(C) A
N order issued pursuant to section 25-7-118;
(D) A requirement of the state implementation plan;
(E) A provision of this article 7; or
(F) T
HE terms or conditions of a permit required pursuant to this
article 7. in the district court for the district where the affected air pollution
source is located.
(VI) The court shall issue an appropriate order, which may include
a schedule for compliance by the owner or operator of the source.
(4) (a) (III) I
F A HEARING IS REQUESTED PURSUANT TO SUBSECTION
(4)(a)(I) OF THIS SECTION, THE COMMISSION SHALL PROVIDE AT LEAST
FORTY
-FIVE DAYS' NOTICE TO ANY COMPLAINANT THAT FILED A COMPLAINT
PURSUANT TO SUBSECTION
(2)(a) OF THIS SECTION ALLEGING A VIOLATION
OR NONCOMPLIANCE AT ISSUE IN THE HEARING
. THE COMPLAINANT MAY
PARTICIPATE AS A PARTY TO THE HEARING
.
(7) (b) The division may, after notice and opportunity for a public
hearing, exempt
THE OWNER OR OPERATOR OF any stationary source from
the duty to pay a noncompliance penalty pursuant to this section with
PAGE 7-HOUSE BILL 23-1294 respect to a particular instance of noncompliance if it finds that such THE
instance of noncompliance is inconsequential in nature and duration. Any
instance of noncompliance occurring during a period of start-up, shutdown,
or malfunction shall be deemed to be inconsequential. If a public hearing
is requested by an interested person, the request shall MUST be transmitted
to the commission within twenty calendar days of AFTER its receipt by the
division. The commission shall, within sixty calendar days of AFTER its
receipt of the request, hold a public hearing, with respect thereto and within
thirty calendar days of such AFTER THE hearing, issue its decision.
SECTION 4. In Colorado Revised Statutes, 25-7-122, amend (2)(a)
introductory portion, (2)(a)(VII), and (2)(a)(VIII); and add (2)(a)(IX) as
follows:
25-7-122. Civil penalties - rules - definitions. (2) (a) In
determining the amount of any civil penalty, the following factors DIVISION
shall be considered CONSIDER THE FOLLOWING FACTORS :
(VII) Malfeasance; and
(VIII) Whether legal and factual theories were advanced for
purposes of delay;
AND
(IX) THE SEVERITY OF THE VIOLATION OR NONCOMPLIANCE .
SECTION 5. In Colorado Revised Statutes, 25-7-123.1, amend (1)
as follows:
25-7-123.1. Statute of limitations - penalty assessment - criteria.
(1) (a) E
XCEPT WITH RESPECT TO ANY ACTION COMMENCED TO ADDRESS A
FAILURE TO OBTAIN A PERMIT REQUIRED BY THIS ARTICLE
7, any action
COMMENCED FOR THE ASSESSMENT OF CIVIL PENALTIES , pursuant to this
section
ARTICLE 7, THAT IS not commenced within five years of AFTER THE
occurrence of the alleged violation is time barred.
(b) Without expanding the statute of limitations contained in
paragraph (a) of this subsection (1) SUBSECTION (1)(a) OF THIS SECTION, any
action
COMMENCED, INCLUDING THE ASSESSMENT OF CIVIL PENALTIES ,
pursuant to this article
ARTICLE 7, except those commenced pursuant to
section 25-7-122 (1)(d) or 25-7-122.1 (1)(c), which THAT is not commenced
PAGE 8-HOUSE BILL 23-1294 within eighteen months of AFTER the date upon which the division discovers
the alleged violation is time barred. For purposes of this section, the
division discovers the alleged violation when it learns of the alleged
violation or should have learned of the alleged violation by the exercise of
reasonable diligence, including by receipt of actual or constructive notice.
(c) The five-year period of limitation contained
PERIODS OF
LIMITATION DESCRIBED
in this section does
DO not apply where THE
ALLEGED VIOLATOR KNOWINGLY OR WILLFULLY CONCEALS
information
regarding the alleged violation. is knowingly or willfully concealed by thealleged violator.
SECTION 6. In Colorado Revised Statutes, 34-60-106, add (11)(d)
as follows:
34-60-106. Additional powers of commission - rules - definitions
- repeal. (11) (d) (I) B
Y APRIL 28, 2024, THE COMMISSION SHALL
PROMULGATE RULES THAT EVALUATE AND ADDRESS THE CUMULATIVE
IMPACTS OF OIL AND GAS OPERATIONS
. THE RULES SHALL INCLUDE A
DEFINITION OF CUMULATIVE IMPACTS
.
(II) T
HE COMMISSION SHALL PROVIDE RESOURCES TO SUPPORT
COMMUNITY ENGAGEMENT IN THE PROCESS FROM AFFECTED COMMUNITIES
,
INCLUDING TRANSLATION, OUTREACH, AND OTHER STRATEGIES TO SUPPORT
PUBLIC PARTICIPATION
.
(III) I
N PROMULGATING THE DEFINITION OF CUMULATIVE IMPACTS BY
RULE PURSUANT TO SUBSECTION
(11)(d)(I) OF THIS SECTION, THE
COMMISSION SHALL REVIEW
, CONSIDER, AND INCLUDE ADDRESSABLE
IMPACTS TO CLIMATE
, PUBLIC HEALTH, THE ENVIRONMENT, AIR QUALITY,
WATER QUALITY, NOISE, ODOR, WILDLIFE, AND BIOLOGICAL RESOURCES, AND
TO DISPROPORTIONATELY IMPACTED COMMUNITIES
, AS DEFINED IN SECTION
24-4-109 (2)(b)(II).
