(1) Prior to submitting
an application for a permit, the applicant may request and, if so requested, the
division shall grant a planning meeting with the applicant. At such meeting, the
division shall advise the applicant of the applicable permit requirements, including
the information, plans, specifications, and data required to be furnished with the
permit application.
(2) The division shall evaluate permit applications to determine, for
construction permits, whether operation of the proposed new source at the date of
start-up and for operating permits, whether the permitted emissions, will comply
with all applicable emission control regulations, regulations for the control of
hazardous pollutants, and requirements of part 2 or 3 of this article.
(3) The division shall also determine whether applications are for a new
source activity that may have an impact upon areas which, as of the projected new
source start-up date, are in compliance with national ambient air quality standards
as of the date of the permit application or for new source activity that may have an
impact upon areas which, as of the projected new source start-up date, are not in
compliance with national ambient air quality standards as of the date of the permit
application. In implementing this subsection (3), the division may consider more
stringent methods for new sources of oxides of nitrogen in disproportionately
impacted communities in the area designated nonattainment for ozone by the
United States environmental protection agency.
(4) The division shall prepare its preliminary analysis regarding compliance,
as set forth in subsection (2) of this section, and regarding the impact on attainment
or nonattainment areas, as set forth in subsection (3) of this section, as
expeditiously as possible. For construction permits not subject to part 2 of this
article, such preliminary analysis shall be completed no later than sixty calendar
days after receipt of a completed permit application. Applicants must be advised
within sixty calendar days after receipt of any application, or supplement thereto, if
and in what respects the subject application is incomplete. Upon failure of the
division to so notify the applicant within sixty calendar days of its filing, the
application shall be deemed complete. Applications for construction permits
subject to part 2 of this article shall be approved or disapproved within twelve
months of receipt of a complete application. Applications for renewable operating
permits shall be approved or disapproved within eighteen months after the receipt
of the completed permit application; except that those applications submitted
within the first year after the effective date of the operating permit program shall
be subject to a phased schedule for acting on such permit applications established
by the division. The phased schedule shall assure that at least one-third of such
permits will be acted on by the division annually over a three-year period. The
commission may establish a phased schedule for acting on applications for which a
deferral has been granted pursuant to the federal act. A timely and complete
permit application operates as a defense to enforcement action for operating
without a permit for the period of time during which the division or the commission
is reviewing the application and until such time as the division or the commission
makes a final determination on the permit application; except that this defense to
an enforcement action shall not be available to an applicant which files a fraudulent
application.
(5) For those types of projects or activities for which a construction permit
application has been filed, defined, or designated by the commission as warranting
public comment with respect thereto, the division shall, within fifteen calendar days
after it has prepared its preliminary analysis, give public notice of the proposed
project or activity by at least one publication in a newspaper of general distribution
in the area in which the proposed project or activity, or a part thereof, is to be
located or by such other method that is reasonably designed to ensure effective
general public notice. The division shall also during such period of time maintain in
the office of the county clerk and recorder of the county in which the proposed
project or activity, or a part thereof, is located a copy of its preliminary analysis and
a copy of the application with all accompanying data for public inspection. The
division shall receive and consider public comment thereon for a period of thirty
calendar days thereafter.
(6) (a) For any construction permit application subject to the requirements of
a new or modified major source in a nonattainment area, or for prevention of
significant deterioration as provided in part 2 of this article, or for any application
for a renewable operating permit, within fifteen calendar days after the issuance of
its preliminary analysis, the division shall:
(I) Forward to the applicant written notice of the applicant's right to a formal
hearing before the commission with respect to the application; and
(II) Give public notice of the proposed source or modification and the
division's preliminary analysis thereof by at least one publication in a newspaper of
general distribution in the area of the proposed source or modification, or by such
other method that is reasonably designed to ensure effective general public notice.
Such notice shall advise of the opportunity for a public hearing for interested
persons to appear and submit written or oral comments to the commission on the
air quality impacts of the source or modification, the alternatives to the source or
modification, the control technology required, if applicable, and other appropriate
considerations. Any such notice shall be printed prominently in at least ten-point
bold-faced type. The division shall receive and consider any comments submitted.
