5 Colo. Code Regs. § 1002-61.5

Current through Register Vol. 47, No. 11, June 10, 2024

Section 5 CCR 1002-61.5 - REVIEW, DETERMINATION, NOTICE and PUBLIC PARTICIPATION

61.5(1)REVIEW OF AN APPLICATION

(a) These regulations apply to all permit applications and renewals regardless of the date of receipt by the Division.

(b) Applicants for a permit to discharge are strongly encouraged to schedule a pre-application conference and site inspection with the Division in order for the Division to evaluate the proposed discharges for which an application is required or to determine the applicability of these regulations. The Division's site visit in conjunction with the pre-application conference will be used to identify needed background information required for a complete application.

(c) The Division shall begin the review of an application within forty-five days after the receipt of the application and shall notify the applicant within ninety days after receipt of the application whether the application is complete. If the Division determines the application is incomplete, the Division may request that the applicant submit additional information. If additional information is requested by the Division and submitted by the applicant, the Division shall have fifteen days after the date additional information is submitted to determine whether the additional information satisfies the request and to advise the applicant if, and in what respects, the additional information does not satisfy the request. A final decision that an application is not complete shall be considered a final agency action upon issuance of such decision to the applicant and shall be subject to judicial review. The Division shall not issue a permit until the application is deemed complete. The one hundred eighty day deadline for the Division to issue the permit shall be extended by the number of days that an applicant takes to submit additional information requested by the Division, plus the fifteen days provided to the Division to evaluate such additional information.

(d) The Division shall evaluate complete permit applications to determine whether the proposed discharge will comply with all applicable federal and state statutory and regulatory requirements.

(e) When the Division determines that a site visit(s) is necessary to evaluate the discharge to which an application pertains, the Division shall specify the date of notification by which time the applicant shall make arrangements for the date of the site visit. In the event that satisfactory response is not received, the permit application shall be denied by the Division and the applicant so notified.

61.5(2)PUBLIC NOTICE AND COMMENT - DRAFT PERMITS

(a) The Division shall prepare a preliminary analysis and tentative determination to issue or deny the permit and advise the applicant of that analysis.

(b) If the analysis is to issue a permit, the Division shall prepare a draft permit with terms and conditions. Public notice of the Division's draft permit shall be given as provided in paragraph (e) of this section. Such draft permit and permit rationale shall be available to the public for inspection and copying and shall include at least the following:

(i) Proposed effluent limitations for each discharge point for those pollutants proposed to be limited;

(ii) Delineation of the service area based on population and design flow of the treatment and sewer system for domestic permits and delineation of the maximum expected production rate for industrial permits;

(iii) A proposed schedule of compliance, including interim dates and requirements, for meeting the proposed effluent limitations if the permittee is not presently doing so;

(iv) All monitoring requirements under section 61.8(4);

(v) All terms and conditions under sections 61.8 through 61.8 of these regulations; and all applicable terms and conditions under sections 61.8(11) and 61.8(12) of these regulations; and

(vi) For major facilities, any additional information which may be required pursuant to 40 C.F.R. 124.8 or 40 C.F.R. 124.56.

(c) If the Division proposes to deny the permit, the Division shall inform the applicant of the reasons for the proposed denial. The decision to deny a permit shall be given by notice as provided in paragraph (e) of this section.

(d) Interested persons may submit written comments to the Division on the permit application and draft permit, and may request a public meeting pursuant to section 61.5 . The period for public comment will typically close thirty (30) days from the date of notice of the permit application and the draft permit, unless extended in section 61.5 or if a public meeting is held on the permit application and draft permit. If a public meeting is held on the application and draft permit, the period for public comment shall close sixty (60) days from the date of notice for the draft permit.

(i) Discretionary public comment periods.

(A) Extension of comment period. A comment period longer than thirty (30) days may be necessary to give commenters a reasonable opportunity to comply with the requirements of sections 61.5 and 61.7. Additional time shall be granted to the extent that a commenter who requests additional time demonstrates the need for such time and the extension does not unreasonably delay permit issuance.

(B) Responsive comment period. The Division may also establish a responsive period of public comment in which any person may file a written response to the material filed by any other person during the comment period. A responsive comment period may be granted in addition to time granted pursuant to a request for public hearing under section 61.5 and /or an extension of the public comment period pursuant to section 61.5(2)(d)(i)(A).

(I) A request for a responsive comment period must be made within ten (10) calendar days of the close of the public comment period.

(II) The Division must respond to a request for a responsive comment period within five (5) days of receipt of the request.

