5 Colo. Code Regs. § 1002-38.26
The provisions of 25-8-202(1)(a), (b) and (2); 25-8-203; 25-8-204; 25-8-207 and 25-8-402 C.R.S. provide the specific statutory authority for adoption of these regulatory amendments. The Commission also adopted, in compliance with 24-4-103(4), and 24-4-103(8)(d), C.R.S., the following statements of basis and purpose and fiscal impact.
BASIS AND PURPOSE:
The changes considered and adopted are addressed below by segment.
A new high quality class 2 segment has been created for tributaries within the Lost Creek and Mt. Evans Wilderness Areas. These wilderness areas were designated by Congress since the last triennial review. The creation of this high quality class 2 segment provides the same level of protection afforded other wilderness areas in Colorado.
The Division recommended a possible resegmentation of lower Beaver Creek, with classifications and standards different from the rest of this segment. The Commission declined to make any changes at this time, and decided that this issue should be addressed further in a rulemaking hearing scheduled for September, 1988.
London Mine Venture proposed that numeric standards for several metals be revised for this segment, which is South Mosquito Creek. The Commission adopted revised numeric standards for cadmium, copper, lead and zinc, designed to provide protection for the aquatic life in Mosquito Creek. The previous temporary modification for lead was deleted. New three-year temporary modifications for zinc and mercury were adopted. The zinc temporary modification is calculated from data from a sampling point below the London Mine Venture discharge, and is based on the period likely to be necessary to achieve compliance with the underlying standard. The mercury temporary modification is based on the level necessary to protect aquatic life. The underlying standard for mercury is based on the level necessary to protect human health, assuming bioaccumulation of mercury in fish tissue. If a bioaccumulation study is completed on this segment, prior to the expiration of the temporary modification, the Commission will reconsider the appropriateness of the underlying standard.
Three metals standards have been revised for this segment, the North Fork of the South Platte. The revised cadmium and lead standards are based on ambient quality, using the x[BAR] + s methodology. These standards have been calculated from all available, representative data for times when the Roberts Tunnel is not discharging. The Commission believes that this data is most representative of naturally occurring stream conditions. The revised silver standard is based on the mean of the available data for times when the Roberts Tunnel is not discharging. Because of the extreme variability in the available data base for silver, the Commission decided that use of the x[BAR] + s methodology may be underprotective in this site-specific circumstance. Since the revised standard is also the same as the current detection level for silver, this standard is now at the same level that would have been used for enforcement under the prior standard.
A new segment has been created to establish separate classifications and standards for Gooseberry Gulch. The evidence indicates that this dry gulch should be classified cold water aquatic life class 2, with limited numeric standards. Inadequate information regarding this specific tributary was available at the time of the original 1980 classification proceeding.
The Denver Water Board proposed relaxing the cadmium standard for this segment, which is the South Platte mainstem from the North Fork to Bowles Avenue, from 0.0005 mg/l to 0.0009 mg/l. After reviewing the available evidence, the Commission has decided to make no change in this standard at this time. The Commission has determined that the existing standards do not warrant a finding of "inconsistency" within the meaning of section 25-8-207, C.R.S. This decision reflects calculations of ambient quality (using the x[BAR] + s methodology) based on data collected by the Division, the Denver Water Department, and Riverside Technology Inc. The Commission agreed with the Division recommendation that Corps of Engineers data not be included in the calculation because it appears to have been analyzed by a different methodology. The Corps data had a much higher detection level, and statistical analysis indicates a highly significant difference between the Corps data and the combined data set from the other sources.
A new upstream segment has been created on West Plum Creek, with its aquatic life classification changed to cold water class 1. Available evidence indicates that this stream segment is not habitat-limited. The stream supports a reproducing brook trout fishery and several fish species that are rare in Colorado. The reclassification results in the dissolved oxygen standard being changed to 6.0 mg/l, 7.0 mg/l spawning, the unionized ammonia standard changed to 0.02 mg/l and the nitrite standard changed to 0.05 mg/l.
