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 1002-61.72 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE - OCTOBER 9, 2018 RULEMAKING HEARING; EFFECTIVE DATE DECEMBER 31, 2018

A. SUMMARY

In this proceeding, the Commission amended Regulation 61 to update the incorporation by reference date; to incorporate the Environmental Protection Agency's (EPA's) Sufficiently Sensitive Test Method rule; to incorporate EPA's Electronic Reporting rule; to clarify the public participation requirements; to incorporate additional opportunities for public comment on draft permits; to incorporate the statutory agricultural waste exemption; and to make general clean-up and corrections.

B. ADOPTION OF SUFFICIENTLY SENSITIVE TEST METHODS - SECTIONS 61.4(1) & 61.8(3)

EPA finalized updates to the National Pollutant Discharge Elimination System (NPDES) requirements regarding sufficiently sensitive test methods on August 19, 2014. The final rule added 40 C.F.R. § 122.21(e)(3), and revised §122.44 to require that where EPA-approved methods exist, NPDES applicants use sufficiently sensitive EPA-approved analytical methods when submitting information quantifying the presence of pollutants in a discharge. The Commission updated Regulation 61 to ensure consistency with the federal regulations on the sufficiently sensitive test methods. Sufficiently sensitive EPA-approved analytical test methods must be used for analyses of pollutants or pollutant parameters that are required to be submitted under permit condition monitoring requirements.

Changes to application requirements

Section 61.4 outlines the general Colorado Discharge Permit System (CDPS) application requirements for permittees. The Commission added a new subsection, section 61.4 , to clarify the requirements for analysis of quantitative information submitted as part of the permit application. This language specifies that any quantitative information that is required to be submitted as a part of the permit application must be collected in accordance with sufficiently sensitive analytical methods. By using the term "required," the Commission intends to allow for the submission of information collected by methods other than sufficiently sensitive methods. However, the Commission is requiring that an applicant notify the Division if it submits quantitative information that was analyzed by a method that is not consistent with the federal sufficiently sensitive method requirements.

In the past, incorrect reasonable potential findings were made based on the submission of improper analytical data. If laboratory analyses are conducted that are not sufficiently sensitive, laboratory analyses may indicate a pollutant of concern was "non-detect" when in fact sufficiently sensitive methods may have demonstrated the presence of a pollutant. To prevent this mistake moving forward, the Commission clarified that the Division may exclude data collected through methods other than sufficiently sensitive methods if inclusion of the data would result in an improper determination about effluent limits, or would falsely indicate that no reasonable potential exists. If the Division makes a determination to exclude data, the Division must explain the reasons for exclusion of the data in the record for the permit.

This clarification is not intended to exclude historical data from analysis that were collected in accordance with the appropriate analytical methods in place at the time, but which may no longer meet the requirements for sufficiently sensitive test procedures as defined by 40 C.F.R. § 122.44(i)(1)(iv). The Commission recognizes that laboratory methods are constantly evolving. The Commission further recognizes that reviewing historical data is an important part of the permitting process.

Changes to permit condition monitoring requirements

The permit condition requirements for CDPS permits are outlined in section 61.8 , and monitoring requirements are outlined in section 61.8 . The Commission clarified language in subsection 61.4 in order to ensure consistency and appropriate citation to the updated federal regulations.

Consistency with the PQL Policy

The Commission considered concerns that revisions to Regulation 61 could necessitate changes to portions of the Division's existing Practical Quantitation Limits (PQLs) Policy, Implementation Policy CW-6 (PQL Policy). The PQL Policy was originally approved December 30, 2014, and was last updated effective February 3, 2015. The PQL Policy was developed shortly after EPA's Sufficiently Sensitive Methods rule was finalized, and is consistent with that rule.

