CCR Template

DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Water Quality Control Commission

REGULATION NO. 61 - COLORADO DISCHARGE PERMIT SYSTEM

5 CCR 1002-61

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61.1(2) INCORPORATION BY REFERENCE

Throughout these regulations, standards and requirements promulgated by the U.S. Environmental Protection Agency have been adopted and incorporated by reference. The federal references cited herein include only those versions that were in effect as of October 9, 2018, and not later amendments to the incorporated material.

All material incorporated by reference is available at no cost in the online edition of the Code of Federal Regulations (CFR) hosted by the U.S. Government Printing Office. Requests for public inspection of materials incorporated by reference in this regulation should be made to the Permits Section, Water Quality Control Division, at the Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530.

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61.2 DEFINITIONS

NOTE: Several terms used in this regulation that are not defined below are defined in the Colorado Water Quality Control Act, 25-8-103, C.R.S.

(1) “ACT” means the Colorado Water Quality Control Act as from time to time amended, section 25-8-101 et seq., C.R.S.

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61.3(2) APPLICABILITY - STORMWATER

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(f) Stormwater Discharges for which a Permit is Required - Phase II. The following discharges composed entirely of stormwater are required to be covered under a permit.

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(h) Discharges composed entirely of stormwater are conditionally excluded from stormwater permitting by way of not meeting the definition of “stormwater discharges associated with industrial activity” if there is “no exposure” of industrial materials and/or activities to precipitation, snowmelt and/or runoff, and the discharger satisfies the conditions in paragraphs (h)(i) through (h)(iv) of this section. “No exposure” means that all industrial materials and activities are protected by a storm resistant shelter to prevent exposure to precipitation, snowmelt, and/or runoff. Industrial materials or activities include, but are not limited to, material handling equipment or activities, industrial machinery, raw materials, intermediate products, by-products, final products, or waste products. Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product or waste product.

(i) To qualify for this exclusion, the discharger must:

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

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(iv) Certification. The no exposure certification requires the submission of the following information, at a minimum, to aid the Division in determining if the facility qualifies for the no exposure exclusion:

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(D) All “no exposure” certifications must include the following certification statement, and be signed in accordance with the signatory requirements of section 61.4(1)(e): “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.”

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61.4(1) APPLICATION REQUIREMENTS - GENERALLY

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(h) Any person signing a document under section 61.4 shall make the following certification:

“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 gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

(i) By January 1, 2020, all permit applications for certifications under a general permit must be submitted electronically using the Division’s online system, unless otherwise directed by the Division.

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(k) The Division may request such additional information as is reasonably necessary in order for it to evaluate the discharge, including but not limited to the following:

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(ix) Any currently available information regarding the impact from surface waters, to which the treatment facility discharges, on aquifers which may be recharged by such surface waters.

(x) Any quantitative information that is required to be submitted as part of the permit application, or are submitted in response to a Division request for additional information, must be collected in accordance with sufficiently sensitive analytical methods defined by 40 C.F.R. 122.21(e)(3). An applicant who wishes to submit information to the Division that was collected with methods other than the sufficiently sensitive analytical methods that were applicable at the time of collection must notify the Division of the alternative methodology used.

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61.4(2) APPLICATION REQUIREMENTS - EXISTING MANUFACTURING, COMMERCIAL, MINING, AND SILVICULTURE DISCHARGES

Existing manufacturing, commercial, mining, and silviculture discharges applying for permits, except for those facilities which discharge only non-process wastewater, shall provide the following information to the Division, using the application forms provided by the Division.

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(h) When quantitative data for a pollutant are required, the applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 C.F.R. Part 136. When no analytical method is approved the applicant may use any suitable method but must provide a description of the method.

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(vii) The Division may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snowmelt or rainfall), protocols for collecting samples under 40 C.F.R. Part 136, and additional time for submitting data on a case-by-case basis.

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61.4(4) APPLICATION REQUIREMENTS FOR, MANUFACTURING, COMMERCIAL MINING AND SILVICULTURAL FACILITIES WHICH DISCHARGE ONLY NON-PROCESS WASTEWATER

Except for stormwater discharges, all manufacturing, commercial, mining, and silvicultural dischargers applying for permits which discharge only non-process wastewater not regulated by an effluent limitations guideline or new source performance standard shall provide the following information to the Division, using application forms provided by the Division.

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(d) Effluent characteristics.