This segment is the South Platte mainstem from Bowles Avenue to the Burlington Ditch diversion. The Division proposed that the temporary modification for unionized ammonia be deleted. The Littleton/Englewood Bi-City Wastewater Treatment Plant (Bi-City) proposed that the temporary modification be extended for an additional three years. The Commission has extended the temporary modification for one additional year, so that Bi-City and DRCOG can complete, with the Division's cooperation and review, a wasteload allocation for this segment during that additional year.
The temporary modification in question has been in place since 1981. The evidence indicates that since that time the underlying 0.06 mg/l unionized ammonia standard generally has been met in-stream. However, excursions have occurred, and high flows during the past few years may have contributed to lower in-stream concentrations. Bi-City has initiated efforts toward complying with the underlying standard, with a combination of in-stream ammonia level evaluations and assessment of wastewater technologies and facilities.
The Commission had previously requested that a wasteload allocation be performed for this segment. Completion of the wasteload allocation during the next year will aid Bi-City, and possibly other dischargers, in planning appropriate treatment to assure long-term compliance with the underlying ammonia standard.
The name of this segment has been corrected to read "Sloan Lake." In addition, the "goal" qualifier on the warm water aquatic life class 1 classification has been removed, so that the classification is now in effect. The lake presently is supporting aquatic life typical of this classification and is also the recipient of a Clean Lakes grant to improve its water quality.
The phrase "including all mainstem reservoirs" has been added to the description of this Bear Creek mainstem segment. This change will provide protection for Evergreen Reservoir, which is a heavily used urban fishery as well as a Denver Water Board water supply reservoir.
The descriptions of each of these segments have been revised to reflect the change in name of Mt. Carbon Reservoir to Bear Creek Reservoir. For segment 1c, the recreation classification of Bear Creek Reservoir has been changed from class 2 to class 1, with a fecal coliform standard of 200 mpn/100ml. This change is consistent with the existing quality of the reservoir, and recognizes the potential for swimming in the reservoir.
A new high quality class 2 segment has been created for Bear Creek tributaries within the Mt. Evans Wilderness Area. This wilderness area was designated by Congress since the last triennial review. The creation of this high quality class 2 segment provides the same level of protection afforded other wilderness areas in Colorado.
At the outset of the hearing, the Commission granted a motion from several parties to limit its consideration of any changes to segment 14 of Clear Creek as a result of this hearing to that portion of the stream below the Croke Canal. The remainder of segment 14 will be addressed in a February, 1989 hearing.
The Commission has declined to implement a proposal by Coors and Golden that the aquatic life classification be deleted from segment 14. The Commission has determined that the existing classification does not warrant a finding of "inconsistency" within the meaning of section 25-8-207, C.R.S. The evidence submitted, including that from Coors and Golden, demonstrates that there is aquatic life present in segment 14, although it is limited by unfavorable flow and streambed characteristics.
The Commission has revised the numeric standards for zinc and copper, and has established temporary modifications for cadmium, zinc, copper and mercury. The temporary modifications for cadmium, zinc and copper are based on existing ambient quality (using the x[BAR] + s methodology) and have been adopted for six years. The underlying standards for these three metals are set at levels that the information currently available indicates should be attainable within a 20-year period. Improvement in quality is expected to occur as a result of upstream mining waste cleanups pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The temporary modifications recognize that cleanup of the past impacts and resulting water quality improvement will take time. The appropriateness of the temporary modifications, and the achievability of the underlying standards will be reviewed in the next triennial review.
The temporary modification for mercury, adopted for one year, is based on the level necessary to protect aquatic life. The underlying standard for mercury is based on the level necessary to protect human health, assuming bioaccumulation of mercury in fish tissue. If a bioaccumulation study is completed on this segment prior to the expiration of the temporary modification, the Commission will reconsider the appropriateness of the underlying standard.
