5 Colo. Code Regs. § 1002-84.29
The provisions of sections 25-8-202, 25-8-205(1), and 25-8-205.8, C.R.S., provide the specific statutory authority for adoption of amendments to this regulation. The Commission also adopted, in compliance with section 24-4-103(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
The Commission adopted Regulation 84 in October 2000 with the scope of the regulation being the use of reclaimed domestic wastewater for landscape irrigation. Since its initial passage, there have been seven rulemaking proceedings to incorporate eighteen additional use applications in addition to administrative and clerical changes. These changes have resulted in requirements being added for a variety of purposes over time, providing the Commission with an opportunity to revise, modify and improve the regulation for readability, clarification, compliance, and implementation purposes.
The Commission restructured the organization of the regulation to improve readability and comprehension of the requirements.
The Commission found that Regulation 84 contained significant amounts of repetition and redundancy. Many requirements pertained to multiple or all uses but were worded differently or located in different sections. Furthermore, the previous regulatory format contained a section titled "User Plan to Comply Requirements'' (formerly section 84.12) and the listed requirements were intended for Users to enumerate how they would comply with regulatory mandates in the User Plan to Comply (now termed User Application and Site Management Plan, or UASMP). The Commission determined that the previous User Plan to Comply requirements could be reworded and embedded in the "Implementation Requirements" section (84.10, formerly 84.9(A) - Additional Conditions), and that the UASMP would prompt Users to detail how they would comply with these mandates. Many of the Additional Conditions (now Implementation Requirements) were consolidated when applicable to all uses contained in section 84.10 . Any requirements for a specific use that could not be consolidated were placed under their respective uses in section 84.10(B).
The Commission determined that there were multiple areas of the regulation that could be more explicit, and added more detail to improve the clarity of Treater and User expectations and improve compliance and implementation of regulatory requirements. The Commission also made additional changes to better clarify intended rules and conditions.
The Commission added language to the "Applicability Section"84.4 to explicitly list authorized uses of reclaimed water, and to state that reclaimed water use for any purpose not listed in the regulation is prohibited. This language specifies that if unauthorized use of reclaimed water occurs, it would be a violation of the regulation. This added language clarifies the reclaimed water uses allowed and the consequences of using reclaimed water in an unauthorized manner.
The Commission also added language to section 84.4 that indicates if a Treater or User Authorization contains a variance (per section 84.12 , formerly section 84.14), the conditions of that variance will be included in the Authorization. This is to clarify that a Treater or User Authorization may have conditions in the Authorization that may differ from certain areas of this regulation.
The Commission modified, deleted and added definitions. "Agricultural Irrigation" [84.5(1)] was modified to include "Non-food Crop Irrigation and Silviculture". The Commission considered the definitions for "Agricultural Irrigation User", "Commercial User", "Industrial User", and "Landscape Irrigation User" redundant and these definitions were removed. The Commission determined that the definition of "User" [84.5(57)] would be modified to encompass the intended meaning of these specific User type definitions. "Approved Cross Connection Control Device or Method'' was removed and definitions of "Backflow Prevention Assembly" [84.5(4)] and "Backflow Prevention Method" [84.5(5)] were added to be consistent with Regulation 11. The definition of "Transmission System'' was deleted and replaced with "Reclaimed Water Distribution System" [84.5(42)] to better reflect the intent of the definition.
Definitions with references to other Commission regulations were updated to the proper series in the Colorado Code of Regulations (CCR) for consistency and accuracy purposes for the following terms: Certified Cross-Connection Control Technician [84.5(9)], Certified Operator [84.5(10)], Commercial Food Crop Growing Operation [84.5(11)], Non-Commercial Food Crop Growing Operation [84.5(32)], Potable Water [84.5(40)] and Secondary Treatment [84.5(48)]. Additionally, the definitions for Commercial Food Crop Growing Operation and Non-Commercial Food Crop Growing Operation pertained to whether the agricultural farm was covered under the Food Safety Modernization Act, Produce Safety Rule, 21 -CFR §112.4 . On October 30th, 2020 the Colorado Department of Agriculture's Rules Pertaining to the Administration and Enforcement of the Produce Safety Act, 8 CCR 1202-17, became effective, and the Commission resolved to differentiate these definitions by referencing this state regulation.
