5 Colo. Code Regs. § 1002-61.37
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. 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
These revisions are primarily adopted to (1) add needed specificity regarding minimum permit application requirements and minimum terms and conditions which the Division must include in its permits: (2) resolve outstanding delegation issues with EPA; (3) increase the Division's ability to obtain information regarding industrial dischargers; and (4) restructure, correct typographical errors, and eliminate obsolete language throughout these regulations.
Overview
These regulations implement the discharge permit program delegated by EPA in 1975, in accordance with the CWA and with EPA's delegation regulations (found at 40 C.F.R. Part 123). Part 123 of EPA's regulations prescribe minimum requirements for delegation and delineates EPA's role to oversee the States' implementation of the delegated programs.
In 1989, EPA initiated a comprehensive review of Colorado's program. EPA submitted extensive comments regarding the adequacy of the State's statutory and regulatory authority to implement a permit program which is consistent with the federal NPDES program. Adequate statutory and regulatory authority is a minimum delegation requirement under the CWA and Part 123. The bulk of EPA's comments relate to the absence from these regulations of minimum requirements pertaining to the issuance of permits. EPA's comments thus question the sufficiency of the State's regulatory authority.
The Commission believes that these regulations, together with the provisions of the CWQCA, provide (and have provided for the past 18 years) sufficient authority for the implementation of a State discharge permit program that is no less stringent than the federal program. The Commission acknowledges that these regulations are not as specific as comparable EPA regulations. Instead, the Division's implementation of the program relies, to some extent, on the CWQCA's directives regarding consistency with federal program requirements (e.g., § § 25-8-502(3) and 25-8-503(1), C.R.S.)
While the Commission believes that the CWQCA and these regulations provide the required authority, the Commission acknowledges that the current system results in the Division's reliance on the federal act and federal regulations to derive permitting requirements. The Commission finds that, as a matter of policy, it is preferable for the Division to rely on the State's own permit regulations. Accordingly, this amendment adds a significant number of provisions pertaining to minimum application, boilerplate and other permitting requirements which the Division must follow in implementing the State program.
The Division testified at the hearing that the added provisions reflect, for the most part, the federal language the Division has relied upon so far in administering the permit system. For example, many of the provisions which have been added are already found in the Division's boilerplate permit application or boilerplate permit conditions. Therefore, the Commission expects the added provisions to have little, if any, practical impacts on dischargers.
Two of the provisions adopted in this amendment are unrelated to the delegation issues raised by EPA or to the need for specificity in these regulations. One of these provisions requires that, where a facility is owned by one entity and operated by another, both the owner and the operator sign the permit application and that the permit be issued to both as co-permittees. Currently, these regulations do not specify whether the owner, the operator, or both should apply for the permit. Section 25-8-501 C.R.S. specifically authorizes the Commission's adoption of this provision. The Commission further finds, based on the testimony at the hearing, that the adopted provision will increase the owners' awareness and responsibility over activities which may result in their environmental liability.
The second provision adopted in this amendment, which is not related to delegation, allows the division to require industrial permit applicants to submit information pertinent to their wastewater treatment and wastewater production facilities. Section 25-8-501 C.R.S. provides the specific authority for the Commission's adoption of this amendment. The Commission further finds, based on the Division's testimony, that the Division's increased ability to gain knowledge over an industrial facility's wastewater treatment process is needed, in some instances, to ensure compliance with the CWQCA and these regulations, and to prevent the creation of emergency situations related to noncompliance.
Since the Commission first published the rulemaking notice for these revisions to the discharge permit regulations, the Commission has amended the regulations to include stormwater provisions. In addition, the Ground Water and Land Application provisions adopted by the Commission in November of 1990 became effective on July 1, 1993 and were then incorporated into the text of these regulations. Proper notice was provided for the stormwater amendments, the ground water/land application amendments and for these amendments to the regulations and, therefore, additional notice for this rulemaking hearing is not necessary. If problems arise in the future as a result of this consolidation, the Commission will consider noticing for hearing any changes that may be necessary.
General Provisions
This amendment adopts an incorporation by reference clause and a severability clause. While the adoption of this amendment attempts to diminish reliance on the federal regulations, the Commission finds that textual incorporation of federal tables and language is unnecessary and impractical. Such is the case, for example, with the incorporation of categorical effluent limitations in Section 6.9.2 . The Commission has adopted the incorporation by reference clause to ensure that any incorporation by reference throughout these regulations complies with § 24-4-103 of the Administrative Procedures Act.
Definitions
This section has been amended to incorporate new terms used in the added provisions. In addition, a description of other pertinent Commission regulations which are referenced in these regulation has been added, to provide consistency throughout the regulations.
Applicability
The applicability section has been expanded to specify certain sources of pollutants which are required to obtain a discharge permit. The added provisions are consistent with the corresponding federal requirements found in § §122.1, 122.24, 122.25, and 122.27.
Application Requirements
The adopted amendment adds special application requirements for certain types of dischargers. The Commission intends these special application requirements to be read in conjunction with the general requirements so as to avoid duplication. Where a more specific requirement applies, the more general requirement should be deemed to be met.
