5 Colo. Code Regs. § 1002-61.61
The provisions of section 25-8-202(1)(d) and (i) and (2); and sections 25-8-501 to -504, C.R.S. provide the specific statutory authority for this amendment to the Colorado Discharge Permit System Regulations. The Commission has also adopted, in compliance with section 24-4-103(4), C.R.S., the following Statement of Basis and Purpose.
BASIS AND PURPOSE
The proposal considered by the Commission during this rulemaking proceeding began with a dialogue between EPA Headquarters and the Water Quality Control Division (Division) regarding EPA's nationwide "Permitting for Environmental Results" initiative, which included a review of various aspects of the delegated states' discharge permit programs. As a component of that initiative, EPA evaluated the states' legal authority for consistency with EPA's requirements. In review of Colorado's statute and regulations, EPA identified several items which it considered to not meet the requirement for NPDES program delegation because they are not consistent with or not as stringent as the respective EPA requirement. Around the same time, the Division and EPA Region 8 were involved in discussions about possible delegation of the pretreatment and biosolids programs, during which the Region identified many of the same issues that Headquarters had noted.
The Division and EPA Region 8, through subsequent discussions, reached agreement that most of the EPA (Headquarters and Region 8) issues could be resolved through changes to the permitting regulations or statements from the Attorney General's Office. There were two issues that must be addressed which will first require changes to the Water Quality Control Act before regulatory amendments may be sought. Assuming the necessary statutory changes are made, the Division has agreed to bring a proposal to the Commission later this year to address the remaining deficiencies noted by EPA.
The Division believed this was also a good opportunity to address other aspects of Regulation No. 61 that were in need of revision, so it asked staff to make suggestions and it organized an external workgroup under the auspices of the Water Quality Forum, as well, to discuss other possible revisions. A workgroup was formed and began meeting on a monthly basis beginning in January 2007. The workgroup is comprised of representatives from industrial operations, domestic wastewater treatment facilities, local governments, and one environmental group.
The Division shared with the workgroup EPA's concerns and the Division's suggested proposals to address that set of issues. The members of the workgroup also contributed several proposals of their own, in addition to the EPA issues. The Division and the workgroup determined that regulatory changes were not necessary to address many of the proposals raised by Division staff and the workgroup. Rather, certain issues would more appropriately be addressed through permit implementation or guidance/policy documents.
The revisions adopted by the Commission as part of this rulemaking hearing generally fall into two categories:
Changes for Consistency with Federal Requirements
The Commission revised the following sections of the Regulation in response to EPA's concerns for consistency with the federal requirements:
* Section 61.4 regarding application signatory requirements (revised language).
* Section 61.4 regarding stormwater group applications (deleted language).
* Section 61.4 regarding permit application requirements for POTWs, specifically, whole effluent toxicity tests (replaced existing language).
The Commission understands that a member of the workgroup was concerned that adoption of the language may have unintended consequences on how Colorado implements WET testing, specifically in regard to whether sub-lethal endpoints are required as enforceable permit limits. The Commission was also made aware that the group discussed the concern and agreed that the most appropriate place for Colorado to establish implementation protocol, such as what specific endpoints would be used as permit limits, is the Division's Biomonitoring Guidance. The Commission's intent in adopting the federal language is to parallel federal requirements in regards to permit application requirements for POTWs. The Commission is not intending to adopt new or revised water quality standards related to toxicity. Therefore, the Commission adopted the federal language essentially verbatim and will leave it to the Division, through a stakeholder process, to determine what, if any, revisions may need to be made to the Biomonitoring Guidance in the future.
* Section 61.8 regarding prohibitions against issuing permits (added language).
* Section 61.8 regarding deadlines for compliance schedules (revised language).
* Section 61.8 regarding permit modification, suspension, revocation, and reissuance and termination (revised existing language and added language).
* Section 61.16 regarding Division Director's potential conflicts of interest (added language).
Changes Based upon Division and Workgroup Recommendations
The Commission revised Section 61.1 to allow the Division to issue permits for permit terms shorter than five years. The Division will normally issue permits for the maximum allowable term. This results in a ten year permit term for state-only permit programs (e.g., groundwater) and a five-year term for federally-delegated programs. The Commission found, however, that the Division needs flexibility in certain situations to issue permits for a shorter period. For example, a shorter term may be appropriate where a temporary modification would expire prior to a "traditional" five-year permit term. The Commission understands that in some of these situations, coordinating a permit's expiration with the expiration of the temporary modifications at-issue will aid the Division and the permittee by allowing consideration of the Commission's most recent determinations regarding the temporary modifications and underlying standards in question.
The Housed Commercial Swine Feeding Operation (HCSFO) statute, section 25-8-501.1, C.R.S., includes a definition of "agronomic rate of application" that requires the use of the fertilizer suggestions of Colorado State University Cooperative Extension. The Commission revised Section 61.2 to provide that the requirement to use fertilizer suggestions of the Colorado State University Cooperative Extension applies only to HCSFOs and not to other permitted activities. The Commission made this change to provide flexibility to use other scientific sources, as appropriate, in non-HCSFO permits, such as groundwater permits for land application.
