5 Colo. Code Regs. § 1002-21.22
These amendments bring the procedural regulations into compliance with Senate bill 83 which amended the Water Quality Control Act, section 25-8-101 through 703, C.R.S. (1982 & 1985 Supp.), effective June 4, 1985.
S.B. 83 corrects certain deficiencies in the State water quality permit program. EPA specifically identified three areas of the permit program which did not comport with Federal requirements. Each of these problems - inadequate coverage of activities for which criminal penalties could be imposed, variances from water quality standards granted to individual permittees through their permits without sufficient notice or a legitimate concurrent change in the water quality standards through rulemaking, and the Commission acting as an appellate body for reconsideration of decisions made on individual permits in contravention of the Federal law's conflict of interest provision - has been resolved through S.B. 83.
Section 2.1.8 previously titled Hearings Pursuant to Section 204(3) has been retitled to Stream Standards and Classifications Hearings Pursuant to section 25-8-207.
Section 207 of the State water quality act is the core provision of S.B. 83. It replaces the right to variances and/or beyond secondary treatment hearings with a mandatory rulemaking hearing, to be conducted expeditiously for classifications and standards adopted before the date of the enactment of S.B. 83. These hearings are for review of classifications, standards and regulations adopted under sections 203 and 204 of the Act.
Previously adopted classifications, standards and regulations are now to be re-evaluated, upon petition, for consistency with the legislative policies set forth in section 102 and 104 of the Act, and with section 207 itself. This last provision requires the Commission to determine whether standards for a segment previously classified for aquatic life are more stringent than necessary to protect fish, shellfish and/or wildlife in segments which are reasonably capable of sustaining such life based on physical characteristics. Further, section 207 provides that any previously adopted classification or standard based on material assumptions which were in error of no longer applies is also inconsistent with the section. Inconsistency leads to the Commission's voiding the classification or standard ab initio. On finding a classification or standard void ab initio, the Commission must simultaneously establish an acceptable replacement classification or standard.
Section 2.1.8 also allows the Commission to review and revise standards and classifications pursuant to the Basic Standards and Methodologies Regulation, section 3.1.0 et seq. (5 CCR 1002-8).
Sections 25-8-208 and 25-8-402(5) are new sections that set out the criteria and procedures for emergency rulemaking by the Commission. They differ from the generic emergency rulemaking of the Administrative Procedures Act (APA), C.R.S. 24-4-101 et seq., in two important aspects. First, an emergency rule promulgated by the Commission under these sections may last for an entire year. The rationale for this extended time limit is that, the Commission cannot adopt a new regulation within the APA limit of three months; it takes at least five months to pass a water quality standard or classification. Secondly, under section 207 a petitioner need only show exigent circumstances for the Commission to adopt an emergency rule, whereas under the APA one needs to show an imminent threat to public health, safety or welfare.
Section 25-8-401(5) (b) now applies only to those variances still allowed under the Federal Act which will primarily be limited to variances from control regulations such as variances from the State effluent limitations found in 5 CCR 1002-3, 10.1.1.
Section 25-8-401(5) (b) requires that if a variance is granted before the Division issues the relevant permit, the Division must republish the public notice and the permit in draft, form with the variance. This is necessary to comply with EPA's notice provisions. On the other hand, if a variance is granted after the Division has issued the permit, the variance must be published as a permit modification which also goes to public notice and is also necessary for compliance with EPA's regulations.
For variance from regulations which are not required for compliance with the Federal discharge permit program, in other words from regulations which either go beyond Federal requirements or from regulations which do not apply under Federal law to an NPDES permittee, an appeal from a Division decision regarding the variance can be made to the Commission. For all other variances, a dissatisfied party must appeal to a hearing officer as a part of the general adjudicatory hearing on the permit under the APA.
S.B. 83 modifies the variance provision of the Act of 1981 (S.B. 10) by deleting entirely the right to a variance from water quality standards previously allowed under Section 25-8-503(4). This section now states that water quality based effluent limitations must be based on "appropriate physical, chemical and biological factors reasonable necessary to achieve the levels of protection required by the standards."