The Commission modified the definitions of "Fire Protection - Nonresidential" [84.5(19)] and "Fire Protection - Residential'' [84.5(20)] to reflect the fact that nonresidential and residential fire hydrants coexist in neighborhoods and throughout reclaimed water service areas. The definition of "Site Manager" [84.5(50)] was amended to include trained workers. Additionally, the Commission clarified that Site Managers have the legal ability to "request that'' Treaters discontinue service to Sites with violations. The original language stated that Site Managers have the legal ability to "have the Treater terminate service" which is inaccurate.
The Commission added multiple definitions to bring clarity to areas of the regulation. The definition of "Implementation Requirements" [84.5(22)] clarifies that these practices and conditions are mandated and that Treaters and Users are required to adhere to these. The definition of "Legally Responsible Individual" [84.5(27)] was added to assist Users in understanding who to assign this responsibility to on their application. The Commission added a definition for "Non-food Crop Irrigation and Silviculture" [84.5(36)] because all the other agricultural irrigation uses were clearly defined, and to bring clarity to the applicability in comparison to the other agricultural uses. The Commission determined that providing a definition for "Repetitive Violation" [84.5(43)] in conjunction with additional enforcement requirements for Treaters would assist Treaters and Users in understanding what is a violation of Regulation 84, and when and how enforceable actions should be taken by Treaters. Per stakeholder requests, the Commission added a definition for "Reuse System Management Plan" [84.5(47)], "State Waters" [84.5(51)] and "Zoo Operations" [84.5(61)] for clarification purposes.
The Commission modified and added terminology for clarity purposes. The term "Notice of Authorization" has been used interchangeably for both Treaters and Users. The Commission determined that it would be clearer to specify whether an authorization pertained to a Treater or a User and therefore replaced "Notice of Authorization" with the terms "Treater Authorization" and "User Authorization". The Commission also made changes to terms pertaining to the applications to treat and use reclaimed water. The term "Letter of Intent" was changed to "Application to Treat and Distribute Reclaimed Water" or "Treater Application." The term "User Plan to Comply'' was changed to "User Application and Site Management Plan (UASMP)." UASMP is a more appropriate term for User applications. In addition to the document being used by the Division to determine whether to issue an authorization to a User, by default, the document has also been used as a Site management plan that Users reference to implement regulatory requirements, allowing the Division to ensure compliance when conducting inspections.
The Commission replaced the term "Additional Conditions" with "Implementation Requirements." The term "Additional Conditions" was often interchangeable with "Best Management Practices" or "BMPs" throughout the regulation and caused confusion among Users as to whether the conditions or practices were actually required.
The Commission made multiple changes and additions to the section that pertains to Treaters. Most of these clarifications are contained in section 84.6 . Any changes that require updates in Treater Authorizations, Reuse System Management Plans and other changes are required to be completed within two years from the effective date of this rulemaking.
Section 84.6 lists the information in the UASMPs that Treaters must review and ensure is accurate prior to submitting them to the Division. In 2004, the Commission adopted provisions requiring Treaters to provide the Division with a "User Plan to Comply" for each User and each use prior to receiving authorization to provide reclaimed domestic wastewater. It was the intent of the Commission for Treaters to review the UASMPs (former User Plans to Comply) and submit them to the Division directly. This additional language clarifies the original intent of the Commission.
Maintaining copies of authorizations issued to Users has always been a responsibility of Treaters. Section 84.6 clarifies that copies of UASMPs for Sites where reclaimed water is currently being used must be maintained, and copies of previously effective UASMPs must be retained for three years. The Commission adopted a three-year record retention period in case questions or concerns regarding the User and the Site should arise even after the User is no longer authorized.
Regulation 84 requires that Treaters conduct an annual education program for all Users. The Commission added section 84.6 to specify the conditions and information that must be provided in the education program. Some of the education requirements that formerly applied to specific uses have been carried into the Treater's education program.