The line drawing requirements of section 6.5.2 are intended to provide an overall view of the facility. Block units may be used to indicate large complex processes; however, upon request by the Division, more detailed information within the blocks must be submitted by the applicant. For purposes of this requirement, operations contributing wastewater are those processes or steps after which effluent streams and routed to treatment or pretreatment facilities and are not further used for manufacturing, commercial, mining or silvicultrue purposes. The Commission intends the Division to use its discretion to determine, on a case-by-case basis, the level of detail needed to satisfy this requirement.
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 provisions 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.
A provision allowing dischargers to claim credits for pollutants in their intake waters, consistent with §122.44 of EPA's regulation, has been added. The added provision clarifies the existing provision which allows credit for pollutants in intake waters "whenever appropriate circumstances exist," by spelling out the circumstances under which credit may be given. In addition, subsection (2)(i) of Section 6.9.2 has been eliminated because it allows for credit for pollutants in the intake waters under circumstances which are not allowed under federal regulations.
Section 6.9.2 has also been amended to allow the Division, under the described circumstances, to impose internal effluent limits. This provision is consistent with §122.45(i) of EPA's regulations.
EPA questioned Colorado's use of potentially dissolved values to express metals effluent limitations based on dissolved water quality standards, as provided in 6.9.2(2). It is the Division's practice and the Commission's intent that, in calculating potentially dissolved effluent limitations, a one-to-one relation between standard and limitation is assumed.
A number of provisions specifying "boilerplate" conditions to be includes in all permits have been added to Sections 6.9.3 and 6.9.4 . These provisions include proper operation and maintenance, mitigation, proper treatment byproduct disposal practices, bypass conditions, and an upset defense provision. To the extent these provisions address sludge/biosolids disposal practices, the Commission intends the Division to coordinate with other agencies charged with sludge/biosolids regulation responsibilities. A new Section 6.9.5 has been added, consolidating all the notification requirements to which a permittee is subject.
The Commission has adopted the upset defense provision proposed by a number of the parties. The upset provision proposed by the Division mirrored that of EPA which restricts its application to upsets from technology-based limitations. In Colorado many permittee are subject to more restrictive water quality-based limitations. Such limitations are developed using conservative assumptions such as maximum discharge at minimum stream flow. There are situations when circumstances beyond the control of the permittee result in violations of water quality based effluent limitations without causing exceedances of instream water quality standards. The Commission believes that in these circumstances it is appropriate to allow application of the upset defense to violations of water quality-based limitations.
The regulation adopted by the Commission requires permittees who wish to rely on the upset defense for water quality-based limitations to not only meet the upset criteria but also to demonstrate through monitoring, modeling or other methods that the relevant water quality standards were achieved in the receiving water during the upset period. (If antidegradation-based limits are exceeded in an upset, the permittee must show the instream conditions that correspond to the antidegradation-based limits were not exceeded.) The Commission notes that monitoring and modeling capability has advanced significantly in recent years. In some cases it may be possible using these techniques to show that no violation of water quality standards took place.
The Commission believes that dischargers should not be subject to enforcement liability where water quality-based limitations were exceeded as a result of an upset but there has been no instream exceedance of water quality standards. The alternative proposal advanced by the parties and adopted by the Commission allows a permittee to claim the affirmative defense of upset for a violation of effluent limitations based on water quality standards and it places the burden of proving the defense on the permittee, subject to review and determination by the Division.
The existing provisions regarding transfers of permits has been amended to distinguish the circumstances under which an automatic transfer is appropriate and those where new public notice and opportunity for comment must be given.
The existing provisions specifying boilerplate conditions applicable to domestic wastewater treatment works have been consolidated in a new Section 6.9.7 . Obsolete language has also been eliminated. Likewise, the existing provisions pertaining to permit modification, suspension, and revocation and reissuance have been consolidated in a new Section 6.9.8 . A clarification that the antibacksliding provisions applicable to renewed permits apply to modified or reissued permits has been added to the existing provision.
An antibacksliding provision consistent with the federal act has been added to Section 6.11.0 . The adopted provision is different from EPA's rule but it is consistent with § §402(o) and 303(d)(4) of the Clean Water Act, as those provisions are interpreted by EPA. Sections 402(o) and 303(d)(4) are antibacksliding provisions enacted by Congress as part of the 1987 amendments to the CWA. EPA's current rule precedes the 1987 amendments. Since their enactment, EPA has drafted but has not yet adopted an amendment to the rule which reconciles it with the new statutory provisions. The Commission is required by State law to adopt regulation which are consistent with both the federal act and applicable federal regulations. In its current form, EPA's antibacksliding rule is not consistent with the federal act, a fact emphasized by EPA. The Commission finds that the adopted State rule is both reasonable and consistent with both the federal act and with EPA's interpretation of the federal act, as reflected in EPA's guidance and draft rule.
A question asked during the hearing was whether the adopted antibacksliding provision would preclude the Division from relaxing a water-quality-standard-based effluent limitation where the Commission modifies the water quality standard on which the limitation is based, to make it less stringent. The Commission intends the exception in Section 6.11.0 to allow backsliding under such circumstances. Accordingly, where the Commission modifies a water quality standard to make it less stringent than a previously adopted water quality standard, the Division may relax the corresponding effluent limitation in a permit, provided that (1) the newly adopted water quality standard is being attained instream and (2) the relaxation is consistent with the Commission's antidegradation rule. Consistency with the Commission's antidegradation rule shall be presumed, in the antibacksliding review context, if the receiving waters are designated by the Commission as use protected pursuant to Section 3.1.8 of the Basic Standards.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-61.37