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Colorado Construction Air Quality Permit (15-CO-a)

Information current as of 2020
In Colorado, a person (developer) may need a Construction Air Quality Permit from the Colorado Department of Public Health and Environment (CDPHE) Air Pollution Control Division (APCD) to "construct or substantially alter any building, facility, structure, or installation…or install any machine, equipment, or other device, or…conduct of any…activity, …operations…which will or do constitute a new stationary source or a new indirect air pollution source." Colo. Rev. Stat. § 25-7-114.2; Colo. Code Regs. tit. 5 § 1001-5 Part A (I)(A).


Important definitions include:

  • Person means "any individual, public or private corporation, partnership, association, firm, trust, estate, the United States or the state or any department, institution, or agency thereof, any municipal corporation, county, city and county, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties." Colo. Rev. Stat. § 25-7-103(19).
  • Stationary source means "any building, structure, facility, or installation which emits or may emit any air pollutant." Colo. Rev. Stat. § 25-7-103(23).
  • Indirect air pollution source means "any facility, building, structure, or installation, or any combination thereof, excluding dwellings, which can reasonably be expected to cause or induce substantial mobile source activity which results in emissions of air pollutants which might reasonably be expected to interfere with the attainment and maintenance of national ambient air standards." Colo. Rev. Stat. § 25-7-103(14).


The APCD regulates air quality emissions pursuant to Colo. Rev. Stat. §§ 25-7-101–25-7-140.



Construction Air Quality Permit Process


15-CO-a.1 to 15-CO-a.3 – Consult Air Pollution Control Division (APCD) and the Notice/Permit Exempt Checklist

The developer should consult the Air Pollution Control Division (APCD) and the APCD Air Pollutant Emission Notice/Permit Exempt Checklist to determine if the project is exempt from Construction Air Quality Permit requirements. A project may be exempt from Construction Air Quality Permit requirements if the project is listed in 5 Colo. Code Regs. § 1001-5(B)(II)(D). Those exemptions do not apply if the emission source is subject to Part A of 5 Colo. Code Regs. § 1001-8 or Parts A, C, D, or E of Colo. Code Regs. tit. 5 § 1001-10.

15-CO-a.4 — Air Pollution Emission Notice (APEN)

The developer must file an Air Pollution Emission Notice (APEN) and pay an associated fee to the Colorado Department of Public Health and Environment Air Pollution Control Division (APCD) if their project is not exempt. The APEN must specify:

  • The location at which the proposed emission will occur;
  • The name and address of the persons operating and owning the facility;
  • The nature of the facility, process, or activity;
  • An estimate of the quantity and composition of the expected emission; and
  • Any other information required in the most current Air Pollutant Emission Notice form.

5 Colo. Code. Regs. § 1001-5(A)(II)(A); Form APCD-200; Air Pollution Emission Notice (APEN).

15-CO-a.5 — Hold Pre-Application Meeting (Optional)

The developer may hold a pre-application meeting with the APCD. The pre-application meeting is an opportunity for the APCD to advise the developer of the applicable permit requirements, including any information, plans, specifications, and data developer must include in the Construction Air Quality Permit Application (Application). Colo. Code Regs. tit. 5§ 1001-5(B)(III)(A).

15-CO-a.6 — Construction Air Quality Permit Application (Application)

The developer must submit an Construction Air Quality Permit Application (Application) and include a copy of the developer's APEN. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(B). The APCD has different Applications divided by emission source category, such as Form APCD-223 for land development, as well as General Form APCD-200 for sources that do not fit into one of the categories. APCD Forms. For the full list available application forms, see APCD Forms.

15-CO-a.7 to 15-CO-a.9 — Review Application Materials for Completeness

The APCD must review the Application for completeness within 60 days of receiving the application. The APCD cannot deem an Application complete until the developer submits all the information and data required to evaluate the Application. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(B)(4).

