Conifer Metropolitan District NOV-CDO (MM 08-21-19)

4300 Cherry Creek Drive S., Denver, CO 80246-1530 P 303-692-3500 www.colorado.gov/cdphe/wqcd

Jared Polis, Governor | Jill Hunsaker Ryan, MPH, Executive Director

August 22, 2019

Via Certified Mail Number: 7018 0360 0000 1228 0978

Via Electronic Mail: [email protected] Michael L. Staheli, Managing Director Cordes & Company, Operating Receiver – Conifer Metropolitan District 5299 DTC Boulevard, Suite 600 Greenwood Village, Colorado 80111 RE: Service of Notice of Violation / Cease and Desist Order, Number: DO-190822-1 Dear Mr. Staheli: Conifer Metropolitan District and Cordes & Company are hereby served with the enclosed Notice of Violation / Cease and Desist Order (“NOV/CDO”). The NOV/CDO is issued by the Colorado Department of Public Health and Environment’s Water Quality Control Division ("Division") pursuant to authority given to the Division by §§ 25-8-602 and 25-8-605, C.R.S., of the Colorado Water Quality Control Act (“Act”). The Division bases the NOV/CDO upon findings that Conifer Metropolitan District and Cordes & Company violated the Act, regulations promulgated pursuant to the Act, and/or a discharge permit, as described in the enclosed NOV/CDO. Pursuant to § 25-8-603, C.R.S., you are required to submit to the Division an answer admitting or denying each paragraph of the Findings of Fact and responding to the Notice of Violation within 30 calendar days of receipt of this NOV/CDO. This action could result in the imposition of civil penalties. The Division is authorized pursuant to § 25-8-608, C.R.S., to impose a penalty of up to $10,000 per day for each day during which such violation occurs. Please be advised that the Division is continuing its investigation into this matter and the Division may identify supplementary violations that warrant amendments to this NOV/CDO or the issuance of additional enforcement actions.

Please direct all submittals to my attention (electronic correspondence is preferred). If you or your

representatives desire to discuss this matter informally with the Division, or if you have questions or

concerns regarding the NOV/CDO, please contact me at (303) 692-2283 or [email protected].

Sincerely,

Mandy Mercer, Enforcement Specialist Clean Water Enforcement Unit WATER QUALITY CONTROL DIVISION Enclosure(s) ec: Enforcement File

Michael Boeglin, EPA Region 8

COLORADO Water Quality Control Division Department of Public Health & Environment

Dedicated to protecting and improving the health and environment of the people of Colorado

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mailto:[email protected]

4300 Cherry Creek Drive S., Denver, CO 80246-1530 P 303-692-3500 www.colorado.gov/cdphe/wqcd

Jared Polis, Governor | Jill Hunsaker Ryan, MPH, Executive Director

Jim Rada, Jefferson County Public Health Aimee Konowal, Watershed Section, CDPHE

Amy Zimmerman, Engineering Section, CDPHE Kelly Jacques, Field Services Section, CDPHE Meg Parish, Permits Section, CDPHE

Kelly Morgan, Clean Water Enforcement Unit, CDPHE Eric Mink, Clean Water Enforcement Unit, CDPHE Tania Watson, Data Management Workgroup, CDPHE

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Conifer Metropolitan District and Cordes & Company Notice of Violation/Cease and Desist Order Page 1 of 8

WATER QUALITY CONTROL DIVISION _________________________________________________________________________________ NOTICE OF VIOLATION / CEASE AND DESIST ORDER NUMBER: DO-190822-1 _________________________________________________________________________________ IN THE MATTER OF: CONIFER METROPOLITAN DISTRICT AND

CORDES & COMPANY CDPS PERMIT NO. COX047392

JEFFERSON COUNTY, COLORADO _________________________________________________________________________________ Pursuant to the authority vested in the Colorado Department of Public Health and Environment’s (“Department”) Division of Administration by §§25-1-109 and 25-8-302, C.R.S., which authority is implemented through the Department’s Water Quality Control Division (“Division”), and pursuant to §§25-8-602 and 25-8-605, C.R.S., the Division hereby makes the following Findings of Fact and issues the following Notice of Violation / Cease and Desist Order (“Order”):

FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. At all times relevant to the alleged violations identified herein, Conifer Metropolitan District

(“Conifer Metro District”) was a “Special District” formed in Jefferson County, Colorado pursuant to the Special District Act, §§32-1-101 et seq and 32-4-501 et seq, C.R.S.

