(e) In the case of contumacy or refusal to obey a subpoena under this section, the district court shall have jurisdiction, upon the application of the board or its authorized delegate to issue an order requiring such person to appear and testify or produce evidence, as the case may require. Any failure to obey such an order may be judged by any court as contempt thereof.

(f) At any hearing, opportunity to be heard with respect to the subject thereof, shall be given to the public.

(g) Any person heard at such hearing shall be given written notice of the action of the board with respect to the subject thereof.

SEC. 9. COMPLAINTS. (a) Investigation: In case any written complaint shall be filed with the department and it shall have cause to believe, or in case the department itself shall have cause to believe, that any person is violating any code, rule or regulation which was promulgated by the board by causing or permitting air pollution or air contamination, the department shall cause a prompt investigation thereof to be made; and it shall find after such investigation, that such a violation of any code, rule or regulation of the board exists, it shall, by conference, conciliation and persuasion, endeavor to the fullest extent possible, to eliminate the source or cause of the air pollution or air contamination which resulted in such violation.

(b) Hearing: In case of failure by conference, conciliation and persuasion to correct or remedy any source or cause of air pollution or air contamination which resulted in a violation of any code, rule or regulation of the board, the board shall cause to have issued and served upon the person complained against, a written notice, together with a copy of the complaint made by the department or a copy of the complaint made to the department, which shall specify the provision of the code, rule or regulation of which such person is said to be in violation, and a statement of the manner in, and of the extent to which, such person is said to violate it and shall require the person so complained against to answer the charges of such complaint at a public hearing before the board at a time not less than fifteen days after the date of notice.

(c) Conduct of Hearing: (1) The respondent to such complaint may file a written answer thereto and may appear at such hearing in person or by representative, with or without counsel, and may submit testimony, or may do both. (2) The board, at the request of any respondent to a complaint made pursuant to this act, shall subpoena and compel the attendance of such witnesses as the respondent may reasonably designate and it shall require the production for examination of any book or paper relating to the matter under investigation at any such hearing.

(3) The testimony taken at the hearing before the board or its delegate shall be under oath and recorded stenographically.

SEC. 10. ORDER or DetermINATION. (a) After due consideration of the written and oral statements, the testimony and arguments that shall be submitted hereunder, or upon default in appearance of the respondent on the return day which shall be specified in the notice given the board, may issue and enter such final order, or make such final determination as it shall deem appropriate under the circumstances, and it shall notify the respondent thereof in writing by registered mail. In all proceedings before the board with respect to any alleged violation of any code, rule or regulation which shall have been promulgated by the board, the burden of proof shall be upon the board.

(b) Any final order or determination or other final action by the board shall be approved in writing by at least one-half of the members of the board.

SEC. 11. REVIEW. Any final order or determination or other final action by the board and the validity or reasonableness of any code, rule or regulation of the board adopted under the provisions of this act, shall be subject to review by a district court; provided, however, any proceeding brought under this section, must be instituted within four months after this action of the board which is sought to be reviewed, shall become final and binding upon the petitioner or the person whom he represents, either in law or in fact.

SEC. 12. EMERGENCY ACTION. Whenever the board, after investigation, is of the opinion that any person is discharging or causing to be discharged into the atmosphere directly or indirectly any air containment and the board certifies that such discharge constitutes danger to the health of the people and that it therefore appear to be prejudicial to the interests of the people of the state to delay action for a period of fifteen days as provided in Section board shall notify the person by written notice that he must discontinue immediately the discharge of such contaminants to the atmosphere whereupon such

the

person shall immediately discontinue such discharge. As promptly as possible thereafter within a time not to exceed fifteen days, the board shall provide the person the opportunity to be heard and to present any proof that such discharge does not constitute a danger to the health of the people.

SEC. 13. VIOLATIONS, CORRECTIONS, PENALTIES. (a) Voluntary Correction: If, at a hearing held before the board, the board shall determine that the person against whom a complaint was made is violating any code, rule or regulation which was promulgated by the board by causing or permitting any air pollution or air contamination from an air contamination source that is under the control of such person, it shall fix a time, which shall be reasonable under all the circumstances and which may be extended by the board from time to time, during which such person shall be required to take such measures as may be necessary to prevent the violation and to give periodic progress reports thereon. Any information as to secret processes or secret methods of manufacture or production which shall be revealed by such periodic progress reports shall be kept confidential.

(b) Civil Liability: (1) Any person who shall have been so determined by the board to have violated any code, rule or regulation which was promulgated by the board and who shall not have taken such preventative or corrective measures as shall be required by the board within the time fixed by it, either originally or as extended, as the case may be, shall be liable for a penalty not to exceed the sum of five hundred dollars for said violation and an additional penalty of not to exceed one hundred dollars for each day during which such violation continues, commencing on the first day after the expiration of the time so fixed in the order of the board for taking such preventative or corrective measures. In addition thereto, such person may be enjoined from continuing such violation as hereinafter provided.

shall be recoverable in an

(2) The penalty provided for in Section action brought in the name of the people of the state, by the attorney general. (3) An action or cause of action for the recovery of a penalty under this act may be settled or compromised by the attorney general after the proceedings are brought to recover such penalties prior to the entry of judgment therefor. (c) Exemptions: The civil liabilities which shall be imposed pursuant to the provisions of this section upon persons violating the provisions of any code, rule or regulation shall not be construed as to include any violation which was caused by an Act of God, war, strike, riot, catastrophe or other condition as to which negligence or willful misconduct on the part of such persons was not the proximate cause.

