5 Colo. Code Regs. § 1002-38.13
On April 12, 1982, the Commission reviewed the temporary modification of numeric standards in relation to the foregoing paragraphs of item 13 of this basis and purpose. At the same time the Commission considered for the first time a request of the Cotter Corporation for a temporary modification of the cadmium standard of .0004 mg/l assigned to this Segment. The following paragraphs applicable to this segment constitute the basis and purpose for the Commission's rule adopted April 12, 1982.
The Commission was favorably impressed by the diligence of the Cotter Corporation in attempting to meet the underlying standards, which was testified to during the hearing. This favorable impression was enhanced by evidence of Cotter's plans and the manner in which the firm has moved forward on controlling the uranium levels in it's effluent. For these reasons the Commission felt justified in extending the temporary modification of the numeric standard for uranium while construction is being completed.
Evidence indicated there was a reasonable probability that the uranium removal capability of the ion exchange technology under construction by Cotter Corporation would be ready for testing approximately January 1, 1983. In determining the duration of the extension of the temporary modification, the Commission observed the schedules involving application of innovative technology and optomizing its functioning are often not met. Therefore, to lessen the probability that an additional hearing would be required, the Commission set the expiration of the temporary Modification for uranium fourteen months from the expiration of the existing modification, which is July 16, 1983.
Additionally, the Commission recognized that zoning changes required to permit the Cotter Corporation to make the required facility changes could be delayed.
The Commission provided that the extension of the Temporary Modifications for all of the metals parameters covered by the hearing and the Temporary Modification granted for cadmium expire on a date certain without provision for an automatic and possibly, unnecessary rehearing to consider termination, revision, or extension of the modification. If some parameter cannot be met, the Commission may be petitioned to hold a hearing to consider adoption of a Temporary Modification or to take other action.
In considering the impact of it's action on water quality, the Commission determined that as soon as the wastewater treatment facility, proposed by the Cotter Corporation, is placed in operation about the first of the year 1983, the effluent from their plant will be receiving treatment, which will be directed toward meeting underlying standards. Following that time, it was expected by the Commission, that operational adjustments may be performed and that data will be collected to demonstrate attainment of planned levels of performance. Thus the objectives of the Commission will have been attained with the balance of the temporary modification period available for operational performance testing, evaluation, and documentation.
The Commission established the length of the temporary modification recognizing that even if the technology is on line in January 1983, there will be a need to acquire 30 day averages of data to indicate the degree of success of such technology. At least two months of operation will be required to generate the minimum amount of data necessary for the Cotter Corporation to determine whether or not it will be able to meet the underlying standards. To these two months would be added 60 day hearing notice and time for the Commission to take further action, if necessary.
For the purpose of acquiring better data, the Commission extended until July 16, 1983, the modification of the stream standards for Segment 17 of Clear Creek for uranium, copper, and lead at the levels currently in effect and provided until July 16, 1983, a modification for cadmium at a level of .013 mg/l. These modifications are to terminate on the date specified without hearing and were granted on condition that the Cotter Corporation show continued diligence in the construction and start-up of the treatment facilities. The value of .013 mg/l for cadmium is approximately the x[BAR] + s testified to by the Cotter Corporation. That level was supported by the testimony of the Water Quality Control Division. It is a value that can be met during the period of the temporary modification and it is not a matter of public health concern for that short a period.
During the period of the temporary modifications adopted in this rule there is a strong likelihood of Cotter Corporation achieving compliance with the underlying standards assigned to Segment 17 of Clear Creek for copper and lead.
The Commission found from the testimony presented to it that if the temporary modification of metals standards for uranium, copper, lead and cadmium were not granted for Segment 17 of Clear Creek that the mine operated by the Cotter Corporation adjacent to that creek might be shut down; that the Corporations mill in Canon City would be threatened with closure; and that the employment of some 350 people could be terminated. The payback period on the treatment facility was found to be 25 years and there would be a small net gain from the sale of the uranium recovered over the annual operating costs of the treatment facility. In light of the public health benefits of it's actions, the Commission found them to be economically reasonable. In further consideration of the economic reasonableness of it's action the Commission noted that the Cotter Corporation had testified that it had committed 1.8 million dollars to its treatment facility which was said to be approximately five times the original estimate and that the Cotter Corporation should be given the time to prove the technology it intends to apply.
The compliance schedule contained in the permit issued to the Cotter Corporation by the Water Quality Control Division is based on the current temporary modification which expires May 16, 1982. The Division can only enforce the compliance schedule in accordance with the terms of the temporary modification being extended by this action. The Division cannot extend the period covered by the current modification to the date the Commission's rule becomes effective 20 days after publication in the May, 1982 Colorado Register.
There is an approximately two week period in which there technically would not be a modification in effect. The Commission found this to constitute an emergency and that it was appropriate to formalize elimination of this gap by adopting this rule under emergency conditions thereby making it applicable during the period between adoption and the time the final rule becomes effective. In the absence of the Commission's adoption of this rule under emergency conditions the Cotter Corporation could be at risk from action by a third party. The Commission, in adopting this rule under emergency conditions intended to preclude the possibility of unnecessary litigation.
Adopted: April 12, 1982
Effective: May 16 thru May 30, 1982
STATEMENT OF FISCAL IMPACT FOR "REGULATIONS GRANTING AND EXTENDING TEMPORARY MODIFICATIONS FOR RALSTON CREEK
The Fiscal Impact of extending temporary modifications for Copper (Cu), Uranium (U), Lead (Pb), and granting a temporary modification for Cadmium (Cd) is a positive benefit to the Cotter Corporation. Testimony revealed that Cotter Corporation is committed to investing approximately $1,800,000.00 in capital expenditures to meet the adopted Uranium Standards for Segment 17 of Clear Creek with an annual operations and maintenance requirement of $82,000.00. From the innovative technology of the installation Cotter Corporation expects to recover approximately $100,000.00 worth of Uranium each year. The net effect would be $16,000.00 that could be applied towards recovering the initial capital expenditure.
Additionally demonstration of the feasibility of the metals removal technology to be applied would enable more rapid solution of similar situations in the future.
Due to the relatively untested nature of this unique application of technology, the Cotter Corporation indicated that a certain degree of time past the expiration of the original temporary modifications would be necessary to come into compliance. Without such an extension the mine would be forced to cease discharging to avoid enforcement proceedings. The impact would be to cause the mine to flood which would effectively terminate the operation of the mine. If in fact this became the case, the fiscal impact would be a potential dissolution of the Corporation's mine operations with a subsequent termination of the milling operations in Canon City. This would result in the potential permanent severance of approximately 350 employees located at the mine and the mill. Loss of profit and net losses in capital investments were not testified to but can be assumed to be of a quite substantial magnitude.
The fiscal impact of the Commission acting under emergency procedures is the savings of expenses of potential third party litigation, which cannot be estimated.
As no party gave substantive testimony indicating an economic impact or harm that could be expected from an extension, the Commission acted in an economically reasonable and responsible way by extending the modification. Thus the fiscal impact is the preservation of Cotter's Schwartzwalder Mine and Canon City Mill Operations with the attendant savings of whatever profits those operations generate. This extends to the preservation of approximately 350 jobs and the timely and economic retirement of capital equipment.
5 CCR 1002-38.13