HomeMy WebLinkAbout1991 Resolution No. 033RESOWI'ICN NO. Jl.
SD!IES CE' 1991
A RESOW!'ICN OF THE CITI OF ENGIDalD, COLORADO SUPPORTING THE COLORl\DO
BICM:NI'IU\ING REJ;ULATICN AND lN a>POSITICN TO THE EPA I S INTERPREI'ATICN lN 40
C.F.R 122.44.
WHEREAS, the COloraoo Water Q.iality control camuss ion has prcmllgated a
regulation ocmronly knCMl as the "COloraoo Biaoonitoring Regulation" codified
at 5 CCR 1002-2 Section 6.9. 7; and
lfflERFAS, the Colorado Biaoonitoring Regulation provides for periodic
sanyling and testing for toxicity in the effluent of major wastewater
trea\:l!ent plants in the Sta te of COlorado, including the Lit t leton/Englewood
Bi -City Wastewater Treatnent Plant ; and
WHEREAS, the COlorado Biaooni toring Regulation is structured to encourage
a wastewater treatnent plant to pra,ptly investigate the nature and source of
effluent toxicity and to take all reasonable and possible rreasures to
eliminate the toxicity; and
\ol!ERFAS, the Envirallrental Pr:ltecti on }q!Jrlcy ("EPA") has prallllgated a
b iaronitoring regulation ( "Federal Biat0ni toring Regulati on") codified at 40
CFR 122.44 (d) and has interpreted that regulation as providing that failure
of any single biaronitoring ·~st will autcrnatically result in a discharge
permit violation; and
WHERF.AS, the Federal Clean Water Act currently provides a full array of
enforcement actions and penalties up to $25,000 per day of v iolation for
discharge permit violations; and
WHERF.AS, EPA's interpretation of the Federal Biaronitoring Regulati on
mphasi zes penaltie s on disc hargers r ather than investigation and rerredia t ion
of t oxici t y; and
WHEREAS, EPA has challenged the legali t y and validity of the COlo r aoo
Biaronitor ing Regulation and intends to conduct a hearing thereon .
NCM , THEREFORE , BE IT RESOLVED BY THE CITY CXXJNCIL CF '1l!E CI TI OF
Do.=, COUR!\DO, THAT:
Section l. The City COUncil of Englewood, COlorado supports the COlorado
Biaronitoring Regul a tion and believes it to be fully consistent with the
Federal Clean Water Act in that i t requires praipt and effective investigative
and remedial actions for effluent toxicity, while recognizing that a
discharger should not be subject to enforceirent action for effluent toxicity
which cannot be identified, traced, or eliminated by the wastewater treatn'ent .
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Section 2. The City of Englewood believes that EPA's interpretation of A
the Federal Biaronitoring Regulation i s unnecessarily and senselessly punit ive W'
t o the extent that EPA adopt s the position that failure of even a s ingle
biaronitoring test is an autanatic permit violation subjecting the discharger
t o the full array o f en forcement actions under the Federal Clean Water l\c:t
without regard to whether it i s possible to identify, trace, or eliminate the
source of the tox.ici ty.
AOOPJ'ED l\ND l\PPROVED this 15th day of l\pril, 1991.
Attest:
~-4 Susan Van e,
~~#~ PatrcaH. CrtM , City Clerk
I, Patricia H. CrCM, City Clerk for the City of Ebglewood, Colorado,
hereby certify the above is a true <:q1'/ of Resolution No • .;ii_, Series of 1991.
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COUNCIL COIOIIINICArION
DATE AGENDA Il'EM SUBJECT Support for
Colorado Biomonitor ing
ll f Regulation
INIT1"TED Br Bi-City supervisory Cofffllittee
STAFF SOURCE Stewart Fonda, Director of Bi-City WWTP
ISSUE/ACTION PROPOSED
The proposed action is to approve a resolution supporting the Colorado biomonitoring
regulation, which is being rejected by the U.S. Environmental Protection agency
(EPA).
PREVIOUS COUNCIL ACTION
None.
STAFF ANALYSIS
The existing biomonitoring regulation i n the state of Colorado requires approval by
the EPA as pa rt of the NPOES program in the state. The EPA has refused to approve
the state regulation because the ..::rlf orc ement approach taken by the regulation does
not confor m to EPA policy, even t h.Jugh the approach conforms to the Clean Water Act
prov is ions. Approving the resolution will show formal support for the Colorado
regulation.
B.11.CKGROllND
The Clean Water Act requires that tox icity be eliminated from wastewater discharges
to the nation's waters. To meet this requirement, the state o f Col orado developed
the current biomonitoring regu lation, which is part of the NPDES permit system. The
regulation was t he result of a cooperat ive effort on the part of the Water Quality
Cont.rel Commission and Division, and the major wastewater discharger s i n the state,
including the Bi-City WWTP.
T'ie regulation is called the biomonitoring regulation bflcause o f the test used to
find toxicity, called the biomonitoring test. Live organisms are used to determine
if toxicity is present in wastewater. The test r e sults are based on t he response of
the organisms (one of which is death) and only show if t oxic ity is present.
Extensive chemical testing i s required to determine the cause of the toxicity and
t h e program u nder which this is carried out is referred to as a Toxicity
Identification Evaluation and a Toxi c ity Reduct ion Evaluation.
The main thrust of th• regulation i ■ to eliminate toxicity in wastewater d iacha rges-
by clearly spelling out the •t•p• and procedure ■ need•d to be followed i n the event
toxicity i ■ found in a diacharge . The discharger ia required to follow these ateps
and procedure• in a timely manner and, if all goea well, the aource of the toxicity
will be found and eliminated. If the procedures are followed, but the source of
toxicity cannot be found, the diacharger ha ■ atill fulfilled i ts respons i bility . A
permit violation, subject to a fine of S25,000 per day, would occur if the
diacharger doe ■ not follow the required procedurea.
The EPA haa refused to approve the regulation because their policy is to ia ■u.J: a
permit violation on th• biomonitoring teat result. This has been referred to as
atrict liability and focuses on the punitive aspects of the program, instead of tt.e
corrective part of the program.
The Colorado approach recognizes that dischargers do not ha ve total control of what
enter ■ the sewer ayatem and provides the d iecharger the time to find and correct the
problem. The liability ia on the failure of the discharger to follow the regulation
to track down and eliminate the toxicity, which is where the discharger has control.
The EPA• s strict liability would impose fines on conditions that ore beyond the
control of the discharger. At S25,000 per day, thia ie not a small difference.
Th• Colorado regulation conform ■ with the Clean Water Act and t here ia currently a
re ■olution at the federal level to clarify this ■ituation and get the Colorado
regulation approved by the EPA. The resolution is consistent with the position
taken praviou ■ly on thi ■ iaaue and with the po ■ition of the Colorado Wastewater
Utility council, of which the cities are a member.
Thia resolution is being presented to the Littleton City Council.
FINANCIAL
There i ■ no direct financ ial commitment aasociated with thie reeolution.