The APCD must notify the applicant (developer) within 60 days after receipt if the Application is incomplete. If the APCD fails to notify the applicant within 60 days of receipt of the Application, the Application is automatically deemed complete retroactive to the day of receipt by the APCD of the Application or supplemental information. 5 Colo. Code Regs. § 1001-5(B)(III)(B)(4).

15-CO-a.10 — Conduct Preliminary Analysis

The APCD must prepare a preliminary analysis of the Application within 60 calendar days of a complete Application. The preliminary analysis determines whether the emission source will, at the date of commencement of operation, comply with:

  • All applicable emission control regulations;
  • Applicable regulations for the control of hazardous pollutants;
  • Requirements of the nonattainment and attainment programs; and
  • Any applicable ambient air quality standards and regulations.

Colo. Code Regs. tit. 5 § 1001-5(B)(II)(B)(5).

The preliminary analysis must also indicate what impact, if any, the emission source will have on all areas (i.e., attainment, attainment/maintenance, nonattainment, unclassifiable) within the probable area of influence of the proposed source. 5 Colo. Code Regs. § 1001-5(B)(III)(B)(5).

15-CO-a.11 — Forward Analysis to Applicant (Developer) (If Applicable)

If requested, the APCD must send the applicant (developer) a copy of the preliminary analysis postmarked no later than 15 calendar days after the completion of the preliminary analysis. 5 Colo. Code Regs. § 1001-5(B)(III)(B)(5).

15-CO-a.12 —Draft Air Quality Construction Permit (Draft Permit)

The APCD must develop a Draft Air Quality Construction Permit (Draft Permit) based on the preliminary analysis. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C).

15-CO-a.13 — Is an Opportunity for Public Comment Required?

The APCD must provide an opportunity for public comment regarding the Draft Permit in certain circumstances. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(1). The regulation lists some types of projects that generally require a public comment period and some types of projects that generally do not require a public comment period. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(1)-(2). For example, an Application for construction or modification of sources in accordance with the minor modification and operational flexibility provisions of Sections X, XI, and XII of 5 Colo. Code Regs. § 1001-5 Part C does not require a public comment period unless the APCD determines that one is required. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(2).

The APCD also has the discretion to provide an opportunity for public comment outside of the circumstances listed in the regulation. In making a determination to provide an opportunity for public comment, the APCD must consider:

  • The duration of the operation;
  • The location of the operation;
  • The nature and projected amount of emissions;
  • The anticipated public concern; and
  • Any other relevant factors.

Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(3).

15-CO-a.14 — File Copy of Application, Preliminary Analysis, and Draft Permit with County Clerk

The APCD must file a copy of the Application, preliminary analysis, and the Draft Permit with the county clerk for each county in which the source is or will be located. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(4).

15-CO-a.15 — Publish Notice of Application for Construction Air Quality Permit (If Applicable)

The APCD must publish public notice of the Application within 15 days of the preparation of the preliminary analysis if a public comment period is required. The APCD must publish the notice in a newspaper of general distribution in the area where the proposed project or activity will be located and by any other means necessary to assure notice to the affected public (i.e. post on the APCD's website). The APCD must also send written or electric notice to persons requesting notice of permit applications for the type of source or geographic location of the source. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(4).

The notice must include:

  • The location and nature of the proposed project or activity for which an applicant filed an Application;
  • The location where the Application and preliminary analysis are available for inspection;
  • That any interested person may submit comments on the proposed project or activity;
  • That the APCD will receive and consider comments for thirty calendar days after publication; and
  • The APCD’s preliminary determination to approve, conditionally approve, or disapprove the Application.

Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(4).

15-CO-a.16 — Comment on Application, Preliminary Analysis, and Draft Permit (Optional)

Members of the public may comment on the Application within 30 days from the date of publication to comment on the Application, preliminary analysis, and draft permit. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(C)(4).

15-CO-a.17 — Hold Public Hearing (If Applicable)

The APCD may hold a public comment hearing if necessary. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(D).

15-CO-a.18 to 15-CO-a.20 — Does APCD Approve the Draft Construction Air Quality Permit?

