5 Colo. Code Regs. § 1002-64.21
The provisions of Colorado Revised Statute Sections 25-8-202(1)(c) and (2), 25-8-205(1)(e), 25-8-501(1) and (2), and 25-8-509 C.R.S., (1989 Repl. Vol. and 1993 Supp.) provide the specific statutory authority for the Colorado Biosolids Regulations adopted by the Commission. The Commission has also adopted, in compliance with Colorado Revised Statute Section 24-4-203(4) C.R.S., (1988 Repl. Vol. and 1992 Supp.), the following Statement of Basis and Purpose.
BASIS AND PURPOSE
There are a number of statutory provisions which authorize the regulation of biosolids by the Department of Health. Prior to the 1993 legislative session these included the Department's general rulemaking authority found at Section 25-1-107 C.R.S. (1973 Repl. Vol, 1981 Supp.) and the Solid Waste Disposal Sites and Facilities Act, 30-20-101et seq., C.R.S. (1973 Repl. Vol., 1981 Supp.). The former provides authority allowing the Department to "establish and enforce minimum general sanitary standards as to the quality of wastes discharged upon land and the quality of fertilizer derived from the excreta of human beings or from the sludge of sewage disposal plants.", C.R.S. 1973, 25-1-107(1)(e) (Supp. 1981). More specific authorities are contained in the Solid Wastes Disposal Sites and Facilities Act.
The Solid Wastes Disposal Sites and Facilities Act defines sludge from waste treatment plants as solid waste ( § 30-20-101(6)). The Act requires that "Any person who owns or operates a solid wastes disposal site and facility shall first obtain a certificate of designation from the governing body having jurisdiction over the area in which such site and facility is located.", ( § 30-20-102(1)). Further, "Solid Wastes disposal by any person is prohibited except on or at a solid wastes disposal site and facility for which a certificate of designation has been obtained as provided in section 30-20-105.", ( § 30-20-102(2)). The certificate of designation process is intended to address the siting and operation of landfills and similar activities. The legislature recognized that the certificate of designation requirement was inappropriate for certain modes of waste recycling and utilization and therefore amended the statute in 1986. This amendment provides an exemption for the certificate of designation requirement for "the final use for beneficial purposes, including fertilizer, soil conditioner, fuel, and livestock feed, of sludge which has been processed and certified or designated as meeting all applicable regulations of the department and the department of agriculture shall not require a certificate of designation for such final use.", ( § 30-20-102(6)). Other modes of sewage sludge disposal (i.e. incineration or dedicated disposal) remained subject to the certificate of designation requirement.
The Department convened a task force in 1977 made up of state and local health professionals, academics, consultants, public interest group representatives and members of the regulated community. The group was charged with the development of the mechanism necessary to implement the certificate of designation exemption. This group produced a document entitled Guidelines for Sludge Utilization on Land. This document was jointly adopted by the Colorado Board of Health and the Water Quality Control Commission in 1979. Compliance with the criteria contained in the document was voluntary. Moreover, because the document was adopted as guidance, and not as regulation, the Attorney General's Office determined that the document was inadequate to constitute implementation of the certificate of designation exemption at Section 30-20-102(6) of the Solid Wastes Disposal Sites and Facilities Act. The task force was reconstituted in 1981 and began a comprehensive revision of the guidelines. The product was the Colorado Domestic Sewage Sludge Regulation, 5 CCR 1003-7, adopted by the Board of Health in 1985. The regulations represented the incorporation of the Guidelines for Sludge Utilization on Land with criteria contained within a number of guidance documents and regulation produced by the United States Environmental Protection Agency during that period.
The Statement of Basis and Purpose which was adopted by the Board of Health when the Domestic Sewage Sludge Regulations were initially adopted in 1985 embodied a policy promoting the beneficial use of biosolids. Specifically the following comment was incorporated into the Statement of Basis and Purpose:
"an environmentally sound solution to sludge disposal problems is utilization of stabilized sludge on land for agriculture, silviculture or reclamation"
It is the intent of the Water Quality Control Commission that this regulation further promote the beneficial use of biosolids by providing a comprehensive framework of criteria, compliance with which assures a degree of operational management and a product of a quality compatible with the state's goals of protecting the public health and the environment."
