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Colorado-Ute Elec. Ass'n v. Air Pollution Control Comm'n

Citation: 12 ELR 20567
No. No. 77-662, 648 P.2d 150/(Colo. Ct. App., 11/30/1981)

The Colorado Court of Appeals rules that the Colorado Air Pollution Control Commission was without authority to adopt a regulation making compliance with ambient air quality standards a condition to the continued validity of permits to operate electric power generation plants. Initially, the court rules that it need not determine whether appellees failed to exhaust their administrative remedies prior to seeking judicial review since exhaustion is not required when the issues presented to the court concern whether the agency action was within the scope of the applicable enabling statute. In addition, the court rules that the case is not moot. Although the relevant portions of the regulation were repealed subsequent to the issuance of Colorado-Ute's permit, the Colorado Air Pollution Control Act (APCA) requires that conditions imposed pursuant to subsequently repealed regulations be given continuing legal effect. Turning to the merits, the court holds that the Commission did not have the authority to suspend or revoke a previously issued operating permit because of the permittee's failure to meet ambient air quality standards. The court determines that the APCA compels the Colorado Air Pollution Control Division to issue a construction or operating permit unless it determines that the proposed project would not meet applicable emission standards or regulations of the Commission or would interfere with the attainment or maintenance of existing federal ambient air quality standards. However, the Act does not authorize the Commission to require continuing compliance with air quality standards as a condition in an operative permit. The APCA creates a distinction between ambient air standards, which are goals, and emission standards, which are enforceable permit conditions, a distinction which is justified by the fact that conformity or non-conformity with emission standards by a particular permittee can be determined and enforced, while a violation of an ambient air quality standard by an individual permittee is difficult to determine. A dissent would uphold the Commission's regulation, finding that the Commission has broad discretion in interpreting the complex APCA and acted within its legislative mandate.

Counsel for Plaintiff
Robert T. Connery, Helen Marsh
Holland & Hart
P.O. Box 8749, Denver CO 80201
(303) 575-8000

Counsel for Defendants
J. D. MacFarlane, Attorney General; David W. Robbins, Edward G. Donovan, Gregory J. Hobbs Jr., Hubert A. Farbes Jr., Janel Lee Miller
Dep't of Law, 3d Floor, 1525 Sherman St., Denver CO 80203
(303) 866-3611

David C. Mastbaum
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Quinn, J. joined by Van Cise, J.