Colorado § 25-7-111 - Administration of air quality control programs - directive - prescribed fire - review.

§ 25-7-111. Administration of air quality control programs - directive - prescribed fire - review.

(1) The division shall administer and enforce the air quality control programs adopted by the commission. In furtherance of such responsibility of the division, the executive director of the department of public health and environment shall establish within the division a separate air quality control agency, the head of which shall be a licensed professional engineer or shall have a graduate degree in engineering or other specialty dealing with the problems of air quality control. Such person shall also have appropriate practical and administrative experience related to air quality control. Such person shall not be the technical secretary employed pursuant to section 25-7-105 (3). Any potential conflict of interest of such person shall be adequately disclosed prior to appointment and as may from time to time arise.

(2) In addition to authority specified elsewhere in this article, the division has the power to:

(a) Conduct or cause to be conducted studies and research with respect to air pollution and the control, abatement, or prevention thereof, as requested by the commission;

(b) Collect data, by means of field studies and air monitoring conducted by the division or by individual stationary sources or individual indirect air pollution sources, and determine the nature and quality of existing ambient air throughout the state;

(c) Enter and inspect any property, premises, or place for the purpose of investigating any actual, suspected, or potential source of air pollution or ascertaining compliance or noncompliance with any requirement of this article or any order or permit, or term or condition thereof, issued or promulgated pursuant to this article; and the division may, at reasonable times, have access to and copy any record, inspect any monitoring equipment or method, or sample any emissions required pursuant to section 25-7-106 (6) or part 5 of this article; except that, if such entry or inspection is denied or not consented to and no emergency exists, the division is empowered to and shall obtain from the district or county court for the district or county in which such property, premises, or place is located a warrant to enter and inspect any such property, premises, or place prior to entry and inspection. The district and county courts of this state are empowered to issue such warrants upon a proper showing of the need for such entry and inspection. Any information relating to secret processes or methods of manufacture or production obtained in the course of the inspection or investigation shall be kept confidential; except that emission data shall not be withheld from the division as confidential. A duplicate of any analytical report or observation of an air pollutant by the division shall be furnished promptly to the person who is suspected of causing such air pollution.

(d) Furnish technical advice and services relating to air pollution problems and control techniques;

(e) Inform the appropriate governmental agency of the results of atmospheric tests conducted in its jurisdiction and notify the affected city, town, county, or city and county whenever tests establish that the ambient air or source of emission of smoke or air pollution fails to meet the standards established under this article;

(f) Designate one or more persons or agencies in any area of the state as an air pollution control authority as agent of the division to exercise and perform such powers and duties of the division as may be specified in such designation;

(g) Furnish such personnel to the commission as the commission may reasonably require to carry out its duties and responsibilities under this article;

(h) Certify, or otherwise designate, to any other agency or department of this state or of any other state or of the federal government that any facility, land, building, machinery, or equipment, or any part thereof, has been constructed, erected, installed, or acquired in conformity with the requirements of this state or of this article for control of air pollution or in conformity with the requirements for control of air pollution of any other state or the federal government;

(i) Require any source to furnish information which the division may reasonably require relating to emissions of the source or to any investigation authorized by this article. If such request for information is refused, the division is empowered to and may obtain from the district or county court for the district or county in which the source is located a subpoena to compel production of such information.

(3) Repealed.

(4) The division shall assure that any information obtained by the division which is entitled to protection as a trade secret under federal or Colorado law is kept confidential and protected against disclosure, except as required by the federal act.

(5) Repealed.

Source: L. 79: Entire article R&RE, p. 1027, § 1, effective June 20. L. 84: (2)(c) and (2)(g) amended, p. 769, § 5, effective July 1. L. 87: (2)(c) amended, p. 1152, § 4, effective July 1. L. 92: (2)(c) amended and (2)(i), (3), and (4) added, pp. 1197, 1293, 1198, §§ 14, 3, 15, effective July 1. L. 94: (1) amended, p. 2783, § 500, effective July 1. L. 96: (3) repealed, p. 1258, § 153, effective August 7. L. 2004: (1) amended, p. 1311, § 58, effective May 28. L. 2009: (5) added, (HB 09-1199), ch. 411, p. 2278, § 4, effective June 3. L. 2019: (1) amended, (SB 19-083), ch. 13, p. 54, § 2, effective August 2.

Editor's note: Subsection (5)(d) provided for the repeal of subsection (5), effective July 1, 2011. (See L. 2009, p. 2278.)

Cross references: For the legislative declaration contained in the 1994 act amending subsection (1), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 1996 act repealing subsection (3), see section 1 of chapter 237, Session Laws of Colorado 1996. For the legislative declaration in SB 19-083, see section 1 of chapter 13, Session Laws of Colorado 2019.

ANNOTATION

Law reviews. For comment, "Environmental Law — Requirement of Notice in Visual Opacity Readings — Air Pollution Variance Bd. v. Western Alfalfa Corp., 94 S. Ct. 2114 (1974)", see 51 Den. L.J. 603 (1974). For article, "State and Federal Legislative Response to the Asbestos Threat", see 17 Colo. Law. 1973 (1988).

The air quality control commission does not have authority to collect data, by means of field studies and air monitoring conducted by the division; the Colorado Air Pollution and Prevention Act allocates the responsibility to the division to handle air quality monitoring and to certify the required data to the federal government. Therefore, the air quality commission does not have the authority to require that the certification include supplemental information intended to show that the recorded ozone levels would have been lower if not for exceptional factors. Defend Colo. v. Polis, 2021 COA 8, 482 P.3d 531.

Inspection held not unreasonable search. Where, under the former Colorado air pollution control act, a Colorado department of health inspector entered respondent's plant yard to make a test of the plumes of smoke being emitted from respondent's plant chimneys, without a warrant or respondent's knowledge, such inspection did not amount to an unreasonable search, since the inspector had sighted what anyone in the city who was near the plant could see, plumes of smoke. Air Pollution Variance Bd. v. W. Alfalfa Corp., 416 U.S. 861 (1974).