Treaters have been required to oversee the use of reclaimed water by Users to ensure, to the maximum extent practicable, that Users attain and maintain compliance with this regulation. Treaters have been responsible for conducting inspections of their Users and reporting inspection results to the Division [84.11(A)(1) and 84.11(B)(2)]. The Commission resolved to clarify this requirement by directing Treaters to develop and maintain adherence to an Enforcement Escalation Plan [84.6(A)(6)(c) and 84.6(F)(5)]. The Commission determined that this would result in a better mutual understanding of the consequences for Users who violate this regulation, and for the Division to issue compliance actions for Treaters who do not maintain adherence to their Enforcement Escalation Plans. Additionally, the Commission clarified that Treaters shall maintain records of inspections, non-compliance determinations and corrective actions for inspections for at least three years for Division review [84.6(F)(7)]. The definition of "Repetitive Violation" [84.5(43)] was added to assist Treaters in developing the Enforcement Escalation Plan and enforcement actions, and for Users to understand what it means to violate Regulation 84.
The Commission added the following requirement under the former "Additional Conditions" section 84.9(31) during the 2019 rulemaking:
"The Treater and the User shall furnish to the Division, within sixty days, any information which the Division may request to determine whether cause exists for modifying, revoking and reissuing the NOA, or to determine compliance with this regulation or the applicable NOA."
The Commission moved this requirement to 84.6(F)(14) since it pertains to Treaters. Furthermore, this requirement has always been in Treater NOAs in Part II, section B.2.
Regulation 84 always prohibited supplementing reclaimed water with potable water and other water sources unless proper cross connection controls are intact. These requirements were formerly listed under the "User Plan to Comply Requirements" in sections 84.12 and 84.12 . The Commission moved the requirements to section 84.6 and 84.6 , and added a requirement for Treaters to describe how they comply with these cross connection controls in their reuse system management plan in section 84.6 . Furthermore, the Commission determined that when supplementing reclaimed water with potable water, it was clearer to reference the controls mandated in Colorado Primary Drinking Water Regulations 5 CCR 1002-11 (Regulation # 11). An Implementation Requirement for cross connection is also listed in the User section so Users are aware that Sites must be in compliance 84.10(A)(1).
Treaters are required to submit information to the Division requesting amendments to their Treater Authorization [formerly section 84.6]. The Commission clarified that this is required for the following additional reasons: a facility contact or Legally Responsible Individual change, termination of the reclaimed the authorization and when there is a transfer of ownership or operational control in sections 84.6(E)(7)(a), 84.6(E)(7)(d) and 84.6(E)(7)(e), respectively.
Most of the consolidation changes that the Commission made pertained to requirements for Users. The Commission consolidated regulatory conditions where possible to improve readability and comprehension of Regulation 84.
The requirements for applications to use reclaimed water were not explicitly listed in the former regulation. The Commission dedicated section 84.9 for Users so they understand the expectations for applying and receiving a User Authorization. Users will be required to submit a UASMP to receive approval to use reclaimed water. Existing UPCs and Notices of Authorizations for Users that are authorized would remain effective, and a new UASMP would not be required until:
* The Division develops and publishes the new UASMPs on the Division's permits website, and
* The Division initiates a renewal schedule for Treaters and their Users pursuant to proposed sections 84.6(D) and 84.9(D), and/or
* The User submits a modification or other change to the User Authorization (former termed NOA) and the new UASMPs are available to be completed.
Treaters and Users must comply with the requirements of the most recent version of this regulation unless otherwise specified. The Commission determined that certain requirements in Colorado's Plumbing Rules and Regulations (3 CCR 720-1) pertain to some uses of reclaimed water. Where the plumbing code applies, the Commission directed Treaters and Users to follow the mandates therein. For uses in which the plumbing codes do not apply, the Commission embedded language that is either similar to or identical to those found in Colorado's Plumbing Rules and Regulations to be consistent. The Commission added this change with regards to labeling conveyances and appurtenances [84.10 (2)] and signage requirements [84.10(A)(4)].
The Commission determined that some conditions that once applied to specific uses should be required for all uses. These conditions are located in section 84.10(A), and the table below shows the current location in the revised regulation, and the location(s) of the requirement(s) in the former version of the regulation.
