A Review of New Colorado Water and Air Pollution Legislation
| Jurisdiction | Colorado,United States |
| Citation | Vol. 2 No. 11 Pg. 1 |
| Pages | 1 |
| Publication year | 1973 |
1973, September, Pg. 1. A Review of New Colorado Water and Air Pollution Legislation
The 1973 General Assembly passed a number of environmental bills, some of which will have significant and sweeping impact in Colorado. This article discusses the major provisions of the new state environmental legislation, giving particular attention to those provisions which are of interest to Colorado lawyers.
The Colorado Water Quality Act (the Act)(fn1) was drafted and adopted with two goals in mind. The first was a desire to improve existing water pollution legislation.(fn2) The second was to comply with the requirements of the Federal Water Pollution Control Act Amendments of 1972 (the Federal Act).(fn3) Like the Federal Act enacted by Congress last year, the Colorado Act adds to and greatly improves earlier water pollution legislation. It mandates a comprehensive campaign to prevent, reduce and eliminate pollution of Colorado's waters, and applies to "any and all surface and subsurface waters which are contained in or flow in or through this state."(fn4)
The Act provides for a Water Quality Control Commission (the Commission), which is a continuation of the present Water Pollution Control Commission under a new name.(fn5) The Commission is the policy-making body concerning water quality within the state, and its powers to adopt control regulations are enlarged and strengthened under the new Act. However, its administrative and enforcement functions have been deleted and transferred to the Division of Administration of the Department of Health---a split patterned after the division of functions under the Colorado Air Pollution Control Act.(fn6)
The Commission is given the duty to classify state waters and promulgate water quality standards, control regulations and waste discharge permit regulations.(fn7) Control regulations must be issued to describe the following:
1) prohibitions, standards, concentrations, and effluent limitations on the extent of specifically identified pollutants which may be discharged into any specified class of waters (e.g., Biochemical Oxygen Demand);
2) pretreatment requirements, prohibitions, standards, concentrations, and effluent limitations on wastes which may be discharged into any specified class of state water from any specified type of facility, process, activity, or waste pile (e.g., best available treatment);
3) precautionary measures which must be taken by owners or operators of activities which cause or might cause pollution of any state waters to be in violation of control regulations, or cause the quality of any state waters to be in violation of an applicable water quality standard (e.g., construction standards for holding ponds).
Among other guidelines, the Colorado Act provides that in formulating control regulations the Commission must consider control requirements promulgated by agencies of the federal government.(fn9) Therefore, the effluent limitations contained in the Federal Act become relevant in the Commission's formulation of control regulations. Such effluent limitations require all dischargers, other than publicly owned treatment works, to achieve not later than July 1, 1977 effluent limitations which will require the application of the "best practicable control technology currently available."(fn10) At the same time, all publicly owned facilities must utilize "secondary treatment." If an industrial discharger sends its wastes through a publicly owned treatment works, certain "pretreatment standards" must be met. By July 1, 1983, industrial dischargers must meet effluent requirements which represent the "best available technology economically achievable." Further, by July 1, 1983, publicly owned facilities must meet effluent requirements which represent the application of the "best practicable waste treatment technology."
The Federal Act charges the Environmental Protection Agency (EPA) with the task of publishing regulations providing "guidelines" for effluent limitations for point sources no later than October 17, 1973.(fn11) These effluent limitations will require the application of the best practicable control technology currently available for the 1977 target date.
The EPA will identify three items in its regulations. First, it will interpret and give meaning to the terms "best practicable" and "best available" when applied to various categories of industries. In defining these terms for a particular category, it will take into account such factors as the age of the equipment and facilities involved, the process employed, the engineering aspects of the application of control techniques, process changes, and non-water quality environmental impact (including energy requirements).
In assessing "best practicable control," the EPA will make a balancing test between total cost and effluent reduction benefits. Cost is a factor in determining "best available," but the test is one of reasonableness. Having interpreted the terms "best practicable" and "best available," the EPA can then specify the effluent limitations to be implemented by July 1, 1977. Finally, the regulations will identify control measures and practices to eliminate the discharge of pollutants.
New factories and installations will be subject to national standards of performance.(fn12) The EPA has published a list of categories of industrial sources and will propose and publish regulations establishing federal standards of performance of new sources within such categories. The purpose of these standards is to assure that new sources of water pollution are designed, built, equipped and operated to minimize the discharge of pollutants. The standards will reflect the greatest degree of effluent reduction which the EPA determines to be achievable through application of the "best available demonstrated control technology," process, operating method, or other alternatives. Concurrent with promulgation of new performance standards, the EPA will set pretreatment standards for new point sources discharging into public treatment facilities.
The Division of Administration of the State Department of Health (Division) is charged with administration of the new Act and the water quality programs adopted thereunder by the Commission.(fn13) Its duties can be broadly categorized into administration of the discharge permit program, enforcement, and monitoring.
The Division must take such samples as may be necessary to enable it to determine the quality of the state waters.(fn14) Owners or operators of any activity discharging pollutants into state waters or any municipal sewage treatment works must establish and maintain records, make reports, install, calibrate, use and maintain monitoring methods and equipment, collect samples of discharges, and provide additional reasonably available information relating to discharges into public sewage treatment works.(fn15)
The Division has authority to enter and inspect any place for the purpose of investigating any actual, suspected or potential source of water pollution, or for the purpose of inspecting and copying records required to be kept concerning any effluent source.(fn16) If entry is denied, the Division may obtain a warrant authorizing the inspection. Any information obtained by the Division is public, unless it relates to secret processes, methods of manufacture, or sales information. Any person seeking to invoke the exception bears the burden of proving its applicability.
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