2. On January 5, 2016, the District Court in and for Jefferson County, Colorado, entered an order for case 2015CV32176 (“Receiver Order”) appointing Edward B. Cordes, of Cordes & Company, as the operating receiver (“Receiver”) for Conifer Metro District.

3. At all times relevant to the alleged violations identified herein, Cordes & Company was a Colorado

Corporation in good standing and registered to conduct business in the State of Colorado.

4. The Receiver Order grants to the Receiver the right to exercise all of the powers of Conifer Metro District, through or in place of Conifer Metro District’s Board, to the extent necessary to manage the affairs of the receivership estate.

5. Pursuant to the Receiver Order, the Receiver is responsible for the management, operation, and

protection of Conifer Metro District and its assets during the pendency of the receivership action.

6. Conifer Metro District and the Receiver are each a “person” as defined under the Water Quality Control Act, §25-8-103(13), C.R.S. and its implementing permit regulation, 5 CCR 1002-61, §61.2(73).

COLORADO Department of Public Health & Environment

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7. Conifer Metro District and the Receiver own and/or operate the Conifer Metropolitan District wastewater treatment facility, located at 39.5303, -105.3044, between Aspen Park to the north and Conifer to the south, Jefferson County, Colorado (“Facility”).

8. Preliminary treatment at the Facility is achieved by a mechanical rotary screen with 2-millimeter slot

openings. Secondary treatment is achieved by two separate parallel trains each consisting of a 15,000-gallon anoxic basin and a 33,150-gallon complete-mix aeration basin. Clarification is achieved by two Zenon ultrafiltration membrane units. Disinfection is achieved by a redundant Aquafine ultraviolet light system. Treated effluent is conveyed to a 12,000 square-foot exfiltration gallery for discharge to groundwater. Based on site approval number 4761, the Facility’s approved hydraulic and organic capacities are 43,500 gallons per day (“gpd”) and 251 pounds 5-day biochemical oxygen demand per day (“lbs BOD5/day”), respectively.

9. The Facility is subject to the Colorado Discharge Permit System Individual Permit Number COX047392

(“Permit”), which became effective February 1, 2014. The Permit was set to expire on January 31, 2019, but is currently administratively extended pending Permit reissuance.

10. The Permit authorizes Conifer Metro District and the Receiver to discharge treated domestic

wastewater from the Facility’s exfiltration gallery into groundwater. The Permit includes requirements to monitor the Facility’s effluent discharge at outfall 001A, which is physically located at 39.5305, -105.3047, subsequent to treatment and prior to discharge to groundwater.

11. Pursuant to 5 CCR 1002-61, §61.8, Conifer Metro District and the Receiver must comply with all the

terms and conditions of the Permit, and violations of such terms and conditions as specified in the Permit may make Conifer Metro District and the Receiver subject to civil and criminal liability pursuant to §§25-8-601 through 25-8-612, C.R.S.

Failure to Comply with Permit Effluent Limitations

12. Pursuant to Part I.A.1. of the Permit, in order to obtain an indication of the compliance or

noncompliance with the effluent limitations specified in the Permit, Conifer Metro District and the Receiver are required to monitor effluent parameters at specified frequencies and report the results on a Discharge Monitoring Report (“DMR”).