The Solid Wastes Disposal Sites and Facilities Act was amended in 1986 to establish a fee system to support implementation of the regulations ( § 30-20-110.5). This authority continues to provide the statutory basis for the program fee system. The regulations were amended in 1987 to provide a mechanism to implement the fee system. The fee system provisions will remain a primary feature of a regulation separate from this which is to be retained under Board of Health Authority.
The Domestic Sewage Sludge Regulations were amended a second time in 1987 to provide for issuance of Notices of Authorization to Apply Domestic Sewage Sludge. Prior to this revision the regulations were self-implementing. Submittal of a Letter of Intent to Apply Domestic Sewage Sludge, by the sludge producer, to the Department was required. If, within a specified time frame, the department did not notify the applicant of deficiencies in the Letter of Intent, the producer could begin sludge application. A number of producers found this mechanism to be lacking. There was a desire on the part of the producers to be provided a permit-like instrument which would serve to document their compliance with the regulatory criteria. There existed a similar desire on the part of the public. The regulations were therefore amended to create the Notice of Authorization to Apply Domestic Sewage Sludge, a permit-like document.
The regulations were again amended in 1990 to provide criteria for the beneficial use of sludges derived from the treatment of municipal raw water sources with aluminum or iron compounds. As with the fee system provisions, the water treatment sludge provisions of the Domestic Sewage Sludge Regulations are to remain within a separate regulation to be promulgated by the Board of Health under Solid Wastes Disposal Sites and Facilities Act authority.
An amended version of the Domestic Sewage Sludge Regulations is to be promulgated by the Board of Health. It is anticipated that this action will take place at a November 17, 1993 rulemaking. The effective date of this revised rule will correspond to that of this regulation. The revised Domestic Sewage Sludge Regulations, as previously discussed, will retain only those criteria and requirements which are germane to the beneficial use of water treatment sludges and to the state sludge management fee system. All other provisions of the Domestic Sewage Sludge Regulations are expected to be rescinded by the Board.
As the Colorado Municipal Sludge Management Program was evolving so too were federal efforts at rulemaking. The EPA initially promulgated regulations applicable to the beneficial use of sewage sludge in 1979. These regulations appeared at 40 CFR Part 257 . The federal technical criteria were incorporated into the 1985 Colorado Domestic Sewage Sludge Regulations. The Part 257 regulations were intended by the EPA to provide the foundation for comprehensive regulations addressing sludge use and disposal. The Clean Water Act reauthorization of 1987 provided the impetus for a second round of federal rulemaking.
The EPA on May 2, 1989 amended regulations at 40 CFR Parts 122, 123, and 124 and promulgated new regulations at 40 CFR Part 501 . These regulations address implementation of what were then anticipated federal sewage sludge criteria to be promulgated at 40 CFR Part 503 . Specifically the revisions to Parts 122 through 124, and the newly promulgated Part 501, require implementation of federal sludge use and disposal requirements through EPA issued National Pollutant Discharge Elimination System permits or through NPDES permits or equivalent permit-like instruments issued by delegated states. Colorado holds primacy for the NPDES program and issues Colorado Discharge System permits (CDPS permits). The State may select that implementation option which most readily integrates into an existing program structure. Unlike a number of other programs, assumption of sludge program delegation is not required of states which hold NPDES delegation. The State could opt to allow the EPA to implement federal sludge program requirements through "permit riders" attached to Colorado Discharge Permit System permits. The Part 501 regulations also allow what is termed "partial program delegation". The federal regulations divide sludge use/disposal into three areas: land application, surface disposal, and incineration. These distinctions correspond fairly closely to the beneficial use/dedicated disposal Division which has evolved within the Colorado programs regulating sludge use. Partial program delegation would allow delegation of program implementation responsibilities for any or all of the three program areas. It is the State's intent to seek delegation of the land application and surface disposal portions of the federal program. This rulemaking will expedite delegation of the former. The Wastewater Utilities Council and the Water Quality Forum, groups representing the regulated community, have actively supported this position.
