5 Colo. Code Regs. § 1002-21.9
Current through Register Vol. 47, No. 11, June 10, 2024
Section 5 CCR 1002-21.9 - Hearing on Variance RequestsA. The Division may grant variances from control regulations or from discharge permit conditions pursuant to the authority granted in sections 205(6), 401(5) and 503(9) of the Act. The Division may grant a variance from otherwise applicable requirements only to the extent authorized in the Federal Act or implementing regulations. At least 20 days prior to its determination with respect to any variance request the Division shall provide the applicant with all objections to the granting of the variance and any other substantial adverse comments, as well as its proposed decision on the variance request. The applicant shall be given 10 days to respond to all objections, comments, and the proposed decision. The Division shall provide reasonable opportunity to the applicant and interested persons for informal meetings to discuss the variance request. The Division shall not conduct public hearing with respect to any variance prior to its final determination regarding the variance.
B. If the Division decides to grant a variance prior to issuance of a discharge permit, the Division shall publish for public notice and comment pursuant to section 25-8-401(5)(B), C.R.S. the entire draft permit with the variance incorporated in the draft. If the Division decides to grant a variance after a discharge permit has been issued, the Division shall publish for public notice and comment pursuant to section 25-8-401(5)(B), C.R.S. the variance as a proposed modification to the discharge permit. If the Division decides to grant a variance regarding a provision of a control regulation that will not be incorporated into a discharge permit, the Division shall publish notice of its variance decision in the Water Quality Information Bulletin sent to those persons on the mailing list maintained by the Division pursuant to section 25-8-302(1)(e), C.R.S. An applicant seeking a variance from a provision of a control regulation or from a discharge permit condition and any person adversely affected or aggrieved by a Division determination regarding a variance are entitled to a hearing in accordance with section 24-4-105, C.R.S. Hearings regarding Division variance decisions involving discharge permit conditions required by the Federal Act shall be conducted in accordance with section 21.7 of this regulation. Hearings regarding Division variance decisions not involving discharge permit conditions required by the Federal Act shall be conducted in accordance with subsection 21.9.C of this regulation.
C. An applicant or any person adversely affected or aggrieved by a Division variance decision not involving discharge permit conditions required by the Federal Act may appeal the Division's determination to the Commission. The appeal shall be made in writing to the office of the Administrator of the Commission and must be postmarked no later than 30 days after the date of mailing of the Water Quality Information Bulletin to those persons on the mailing list maintained by the Division pursuant to section 25-8-302(1)(e), C.R.S. or prior to operation of any new or expanded facility that would be affected by the control regulation, whichever comes first. Hearings under this subsection shall be conducted in accordance with section 24-4-105, C.R.S. and section 21.4 of this regulation.D. An applicant may seek a variance not in compliance with the deadlines established by this section by filing with the Administrator of the Commission a written request demonstrating good cause for the late application. The Commission will, at its next regular meeting not less than 15 days following receipt of the request, determine whether the applicant has demonstrated good cause for the late request and may grant a hearing before the Commission or remand the request to the Division for a hearing pursuant to subsection B or may deny the request. Commission denial of the request constitutes final agency action subject to judicial review.E. The requirements of this section are in addition to the requirements of sections 61.12 of the Colorado Discharge Permit System Regulations, 5 CCR 1002-61.38 CR 07, April 10, 2015, effective 4/30/201540 CR 07, April 10, 2017, effective 4/30/2017