HomeMy WebLinkAbout20101589.tiff STATE OF COLORADO
Bill Ritter,Jr.,Governor ,) 11.
Martha E. Rudolph, Executive Director :ov CCOZO�
COLORADO AIR QUALITY CONTROL COMMISSION 6--41)
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4300 Cherry Creek Drive South y
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Denver,Colorado 80246-1530
Phone (303)692-3100 - -• -- -w Colorado Department
Fax (303)691-7702
TDD (303)691-7700of Public Health
and Environment
July 9, 2010
Weld County
Board of County Commissioners
915 10th Street
PO Box 758
Greeley, CO 80632
Re: Weld County Concerns of Vehicle Emissions Inspection Program Rulemaking
County Commissioners:
Thank you for your letter dated May 18, 2010 and particular thanks to Commissioners
Conway and Kirkmeyer for taking the time to address us at our June 17, 2010 meeting.
Your letter and Commissioners Conway and Kirkmeyer's comments level some serious
complaints against the Air Quality Control Commission and, specifically, against Commissioner
Slutsky. We take these complaints seriously and have discussed your concerns with both staff
and our attorney. After consideration of your comments and questions and on behalf of the
entire Commission, I provide the following response.
First, you have requested that we "reconsider the amendments to Regulation I I"
approved at the March 18, 2010 rulemaking hearing. Our rules contain no provision for
reconsideration of a final rulemaking decision and the Commission does not intend to initiate a
new rulemaking effort on this matter.
Next, you suggest that Commissioner Slutsky exhibited at least the appearance of a
conflict of interest in that his property lies outside of the vehicle emissions inspection area. That
because he was not subject to the provisions of the program, yet he was the Commission's
designated hearing officer overseeing the pre-hearing process and conducting the hearing, it
appeared to you that he could not be objective. We disagree.
As has been the custom since its inception, the Commission has no standard process for
selecting hearing officers. Whenever a Commissioner is asked to oversee a matter or expresses
interest in being the hearing officer, an informal evaluation is undertaken as to whether there
may be conflicts of interest. In the case at hand, the conflict of interest issue was specifically
discussed between Commissioner Slutsky and Mr. Lempke, the Commission's Administrator.
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As a result of that discussion, Mr. Lempke determined that Commissioner Slutsky had no
conflict of interest.
I am aware that you feel very strongly about this matter. You have expressed a belief that
Commissioner Slutsky was involved in some way in the Colorado Legislature's decision to
exclude the northern portion of Larimer County from the vehicle emissions inspection program
area. I can assure you that Commissioner Slutsky did not participate in any way in the
development of this or any other statute, neither with the staff of the Colorado Department of
Health and Environment nor with any legislators or their staff.
Finally, Commissioners Conway and Kirkmeyer questioned why the legislature would
remove the northern portion of Larimer County from the vehicle emissions inspection program.
Although Mr. Lempke responded verbally at our June 18 meeting, providing the history and
explanation of the legislative action, I will recount it here for the benefit of the full Board of
Commissioners. The previous vehicle emissions inspection program area was established to
control carbon monoxide emissions and it encompassed the area designated as nonattainment for
carbon monoxide, which included the northern portion of Larimer County. The vehicle
emissions inspection program that was the subject of our March 18 rulemaking hearing has been
established to control the emissions of ozone precursors and encompasses the area designated by
the U.S. Environmental Protection Agency as nonattainment for ozone. The ozone
nonattainment area does not include the area of northern Larimer County that the Colorado
Legislature, in Senate Bill 003, excluded from the operation of the current vehicle emissions
inspection program. Since the area is not in nonattainment for ozone and the statute defines the
program area, there was no authority for the Commission to include it in the Regulation 11
program.
Again, thank you very much for your letter and comments. If you have any additional
questions, we will endeavor to respond in a timely and complete manner.
Sincerely,
Barbara W. Roberts
Chair
Colorado Air Quality Control Commission
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OFFICE OF BOARD Or COMMISSIONERS
PHONE: 970-336-7204
FAX: 970-352-0242
915 10TH STREET
P.O. BOX 758
C. GREELEY, COLORADO 80632
COLORADO
May 18, 2010
Barbara Roberts, Commission Chair
Air Quality Control Commission
4300 Cherry Creek Drive South, EDO-AQCC-A5
Denver, CO 80246
Re: Expression of Concerns Regarding Participation and Work of Hearing Officer Jon Slutsky
in March 18, 2010, Hearing on Proposed Regulation 11 Amendments
Dear Commission Chair Roberts:
The Board of County Commissioners of Weld County ("the Board") wishes to express its concerns
regarding the participation and work of Hearing Officer Jon Slutsky in the March 18, 2010, hearing
before the Colorado Air Quality Control Commission ("AQCC") on the proposed amendments to
Regulation 11. The Board's concerns relate to the appearance of a conflict of interest on Mr.
Slutsky's part and with his ruling on a motion submitted by the Board. Both issues are discussed
below.
