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COLORADO DEPARTMENT OF PUBLIC HEALTH & ENV/RONMENT -Water Quality Control Division Rationale -Page IO Permit No. COR-LW0000 VII. CHANGES AFTER PUBLIC NOTICE (corst.) party groups while performing whatever cleanup they can, but that once the speciftc task is done, the group should be absolved from responsibility at the sire. Response: The Division supports watershed groups in their efforts to effect positive change 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 stormwarer Program. With the promulgation of the stormwarer rules in 1990, mine sites including active, inactive, abandoned, historic or otherwise come under the auspices of NPDES and all its attendant regulations. This body of regulations not only requires permits for stormwarer discharges fiam these sires, but also speciftes much of the content 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 restrictiorss, and how liability is assigned, are codified in regulation and 25 years of legal precedence. There is no differentiation made in the CWA between different kinds of permittees. Until the federal Congress addresses such issues as "Good Samaritan release of liability", third party voluntary cleanup will be an unprotected proposition. It is not possible far the Division to resolve these over-arching nation- wide issues in this general permit. Currently, the Division rues "enforcement discretion" to prioritize Division decisions regarding where to use its resources and to pursue action to require a permit. In cases where water quality impacts are less severe the priorities generally are low. This does not change the fact that permits are required; they just are not pursued by the Division. However, "enforcement discretion" is not a guarantee, and does not protect an owner or operator from citizen law suits or changes in Division priorities. Regarding the le¢al status of watershed ¢rouos as oermittees: Third party groups are unincorporated, voluntary collections of people assembled jot a common goal. As such they do not meet the legal requirements regarding who can apply jot 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 documents required for application and implementation of a permit. Two contmemors suggested that 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 no 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 parties. This permit has been revised to accommodate projects completed under the Voluntary Cleanup and Redevelopment Act, CRS 25-16-303. One of the requirements ojthis act is that the property owner make application. (Work on any site cannot be performed without property owner approval, but work may be completed by a third parry.) The Division believes that watershed groups can play a critical role to complete work while the property owner applies for and holds the permits. Re¢ardine a watershed anoroach to stormwarer oermittine: This general, statewide permit does not preclude the issuarsce of a special permit that addresses stormwarer 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 specific area. It could allow jot prioritization of sources and controLt, as long as water quality standards were protected. The problems of permit termination and who would hold such a permit, however, would not be solved through this avenue. Re¢ardine termination o(permit coverage (and liability) once the [hint natty action is [aken; Current regulations require that all discharges of stormwarer from mining sites that have come into contact with any overburden, raw material, intermediate products, byproducts, finished products or waste products, (stormwarer discharges associated with mining activity) must be authorized by a permit. That permit is required to be held by the owner or operator of the site. A third-party or an individual which "operates" a cleanup project, could be required (either by Division actiors, 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