5 Colo. Code Regs. § 1002-61.36
STATUTORY AUTHORITY
The provisions of 25-8-202(1)(d) and (1)(i) and (2); and 25-8-501 to 504 C.R.S.(1989 Repl. Vol. 11, 11A and 1992 Supp.) provide the specific statutory authority for this amendment to the Colorado Regulations for State Discharge Permit System, adopted by the Commission. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S. (1988 Repl. Vol 10A and 1992 Supp.), the following statement of Basis and Purpose.
BASIS AND PURPOSE
This is the statement of basis and purpose for adopting the regulations entitled "Phase I Stormwater Permit Application Regulations".
These regulations apply to permit application requirements for point source discharges of stormwater runoff including municipalities with populations of greater than 100,000 (and interrelated discharges) and industrial facilities in the identified categories. The industrial categories are for the most part facilities which engage in manufacturing activities. Retail and wholesale entities are generally not included. Active and inactive mining operations where stormwater is contaminated by contact with certain materials and construction activities are also included. Some of the changes made in this amendment affect all of the permits under the Colorado Discharge Permit System and are not limited to stormwater permit application and permit requirements. These changes are discussed in Section E. below.
The goal of the stormwater program is to protect state waters from adverse impacts from discharges of stormwater-borne pollutants including sediment. This goal is achieved through regulating the point source discharge of stormwater from large and medium-sized municipalities and certain industrial sources. These regulations are designed to reduce the discharge of pollutants in stormwater through the implementation of facility-specific stormwater management plans, which emphasize pollution prevention over active treatment of stormwater.
A stormwater program is needed to reduce the impacts of stormwater-borne pollutants on the waters of the state of Colorado. It is an important element of a comprehensive water quality protection program.
A State stormwater program is needed to maintain an effective and comprehensive CDPS program and to continue to improve the working relationship between the State and the regulated community. Stormwater controls are a basic component of a comprehensive water quality protection program. The CDPS program is the appropriate vehicle for permitting point source discharges of stormwater.
These regulations are consistent with 40 C.F.R. 122.26 (1992). With few exceptions, the state regulations use the same language as the federal regulations. This was done to provide a smooth transition from operating the program under the federal regulations to operating under Colorado regulations. This will also insure that Colorado's regulations are consistent with the federal requirements. The regulations contain a few modifications and details which will enhance the implementation of the program. In addition, most of the amendments to 40 C.F.R. 122.21, 122.22, 122.28, 122.42, 122.44 and 122.48, that are found in 55 Fed. Reg. 47990 (November 16, 1990) and 57 Fed. Reg. 11394 (April 2, 1992) are also included in these regulations.
The Commission recognizes that other state agencies may also have jurisdiction concerning matters covered by CDPS permits issued by the Division regarding stormwater discharges. For example, the Hazardous Materials and Waste Management Division addresses run-on and runoff controls for solid and hazardous waste disposal sites. The Stormwater Permit Application Regulations require that operators of landfills also must obtain permits to discharge stormwater to state waters.
In addition, the Division of Minerals and Geology (DMG) of the Department of Natural Resources is specifically mandated to ensure that "disturbances to the prevailing hydrologic balance of the affected land and surrounding area and to the quality and quantity of water in surface and ground water systems both during and after mining operations (are) minimized." Section 34-32-116(i)(h), C.R.S. (1984). Pursuant to this statute, DMG requires that measures be taken to protect the hydrologic balance as a condition of granting a Mined Land Reclamation Board permit.
Phase I of the Stormwater Permit Application Regulations requires that mining activities obtain stormwater discharge permits if they have a point source discharge of stormwater that is contaminated by contact with any overburden, raw material, intermediate products, byproducts, finished products or waste products located at the mining site. These permits require that measures be taken to control the sources of stormwater pollution.
