5 Colo. Code Regs. § 1002-22.21
The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.
Basis and Purpose
Introduction: These revisions to the Regulations for the Site Approval Process 22 (5 CCR 1002-12) were initiated by an informational hearing in September, 1995. At that hearing, the Commission heard from several parties regarding improvements that could be made in the rules and, based on that input, decided to make several minor improvements without further public input. However, the Commission also realized that there were more substantive issues that would be best addressed by receiving more thorough input, and subsequently assigned the task of proposing major rule revisions to an advisory committee. The Water Quality Control Division was given the responsibility of preparing the list of minor changes as well as organizing the review team that would grapple with the larger issues.
Both processes were set in motion in late 1995, and the set of minor amendments was adopted by the Commission in May of 1996. The critical review team was organized in December, 1995, and was comprised of representation from consulting engineers, local government, regional planning agencies, wastewater treatment agencies, and the real estate development industry. The changes to the rule adopted in this action were the result of the work of the review team during 1996 and 1997. The following is a description of the rationale behind each of the changes.
Definitions, (22.2): Significant changes to the definitions included:
- Application was added to the definitions to avoid confusion as to what constituted an appropriate set of information from which to reach a decision.
- Approval was added to clarify that the Division's final action could take several forms.
- Design Capacity was modified to indicate that the means of expressing capacity is an important feature that must be provided consistently.
- Domestic Wastewater was modified to clarify that it does not mean process wastewater. This modification does not alter the terms usage and is consistent with the definitions of domestic wastewater treatment plant and domestic wastewater treatment works.
- Interceptor Sewer was modified to clarify that a small number of taps does not automatically nullify the concept of a large receiving sewer, and that sewers less than 24 inches in diameter are not significant conveyances requiring site approval, except in unusual circumstances.
- Population Equivalent, Throughput, and Transporting Entity were deleted since they were no longer used in these regulations.
- Process Wastewater was added only to clarify the regulation. Its definition is the same as that contained in the Commission's Colorado Discharge Permit System Regulations, Regulation 61 (5 CCR 1002-61)
- Vault was modified by deleting the words watertight, covered to remove a perceived loophole in the regulation. It was determined that this is not inconsistent with the ISDS regulation, but that the Division would review the ISDS regulation to determine if it also should be modified.
- Water Quality Management Plan was added to clarify that not all plans are oriented towards managing water quality, a point of some confusion in the past.
Declaration of Policy (22.3): Much of the previous language in the section which sets forth Commission policy for issuing site approval was taken directly from the statute (25-8-702, C.R.S.). To avoid redundancy and provide focus, only those three statutory policies expressly requiring certain considerations were repeated. The previous regulation also included a list of other policy considerations that were largely left intact, but included several important modifications. Interceptor was deleted from each policy where it appeared since they are not part of a treatment works. Also, the statutory reference to design and construction of expansions, after certain capacity thresholds were reached, was deleted as redundant. Finally, a new policy, 22.3(6), which set forth conditions and procedures for a planning agency to enter into a coordinated review process with the Division, was included. This new policy addressed one of the main concerns with the previous rule in that plan amendment requirements were seen as duplicative of site approval requirements where viable area wide water quality management plans were in existence. This new policy will allow a coordinated and efficient review at both the regional and state level. A few minor changes to the list of policies, including a new, easy-to-read format, were also made.
Application Procedures - New (22.4): Another significant concern with the previous regulation was that it did not recognize the difference in complexity between application for an entirely new site as opposed to an expansion at an existing approved site. The changes made in this action recognize those differences by streamlining application procedures for expansions in a separate section. The prior rule also included application procedures for interceptors and lift stations under one set of requirements. Since these processes could be much more streamlined, they, too, were addressed in a separate section.