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(iii) If the applicant is a new discharger, the applicant must provide quantitative data in accordance with subsection (4) no later than two years after commencement of discharge. However, the applicant need not perform tests which have already been performed and reported under the discharge monitoring requirements of the applicant's permit.

(iv) The requirements of subsections (a) and (c) do not apply for pollutants present in a discharge solely as a result of their presence in intake water. However, an applicant must report such pollutants as present. Net credit may be provided for the presence of pollutants in intake water if the requirements are met.

(e) Flow. A description of the frequency of flow and duration of any seasonal or intermittent discharge (except for stormwater runoff, leaks, or spills).

(f) Treatment system. A brief description of any system used or to be used.

(g) Optional information. Any additional information the applicant wishes to be considered, such as influent data for the purpose of obtaining “net” credits pursuant to section 61.8(2)(d).

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61.4(6) APPLICATION REQUIREMENTS FOR NEW AND EXISTING POTWS

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(d) Each applicant required to perform whole effluent toxicity testing pursuant to paragraph (b) of this section must provide:

(i) Results of a minimum of four quarterly tests for a year, from the year preceding the permit application; or

(ii) Results from four tests performed at least annually in the four and one half year period prior to the application, provided the results show no appreciable toxicity using a safety factor determined by the permitting authority.

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61.5(2) PUBLIC NOTICE AND COMMENT - DRAFT PERMITS

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(d) Interested persons may submit written comments to the Division on the permit application and draft permit, and may request a public meeting pursuant to section 61.5(3). The period for public comment will typically close thirty (30) days from the date of notice of the permit application and the draft permit, unless extended in section 61.5(2)(d)(i) or if a public meeting is held on the permit application and draft permit. If a public meeting is held on the application and draft permit, the period for public comment shall close sixty (60) days from the date of notice for the draft permit.

(i) Discretionary public comment periods.

(A) Extension of comment period. A comment period longer than thirty (30) days may be necessary to give commenters a reasonable opportunity to comply with the requirements of sections 61.5 and 61.7. Additional time shall be granted to the extent that a commenter who requests additional time demonstrates the need for such time and the extension does not unreasonably delay permit issuance.

(B) Responsive comment period. The Division may also establish a responsive period of public comment in which any person may file a written response to the material filed by any other person during the comment period. A responsive comment period may be granted in addition to time granted pursuant to a request for public hearing under section 61.5(2)(d) and/or an extension of the public comment period pursuant to section 61.5(2)(d)(i)(A).

(I) A request for a responsive comment period must be made within ten (10) calendar days of the close of the public comment period.

(II) The Division must respond to a request for a responsive comment period within five (5) days of receipt of the request.

(III) The Division will establish a schedule of deadlines for filing responsive comments and rebuttal comments and will inform the person(s) requesting a responsive comment period and all previous commenters of this schedule when it grants the request.

(a) The responsive comment period schedule will establish a deadline to file responsive comments. Interested persons will have at least ten (10) days to file responsive comments.

(b) The responsive comment period schedule will establish a deadline to file rebuttal comments. Interested persons will have at least ten (10) days to file rebuttal comments immediately following the close of the deadline for responsive comments. Filing of rebuttal comments is optional.

(IV) Any allegation that the Division has erred in failing to grant a responsive comment period or in establishing the deadlines for the responsive comment period must be made in writing to the Division no more than forty-five (45) days after the close of the initial public comment period.

(C) Reopening of comment period. In some cases, the Division may reopen the public comment period for limited purposes to expedite the decision-making process. Comments filed during the reopened comment period shall be limited to the substantial new questions, issues, data, information, or arguments that caused the reopening. The public notice under section 61.5(2)(e) shall define the scope of the reopening. If the comment period is reopened, it will be for a minimum of thirty (30) days from the date of the notice of reopening. A commenter may request an extension of the reopened comment period, as necessary, pursuant to section 61.5(2)(d)(i)(A).

(ii) If any data information or arguments submitted during the public comment period, including information or arguments required under section 61.7(c), appear to identify substantial new questions or issues concerning a permit, the Division may take one or more of the below actions. Public notice of any of the below actions shall be issued under section 61.5(2)(e).

