6 Colo. Code Regs. § 1017-1-2.1
Basis and Purpose
The Enterprise functions as a government-owned business that provides statutorily specified services to fee payers. It collects fees for a primary purpose of financing or defraying the cost of services provided to those who must pay them. Expenditures of Enterprise revenue may provide benefits to the public or third parties.
Pursuant to § 25-7-103.5, C.R.S. the Air Quality Enterprise Board is charged with conducting science-based, unbiased air quality modeling, monitoring, assessment, data analysis, and research, which may include obtaining, analyzing, and reporting permitting and enforcement data; data regarding potential health risks from emissions; emission data; ambient air quality, visibility, and meteorological sampling data; and similar data, as well as other specified activities as listed in § 25-7-103.5(1)(j)(I) -(V) and (4)(c)(I)-(IV), C.R.S. The enterprise must, in its discretion, prioritize these activities based on a research project's ability to provide information that will: support tangible progress toward aiding fee payers' obligations and commitments to reducing air pollutants emitted by the fee payers; support fee payers in attaining standards and health-based or environmental guidelines; and assess public health that may be affected by fee payer emissions.
Fee payers participated in several stakeholder meetings between November 2020 and March 2021, and the board administrator solicited input in the establishment of this fee rule from fee payers and the Air Pollution Control Division as required by § 25-7-103.5(4)(e), C.R.S.
The board intends to minimize the administrative costs associated with the fee rule to further the purposes and mission of the enterprise. The board believes it is critical to first address the annual emission fees, but does not intend to collect fees in excess of the amount reasonably necessary to perform its statutory duties or in excess of an amount that reflects the value of the services provided.
The Board intends to address, in the near-term, the process for proposing projects for custom monitoring or technology development or evaluation projects, or for emission mitigation projects. The board directs enterprise staff to bring a recommendation to the board on how best to address those additional services.
Statutory Authority
To fund its activities, the board must establish annual emission fees, as authorized in § 25-7-103.5(4)(b)(I). This rule sets up fees that will be paid into the fund: the annual emission fees set by the board and charged to the top 150 highest-emitting companies.
Annual Emission Fees: Section 1.2
The board intends that the annual emission fee will be calculated from the fee payer's division fee for the previous state fiscal year for which fee adjustments have been completed. The annual emission fee is based on the emissions of select criteria air pollutants and hazardous air pollutants. The division fee per ton of hazardous air pollutants is higher than the per ton fee for criteria air pollutants.
The state fiscal year is July 1 through June 30, and fee adjustments are completed into the next fiscal year. Therefore, the state fiscal year of July 1, 2021 through June 30, 2022 will be based on the division fees from the state fiscal year 2019-20 for purposes of calculating the annual emissions fee. This process prevents the duplicative administrative effort of making fee adjustments for both the division and the enterprise, and instead relies on the adjustments completed by the division.
Not all emission sources will be required to pay an annual emission fee to the enterprise. Instead, the board determined to focus on those companies owning or operating the stationary sources with the highest amount of total emissions of air pollutants for which division fees are paid. Taking into account the statutory limits upon the collection of annual emission fees by the enterprise, the board determined to assess annual emission fees against the "top 150" companies. These top 150 companies account for 87% of the total annual air pollutant division fees paid to the Air Pollution Control Division, and they represent a broad range of facility types across the state. As the board is still determining the extent of mitigation or research needs for specific pollutants, this annual emission fee calculation methodology allows for a broad range of research proposals and emission mitigation projects to be conducted throughout the State and to be funded by the highest-emitting companies in Colorado.
Beginning in FY 2025-2026, the Board will determine the revenue requirement through a public process. The Board directs staff to assist in a stakeholder process to define a process to determine the annual revenue requirement.
Other revenues, payments, grants, gifts and donations, Section 1.3
Payment into the fund may also occur through the receipt of other revenues, payments, gifts, grants, and donations.
Future fee revisions
The board will revisit this fee rule within the next three years, or sooner as appropriate, to confirm and/or revise this fee process in light of information learned, services rendered, and the fund's balance.
6 CCR 1017-1-2.1