Section 25-7-110.5 - Required analysis of proposed air quality rules(1) In addition to the requirements of section 25-7-110.8, whenever the commission proposes a rule, the technical secretary of the commission shall provide to the public upon request at cost, at the time the notice for public rule-making is published, a proposed rule-making packet containing:(a) A memorandum of notice, as required by subsection (3) of this section;(b) The actual language of the proposed rule;(c) A statement describing the fiscal and economic impact of the proposed rule, as required by subsection (4) of this section;(d) A statement describing the potential justification for terms differing from federal requirements, as required by subsection (5) of this section;(e) On or before July 1, 1997, a statement describing the risk analysis, if required by the general assembly under subsection (6) of this section;(f) The range of regulatory alternatives, including the no-action alternative, to be considered in adopting the proposed rule; and(g) Any other concise background material that would assist the interested and affected public in understanding the impact of the proposed rule.(1.5) As used in this section, "rule" includes an amendment to an existing rule.(2) The requirements of subsections (1)(c) to (1)(f), (3)(g), and (4) of this section shall not apply to any rule-making packet for any commission rule, and the requirements of subsections (3)(g) and (4) of this section shall not apply to any commission rule, which adopts by reference applicable federal rules or which rule is adopted to implement prescriptive state statutory requirements, where the commission is allowed no significant policy-making options, or which rule will have no regulatory impact on any person, facility, or activity.(3) Whenever the commission proposes a rule, the technical secretary of the commission, in cooperation with the proponent of the rule, shall provide a memorandum of notice containing: (a) An explanation of the proposed rule;(b) A disclosure of materials contained in the proposed rule;(c) A preliminary plan for meetings with the commission staff on the proposed rule;(d) An explanation of the problem sought to be remedied by the proposed rule;(e) An analysis of how the proposed rule solves the problem delineated in paragraph (d) of this subsection (3);(f) An explanation of the process that was used to develop the proposed rule;(g) An initial analysis of the economic effects of the proposed rule pursuant to subsection (4) of this section;(h) An explanation of the substantive differences with federal requirements and the requirements of Utah, Arizona, and New Mexico, where relevant;(i) An explanation of how the proposed rule may be implemented;(j) Whether there will be any time constraints on the regulated community and state agencies as a result of implementation or a delay in implementation of the proposed rule;(k) A contact person or persons who may provide additional information on the proposed rule to interested persons; and(l) A no-action analysis.(4)(a) Before any permanent rule is proposed pursuant to this section, an initial economic impact analysis shall be conducted in compliance with this subsection (4) of the proposed rule or alternative proposed rules. Such economic impact analysis shall be in writing, developed by the proponent, or the division in cooperation with the proponent and made available to the public at the time any request for hearing on a proposed rule is heard by the commission. A final economic impact analysis shall be in writing and delivered to the technical secretary and to all parties of record five working days prior to the prehearing conference or, if no prehearing conference is scheduled, at least ten working days before the date of the rule-making hearing. The proponent of an alternative proposal will provide, in cooperation with the division, a final economic impact analysis five working days prior to the prehearing conference. The economic impact analyses shall be based upon reasonably available data. Except where data is not reasonably available, or as otherwise provided in this section, the failure to provide an economic impact analysis of any noticed proposed rule or any alternative proposed rule will preclude such proposed rule or alternative proposed rule from being considered by the commission. Nothing in this section shall be construed to restrict the commission's authority to consider alternative proposals and alternative economic impact analyses that have not been submitted prior to the prehearing conference for good cause shown and so long as parties have adequate time to review them.(b) Before any emergency rule is adopted, any person may request that a regulatory analysis, as defined in section 24-4-103 (4.5), C.R.S., be prepared and made available to the public five working days prior to the hearing, unless there is an imminent and serious hazard to health, welfare, or the environment.(c) The proponent and the division shall select one or more of the following economic impact analyses. The commission may ask affected industry to submit information with regard to the cost of compliance with the proposed rule, and, if it is not provided, it shall not be considered reasonably available. The economic impact analysis required by this subsection (4) shall be based upon reasonably available data and shall consist of one or more of the following: (I) Cost-effectiveness analyses for air pollution control that identify:(A) The cumulative cost including but not limited to the total capital, operation, and maintenance costs of any proposed controls for affected business entity or industry to comply with the provisions of the proposal;(B) Any direct costs to be incurred by the general public to comply with the provisions of the proposal;(C) Air pollution reductions caused by the proposal;(D) The cost per unit of air pollution reductions caused by the proposal; and(E) The cost for the division to implement the provisions of the proposal; or(II) Industry studies that examine the direct costs of the proposal on directly affected entities that may be either in the form of a business analysis (The regulatory impacts on the general business climate or subsets thereof) or an industry analysis (the regulatory impacts on specific industries), including:(A) The characteristics and current economic conditions of the impacted business or industry sector; and(B) The projected impacts on the growth of the affected industry sectors with and without implementation of the proposal; and(C) How the proposal may effect or alter the growth of the affected industry sector; and(D) The direct cost of the proposal on the affected industry sector; or(III) An economic impact analysis that: (A) Identifies the industrial and business sectors that will be impacted by the proposal; and(B) Quantifies the direct cost to the primary affected business or industrial sector; and(C) Incorporates an estimate of the economic impact of the proposal on the supporting business and industrial sectors associated with the primary affected business or industry sectors.