13. Pursuant to Part I.A.1., Table 1 of the Permit, the permitted discharge shall not contain effluent

concentrations that exceed the limitations for the following parameters, among others not subject to this action:

Conifer Metropolitan District

EFFLUENT COMPLIANCE LIMITATIONS (OUTFALL 001A)

PARAMETER LIMITATION

30-day Average Daily Maximum Total Dissolved Solids (mg/L*) 400 -- Total Coliforms (org/100mL**) 2.2 23 * Milligrams per liter (“mg/L”) ** Organisms per 100 milliliters (“org/100mL”)

14. Conifer Metro District’s and the Receiver’s DMRs include, among other information and data, the

following pollutant concentration summary data which exceeded the effluent limitations established in Part I.A.1., Table 1 of the Permit:

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Conifer Metropolitan District EFFLUENT SELF-MONITORING DATA

MONITORING PERIOD OUTFALL NUMBER PARAMETER

BASE DESCRIPTION

REPORTED VALUE

PERMIT LIMIT UNITS

August 1-31, 2014 001A Total dissolved solids 30-day average 609 400 mg/L September 1-30, 2014 001A Total dissolved solids 30-day average 678 400 mg/L

October 1-31, 2014 001A Total dissolved solids 30-day average 708 400 mg/L November 1-30, 2014 001A Total dissolved solids 30-day average 802 400 mg/L December 1-31, 2014 001A Total dissolved solids 30-day average 910 400 mg/L

March 1-31, 2015 001A Total dissolved solids 30-day average 948 400 mg/L April 1-30, 2015 001A Total dissolved solids 30-day average 969 400 mg/L May 1-31, 2015 001A Total dissolved solids 30-day average 992 400 mg/L June 1-30, 2015 001A Total dissolved solids 30-day average 1,213 400 mg/L July 1-31, 2015 001A Total dissolved solids 30-day average 1,197 400 mg/L

August 1-31, 2015 001A Total dissolved solids 30-day average 1,188 400 mg/L September 1-30, 2015 001A Total dissolved solids 30-day average 1,121 400 mg/L

October 1-31, 2015 001A Total dissolved solids 30-day average 1,244 400 mg/L November 1-30, 2015 001A Total dissolved solids 30-day average 1,020 400 mg/L

December 1-31, 2015 001A Total dissolved solids 30-day average 1,157 400 mg/L 001A Total coliforms 30-day average 8.5 2.2 org/100mL 001A Total coliforms Daily maximum 31 23 org/100mL

January 1-31, 2016 001A Total dissolved solids 30-day average 1,048 400 mg/L 001A Total coliforms 30-day average 4 2.2 org/100mL

February 1-29, 2016 001A Total dissolved solids 30-day average 945 400 mg/L March 1-31, 2016 001A Total dissolved solids 30-day average 948 400 mg/L April 1-30, 2016 001A Total dissolved solids 30-day average 1,081 400 mg/L May 1-31, 2016 001A Total dissolved solids 30-day average 1,177 400 mg/L June 1-30, 2016 001A Total dissolved solids 30-day average 917 400 mg/L July 1-31, 2016 001A Total dissolved solids 30-day average 575 400 mg/L

August 1-31, 2016 001A Total dissolved solids 30-day average 889 400 mg/L September 1-30, 2016 001A Total dissolved solids 30-day average 902 400 mg/L

October 1-31, 2016 001A Total dissolved solids 30-day average 843 400 mg/L November 1-30, 2016 001A Total dissolved solids 30-day average 900 400 mg/L December 1-31, 2016 001A Total dissolved solids 30-day average 926 400 mg/L January 1-31, 2017 001A Total dissolved solids 30-day average 1,213 400 mg/L February 1-28, 2017 001A Total dissolved solids 30-day average 991 400 mg/L

March 1-31, 2017 001A Total dissolved solids 30-day average 1,112 400 mg/L April 1-30, 2017 001A Total dissolved solids 30-day average 1,029 400 mg/L May 1-31, 2017 001A Total dissolved solids 30-day average 1,488 400 mg/L June 1-30, 2017 001A Total dissolved solids 30-day average 1,219 400 mg/L July 1-31, 2017 001A Total dissolved solids 30-day average 1,217 400 mg/L


October 1-31, 2017 001A Total dissolved solids 30-day average 1,186 400 mg/L November 1-30, 2017 001A Total dissolved solids 30-day average 1,204 400 mg/L

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Conifer Metropolitan District EFFLUENT SELF-MONITORING DATA