C. ADOPTION OF THE ELECTRONIC REPORTING RULE - SECTIONS 61.4(1) & 61.8(4)

EPA finalized the electronic reporting (e-reporting) rule on December 21, 2015. The final rule substitutes e-reporting for paper-based reports, and, over the long term, saves time and resources for permittees, states, tribes, territories, and EPA. EPA's e-reporting rule was comprised of a Phase 1 implementation, which requires authorized programs to electronically transmit discharge monitoring report (DMR) data to EPA, and a Phase 2 implementation, which requires authorized programs to begin electronically collecting, managing, and sharing information in addition to the DMR data, including permit application materials for general permits.

Changes requiring mandatory use of netDMR

Under Phase 1 of the e-reporting rule, authorized NPDES programs, such as Colorado, must ensure that permittees submit DMRs electronically using an approved system. As of the time of this rulemaking, Colorado has elected to use the EPA netDMR system to comply with this requirement. The Commission amended section 61.8 to include mandatory language regarding use of netDMR. Permittees will be required to submit DMRs electronically using the netDMR system, unless a waiver is obtained from the Division. The Federal Electronic Reporting Rule incorporates some requirements pertinent to programs for which Colorado does not have delegated authority, including Pretreatment and Biosolids. Except for those data that are required by Colorado but not required by the EPA for non-delegated programs, the Commission's amendments to section 61.8 do not alter electronic reporting for non-delegated programs. Entities required by the EPA to submit data/reports for programs where the State of Colorado does not have primacy must comply with the reporting requirements of the EPA consistent with the Federal E-Reporting Rule.

The Commission added language to section 61.8 to allow for three types of waivers from the netDMR requirements: permanent waivers, temporary waivers, and episodic waivers. Permanent waivers are limited in scope and are only allowed for religious communities that choose not to use certain modern technologies like electricity or computers. Temporary waivers are limited in duration, and must be approved by the Division. Episodic waivers are allowed for a maximum of 60 days, and are only appropriate in limited situations such as emergencies, situations beyond the permittee's control, or system outages. It is the Commission's expectation that waivers will only be granted under the limited circumstances defined by the regulation.

Changes regarding electronic applications for general permits

Under Phase 2 of the e-reporting rule, authorized programs have five years to begin electronically collecting, managing, and sharing the information not encompassed in Phase 1 of the e-reporting rule, including permit application materials for general permits. In order to comply with this effort, the Colorado Department of Public Health and Environment developed the Colorado Environmental Online System (CEOS) for permit applications. Adoption of CEOS will allow the Division's Permits Section to accept electronic applications for most general permit certifications. Beta testing of CEOS occurred throughout 2018, and the Permits Section expects that numerous general permits will be able to start using the system by the end of 2019.

To implement Phase 2 of the e-reporting rule, the Commission amended the general permit application requirements in section 61.4 . The Commission added language to new section 61.4 to incorporate mandatory language regarding Phase 2 implementation of the e-reporting rule.

D. CLARIFICATION OF THE PUBLIC PARTICIPATION REQUIREMENT - SECTION 61.7(c)

The Commission amended section 61.7 to clarify that only those issues of law or fact identified during the permitting process (typically, the public comment period) may be raised at a subsequent adjudicatory hearing, unless the issue was not reasonably ascertainable from the draft permit. This revision is meant to clarify the existing language of section 61.7 , which has created some confusion in the past. This clarification is consistent with the federal Clean Water Act permitting processes.

An intent is that issues (interpreted broadly) are brought to the Division's attention early in the permitting process, so that the Division has the opportunity to address the issues prior to reaching the adjudicatory hearing procedure stage.

This clarification does not limit the evidence that can be offered at a hearing to address such issues, consistent with a 2009 Office of Administrative Courts order stating that Regulation 61.7 "does not permit a petitioner to unfairly expand the scope of the issues beyond those presented to the agency during the permitting process. The rule, however, does not necessarily limit the evidence offered at a hearing. Evidence relevant to a properly raised issue of law or fact is not excluded simply because it was not previously considered by the Division." In Re: CDPS Permit No. C0-0035394, U.S. Energy Corporation, Lucky Jack Project, Order Regarding Respondents' Motion For Determination Of Law And Motion In Limine (Amended), Case No. WQ 2008-0003, at 7 (May 21, 2009) (emphasis in original).