(IV) A
S USED IN THIS SUBSECTION (11)(d), "IMPACTS TO CLIMATE"
MEANS QUANTIFICATION OF EMISSIONS OF GREENHOUSE GASES , AS DEFINED
IN SECTION
25-7-140 (6), THAT OCCUR FROM SOURCES THAT ARE
CONTROLLED OR OWNED BY THE OPERATOR AND REASONABLY FORESEEABLE
TRUCK TRAFFIC AT AN OIL AND GAS LOCATION
.
PAGE 9-HOUSE BILL 23-1294 SECTION 7. In Colorado Revised Statutes, 34-60-121, amend (4)
as follows:
34-60-121. Violations - investigations - penalties - rules -
definition - legislative declaration. (4) (a) A
NY PERSON MAY SUBMIT A
COMPLAINT TO THE COMMISSION ALLEGING THAT A VIOLATION OF THIS
ARTICLE
60, ANY RULE OR ORDER OF THE COMMISSION , OR ANY PERMIT HAS
OCCURRED
. IF A COMPLAINT IS RECEIVED BY THE COMMISSION , THE
COMMISSION OR THE DIRECTOR SHALL PROMPTLY COMMENCE AND
COMPLETE AN INVESTIGATION INTO THE VIOLATION ALLEGED BY THE
COMPLAINT UNLESS
:
(I) T
HE COMPLAINT CLEARLY APPEARS ON ITS FACE TO BE
FRIVOLOUS
, FALSIFIED, OR TRIVIAL; OR
(II) THE COMPLAINANT WITHDRAWS THE COMPLAINT .
(b) I
N INVESTIGATING A VIOLATION ALLEGED BY A COMPLAINT
RECEIVED PURSUANT TO SUBSECTION
(4)(a) OF THIS SECTION, THE
COMMISSION OR THE DIRECTOR SHALL ACCEPT AND CONSIDER ALL RELE VANT
EVIDENCE IT RECEIVES OR ACQUIRES
, INCLUDING AUDIO, VIDEO, OR
TESTIMONIAL EVIDENCE
, UNLESS THE EVIDENCE IS, ON ITS FACE, FALSIFIED.
(c) Whenever the commission or the director has reasonable cause
to believe a violation of any provision of this article
ARTICLE 60, any rule
regulation, or order of the commission, or any permit has occurred, written
notice shall be given INCLUDING BASED ON A WRITTEN COMPLAINT FROM
ANY PERSON
, THE COMMISSION OR THE DIRECTOR SHALL PROVIDE WRITTEN
NOTICE
to the operator whose act or omission allegedly resulted in such
THE
violation AND REQUIRE THAT THE OPERATOR REMEDY THE VIOLATION . The
notice shall MUST be served personally or by certified mail, return receipt
requested, to the operator or the operator's agent for service of process and
shall
MUST state the provision alleged to have been violated, the facts
alleged to constitute the violation, and any corrective action and abatement
deadlines the commission or director elects to require of the operator.
(d) A
S USED IN THIS SUBSECTION (4), "DIRECTOR" MEANS THE
DIRECTOR OF THE COMMISSION
.
SECTION 8. Appropriation. (1) For the 2023-24 state fiscal year,
PAGE 10-HOUSE BILL 23-1294 $79,493 is appropriated to the department of public health and environment
for use by the air pollution control division. This appropriation is from the
general fund. To implement this act, the division may use this appropriation
as follows:
(a) $71,473 for personal services related to stationary sources, which
amount is based on an assumption that the division will require an
additional 0.9 FTE; and
(b) $8,020 for operating expenses related to stationary sources.
(2) For the 2023-24 state fiscal year, $820,697 is appropriated to the
department of natural resources. This appropriation is from the oil and gas
conservation and environmental response fund created in section 34-60-122
(5), C.R.S. To implement this act, the department may use this
appropriation as follows:
(a) $725,531 for use by the oil and gas conservation commission for
program costs, which amount is based on an assumption that the
commission will require an additional 6.0 FTE; and
(b) $95,166 for use by the executive director's office for the
purchase of legal services.
(3) For the 2023-24 state fiscal year, $95,166 is appropriated to the
department of law. This appropriation is from reappropriated funds received
from the department of natural resources under subsection (2)(b) of this
section and is based on an assumption that the department of law will
require an additional 0.5 FTE. To implement this act, the department of law
may use this appropriation to provide legal services for the department of
natural resources.
(4) For the 2023-24 state fiscal year, $61,616 is appropriated to the
legislative department. This appropriation is from the general fund. To
implement this act, the department may use this appropriation as follows:
(a) $26,180 for use by the legislative council, which amount is based
on an assumption that the council will require an additional 0.3 FTE;
(b) $18,452 for use by the committee on legal services, which
PAGE 11-HOUSE BILL 23-1294 amount is based on an assumption that the committee will require an
additional 0.2 FTE; and
(c) $16,984 for use by the general assembly.
SECTION 9. Applicability. This act applies to conduct occurring
on or after the effective date of this act, including determinations of
applications pending on the effective date.
SECTION 10. Safety clause. The general assembly hereby finds,
PAGE 12-HOUSE BILL 23-1294 determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety.
____________________________ ____________________________
Julie McCluskie Steve Fenberg
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Robin Jones Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 13-HOUSE BILL 23-1294