MONITORING PERIOD OUTFALL NUMBER PARAMETER

BASE DESCRIPTION

REPORTED VALUE

PERMIT LIMIT UNITS

December 1-31, 2017 001A Total dissolved solids 30-day average 1,126 400 mg/L January 1-31, 2018 001A Total dissolved solids 30-day average 1,028 400 mg/L February 1-28, 2018 001A Total dissolved solids 30-day average 1,160 400 mg/L

March 1-31, 2018 001A Total dissolved solids 30-day average 1,325 400 mg/L April 1-30, 2018 001A Total dissolved solids 30-day average 1,105 400 mg/L May 1-31, 2018 001A Total dissolved solids 30-day average 1,214 400 mg/L June 1-30, 2018 001A Total dissolved solids 30-day average 1,085 400 mg/L July 1-31, 2018 001A Total dissolved solids 30-day average 1,262 400 mg/L


October 1-31, 2018 001A Total dissolved solids 30-day average 1,265 400 mg/L February 1-28, 2019 001A Total dissolved solids 30-day average 1,233 400 mg/L

March 1-31, 2019 001A Total dissolved solids 30-day average 1,178 400 mg/L April 1-30, 2019 001A Total dissolved solids 30-day average 922 400 mg/L May 1-31, 2019 001A Total dissolved solids 30-day average 1,091 400 mg/L

15. Total dissolved solids and total coliforms are “pollutants,” or indicator thereof, as defined by §25-8-

103, C.R.S. and its implementing permit regulation 5 CCR 1002-61, §61.2(76).

16. The Permit does not authorize the pollutant levels identified in paragraph 14. Division records establish that during the reporting periods identified above, Conifer Metro District and the Receiver did not have any other permit authorizing such discharge into State Waters.

17. Conifer Metro District’s and the Receiver’s failure to comply with the compliance limitations established for total dissolved solids and total coliform constitutes violations of Part I.A.1. of the Permit.

NOTICE OF VIOLATION

18. Based on the foregoing Findings of Fact and Conclusions of Law, Conifer Metro District and the

Receiver are hereby notified that the Division has determined that Conifer Metro District and the Receiver have violated the following sections of the Permit.

Part I.A.1. of the Permit, which states in part, “In accordance with the Water Quality Control Commission Regulations for Effluent Limitations, Section 62.4, and the Colorado Discharge Permit System Regulations, Section 61.8(2), 5 CCR 1002-61, the permitted discharge shall not contain effluent parameter concentrations which exceed the limitations specified.” Part I.A.1., Table 1 of the Permit, which establishes the following effluent compliance limitations:

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Conifer Metropolitan District EFFLUENT COMPLIANCE LIMITATIONS (OUTFALL 001A)

PARAMETER LIMITATION

30-day Average Daily Maximum Total Dissolved Solids (mg/L) 400 -- Total Coliforms (org/100mL) 2.2 23

REQUIRED CORRECTIVE ACTION

Based upon the foregoing factual and legal determinations and pursuant to §25-8-602 and §25-8-605, C.R.S., Conifer Metro District and the Receiver are hereby ordered to:

19. Cease and desist from all violations of the Colorado Water Quality Control Act, §§25-8-101 through

25-8-803, C.R.S., its implementing regulations promulgated thereto and the Permit. Furthermore, the Division hereby orders Conifer Metro District and the Receiver to comply with the following specific terms and conditions of this Order:

20. Electronic reporting (“eReporting”) of discharge monitoring data under the Colorado Discharge Permit System commenced on December 21, 2016. To view information about the eReporting Rule, visit https://www.colorado.gov/cdphe/e-reporting-rule-discharge-monitoring-report-information. Within 30 calendar days of receipt of this Order, Conifer Metro District and the Receiver shall take all necessary steps to commence electronic reporting of discharge monitoring data. Conifer Metro District and the Receiver shall email Mark Lombardi at [email protected] and CC Mandy Mercer at [email protected] to inquire about the set-up process in order to commence eReporting.

