Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-22 - REGULATION NO. 22 - SITE LOCATION AND DESIGN REGULATIONS FOR DOMESTIC WASTEWATER TREATMENT WORKS
Section 5 CCR 1002-22.22 - Statement of Basis, Specific Statutory Authority and Purpose; April 2004 Rulemaking

Current through Register Vol. 47, No. 5, March 10, 2024

The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. 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

Introduction: The changes adopted to this regulation by the Commission largely implement the recommendations developed by a Division-led stakeholder group that was formed after the informational hearing held by the Commission in March 2003.

There were numerous minor changes made to improve clarity and address inconsistencies in the previous regulation. Substantive changes are summarized and discussed below. In addition to the regulatory changes, the Division and stakeholders agreed that a guidance document must be developed to inform the regulated community about the Division's review and approval process. The guidance document will include a further description of the Division's review process including flow charts and timelines. The guidance document will also include detailed instructions for completing an application, target deadlines for the Division to issue PELs and process applications, and reporting mechanisms for the Division to assess achievement of these target deadlines. Improving the predictability and timeliness of the review process is an expected outcome of implementing the guidance document. The guidance document will be issued by the Division no later than September 30, 2004.

Title: The title of the regulation was changed to add design approval so that the regulations will fully encompass the site location and design approval processes that are specified in 25-8-702 C.R.S.

Definitions, (22.2): Significant changes to the definitions included:

* "Amendment" was added to the definitions to help clarify when the process defined in section 22.8 is applicable.

* "Approval" was modified to include the interceptor certification and design approval process and to require that approvals provide specific information with regard to the treatment works being approved.

* "Construction" was modified to allow design-build contracts to be executed for domestic wastewater treatment works projects. The definition in 25-8-701 is repeated; however, a sentence was also added to exclude the portion of such a design-build contract, that covers the site application and design work, from being considered to be "construction." Usually, in these circumstances, the Division has worked with the entity to approve portions of the design in a stepwise fashion, approving each portion of the design before actual construction activities of that portion of the treatment works commence. The Commission finds this to be an acceptable practice. The Commission still intends that no actual erection or physical placement of materials, equipment, piping, earthwork, or buildings which are to be part of a domestic wastewater treatment works may be commenced unless the full site application and at least that portion of the design to be constructed has been approved by the Division.

* "Comprehensive Plan" was added to distinguish this plan from the 208 Water Quality Management Plan and other local government plans and address the situation when comprehensive plans overlap the subject property. Since cities, towns and counties can formally adopt comprehensive plans or master plans for areas that extend beyond their legal boundaries, it is possible that the site for a wastewater treatment facility will be addressed in more than one comprehensive plan. The revised definition allows the Division to consider each of these overlapping plans and gives direction when these plans are in conflict. There are instances in Colorado where local governments have addressed overlapping planning areas through Intergovernmental Agreements. The Division should be made aware of such agreements by the local governments in their review so that the site application can be found consistent with the plan(s) as addressed in the agreement.

* "Design Capacity" was modified to be more specific and allow for the possibility that a parameter other than flow or biochemical oxygen demand may limit design capacity. Additionally, the design capacity for Individual Sewage Disposal Systems (ISDS) that are subject to the site location approval process was defined.

* "Domestic Wastewater Treatment Works" was modified to conform with the definition provided in 25-8-103 C.R.S., except that the revised definition includes facilities with a design capacity equal to two thousand gallons per day. The definition in the Water Quality Control Act includes facilities that receive more than two thousand gallons per day. The Guidelines on Individual Sewage Disposal Systems adopted by the Board of Health cover systems with design capacities of less than two thousand gallons per day. Thus, a facility with a design capacity of exactly two thousand gallons per day could potentially be excluded from regulation altogether. The Commission finds that including such systems in this regulation is appropriate.

* "Effluent Limitation" was added. The definition references Colorado Discharge Permit Regulations, 5 CCR 1002-61.

* "GPD" (gallons per day) or "MGD" (million gallons per day) was modified so as not to conflict with the definition of design capacity.

* "Individual Sewage Disposal System (ISDS)" was added for clarification. Furthermore, an ISDS with a design capacity equal to or greater than two thousand gallons per day is considered to be a domestic wastewater treatment works.

* "Interceptor Sewer" was modified to more clearly list the actual functions of an interceptor sewer that make it subject to the regulations.

* "Lift Station" was clarified because any lift station receiving less than two thousand gallons per day would not be subject to this regulation, not just lift stations associated with small clusters of single-family residences.

* "208 Planning Agency" was added to clarify that this is specifically one of the agencies established in the Water Quality Control Act with authority to comment during the site application process. Previously this was defined only as "Planning Agency" which created confusion. Thus, in numerous places throughout the regulation, "Planning Agency" was changed to "208 Planning Agency."

* "Outfall Sewer," a type of domestic wastewater treatment works, was modified to exclude reclaimed domestic wastewater distribution and transmission system piping because it is not appropriate to require site location and design approval for these piping systems, as the reuse does not result in a discharge to state waters.

