5 Colo. Code Regs. § 1002-63.71
The provisions of 25-8-202(1)(c) and (2); and 25-8-205(1)(b) to (d) C.R.S. provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following Statement of Basis and Purpose.
BASIS AND PURPOSE:
The Colorado Pretreatment Regulations were adopted by the Commission on April 5, 1988. These regulations represent a major component in the State's effort to secure delegation of the federal pretreatment program from EPA. These regulations, in conjunction with a description of the State program's structure policies and procedures, and the Attorney General's evaluation of the State's statutory authority comprise the State's pretreatment delegation application. A draft program submittal was forwarded to EPA in September of 1988. Comments from that agency followed in August of 1989. These revisions are intended to remedy a number of deficiencies which were identified in the course of the EPA review process.
Subsequent to the submittal of the draft delegation package, the EPA promulgated amendments to the federal pretreatment regulations. These amendments appeared in the October 17, 1988 Federal Register. The revisions to the Colorado Pretreatment Regulations are also intended to bring the state regulations into conformance with the requirements of the 1988 amendments.
Legislation was introduced during the 1989 legislative session which was intended to establish a funding mechanism for the state pretreatment program. That legislation failed to gain passage and has been re-introduced in 1990. Due to the absence of funding, as well as issues discussed earlier, the Commission convened an emergency rulemaking on May 1, 1989 to delay implementation of the regulations. The effective date of the pretreatment regulations was pushed back one year, from July 1, 1989 to July 1, 1990. Additional rulemaking is required within a year of an emergency rulemaking to ratify modifications made in emergency rulemaking. A second emergency hearing was required to maintain the July 1, 1990 effective date. This hearing was held on May 8, 1990 and the July 1, 1990 effective date remains in place. As a result of this hearing, the regulations as revised will become effective as a permanent rule on July 30, 1990.
Finally, there are a number of minor corrections or clarifications which are clarified by these revisions. Those revisions which are most substantive are discussed in greater detail below.
Federal pretreatment regulations require the development of local pretreatment programs by POTW's which meet certain criteria. A compliance schedule placed in the POTW's discharge permit is the mechanism through which this requirement is implemented. Section 4.3.9 provides for the incorporation of compliance schedules in permits. Previously, specific timeframes and interim reporting requirements had been lacking. The amended requirements appearing at 4.3.9(D)(3) detail compliance schedule elements, durations and reporting requirements, thereby achieving conformance with the federal requirements.
The federal and state regulations identify those elements which are necessary components of local pretreatment programs. There has been a mechanism in place by which the adequacy of local program submittals is evaluated prior to approval. Problems have arisen, however, due to the lack of a review and approval process which addresses local program modifications subsequent to initial approval. The October 17, 1988 amendments to the federal pretreatment requirements broadly define those circumstances when local program modification requires prior approval and clarify procedures by which approval is pursued. Conforming amendments to the state regulations now appear at 4.3.9(H).
The language contained in both the federal pretreatment regulations and that which appears at 4.3.9(H) of the state's proposed amendments has generated public comment to the effect that the categories of program modifications which require approval authority approval are not entirely clear. EPA has recognized this problem and has chosen to deal with it through via policy. EPA Region VIII has issued an interim policy which narrows the scope of program modifications requiring approval authority review and approval. The state proposes to proceed in a similar manner. In general, the review and approval process is intended to focus on those program changes which affect a POTW's ability to carry out the program in a manner consistent with the program as approved.
Section 4.3.12 contains procedures for adjustments to a categorical industry's discharge limits in instances where the presence of a regulated constituent in intake water compromises the industry's ability to comply with its effluent limitations. Previously the ability to award these "net/gross" credits was EPA's alone. However, this restriction was relaxed by the October 17, 1988 amendments such that net/gross adjustments may now be approved by the "control authority" . The control authority is the POTW if it has an approved program or the state once it has assumed delegation.
The October 17, 1988 amendments to the federal pretreatment regulations also contain provisions for notification of the control authority in the event of a bypass and specify requisite circumstances under which a bypass may be allowed. Parallel bypass provisions have been incorporated into the state pretreatment regulations at 4.3.12(J). This section also describes conditions under which bypass is prohibited and specifies that such prohibited discharges may serve as a basis for enforcement action.
Sections 4.3.51 , categorical discharge standards applicable to fertilizer manufacturers and 4.3.52, standards applicable to manufacturers of organic chemicals, plastics, and synthetic fibers are added. The former were omitted from the state regulation through oversight. The latter were promulgated by EPA on November 5, 1987.
The Environmental Protection Agency, in addition to the October 17, 1988 revisions to the federal pretreatment regulations, published proposed amendments to the pretreatment regulations on November 23, 1988. Both parties to this hearing have suggested that elements of the November 23, 1988 proposed amendments be incorporated Into the Colorado Pretreatment Regulations as part of this rulemaking. Specifically, the parties request that a definition of the term "significant industrial user" be inserted and that monitoring and reporting requirements which are applicable to significant industrial users be identified as such. A definition of the significant industrial user has been added. This definition is the same as that contained in the November 23, 1988 proposal. EPA policy has utilized this same definition since the mid-1980s. The Division does not anticipate any change in the definition with final promulgation of the November 23 proposal.
Significant industrial users include all users subject to categorical discharge requirements, industrial users discharging more than 25,000 gallons per day of process wastewater, industrial users which contribute more than five percent of a POTW's average dry weather hydraulic or organic load, or any other industrial user with the potential to adversely affect POTW operation. Thus, an industry which might be significant if discharging to a relatively small facility may not be so designated if discharging to a larger POTW. Any industry which is not categorical, but which meets one or more of the flow or waste strength criteria, may be designated to be non-significant by the control authority if it is found that the user does not have the potential to adversely affect the POTW.
The significant industrial user is the focus of the POTW's pretreatment activities. Program requirements include limitations imposed upon wastewater discharges from significant industrial users via a control mechanism (permit), imposition of self-monitoring and reporting schedules on significant industries, monitoring and inspection by the POTW of these industries, and follow-up enforcement as required. Although this emphasis has existed since the inception of the federal program, the federal regulations have discussed these requirements in terms of "industrial users" and not "significant industrial users" . The resultant ambiguity has been a long standing source of concern for POTW's charged with program implementation.
Discussions with the parties have also led to the inclusion of a definition of the "approved program document" . The approved program document includes a detailed description of the POTW's program. Development of the program document is required in order to obtain local program delegation. Enforcement actions which EPA has initiated against POTW's for failure to adequately enforce pretreatment requirements have historically been based upon a POTW's failure to execute the program as described in the program document. The approved program document serves as the benchmark by which local program adequacy is to be evaluated. The inclusion of the "approved program document" definition clarifies this relationship. Again, the approach chosen by the State is consistent with that of the EPA, the difference being that EPA's has been embodied in policy rather that regulation.
References to the significant industrial users and to the approved program document have been inserted into the regulation where necessary to clarify specific requirements.
5 CCR 1002-63.71