The Commission revised Section 61.2 to include a definition of "practical quantitation limit" (PQL). The definition is consistent with that being used in the draft guidance document being developed by the Water Quality Forum PQL workgroup. The Division has been directed to use PQLs in permits in lieu of method detection limits (MDLs), based on previous revisions to Regulation Nos. 31 and 61.
The Commission revised the definitions of "throughput" and "treatment capacity" in Section 61.2 to clarify that the identified domestic wastewater treatment works planning and expansion requirements apply to the hydraulic loading as well as the organic loading.
The Commission revised Section 61.4 to allow the Division to waive the requirement for the owner to sign a permit application when the discharge is short-term or intermittent. Examples of types of discharges for which this waiver may be appropriate include stormwater discharges associated with construction activity, wastewater discharges associated with minimal industrial activity, and wastewater discharges associated with construction dewatering. The Commission found that it is appropriate to provide flexibility for these types of discharges because they are typically authorized under general permits in short time frames, and because there are often complex owner/operator relationships.
The Commission clarified Section 61.8 to allow the Division to address situations, such as temperature, where the water quality standard specifies durations other than daily average (acute) or 30-day average (chronic). Changes were also made to this section as discussed in the following paragraph.
The Commission modified section 61.8 which requires, unless impracticable, water quality-based effluent limitations for Publicly Owned Treatment Works (POTWs) to be expressed as average weekly and average monthly limitations. The language contained in this section is consistent with the federal requirements at 40 CFR 122.45(d)(2). Other regulatory provisions including those at Section 61.8 , and in Regulation No. 31, at Sections 31.5 and 31.16 , could be interpreted to be in conflict with the provision at Section 61.8 . The Commission understands that members of the workgroup requested that any necessary changes be made to Regulation Nos. 31 and 61 to allow the Division to express effluent limits for acute water quality standards as average weekly limits for POTWs, for pollutants such as ammonia and nitrate. The Commission is also aware of the Division's current practice to implement acute water quality standards for ammonia and nitrate as daily maximum effluent limits. The use of the term "unless impracticable" as used in Section 61.8 , however, provides latitude for the Division to allow alternate ways of expressing effluent limits. The Commission finds that the interpretation of "impracticable" is most appropriately made on a case-by-case basis through issuance of discharge permits. Therefore, the Commission made changes to Section 61.8 to ensure consistency with the requirements of Section 61.8 . The Commission understands and accepts the recommendation of the Division and the workgroup that changes to Regulation No. 31 would not be pursued as a part of this hearing, but could be considered at the next triennial review for that regulation. In the interim, the Commission directs that the provisions of Regulation No. 61 will govern for the purpose of setting effluent limits for POTWs.
The Commission modified the requirements for facility expansion at Section 61.8 to provide, upon application by the permittee, an option for the Division to waive the requirement for planning and/or expansion of the facility where the permittee demonstrates that flows and/or loadings caused by a single event, such as an extraordinary storm or illegal dumping, are not representative of the actual loading to the facility.
Section 61.10 allows for new information and correction of certain mistakes to be bases for an exemption from the antibacksliding requirements for technology-based effluent limits. The Commission revised the antibacksliding provisions contained at Section 61.10 to allow the same approach for water quality-based effluent limits. This change is consistent with the federal requirements.
The Commission revised the language at Section 61.14 to clarify that a groundwater discharge permit is not required even if there are return flows associated with land application of reclaimed water occurring under the provisions of a Notice of Authorization issued pursuant to Regulation No. 84.
The Commission revised Section 61.14 to clarify that a groundwater discharge permit is not required for the beneficial use of biosolids through land application, as this activity falls under the Commission's Biosolids Regulation, Regulation No. 64. The Commission also added language to clarify that a groundwater discharge permit is not required for the beneficial use of septage through land application pursuant to the federal regulations at 40 CFR 503.
The Commission revised Section 61.14 to add the Division of Oil and Public Safety of the Department of Labor and Employment as an implementing agency because it administers the Resource Conservation and Recovery Act's (RCRA) underground storage tank (UST) program.
The Commission revised Section 61.15 to provide that permit fees will not be refunded where a permit associated with non-fixed facilities or short-term or intermittent discharges is terminated. Examples of types of discharges for which this may be appropriate include stormwater discharges associated with construction activity, wastewater discharges associated with minimal industrial activity, and wastewater discharges associated with construction dewatering. The Commission finds that this is appropriate in that the fees for these activities are relatively small and, due to the significant numbers of these permits that are terminated in a year, providing refunds for termination of these permits places a significant administrative burden on the Division with little gain for the permittee. In addition, the Commission added a provision to limit the amount of any prorated fee to $75, as this represents the cost for the State to process such requests.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-61.61