* "Preliminary Effluent Limitations (PELs)" was added because this term is used in the regulation and PELs are required to be submitted as part of an application.

* "Reclaimed Domestic Wastewater" was added because the site application procedures applicable to domestic wastewater treatment works for reclaimed domestic wastewater were clarified in the regulation. The definition is consistent with 25-8-103 C.R.S.

* "Site" was added. The definition is consistent with the Colorado Discharge Permit Regulations, 5 CCR 1002-61.

* "Treatment Process Modification" was added because the site application procedures applicable for such modifications were clarified in section 22.8.

* "Vault" was modified to clarify that if the building(s) it serves will generate more than two thousand gallons per day of domestic wastewater, then the vault is a domestic wastewater treatment works.

Declaration of Policy, (Section 22.3): The title of this section was changed because this Policy Declaration is applicable for the overall site location approval process, not just to construction or expansion situations.

Section 22.3 was changed to be more specific and focus on water quality impacts. Section 22.3 was modified to allow the Division to consider the applicant's capability, including legal authority and financial capability, to adequately construct the treatment works rather than just their operational management capability after the facility is constructed.

Sections 22.3 and 22.3 of the previous regulation were moved to the newly-created section 22.10 which addresses the design review process. Sections 22.3 and 22.3 were added to the Declaration of Policy for clarification. Section 22.3 was moved from section 22.4 of the previous regulation because it is a more general policy statement applicable to the entire site location approval process and not just the site location approval process for new treatment works, which is the topic of section 22.4.

Sections 22.3 were moved from section 22.8 of the previous regulation because they are general policy type statements and are not factors in decision-making (which is the substance of the previous section 22.8). Section 22.3 was created by moving the text from section 22.4 of the previous regulation because the concepts expressed therein apply to the overall site location approval process and not just the legal control of the site aspect covered in section 22.4 . This same text was repeated in section 22.6 of the previous regulation and has been deleted from that location. The approval period provided in section 22.3 is now more flexible and can be extended past one year, if merited, and shown as necessary in the schedule provided with the application. The first sentence in section 22.3 was also modified to improve clarity. The last sentence of section 22.3 , regarding the need for applicants to obtain all required approvals from other state and local agencies, was moved from the previous text to create section 22.3 because that concept applies to the overall site location approval process and not just the appeals process that is covered in section 22.3(15).

Application Procedures - New (Section 22.4): The title of this section was changed because it applies to more types of domestic wastewater treatment works than only treatment plants, and this is further clarified by the changes to section 22.4 . The site application procedures in section 22.4 also apply to outfall sewers moving from the approved site to another location and new facilities being constructed to produce reclaimed domestic wastewater at a site location not previously approved by the Division or at a different site from the secondary treatment plant. It is now clarified in section 22.4 that a full design report is not needed to support the site application. Also, a detailed evaluation of alternative treatment sites and treatment techniques will not be required for small systems. This change is being made to lessen the burden of the site application process on small systems based on stakeholder feedback. However, small systems must consider the feasibility of consolidation. A discussion of the applicability and the possible need to confirm or change PELs during the site application process has been added to section 22.4 to make applicants aware of these considerations.

A sentence was added to the end of sections 22.4 to clarify the meaning of a recommendation for approval from local agencies. Section 22.4 of the previous regulation was moved to section 22.4 as subsection (f) because this completes the listing of other agencies involved in the process and includes all of them within section 22.4 . The text in section 22.4 was also modified slightly to be more consistent with the other elements in section 22.4.

Section 22.4 of the previous regulation was moved to the beginning of section 22.4 because it is a better fit with that portion of the regulation covering coordination and signatures from other agencies. Section 22.4 in the previous regulation was moved to section 22.3 , as discussed above, because it is more consistent with a policy statement. Minor clarifications were added to the posting requirements in section 22.4 and it is now clear as to how meeting the posting requirement can be met and how this can be demonstrated in the application.

Application Procedures - Expansions (Section 22.5): The title of this section was changed because it applies to more types of domestic wastewater treatment works than only treatment plants, and this is further clarified by the changes to section 22.5 . Additionally, inclusion of facility modifications in this section was not appropriate. Treatment process modifications are now covered explicitly in section 22.8 . Section 22.5 was modified so that the comment and review process for an expansion is equivalent to that in section 22.4(2).

Certification Procedures - Eligible Interceptors (Section 22.6): This section was added to more clearly segregate the two possible site location approval mechanisms for interceptors: certification (described in section 22.6) or application (described in section 22.7). Certification is the simpler of the two processes but is not possible in all circumstances. Section 22.6 provides the circumstances when an interceptor sewer is eligible for certification. Sections 22.6 discuss the certification process and the Division's response in these situations. The text in section 22.6 was also modified to more closely parallel the provisions in 25-8-702(3) C.R.S.

