5 Colo. Code Regs. § 1002-22.24
The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of these 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
The Commission largely adopted changes to this regulation developed through a Division-led stakeholder process that was formed after the informational hearing held by the Commission in May 2018. The stakeholder process consisted of five sub work groups and one main work group that included numerous interested parties. The five sub work groups provided recommendations to the main work group and
Division for consideration. The changes within this regulatory update are best summarized based on the focus areas of the sub work groups: general consistency and clean up, design capacity, onsite wastewater treatment systems (OWTS), pilot and full scale demonstrations, and lift stations and interceptors.
Consistency and Clarifications
There were numerous minor changes made to improve clarity and address inconsistencies in the previous regulation. Substantive changes are summarized and discussed below. The Water Quality Control Commission (Commission) decided that the definitions of "domestic wastewater treatment works", "management agency", and "construction" required modification to align with the Colorado Water Quality Control Act (Act) and the Federal Clean Water Act. The Commission corrected the definition for construction based on a previous error that resulted in the inadvertent deletion of a provision in the definition. The Commission revised the definition for domestic wastewater treatment works ("DWWTWs") to refer to systems or facilities that receive greater than two thousand gallons of domestic wastewater per day, consistent with the definition included in the Colorado Water Quality Control Act. The Commission also corrected the definition of "management agency" to clarify that, pursuant section 208 of the Clean Water Act, entities other than municipalities may be designated as management agencies.
Design capacity refers to hydraulic and organic capacities. The Commission decided to continue to use organic capacity as a measure of the overall influent wastewater strength since organic loading typically relates well to the overall strength of the wastewater. The Commission does recognize that domestic wastewater treatment works treat to achieve a variety of water quality and health based targets, but did not try to list all potential water quality planning targets as part of design capacity.
Following the 2013 floods in the State of Colorado, concerns arose that the site location and design application processes were lengthy, and did not consider the need for accelerated review of domestic infrastructure construction following emergencies. The Commission added a provision at Section 22.4 providing for an accelerated review and evaluation process for certain emergency events. In using the term "emergency," the Commission intends that the accelerated process primarily be available to those facilities needing to complete accelerated construction related to natural disasters (such as the 2013 floods). However, the Commission recognizes that there may be certain unforeseen extreme events that may necessitate accelerated review. An example of an unforeseen extreme events might be a fire or explosion at a domestic wastewater treatment works that impacts the DWWTW's ability to comply with effluent limits. An unforeseen extreme event is not intended to include perceived emergencies related to planning or implementation of compliance schedules, construction schedules, enforcement orders, or funding deadlines. In qualified unforeseen extreme events, the Commission expects that the Division will promptly review an application for accelerated review and determine, based on the case-specific facts, whether the circumstances warrant accelerated review for site location and design. The adopted process balances the need for an expedited review and implementation while maintaining local input. A fifteen (15) day local agency notification is required and would supersede other longer referral periods currently identified within the individual sections of Regulation 22. Any person aggrieved by the decision would still have appeal rights per section 22.4 and 22.13 of this regulation.
The Commission recognizes that natural surface waters may shift over time based on flow patterns. At times, the constructed outfall may need to be moved or extended to connect with the surface water. These moves or extensions may still fall within the approved site and stream segments. The Commission provided the Division the decision making authority to determine whether these outfall modifications require site location and design approval.
The Commission revised the definition of "lift station" to resolve a potential point of confusion with the Colorado Water Quality Control Act. The previous "lift station" definition stated that lift stations "for single family residences or clusters of five or fewer single family residences or other small buildings, as long as they receive less than two thousand gallons per day of domestic wastewater" are not domestic wastewater treatment works. This phrase appeared to be redundant with the requirements of a domestic wastewater treatment works, but also gave the impression that lift stations for small residential clusters were not domestic wastewater treatment works regardless of the amount of wastewater each receives. The Commission deleted this phrase to prevent confusion. The definition of domestic wastewater treatment works already clearly delineates whether each lift station falls within the framework of this regulation.
The Commission developed a term "water quality planning target" to better clarify the development of treatment targets since effluent limits do not always apply. For example, the Commission recognizes that facilities generating reclaimed water do not have effluent limits and in some cases, these facilities have health based treatment requirements. For these reasons the term preliminary effluent limits is now a subset of a broader term "water quality planning target". This new term encompasses all types of treatment goals, whether effluent limits or health based treatment requirements.
