Colorado § 25-7-104 - Air quality control commission created.

§ 25-7-104. Air quality control commission created.

(1) There is created in the department of public health and environment the air quality control commission, which consists of nine citizens of this state appointed by the governor with the consent of the senate. The air quality control commission is a type 1 entity, as defined in section 24-1-105.

(2) Appointments to the commission shall be made so as to include persons with appropriate scientific, technical, industrial, labor, agricultural, and legal training or with experience on the commission; although no specific number of its members shall be required to be so trained or experienced, three members shall have appropriate private sector, technical, or industrial employment experience. No more than five commissioners shall be members of one political party.

(3) Terms of members shall be for three years, and said terms shall commence on February 1 of the year of appointment. Any vacancy occurring during the term of office of any member shall be filled by appointment by the governor of a qualified person for the unexpired portion of the regular term.

(4) The governor may remove any member of the commission for malfeasance in office, failure to regularly attend meetings, or any cause that renders such a member incapable or unfit to discharge the duties of his office, and any such removal, when made, shall not be subject to review. If any member of the commission is absent from two consecutive meetings, the chairman of the commission shall determine whether the cause of such absences was reasonable. If he determines that the cause of the absences was unreasonable, he shall so notify the governor, who shall appoint a qualified person for the unexpired portion of the regular term.

(5) Each member of the commission not otherwise in full-time employment of the state shall receive a per diem of forty dollars for each day actually and necessarily spent in the discharge of official duties, but not to exceed twelve hundred eighty-four dollars in any one year; and all members shall receive traveling and other necessary expenses actually incurred in the performance of official duties.

(6) Each year the commission shall select from its own membership a chairman, vice-chairman, and secretary. The secretary of the commission shall keep a record of its proceedings. The commission shall hold regular public monthly meetings and may hold special meetings on the call of the chairman or vice-chairman at such other times as deemed necessary. Written notice of the time and place of all meetings shall be mailed by the secretary at least five days in advance of any such meetings to each member.

(7) All members shall have a vote. Two-thirds of the commission shall constitute a quorum, and the concurrence of a majority of the commission in any matter within its powers and duties shall be required for any determination made by the commission.

(8) The commission shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to permits or enforcement orders under this article or under the federal act. The members of the commission shall disclose any potential conflicts of interest to the governor and the committee of reference of the general assembly prior to confirmation and shall disclose any potential conflicts of interest which arise during their terms of membership to the governor and to the other commission members in a public meeting of the commission.

(9) (Deleted by amendment, L. 92, p. 1169, § 6, effective July 1, 1992.)

Source: L. 79: Entire article R&RE, p. 1020, § 1, effective June 20. L. 84: (2) amended, p. 768, § 2, effective July 1. L. 92: (7) and (9) amended, p. 1169, § 6, effective July 1. L. 94: (1) amended, p. 2780, § 495, effective July 1. L. 2005: (2) amended, p. 282, § 17, effective August 8. L. 2022: (1) amended, (SB 22-162), ch. 469, p. 3368, § 49, effective August 10.

Cross references: (1) For the legislative declaration contained in the 1994 act amending subsection (1), see section 1 of chapter 345, Session Laws of Colorado 1994.

(2) For the short title (the "Debbie Haskins 'Administrative Organization Act of 1968' Modernization Act") in SB 22-162, see section 1 of chapter 469, Session Laws of Colorado 2022.

ANNOTATION

Air pollution control commission is "agency" within the meaning of §§ 24-4-102 (3) and 24-4-107 and is subject to the provisions of the state administrative procedure act. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199 Colo. 270, 610 P.2d 85 (1980).

Potential conflict of interest under subsection (8) was not undisclosed and, if an actual conflict existed, it was immaterial to the outcome of the commission's rule-making. Sohocki v. Air Quality Control Comm'n, 12 P.3d 274 (Colo. App. 1999).

Remedy for nondisclosure of conflict of interest is not specified in this section. Therefore, the court of appeals adopts a balancing test, depending on whether the official with the alleged conflict cast the deciding vote. If so, the agency's action is invalid. If not, the court must examine three factors: (1) Whether the official disclosed the interest, or whether the other officials were fully aware of it; (2) the extent of the official's participation in the proceeding; and (3) the magnitude of the official's alleged interest. Sohocki v. Air Quality Control Comm'n, 12 P.3d 274 (Colo. App. 1999).