SEC. 14. VARIANCES. (a) Permissive: Notwithstanding any other provision of this act, the board may suspend the enforcement of the whole or any part of any code, rule or regulation of the board in the case of any person who shall show that the enforcement thereof would be inequitable or unreasonable as to such person, or the board may suspend the enforcement thereof for any other reason deemed by it to be sufficient to show that the enforcement thereof would be a hardship upon such person; and upon any suspension of the whole or any part of such code, rule or regulation the board shall grant to such person a variance therefrom.

(b) Other Considerations: In determining under what condition and to what extent a variance from such code, rule or regulation may be granted, the board shall give due recognition to the progress which the person requesting such variance shall have made in eliminating or preventing air pollution. In such case the board shall consider the reasonableness of granting a variance conditioned upon such person effecting a partial abatement of the particular air pollution or a progressive abatement of such air pollution over a period of time which it shall consider reasonable under all the circumstances, or the board may prescribe other and different requirements with which the person who shall receive such variance shall comply.

(c) Required: The board shall grant a variance from any such code, rule or regulation to, and suspend the enforcement thereof as to, any person who shall show in the case of such person and of the activity which such person then operates that a compliance by such person with such code, rule or regulation, and of the acquisition, installation, operation and maintenance of facilities and equipment with which to accomplish such compliance, would constitute an undue hardship on such person and would be out of proportion to the benefits to be obtained thereby; provided, however, that a variance shall not be granted under the provisions of the section where the person applying therefor is causing air

pollution which constitutes a health hazard; and provide, further, that any variance so granted shall not be so construed as to relieve the person who shall receive it from any liability imposed by other law for the commission or maintenance of a nuisance.

(d) DURATIONS Any variance granted pursuant to the provisions of this section shall be granted by such period of time, not exceeding six months, as shall be specified by the board at the time of granting it, but any variance may be continued from time to time. Any variance which shall be granted by the board may be granted on the condition that the person who shall receive it shall make such reports to the board, as the board shall specify as to the progress which such person shall have made toward reaching a compliance with such code, rule, or regulation of the board.

(e) Injunctions: If measures to prevent or correct air pollution or air contamination which is in violation of any code, rule, or regulation promulgated by the board shall not be taken in accordance with the order of the board, the district attorney of the judicial district in which the cause of action shall arise, shall institute appropriate legal proceedings to abate any condition which exists in violation of, or to restrain or enjoin any action which is in violation of, or for the enforcement of the laws relating to air pollution as a public nuisance, or the standards, orders, rules, and regulations of the department established by or issued under the provisions of this article, upon his own initiative or when requested to do so by the director of the department. If the district attorney fails to act, the director of the department may bring any such action and shall be represented by the attorney general or, with the approval of the board, by special counsel.

SEC. 15. EXEMPTIONS. (a) Exempted from the prohibitions of this law are smoke from necessary fires set by or permitted by any public officer in the performance of his official duty to abate weeds, to prevent a fire hazard, or to instruct public employees in the methods of fire fighting.

(b) The prohibitions of this law do not apply to:

(1) Agricultural operations in the growing of crops or raising of fowls or animals.

(2) The use of equipment in agricultural operations in the growing of crops, or raising of fowls or animals.

SEC. 16. EXISTING RIGHTS AND REMEDIES. It is the purpose of this act to provide additional and cumulative remedies to prevent and abate air pollution and air contamination. Nothing contained in this act, shall abridge or alter rights of actions or remedies now or hereafter existing, nor shall any provision of this act, or anything done by virtue of this act be construed as estopping individuals, cities, counties, or city and county in the state from the exercise of their respective rights to suppress nuisances or to prevent or abate air pollution or air contamination.

SEC. 17. CONFLICTING LAWS. This act shall not be construed as repealing any of the laws relating to air pollution or air contamination which are not by this act expressly repealed, but it shall be held and construed to be as ancillary to and supplementing the laws now in force, excepting as they may be in direct conflict with this act.

SEC. 18. LOCAL LAWS, ORDINANCES, AND REGULATIONS. Any local laws, ordinances, codes, rules or regulations of any governing body of any city, county, or city and county which are not inconsistent with this act or with any code, rule or regulation which shall be promulgated pursuant to this act shall not be superseded by it, and nothing in this act or in any code, rule or regulation which shall be promulgated pursuant to this act shall preclude the right of any governing body of a city, county, or city and county to adopt local laws, ordinances, codes, rules or regulations which are not inconsistent with this act or with any code, rule or regulation which shall be promulgated pursuant to this act. Any local laws, ordinances, codes, rules or regulations of a city, county, or city and county which comply with at least the minimum applicable requirements set forth in any code, rule or regulation promulgated pursuant to this act, shall be deemed consistant with this act or with any such code, rule or regulation. SEC. 19. SEVERABILITY. If any provision of this act or the application thereof, to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act, which can be given effect without the invalid provisions or application and to the end the provisions of this act are declared to be severable.

