5 Colo. Code Regs. § 1001-19-VI
The purpose of the changes to § XII of Part C of Regulation No. 15 is to replace the fee and registration requirements applicable to technicians with a fee to be paid by Air Conditioning and Refrigeration Service Facilities. In order to effectively collect such a fee, the revised rule also requires such facilities to file a "facility notification" with the Division. Such changes to the rule are necessary because the authority to require technicians to register with the APCD expired on July 1, 1996 pursuant to § 25-7-105(11)(g). However, the Commission has concluded that the repeal provision of § 25-7-105(11)(g) applies only to the Commission's authority to adopt State training and certification requirements pursuant to the second and third sentences of § 25-7-105(11)(g), and does not apply to regulations regarding the use and disposal of ozone-depleting compounds (ODCs) authorized by the first sentence of § 25-7-105(11)(f). The purpose of the change in the rule is to impose and collect a notification fee sufficient to implement the enforcement requirements of § 25-7-105(11)(f) use and disposal requirements. The specific statutory authority for this revision is set out at § 25-7-105(11)(f).
One interested party expressed concern that this rule revision may be construed to make the facility owners liable for regulatory violations committed by the technicians. However, this rule change is limited to a revision of the fee structure. This change in the fee structure does not increase the liability of facility owners for the acts of technicians.
FEDERAL REQUIREMENTS
The relevant federal requirements applicable to stationary sources are set out at 42 USC § 7671g and 40 CFR, Part 82, Subpart F. Such federal requirements do not require fees or notification. However, the revisions to Regulation No. 15 are adopted exclusively under state authority, are not part of the State Implementation Plan, and are not otherwise federally enforceable.
FINDINGS PURSUANT TO § 25-7-110.8
The fees and facility notification requirements are administrative in nature, and are not intended to directly reduce emissions. Such administrative changes are not technical in nature, and therefore are not based on scientific methodologies or information. No one proposed an alternative that would comply with State statutory requirements in a more cost-effective manner.
Background
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Administrative Procedures Act, C.R.S. (1988), Sections 24-4-103(4) and (12.5) for adopted or modified regulations, and federal regulations which are incorporated by reference.
Basis
Regulation No. 15 deals with the regulation of the use of ozone depleting compounds in the State of Colorado. Sources that use ozone-depleting compounds in stationary systems and product refrigeration systems and sources that provide service to motor vehicle air conditioners are regulated by Regulation No. 15. This rule change affects all sources affected by Regulation No. 15. The Division met with industry representatives in developing the proposed revisions. Division and industry agreed that certain requirements in Regulation No. 15 should be replaced with provisions from U.S. Environmental Protection Agency's ozone depleting compounds regulations ( 40 C.F.R. Part 82 , Subparts B and F).
Specific Statutory Authority
The authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act (Colorado Act), Section 25-7-105(11) which provides authority to adopt regulations for the use of ozone depleting compounds. Section 25-7-106(6), C.R.S., provides the Commission with the authority to require testing, monitoring and record keeping. Commission action in promulgating these revisions is taken pursuant to Sections 25-7-105 through 25-7-109, C.R.S., as amended.
Purpose
The Commission intends the revisions to Regulation No. 15 to provide greater consistency with federal regulations by incorporating by reference portions of the federal regulations for which the Commission has authority to adopt. In making Colorado's program more consistent with the federal program, recordkeeping and reporting requirements have been reduced and the wholesale food industry is now subject to Regulation No. 15. Owners and operators of motor vehicle air conditioner service facilities will be subject to those recordkeeping and monitoring requirements necessary to prevent ozone-depleting compounds from being unnecessarily released into the atmosphere. The proposed revisions will also clarify certain state-only requirements, definitions, and requirements and simply the registration process.
Action Taken
The Air Quality Control Commission has removed any definitions of terms defined in the federal regulations. The Commission also removed the following requirements for stationary appliances: reporting; maintenance plans; installation, servicing, maintenance, and refrigerant recovery; inactive stationary appliances, and maximum allowable leakage rates.
Specifically, Regulation No. 15 now incorporates by reference Title 40, Part 82, Subpart F, of the U.S. Environmental Protection Agency Code of Federal Regulations, in effect July 1, 1997 and Title 40, Part 82, Subpart B, Sections 82.30 , 82.32 , 82.34 , and 82.42 (a) and (b)(1), (2), and (4) of the U.S. Environmental Protection Agency Code of Federal Regulations, in effect July 1, 1997, and 62 Fed. Reg. 68026, in effect January 29, 1998.
The wholesale-refrigerated food industry is now subject to Regulation No. 15, including the ozone depleting compounds registration and fee program. Previously, the wholesale food industry was inadvertently not included in the regulatory requirement to register equipment containing ozone-depleting compounds, while the retail food industry is included. There is no valid reason for such a distinction concerning the applicability of Regulation No. 15, that the wholesale food industry uses the same equipment, as does the retail food industry. The wholesale food industry is included in U.S.
Environmental Protection Agency's ozone depleting compounds regulations ( 40 C.F.R. Part 82 , Subparts B and F). Less than twenty wholesale food facilities are subject to Regulation No. 15.
Certain regulatory provisions have been maintained and other provisions included to require owners or operators of motor vehicle air conditioning service facilities to maintain records and conduct monitoring beyond the federal program pursuant to the Commission's authority in Section 25-7-106, C.R.S. Specifically, such owners and operators are required to maintain records of equipment servicing and ozone depleting compounds handling, disposal, and salvaging for one year, and maintain records of leak checks prior to adding refrigerant to a system.