The promulgation of the federal delegation requirements in 1989 allowed the Department to review its existing program structure in terms of those requirements. This review identified a significant deficiency. Regardless of whether the State assumes delegation of the federal sludge management program as a component of its existing NPDES program or as an independent program, the federal regulations promulgated in 1989 require the Department's enforcement capability to be equivalent to that necessary for NPDES delegation. These authorities must include administrative remedies for non-compliance (i.e. cease and desist orders), and the ability to impose civil penalties of up to $5,000 per day for each violation and criminal penalties of up to $10,000 per day of violation. The Department lacks such authorities under to Solid Wastes Disposal Sites and Facilities Act. The State's Water Quality Control Act, however, includes a level of enforcement authority which is adequate to support delegation. The Department considered either amendment of the Solid Waste Disposal Sites and Facilities Act, thereby developing a level of enforcement authority which is adequate to meet the requirements for delegation, or amendment of the Water Quality Control Act to provide the Commission the authority to regulate sludge use and disposal. After discussions both internal and external to the Department, the decision was made to pursue the second option. Senate Bill 182, legislation amending the Water Quality Control Act, was drafted and carried forward by a coalition consisting of the Wastewater Utility Council, the Water Quality Forum, and the Department. SB 182 was adopted during the 1993 legislative session.
In addition to providing rulemaking authority to the Commission, SB 182 also introduces the term "biosolids" into the Water Quality Control Act. The term has been defined to mean a residual product which is no longer a waste but rather a recylable commodity. The concept originated within the wastewater treatment industry in an attempt to disassociate biosolids from other, sometimes hazardous wastes which have historically been lumped together as "sludge". The Biosolids Regulations address criteria and procedures for the beneficial use of biosolids.
The EPA promulgated comprehensive technical criteria for the beneficial use of biosolids and for several modes of sludge disposal at 40 CFR Part 503 . The Part 503 regulations were promulgated on February 19, 1993. The Colorado Biosolids Regulations represent an integration of that portion of the federal Part 503 regulations dealing with beneficial land application with the criteria and administrative processes from the State's Domestic Sewage Sludge Regulations.
The technical criteria for molybdenum and selenium promulgated by EPA at 40 CFR Part 503 are currently the subject of ongoing litigation at the federal level. Climax Metals Company and the City of Pueblo are parties to the Commission's rulemaking and are litigants in the federal court action. Alternate proposals put forth by these parties incorporate either alternate numeric standards for molybdenum which are greater than the Part 503 criteria (Climax) or delete any numeric criterion for selenium (Pueblo). Adoption of these proposals would result in the state's regulation being less stringent than currently effective federal requirements. It is the intention of the commission, upon resolution of those federal actions, to incorporate appropriate revisions to this regulation. It is the Commission's intent that these modifications proceed as expeditiously as possible. Should the federal litigation result in either administrative or judicial stays of the effectiveness of the molybdenum or selenium portions of the federal rule, the Commission will schedule a rulemaking hearing, including an emergency rulemaking if warranted, to consider similar action.
The Water Quality Control Division convened a series of public meetings after this regulation was initially noticed. These meetings were held with the intent of soliciting public input regarding the proposed regulation. It is the preference of both the Commission and the Division that such meetings proceed the public notice of a proposed regulation. The juxtaposition of the 1993 legislative action and the Commission's schedule, however, necessitated that the meetings followed the initial proposal. As a result of comment received at those hearings, as well as written comments solicited by the Division, a series of modifications have been incorporated into the regulation.
