5 Colo. Code Regs. § 1002-61.23
The purpose of this amendment is to remove apparent inconsistencies between two of the regulations recently adopted by the Commission with regard to the Act's provision in Section 204(3) for a hearing on the economic reasonableness of requiring treatment beyond secondary treatment. The amendment additionally extends the opportunity for a rulemaking hearing on stream classifications and or numeric standards for ammonia and nitrite to all pollutants for which beyond secondary treatment may be required. The latter amendments could help resolve problems of conflicts between the Clean Water Act and state procedures alleged by EPA.
This amendment clarifies that when the Division proposes to issue a permit that would require treatment beyond secondary treatment, the permittee must exercise the statutory right to a hearing given in Section 204(3) by requesting that hearing. In this way, only those permittees who believe that treatment beyond secondary treatment is economically unreasonable! for their facilities will have hearings.
The amendment also clarifies that although the conditions requiring beyond secondary treatment will not go into effect during the review process, other permit conditions will go into effect as usual.
This amendment provides that, when a permittee requests a hearing under Section 204(3), the Commission may in its discretion, proceed first with a rulemaking hearing for the purpose of reclassifying, or changing the numeric standards of the stream segment into which the permitted facility discharges. In this manner, if a change in stream standards results that would in turn require a change in the permit conditions, the need for a hearing pursuant to Section 204(3) could be obviated. If, after rulemaking, the permittee was still desirous of proceeding with Section 204(3) adjudicatory hearing, that right would still be available.
By adopting this amendment, the Commission intends to avoid two conflicts with the Clean Water Act ("CWA") alleged by EPA. One is the granting of variances from stream classifications or standards for individual permittees. EPA contends that the granting of such variances is impermissible under the CWA; whereas, changes in classifications and standards are acceptable with certain limitations. The second alleged conflict is the prohibition in the CWA against a board or body which approves permit applications from having as a member any person who receives a significant portion of his income from a permit holder. The same prohibition does not apply to rulemaking, which affects permits, such as stream classifications.
Finally, this amendment deletes from the permit regulations the reference to the "Footnote for Unionized Ammonia and Nitrite". In view of the other changes, this reference would be redundant.
FISCAL IMPACT STATEMENT
These amendments to clarify procedures for hearings pursuant to C.R.S. 1973, 25-8-204(3) (beyond Secondary Treatment Requirements) have no fiscal impact which can be identified at this time. Any fiscal impacts that could be associated with this action would be more properly attributable to prior actions of the Commission. The Commission believes it has acted in an economically reasonable manner by adopting these amendments.
Adopted: April 14, 1986Effective: May 30, 1986
5 CCR 1002-61.23