(III) The Division will establish a schedule of deadlines for filing responsive comments and rebuttal comments and will inform the person(s) requesting a responsive comment period and all previous commenters of this schedule when it grants the request.

(a) The responsive comment period schedule will establish a deadline to file responsive comments. Interested persons will have at least ten (10) days to file responsive comments.

(b) The responsive comment period schedule will establish a deadline to file rebuttal comments. Interested persons will have at least ten (10) days to file rebuttal comments immediately following the close of the deadline for responsive comments. Filing of rebuttal comments is optional.

(IV) Any allegation that the Division has erred in failing to grant a responsive comment period or in establishing the deadlines for the responsive comment period must be made in writing to the Division no more than forty-five (45) days after the close of the initial public comment period.

(C) Reopening of comment period. In some cases, the Division may reopen the public comment period for limited purposes to expedite the decision-making process. Comments filed during the reopened comment period shall be limited to the substantial new questions, issues, data, information, or arguments that caused the reopening. The public notice under section 61.5 shall define the scope of the reopening. If the comment period is reopened, it will be for a minimum of thirty (30) days from the date of the notice of reopening. A commenter may request an extension of the reopened comment period, as necessary, pursuant to section 61.5(2)(d)(i)(A).

(ii) If any data information or arguments submitted during the public comment period, including information or arguments required under section 61.7 , appear to identify substantial new questions or issues concerning a permit, the Division may take one or more of the below actions. Public notice of any of the below actions shall be issued under section 61.5(2)(e).

(A) Reopen or extend the comment period under section 61.5 to give interested persons an opportunity to comment on the information or arguments submitted;

(B) Establish a responsive comment period pursuant to section 61.5(2)(d)(i)(B); and/or

(C) Prepare a new or revised draft permit, fact sheet, and/or water quality assessment under section 61.5 and reopen the comment period under section 61.5 (d)(i)(C);

(e) Public Notice of every draft permit and, where applicable, of the Division's preliminary antidegradation determination pursuant to the Procedural Rules, Regulation No. 21, section 16, shall be transmitted to the applicant and circulated in a manner designed to inform interested and potentially interested persons of the proposed discharge and of the draft permit. Procedures for the circulation of public notice shall include at least the following:

(i) Notice shall be circulated in a newspaper which is distributed within the geographic area of the proposed discharge. The Division may also circulate a press release that is accessible to media throughout the state;

(ii) The Division shall transmit notice to any other state whose waters may be affected by the issuance of the proposed permit, with the request that the State submit recommendations to the Division concerning the proposed permit within a specified time period. The Division shall either adopt the recommendations or respond in writing and explain why the recommendations are not accepted;

(iii) The Division shall transmit notice to any interstate agency which may have an official interest in such permit, with request for comment within a specified time period. The Division shall either adopt the recommendations or respond in writing and explain why the recommendations are not accepted;

(iv) The Division shall transmit a notice to all other appropriate government agencies and shall provide such agencies an opportunity to submit their views and recommendations. Such agencies shall include, among others, any agency responsible for the preparation of any approved water management plan under Section 208(b) of the Federal Act and appropriate public health agencies;

(v) The Division shall add the name of any person or group upon request to the mailing list to receive copies of notices for all discharge applications within the State or within a certain geographical area, and shall charge for such service;

(vi) The Division shall also, during the period from the date of the initial public notice of the application and draft permit to the close of the public comment period, maintain in the office of the county clerk and recorder of the county in which the proposed discharge, or a part thereof, is to occur a copy of its draft permit and a copy of the permit application and, where applicable, a copy of the Division's preliminary antidegradation determination with all accompanying data for public inspection.

(f) The contents of the public notice required by paragraph (e) of this section shall include at least the following:

(i) Name, address, and phone number of the Division;

(ii) Name and address of each applicant and, if different, of the facility or activity regulated by the permit;

(iii) Brief description of each applicant's activities or operations which result in the discharge described in the permit application or the draft permit (e.g., municipal waste treatment plant, steel manufacturing, drainage from mining activities);

(iv) Name of waterway to which each discharge is made and a short description of the location of each discharge on the waterway indicating whether such discharge is a new or an existing discharge;

(v) A statement of intent to issue or deny a permit;

(vi) A brief description of the procedures for the formulation of the final permit, including the thirty (30) day period during which public and official comments are invited;

(vii) Address and phone number of State or interstate agency premises at which interested persons may obtain further information, request a copy of the application, the preliminary analyses and the draft permit, and inspect and copy permit forms and related documents;

(viii) Name, address, and telephone number of the Water Quality Control District Engineer of the Division, in whose area the discharge is located; and

(ix) A description of the comments and hearing request procedures provided in sections 61.5 and (3).