Table of User Requirements Previous and Current Version Locations
User Requirement | Previous Version Location | Current Version Location |
Cross connection control at use Sites | 84.12(H)(7), 84.12(H)(9) and 84.12(H)(5) | 84.10(A)(1), 84.6(F)(12) and (13) |
Labeling of conveyances and appurtenances | 84.12(H)(4) | 84.10(A)(2) |
Education and training | 84.9(A)(13) and 84.12(H)(11) | 84.10(A)(3) |
Signage requirements | 84.12(H)(3) | 84.10(A)(4) |
Requirements pertaining to reclaimed water use areas | 84.12(H)(2) and 84.12(H)(1) | 84.10(A)(5) |
Leak repair | 84.9(A)(25) | 84.10(A)(6) |
Reclaimed water disposal requirement/Spill reporting | 84.9(A)(40) | 84.10(A)(7) |
Operation of the reclaimed water onsite distribution system | 84.12(H)(6) | 84.10(A)(8) |
Vehicle and tank hauling requirements | 84.9(A)(38) | 84.10(A)(9) |
Submission of the UASMP for each User | 84.6(A)(6) | 84.10(A)(10) |
Maintenance of a copy of the UASMP at User Sites | 84.10(A)(2)(v), 84.10(C)(2)(i) and 84.10(D)(2)(iii) | 84.10(A)(11) |
Reporting violations | 84.13(C) | 84.10(A)(12) |
Furnishing information to the Division | 84.9(A)(31) | 84.10(A)(13) |
Requirements regarding impoundments | 84.12(H)(10) | 84.10(A)(14) |
The Commission added other clarifying language regarding the following.
Section 84.6 was added to clarify that Treaters are responsible for ensuring Users adhere to the Land Application Discharge requirements.
The Commission determined that it would be beneficial to Treaters and Users to clarify conditions pertaining to uses of reclaimed and land application discharges that are authorized under Regulations 84 and 61. Landscape and agricultural irrigation Users are required to irrigate at the agronomic rate to prohibit discharges to groundwater. Additionally, irrigation Users have the option to use a Colorado Discharge Permit System (CDPS) permit to comply with Regulation 61. Fire protection uses are exempt from the land application discharge requirements when reclaimed water is used in an emergency whereby proper disposal of the water or applying it at evapotranspiration rates would nullify the purpose of the use. However, this does not include land application of reclaimed water for fire protection for any other reason. Land application discharges are prohibited for all other uses. Section 84.10 and Table B clearly display these clarifications to help Treaters and Users understand the requirements regarding land application discharges.
Colorado Regulation # 61 (CDPS Regulations) dictates that impoundments containing reclaimed water are subject to either meeting the seepage requirement in Regulation 61.14(9)(a) and thus receive a waiver, or obtain a CDPS permit. This requirement was also formerly located under the User Plan to Comply requirements section 84.12 . The Commission determined that this requirement should be explicitly stated in Regulation 84 to ensure Treaters (and Users) understand that impoundments must be in compliance with this regulatory requirement (section 84.6 for Treaters; section 84.10 for Users). Furthermore, the wording for the requirement was modified in section 84.6 (a-b) to explicitly state the Commission's intent that Treaters shall ensure that all impoundments containing water originating from the Treaters reclaimed water distribution system are either authorized to discharge under a CDPS permit or have received a waiver based on the seepage rate pursuant to section 61.14 . When discharged under a CDPS permit to an impoundment, this water is not subject to Regulation 84. The Commission has directed the Division to ensure compliance with this requirement in Regulation 84. Treaters have five years from the effective date of this regulation to comply. Impoundments that do not have a seepage waiver or a CDPS permit on the effective date of this regulation will still be in violation of Regulation 61.14(9)(a), but will have up to five years to be considered in violation of Regulation 84.
The Commission revised the review period for the Division to review Treater Applications and UASMPs from 30 days to 60 days. Given the complexity of the new uses added during recent rulemakings and the addition of localized systems, the Division will need more time to carefully review applications. The Commission also added a provision to allow the Division to provide public notice of applications and authorizations when needed. The Division has received requests for the applications to be more public and transparent. Since the Commission allows public notice for other types of permits issued by the Division, this requirement is consistent with other regulations and processes. The Division will use their standard notification language stating that an Authorization is up for public comment. The Division will notify and work with Treaters during the review, renewal and public notice process when conducting these assessments on their respective Users.
Additionally, the Commission resolved to add language regarding reasons for denying a Treater or User authorization. Authority to deny authorizations based on risks to public health and the environment has always been entrusted to the Division, and the Commission concluded that this should be explicitly stated in the regulation.
