5 Colo. Code Regs. § 1002-84.22
The provisions of sections 25-8-205(1) and 25-8-308(1)(h) C.R.S. provide the specific statutory authority for adoption of amendments to the Reclaimed Domestic Wastewater Reuse Control Regulation. The Commission also adopted, in compliance with section 24-4-203(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
When the Commission adopted Regulation 84 in October 2000, it limited its scope to use of reclaimed domestic wastewater for landscape irrigation. On October 8, 2003, the Water Quality Control Division and the Joint Water Reuse Committee of the Rocky Mountain Section American Water Works Association and Rocky Mountain Water Environment Association ("RMSAWWA/RMWEA") requested that the Commission review Regulation 84 for the purpose of considering industrial and commercial uses of reclaimed domestic wastewater. On April 12, 2004, the Commission held a rulemaking hearing during which several modifications and additions to the regulation were adopted. The Commission modified section 84.4 of the regulation to clarify that reuse of reclaimed wastewater for the uses identified in section 84.8 of the regulation is prohibited except where authorized pursuant to a Notice of Authorization. This change was made to clarify the Commission's intent that regulation 84 does not preclude the Division from authorizing uses of reclaimed wastewater that fall outside of the current scope of Regulation 84, where the Division is legally authorized to do so.
As a result of this rulemaking, the Commission amended Regulation 84 to further promote the use of reclaimed domestic wastewater, by allowing such water to be used in industrial and commercial applications as well as landscape irrigation. The Commission finds that the industrial and commercial uses contemplated by these amendments will create no greater risk to public health or the environment than the landscape irrigation uses authorized before the amendments.
The regulation, as amended, provides a framework that assures these additional uses are consistent with the Commission's goals of protecting the public health and the environment, by requiring reclaimed domestic wastewater to meet minimum standards, and requiring treaters and users of such water to employ appropriate best management practices and oversee its use.
The Commission adopted provisions requiring treaters to provide the Division with a "User Plan to Comply" for each user, prior to receiving authorization to provide reclaimed domestic wastewater. The plan shall describe the intended use and the best management practices the user will employ, and demonstrate how these practices ensure the proposed landscape irrigation, industrial or commercial use will be protective of public health and the environment.
The Commission also revised the regulation for clarity by renumbering sections, revising language, and reorganizing the regulation.
The Commission concludes that the amendments to this regulation are economically reasonable considering the economic, environmental, and public health costs and impacts of the reuse program.
Section 84.2 was modified to clarify the Commission's intent that the regulations protect the environment as well as public health. Section 84.4 was revised to expand Regulation 84's applicability for reclaimed domestic wastewater and to remove obsolete references. Section 84.4 was also revised to replace the term "direct reuse" with "reuse," as the exceptions provisions in section 84.4 already exempt waters discharged to state waters from coverage under Regulation 84. Language was also added to section 84.4 to clarify that treaters and landscape irrigation users who are operating under already existing Notices of Authorization do not need to resubmit Letters of Intent upon promulgation of these regulatory amendments. The Division will issue amended Notices of Authorization to the existing treaters and landscape irrigation users as routine amendments are made to their user information and Letters of Intent, or by June 30, 2006, whichever comes first. However, treaters and users who had implemented programs for use of reclaimed water prior to the effective date of the regulation for any use other than landscape irrigation must submit new Letters of Intent for such use(s) to the Division no later than August 31, 2004.
The Commission adopted amendments adding, deleting, and modifying definitions used in Regulation 84. The following definitions were modified or deleted to increase clarity or to achieve consistency with other revisions: "Point of Compliance," "Reclaimed Domestic Wastewater," "Restricted Use," and "Treater." The definition of "Direct Reuse" was deleted consistent with the change to section 84.4 noted above. The definition for "Applicator" was deleted and replaced with a more generic definition of "User" to include all types of users of reclaimed domestic wastewater. The following definitions were added: "CommercialUser" describes a new type of user; "Industrial User" describes a new type of user; "Irrigation System" reduces confusion by differentiating between a user's irrigation system and a treater's treatment and transmission facilities; "Landscape Irrigation User" aids in differentiating between types of users; "Restricted Access" is used in place of "restricted use" for clarity; "TransmissionSystem" reduces confusion by differentiating between a treater's facilities and a user's irrigation system; "Unrestricted Access" is used in place of "Unrestricted Use" for clarity; "User" describes the characteristics of users; and "User Plan to Comply" refers to the plan a user is required to submit to show compliance with Regulation 84.