(b) If within thirty calendar days of publication of such public notice the
applicant or an interested person submits a written request for a public hearing to
the division, the division shall transmit such request to the commission along with
the application, the division's preliminary analysis, and any written comments
received by the division, within five calendar days of the end of such thirty-day
period. The commission shall, within sixty calendar days after receipt of the
application, comments, and analysis, unless such greater time is agreed to by the
applicant and the division, hold a public hearing to elicit and record the comment of
any interested person regarding the sufficiency of the preliminary analysis and
whether the permit application should be approved or denied. At least thirty
calendar days prior to such public hearing, notice thereof shall be mailed by the
commission to the applicant, printed in a newspaper of general distribution in the
area of the proposed source or modification, and submitted for public review with
the county clerk and recorder of the county wherein the project or activity is
proposed.
(7) (a) Within thirty calendar days following the completion of the division's
preliminary analysis for applications for construction permits not subject to part 2
of this article, or within thirty calendar days following the period for public
comment provided for in subsection (5) of this section, or for applications for
construction permits subject to part 2 of this article and for renewable operating
permits, if a hearing is held, within the appropriate time period established pursuant
to this article, the division or the commission, as the case may be, shall grant or
deny the permit application. Any permit required pursuant to this article shall be
granted by the division or the commission, as the case may be, if it finds that:
(I) The source or activity will meet all applicable emission control regulations
and regulations for the control of hazardous air pollutants;
(II) The source or activity will meet the requirements of part 2 or 3 of this
article, if applicable;
(III) For construction permits, the source or activity will meet any applicable
ambient air quality standards and all applicable regulations;
(III.5) For renewable operating permits, the source or activity will meet all
applicable regulations; and
(IV) For renewable operating permits, the United States environmental
protection agency has not made a timely objection to issuance of such permit
pursuant to the federal act.
(b) Failure of the division or commission, as the case may be, to grant or deny
the permit application or permit renewal application within the time prescribed
shall be treated as a final permit action for purposes of obtaining judicial review in
the district court in which the source is located, to require that action be taken on
such application by the commission or division, as appropriate, without additional
delay. Notwithstanding any other provision to the contrary, judicial review of the
division's failure to grant or deny a renewable operating permit required by Title V
of the federal act is available until the division grants or denies the permit.
(c) If an applicant has submitted a timely and complete application for a
renewable operating permit required by this article, including renewals, but final
action has not been taken on such application, and, if required to have a
construction permit, such construction permit is in place and valid, the source's
failure to have a renewable operating permit shall not be a violation of this article,
unless the delay in final action was due to the failure of the applicant to timely
submit information required or requested by the division to process the application.
(8) If the division denies a permit or imposes conditions upon the issuance of
a permit which are contested by the applicant or if the division revokes a permit
pursuant to subsection (12) of this section, the applicant may request a hearing
before the commission. The hearing shall be held in accordance with sections 25-7-119 and 24-4-105, C.R.S. The commission may, after review of the evidence
presented at the hearing, affirm, reverse, or modify the decision of the division but
shall, in any event, assure that all the requirements of subsections (6) and (7) of this
section are met.
(9) Renewable operating permits shall summarize existing operating
restrictions pursuant to section 25-7-114.4 (3).
(10) A permit amendment will not be required to authorize a change in
practice which is otherwise permitted pursuant to this article, the state
implementation plan, or the federal act merely because an existing permit does not
address the practice. Changes in industrial practices and procedures that are not
inconsistent with the terms of a renewable operating permit can be made without
seeking any change to the terms of said permit.
(11) An order of the division or commission shall be final upon issuance. Any
participant in the public comment process and any other person who could obtain
judicial review under applicable law shall have standing for purposes of seeking
review of any final order of the commission or division regarding applications,
renewals, or revisions of any permits. The public participation requirements of
subsections (5) and (6) of this section shall apply to all renewable operating permit
applications, revisions, and renewals.
(12) (a) A permitted entity shall notify the division within fifteen days after
the commencement of any activity for which a construction permit has been issued.
Within one hundred eighty days after commencement of operation for which a
construction permit has been issued, the source shall demonstrate to the division
compliance with the terms and conditions of the construction permit or the division
may, pursuant to rules that are adopted by the commission based upon the results
of the study conducted under section 25-7-114.7 (2)(a)(V), inspect the project or
activity to determine whether or not the terms and conditions of the construction
permit have been properly satisfied. At the end of one hundred eighty days after
the commencement of operation, the division must:
(I) Revoke the construction permit; or
(II) Continue the construction permit, if applicable; or
(III) Notify the owner or operator that the source has demonstrated
compliance with the construction permit.
