Pollution Protection Measures

Section 2 of the bill removes the requirement that the air quality control commission (AQCC) promulgate rules setting the conditions and limitations for periods of start-up, shutdown, or malfunction of a source of air pollution (source) that justify temporary relief from an emission control regulation creates the legislative interim committee on ozone air quality (committee) to study ozone air quality in the state. The committee consists of six members of the senate and six members of the house of representatives. The committee may meet up to six times during the 2023 interim and may introduce up to a total of five bills.Current law provides that a person shall not permit the emission of air pollutants at a nonresidential structure unless an air pollution emission notice has been filed with the division of administration in the department of public health and environment (division). Section 5 adds the requirements that any:

• Relevant permits have been approved by the division; and
• Applicable period of review by the federal environmental protection agency has been completed.

Section 6 removes the prohibition against the AQCC adopting rules covering indirect sources that are more stringent than applicable federal law.Section 6 also requires the division, in evaluating a construction permit application for a source that includes new oil and gas operations, to:

• Aggregate emissions from a proposed or modified oil and gas system; and
• Consider emissions from exploration and preproduction activities if a proposed or modified oil and gas system is in an ozone nonattainment area and if the activities will be conducted beginning May 1 and ending August 31 of any year (ozone season).

Section 8 clarifies that only the filing of a renewable operating permit application can operate as a defense to an enforcement action for operating without a permit during the time period that the division or the AQCC is reviewing the permit application.Current law requires the division or the AQCC to give public notice of certain construction permit applications or renewable operating permit applications and of certain public hearings through a newspaper publication or another method that ensures effective public notice. Current law also requires the division to maintain a copy of a construction permit application and applicable preliminary analysis or a notice of public hearing with the county clerk and recorder of the county where the applicable project is located. Section 8 also removes the newspaper publication option and the county clerk and recorder filing requirements and provides for alternative methods of giving public notice, including posting information about the application or any public hearings on the division's or the AQCC's website.Current law requires the division or AQCC to make a finding that a source or activity will meet all applicable emission control regulations, including ambient air quality standards (AAQS), before granting a permit for the source or activity. Section 8 also requires that, beginning January 1, 2024, for at least any source or activity that has the potential to emit levels of air contaminants above certain modeling thresholds, the division or AQCC must base any finding that the source or activity will not cause or contribute to an exceedance of applicable AAQS on air quality modeling.Section 8 also allows the division, after an investigation into whether an activity meets the requirements of a construction permit, to propose additional terms and conditions of the construction permit.

With respect to a complaint alleging or the division's own belief of the division of administration in the department of public health and environment (division) regarding a violation or noncompliance (violation), section 9 section 3 requires the division to:

• Cause a diligent investigation into the violation to be made unless the complaint clearly appears to be frivolous or trivial or the complainant withdraws the complaint;
• Notify the owner or operator of the applicable air pollution source of the complaint or the division's belief of an alleged violation within 30 days after the complaint was filed or the division discovered the alleged violation; Respond to a complainant to outline the steps of the complaint investigation within 30 days after receipt of the complaint;
• If the division is acting in response to a complaint, notify the complainant that an investigation has commenced at the time that the division provides notice to the owner or operator of the air pollution source; and
• Accept and consider all relevant evidence that it acquires when investigating the alleged violation. and
• Determine whether a violation occurred within 90 days after the division gives notice that it has commenced an investigation on the matter.

If the division determines that a violation has occurred, current law requires the division to issue a compliance order unless the responsible party gives timely notice that the violation occurred during a period of start-up, shutdown, or malfunction. Section 9 Section 3 removes the exception for periods of start-up, shutdown, or malfunction.Section 9 Section 3 also requires, if a hearing is requested, after the receipt of a compliance order, the air quality control commission to provide at least 45 days' notice to any complainant that submitted a complaint alleging the applicable violation.Section 9 also allows a complainant to submit a request for a hearing within 20 calendar days after receipt of a determination by the division that no violation occurred.

Current law provides that any noncompliance that occurs during a period of start-up, shutdown, or malfunction exempts the owner or operator of a source from the duty to pay penalties related to that noncompliance. Section 9 Section 3 removes this provision.Section 9 also allows a person, with respect to certain clean air regulations, to commence a civil action (action) against an alleged violator for a current or past violation of the regulation. A person shall not commence an action until at least 60 days after a notice has been provided to the executive director of the department, the director of the division, and the alleged violator. Except for violations of an ongoing or recurring nature, any action that is not commenced within 5 years after the discovery of the alleged violation is time barred.

Current law requires the division to consider certain factors in determining the amount of a civil penalty to assess for a violation. Section 10 Section 4 requires the division to also consider the impact of the violation on safety and wildlife and biological resources and the severity of the violation.

Current law provides that any action related to an alleged violation of air quality laws that is not commenced within 5 years after the occurrence of the alleged violation is time barred. Section 11 Section 5 excludes actions commenced to address a failure to obtain a permit from this statute of limitation.Section 12 creates new electrification requirements and emissions standards for stationary engines used in oil and gas operations.Section 13 creates new control measures that must be included in any state implementation plan for ozone adopted by the AQCC until a serious, severe, or extreme ozone nonattainment area in the state is redesignated as a maintenance area by the federal environmental protection agency.Section 15 Section 7 requires the district court, in a suit against a person that has violated a state law, rule, or order related to oil and gas, to award the initial complaining party any costs of litigation incurred by the initial complaining party if the court determines that the award is appropriate. Section 16 Section 8 allows any person to submit a complaint to the oil and gas conservation commission (COGCC) alleging a violation of a state law, rule, or order related to oil and gas. Upon receipt of the complaint, the COGCC or the director of the COGCC is required to promptly commence and complete an investigation into the violation alleged by the complaint, unless the complaint clearly appears on its face to be trivial or the complainant withdraws the complaint.Section 17 requires the COGCC to evaluate and address adverse cumulative impacts on the environment and disproportionately impacted communities for each permit application for a new or substantially modified oil and gas location through a cumulative impact analysis.Section 9 makes an appropriation.

(Note: Italicized words indicate new material added to the original summary; dashes through words indicate deletions from the original summary.)

(Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)