The Commission has declined to grant the Coors and Golden request to revise the silver standard for segment 14. Using the x[BAR] + s methodology, the existing ambient level of silver is less that the 0.0002 mg/l detection limit. Coors and Golden relied principally on an EPA water quality criterion for silver of .0041 mg/l, and on a new metals methodology that has not yet gone into effect under the State program. The .0041 mg/l level is an acute criterion, and therefore does not indicate what an appropriate standard is to protect against chronic impacts. The Commission has adopted a new metals methodology that will become effective July 31, 1988. After that time, the silver standard can be reviewed under the new methodology. Finally, the fact that the standard proposed by Coors and Golden is more stringent that drinking water standards is irrelevant, since the standard is necessary to protect aquatic life.
Coors and Golden proposed that the aquatic life class 1 goal be eliminated for this segment, leaving a warm water aquatic life class 2 classification in place. The Division and the Division of Wildlife testified that the conditions supporting a class 1 classification have been achieved, and recommended removing the goal qualifier to leave a class 1 classification in place. Coors and Golden testified that class 1 conditions cannot be achieved in segment 15 due to substantial dewatering of this segment by diversions. The Commission decided that the evidence supporting a classification change in either direction is inconclusive at present and therefore decided to make no change in the classification at present.
The Commission's decisions with respect to metals standards for this segment parallel those for segment 14, and the preceding subsection of this Statement of Basis and Purpose explains the rationale for the action. For segment 15, the Division proposed that the current temporary modification for unionized ammonia be deleted. Wheatridge Sanitation District expressed concern regarding this proposal, especially in view of uncertainty regarding the implications of upstream discharge and water management decisions that currently are in flux. The Commission decided to extend the temporary modification for one year, to allow time for these uncertainties to be better resolved.
The descriptions of these two Ralston Creek segments have been revised to reflect a change in name of Blunn Reservoir, now known as Arvada Reservoir. For segment 17, the Commission has deleted the temporary modification for mercury and changed the mercury standard to 0.00014 mg/l. This revised standard is based on existing ambient quality, using the x[BAR] + s methodology. A site-specific evaluation of methylmercury in trout from the creek indicates an absence of methylmercury in the fish tissue. This indicates that protection of human health will be attained with respect to any fish consumed from this segment. The aquatic life also would be protected from chronic effects at this level.
A new high quality class 2 segment has been created for Clear Creek tributaries within the Mt. Evans Wilderness Area. This wilderness area was designated by Congress since the last triennial review. The creation of this high quality class 2 segment provides the same level of protection afforded other wilderness areas in Colorado.
Warm water aquatic life class 1 and recreation class 1 classifications have been added to Great Western Reservoir, along with appropriate corresponding table value standards for a mean alkalinity of 100 to 200 mg/l. The evidence indicates that these standards are met by existing ambient quality in the reservoir.
Habitat improvement on this segment of South Boulder Creek since 1980 has assured the attainment of cold water aquatic life class 1 conditions. Therefore, the goal qualifier has been deleted, leaving the underlying classification in place.
The Commission has changed the zinc standard for this segment of South Boulder Creek from 0.05 mg/l to 0.067 mg/l, and changed the copper standard from 0.005 mg/l to 0.016 mg/l. These revised standards are based on existing ambient quality, using the x[BAR] + s methodology. In performing this calculation, Public Service Company proposed that a value equal to the detection limit be used whenever an analysis is reported as "less than detection limit." The Commission has instead adopted standards based on its consistent practice of using "zero" in calculations including values reported as "less than detection limit." So long as a consistent approach is followed in discharge permit monitoring and enforcement, this approach is reasonable.
The Division and the Division of Wildlife proposed changing the Barr Lake warm water aquatic life classification from class 2 to class 1. The Division proposed that the unionized ammonia standard be changed from 0.1 mg/l to 0.06 mg/l.
The Commission finds that Barr Lake is habitat limited and that its current aquatic life class 2 classification and accompanying standards are correct. This finding is based on the evidence presented at the hearing by the parties that Barr Lake is not capable of sustaining a wide variety of warm water species due to poor physical habitat, wide fluctuations in water levels, and potentially uncorrectable water quality conditions. Some of the factors considered by the Commission in making this finding include that the reservoir is dominated by carp; the poor physical habitat includes poor substrate which limits fish reproduction; the fluctuations in water levels are extreme and range between 31,500 and 300 acre feet; and potentially uncorrectable water quality conditions are caused by releases of nutrients from existing bottom sediments by reservoir drawdown and wind/wave action. Finally, the Commission finds that achieving the more restrictive unionized ammonia standard associated with class 1 aquatic life may not be technically or economically feasible.