The previous site location amendment section only required the applicant to fill out a form. This form did not adequately enable the Division or review agencies to evaluate amendment applications in accordance with all required elements of sections 22.3 , 22.4 , 22.5 , and 22.10 of the site location process. The Commission remedied this situation by more clearly defining the minimum amendment submittal requirements as part of section 22.10 . The minimum requirements specifically require an engineering report that addresses the requirements of 22.3, 22.4, 22.5, and 22.10, and other information necessary to evaluate the amendment application.
The Commission streamlined the design review process for domestic wastewater treatment plants under most conditions. Previously, all applications for domestic wastewater treatment plants underwent a two-step design review process that required the Division to approve final plans and specifications with the option for applicants to self-certify the final plans and specifications. The Commission modified the final plans and specifications application and approval step to streamline the process by having all applicants and their engineers self-certify the final plans and specifications for construction unless the Division indicates otherwise during the site location application process because of specific circumstances such as funding or implementation of alternative technologies. For example, a submittal that includes an alternative technology may require final plans and specifications approval by the Division in lieu of self-certification by the applicant and their engineer.
The Commission understands the Division's intent to develop a single document that describes all site location and design approval elements and conditions for each facility owned and operated by a single entity. This single document would then be updated upon any future site location and design approvals. Once instituted, this document would be critical for the Division and each entity to maintain within its records. Since this document has not been developed or implemented at this time, the Commission recommends that the Division revisit records retention requirements for this document with future routine reviews of Regulation 22.
The Commission revised provisions related to in-kind replacement to clarify the difference between a modification requiring a site location amendment application, an in-kind site location application, or no application since the modification qualifies as operations and maintenance. The primary clarifications focus on the following:
The Commission recognizes that a 15-day response from the Division for in-kind replacements is a difficult target considering that the evaluation of in-kind notifications is not typically a straight forward review and often requires additional correspondence with the applicant. The Commission revised this early 15-day target with a 30-day goal that better represents the level of effort required for an in-kind evaluation.
The submittal requirements for amendments (Section 22.10) now include changes to the liquid stream that may impact biosolids. The Commission felt that this change was necessary due to the increased use of recovery systems and biological nutrient removal for phosphorus. Biological phosphorus treatment may require modifications to solids treatment processes that currently are considered with the Design Criteria for Domestic Wastewater Treatment Works. As part of the recent steps toward nutrient treatment improvements, the Commission established technology based effluent limits that encouraged the use of more sustainable biological treatment systems over primary reliance on chemical treatment systems. Biological nutrient treatment changes the characteristics of the biosolids requiring changes to the solids treatment and handling systems. In response, the Commission broadened the scope of site location amendments related to solids treatment processes.
Design Capacity
As part of the rulemaking, the Commission made changes to section 22.2 , "Definitions". The Commission made changes to the definitions of 'design capacity' and 'preliminary effluent limits' and added a new term 'water quality planning target'. The definition of 'design capacity' was modified to provide more clarity and readability. The change was not intended to modify the existing meaning except for needed changes related to on-site wastewater treatment systems. -
The Commission added a new term "water quality planning target," and (in Regulation 61) removed requirements to submit a site application prior to submitting a permit application. Several different documents can serve as WQPTs. The discharger is encouraged to provide the documents which may serve as the WQPTs, and any supporting information or rationale for selecting it for the WQPT. Following this rulemaking, the Division will develop guidance with criteria and a process flow chart for when existing permits, WQAs, existing PELs, and/or limited scope PELs can be used as a Water Quality Planning Target, and when new PELs are needed. The guidance will also specify a process, including applicable timeframes, whereby the Division notifies the applicant what Water Quality Planning Target will be used for a site application.
With these changes, many facilities will be able to forego the step of obtaining PELs and can instead use their permits or permit modifications as Water Quality Planning Targets. This is the process used in most other states and can offer permittees more planning certainty and the Regulation 61.5 notice and comment processes unavailable for PELs.