21. Within 30 calendar days of receipt of this Order, Conifer Metro District and the Receiver shall retain the services of a professional engineer registered in the state of Colorado and experienced in domestic wastewater treatment to perform an evaluation of the Facility and recommend measures to ensure that adequate treatment is provided such that the Facility complies with all terms and conditions of the Permit, including all effluent limitations. At a minimum, the engineering evaluation should include, but not be limited to, the following items:

a. An evaluation of the status of Conifer Metro District’s receivership; b. An evaluation of the Facility’s service area including the current and projected population

and the current and projected wastewater contributors; c. An evaluation of alternative treatment technologies to address the elevated total dissolved

solids concentrations in the Facility’s discharge; d. An evaluation of all potential compliance solutions, including but not limited to consolidation

with another treatment facility; and, e. An evaluationof the Facility’s water rights, how water rights might affect each treatment

technology or compliance solution, and how any water rights issues might be resolved to enable the Facility to effectively and economically meet all effluent limitations.

22. Within 45 calendar days of receipt of this Order, Conifer Metro District and the Receiver shall provide

documentation to the Division that it has retained the services of the qualified individual or entity described in paragraph 21. The documentation shall include, at a minimum, a copy of the individual or entity’s qualifications and a copy of the written contract or agreement for services, including a copy of the scope of services to be provided.

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23. Within 90 calendar days of receipt of this Order, Conifer Metro District and the Receiver shall submit to the Division a report summarizing the results of the engineering evaluation identified in paragraph 21. At a minimum, the report shall include a detailed narrative of each component described in paragraph 21, and an aggressive plan and schedule for the implementation of specific interim and long-term measures Conifer Metro District and the Receiver will complete to address any deficiencies identified through the engineering evaluation, and to ensure the Facility consistently meets effluent limitations and other terms and conditions of the Permit. This includes a specific plan and schedule for commencing and completing construction of Facility expansion and/or upgrades, if necessary. If any of the corrective measures require Division site location and/or design approval, Conifer Metro District and the Receiver shall timely file a completed site location and/or design approval request in accordance with §25-8-702, C.R.S. and 5 CCR 1002-22. Conifer Metro District and the Receiver shall not initiate construction until the necessary site location and design approvals have been obtained, as required by §25-8-702, C.R.S. and 5 CCR 1002-22, or unless otherwise specifically authorized in writing by the Division. The submitted plan and time schedule shall become a condition of this Order and Conifer Metro District and the Receiver shall implement the plan and time schedule as submitted unless notified by the Division, in writing, that an alternate plan or time schedule is appropriate. If the Division imposes an alternate plan or time schedule, it shall also become a condition of this Order.

24. Beginning December 31, 2019, and each March, June, September, and December thereafter, Conifer Metro District and the Receiver shall submit quarterly progress reports to the Division by the last day of the calendar month. At a minimum, each progress report shall include a discussion of activities undertaken during the current quarter and a description and schedule for activities planned for the next quarter. The quarterly progress reports shall be required until Conifer Metro District and the Receiver receive written notice from the Division indicating that quarterly progress reports are no longer necessary.

25. If Conifer Metro District or the Receiver become aware of any situation or circumstance that cause

the parties to become unable to comply with any condition or time schedules set forth by this Order, Conifer Metro District or the Receiver shall provide written notice to the Division within five calendar days of becoming aware of such circumstances. The notice shall describe what, if any, impacts will occur on Conifer Metro District’s and the Receiver’s ability to comply with the Colorado Water Quality Control Act and any impacts on the remaining conditions and/or time schedules specified by this Order, and what steps are being taken to mitigate the impacts.

26. All documents submitted under this Order shall use the same titles as stated in this Order, and shall

reference both the number of this Order and the number of the paragraph pursuant to which the document is required. Within 30 calendar days of receiving Division comments on submitted document(s), Conifer Metro District and the Receiver shall revise the submitted document(s) to properly address the Division’s comments and resubmit the document(s) for Division review.

