5 Colo. Code Regs. § 1002-61.24
These amendments bring the Regulations for the State Discharge Permit System ("the permit regulations") into compliance with Senate Bill 83 changes to the Water Quality Control Act, C.R.S. 25-8-101 et seq., that became effective June 4, 1985.
S.B. 83 corrects certain deficiencies in the state water quality permit program. EPA specifically identified three areas of the permit program which did not comport with Federal requirements. Each of these problems inadequate coverage of activities for which criminal penalties could be imposed, variances from water quality standards granted to individual permittees through their permits without sufficient notice or a legitimate concurrent change in the water quality standards through rulemaking, and the Commission's acting as an appellate body for reconsideration of decisions made on individual permits in contravention of the Federal law's conflict of interest provision - has been resolved through S.B. 83.
S.B. 83 modified C.R.S. 25-8-204(3) to delete the right to a hearing for dischargers whose permits require treatment beyond secondary, in which hearing the Commission was to determine whether such treatment was economically reasonable before it could be required. These regulations were modified in Section 6.12.0 to prevent hearings held under this section from violating the conflict of interest provision in the Federal Clean Water Act.
C.R.S. 25-8-401(5)(b) now applies only to those variances still allowed under the Water Quality Control Act which will primarily be limited to variances from control regulations such as variances from the state effluent limitations found in 5 CCR 1002-3.10.1.1.
C.R.S. 25-8-401(5)(b) requires that if a variance is granted before the Division issues the relevant permit, the Division must republish the public notice and the permit in draft form with the variance. This is necessary to comply with EPA's notice provisions. On the other hand, if a variance is granted after the Division has issued the permit, the variance must be published as a permit modification which also goes to public notice and is also necessary for compliance with EPA's regulations.
For variance from regulations which are not required for compliance with the Federal discharge permit program, in other words from regulations which either go beyond Federal requirements or from regulations which do not apply under federal law to an NPDES permittee, an appeal from a Division decision regarding the variance can be made to the Commission. For all other variances, a dissatisfied party must appeal to a hearing officer as a part of the general adjudicatory hearing on the permit under the APA. Where the APA does not automatically stay permits, once contested, S.B. 83 specifically grants the Division the right to stay its own permits upon challenge. C.R.S. 25-8-404.
Because of the potential overlap between C.R.S. 25-8-403 and 25-8-404 and the potential for confusion among the regulated community, the Commission is promulgating these regulations explaining how the Division will grant administrative stays. Without certain guidelines to control when a stay is appropriate it is possible that arbitrary decisions could result.
S.B. 83 modifies C.R.S. 25-8-501(2) to spell out that the terms of a permit govern until that permit is formally changed after public notice. EPA requested this clarification because permittees might otherwise argue that a request for rulemaking before the Commission, or a decision by the Commission with regard to a specific standard would automatically stay enforcement of a permit condition based on the standard.
S.B. 83 modified Section 25-8-505(a)(l) to provide that, where the Division cannot meet the 180 day deadline for permit issuance, the Division may automatically extend an existing permit for a renewal permittee, as is provided in the APA, or issue a temporary permit to a new applicant. These regulations provide for an appeal of such temporary permits and also require public notice of a permit extension.
The S.B. 83 revision to C.R.S. 25-8-503(1)(b) provides that the Division has Best Professional Judgement (BPJ) authority on a permit-by-permit basis when necessary for compliance with the "Federal Act". The Clean Water Act, in Section 402(a)(1), gives EPA's Administrator specific BPJ authority. EPA has interpreted this section also to allow states with delegated programs the ability to exercise BPJ authority, under the same circumstances as the Administrator. It is Section 402(a)(1) of the Federal Clean Water Act on which EPA bases its regulations that spell out States' BPJ authority. See 40 C.F.R. 125.3(c).
There is an opinion by EPA's general counsel in which no distinction is made between State and Federal permit writers with regard to the ability to include BPJ provisions in a permit. In re Central Hudson Gas and Electric, OGC, Vol. 2, p. 371 (July 29, 1977), NPDES opinion No. 63. Further, there is a case in which the court did not distinguish between State and Federal permit writers in the context of BJP permits. American Frozen Foods, Inc. v. Train, 539 F. 2d 107 D.C. Cir. (1976). Finally, the legislative history of the 1977 Clean Water Act amendments, vol. Ill, p. 461, in which Senator Muskie stated, with reference to Section 402, that Federal and State permit issuers had the ability to write BPJ permits when no applicable BAT limits existed. At the State level, Senator Allard read into the record immediately before the Senate voted to accept the conference committee versions of Senate Bill 83, a statement that indicated that the legislative interest was to include both federal statutes and regulations.
For these reasons, it is evident that the Division has been granted the authority to make BPJ determinations as provided by the regulations. Senate Bill 83 modifies subparagraph (c) of Section 503(1) to provide for review of a BPJ decision by a hearing officer, as opposed to the Commission, to avoid the conflict of interest prohibited by the Clean Water Act. This review is a part of a general adjudicatory hearing on the permit. In addition, subparagraph (c) now provides that the standard for review is different from what would ordinarily be required, to wit, the Division bears the burden of proving by substantial evidence that its formulation of BPJ permit limits is justified.