Mr. Slutsky and Susan Moore own property located north of East Larimer County Road 64, and
west of North Larimer County Road 9. The Slutsky/Moore property was included within the
enhanced testing area when Regulation 11 was amended by the AQCC on December 12, 2008.
The stated purpose of that rulemaking was to "expand the existing enhanced emissions inspection
program currently applicable in the Seven County Denver Metro Areas to the Air Program area of
Larimer and Weld Counties." However, when S.B. 09-003 was introduced in the Colorado Senate
in January, 2009, the lands lying north of East Larimer County Road 64 were eliminated from the
testing area("Eliminated Area"). The Eliminated Area includes the Slutsky/Moore property. The
Eliminated Area is shown in a cross-hatched yellow color on the enclosed map. It is interesting to
note that the Eliminated Area was the only portion of the original basic testing area in both Larimer
and Weld Counties to be exempted from the enhanced testing requirements. On March 18, 2010,
the AQCC approved amendments to Regulation 11 to establish the enhanced testing area as that set
forth in S.B. 09-003. Mr. Slutsky was the hearing Officer for that hearing. Did the Air Pollution
Control Division ("the Division") inform the AQCC that the Eliminated Area, which included the
Slutsky/Moore property, was taken out of the enhanced testing area by virtue of S.B. 09-003? Why
was that area of Larimer County eliminated from the enhanced testing area when it obviously was
important enough to be included in 2008? Who from the AQCC and/or the Air Pollution Control
Letter. AQCC Chair Roberts
May 18, 2010
Page 2
Division set the enhanced testing area in Larimer County that was incorporated into S.B. 09-003?
Why was Mr. Slutsky chosen to be the Hearing Officer for such rulemaking when he must have
known that his property and vehicles had been exempted from the testing requirement through the
action of the General Assembly in S.B. 09-003 (which boundaries were adopted by the AQCC in
the March 18,2010, amendments to Regulation 11)? At a minimum, these questions point out at
least an appearance of a conflict of interest on the part of Mr. Slutsky. More importantly, however,
these questions cast a shadow over the AQCC and the Division regarding their impartiality in the
whole process whereby the areas in Larimer and Weld Counties were established for the enhanced
testing requirement.
The Board's second concern regards Mr. Slutsky's ruling on the Board's Motion for Continuance
of Hearing, and his conduct during the March 18, 2010, hearing. On Tuesday, March 16, 2010, the
Board, through its County Attorney, Bruce T. Barker, submitted its motion for a continuance to
Mr. Slutsky. It argued that the original notice for the March 18, 2010, hearing did not properly
notify the public that the issue for the hearing would be what areas of Larimer and Weld Counties
should be taken out of the enhanced testing requirement. A copy of the Board's Motion is
enclosed. Mr. Slutsky issued a ruling on March 17, 2010, that only provided a curt statement as to
the filing and writing of the Motion itself, without any attention to its substance, saying, "On the
Petitioners motion for continuance now before the Commission, the hearing officer finds the
motion frivolous,poorly argued, and untimely. Petitioners motion for continuance is, therefore,
denied. " A copy of Mr. Slutsky's Order is enclosed. Such ruling obviously provided no indication
as to whether the notice was sufficient or insufficient for the March 18, 2010, rulemaking hearing.
The Board views it as rude and unprofessional. When Mr. Barker asked to appeal the ruling to the
Commission,he took the opportunity on his own to make the argument, but was not afforded any
time by Mr. Slutsky to rebut what was discussed by the Division and the representative from the
Attorney General's Office. The AQCC ruled to uphold Mr. Slutsky's denial of the Board's
Motion. Later in the hearing, Mr. Slutsky made derogatory comments regarding Weld County's
time left for presentation of testimony, inferring that he would be pleased if Mr. Barker used up all
of his time on cross-examination. Again, the Board views such conduct as rude and
unprofessional. It casts a shadow over the entire proceeding and left many persons in the room
with the impression that the AQCC was concerned only about hearing testimony and evidence in
favor of the amendments to Regulation 11.
The Board raises these concerns with the AQCC for two purposes. First, the Board desires for the
AQCC to reconsider the amendments to Regulation 11 that it approved at the March 18, 2010,
hearing. Second, the Board wishes to make known to the AQCC the appearance of a conflict of
interest on Mr. Slutsky's part, and his rude and unprofessional behavior in the course of the
hearing. At a minimum, such appearance of conflict and behavior should be avoided by the
AQCC's hearing officers in future rulemaking hearings.
Letter, AQCC Chair Roberts
May 18, 2010
Page 3
If you wish to discuss this letter, please contact either Commissioner Sean Conway at(970) 356-
4000, ext. 4200.
Sincerely,
BOARD OF COUNTY COMMISSIONERS
Doug} s Radet acher, Chairman
asi
David E. Long, Pro Tem William F. Garcia
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Liz c,c____
Sean P. Conway L Barbara Ki eyer
pc: Bruce Barker, Weld County Attorney
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