Section 25-8-503(9) is a new section added by S.B. 83 which allows for permit variances that are consistent with the Clean Water Act. For the most part, variances under the Federal act can be granted only by EPA's administrator; however, certain variances, such as those from temperature standards, may be granted by a state agency. In addition, this section grandfathers in previously granted variances.
Where the APA does not automatically stay permits once contested, S.B. 83 specifically grants the Division the right to stay its own permit upon challenge.
S.B. 83 modifies 25-8-501(2) to spell out that the terms of a permit govern until that permit is formally changed after public notice. EPA requested this clarification because permittees might otherwise argue that a request for rulemaking before the Commission, or a decision by the Commission with regard to a specific standard would automatically stay enforcement of a permit condition based on the standard.
Senate Bill 83 modifies section 25-8-502(5) (a) (l) to provide that, where the Division cannot meet the 180 day deadline for permit issuance, the Division may automatically extend an existing permit for a renewal permittee, as if provided in the APA, or issue a temporary permit to a new applicant. These regulations provide for an appeal of such temporary permits and also require public notice of a permit extension.
The Senate Bill 83 revision to 25-8-503(1) (b) provides that the Division has Best Professional Judgement (BPJ) authority on a permit-by-permit basis when necessary for compliance with the "Federal Act". The Clean Water Act, in section 402(a) (1), gives EPA's Administrator specific BPJ authority. EPA has interpreted this section also to allow states with delegated programs the ability to exercise BPJ authority, under the same circumstances as the Administrator. It is section 402(a) (1) of the Federal Clean Water Act on which EPA bases its regulations that spell out States' BPJ authority. See 40 CFR 125.3(c).
There is an opinion by EPA's general counsel in which no distinction is made between state and Federal permit writers with regard to the ability to include BPJ provisions in a permit. In re Central Hudson Gas and Electric, OGC, vol. 2, p. 371 (July 29, 1977), NPDES opinion No. 63. Further, there is a case in which the court did not distinguish between State and Federal permit writers in the context of BPJ permits. American Frozen Foods, Inc. v. Train, 539 F. 2d 107 D.C. Cir. (1976). Finally, the legislative history of the 1977 Clean Water Act amendments, vol. III, p. 461, in which Senator Muskie stated, which reference to section 402, that Federal and state permit issuers had the ability to write BPJ permits when no applicable BAT limits existed. At the State level, Senator Allard read into the record immediately before the Senate voted to accept the conference committee versions of Senate Bill 83, a statement that indicated that the legislative interest was to include both Federal statutes and regulations.
For these reasons, it is evident that the Division has been granted the authority to make BPJ determinations as provided by the regulations. Senate Bill 83 modifies subparagraph (c) of section 503(1) to provide for review of a BPJ decision by a hearing officer, as opposed to the Commission, to avoid the conflict of interest prohibited by the Clean Water Act. This review is a part of a general adjudicatory hearing on the permit. In addition, subparagraph (c) now provides that the standard for review is different from what would ordinarily be required, to wit, the Division bears the burden of providing by substantial evidence that its formulation of BPJ permit limits is justified.
Sections 2.1.3.D), 2.1.3.E 2), 2.1.3.E 2)e), 2.1.3.E 4), 2.1.3.E 5), 2.1.3.J 1), 2.1.3.K 6), 2.1.3.L 3), 2.1.4.C 2), 2.1.4.D 2), 2.1.4.E 1), 2.1.4.E 2), 2.1.4.E 2) e), and 2.1.4.E 4), are all procedural changes not necessitated by SB 83. All these changes reflect the commission's desire to reduce confusion and streamline hearing procedures.
Fiscal Impact Statement
The changes to these regulations that are necessitated by Senate Bill 83 have no fiscal impact not considered in the legislative action that brought about the amendments to the Colorado Water Quality Control Act.
The procedural changes to these regulations will have negligible, if any, negative fiscal impact. By streamlining procedures and reducing confusion, there will be a positive fiscal impact to hearing participants, the Commission, the State, and the taxpayer.
5 CCR 1002-21.22