The Commission reorganized and edited section 84.6 [formerly 84.5(A)] regarding letters of intent, for clarity, completeness, and consistency with other revisions. Treaters must still submit a Letter of Intent to the Division, but the Letter of Intent requirements differ, depending on the intended uses for the reclaimed domestic wastewater. In addition, the Commission recognizes that to facilitate new or expanded uses for reclaimed domestic wastewater and timely approval of projects, the Division must have some flexibility in administering the Letter of Intent process. For instance, the revisions would allow a treater to submit a Letter of Intent concurrently with a pending site application and/or facility plans and specifications.
The Commission amended subsection 84.6 [formerly 84.5(A)(3)], to clarify that treaters are required to provide information demonstrating that reclaimed domestic wastewater applied to landscapes by landscape irrigation users will be applied at or below agronomic rates or, where application at agronomic rates is not or will not be achieved, that land application is being done pursuant to a CDPS permit. The Commission is aware that some entities may have been land applying in excess of agronomic rates, and that they have incorporated the return rates to ground water into their discharge permits and into augmentation plans. The Commission adopted this change to provide flexibility to entities practicing landscape irrigation so that they can maintain their current application practice, and associated credits under their augmentation plan, while applying reclaimed water in excess of agronomic rates pursuant to a CDPS permit. The Commission added language indicating that land application may also be subject to waste load allocations or limits as contained in a TMDL or control regulation governing the watershed within which the land application occurs, to clarify that Regulation 84 acts in tandem with these regulatory requirements. The agronomic application rate requirement does not apply to commercial and industrial users.
The Commission reorganized subsection 84.6 [formerly 84.5(A)(6)] by moving existing requirements for users into modified sections 84.9 and 84.10 , which contain the required content of a "User Plan to Comply" for each different type of use. The purpose of the User Plan to Comply is to provide the Division with information from each user that demonstrates that the proposed landscape irrigation, industrial or commercial use will be protective of public health and the environment.
The Commission amended subsection 84.6 [formerly 84.5(A)(7)] to simplify the Letter of Intent process while, at the same time, fulfilling the Commission's responsibility under C.R.S. 25-8-104 to determine if any decision it makes has the potential to cause material injury to water rights.
The Commission moved the requirement that a treater must update and modify its Letter of Intent under certain circumstances to subsection 84.6 [formerly 84.5(A)(8)] under Terms and Conditions of Notices of Authorization. The Commission inserted a requirement for the treater to include a letter from the fire protection authority indicating its approval for use of reclaimed domestic wastewater for fire protection activities. This requirement assures that the fire protection authority has been solicited. This section 84.6 [formerly 84.5(E)] regarding Notices of Authorizations was revised for clarity, completeness, and consistency with other revisions.
In this rulemaking, the Commission established category-based standards for reclaimed domestic wastewater quality in section 84.7 [formerly 84.6]. Category 1 standards apply to water previously designated for "restricted use," and Category 2 standards apply to water previously designated for "unrestricted use." The category framework allows the Commission to identify with more precision the appropriate uses for various qualities of reclaimed domestic wastewaters, while the terms "restricted use" and "unrestricted use" were found to be incompatible with the diverse industrial and commercial settings where reclaimed domestic wastewater is now authorized to be used. The category-based framework also will facilitate the Commission's future review of proposed uses for reclaimed domestic wastewater that may require different water quality.
The Commission found no reason to reassess the treatment standards adopted for reclaimed domestic wastewater. The Commission, in the 2000 rulemaking, found those standards to be appropriate for the use of reclaimed domestic wastewater for landscape irrigation and the Commission finds them to be sufficiently protective of public health and the environment for the additional approved industrial and commercial uses when best management practices are employed.
