5 Colo. Code Regs. § 1003-2-100.46
The provisions of section 25-9-107, C.R.S., provide the specific statutory authority for the adoption of these amendments to the established regulatory provisions of Regulation 100 (5 CCR 1003-2). The Board also adopted, in compliance with section 24-4-103(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
Subsection 100.6.1. The Board added subsection 100.6.1 in April 2009 to implement the provisions of section 25-9-104(4), C.R.S., as amended by the General Assembly in 2008. The Office of Legislative Legal Services, which conducts legal reviews of all newly-promulgated agency rules, subsequently expressed concerns regarding the apparent "incorporation by reference" of the Division's Low Risk Discharge Policy in subsection 100.6.1(b)(i)(B). Based on these concerns, the Board decided as part of this rulemaking proceeding to delete subsection 100.6.1(b)(i)(B) (and to re-number the subsection accordingly).
The Board's initial intent in referencing the Division's Policy was to categorically exempt such facilities from the certified operator requirement because of their low risk of impacting the quality of state waters. The Board and the Division have agreed that the Board's intent can be accomplished alternatively through language in the Division's Low Risk Discharge Policy itself. Thus, the Low Risk Discharge Policy will soon be amended to state that the Division will use its enforcement discretion with respect to facilities which do not have a certified operator, where such facilities can prove that they are discharging pursuant to the Policy and implementing the best management practices outlined in the related guidance documents.
Subsection 100.13. The Board recognizes that section 25-9-107, C.R.S., refers to the "award" of a certificate, that certificates shall be "awarded for a period of three years", and that the timing of automatic revocation for non-renewal is referenced to the "expiration date" of the certificate. Earlier versions of this regulation, however, reference the date of automatic revocation of a certificate to the "issue" date. Because certificates may not always be issued exactly three years prior to the expiration date, this difference in language is significant.
The Board has, therefore, chosen to align the language of subsection 100.13 of this regulation more closely with the language of the governing statute and refer the three year validity period of all certificates either to the date of "award" (for new certificates) or to the date of expiration of the previous certificate (for renewed certificates). It is clarified that renewed certificates are valid for three years from the date of expiration of the certificate being renewed and not from the date of issue of the renewal certificate.
The Board further determined to adopt language which clarifies that the date of issue of a certificate does not determine the date on which a non-renewed certificate is automatically revoked. The Board intends to clarify that certificates shall be automatically revoked if not renewed within two years of the expiration of the certificate.
5 CCR 1003-2-100.46