Section 22.4 now deals only with application procedures for new wastewater treatment plant sites. A number of minor wording changes help clarify the revised section, but several significant changes were also necessary. The requirement for an analysis of opportunities for consolidation has always been a subject of controversy, but the changes to 22.4(1)(b)(iv) should help by linking that analysis to a water quality management plan, thus avoiding redundancy. The flood plain analysis requirement was also clarified (22.4(1)(b)(vi)), and a new requirement to include soils and geologic hazard evaluation, prepared by qualified professionals, should help to assure that suitable plant sites are selected (22.4(1)(b)(vii)). The requirement of legal arrangements showing control of the site for the project life was expanded to include the ability of the entity to acquire the site and use it for the project life. It was clarified that any approval based on this was not to be used as a justification in a condemnation proceeding (22.4(1)(b)(ix)).
The review and sign-off procedures in 22.4(2) were extensively revised to make the process more efficient. Among the more significant changes was the inclusion of a requirement that the Division solicit comments from any review agency who has not submitted comments on an application. This requirement will help assure that nearly all applications have the full review of appropriate agencies. More definition of the scope of the review requested from municipalities and local health authorities was also included.
The requirement that the State Geologist review each application was deleted from the list of review agencies. This action was taken largely because of the inclusion of more extensive geologic information now required as part of the engineering report (see 22.4(1)(b)(iv)), including the requirement that the information be developed by a professional geologist and a geotechnical engineer, or a professional who meets the qualifications of both geologist and geotechnical engineer. This review was also considered a costly evaluation which produced little in the way of added value. A new provision was added allowing the Division to require that an applicant ask for review and comment from other agencies, including the State Geologist regarding potential geologic hazards, if it feels such review is needed (22.8(2)).
Application Procedures - Expansions (22.5): Since expansions at existing approved sites do not have to meet the same threshold tests as new sites in the areas of site suitability, financing, institutional and management considerations, the application and review requirement should be streamlined accordingly. This has been addressed by adding a new section specifically for expansions. Section 2.2.5 includes less complex application requirements and a somewhat abbreviated review process. These changes were made in response to review committee input that stresses the importance of a discharger's treatment track record as the most important consideration when an application to expand was pending. The typical questions of site suitability and long term ability to treat wastes asked of new applicants were largely moot in the case of expansions. A provision allowing the Division to require a geologic report, as in section 22.5 , was included. Section 22.8 , which allows the Division to require that an applicant ask for review and comment from other agencies, is also applicable to section 22.5.
Application Procedures - Lift Stations/Interceptors (22.6): In the previous regulations, application requirements for all types of facilities were merged into one section. This has created some confusion and unnecessary work, particularly for new interceptor sewers and lift stations. Section 22.6 alleviates this confusion by separating out the application, certification, and review procedures for interceptors and lift stations. The certification procedures for interceptors is largely unchanged, but is now less confusing since it is dealt with in a separate section (22.6(1)). The application procedures for ineligible interceptors and all lift stations is streamlined and clarified in 22.6(2), and the approval process is much improved by requiring only statements of consistency with appropriate plans as the heart of the review. Division oversight of that determination of consistency is correspondingly minimized.
Application Procedures - Amendments (22.7): Experience with the site approval process has revealed that occasionally it is necessary to amend approved applications. These changes are often the result of new effluent requirements brought about because of revised stream standards or other regulatory changes. Occasionally, it is simply a matter of upgrading a facility with new technology without expanding the capacity (expansions require site approval via 22.5). An informal amendment process has been in place since that need was recognized, but this process is now formalized with the inclusion of 22.7. That section sets forth the circumstances when an amendment is necessary, the minimal information requirements in the application, and the streamlined review process.
Criteria for Decision Making - (22.8): Most of the criteria guiding Division and Commission decision-making was retained from the existing regulation. However, some modification to the criteria dealing with consolidation opportunities was made for clarification purposes, and a new criteria was added to emphasize the important role that current and comprehensive area wide water quality management plans play in reaching a site approval decision.
Parties to the Rulemaking Hearing
5 CCR 1002-22.21