(A) Reopen or extend the comment period under section 61.5(2)(d) to give interested persons an opportunity to comment on the information or arguments submitted;

(B) Establish a responsive comment period pursuant to section 61.5(2)(d)(i)(B); and/or

(C) Prepare a new or revised draft permit, fact sheet, and/or water quality assessment under section 61.5(2)(b) and reopen the comment period under section 61.5(2)(d)(i)(C);

(e) Public Notice of every draft permit and, where applicable, of the Division's preliminary antidegradation determination pursuant to the Procedural Rules, Regulation No. 21, section 16, shall be transmitted to the applicant and circulated in a manner designed to inform interested and potentially interested persons of the proposed discharge and of the draft permit. Procedures for the circulation of public notice shall include at least the following:

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61.5(4) PUBLIC ACCESS TO INFORMATION

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(c) The Division shall provide facilities for the inspection of information relating to discharge permits and their applications and shall ensure to the best of its ability that State employees act on a request for such inspection promptly without undue requirements or restrictions.

(d) The Division shall either ensure that a machine or device for copying of papers and documents is available for a reasonable fee or otherwise provide for coordination with copying facilities or services such that the request for copies of non-confidential documents may be honored within a reasonable period of time.

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61.7 PERMIT ADJUDICATORY HEARINGS

(a) The applicant or any other person, affected or aggrieved by the Division's final determination, may demand an adjudicatory hearing within thirty (30) days of the issuance of the final permit determination.

(b) Such hearing shall be conducted pursuant to the requirements of sections 24-4-105 and 25-8-401, et seq, C.R.S.

(c) Only issues of law or fact identified by the applicant or other person during the public comment period (including any public hearing) or not reasonably ascertainable from the draft permit may be identified at the adjudicatory hearing. The request for hearing must include a demonstration that each issue being identified in the request for hearing was identified during the public comment period (including any public hearing). For each issue identified that was not identified previously, the request for hearing must include an explanation as to why such issues were not reasonably ascertainable during the public comment period. The permit will become effective in its entirety thirty (30) days after issuance, or on such later date as specified by the Division, unless a stay is granted in accordance with section 25-8-404(3) and (4) or section 25-8-406 of the Colorado Water Quality Control Act or the provisions of the State Administrative Procedures Act, whichever is applicable.

(d) The person requesting the adjudicatory hearing shall have the burden of proof in all hearings held pursuant to this section, except that the Division shall have the burden of proof under the following circumstances:

(i) Where the Division initiated the permit revocation or modification; and

(ii) Where the Division denies renewal of a permit or changes the terms of a renewed permit and that denial or change is not based either upon significant changes in the facts relevant to water quality considerations or upon changes in the applicable statutes or regulations.

(e) The Colorado Water Quality Control Act, the Procedural Rules for all proceedings before the Water Quality Control Commission and the Water Quality Control Division and the State Administrative Procedures Act shall be applicable to all hearings held pursuant to this section.

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61.8(2) DEFINITION OF EFFLUENT LIMITATIONS

Effluent limitations for each permit will, as a minimum, include the following effluent limitations and standards. Effluent limitations for land disposal systems shall, as a minimum, meet the applicable provisions of the "Regulations for Effluent Limitations” (Regulation 62, 5 CCR 1002-62) except that the limitation for residual chlorine at section 4(d) shall not apply.

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(iii) Where the discharge contains a pollutant for which the receiving waters are impaired and a TMDL is required, a permit may be extended with the permittee’s concurrence based on the imminent completion of the TMDL and/or other factors deemed relevant by the Division. If, in the Division’s judgment, an extension is not appropriate, a renewal permit may be issued that allows the discharge to continue at a level up to the existing permitted point source load. Where the Commission has adopted a temporary modification for a parameter for which the segment receiving the discharge is impaired, effluent limits shall be set in accordance with the provisions of Regulation No. 31.

Within a reasonable time of EPA’s approval of the TMDL, the Division shall reopen or reissue the permit and incorporate effluent limits consistent with the wasteload allocation established under the TMDL. Where necessary, the Division shall also include interim limits and a schedule of compliance to attain such limits.

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(l) The “Colorado River Salinity Standards” state that “the objective for discharges shall be a no-salt return policy whenever practicable.” This is the policy that shall be followed in issuing CDPS permits for all new discharges, and upon reissuance of permits for all existing discharges. All CDPS permits for discharges to surface waters within the Colorado River Basin shall contain limitations and monitoring conditions consistent with those specified below.