(b) For those sources subject to the renewable operating permit program, a
renewable operating permit will be issued within the appropriate time periods if all
requirements for a renewable operating permit are met by the source. The
construction permit requirements shall remain in effect until the renewable
operating permit is issued.
(12.5) (a) (I) Except for sources involved in agricultural, horticultural, or
floricultural production such as farming, seasonal crop drying, animal feeding, or
pesticide application, upon determination by the division that the criteria set forth in
subsection (12.5)(b) of this section applies to a source that is not required to obtain
a renewable operating permit, the division may reopen such construction permit for
the purpose of imposing any or all of the following additional terms and conditions:
(A) Enhanced record-keeping requirements;
(B) Enhanced emissions and ambient monitoring requirements;
(C) Operating and maintenance requirements;
(D) Emission control requirements pursuant to section 25-7-109.3; and
(E) Additional monitoring requirements for sources affecting
disproportionately impacted communities.
(II) Any such condition which is contested by the permittee may be reviewed
by the commission in accordance with the provisions of subsection (7) of this
section.
(b) With the exception of those sources involved in agricultural, horticultural,
or floricultural production such as farming, seasonal crop drying, animal feeding,
and pesticide application, a source's construction permit may be reopened for
cause for the purposes of subsection (12.5)(a) of this section only upon a
determination by the division that the location of the source is significant in terms
of its proximity to residential or business areas or a disproportionately impacted
community, and one or more of the following criteria apply to the permitted source:
(I) The control equipment utilized by the source requires an unusually high
degree of maintenance or operational sensitivity when compared to control
equipment in general;
(II) The design characteristics of the source require an unusually high degree
of maintenance or operational sensitivity when compared to the design
characteristics of all sources in general;
(III) The application of the control equipment utilized is unique or untested;
(IV) The operational variability of the source may impact the effectiveness of
the controls;
(V) The emissions from the source will threaten public health, as determined
pursuant to section 25-7-109.3; or
(VI) The emissions from the source will affect a disproportionately impacted
community.
(c) Nothing in paragraph (a) or (b) of this subsection (12.5), as amended by
House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general
assembly, shall be construed as changing the property tax classification of
property owned by a horticultural or floricultural operation.
(13) The commission shall, wherever practicable, promulgate regulations for
renewable operating permit application requirements that combine requirements
for construction permits with renewable operating permits to avoid duplicative
efforts by the source and the division.
(14) (Deleted by amendment, L. 2010, (HB 10-1042), ch. 209, p. 909, � 3,
effective September 1, 2010.)
(15) Repealed.
(16) (a) If the division experiences a backlog in processing air quality permit
applications and the department determines or reasonably expects that, as a result,
permits would not be issued within statutory time frames, the division shall make
available to sources that are not subject to permitting under part C of the federal
act the option to have the permit application or the air quality modeling, or both,
that is submitted with the applicant's air permit application reviewed for
acceptance as demonstrating compliance by a contract consultant selected by the
division in lieu of the review being conducted by division staff. The division may also
enter into contracts to support the division's air quality permit programs, including
the division's general permit program, and modeling to support the air quality
permit programs.
(b) The division shall select and contract with qualified nongovernmental air
quality consultants, modeling experts, or both to perform permit application
reviews, air quality modeling reviews, or other work to support the division's air
quality permit programs. The division is not subject to the requirements of the
Procurement Code, articles 101 to 112 of title 24, in selecting and contracting with
the consultants, modeling experts, or both. The division shall review and exclude
from consideration as a contract air quality consultant any contractors with a
conflict of interest regarding air quality permit applications or modeling. Applicants
that choose consultant review of their air quality permit applications or modeling
are responsible for both the consultant's costs associated with the review as well
as the division's costs associated with the review and determination of the air
permit application, to be paid to the division. The division shall transfer the money
to the state treasurer, who shall credit it to the stationary sources control fund
created in section 25-7-114.7 (2)(b)(I).
(c) The division shall use the results of the modeling conducted pursuant to
subsection (16)(a) or (16)(b) of this section for purposes of the division's permit
program and application analysis.