How Permittees Can Address Concerns with Discharge Permits

CDPHE Water Quality Control Division

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Initially presented at April 16, 2020 Permits Webinar, updated over time

Common Concerns Raised by Permittees

1. I have a new or more stringent limit and need more time to come into compliance
2. I disagree with the standards or use classifications on which the permit limits are based
3. I can’t meet the WQBEL but I’m not objecting to the standard or classification
4. I can’t meet my anti-degradation limits
5. My permit has MISTAKES!
6. There is new information that should lead to changes in the permit

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Concern 1: I have a new or more stringent limit and need more time to comply

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Potential Solution: Request a modification to extend your compliance schedules

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First step - consider whether the permit really needs a change

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• Does the permit already include any kind of information that would address your concern? Examples:
• PQL policy and treatment of reporting below detection limit
• Adverse weather exemptions for inspections
• Alternative limits for ELGs
• Opportunities to reduce monitoring frequency under WQP-20
• Is the requirement ambiguous?
• If so, call the Division!

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Common Steps Permittees Take to Meet Permit Limits

• Source investigation and control
• Fixing I/I
• can solve a number of problems, including if your groundwater has high levels of a pollutant
• Moving outfalls
• Moving to reuse or evaporation ponds
• Reducing effluent flow
• Enhancing/optimizing current treatment
• lagoon examples: removing biosolids; improving aeration and mixing; installing baffles to reduce short-circuiting; increasing temperature in the winter with a thermal cover
• Using background levels for groundwater permittees
• for TDS and other non-human health parameters
• New treatment

Note these steps may require site approval, design review and/or permit modifications

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Standard for Compliance Schedules

• Must show extra time is:
• necessary
• appropriate, and
• will achieve compliance with the underlying water quality based effluent limit as soon as possible
• Must include adequate evidence to support your request
• Not available for
• tech-based limits like TSS and BOD
• federal ELGs
• entirely new discharges
• deadlines that have passed

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Examples of Evidence Supporting a Compliance Schedule Extension

• More time needed for specific planning steps and activities
• Be specific, what was done and what couldn’t be done and why under the previous schedule. Exactly how much more time needed and why. Lay out steps.
• More time needed for construction
• For example, contractor or weather delays
• CANNOT use
• Time to request a regulatory or political change

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Mechanics of compliance schedule extensions

Individual permits

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• Submit a request for a permit modification at least 6 months before the deadline
• Permits can NOT modify deadlines that have already passed
• Permits can NOT modify compliance schedule when a permit is administratively continued

Certifications under general permits

• Submit a request for a permit modification at least 90 days before the deadline
• Permits can NOT modify deadlines that have already passed
• Permits CAN modify compliance schedules when the general permit is administratively continued

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Concern 2: I disagree with the standards or use classifications on which the permit limits are based

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Potential Solution: Go to the Water Quality Control Commission

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Permits cannot change or ignore

standards or classifications

• The Water Quality Control Commission is the only one to set water quality standards & classifications
• Division responsibility is to issue permits that ensure compliance with the commission’s standards & classifications
• This doesn’t change, even with litigation
• BUT if the Commission changes the standard or classification, the division may be able to modify your permit

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Concern 3: I can’t meet the WQBEL but I’m not objecting to the standard or use classification

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Potential Solutions: Look at your discharge flows and variances

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In many cases, lower discharge flow limits → higher WQBELs

• Ways to lower actual flows
• fix infiltration and inflow (i/i)
• operational changes
• water conservation
• Ways to lower permit flow limits
• Industrial & dewatering permittees
• you can request any reasonable annual flow

limit you can meet

• Domestic permittees
• 2 seasonal design capacities may be possible
• would require site approval
• 2 seasonal flow tiers may be possible
• requires a large seasonal flux in population
• Derate if actual flows are consistently much lower
• also requires site approval

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Exceptions

• zero-low flow streams
• streams exceeding the standard (303(d)) or where there is no assimilative capacity
• groundwater permittees
• streams with threatened or endangered species

DSVs and Reg. 61.12 Variances

Discharger Specific Variances

• For federally-approved water quality standards for surface water
• Meeting the WQBEL is economically, technologically or environmnetally infeasible.
• For example, the treatment necessary to meet the WQBEL is unaffordable for the permittee.
• Must be approved by the Commission
• Contact: Barbara Bennett, barbara.bennett@state.co.us

Groundwater and Control Regulation Variances under Reg. 61.12

• When benefits derived from meeting the limitation do not bear a reasonable relationship to the economic, environmental, and energy impacts from meeting the limitation and existing beneficial uses will be protected
• Decision initially made through a permit, subject to veto by Commission
• Has been done for TDS groundwater