NOTICES AND SUBMITTALS

27. For all documents, plans, records, reports and replies required to be submitted by this Order, Conifer

Metro District and the Receiver shall submit an electronic copy to the Division at the following address:

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Mandy Mercer Email: [email protected] Telephone: (303) 692-2283 Colorado Department of Public Health and Environment Water Quality Control Division Mail Code: WQCD-CWE-B2 4300 Cherry Creek Drive South Denver, Colorado 80246-1530

28. For any person submitting documents, plans, records and reports pursuant to this Order, that person

shall make the following certification with each submittal:

“I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”

OBLIGATION TO ANSWER AND REQUEST FOR HEARING

29. Pursuant to §25-8-603, C.R.S. and 5 CCR 1002, §21.11 Conifer Metro District and the Receiver are

required to submit to the Division an answer affirming or denying each paragraph of the Findings of Fact and responding to the Notice of Violation. The answer shall be filed no later than 30 calendar days after receipt of this action.

30. Section 25-8-603, C.R.S. and 5 CCR 1002, §21.11 also provide that the recipient of a Notice of

Violation may request the Division to conduct a public hearing to determine the validity of the Notice, including the Findings of Fact. Such request shall be filed in writing with the Division and include the information specified in 5 CCR 1002, §21.4(B)(2). Absent a request for hearing, the validity of the factual allegations and the Notice of Violation shall be deemed established in any subsequent Department proceeding. The request for hearing, if any, shall be filed no later than 30 calendar days after issuance of this action. The filing of an answer does not constitute a request for hearing.

FALSIFICATION AND TAMPERING

31. Be advised, in accord with §25-8-610, C.R.S., that any person who knowingly makes any false

statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the Colorado Water Quality Control Act or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than ten thousand dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.

POTENTIAL CIVIL AND CRIMINAL PENALTIES

32. Conifer Metro District and the Receiver are also advised that any person who violates any provision

of the Colorado Water Quality Control Act (“Act”), §§25-8-101 to 803, C.R.S., or of any permit issued under the Act, or any control regulation promulgated pursuant to the Act, or any final cease and

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desist order or clean-up order issued by the Division shall be subject to a civil penalty of not more than ten thousand dollars per day for each day during which such violation occurs. Further, any person who recklessly, knowingly, intentionally, or with criminal negligence discharges any pollutant into any state waters commits criminal pollution if such discharge is made without a permit, if a permit is required by the Act for such discharge, or if such discharge is made in viol.at1on of any permit issued under the Act or in violation of any Cease and Desist Order or Clean-up Order issued by the Division. By virtue of issuing this Order, the State has not waived its right to bring an action for penalties under §§25-8-608 and 609, C.R.S, and may bring such action in the future.

RELEASE OR DISCHARGE NOTIFICA.T!ON

33. Pursuant to §25-8-601, C.R. S., Conifer 1\1\etro District and the Receiver are furthff advised that any person engaged in any operation or activity which results in a spiU or discharge of oil or other substance which may cause poUution of the \A/aters of the state, shall not'ify the Division of the discharge. If said person fails to so notify, said person is guilty of a misdemeano:·, and m2y be fined or imprisoned or both.

EFFECT OF ORDER

34. Nothing herein contained, particularly those portions requiring certain acts 1:o be performed within a certain time, shall. be construed as a permit or license, either to violate any prnvisioDs of the public health laws and regulations promulgated thereunder, or to make any d"i5ci·iarge intc stztte 1.vaters. Nothing herein contained shall be construed to preclude other ·individuals, cit1,2s, tov/ns,, counties, or duly constituted political subd'ivisior.s of the state frorn the exercise of thE::ir resp,2cdv,2 t·lghts to suppress nuisances or to preclude any other lawful actions by such entities or the State.

35. For further clarification of Conifer Metro District's and the Receiver's rights and obligations under this Order, Conifer Metro District and the Receiver are advised to consult the Colorado Water Quality Control Act, §§25-8-101 to 803, C.R.S., and regulations promulgated thereunder, 5 CCR 1002.

Issued at Denver, Colorado, this ~ 2-""J day of August, 20·19.

FOR THE COLORADO DEPARTMENT OF PUBUC KtALTH AND EMViROMMENT

Conifer Metropolitan District and Cordes ft Company Notice of Violation/Cease and Desist Order Page 8 of 8

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Conifer Metropolitan District NOV-CDO (MM 08-21-19)