The Commission modified the treatment requirements for reclaimed domestic wastewater by replacing the term "oxidized" with "secondary treatment." Secondary treatment is generally accepted in the wastewater industry to mean that wastewater has been biologically treated to remove at least 85% of BOD and total suspended solids.
The Commission established a new section 84.8 to identify different approved uses for reclaimed domestic wastewater. A table is provided detailing the landscape irrigation, industrial and commercial uses approved by the Commission if such use is conducted in accordance with a Notice of Authorization under Regulation 84. Each new use is addressed below:
Cooling Tower: The Commission approved the use of reclaimed domestic wastewater in cooling towers, based on findings that indicate the quality of the source (make-up) water used in cooling towers is not of great concern. When best management practices typically applied at cooling towers are employed, the quality of the source water does not increase any risk to public health or the environment. Cooling towers are not accessible to the public and are maintained in a fashion that the water quality inside the cooling tower is controlled to standards that protect human health, regardless of the make-up water quality.
Concrete Mixing and Washout: The Commission approved the use of Category 1 reclaimed domestic wastewater in concrete batching processes where the water is mechanically dispensed into the truck mixer drum through a metal chute. This use of reclaimed domestic wastewater is protective of public health and the environment due to the fact that the water is dispensed by computer operated equipment, preventing worker contact, and the high pH of batched concrete would not allow the growth of microorganisms. Additionally, the water is entrained in the concrete and, therefore, is not discharged to surface or groundwater. Due to the potential for public and worker exposure, Category 1 reclaimed domestic wastewater may not be used for purposes other than mixing of the concrete. The Commission approved using Category 2 reclaimed domestic wastewater for batching concrete, for truck wash-down purposes at the plant, as an on-truck water supply to use for maintaining and adjusting concrete slump, and for wash-out purposes at the site. The Commission realizes that when proper BMPs are implemented, this use is protective of public health and the environment.
Dust Control/Soil Compaction/Mechanized Street Sweeping: The Commission approved the use of reclaimed domestic wastewater to wet down or pre-water work surfaces, for construction and demolition activities, sandblasting, soil compaction, and mechanized street washing. Approval is conditional on the user demonstrating that the application rate for these uses will not result in ponding or runoff into waters of the state, and that off-property transport of airborne particulate matter will be minimized. These uses are deemed protective of public health and the environment because the potential for public exposure for these activities when best management practices are implemented is minimal.
Closed Loop Cooling System: The Commission approved the use of reclaimed domestic wastewater in closed loop cooling systems where water circulates only within a contained system. This use results in no public exposure to reclaimed domestic wastewater, and only very limited and controlled contact by workers. Environmental risk from this use is also minimal when proper treatment and best management practices associated with the cooling processes are employed. Allowing the use pursuant to the best management practices, including discharging wastewater from the cooling process to the sanitary sewer system or other approved disposal mechanism, required by the regulation creates no greater risk to public health and the environment than using potable water in the cooling system.
Zoo Operations: The Commission approved the use of reclaimed domestic wastewater in zoo operations, including the care of captive animals. The Animal and Plant Health Inspection Service of the U.S. Department of Agriculture enforces the Animal Welfare Act, which governs the humane care and treatment of warm blooded and marine animals held in zoos. These entities must be licensed to operate, and must comply with the care and treatment standards provided by federal law. Category 2 reclaimed domestic wastewater meets or exceeds the water quality standards for zoo animals provided by federal law. Environmental and public health risk from this use is also minimal when proper best management practices associated with zoo management practices are employed. Such practices include discharging animal wastewater to the sanitary sewer system or other approved disposal mechanism, limited public access to water used for animal holding areas and habitat wash-down.