According to state statute, the Division is solely responsible for the issuance and enforcement of permits authorizing point source discharges to state waters, Section 25-8-202(7)(b)(l), C.R.S. (1989 Repl.Vol.11 A). Also, stormwater permit applications are a federal requirement and the proposed regulations are necessary to assure compliance with the federal act. See Section 25-8-202(7)(b)(ll)(A), C.R.S. (1989 Repl. Vol. 11 A). Finally, the Division may not transfer any of its stormwater permitting and enforcement functions to other state agencies unless those agencies are delegated authority to perform such functions by the EPA. 40 C.F.R. Sections 123.1(g)(1) and 123.62(c) (1992).
The Commission has received extensive testimony and other evidence in support of the exemption from a coalition of industries within category (xi). The evidence indicates that, given the nature of their products, the represented industries must carry out their manufacturing in a clean and dry indoor environment. Likewise, given the nature of the materials used and the final product, these industries tend to protect incoming and outgoing materials from exposure to the elements. Compared with other facilities subject to Phase I permitting, these industries pose a relatively minor risk of water quality impacts associated with stormwater.
Considering the supporting evidence provided by the coalition of category (xi) industries at the hearing, the Commission finds that adoption of a category (xi) exemption from Phase I permitting at this time is appropriate. Accordingly, the rule adopted by the Commission divides the federal category (xi) into two state categories - one for which evidence was presented in this hearing (category (xi)) and one for which no evidence was presented (category (xii)). Only the industries in category (xi) adopted in this rule are subject to the exemption.
The adopted exemption clarifies the term "exposed to stormwater," as that term is used in the federal exemption, by describing the circumstances under which a material or material handling activity would not be considered to be exposed to stormwater. This clarification is intended to provide better guidance to both the regulated entities and the Division.
The second group of changes occurs at 6.3.0. DEFINITIONS. Definitions of terms used in the new stormwater sections were added, including: co-permittee, illicit discharge, incorporated place, large municipal separate storm sewer system, major municipal separate storm sewer outfall, medium municipal separate storm sewer system, municipal separate storm sewer, overburden, runoff coefficient, significant materials, stormwater, stormwater associated with industrial activity, stormwater outfall, and uncontrolled sanitary landfill.
The definition of "municipality" was revised to be more consistent with the federal definition. However, the phrase "or an Indian tribe or an authorized Indian tribal organization," was deleted from the federal language since the EPA issues permits on Indian Lands. A definition of "Division" was added to clarify that the reference is to the Water Quality Control Division and not the Division of Administration as specified in the Water Quality Control Act.
The other changes from the federal definitions include modifications to "municipal separate storm sewer". The terms "borough" and "parish" were removed because they are inconsistent with Colorado law. Also, the reference to "Indian tribe or an authorized Indian tribal organization," was deleted from the federal language since the EPA issues permits on Indian lands. The definitions of "large" and "medium municipal separate storm sewer system" were slightly modified. Individual Colorado cities are named rather than to refer to an appendix in the Federal Register and the 1990 Census is referenced rather than the 1980 Census. Additionally, the portion of the definition of "stormwater discharges associated with industrial discharges" that enumerates the specific industrial categories was placed in the Applicability section of the regulations at 6.4.2.(5)(b). The definition of "separate storm sewer" was removed since it is now redundant with the new definitions
The third group of changes and additions occurs at 6.4.0 APPLICABILITY. This section was divided into two subsections, one dealing with general applicability (6.4.1) and one with stormwater applicability (6.4.2). The general applicability section contains the pre-existing applicability information.
The new stormwater information was added in its own section. Subsection 6.4.2 contains the identification of entities that are required to obtain permits in Phase I of the stormwater program. Subsection 6.4.2 identifies Phase I industrial categories (i)-(xi). Subsection 6.4.2 identifies large and medium municipalities. These sections contain the same provisions as the federal requirements. Subsection 6.4.2 is reserved for Phase II. When federal regulations regarding Phase II are promulgated, this section will be completed.
The fourth and fifth groups of changes occurs in Section 6.5.0 APPLICATION FOR A PERMIT. This section was divided into three subsections, one dealing with general application requirements (6.5.1), one with application requirements for existing manufacturing, commercial, mining and silvaculture discharges (6.5.2), and one with stormwater application requirements (6.5.3). The General Application Subsection (6.5.1) includes the pre-existing requirements and was amended to reconcile Colorado general application requirements with federal rules.