Empire Reservoir has been added to the description of this segment, to correct an oversight in the 1980 South Platte hearing. Empire Reservoir is extensively used for fishing and hunting and has public access.
Stalker Lake has been added to the description of this segment. This lake, which is a prime fishery, was overlooked in the 1980 hearing. It is managed by the Division of Wildlife and has produced several state records for warm water fish.
A reference to "segments 1 through 6" has been corrected to "segments 1 through 5."
FISCAL IMPACT:
There should be no substantial fiscal impacts as a result of the majority of changes adopted.
For South Mosquito Creek, two metals standards have been made more stringent and two more lenient. The more stringent standards, particularly for zinc, may require additional treatment and/or site clean-up costs for London Mine. London Mine testified that treatment costs to achieve the previously applicable standards could exceed $400,000. However, any such impact will be eased by the temporary modification for zinc. The benefits of the revised standards consist principally of assuring protection of aquatic life.
The revised standards for cadmium, lead and silver for segment 4, the North Fork of the South Platte, are each less stringent than the prior standards. Therefore, the revised limits should result in a reduced fiscal impact on any activities subject to regulation under these standards.
New segment 4a (Gooseberry Gulch) has a potential beneficial impact to dischargers on that segment since their treatment facilities would be controlled by less stringent standards than are presently in effect particularly with respect to ammonia.
Limiting of the temporary modification on segment 14 of the South Platte to one additional year will require some form of ammonia removal at the Littleton-Englewood wastewater treatment plant in the future. The delineation of this cost will be dependent upon the type of treatment, technology used, and the period of time each year that it would be required. Bi-City estimated the cost of required nitrification facilities at $7,000,000. There are also considerable benefits to the uses of segment 14 as well as downstream segment 15 associated with the maintenance of a 0.06 mg/l unionized ammonia standard. However, these benefits can not be quantified at this time.
The revised fecal coliform standard for Bear Creek Reservoir could affect treatment costs for upstream dischargers in the future, as growth occurs. However, no major impact is expected in the near future, since the revised standard is met by existing reservoir quality.
For segments 14 and 15 of Clear Creek, the revised standards for zinc and copper could increase treatment costs in the future for any dischargers discharging metals to these segments. These revised standards also could increase the costs of upstream cleanups pursuant to CERCLA, in an amount that cannot be quantified at this time.The temporary modifications adopted for several metals are more lenient than the existing standards. Therefore, these changes will ease the economic impact on dischargers for the period while they are in effect.
The revised mercury standard for segment 17 of Ralston Creek will have a beneficial fiscal impact on dischargers to that segment. Cotter Corporation testified that this change will avoid increased treatment costs in excess of $500,000.
The revised zinc and copper standards for segment 5 of South Boulder Creek are more lenient than the previous standards, and therefore should reduce the potential fiscal impact on any dischargers in this segment. Public Service Company testified that the cost of treatment to meet the previous standards could exceed $50,000,000. Although the ambient quality-based standards recommended by Public Service differed somewhat from the ambient quality-based standards adopted by the Commission, no specific evidence was submitted regarding any treatment costs that could be necessary to meet the new standards. However, because the revised standards are based on ambient quality, and because there was no evidence that copper levels in the Public Service outflow are less than its inflow, treatment should not be required so long as the standards are applied in a manner consistent with the basis for their adoption.
No new fiscal impacts will result from those segments for which classifications and standards were left unchanged, such as lower Beaver Creek, segment 6 of the South Plate mainstem, and Barr Lake.
PARTIES TO SOUTH PLATE DECEMBER 1987 RULEMAKING HEARING
5 CCR 1002-38.26