5 Colo. Code Regs. § 1002-38.65
The provisions of C.R S. 25-8-202(1)(a), (b) and (2); 25-8-203; 25-8-204; and 25-8-402; provide the specific statutory authority for adoption of these regulatory amendments. The Commission also adopted in compliance with 24-4-103(4) C.R.S. the following statement of basis and purpose.
BASIS AND PURPOSE:
At the June 2005 Basic Standards rulemaking, the Commission adopted the 1999 Update of Ambient Water Quality Criteria for Ammonia (US EPA, Office of Water, EPA-822-R-99-014, December 1999) as the numeric ammonia criteria for Colorado. These new criteria are in the form of total ammonia rather than un-ionized ammonia. The Commission modified the ammonia equations in 35.6(3) and footnotes to conform to Regulation # 31.
Consistent with the approach outlined in the Basic Standards statement of basis and purpose, the Commission provided flexibility for dischargers faced with the possibility of new, more stringent effluent limits.
Temporary modifications were generally set to expire on 12/31/11. This date is set far enough in the future to allow facilities to consider their specific circumstances and to develop a plan regarding how to proceed, yet soon enough to assure that facilities are making progress in developing facility plans. For those that feel the underlying standards are inappropriate, time is allowed to study the receiving water and develop a proposal for an alternate standard. For those that need time to plan, finance or construct new facilities, time is allowed to develop that facility improvement plan.
The intent of the Commission is that in general, the permits for dischargers to warm water segments, that need time to achieve compliance, will contain schedules of compliance in the next renewal. The Commission understands that such a compliance schedule may include time to complete necessary sub-tasks or milestones. For example, this might include time to do facility planning, make financing arrangements, pre-design, design, construction, startup and commissioning.
There are several opportunities to revisit the duration of the temporary modifications before they expire on 12/31/2011. For those segments in the Upper and Lower Colorado Basins (Regulations # 33 and 37), persons can come forward at the Issues Formulation hearing in November 2007 with their intent to seek a site-specific adjustment in the June 2008 hearing. For those segments in the South Platte Basin (Regulation No 38), persons can come forward at the Issues Formulation hearing in November 2008 with their intent to seek a site-specific adjustment in the June 2009 hearing. In addition, all of these temporary modifications will be subject to the Annual Temporary Review process which will have hearings in December 2009 and 2010.
The Commission intends that the temporary modifications adopted in this rulemaking are "type i" temporary modifications, with specific exceptions where a demonstration was made that there is uncertainty regarding the appropriateness of the underlying standard.
The Commission has adopted "type iii" temporary modifications for Upper South Platte segment 5c with an expiration date of 12/31/10; and a "type i" temporary modification for Upper South Platte segment 15 with an expiration date of 12/31/2014.
The issues raised in this rulemaking hearing have highlighted the need to clarify the relationship between the temporary modification tool and the compliance schedule tool in Colorado's water quality management program. The Commission requests that the Division consider this issue further, with input from interested stakeholders, and bring forth any suggested revisions/clarifications for the 2010 Basic Standards rulemaking.
In the meantime, because of the Commission's previously expressed concerns regarding the unique and widespread challenges associated with compliance with the new ammonia standards, the Commission's intent with respect to temporary modifications and compliance schedules regarding these new ammonia standards is as follows:
- Where a demonstration has been made that a period of time longer than the end of 2011 will be required for compliance with the new ammonia standards, the Commission has approved an appropriate site-specific temporary modification expiration date.
- For segments where the 12/31/11 expiration date applies, and for which discharge permit renewals may be issued prior to that date, it is the Commission's intent, consistent with section 31.14 , that the Division have the authority to issue compliance schedules that may not result in full attainment of the ammonia standard prior to expiration of the renewal permit. Such compliance schedules should be issued only where the Division determines that a specific demonstration has been made that additional time is needed to attain the standard. In such cases, the Commission anticipates that permits would include milestones that assure reasonable progress toward attainment of the standard.
The Commission also adopted a site-specific period for the protection of early life stages for Upper South Platte Segment 15 and Middle South Platte Segment 1a that is consistent with early-life stage assumption included in the site-specific dissolved oxygen standard for these segments. This early life stage period is the result of significant scientific investigation performed during the mid 1990's when the dissolved oxygen standard was developed.
PARTIES TO THE RULEMAKING
5 CCR 1002-38.65