5 Colo. Code Regs. § 1002-61.22
In accordance with the requirements of C.R.S. 1973, 24-4-103(4) the Commission adopts this Statement of Basis and Purpose.
These amendments bring the Permit Regulations into conformity with the "Water Quality Control Act", C.R.S. 1973, 25-8-101. et seq. as amended in the 1982 session of the (Colorado General Assembly by House Bill 1097, and in the 1983 session by Senate Bill 303 and House Bills 1203 and 1571.
House Bill 1097 deleted the words, "or as subsequently amended." from the definition of "Feedlot" in Section 6.3.0 and the words, "or in subsequent amendments to this criteria." from the definition of "separate storm sewer" in Section 6.3.0(30) of the Permit Regulation.
Senate Bill 303 repealed and re-enacted with amendments Section 25-89-502(1)(b), C.R.S. 1973, to provide a schedule of annual fees which will be the only fees the Water Quality Control Division may assess upon a discharger. The fees are to be used only to fund the expenses of the discharge permit system. All fines and penalties are to be credited to the General Fund rather than to the water quality control fund as previously provided. S.B. 303 also repealed Section 25-8-502(6) which grandfathered the procedures for processing permit applications received before July 1, 1981.
House Bill 1203 authorizes the Division to exercise best professional judgment, (BPJ), in establishing effluent limitations on case-by-case basis for individual permits in the absence of federally promulgated effluent guidelines or effluent limitations of the Commission. Review by the Commission of technology-based effluent limitations based on BPJ may be requested and shall take place in a non-adjudicatory hearing.
House Bill 1571 defines the term "commence construction" relative to domestic wastewater treatment works expansion whenever throughput and treatment capacity reaches a specified capacity.
In its notice of rulemaking hearing on these amendments the Commission requested comment on the meaning of "for good cause" from House Bill 1203 in the proposed Section 6.9.2 . The Commission stated in its notice, "it appears that the phrase 'for good cause' may be redundant with the requirement that the Division exercise best professional judgment only if there is a federal technology-based limitation for which there are no effluent guidelines or regulations.'
As its alternate proposal in this matter CF&I Steel Corporation disagreed with the suggestion in the public notice that the phrase "for good cause" is redundant and should be deleted as creating an ambiguity. CF&I urged that the language of the regulation track the statutory language which was agreed to by the Commission.
In its prehearing statement, the City of Arvada stated it did not object to the inclusion of the phrase "for good cause" in the proposed amendment, but does feel that the phrase is redundant and unnecessary to effectuate the terms and intent of House Bill 1203. Considering the comments it received and its desire to give full expression to the statutory language, the Commission adopted regulatory language interpreting "for good cause" to mean when it is consistent with the purposes of the Legislative Declaration 25-8-102, C.R.S. 1973.
Arvada stated "since the Water Quality Control Division may consider all factors pertaining to discharges, and in the exercise of best professional judgment determine effluent limitation requirements, the proposed amendment is economically reasonable." The Commission concurs and further finds that the entire amendment which it has adopted is economically reasonable.
A comment by the New Jersey Zinc Company was that the Division is precluded from assessing fees for work done on a permit application if processing of the application was not completed prior to the effective date of S.B. 303, July 1, 1983. The Commission has determined that the more reasonable interpretation is that the permit fee requirements of S.B. 10 (1981) should apply for all permit processing work done before July 1, 1983, because there is nothing in the language of S.B. 303 to indicate that the legislature sought to overturn retroactively the determination in S.B. 10 that the Division's 1982-83 permit processing costs would be borne by permittees, since the processing costs were occurred before July 1 , 1983, the permittee should be required to pay them.
5 CCR 1002-61.22