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(v) Discharge of Once-Through Non-Contact Cooling Water

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(B) Permits shall be authorized for discharges of water that has been used for once-through non-contact cooling purposes based upon a finding that the returned water does not contribute to the loading of salts or the concentration of salts in the waters of the receiving stream in excess of a de minimis amount.

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61.8(4) MONITORING, RECORDING AND REPORTING

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(d) All permits shall specify required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring. Monitoring results required by the permit shall be reported on a discharge monitoring report (DMR) or other forms provided or specified by the Division. DMRs shall be submitted electronically using the eDMR system unless a waiver from eDMR reporting requirements is granted by the Division. The Division may also require that additional information be submitted electronically, but must identify an available method for submission of such information and where feasible, minimize duplicate reporting. The term “eDMR” refers to an electronic DMR submitted using the netDMR system maintained by EPA, or its successor.

(i) Permanent waivers. Permanent waivers will only be granted by the Division if the permittee submits a written request demonstrating that it does not have access to electronic reporting because it is a member of a religious community that chooses not to use certain modern technologies associated with electronic reporting.

(ii) Temporary waivers. Temporary electronic reporting waivers will be granted at the discretion of the Division upon request of the permittee. The Division’s approval or denial of the request for temporary waiver will be provided in writing within ten days and based on the information provided in the application. A waiver granted by the Division that extends beyond the length of the original permit term will remain in effect through the administrative extension of a permit, but not longer than five years. The Division may in its discretion grant additional temporary electronic reporting waivers for the same permit, but each waiver may not exceed five years in length.

(iii) Episodic waivers. Episodic waivers from electronic reporting for sixty days or less may be granted by the Division at the Division’s discretion for emergencies, situations beyond the permittee’s control, and system outages. If the delay is due to a system outage or a situation internal to the Division that lasts a week or more, late reporting violations will be waived for DMRs submitted electronically within one week of resumption of normal system operation for the missed DMR(s) that were due during the outage. Notification of the episodic waiver will be posted on the Division’s website. The permittee may use the DMR forms provided by the Division at the issuance of their permit to submit the DMR(s) due during the outage. If the delay is due to an emergency or other situation beyond the control of the permittee, the permittee shall submit a request for an episodic waiver.

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(h) Any records of monitoring activities and results shall include for all samples:

(i) The date, type, exact place, and time of sampling or measurements;

(ii) The individual(s) who performed the sampling or measurements;

(iii) The date(s) analyses were performed;

(iv) The individual(s) who performed the analyses;

(v) The analytical techniques or methods used; and

(vi) The results of such analyses.

(i) All sampling shall be performed by the permittee according to sufficiently sensitive test procedures required by 40 C.F.R. 122.44(i)(1)(iv); or methods approved by the Division, in the absence of a method specified in or approved pursuant to 40 C.F.R. Part 136.

(j) The permittee shall retain for a minimum of three (3) years records of all monitoring information, including all original strip chart recordings for continuous monitoring instrumentation, all calibration and maintenance records copies of all reports required by this permit and records of all data used to complete the application for this permit. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee or when requested by the Division or Regional Administrator.

(k) For all permittees monitoring, recording, and reporting requirements of discharges under the permit shall be as specified by the Division. Reporting shall be as frequent as the Division shall reasonably determine to be necessary.

(l) All reports required by permits and any other report or information submitted to the Division shall be signed and certified in accordance with the signature and certification requirements set forth in section 61.4(1). Falsification and tampering of information may result in criminal liability pursuant to section 25-8-610 C.R.S.

(m) Reporting by municipal separate storm sewer systems. The operator of a large or medium municipal separate storm sewer system or a municipal separate storm sewer that has been designated by the Division under 61.3(2)(e)(vii) must submit an annual report by the anniversary of the date of the issuance of the permit for such system. The report shall include:

(i) The status of implementing the components of the stormwater management program that are established as permit conditions;

(ii) Proposed changes to the stormwater management programs that are established as permit condition. Such proposed changes shall be consistent with 61.4(3)(c)(ii)(D);

(iii) Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit application under 61.4(3)(c)(ii)(E) and (F);

(iv) A summary of data, including monitoring data, that is accumulated throughout the reporting year;

(v) Annual expenditures and budget for year following each annual report;

(vi) A summary describing the number and nature of enforcement actions, inspections, and public education programs; and

(vii) Identification of water quality improvements or degradation.

(n) Reporting for stormwater discharges associated with industrial activity.

