5 Colo. Code Regs. § 1002-61.62
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 adopted by the Commission during this rulemaking proceeding is the second of a two-hearing approach, to address issues that began with a dialogue between EPA Headquarters and the Water Quality Control Division (Division) regarding EPA's nation-wide "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, however, which first required changes to the Water Quality Control Act before regulatory amendments could be sought. Therefore, the Commission adopted many of the necessary revisions in a March 2008 rulemaking hearing, while deferring action on the two issues that required statutory change. Because the necessary statutory changes were effective on July 1, 2008 through enactment of HB 08-1099, the Division brought a second proposal to the Commission 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. Many issues that were raised by the Division or the workgroup were addressed though revisions adopted by the Commission in the March 2008 hearing. Other issues that were raised by the Division or the workgroup were deferred to this second rulemaking hearing to allow more time for consideration. For that subset of issues, the Division and the majority of the workgroup determined that changes to Regulation 61 were not necessary to address many of these issues. Furthermore, the workgroup agreed that certain issues are more appropriately addressed through permit implementation or guidance/policy documents. The Commission supports this approach and encourages the parties to continue to work together to try to resolve them, preferably as part of a separate permit implementation workgroup process through the Water Quality Forum.
All but one of the revisions adopted by the Commission as part of this rulemaking hearing are for consistency with the federal requirements. The remaining revision is a change suggested by Division staff to address an issue that has arisen over the past few years in the context of permit implementation.
Changes for Consistency with Federal Requirements
The Commission revised the following sections of the Regulation in response to EPA and stakeholder concerns for consistency with the federal requirements:
* Section 61.5 regarding review of an application. EPA took issue with the former regulatory language which automatically deemed a permit application complete upon failure of the Division to advise an applicant to the contrary. Because similar language was contained in the Colorado Water Quality Control Act, changes to the statute needed to be made in advance of this rulemaking hearing. The language adopted by the WQCC in Regulation 61 mirrors the language revised in the Act through the enactment of HB 08-1099. That language was developed during the legislative session in coordination between the Division, EPA, and external stakeholders.
* Section 61.8 regarding prohibitions on issuing a permit. A stakeholder noticed that the state language differed from the federal language in the paragraph dealing with issuance of permits to new sources and new dischargers that will cause or contribute to the violation of water quality standards. The paragraph formerly required applicants to make certain demonstrations when discharging into segments where the Division had not performed a total maximum daily load. The consensus of the work group was to strike the word "not" from the paragraph, with the end result now being that the state language mirrors the federal.
* Section 61.9 regarding administration of general permits. The provision automatically authorizing the approval of discharges under general permits in the absence of Division action was removed as it was determined that this provision was not consistent with the federal regulations.
* Section 61.5 regarding notice of public meetings. The amount of advance notice required was revised from fifteen to thirty days to be consistent with federal requirements. This mirrors changes made to the Colorado Water Quality Control Act through the enactment of HB 08-1099.
Change Based upon Division Recommendation
The Commission revised Section 61.15 to provide an exemption from fee proration for new permits issued to non-fixed facilities or short-term or intermittent dischargers. The Commission found that fee proration is not appropriate for activities that have relatively small fees and for which the Division issues significant number of permit certifications each year, such as stormwater discharges associated with construction activity, wastewater discharges associated with minimal industrial activity, and wastewater discharges associated with construction dewatering. Providing refunds upon termination of these permits places an administrative burden on the Division that exceeds any monetary benefit that would accrue to the permittee.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-61.62