These changes are part of an overall process at the Division to help domestic facilities, who need site approval, obtain needed planning limitations in a more timely fashion. Other pieces of this new process include better internal coordination; prioritizing PELs needed for site approvals over PELs requested for more long term planning; conducting more timely "limited scope PELs" for nutrients and temperature when appropriate; removing requirements to complete PELs in permit compliance schedules; and establishing an internal goal of issuance in 180 days from payment for some domestic PELs. The Division has established an internal goal of 180 days for domestic PELs that meet all of the following criteria:
An example of the last criteria would be if the permit is administratively continued and cannot be modified and is not likely to be renewed in the next year. In order to meet this internal deadline for facilities modelled with other facilities, the Division would not reopen WQAs, meaning that the facility's share of the assimilative capacity would remain the same and the PEL may be considered overly conservative.
The commission also changed the definition of PELs to reflect that when the Division does not meet its goal of 180 days for the PELs meeting the criteria above, the applicant may submit PELs for the Division's review and approval. Specifically, if the Division will not be able to complete PELs within 180 days, the Division will notify the applicant within 120 days after the PEL request (or earlier); and confer and share information with the applicant so that the applicant and its consultant can prepare PELs for the Division's review and approval. In preparing its guidance on PELs and Water quality planning targets, the Division will consider ways to ensure applicant-prepared PELs can retain the same priority of review they held before being taken on by the applicant.
At times, an applicant that has received site location approval, but has not received design approval, needs to modify the approved design capacity. The Commission has includes notifications provisions specific for this type of request.
Onsite Wastewater Treatment Systems
Since the last Regulation #22 update, the legislature updated the OWTS statute. In response, the Commission repealed the "Guidelines on Individual Sewage Disposal" and developed Regulation #43 "Onsite Wastewater Treatment System Regulation". Furthermore, the Commission modified references throughout Regulation 22 from "individual sewage disposal systems (ISDS)" and "Guidelines on Individual Sewage Disposal Systems" (formerly 5 CCR 1003-6) to "on-site wastewater treatment systems (OWTS)" and "Regulation 43 - On-site Wastewater Treatment Systems" (5 CCR 1002-43) to reflect the changes resulting from the 2012 modifications to the governing statutes in the Colorado On-site Wastewater Treatment Systems Act, C.R.S., 25-10-101, et seq.
To further coordinate the latest revisions to the OWTS statute, Regulation #43, and Regulation #22, the Commission added the definition of "sewage treatment works" from the Colorado On-site Wastewater Treatment Systems Act, C.R.S., 25-10-101, et seq. as this term is used in the definition of "on-site wastewater treatment systems (OWTS)" also derived from the Colorado On-site Wastewater Treatment Systems Act, C.R.S., 25-10-101, et seq.
The Commission added clarifying language within Regulation #22 for facilities seeking a decrease in the approved, rated design capacity of an existing domestic wastewater treatment works with groundwater discharge to a design capacity of 2,000 gpd or less to allow permitting through the local public health agency and local regulations developed pursuant to Regulation #43 - On-site Wastewater Treatment System Regulation. The added portions provide clarifying language for facilities derating either with or without construction and clarifies the steps required for a facility seeking this type of derating. A facility derating in this manner will be required to file a site location application to derate the capacity of the domestic wastewater treatment works but the separate design review step will not be required by Regulation #22 since the design will then be reviewed by the local public health agency.
At times, the applicant may have to implement source water controls to achieve and maintain a design capacity less than or equal to 2,000 gallons per day. In these cases, derating to less than or equal to 2,000 gpd will require demonstration through ongoing flow metering and monitoring by the local public health agency if conditioned as part of the site location application. The Commission requires that the applicant verify that the local public health agency is willing to accept this responsibility as part of the site location application.
Pilots and Full-scale Demonstrations
The Commission added separate definitions for "pilot project" and "demonstration project". While these two terms are similar, the scale, permanency, and potential water quality impacts differ significantly. Pilot projects are related to small-scale, momentary investigations like bench top studies or vendor equipment proofs that may have no potential to cause or contribute to a water quality exceedance or are not needed for data related to state applications. Similarly, process optimization activities of existing, approved infrastructure at a facility are considered pilots even if operated at full-scale. Demonstrations are larger-scale, longer term projects that have the potential to cause or contribute to a water quality exceedance or may be needed to develop data for a state application such as an alternative technology review. These definitions help guide whether a site location application is required prior to commencement of the pilot or demonstration.