(e) Except as provided in subsection (4)(f) of this section, the economic impact analysis required by this subsection (4) must not consist of an analysis of any nonmarket costs or external costs asserted to occur notwithstanding compliance by a source with applicable environmental regulations.(f) For a rule that implements section 25-7-105(1)(e) that may materially affect greenhouse gas emissions, the economic impact analysis required by this subsection (4) must include an analysis of the social cost of greenhouse gases related to the estimated emission reductions from the proposed rule. The analysis must use the most recent assessment of the social cost for those greenhouse gases for which the federal government has determined the cost, and the consideration of the social cost of greenhouse gases must be consistent with existing law and include use of a discount rate of no more than two and one-half percent; except that the social cost of greenhouse gases that is used may not be lower than that established in 2016, using a two and one-half percent discount rate, by the federal interagency working group on the social cost of carbon or than the final social cost of greenhouse gases, using a two and one-half percent or lower effective discount rate, established by the federal interagency working group on the social cost of greenhouse gases pursuant to federal executive order 13990, dated January 20, 2021, whichever is higher.(g) With regard to the changes made in 2021 by House Bill 21-1266: (I) Nothing: (A) Alters the greenhouse gas emission reduction goals previously established in section 25-7-102(2)(g), in either amount or timing; or(B) Detracts from the air quality control commission's existing authority to require more than the minimum greenhouse gas emission reduction goals and deadlines previously established in section 25-7-102(2)(g); and(II) The changes add to, but do not otherwise alter, the air quality control commission's authority and obligation to publish and promulgate rules pursuant to sections 25-7-102(2)(g), 25-7-105, and 25-7-140.(5)(a) Whenever the commission proposes any rule that exceeds the requirements of the federal act or differs from the federal act or rules thereunder, the commission shall make available in writing a copy of any such proposed rule and a detailed, footnoted explanation of the differences between the rule and the federal requirements.(b) The written explanation required pursuant to paragraph (a) of this subsection (5) shall contain an explanation of the following information: (I) Any federal requirements that are applicable to this situation with a commentary on those requirements;(II) Whether the applicable federal requirements are performance-based or technology-based and whether there is any flexibility in those requirements, and if not, why not;(III) Whether the applicable federal requirements specifically address the issues that are of concern to Colorado and whether data or information that would reasonably reflect Colorado's concern and situation was considered in the federal process that established the federal requirements;(IV) Whether the proposed requirement will improve the ability of the regulated community to comply in a more cost-effective way by clarifying confusing or potentially conflicting requirements (within or cross-media), increasing certainty, or preventing or reducing the need for costly retrofit to meet more stringent requirements later;(V) Whether there is a timing issue which might justify changing the time frame for implementation of federal requirements;(VI) Whether the proposed requirement will assist in establishing and maintaining a reasonable margin for accommodation of uncertainty and future growth;(VII) Whether the proposed requirement establishes or maintains reasonable equity in the requirements for various sources;(VIII) Whether others would face increased costs if a more stringent rule is not enacted;(IX) Whether the proposed requirement includes procedural, reporting, or monitoring requirements that are different from applicable federal requirements and, if so, why and what the "compelling reason" is for different procedural, reporting, or monitoring requirements;(X) Whether demonstrated technology is available to comply with the proposed requirement;(XI) Whether the proposed requirement will contribute to the prevention of pollution or address a potential problem and represent a more cost-effective environmental gain; and(XII) Whether an alternative rule, including a no-action alternative, would address the required standard.Amended by 2021 Ch. 411,§16, eff. 7/2/2021.L. 95: Entire section added, p. 1335, § 2, effective July 1. L. 96: IP(1), IP(3), (4)(d), and (5)(a) amended and (1.5) added, p. 1285, § 2, effective June 1. L. 97: (4)(d) amended, p. 526, § 8, effective July 1. L. 2001: (4)(d) amended, p. 640, § 1, effective May 30. L. 2003: (4)(d) amended, p. 843, § 1, effective April 7. L. 2009: (4)(d) repealed, (HB 09-1332), ch. 1707, p. 1707, § 1, effective June 1. L. 2021: (4)(e) amended and (4)(f) and (4)(g) added, (HB 21-1266), ch. 2748, p. 2748, § 16, effective July 2.(1) Subsection (6)(e) provided for the repeal of subsection (6), effective July 1, 1997. (See L. 95, p. 1335.)
(2) Section 24 of chapter 411 (HB 21-1266), Session Laws of Colorado 2021, provides that the act changing this section applies to conduct occurring on or after July 2, 2021.
For the short title ("Environmental Justice Act") and the legislative declaration in HB 21-1266, see sections 1 and 2 of chapter 411, Session Laws of Colorado 2021.