The terminology used to reference Division issued approvals for the use of biosolids has been modified so as to retain, to a degree, nomenclature developed under the old Domestic Sewage Sludge Regulations. Approvals are now referred to as "Notices of Authorization for the Use and Distribution of Biosolids" as opposed to "Permits for the Use and Distribution of Biosolids". Approvals granted under the Domestic Sewage Sludge Regulations were referred to as "Notices of Authorization to Apply Domestic Sewage Sludge". This modification is intended to minimize any confusion which might arise between references to CDPS permits and to the biosolids permitting mechanism.
A feature of the federal regulations (40 CFR 501) is the requirement that the permit or permit equivalent document receive public notice. It is the State's intent to implement the federal program requirements through a combination of existing mechanisms. Notices of Authorization will continue to be issued on a site by site basis and will focus on those management, monitoring and reporting requirements which are unique to the state Biosolids Regulations. Broader requirements which are not specific to a given land application site, and which flow from the federal Part 503 regulations will be integrated into the CDPS permit. The CDPS permit will incorporate those elements for which public notice is required. Nonetheless, it should be noted that the Notice of Authorization is intended as a permit or permit equivalent mechanism as that term is utilized in 40 CFR 503.
Notices of Authorization for the Use and Distribution of Biosolids shall not be issued if they would allow a violation of any water quality standards promulgated by the State of Colorado for surface or groundwater, or would violate a control regulation. Nothing in this regulation is intended to affect any requirements specified in any control regulation and in particular the Che0rry Creek Reservoir Control Regulations, 4.2.0 (5 CCR 1002-19). The Cherry Creek Reservoir Control Regulations require that whenever a discharger requests a compliance schedule in connection with a permit issuance or permit renewal, the discharger shall notify the Cherry Creek Basin Water Quality Authority of that request, solicit Authority comment, and submit evidence of that notice to the Division. Thus the Authority shall continue to be notified and may comment on permit-based compliance schedules issued pursuant to this regulation.
Requirements for the submittal and contents of applications for Notices of Authorization, referred to as "Letters of Intent for the Use and Distribution of Biosolids", have been restructured to address three possible use scenarios; unrestricted use, restricted use of bagged and containerized biosolids, and agricultural or reclamation use. The first two options involve the distribution and/or marketing of biosolids to the public. Distribution to the public limits control over appropriate usage of the product. The public noticed version of the regulation proposed different submittal requirements based upon the level of public exposure to the product. This distinction is not, however, crucial to determination of the appropriate regulatory criteria. The regulation now differentiates between the Letter of Intent submittal requirements based upon the metal content (grade) of the biosolids. This restructuring more closely conforms with federal regulatory requirements and is more easily understood by the applicant. It should be noted that the required issuance of a Notice of Authorization for the public distribution of biosolids is applicable to the facility producing or preparing biosolids for public distribution. Individuals who purchase or otherwise receive biosolids prepared and distributed in accordance with applicable provisions of these regulations are not required to obtain individual notices of authorization.
The federal Part 503 regulations identify a series of compliance dates applicable to various portions of the federal regulation. Federal monitoring and reporting requirements became effective on July 20, 1993. Compliance with the remaining applicable portions of Part 503 is required no later than February 19, 1994, unless construction of additional facilities is necessary. In the latter instance the compliance deadline is extended to February 19, 1995. Section 4.9.7 Has been amended to identify February 19, 1994 as the effective date of the regulations. Section 4.9.6 Has been modified so as to identify the variance process as the mechanism through which the Division will implement the compliance deadline extension in those instances where construction is required to achieve compliance.
Section 4.9.12.A is modified to provide more appropriate monitoring requirements in instances where biosolids exceed a numeric metals criterion for either Grade I or II and subsequently experience a decrease in metals content such that compliance with the Grade I or II criterion is once again achieved.
Comments were submitted to the Division which questioned the need for the provisions appearing at 4.9.15.A(2)(b)(ii) and (iii), and at 4.9.15.B(1)(c) and (d). These paragraphs identify maximum numerical limits for PCBs and for total alpha activity in the biosolids. Should levels of these parameters exceed the numeric criteria identified, disposal of the material is regulated by other regulations. There are no monitoring requirements associated with these criteria as previous monitoring has indicated the likelihood of biosolids exceeding either criterion to be minimal. The Commission, nonetheless, is of the opinion that there is significant informational value in the retention of these criteria in the regulation. The Board of Health is currently engaged in a rulemaking addressing "Naturally Occurring Radioactive Materials". The result of that rulemaking will necessitate the review and, potentially, the revision of this regulation.
