Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-61 - REGULATION NO. 61 - COLORADO DISCHARGE PERMIT SYSTEM REGULATIONS
Section 5 CCR 1002-61.3 - APPLICABILITY

(A) "Stormwater discharge associated with industrial activity" means the discharge from any conveyance which is used for collecting and conveying stormwater and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Except for the provision of 61.3(2)(c) that addresses construction activities associated with oil and gas operations or facilities, the term does not include discharges from facilities or activities excluded from the NPDES program under 40 C.F.R. Part 122 or the CDPS program under Regulation No. 61.

(B) For the categories of industries identified in subparagraphs (iii)(A) through (K) of this subsection, the term "stormwater discharge associated with industrial activity" includes, but is not limited to, stormwater discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process waste waters; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to stormwater.

(C) The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots, as long as the drainage from the excluded areas is not mixed with stormwater drained from the above described areas.

(D) Industrial facilities (including industrial facilities that are Federally, State, or municipally owned or operated that meet the description of the facilities listed in this paragraph (A)-(K)) include those facilities designated under the provisions of section 61.3(2)(e)(vii).

(A) Facilities subject to stormwater effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 C.F.R. Subchapter N (except facilities with toxic pollutant effluent standards which are excluded under section 61.3(2)(h));

(B) Facilities classified as Standard Industrial Classifications 24 (except 2434), 26 (except 265 and 267), 28 (except 283 and 285) 29, 311, 32 (except 323), 33, 3441,373;

(C) Facilities classified as Standard Industrial Classifications 10 through 14 (mineral industry) including active or inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 C.F.R. 434.11(l) because the performance bond issued to the facility by the appropriate SMCRA authority has been released, or except for areas of non-coal mining operations which have been released from applicable State or Federal reclamation requirements after December 16, 1990) and oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge stormwater contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operations; (inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner/operator, inactive mining sites do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim);

(D) Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under Subtitle C of RCRA as amended by HSWA (1984);

(E) Landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this subsection) including those that are subject to regulation under Subtitle D of RCRA as amended by HSWA (1984);

(F) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, that are classified as Standard Industrial Classification 5015 or 5093;

(G) Steam electric power generating facilities, including coal handling sites;

(H) Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221 - 4225), 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (A)-(G) or (I)-(K) of this subsection are associated with industrial activity;

(I) Treatment works treating domestic sewage or any other biosolids or wastewater treatment device or system, used in the storage treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of biosolids that are located within the confines of the facility, with a design flow of 1.0 mgd or more, or required to have an approved pretreatment program under 40 C.F.R. 403 or 5 CCR 1002-63, Regulation No. 63. Not included are farm lands, domestic gardens or lands used for biosolids management where biosolids is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with Section 405 of the CWA;

(J) Construction activity, including clearing, grading and excavation, that results in the disturbance of five or more acres of total land area. Construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale, if the larger common plan will ultimately disturb five acres or more; and

(K) Facilities under Standard Industrial Classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-4225 (and which are not otherwise included within categories (B)-(J)).

(A) All stormwater discharges associated with industrial activity that discharge through a stormwater discharge system that is not a municipal separate storm sewer must be covered by an individual permit, or a permit issued to the operator of the portion of the system that discharges to state waters, with each discharger to the non-municipal conveyance a co-permittee to that permit.

(B) Where there is more than one operator of a single system of such conveyances, all operators of stormwater discharges associated with industrial activity must submit applications.

(C) Any permit covering more than one operator shall identify the effluent limitations, or other permit conditions, if any, that apply to each operator.

(A) The Division may either issue one system-wide permit covering all discharges from municipal separate storm sewers within a large or medium municipal storm sewer system or issue distinct permits for appropriate categories of discharges within a large or medium municipal separate storm sewer system including, but not limited to: all discharges owned or operated by the same municipality; located within the same jurisdiction; all discharges within a system that discharge to the same watershed; discharges within a system that are similar in nature; or for individual discharges from municipal separate storm sewers within the system.

(B) The operator of a discharge from a municipal separate storm sewer which is part of a large or medium municipal separate storm sewer system must either

(C) One permit application may be submitted for all or a portion of all municipal separate storm sewers within adjacent or interconnected large or medium municipal separate storm sewer systems. The Division may issue one system-wide permit covering all, or a portion of all municipal separate storm sewers in adjacent or interconnected large or medium municipal separate storm sewer systems.

(D) Permits for all or a portion of all discharges from large or medium municipal separate storm sewer systems that are issued on a system-wide, jurisdiction-wide, watershed or other basis may specify different conditions relating to different discharges covered by the permit, including different management programs for different drainage areas which contribute stormwater to the system.

(E) Co-permittees need only comply with permit conditions relating to discharges from the municipal separate storm sewer for which they are operators.

(A) The location of the discharge with respect to state waters;

(B) The size of the discharge;

(C) The quantity and nature of the pollutants discharged to state waters; and

(D) Other relevant factors.

