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COLORADO DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT -Water Quality Comrol Division Rationale -Page 10 Permit No. COR-040000 V!/. CHANGES AFTER PUBL/C NOT/CE (corn.) party groups while performing whatever cleanup they can, but that once the specific task is done, the group should be absolvtd from responsit~iliry at the site. Response: The Division supports watershed groups in their efforts to effect positive clutnge in their areas. However, the limitations in the Federal Clean Water Act (CWA), including the requirements for National Pollution Discharge Elimination System (NPDES) permits, severely restrict the Division's latitude in addressing these concerns through the Stormwater Program. With the promulgation of the stormwater rules in 1990, mine sites including active, inactive, abandoned, historic or otherwise come under the auspices of NPDES and all its attendam regulations. This body of regulations nor only requires pemdts for stormwater discharges from these sires, but asp specifies much of the comem and administration of those permits. Such things as definitions of terms, who is able to hold a permit, what types of discharges are allowed, general termination restrictions, and how liability is assigned, are codified irs regulation and 25 years of legal precedence. There is rw differentiation made in the CWA between different kinds of permittees. Until the federal-Congress addresses such issues as 'Good Samaritan release of liability", third-parry volumary cleanup will be an un protected proposition, It is not possible for the Division to resolve these over-arching nation- wide issues in this general permit. Currently, the Division uses "enfirreement discretion" to prioritize Division decisions regarding where to use its resources and to pursue action to require a permit. In sues where water quality impacts are less severe the priorities generally are low. This does not change the fact that permits awe required; they just are not pursued by the Division. However, "enforcement disoetion" is not a guarantee, and does not protect an owner or operator from citizen law suits or changes in Division priorities. Reeardirse the legal status of watershed erouas as permittees: Third party groups are unincorporated, voluntary collections of people assembled for a common goal. As such they do not meet the legal requirements regarding who can apply for and hold a•permit. The NPDES regulations (40 CFR 122.21 (a)) are quite specific about the level of responsibility of the person who is able to sign the doatmerus required for application and implementation cf a permit. Two commemors suggested Char the State of Colorado (the State) hold the permit. Currently, the State holds NPDES permits for activities as diverse at fish hatcheries, prison wastewater treatment plants and state highway construction projects. There is rso administrative reason that this would not be possible. However, the regulations require that the entity holding the permit be the one that is in responsible charge of the facility or activity. This is probably not the case for remediation activities undertaken by third ponies. This permit has beers revised ro uccommodate projects completed under the Voluntary Cleanup and Redevelopment Act, CRS 25-76-303. One of the requiremerus of this act is that the property owner make application. (Work ors any site cannot be performed without properly owner approval, but work may be -.: completed by a third party.) 7Tt~e Division believes that watershed groups can play a critical role to complete work while the property owner applies for and holds the permits. Reeardine a watershed approach to stormwater nermittine: This general, statewide permit does not preclude the issuance of a special permit that addresses stormwater discharges in one geographic area. This would come under the category of "individual permits" and would be written to address the needs and concerns of that one specfic area. It could allow for prioritization of sources and comrols, as long as wafer quality standards were protected. The problems of permit termination and who would hold such a permit, however, would not be solved through this avenue. Reeardine termination of permit covera¢e (and liability) once the third porn action is taken: Currem regulations require that all discharges of stormwater from mining sites that have come imp contact wi[h airy overburden, raw material, intermediate products, byproducts, finished products or waste products, (stormwater discharges associate-d with mining activity) must be authorized by a permit. That permi[ is required to be held by the owner or operator of the sire. A third party or an individual which "operates" a cleanup project, could be required (either by Division action, EPA action or citizen suit) to obtain a permit to authorize discharges from the site. When the action is completed at the site by that third parry, but