The APCD must make a determination to approve or deny the Draft Construction Air Quality Permit (Draft Permit) within 30 days following the completion of the APCD’s preliminary analysis (if public comment is not required), within 30 days following the period for public comment, or within 30 days of a public comment hearing. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(D)(1). The APCD must grant the Draft Permit if the APCD finds:

  • The proposed source or activity will meet all applicable emission control regulations and regulations for the control of hazardous air pollutants;
  • As applicable, the proposed source or activity will meet the requirements of the attainment program as outlined in Section V of Part D of 5 Colo. Code Regs. § 1001-5, if any;
  • The proposed source or activity will not cause an exceedance of any National Ambient Air Quality Standards;
  • The source or activity will meet any applicable ambient air quality standards and all applicable regulations;
  • As applicable, the proposed source or modification will meet the requirements of the prevention of significant deterioration program of Section VI. of Part D of this regulation; and
  • The applicant (developer) has paid the fees required under 5 Colo. Code Regs. § 1001-5 Part A, Section VI.

Colo. Code Regs. tit. 5 § 1001-5(B)(III)(D)(1).

The APCD must include any terms and conditions in the Draft Permit necessary for the proposed project or activity to comply with state air quality regulations. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(E).

If the APCD denies the Draft Permit, the APCD must issue a written denial of the permit stating the reasons for the Draft Permit denial. A denial of a Draft Permit becomes final upon mailing of the letter of denial to the developer by certified mail. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(F).

The developer may request a hearing on a permit denial within 30 days of the denial. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(F).

15-CO-a.21 to 15-CO-a.25 — Begin Construction or Operation of Emission Source

The developer must begin construction or operation of the emission source within 18 months from the date on which the APCD issued the Draft Permit. If the developer does not begin construction within the 18-month period or begins construction and then discontinues construction for more than 18 months, the developer's Draft Permit expires unless the applicant (developer) requests an extension. If the developer requests an extension, upon a showing of good cause the APCD may grant an extension to begin or recommence construction not to exceed an additional 18 months. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(F)(4).

15-CO-a.26 — Provide Notice to APCD of Commencement of Operation

The developer must provide notice to the APCD within 15 days after commencement of operation of the project or activity, unless the developer and the APCD previously agreed to different terms. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(G).

15-CO-a.27 — Demonstrate Compliance with Draft Permit Conditions

The developer must demonstrate compliance with the terms and conditions of the Draft Permit within 180 days after operation begins. The APCD may inspect the source to determine whether the source has satisfied the operating terms and conditions of the Draft Permit. Before the APCD gives final approval to the source, the APCD may require the applicant (developer) to conduct and pay for performance tests in accordance with methods approved by the APCD. 5 Colo. Code Regs. § 1001-5(B)(III)(G).

15-CO-a.28 — Operating and Maintenance Plan and Proposed Record Keeping Format

The developer must submit an operating and maintenance plan for all control equipment and control practices and a proposed record keeping format for demonstrating compliance on an ongoing basis. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(G)(7).

15-CO-a.29 to 15-CO-a.30 – Does the APCD Approve the Final Construction Air Quality Permit?

The APCD issues a Final Construction Air Quality Permit (Final Permit) to the developer if the APCD determines that the terms and conditions of the Final Permit are satisfied. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(I).

Note: If the site changes ownership in the future, the new owner will have to submit a new Construction Air Quality Permit Application to the APCD but will not have to repeat the permitting process because the air permit stays with the site rather than the owner of the site. Colo. Code Regs. tit. 5 § 1001-5(B)(III)(I).

15-CO-a.31 – Appeal (Optional)

The developer may appeal a Final Permit Denial by the APCD to the Air Quality Control Commission within 30 days of receiving the denial. 5 Colo. Code Regs. § 1001-5(B)(III)(F)(3). See Colo. Code Regs. tit. 5 § 1001-5(B)(III)(F)(3) for more on appeals.


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