S.B. 83 modifies the variance provision of the Colorado Water Quality Control Act of 1981 (S.B. 10) by deleting entirely the right to a variance from water quality standards previously allowed under C.R.S. 25-8-503(4). It now states that water quality based effluent limitations must be based on "appropriate physical, chemical and biological factors reasonably necessary to achieve the levels of protection required by the standards."
Section 25-8-503(9) C.R.S. is a new section added by Senate Bill 83 which allows the permit variances that are consistent with the Clean Water Act. For the most part, variances under the Federal Act can be granted only by the Administrator; however, certain variances, such as those from temperature standards, may be granted by a State agency. In addition, this section grandfathers previously granted variances.
S.B. 83 modifies C.R.S. 25-8-501(2) to spell out that the terms of a permit govern until that permit is formally changed after public notice. EPA requested this clarification because permittees might otherwise argue that a request for rulemaking before the Commission, or a decision by the Commission with regard to a specific standard would automatically stay enforcement of a permit condition based on the standard.
S.B. 83 modified Section 25-8-505(a)(l) to provide that, where the Division cannot meet the 180 day deadline for permit issuance, the Division may automatically extend an existing permit for a renewal permittee, as is provided in the APA, or issue a temporary permit to a new applicant. These regulations provide for an appeal of such temporary permits and also require public notice of a permit extension.
The S.B. 83 revision to C.R.S. 25-8-503(1)(b) provides that the Division has Best Professional Judgement (BPJ) authority on a permit-by-permit basis when necessary for compliance with the "Federal Act". The Clean Water Act, in Section 402(a)(1), gives EPA's Administrator specific BPJ authority. EPA has interpreted this section also to allow states with delegated programs the ability to exercise BPJ authority, under the same circumstances as the Administrator. It is Section 402(a)(1) of the Federal Clean Water Act on which EPA basis its regulations that spell out States' BPJ authority. See 40 C.F.R. 125.3(c).
There is an opinion by EPA's general counsel in which no distinction is made between State and Federal permit writers with regard to the ability to include BPJ provisions in a permit. In re Central Hudson Gas and Electric, OGC, Vol. 2, p. 371 (July 29, 1977), NPDES opinion No. 63. Further, there is a case in which the court did not distinguish between State and Federal permit writers in the context of BJP permits. American Frozen Foods, Inc. v. Train, 539 F. 2d 107 D.C. Cir. (1976). Finally, the legislative history of the 1977 Clean Water Act amendments, vol. Ill, p. 461, in which Senator Muskie stated, with reference to Section 402, that Federal and State permit issuers had the ability to write BPJ permits when no applicable BAT limits existed. At the State level, Senator Allard read into the record immediately before the Senate voted to accept the conference committee versions of Senate Bill 83, a statement that indicated that the legislative interest was to include both federal statutes and regulations.
For these reasons, it is evident that the Division has been granted the authority to make BPJ determinations as provided by the regulations. Senate Bill 83 modifies subparagraph (c) of Section 503(1) to provide for review of a BPJ decision by a hearing officer, as opposed to the Commission, to avoid the conflict of interest prohibited by the Clean Water Act. This review is a part of a general adjudicatory hearing on the permit. In addition, subparagraph (c) now provides that the standard for review is different from what would ordinarily be required, to wit, the Division bears the burden of proving by substantial evidence that its formulation of BPJ permit limits is justified.
S.B. 83 modifies the variance provision of the Colorado Water Quality Control Act of 1981 (S.B. 10) by deleting entirely the right to a variance from water quality standards previously allowed under C.R.S. 25-8-503(4). It now states that water quality based effluent limitations must be based on "appropriate physical, chemical and biological factors reasonably necessary to achieve the levels of protection required by the standards."
Section 25-8-503(9) C.R.S. is a new section added by Senate Bill 83 which allows the permit variances that are consistent with the Clean Water Act. For the most part, variances under the Federal Act can be granted only by the Administrator; however, certain variances, such as those from temperature standards, may be granted by a State agency. In addition, this section grandfathers previously granted variances.
Section 6.12.0 of this regulation provides for a statement of the beneficial uses to be attained or maintained by the effluent limits in a CPDES and the analysis of the determination that led to that conclusion. These provisions are in compliance with C.R.S. 25-8-503(8), a new section added by Senate Bill 83. It requires that the Division include in its permit rationale, which accompanies a final permit at issuance, a statement whether or not the water quality standard based effluent limitations are reasonably related to the economic, environmental, public health, and energy impact to the public and affected persons of the permit conditions. To write such a statement, the Division is authorized to request the information necessary to make this determination.
FISCAL IMPACT STATEMENT:
The amendments in this regulation have no fiscal impact beyond the statutory changes which brought about the amendments.
PARTIES TO THE PROCEEDINGS
5 CCR 1002-61.24