In addition, the revision to Regulation No. 15 clarifies a previously existing requirement in Regulation No. 15 that owners and operators of motor vehicle air conditioning service facilities must perform leak checks on all systems prior to adding refrigerant pursuant to Sections 25-7-106(6)(b) and (c), C.R.S. This is an important requirement, because there is not the economic incentive for such sources to check for leaks prior to adding refrigerant, as there is for owners and operators of stationary appliances and refrigerated food appliances. In addition, federal regulations require owners and operators of stationary appliances to comply with the allowable leakage rates.
The previous requirements of Regulation No. 15 required the annual registration of equipment and fees be sent to the Division by or within sixty (60) days of several different payment schedules depending upon startup date of sources. This created an unnecessary burden on the Division in administering the registration and fee program. The Commission has combined the annual registration dates into one date. An affected source must send the annual registration to the Division within sixty days of July 1 of each year. The Commission has included a provision that allows payments for sources that pay between the adoption of these revisions and July 1, 1998 to be prorated for the time prior to July 1, 1998.
The Commission has revised the prohibition against intentional venting of ozone depleting compounds to be the same as the statutory language found in Section 25-7-105(11)(b), C.R.S. The revision results in a requirement that owners and operators of retail stores, cold storage warehouses, or commercial or industrial buildings may not intentionally vent ozone depleting compounds and a prohibition against owners and operators of stationary appliances, refrigerated food facilities, and motor vehicle air conditioning service facilities knowingly venting ozone depleting compounds to the atmosphere.
The Commission has revised the definition of "stationary appliance" to simplify the registration of stationary appliances. The proposed definition includes language that the Division has relied upon in policy used to interpret "stationary appliances." Prior to the policy, the regulated community had difficulty in applying the existing definition, because of the complexity of the possible configuration of a system.
FEDERAL REQUIREMENTS
The relevant federal requirements applicable to the regulation of ozone depleting compounds are set out at 42 U.S.C. sections 7671g and 7671h; and at 40 C.F.R., Part 82 , Subparts B and F. There are several provisions in Regulation No. 15 that are not required under federal law. Such provision include: the requirements for the payment of fees, the equipment registration requirements, the facility notification requirements, the prohibition against intentional venting of chlorofluorocarbons by the owners and operators of certain sources, and the recordkeeping requirements for motor vehicle air conditioning repair facilities. However, Regulation No. 15 is not part of the State Implementation Plan and such provisions are consistent with Section 25-7-105.1, C.R.S.
Findings pursuant to Section 25-7-110.8, C.R.S.
The requirements of Section 25-7-110.8, C.R.S. do not apply to the adoption of the applicable federal rules by reference, and therefore do not apply to the federal rules incorporated into Regulation No. 15. The Commission makes the following findings with respect to the remaining provisions of Regulation No. 15.
Regulation No. 15 is based on reasonably available, validated, reviewed and sound scientific methodologies indicating that the release of ozone depleting compounds into the atmosphere contributes to the depletion of stratospheric ozone.
The addition of ozone depleting compounds to a leaking air conditioner will result in the release of ozone depleting compounds into the atmosphere. Therefore, the requirement in Section V.B. to conduct a leak check before adding ozone depleting compound refrigerants to any motor vehicle air conditioner will result in a demonstrable reduction in air pollution. The remaining provisions of Regulation No. 15 are administrative in nature, and are not subject to the requirements of Section 25-7-110.8(1)(b), C.R.S.
No one proposed an alternative that would comply with the State statutory requirements in a more cost-effective manner.
Revisions to Regulation Number 15, Sections III.A. & B. and IV.A.1. & 2. and IV.B.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4), C.R.S. for new and revised regulations.
Basis
The Air Quality Control Commission has adopted revisions to Sections IV.A.1. & 2. and IV.B. in order to increase the annual Facility Notification fee for air-conditioning and refrigeration service facilities in Colorado, commencing in 2008. The increase is necessary to help offset increasing program costs.
Specific Statutory Authority
The specific statutory authority for this revision is set forth in Sections 25-7-105(11)(f) C.R.S., which allows the Commission to adjust fees so that the revenue generated is sufficient to cover direct and indirect costs to implement the control of emissions of ozone depleting compounds program.
Purpose
The revision to Sections IV.A.1. & 2. was adopted to cover existing and anticipated revenue shortfalls. The revisions to Sections III.A. & B. and IV.B. were adopted to change the annual billing and registration dates.
COLORADO AIR QUALITY CONTROL COMMISSION
ADOPTED: December 20, 2007.
Revisions to Regulation Number 15, Sections III.A. & B.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4), C.R.S. for new and revised regulations.
Basis
The Air Quality Control Commission has adopted revisions to Sections III.A. & B. in order to increase the annual Stationary Appliance and Refrigerated Food Appliance fees in Colorado, commencing in 2008. The increase is necessary to help offset increasing program costs. The General Assembly enacted revisions to the allowable fees in SB08-055 and established these fee cap increases because the prior statutory fee levels have never been adjusted and are now inadequate to support existing authorized expenditures to operate the program.
Specific Statutory Authority
The specific statutory authority for this revision is set forth in Sections 25-7-105(11)(h) C.R.S., which allows the Commission to adjust fees so that the revenue generated is sufficient to cover direct and indirect costs to implement the control of emissions of ozone depleting compounds program.
Purpose
The revision to Sections A & B. was adopted to cover existing and anticipated revenue shortfalls.
COLORADO AIR QUALITY CONTROL COMMISSION
ADOPTED: September 18, 2008.
5 CCR 1001-19-VI