The Division may issue permits for designated municipal separate storm sewers that are on a system-wide basis, jurisdiction-wide basis, watershed basis or other appropriate basis, or may issue permits for individual discharges. The Division may designate discharges from municipal separate storm sewers where the Division determines that stormwater controls are needed for the discharge based on wasteload allocations that are part of total maximum daily loads (TMDLs) that address the pollutants of concern.

(A) Stormwater discharge associated with small construction activity means the discharge of stormwater from construction activities, including clearing, grading, and excavating, that result in land disturbance of equal to or greater than one acre and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale, if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

(B) The Division may waive the otherwise applicable requirements in a general permit for a stormwater discharge from a small construction activity that disturbs less than five acres where the value of the rainfall erosivity factor ("R" in the Revised Universal Soil Loss Equation) is less than five during the period of construction activity. The rainfall erosivity factor must be determined using a State Approved method. The operator or owner must certify to the Division that the construction activity will only take place during a period when the value of the rainfall erosivity factor is less than five. If unforeseeable conditions occur that are outside of the control of the applicant for a waiver, and that will extend the construction activity beyond the dates initially applied for, the owner or operator must reapply for the waiver or obtain coverage under a general permit for stormwater discharges. The waiver reapplication or permit application must be submitted within two business days after the unforeseeable condition becomes known. This waiver does not relieve the operator or owner from complying with the requirements of local agencies.

(A) The location of the discharge with respect to state waters;

(B) The size of the discharge;

(C) The quantity and nature of the pollutants discharged to state waters; and

(D) Other relevant factors.

The Division may issue permits for designated municipal separate storm sewers that are on a system-wide basis, jurisdiction-wide basis, watershed basis or other appropriate basis, or may issue permits for individual discharges. The Division may designate discharges from municipal separate storm sewers where the Division determines that stormwater controls are needed for the discharge based on wasteload allocations that are part of total maximum daily loads (TMDLs) that address the pollutants of concern.

(A) Regulated small MS4s include:

(B) The Division may waive permit coverage for a small MS4 with a population under 1,000 within the urbanized area where both of the following criteria have been met:

(A) Provide a storm resistant shelter to protect industrial materials and activities from exposure to precipitation, snowmelt, and runoff;

(B) Complete and sign (according to section 61.4) a certification that there are no discharges of stormwater contaminated by exposure to industrial materials and activities from the entire facility, except as provided in section 61.3(2)(h)(ii);

(C) Submit the signed, updated certification to the Division once every five years;

(D) Allow the Director of the Division, the EPA Administrator, and/or their authorized representatives, upon the presentation of credentials, to inspect the facility to determine compliance with the "no exposure" conditions;

(E) Allow the Division to make any "no exposure" inspection reports available to the public upon request;

(F) For facilities that discharge through an MS4, submit a copy of the certification of "no exposure" to the MS4 operator, as well as allow inspection and public reporting by the MS4 operator, upon request; and

(G) Have adequate protection in place to assure that stormwater discharges associated with industrial activity do not occur from areas with secondary containment or that drain to a sanitary sewer.

(A) Drums, barrels, tanks, and similar containers intended for the outdoor storage of the contained material, that are tightly sealed, provided those containers are not deteriorated and do not leak ("sealed" means banded or otherwise secured and without operational taps or valves), and are not otherwise a source of industrial pollutants;

(B) Adequately maintained vehicles used in material handling, that are not otherwise a source of industrial pollutants; and

(C) Final products, other than products that would be mobilized in stormwater discharge (e.g., rock salt).

(A) Stormwater discharges from construction activities identified in sections 61.3 and 61.3(2)(f)(ii)(A) are not eligible for this conditional exclusion.

(B) This conditional exclusion from the requirement for a CDPS permit is available on a facility-wide basis only, not for individual outfalls.

(C) If circumstances change and industrial materials or activities become exposed to precipitation, snow melt, and/or runoff, the conditions for this exclusion no longer apply. In such cases, the discharge becomes subject to enforcement for un-permitted discharge. Any conditionally excluded discharger who anticipates such a change in circumstances must apply for and obtain permit authorization prior to the change of circumstances.

(D) Notwithstanding the provisions of this paragraph, the Division retains the authority to require permit authorization (and deny this exclusion) upon making a determination that the discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above an applicable water quality standard, including designated uses.

(A) The legal name, address and phone number of the discharger;

(B) The facility name and address, the county name and the latitude and longitude where the facility is located;

(C) The certification must indicate that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation, snow melt, and/or runoff:

(D) All "no exposure" certifications must include the following certification statement, and be signed in accordance with the signatory requirements of section 61.4 : "I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of "no exposure" and obtaining an exclusion from CDPS stormwater permitting; and that there are no discharges of stormwater contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed under paragraph (h)(ii) of this section). I understand that I am obligated to submit a no exposure certification form once every five years to the Division and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable). I understand that I must allow the Division, or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request. I understand that I must obtain coverage under a CDPS permit prior to any point source discharge of stormwater from the facility. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is to the best of my knowledge and belief true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."