Subsection 6.5.2 was added to address requirements that are part of both the general and stormwater permit program. It is added in anticipation of requirements that may be added in the October 1993 hearing regarding the general CDPS program. These provisions are referenced in Subsection 6.5.3 and therefore are necessary to the stormwater program at this time.
Subsection 6.5.3 was added to address requirements unique to stormwater permit applications. Section 6.5.3 contains the application time frames for existing and new industrial stormwater permits and large and medium municipalities stormwater permits. Section 6.5.3 details the industrial stormwater permit application procedures. This section contains the same provisions as the federal requirements. Section 6.5.3 details the municipal stormwater permit application procedures. This section contains the same provisions as the federal requirements, except that references to the Great Lakes and estuaries were removed and the term "reservoirs" was added to 6.5.3(3)(iv)(C)IV).
The sixth group of changes relates to actual permit requirements, not to application requirements. Section 6.9.4 . MONITORING, RECORDING AND REPORTING, was amended to include new material. The new reporting requirements for municipalities and industries with stormwater permits are discussed in 6.9.4.(8) through (10), and are the same as the federal requirements.
The seventh and final group of changes occurs at 6.10.2 GENERAL PERMITS. These changes affect all general permits issued in the CDPS program, not just stormwater discharge general permits. This section was broken into a subsection on "Coverage" and one on "Administration". The Administration subsection contains additions from 40 C.F.R. 122.28(b)(2) (1992). The automatic general permit certification due to the Division's failure to act was broaden to included any time frames less than 30 days if specifically included in a general permit (6.10.2 (2)(d)).
The permitting of stormwater discharges is part of the CDPS permitting program for point source discharges. See Clean Water Act Section 402 (p) and 40 C.F.R. Section 122.1(b)(2) (1992). As such, the stormwater permitting regulations are integrated into the existing permitting regulations. Portions of the Colorado "Regulations for State Discharge Permit System" that are not unique to stormwater may also apply to point source discharges of stormwater.
Since the stormwater program is a component of the CDPS program, it is intended that the stormwater permitting regulations be implemented following the Division procedures and policies established as a part of overall CDPS permit program. Enforcement should be handled in a manner consistent with the other portions of the CDPS program.
The Division is urged to enter into agreements with other state agencies that also have jurisdiction pertaining to stormwater matters. It is suggested that such agreements include provisions that address coordination of: outreach efforts to all point source stormwater dischargers; mutual permit requirements regarding stormwater controls; inspections; data sharing and enforcement strategies.
The amendment also restructures the existing section. Application requirements which were previously found in the Section 6.6.1 were relocated to this section.
Provisions regarding minimum signatory and certification requirements have been added to the general application requirements section. The added provision are consistent with §122.22 of EPA's regulations. Other general application requirements consistent with §122.21 of EPA's regulations have been added.
Terms and Conditions of Permits
A substantial number of provisions have been added to this general section, reflecting minimum federal requirements found in § §122.41, 122.42, 122.43, 122.44 and 122.45 of EPA's regulations.
Two provisions restricting the Division's authority to issue permits have been added. The first added provision applies where the Regional Administrator timely and properly objects to the issuance of the permit. The Commission believes the addition of this prohibition is beneficial to the regulated entity because it relieves the entity from having to comply with two permits. The Commission does not intend this provision, however, to be interpreted so as to allow the violation of provisions of the CWQCA which have no federal counterpart, should an EPA-issued permit be obtained.
The second provision added restricts the Division's ability to issue a permit to a new source or new discharger unless the new source or discharger demonstrated that the new discharge will not cause or contribute to the violation of water quality standards.
Applicable technology-based effluent limitations for specific categories of industries adopted by EPA pursuant to §304(b) of the federal act have been incorporated by reference in Section 6.9.2 . Additional applicable effluent limitations and guidelines adopted by EPA in Parts 125 and 129 of 40 C.F.R. have also been incorporated by reference.
PARTIES TO THE RULEMAKING HEARING July 6, 1993
5 CCR 1002-61.36