Colorado § 25-7-112 - Air pollution emergencies endangering public health anywhere in this state.

§ 25-7-112. Air pollution emergencies endangering public health anywhere in this state.

(1) Whenever the division determines, after an investigation initiated either independently by the division or upon the request of an affected member of the public living or working in the vicinity of a suspected discharge, that any person is either engaging in any activity involving a significant risk of air pollution or is discharging or causing to be discharged into the atmosphere, directly or indirectly, any air pollutants and such activity or discharge constitutes a clear, present, and immediate danger to the environment or to the health of the public, or that any such activity or discharge of air pollutants, if permitted to continue unabated, will result in a condition of clear, present, and immediate danger to the health of the public, the division shall:

(a) Issue a written cease-and-desist order to said person requiring immediate discontinuance of such activity or the discharge of such pollutant into the atmosphere, and, upon receipt of such order, such person shall immediately discontinue such activity or discharge; or

(b) Apply to any district court of this state for the district in which the said activity or discharge is occurring for a temporary restraining order, temporary injunction, or permanent injunction as provided for in the Colorado rules of civil procedure. Any such action in a district court shall be given precedence over all other matters pending in such district court. The institution of such injunction proceedings by the division shall confer upon said district court exclusive jurisdiction to determine finally the subject matter of the proceeding; or

(c) Both issue such a cease-and-desist order and apply for any such restraining order or injunction.

(1.5) (a) If, upon the request of a member of the public as described in subsection (1) of this section, the division chooses to investigate a suspected discharge, the division shall report the result of its investigation to the person who made the request and shall make such result public no later than sixty days after the completion of the investigation. If the person who made the request is dissatisfied with the result of the investigation, or if no investigation was made, such person may complain to the commission by petition.

(b) Upon receipt of a petition filed under paragraph (a) of this subsection (1.5), the commission shall promptly give notice of receipt of the petition to the owner or operator of the source of the alleged discharge, and, after considering the petition, the response, if any, of such owner or operator, and the response of the division, the commission shall respond to the petition within forty-five days after receipt by:

(I) Ordering the division to proceed with a new or further investigation under this section or section 25-7-113; or

(II) Denying the petition and stating the reasons for denial, which may include, but are not limited to, the lack of a substantial factual basis, the allegation of facts substantially similar to those at issue in a previous or currently pending investigation, or a finding that the petition was interposed for purposes of harassment or delay; or

(III) Providing an opportunity to submit additional factual information in support of, or in response to, the petition. The commission may require any new information to be submitted in writing, or it may convene an informal hearing as soon as is practicable.

(c) A hearing held pursuant to subparagraph (III) of paragraph (b) of this subsection (1.5) shall be subject to the following procedural requirements:

(I) The hearing shall be conducted as an informal hearing, and, in particular, no sworn testimony shall be taken except as the commission deems necessary to clarify the factual basis of the petition;

(II) Parties may represent themselves or be represented by agents who need not be attorneys;

(III) Notice of such hearing shall be given at least twenty days prior to the hearing;

(IV) The purpose of the hearing shall be to enable the commission to decide whether to order an investigation as provided in subparagraph (I) of paragraph (b) of this subsection (1.5); and

(V) To preserve the commission's role as an appellate body, the hearing shall not be used as a forum for determining the merits of the petition.

(2) (a) Whenever the division determines, after investigation, that the condition of the ambient air in any portion of this state constitutes a clear, present, and immediate danger to the environment or to the health of the public, or that any activity or discharge of air pollutants, if permitted to continue unabated, will result in a condition of clear, present, and immediate danger to the health of the public, and that the procedures available to the division under subsection (1) of this section will not adequately protect the public, it shall immediately notify the governor of its determination of either of such conditions, and it shall request the governor to declare a state of air pollution emergency in such portion of this state.

(b) Upon such notification and request by the division, the governor is empowered to declare a state of air pollution emergency in such portion of the state and to take any and all actions necessary to protect the health of the public in such portion of the state, including, but not limited to:

(I) Ordering a halt or curtailment of the movement of all motor vehicles except emergency vehicles; and

(II) Ordering a halt or curtailment of all operations, activities, processes, or conditions which he reasonably believes to be contributing to such emergency.

(c) From time to time, whenever appropriate, the governor, in cooperation with his department heads, shall develop or modify such plans as will be necessary or appropriate to control and abate the air pollution conditions most likely to require the exercise of the powers granted in paragraph (b) of this subsection (2).

Source: L. 79: Entire article R&RE, p. 1029, § 1, effective June 20. L. 92: IP(1) and (2)(a) amended, p. 1198, § 16, effective July 1. L. 94: IP(1) amended and (1.5) added, p. 1420, § 3, effective May 25.

Cross references: For injunctions, see C.R.C.P. 65.

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, "Liabilities of Nonoperating Mineral Interest Owners", see 51 U. Colo. L. Rev. 153 (1980).