To the extent that the public comment period is extended or re-opened pursuant to the Commission's revisions to section 61.5 , the applicant or other person may identify additional issues that are reasonably ascertainable in the extended and/or reopened public comment period.

E. ADDITIONAL OPPORTUNITIES FOR PUBLIC COMMENT - SECTION 61.5(2)

The Commission amended section 61.5 to include a number of new opportunities for public comment in certain circumstances.

Section 61.5 : The Commission added new section 61.5 to reflect the Division's current practice of extending the public comment period when needed. Section 61.5 is modeled after EPA's language at 40 C.F.R. § 124.13, providing that the Division shall grant an extension of the public comment period to the extent that the commenter who requests additional time demonstrates the need for such time. The Division has discretion to determine whether the requester has demonstrated the need for an extended comment period. In exercising its discretion to extend the comment period, the Division may consider whether the public has received a meaningful opportunity to review and comment on a draft permit, and should balance the public's desire for an extended review period against other factors, such as the Division's obligation to timely issue or deny a permit application and the potential harm from delay in permit issuance or denial.

Section 61.5(2)(d)(i)(B): The Commission added new section 61.5 to allow the Division to establish a responsive public comment period, when needed, in which any person may file a written response to the material filed by any other person during the comment period. As part of this process, the Division will continue to endeavor to make any comments received on a draft permit available to the permittee and the public as soon as possible. In order to receive electronic copies of comments filed on a draft permit shortly after they are filed, commenters should submit a request for notification of any such comments when the commenter submits its initial comments on the draft permit or contact the Division to request copies of public comments immediately after the close of the public comment period.

Under this subsection, the Division has discretion to grant or deny any request for a responsive comment period.

The total time elapsed for a request for responsive comment period, and the Division's response to that request in subsections (I) and (II), should generally not exceed fifteen (15) calendar days. The Division will inform interested persons who filed initial public comments of the responsive comment period, and will also post the responsive comment period schedule on its website.

Nothing in these provisions shall be interpreted to preclude an interested person who has not filed public comments during the initial public comment period from requesting a responsive comment period.

Further, allegations by any interested person that the Division has erred by failing to grant a responsive comment period must be raised no more than forty-five days after the close of public notice. This requirement encourages interested persons to identify any issues related to the responsive comment period prior to issuance of the final permit

Section 61.5(2)(d)(i)(C): The Commission added new section 61.5 to allow the Division to reopen the public comment period to accept additional public comments before the final permit is issued. The language is modeled after EPA's language. The intent of the new section is to promote cooperation between the Division and permit applicant (and other interested persons) where the reopening of the public comment period may expedite the decision-making process. The Commission intends that the Division will, to the extent practicable, work with the permit applicant (and other interested persons, as applicable) prior to reopening the public comment period regarding the issues that the parties hope to resolve through the additional public comment process. In considering whether to reopen the comment period, the Division should also consider the benefits and implications of an additional public comment period, such as whether the delay of final permit issuance associated with reopening the public comment period could conserve applicants' and/or the Division's resources by ensuring that the final permit is accurate and appropriate, or whether the reopened public comment period could otherwise expedite the decision-making process. In exercising its discretion to reopen the comment period, the Division may consider whether the public has received a meaningful opportunity to review and comment on a draft permit, and should balance the public's desire for a reopened review period against other factors, such as the Division's obligation to timely issue or deny a permit application and the potential harm from delay in permit issuance or denial.

The Division will ensure that comments and/or requests received during the public comment period(s) are made available to the permit applicant and interested persons in a timely fashion.

F. STATUTORY AGRICULTURAL WASTE EXEMPTION - SECTION 61.14

The Commission amended section 61.14 to include an exemption from groundwater discharge permit requirements for the land application of discharges consisting entirely of animal or agricultural waste when the land application takes place on land areas under the control of that farm, ranch, floricultural, or horticultural operation. The Commission amended section 61.14 to be consistent with section 25-8-504(2)(a), C.R.S.