SEC. 20. SAFETY CLAUSE. The General Assembly hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health and safety.

SEC. 21. Appropriation to the department to carry out the act.

Senator Moss. Our next witness is Dr. Roy L. Cleere, State health officer for Colorado.

Mr. Cleere, we are glad to have you this morning and we look forward to receiving your testimony.

Dr. CLEERE. Thank you, Senator. I do wish to express my appreciation to the Subcommittee on Air and Water Pollution for conducting this hearing in Denver.

Senator MUSKIE. Dr. Cleere, you have the same associates? Fine. Go right ahead.

STATEMENT OF DR. ROY L. CLEERE, DIRECTOR, COLORADO STATE DEPARTMENT OF PUBLIC HEALTH

Dr. CLEERE. I also wish to thank you for inviting me to meet with the subcommittee. I have a rather brief statement, Senator. I think I will impose on your time by reading it. It overlaps to a certain extent the statement of Mr. Haver, which is understandable, since Mr. Haver is chairman of the Air Pollution Advisory Committee to the State board of health appointed by the Governor and he has worked closely with the staff of the State health department.

Until a few short years ago, air pollution was not considered an important problem in Colorado. In fact, Coloradans prided themselves on their State's clean mountain air and enjoyed viewing its natural beauty through clear, unsullied skies. As Colorado cities grew, however, and as fuel consumption, industrial production, and combustion processes multiplied even faster, our air, like that in other States, became more and more saturated with the wastes of progress. In 1957 the Colorado State Department of Public Health along with the Denver Department of Health and Hospitals, the Tri-County District Health Department and the Jefferson County Health Department, became concerned about the apparent deterioration of air quality in the metropolitan area of Denver. Although visible air pollution was not then great, a slight haze did cover the city from time to time and seemed to be growing worse. Since the U.S. Public Health Service had by that time participated in a number of air pollution surveys around the country, the combined departments through the State agency requested a Federal evaluation of the significance of the emerging problem. An air pollution control advisory committee was also appointed by the State board of health. Mr. Jean Scheunemann, of the Public Health Service air pollution program, carried out such a study in the fall of 1957 and recommended that control programs be developed top revent or at least postpone the predicted increase in pollutant levels. While one of the participating agencies did budget funds as recommended, the others, because of financial and jurisdictional problems, did not then follow suit.

As anticipated, the increase in air pollution soon became obvious and the Denver Chamber of Commerce joined with the health agencies, the Denver Building Department, and others in developing plans aimed toward providing control programs. The first step was to

determine the actual levels of pollutants in the air. With the U.S. Public Health Service again assisting by providing some of the personnel and equipment, the group measured air levels of particulates (high volume and tape samplers) and some gases. These measurements showed that Denver did, indeed, have an air pollution problem comparable to that in other cities of similar size. At about the same time, the State health department with Public Health Service help, conducted a statewide study which revealed that more than two-thirds of Colorado communities felt they had air pollution problems of some degree. With this data in hand, the cooperating agencies felt they had ample justification for preparing and recommending control legislation.

During calendar year 1962, the group developed proposed legislation that would authorize creation of air-pollution control districts and provide for State and local health department enforcement where districts did not exist. These bills were introduced into the 1963 legislature but were opposed on several grounds. In the first place, many local governmental officials and legislators felt that creation of an additional single purpose district was an undesirable approach. Industry feared that air pollution districts might be set up where they were not really needed and uselessly require expensive control measures. Other persons believed that sufficient information was not yet available on the extent, degree, effects and causes of air pollution statewide. As the result a law was passed which called on the State department of public health to establish ambient air standards (with the advice of an advisory committee appointed by the Governor); to monitor the air to determine which areas in the State do not meet the standards; to determine the extent of areas affected by air not meeting the standards; to develop maximum allowable standards for motor vehicle emissions; and to study the causes and effects of air pollution throughout the State. In addition, the legislature set up a local affairs study commission of 100 members to be appointed by the Governor to study metropolitan problems such as providing machinery for enforcement of metropolitanwide programs including those for control of air pollution sources.

For the better part of the last year, the Colorado State Department of Public Health has been actively carrying out the duties imposed by the statute. With the advisory committee's assistance, the State board of health approved ambient air standards and recommended legislative consideration. A bill including these standards has been introduced in the present session of the Colorado Legislature. Mr. Robert Haver, chairman of the Air Pollution Advisory Committee, will discuss these standards later this morning. The department, with the aid of county and district health departments, has also set up an air pollution monitoring network covering six of our largest communities and has found that three of them do not now meet the minimum standards. We have gathered information that has enabled us to set boundaries for the air pollution basins so determined, we have studied meteorology, automobiles and other air pollution causes and we have collected data on air pollution effects on human health and wellbeing, plants, animals, visibility and economy throughout the State. Finally, we have cooperated with several interested legislators in preparing a bill calling for local air pollution control programs by cities