(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.
(d) Repealed.
(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.
(6) Repealed.