The Commission modified sections related to amendments and demonstration or pilot projects, to clarify that applicants should, in consultation with the Division, evaluate whether to submit a discharge permit amendment or a Request for Chemical Evaluation form. Consultation with the Division is meant to assist applicants in deciding whether these submissions are required, but is not mandatory. Applicants may instead elect to submit a discharge permit modification or a Request for Chemical Evaluation form without advance consultation. In this hearing, the commission considered a proposal from a party to the hearing to require a deadline for the Division's review of the Chemical Evaluation form. Based on testimony that the Division has generally reviewed this expediently in the past and the review time has not been an issue for permittees in the past, the Commission declined to adopt a deadline, however in the event that circumstances change the Commission could revisit the possibility of a deadline in the future.
Demonstration projects are necessary for systems to evaluate the efficacy of alternative treatment processes or enable the collection of data for the development of design criteria. Previously, demonstration projects were reviewed using a site location amendment process. The Commission adopted a new section, Section 22.11 , addressing application procedures for demonstration projects. The Commission found that handling pilots and full-scale demonstrations as amendments resulted in confusion. For example, site location amendments are permanent site location changes that require site location and design review, fees, and notifications. Alternatively, demonstrations have a term limited implementation unless a separate site location amendment and design approval occurs at a later date. In addition, demonstrations do not receive a design approval or require review fees prior to commencement of operation. The use of a new section allows for separation of site location amendments and demonstration reviews.
Section 22.11 defines the procedures for applying for demonstration projects, including the type of documentation needed to apply for a demonstration project. The Commission did not require notifications to review agencies since each demonstration project approval has a finite timeline not to exceed two years. This timeframe was modified from the previous allowance for a one year demonstration with the option for a one year extension to streamline the review process. In addition, the Commission authorizes the Division to extend demonstrations past 2 years when the entity is actively seeking site location and design approval for the demonstration infrastructure and process.
Lift Stations and Interceptors
The Commission modified sections pertaining to interceptors, lift stations, and amendments to clarify the requirements and implement flexibilities for lift stations and interceptor site location and design approval applications. The modifications resulted in separate dedicated sections for interceptors (section 22.8) and lift stations (section 22.9), and provided details on circumstances when an entity could apply for a site location amendment for lift stations (Section 22.10) which did not previously exist.
In addition, the Commission recognizes that older facilities may exist but do not have a record of a site location or design approval for interceptors and lift stations. The Commission finds that the site location and design review processes have an important role in the protection of public health and the environment with public input. Existing infrastructure that cannot demonstrate site location and design approval may pose an increased risk to public health and the environment even if ongoing operations and maintenance has prevented any single event violations. While a risk exists, the Commission perceives that the risk will remain relatively stable until a solution can be found. Furthermore, the Commission understands the need to provide additional time for the Division and stakeholders to more fully research the extent of the issue and develop consensus around a regulatory and implementation framework to rectify any risks related to historical lift stations and interceptors that cannot demonstrate site location and design approval. The Commission expects the Division to work with stakeholders to develop a proposal to bring historical infrastructure into compliance with Regulation #22 by the next triennial review. The Commission does not intend the delayed approach to encourage the construction of infrastructure prior to Division approval, nor does the Commission intend for the resulting framework to reward recent construction of unauthorized facilities. As a result, the Commission expects that the approach will be a one-time process that only applies to lift stations and interceptors that commenced construction significantly before this rulemaking.
The Commission recognized that the current site location regulations lumped lift stations and interceptors into a single section. Having these two works in a single section resulted in confusion for stakeholders. Section 22.8 covers both interceptors that are eligible for certification as defined in 25-8-702(3) C.R.S. and interceptors that are required to follow the standard application procedure. The text was modified to clarify the site location application procedure requirements. Similarly, section 22.9 was modified to cover the site location application review process for lift stations only.
The Commission recognized that the current site location application does not include an amendment process for lift stations. Section 22.10 for site location amendments was modified to include circumstances where an amendment process could be utilized for lift stations. The language addresses several improvements to a lift station that do not affect capacity. The Commission did not find a need to include an amendment process for interceptors since changes to an interceptor would most likely require a 22.8 or 22.12 application.
5 CCR 1002-22.24