2005-12-02_PERMIT FILE - C1981019

Home Browse Search

COLORADG~ DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT -Water Quality Comrol Division Rationale -Page 10 Permit No. COR-040000 VII. CHANGES AFTER PUBLIC NOTICE (com.) ~ parry groups while performing whatever cleanup they can, but that once the speciftc task is done, the group. should be absolved from responsibility at the site. - ~ i Resoonse: The Division supports watershed groups in their efforts to effect positive change in their areas. However, the limitations in the Federal Clean Water Ad (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 came under the auspices of NPDES and all its' attendant regulations. This body of regulations not only requires permits for stormwarer discharges from these sires, bur also specifies much of the content and administration of those permits. Such things as definirions of terms, who is able to hold a permit, what typo of discharges are allowed, general ttrmiruttion restrictions, 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 pesmittees: Until the federal Congress addresses such issues as "Good Samaritan release of liability', [bird parry voluntary cleanup will be art unprotected proposition. /t is not possible for the Division to resolve these over-arching nation- wide issues in this general permit. Currently, the Division uses "enforcement disoetion' 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 nor a guarantee, and does nor protect an owner or operator from citizen law suits or changes in Division priorities. Reeardine the leeal status of watershed croups as permittees: Third parry groups are unincorporated, voluntary collections of people assembled for a common goal. As sorb they do not meet the legal requirements regarding who can apply for and hold a permit. The NPDES regulations (40 CFR 112.21 (a) are quite specific about the Level of responsibility of the person who is able to sign the documems required for application and implementation of a permit. Two commenton 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 permitibe the one that is in responsible charge of the facility or activity. This is probably not the case for remediarion activities undertaken by third parries. ~ This permit has bee`}i revised to accommodate projects completed under the Voluntary Cleanup and Redevelopment Act, CRS 25-16-303. One of the requirements of this 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. i Reeardine a watershed annroach to stormwarer oermiltine: This general, statewide permit does not preclude the issuance of a special permit that addresses stormwarer discharges in one geographic area. ~ Ibis would come under the category of "individual permits" and would be written ro address the needs and concerns of that one specific.area. It could allow for prioritization of sources and controls, at long as water quality standards were protected. The problems of permit termination and who would hold surJt a permit, however, would not be solved through this avenue. Reeardin¢ termination of oerntil eoveraee (and liability) once the third Harty action rs taken: 'Current regulations require that al[ discharges of stormwarer from mining sites that have come into contact with any overburden, raw material, imermediate products, byproducts, ftnished products or waste products, • (stormwarer discharges associated with mining activity) must be authorized !ry a permit. That permit is required to be held by the owner or operator of the site. A third parry or an individual which "operates" a cleanup project, could be required (either by Division anion, 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