The Commission found it important to direct the Division to review Treater and User authorizations for renewal for several reasons. While Regulation 84 becomes active upon implementation, User and Treater compliance is improved when authorizations are consistent with the regulatory requirements and applicable regulatory sections for which the authorizations reference. These are subject to change with future rulemakings. Secondly, renewing authorizations will help ensure that the contact information is up to date, thereby improving compliance with the regulation and the Division's ability to contact the appropriate representatives for the Treater facilities and User Sites. Third, and specifically with regards to Users, periodic renewals of authorizations will require Treaters to engage with their Users which should result in better education about the regulation, raise awareness about the regulation and requirements to use reclaimed water, and thereby help to improve compliance on User Sites and amongst Users.
The Division will work with Treaters and Users to determine a renewal compliance schedule that is viable given the current Treater, User and Division resources at the time. The Division will develop guidance that includes a timeline and/or circumstances that would initiate a renewal. Circumstances that could be included in guidance are:
* Prioritization of Authorizations that pose higher public health risks,
* Prioritization of Authorizations that pose higher environmental impacts,
* Prioritization of Authorizations for which non-compliance has been high,
* Timeline of application dates/age of Authorizations.
The Commission determined that Treater and User Authorizations should not be renewed more frequently than every five years, unless specific conditions in 84.6(D) for Treaters, and 84.9(D) for Users are met which are consistent with the considerations for modification of a CDPS permit during its permit term in Regulation 61. Conditions in 84.6(D) and 84.9(D) are listed below:
* Violation of any terms or conditions of the Treater or User Authorization;
* Obtaining a User Authorization by misrepresentation or failing to disclose any fact which is material to the granting or denial of a User Authorization or to the establishment of terms or conditions of the User Authorization;
* Materially false or inaccurate statements or information in the User Application; or
* A determination that the authorized activity endangers human health or the classified existing uses of state waters and can only be regulated to acceptable levels by permit or termination.
The Commission recognized that some uses of reclaimed water that are not authorized could be allowed under a variance in certain conditions. Section 84.12 provides the conditions to apply for a variance to use reclaimed water for applications not listed in section 84.10 , Table A. Proponents of new uses may include, but are not limited to, the Division, Treaters, Users and other governing agencies. The Commission also determined two conditions, described in 84.12(B)(1), for which new uses may be added using the process. The first is if another state or federal governing agency provides oversight and water quality regulations that are equivalent to or surpass the public and environmental health protections that would be afforded in Regulation 84 [section 84.12]. The second condition is if the new use results in no additional risk to public health or the environment while using existing reclaimed water categories and Implementation Requirements, or by adding some new Site-specific Implementation Requirements to Authorizations if necessary [section 84.12]. These two conditions would allow for flexibility to broaden categories of uses without a formal Commission rulemaking.
It was determined that since a formal rulemaking will not occur in these cases, the public should have an opportunity to be involved in decisions regarding these new uses. The new use variance request and pertinent information will be posted for public notice for comment for 30 days. If, after considering public comments, the Division still finds that the variance meets the criteria in 84.12(B)(1), the Division will provide a notice to the Commission following the public comment period that will contain information regarding the variance request, the Division's findings of the variance request and the public comments. If the Commission takes no action (or after holding an adjudicatory hearing pursuant to 5 CCR 1002-21), the variance will be issued to the Treater and User(s) and the respective Authorizations will be issued. Any uses added through this variance process would be also included during the next triennial review hearing so that the Commission also has the opportunity to formally incorporate them into Regulation 84.
The Commission added section 84.15 to provide regulatory conditions to propose new uses to the Commission. This process is intended to be used in circumstances where a variance would not fall under the conditions above, nor is the use listed in Table A. Proponents of these new uses must provide information regarding the approximate potable water that would be saved by implementing the new use. The Commission also determined that proponents provide accompanying Implementation Requirements that would be protective of public health and the environment. Lastly, the Division and Treater resources, such as staff and oversight capacity, must be adequate to support compliance with the new use and associated Implementation Requirements. The Commission will use this information to determine how to prioritize timing and Division resources for adding and authorizing the new use to Regulation 84. Additionally, the Commission may expedite adding a proposed new use at any given time when the potential potable water supply savings is deemed great enough to take action in the immediate or near term.
5 CCR 1002-84.29