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Concern 4: I can’t meet my anti-degradation limits

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Potential Solutions:

• Look at effluent flow (see slide 13)
• Look at how you monitor
• Look at whether you qualify for an Antidegradation Alternatives Analysis

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Monitoring and Antidegradation Limits

Antidegradation limits (except for NILs) can allow for more flexibility in monitoring than other limits

• Limits are calculated as the two year rolling average, no limits on # samples taken
• For new ADBAC limits, 2 years to collect samples before reporting

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Antidegradation Alternatives (AA) Analysis

• The Water Quality Control Commission has determined that certain waters are high quality and should be protected from additional degradation - “reviewable waters.”
• Permits includes specific limits to protect these reviewable waters - AD limits
• An Antidegradation Analysis may allow for degradation by including more lenient, alternative limits
• The division’s authority to approve Antidegradation AAs is narrow and must meet the criteria in Regulation 31.8.

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Antidegradation Alternatives Analysis cont.

• Allows WQCD to approve alternative AD limits IF:

1) the proposed regulated activity is important to economic or social development; and

2) the degradation that would result from such regulated activity is necessary to accommodate that development. It is necessary IF there are no pollution control alternatives that:

(A) would result in no degradation or less degradation of the state waters; and

(B) are determined to be economically, environmentally, and technologically reasonable.

• The alternative limit can be no higher than the WQBEL, and is usually set between the ADBAC and the WQBEL

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Example: Antidegradation Alternative Analysis for Cu

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• A permit limit more lenient than the ADBAC

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• Permittee proposes an AA based on evaluation criteria in Reg. 31.8(3)(d)

Antidegradation Alternatives Analysis cont.

• AAs are not common
• Are subject to public comment and approval by the Clean Water Program Manager
• Requires detailed analysis of all alternatives, including source control, improving I/I, operational changes, dilution, and treatment
• Examples are available on the website

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Concern 5: My permit has MISTAKES!

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Potential Solution: Let the division know ASAP

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Examples of Mistakes

• Calculation errors
• Not using the most updated TVS formula in the basin regulation
• Error in selecting the implicit NIL
• Typos (mislabeling outfalls, stream segment numbering, CS dates, ICIS code, etc)
• Inadvertently mischaracterizing wastewater contributions into an outfall (industrial)
• Monitoring frequency/type

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How the Division Fixes Permit Mistakes

• Draft permits - include a description of the mistake in your public comments so it can be fixed in the final permit
• Final permits and certs - contact the division ASAP
• Talk to the permit writer and make sure it is a mistake
• Sometimes the permit and fact sheet are not clear
• Some mistakes can be fixed through minor permit modifications
• Division-initiated but we will ask for your consent
• No public notice or fees
• Quick turn-around
• Bigger issues may require a public notice modification
• These can be division-initiated as well
• There may be other ways to address these mistakes as well - email us

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Concern 6: There is new information that should lead to changes in the permit

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Potential Solution: Submit a Request for a Permit Modification Based on New Information

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Permit Modifications Based on New Information

1. Standard
• Information that was not available at the time of permit issuance which would have justified the application of different permit conditions at the time of issuance.
• Material and substantial alterations or additions to the facility or activity which occurred after permit issuance which justify the application of different permit conditions
• Not available if your individual permit has been administratively continued
2. Examples
1. My facility has expanded and I need to add another outfall/area
2. A standard or temporary mod on the segment changed due to a WQCC hearing
3. My facility outfall flows have decreased or will increase
4. I need to add a new chemical
5. I have new representative monitoring data that the division should consider
6. I have new influent or source data (e.g. mine pool data) to indicate a parameter in my permit is not a pollutant of concern

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TIMING!!!!

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Timing for Raising Issues:

The Earlier the Better

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• During the permitting process
• Work with your permit writer, submit any and all new information not on the permit application

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• Public comment period
• If you have questions or something isn’t clear contact your permit writer

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• After issuance, contact the division ASAP

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Timing for Modifications

• Minor mods/typos - usually within a month
• Compliance schedule extensions - need 6 months before deadline to account for the public notice comment period
• More complex permit modifications may take more time

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Timing for Commission Issues

• Depends on many factors, ranges from 9 months to several years.
• First step - calling or meeting with the division’s Water Quality Standards Unit
• Staff can help identify whether a temp mod, DSV or other standards action would be the best solution and estimate the time required.
• Contact - Blake Beyea blake.beyea@state.co.us

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Who to Contact

Permitting Questions

• Contact your permit writer first if the permit is currently assigned
• Spreadsheet of Permit Contacts

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Questions about Compliance with Permits

• Contact Compliance, Enforcement or Field Services
• https://www.colorado.gov/pacific/cdphe/water-quality-control-division-contacts

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