(i) Requirements to report monitoring results for stormwater discharges associated with industrial activity that are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge but in no case less than once a year.

(ii) Requirements to report monitoring results for stormwater discharges associated with industrial activity (other than those addressed in 61.8(4)(o)(i)) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge may require:

(A) The discharger to conduct an annual inspection of the facility site to identify areas contributing to a stormwater discharge associated with industrial activity and evaluate whether measures to reduce pollutant loadings identified in a stormwater pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;

(B) The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of non-compliance;

(D) Permits for stormwater discharges associated with industrial activity from inactive mining operations may, where annual inspections are impracticable, require certification once every three years by a Registered Professional Engineer that the facility is in compliance with the permit, or alternative requirements.

(o) Permits shall require that the permittee report all instances of noncompliance at least annually.

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61.8(8) PERMIT MODIFICATION, SUSPENSION, REVOCATION AND REISSUANCE AND TERMINATION

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(f) Upon consent by the permittee, the Division may make minor permit modifications without following the requirements of sections 61.5(2), 61.5(3), 61.7 and 61.15 of these regulations. Minor modifications to permits are limited to:

(i) Correcting typographical errors; or

(ii) Increasing the frequency of monitoring or reporting by the permittee; or

(iii) Changing a date for a special study or an interim date in a schedule of compliance, provided the new date of compliance is not more than 120 days after the date specific in the existing permit and does not interfere with attainment of the final compliance date requirement; or

(iv) Allowing for a transfer in ownership or operational control of a facility where the Division determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage and liability between the current and new permittees has been submitted to the Division; or

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(j) If cause does not exist under this section, the Division shall not modify, terminate or revoke and reissue the permit.

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61.9(1) TEMPORARY AND EXTENDED PERMITS

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(e) If an existing permit is extended or a temporary permit issued pursuant to section 25-8-502 (a)(l) or 24-4-104 C.R.S., the temporary or extended permit shall be noticed in accordance with section 25-8-502, C.R.S., and section 61.5(2) of these regulations.

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61.14(1) APPLICABILITY

(a) Pursuant to this section a permit shall be required for all land application discharges and for all discharges from impoundments unless:

(i) The discharge is exempted under section 61.14(1)(b);

(ii) The discharge is subject to the jurisdiction of one of the implementing agencies described in 61.14(2);

(iii) The impoundment has received a waiver from the Division pursuant to section 61.14(9)(a); or

(iv) The owner of a land application system can demonstrate that:

(A) The design and operation of the system will result in complete evapotranspiration of the effluent;

(B) There is adequate storage provided for the effluent during periods of inclement weather or where the ground has been frozen unless the provisions of (A) above, can be met during the entire year; and;

(C) Any augmentation plan or substitute supply plan for the land application site does not provide a credit for return of the effluent to ground water.

(v) Land application of reclaimed water is occurring under the provisions of a notice of authorization issued pursuant to Regulation 84, including any return flow.

(vi) The discharge consists entirely of animal or agricultural waste on farms, ranches, floricultural, or horticultural operations and is exempted from permitting under section 25-8-504(2)(a), C.R.S.

(b) The following facilities are specifically exempted from coverage under the ground water discharge provisions of this regulation:

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61.18 - 61.20 Reserved

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

The provisions of 25-8-202(1)(d) and (2), 25-8-401, 25-8-501, 25-8-501.1, and 25-8-502, C.R.S., provide the specific statutory authority for the amendments to this regulation adopted by the Water Quality Control Commission (Commission). The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following statement of basis and purpose.

BASIS AND PURPOSE

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(i)(1)(iv) 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(1)(k) outlines the general Colorado Discharge Permit System (CDPS) application requirements for permittees. The Commission added a new subsection, section 61.4(1)(k)(x), 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(3), and monitoring requirements are outlined in section 61.8(4). The Commission clarified language in subsection 61.4(1)(k) 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(4)(d) 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(4)(d) 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(4)(d) 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(1). The Commission added language to new section 61.4(1)(i) 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(c) 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(c), 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(2), 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(2)(d) to include a number of new opportunities for public comment in certain circumstances.

Section 61.5(2)(d)(i)(A): The Commission added new section 61.5(2)(d)(i)(A) to reflect the Division’s current practice of extending the public comment period when needed. Section 61.5(2)(d)(i)(A) 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(2)(d)(i)(B) 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(2)(d)(i)(C) 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.