(g) If the Division proposes to grant a variance to a permit during the public notice period or prior to issuing the final permit, the Division must re-submit the permit to public notice in draft form with a clear statement of the proposed variance. The time period for public comment cited in subsection (d) of this section shall apply to the variance review.

(h) If the Division grants a variance after the final permit is issued, the variance must be published as a permit modification and is subject to public notice. The period of time for public comment cited in subsection (d) of this section shall apply to the permit modification review.

61.5(3)PUBLIC MEETINGS ON DRAFT PERMITS

(a) The Division shall provide an opportunity for the applicant, any affected State, any affected interstate agency, the Regional Administrator, or any interested agency, person, or group of persons to request or petition for a public meeting with respect to the draft permit. Any such request or petition for public meeting shall be filed within thirty (30) days of the public notice provided under section 61.5(2), and shall indicate the interest of the party filing such request and the reasons why a meeting is warranted. The Division shall hold a meeting if there is a significant degree of public interest. Instances of doubt should be resolved in favor of holding a meeting. Any such meeting shall be held no more than sixty (60) days after the public notice provided under section 61.5(2), in the geographical area of the proposed discharge or other appropriate area at the discretion of the Division. If appropriate, related groups of permit applications may be considered in one public meeting.

(b) Public notice of any meeting shall be circulated at least as widely as was the original public notice of the application. Procedures for circulation of public notice of a public meeting shall conform to the procedures contained in section 61.5 of these regulations. As a minimum, such notice shall be provided to at least one newspaper of general circulation within the geographical area of the discharge. Notice shall be given at least thirty (30) days in advance of the meeting.

(c) The contents of public notice of any meeting shall include the following:

(i) Name, address, and phone number of the agency holding the public meeting;

(ii) Name and address of each applicant whose application will be considered at the meeting;

(iii) Name of waterway to which each discharge is made and a short description of the location of each discharge on the waterway;

(iv) A brief reference to the public notice issued for each tentative permit determination, including identification number and date of issuance;

(v) Information regarding the time and location for the meeting;

(vi) The purpose of the meeting;

(vii) A concise statement of the issues raised by the persons requesting the meeting;

(viii) Address and phone number of premises at which interested persons may obtain further information, and inspect and copy permit forms and related documents; and

(ix) A brief description of the nature of the meeting, including the rules and procedures to be followed.

(d) Whether or not the applicant requests a public meeting, he or she has not waived his or her right to an adjudicatory hearing upon final determination by the Division to issue the permit, with conditions therein, or to deny the permit.

(e) Any person shall be permitted to submit oral or written statements and data concerning the proposed permit. The person conducting the meeting shall have discretion to fix reasonable limits upon the time allowed for oral statements, and may require the submission of statements in writing.

61.5(4)PUBLIC ACCESS TO INFORMATION

(a) In general, permit applications, draft permits, correspondence between the Division and the applicant, the Regional Administrator, and the District Engineer of the Corps of Engineers are public information and shall be available to the public for inspection and copying.

(b) Any information relating to any secret process, method of manufacture or production, or sales or marketing data, which may be acquired, ascertained, or discovered, whether in any sampling investigation, emergency investigation, or otherwise, shall not be publicly disclosed by any member, officer, or employee of the Commission or the Division, but shall be kept confidential. Any person seeking to invoke the protection of this subsection (b) shall bear the burden of proving its applicability. This section shall never be interpreted as preventing full disclosure of the name and address of any permit applicant or permittee, permit applications, permits, or effluent data.

(c) The Division shall provide facilities for the inspection of information relating to discharge permits and their applications and shall ensure to the best of its ability that State employees act on a request for such inspection promptly without undue requirements or restrictions.

(d) The Division shall either ensure that a machine or device for copying of papers and documents is available for a reasonable fee or otherwise provide for coordination with copying facilities or services such that the request for copies of non-confidential documents may be honored within a reasonable period of time.

5 CCR 1002-61.5

38 CR 01, January 10, 2015, effective 1/30/2015

38 CR 11, June 10, 2015, effective 6/30/2015

39 CR 17, September 10, 2016, effective 12/31/2016

39 CR 21, November 10, 2016, effective 12/31/2016

40 CR 07, April 10, 2017, effective 4/30/2017

41 CR 23, December 10, 2018, effective 12/30/2018

43 CR 10, May 25, 2020, effective 6/14/2020