Fire Protection: The Commission determined that providing fire protection (interior sprinkler and exterior hydrants) with reclaimed water meeting Category 2 standards for commercial/industrial buildings is protective of public health when appropriate best management practices are implemented. The exposure to reclaimed water by building occupants during a fire is expected to be of short or no duration. This, coupled with the quality of Category 2 water, will not present a significantly greater risk than exposure to reclaimed water in a park or other landscape irrigation setting. Risks to fire fighters will be further mitigated due to their use of personal protective equipment and the requirement that they be educated in proper use of reclaimed water. Due to an increased risk of cross connection and potentially greater risk to public health, the Commission is not at this time specifically permitting the use of reclaimed water for hydrants in residential neighborhoods or for fire sprinkler systems at any residential structure. However, the Commission understands that the ability to use reclaimed water for such residential firefighting uses may have ramifications for both the costs associated with the construction of, and the need for, "potable" water facilities. The Commission believes, however, that such concerns can be addressed through the use of the variance provisions at section 84.12 , whereby the Division can allow such uses on a case-by-case basis, subject to the proponent providing a quality of reclaimed water better than Category 2, and implementing additional BMPs that ensure the impact to public health and the environment are appropriately limited.
Where reclaimed water is used at interior sprinklers, with numerous fire protection outlets, there are increased risks of public exposure to reclaimed water during non-emergencies and for cross connections between the reclaimed water and potable water systems. The Commission is requiring that the additional conditions listed in section 84.8 be implemented to strictly minimize these risks.
Water used for firefighting typically becomes polluted during its use. The Commission finds that there is little increased environmental risk associated with the reclaimed water source versus a potable water source for the firefighting water. Due to the emergency nature and low frequency of occurrence, discharges from firefighting activities are exempt from NPDES permitting requirements for non-storm water discharges (40CFR Part 122, § 122.26) and shall likewise be exempt from the no discharge to waters of the State' provision in section 84.4 of this Regulation.
The Commission reorganized and edited section 84.9 [formerly 84.7] to address conditions for each different type of use of reclaimed domestic wastewater. Users must address each condition in a "User Plan to Comply" which varies for each type of use. (Under section 84.6 , a treater must submit a User Plan to Comply for each of its users, certify that it will implement its Reuse Management Plan, and monitor the user's compliance with the User Plan to Comply and the requirements of Regulation 84.) Industrial and commercial users must submit a User Plan to Comply that describes the industrial or commercial operation or process using reclaimed domestic wastewater, an analysis of the specific use's potential risks to public health and the environment, and best management practices the user will employ to minimize such potential risks. The User Plan to Comply also includes a certification by the user that its use of reclaimed domestic wastewater is consistent with Regulation 84's purpose of protecting public health and the environment.
Modifications to this section include the following:
* Former Section 84.7 required users to comply with the piping design guidelines contained in AWWA Manual M-24, Dual Water Systems, (AWWA, Denver, CO 1994). This reference was eliminated because the referenced guidelines are not applicable to users' irrigation, industrial and commercial piping systems. Section 84.6 of the amended regulation requires the treater to submit proof it has obtained site application approval and design approvals pursuant to the requirements of Regulation No. 22. Treaters' location and design plans and specifications are reviewed by the Division pursuant to Regulation No. 22. It is the intent of the Water Quality Control Division to use AWWA Manual M-24 as guidance during this review.
Section 84.10 [formerly 84.8], which establishes additional conditions for the use of Category 1 reclaimed domestic wastewater, was revised for clarity, completeness, and consistency with other revisions.
The Commission revised section 84.11 [formerly 84.9] to account for industrial and commercial uses, and to eliminate previous monitoring requirements that were impractical and burdensome for treaters and users. Users of Category 1 reclaimed domestic wastewater for landscape irrigation must confirm that application occurred during authorized times instead of requiring the keeping of records showing the actual dates and times that restricted use water was used. This requirement saves time for the treaters, users and the Division while maintaining the original intent.
Section 84.12 [formerly 84.10] was revised for clarity, completeness, and consistency with other revisions. Section 84.13 [formerly 84.11] regarding enforcement was revised for clarity, completeness, and consistency with other revisions.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-84.22