A significant concern identified by commenters was that cultivated lands or rangeland could be excluded from application if it is subject to periodic inundation during storm events. A notation has been inserted into the definition of "state waters" with the intent of eliminating any confusion which might arise as to the exclusion of runoff from cultivated drainages or vegetated range from the definition of "state waters" until such point as that runoff enters a water body.
Section 4.9.15.F , has had additional language inserted which requires consideration of all potential nitrogen sources when application rates for biosolids are determined. The Division has identified instances where biosolids application has been supplemented by application of manures, fertilizers, or other nitrogen sources. Excessive nitrogen application contributes to nitrate contamination of groundwater. These additional nitrogen sources must now be accounted for in determination of the appropriate biosolids application.
The regulation also specifically allows the Division to require deep soil (5 foot) monitoring for nitrates (4.9.16.B) on a case by case basis. The Division may consider past and present biosolids application rates as well as application of other nitrogen sources, soil texture and depth, groundwater depth and use, and other relevant factors in determining applicability of deep soil monitoring requirements. This requirement is also intended to address problems associated with past or potential overapplication of nitrogen and to identify instances of overapplication in a timely fashion.
Section 4.9.17.B has been modified to relax reporting frequencies to correspond to the annual reporting requirement of 40 CFR 503. Additional language now appears at 4.9.17.D, however, requiring expedient notification to the Division upon instances of significant noncompliance.
Language has been inserted in Section 4.9.12.B in response to comment received from the City of Pueblo. This modification is intended to clarify the time and temperature requirements for aerobic and anaerobic digestion of biosolids. The City had also proposed identification of long term stabilization as a Process to Further Reduce Pathogens (PFRP). The Domestic Sewage Sludge Regulations had included provisions which did so. This provision was a unique feature of the Colorado regulations and had no corresponding provision in federal regulations. The 40 CFR 503 regulations do not recognize long term stabilization as a PFRP. Section 4.9.12.B does, however, allow the permitting authority to certify processes which are not specifically identified in the regulation as equivalent to PFRP. Until delegation occurs that authority is vested with the EPA. That agency, the state, and the City of Louisville are in the process of defining the operational parameters applicable to long term stabilization which, when met, demonstrate a level of pathogen destruction consistent with the PFRP designation. It is expected that certification for long term stabilization will be finalized shortly.
Requirements applicable to short term storage of biosolids at an application site have been incorporated into Section 4.9.13.F . Previously the regulatory requirements addressed only relatively permanent storage facilities. Several commenters noted that weather conditions may, on occasion, necessitate short term on-site storage. Section 4.9.13.F identifies criteria applicable to such circumstances.
The regulations had also contained criteria for both storage and for application on various slopes which utilized a sixteen percent solids content criterion to distinguish between various applicable criteria. The Domestic Sewage Sludge Regulations had included several management requirements which were based upon the sixteen percent criterion. It had been assumed that biosolids with a solids content of greater than sixteen percent would generate only a minimal amount of free liquid. It is the experience of several parties, and of the Division, that a fourteen percent solids content criteria is, in fact, appropriate. The fourteen percent criterion has been incorporated into the storage requirements at 4.9.13 and the management requirements relative to application on sloping land at 4.9.15.D.
Several parties have also suggested that the soil depth criteria, as it appeared at 4.9.15.F(2), was inflexible and did not recognize various reclamation scenarios. The soil depth criterion has been restructured to recognize beneficial use for reclamation and to provide requirements for agricultural use on both irrigated and dryland crops.
PARTIES TO THE RULEMAKING HEARING
October 4, 1993
HEARING CHAIR: David Pusey
5 CCR 1002-64.21