Application Procedures - Interceptors Not Eligible for Certification and Lift Stations (Section 22.7): The title of this section was changed to clarify that the requirements therein apply to interceptor sewers that cannot be certified as provided for in the newly-created section 22.6 and to all lift stations. Changes were made to sections 22.7 (ii) to allow a more complete analysis of the overall flow and loading projections associated with lift stations and of the accepting treatment plant to ensure that the treatment plant has or will have adequate capacity over time. It is acceptable for the treatment plant to rely on expansion or phased construction, provided that such is presented in the Water Quality Management Plan, or appropriate planning and engineering studies. Section 22.7 has been modified to provide appropriate means for reviewing proposed lift stations in these circumstances. Section 22.7 was added to require posting as required in section 22.4 . Leaving this requirement out of this section was an oversight when this section was created during the last update to the regulation.

Clarifications to the local agency review process were incorporated into sections 22.7 and 22.7 . Additionally, the same path forward provided in section 22.4 for new or expanding treatment works specifying how applicants can proceed when the local authorities or the 208 planning agency do not review an application within 60 days has been added to sections 22.7 and 22.7 . This was done because site applications for lift stations and interceptor sewers not eligible for certification should not be subject to local agency review requirements that are different from site applications for new or expanding treatment works. A sentence was also added to the end of section 22.7 to allow the Division to act on a site application that is not reviewed by the 208 planning agency. Additional text was added clarifying that the Division will review and act on an application in accordance with section 22.9 in the event that the review agencies do not agree on the recommendation to approve or disapprove the site location approval application.

Application Procedures - Amendments (Section 22.8): Experience with the site location approval process has shown the applicability and efficiency of the relatively simple amendment process to be beneficial. Changes were undertaken in this section to clarify the amendment process for reviewing agencies and to more fully develop the circumstances when a proposed treatment process modification requires that the previous site location approval be amended. Modifications were also made to section 22.8 to allow for certain types of changes in disinfection process, specified in section 22.8 , to proceed without review agency comment. The application form for these types of amendments will be simplified as compared to the standard amendment form. The Commission determined that this is an appropriate simplification of the amendment process since these changes would not significantly alter the approved site or pose any additional off-site concerns. However, the ability for such agencies to appeal the amendment approval would remain the same as the current regulation. Section 22.8 provides a list of physical treatment process changes that the amendment process will apply to and a process for resolving other similar changes. The Commission contemplates, for amendments described in section 22.8 , that the application form can be submitted concurrently with the design documents and that the Division will act on both submittals simultaneously. Changes to the secondary treatment system that would require an amendment under section 22.8 are limited to physical changes that significantly alter how the facility accomplishes secondary treatment, e.g., changing from lagoon treatment to activated sludge treatment, adding clarifiers and sludge re-circulation to Rotating Biological Contactors to improve ammonia removal, etc. Treatment process modifications that do not involve construction of facilities, e.g., changing chemical flocculants, would not require site location approval (or amending the existing approval). Section 22.8 was modified to cover capacity rating changes more explicitly and to highlight the need to consider any potential impacts to effluent limitations. Section 22.8 was added to allow the addition or expansion of domestic wastewater treatment works generating reclaimed domestic wastewater at the same site as the secondary treatment plant (provided that the plant has prior site location and design approval) to proceed via the relatively simple amendment process.

The modifications to Section 22.8 clarify when amending a site application would apply to a change in the type of discharge employed. Section 22.8 of the previous regulation concerning changes in discharge location has been deleted. This section was deleted because changing the discharge location within the same receiving water segment and within the same site does not require site location approval or amending a previous site location approval. However, changing the discharge point to another site, even within the same receiving water segment would involve constructing new domestic wastewater treatment works, specifically the outfall sewer, at a new site. This activity is subject to the requirements of section 22.4.

Decision Making - (Section 22.9): The title of this section was changed because specific, i.e. numeric, criteria for decision-making are not provided. The Commission agreed with the stakeholders and the Division that developing specific criteria is not warranted because circumstances associated with constructing new or expanding treatment works or amending a site location approval vary widely. Thus, developing specific criteria would jeopardize the flexibility currently exercised by the Division to work through site location issues with applicants while still protecting public health and water quality. Section 22.9 was changed to be consistent with the policy in section 22.3 as discussed above. Section 22.9 was changed to clearly show that the Division will consider public comment, as this has always been the case. Section 22.9 was added because the ability of a proposed treatment plant to meet the preliminary effluent limits is one of the key factors that the Division has always considered when reviewing a site application. The rest of section 22.8 after subsection (1) was moved to section 22.3 because these elements are more consistent with policy statements.

Design Approval - (Section 22.10): This section was added so that the regulation would fully encompass the statutory provisions of 25-8-702 C.R.S that require approval for the design of domestic wastewater treatment works as well as the site location. General requirements, policy statements and procedures were added. The Commission decided that further detailed, specific regulatory elements were not needed, again because the Commission did not wish to limit the Division's flexibility to resolve design issues with applicants, while still protecting public health and water quality.

Reserved - (22.11 to 22.15): These sections are reserved for potential future use.

Parties to the Rulemaking Hearing