HomeMy WebLinkAbout20231139.tiffOFFICE OF THE BOARD OF COMMISSIONERS
PHONE: 970-400-4200
FAX: 970-336-7233
1150 O STREET
P.O. BOX 758
GREELEY, CO 80632
April 19, 2023
The Honorable Jared Polis, Governor
Colorado State Capitol Building
200 East Colfax Ave., Room 136
Denver, CO 80203
GovernorpoUis@state.co.us
Re: Weld County Opposition to House Bill 23-1294
Dear Governor Polio:
In the last several years, the Weld County Board of County Commissioners has made unprecedented investments in
air quality monitoring and is an active participant in rulemaking and other stakeholder processes to protect and improve
air quality in Weld County and in Colorado generally. We, therefore, view efforts by the Colorado General Assembly
to improve air quality with great interest; however, we are deeply troubled by House Bill 23-1294 ("HB 1294" or the
"Bill") introduced and tided "Concerning Measure to Protect Communities From Pollution." After a careful review
of HB 1294, we believe the bill is deeply flawed in numerous respects. We respectfully request you strongly signal
your opposition of HB 1294 to its sponsors, and that you veto the Bill if it should pass both houses and make its way
to your desk.
Some of the more fundamental problems we see in the Bill include the attempt to establish air quality modeling
thresholds and specific ozone control measures by legislative fiat rather than the use of best available data and
modeling to craft appropriate thresholds and targeted control measures; elevating modeling over actual air quality
monitoring data; essentially eliminating the use of general permits for minor sources; and creating a private right of
action and rights to multiple hearings for complainants that disagree with the outcome of required Division
investigations, among many other concerns. HB 1294 also indulges an unwarranted focus upon oil and gas ("O&G")
industry emission controls that is not likely to move the needle on ozone based on the latest photochemical modeling
and source apportionment data Therefore, HB 1294 would perpetuate the ozone reduction failures of prior recent
rulemakings while ignoring sectors that contribute most to our chronically violating ozone monitors. Also, certain
sectors and citizen behaviors require incentives to promote necessary and beneficial change, rather than command and
control regulations or sanctions. HB 1294 is a quite lengthy bill with many novel provisions that would substantially
amend both the Colorado Air Pollution Prevention and Control Act and the Colorado Oil and Gas Conservation Act;
we have summarized some of the more significantly flawed and detrimental provisions of the Bill for your
consideration below:
Air Permitting Would be Greatly Complicated and Delayed
• The Bill would aggregate all oil and gas operations under common control into a single source using the
definition of an "oil and gas system". This flies in the face of federal guidance on the aggregation of multiple
sources that are contiguous or adjacent, including guidance specific to oil and gas operations,' and is really
designed to force O&G facilities into endless major source permitting amendments and revisions that will
also bog down Colorado Department of Public Health and Environment (CDPHE) permitting.
https://www.epa.gov/sites/default/files/2016-09/documents/source-determination-fs.pdf
CoMl-Avn; co.-1-;onS
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2023-1139
Letter, Governor Jared Polis
April 19, 2023
Page 2
The Bill would effectively eliminate the benefits of a general permit by requiring full permit issuance
before commencing construction and effectively prohibits any permit that would increase emissions,
potentially prohibiting any development or new sources at any facility in Colorado.
The Bill allows the Air Pollution Control Division (APCD) to impose new conditions after facility startup
without a re -application process or proposed permit revocation review. This creates great uncertainty even
after lengthy permitting, obtaining a permit, and actually demonstrating the source can be operated in
compliance with the permit's terms and conditions.
The Bill would remove all Startup, Shutdown, and Malfunction provisions in rule or permit, making the
sanctioning of unforeseen malfunctions of complex emission control systems a strict liability offense.
The Bill also would require a cumulative impact analysis for each O&G facility seeking a permit from the
Colorado Oil and Gas Conservation Commission (COGCC), but COGCC has already begun a stakeholder
process regarding cumulative impact considerations in its permitting program.
Required Air Quality Modeline Would be Time -Consuming. Expensive, and of Limited Benefit
The Bill would eliminate monitoring as a means to evaluate air quality impacts in favor of modeling, and
while modeling is a useful tool, it is no substitute for monitoring data.
The Bill would lower modeling thresholds from the very recently developed guidance and codifies
modeling thresholds in statute, effectively removing subject matter experts from the Division as well as
various stakeholders from revising these thresholds as better data become available or modeling techniques
evolve.
• The Bill implies a requirement to conduct ozone modeling for demonstrating a National Ambient Air
Quality Standards (NAAQS) would not be exceeded. Ozone is a complex issue not driven by any individual
facility's emissions. The demonstration required by this bill is impractical and uninformative.
Control Measures are Mandated with Novel Feasibility Considerations
• The Bill would require electrification to replace oil and gas engines after 2025 unless deemed "infeasible,"
which is based on access concerns only rather than including the cost of new transmission lines and the true
cost of electrification in a new area with a new grid system.
• The Bill would impose currently infeasible Nitrogen Oxide (NOx) standards on existing or new engines
without the benefit of a typical Reasonably Available Control Technology (RACT) or Best Available Control
Technology (BACT) analysis of engine technology and controls. The Clean Air Act established these
technology reviews as a systematic means to ensure the most effective technology is implemented on a site -
specific basis. This Bill would forego expert analysis in favor of a legislative mandate by non -experts.
• The Bill would preempt Governor's appointees on the Regional Air Quality Council ("RAQC") and its
professional staff from developing control strategies based on the best available data and modeling for
adoption through rulemaking.
• The Bill would mandate vehicle miles traveled (VMT) reductions in the ozone nonattainment area without
specifying how such requirements would be developed and enforced. This provision appears to have learned
nothing from the failure of the proposed and withdrawn Employee Trip Reduction Program ("ETRP") rule,
or the need to change behaviors with incentives rather than brute force regulation.
Letter, Governor Jared Polis
April 19, 2023
Page 3
• The Bill would also impose a requirement to regulate indirect sources of NOx and VOC without any data
or analysis of the costs and benefits of such an effort. The latest RAQC source apportionment analysis
showed that these sources of emissions have inconsequential impacts on ambient ozone concentrations.
Complaints and Litigation are Invited with Unprecedented Fee -Shifting Provisions
This Bill provides no standards of evidence and would appear to compel investigation of frivolous and trivial
complaints.
The Bill would also provide complainants a hearing opportunity before the Air Quality Control
Commission (AQCC) if their complaint is found by the Division to be unwarranted after investigation —
further bogging the AQCC down with potentially hundreds of hearings on potentially frivolous complaints.
The Bill would empower citizens to file civil actions even if civil penalties are levied by the Division
against an operator and with a greatly enlarged limitation of actions period.
In conclusion, HB 1294 has so many significant problems in its provisions that we are compelled to seek your
opposition and your veto of the Bill. The Bill will create a permitting morass in Colorado not only for public and
private facilities requiring air permits, but it will inflame the sensibilities of commuters and will bury the air permitting
program at CDPHE in endless revisions to permits, modeling for permits, and investigations of complaints and
hearings on complaints already found to be unwarranted, among its many other flaws. Unfortunately, there is simply
no fix for such a broadly problematic piece of legislation this late in the Legislative Session.
We thank you in advance for your attention to this urgent request for your assistance in opposing and vetoing House
Bill 23-1294.
Respectfully submitted this 19. day of April 2023,
BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO
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Mike Freeman, Chair
Perry L. t5tck, Chair Pro -Tern
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K. James
C: Bruce T. Barker, Weld County Attorney
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