FOR PUBLIC REVIEW AND COMMENT

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Proposed Revision 1 – Section 6.23.3:


Reporting Requirements for Increased Sampling and Monitoring


Through routine application of its Rules and Regulations, Metro has identified a need to more clearly align Metro’s Rules and Regulations to the federal requirement found in 40 CFR 403.12(g)(6), that states:


“If an Industrial User subject to the reporting requirement in paragraph (e) or (h) of this section monitors any regulated pollutant at the appropriate sampling location more frequently than required by the Control Authority, using the procedures prescribed in paragraph (g)(5) of this section, the results of this monitoring shall be included in the report.”


To summarize, the provision requires industrial users, that submit Period Compliance Reports to an oversight authority, include the results of all routine sampling and analyses reports: when performed within the designated compliance period; from permitted compliance point(s); and when the sampling and analysis follows the required procedures and analysis techniques.


To clarify this issue, Metro Water Recovery proposes that Metro’s Board add the following item to section 6.23.3. Periodic Compliance Reports of the Rules and Regulations:

  1. If the Permittee, using an approved analytical method, monitors or samples any parameter more frequently than required by its effective Wastewater Discharge Permit at any of the locations defined by the Wastewater Discharge Permit, then the results of such monitoring shall be included in the calculation and reporting of the values required in the Periodic Compliance Report. The increased frequency shall also be reported on the Periodic Compliance Report.

Proposed Revision 2 – Section 6.27


Handling of Confidential Information


As part of IPP implementation, Metro requires regulated entities to provide certain information so Metro can evaluate industrial processes and operations, issue permits, if appropriate, and evaluate compliance. Through this information exchange, situations arise where an entity takes the position that the information it is providing to Metro is confidential. Section 6.27 of the Rules and Regulations governs how Metro handles such information.

Section 6.27—CONFIDENTIAL INFORMATION


Title and Subsection Changes


Section 6.27 will now have the title PUBLIC INFORMATION, Public Records, and EXEMPTIONS FROM DISCLOSURE to better incorporate the following amendments.


The Section will also now include subsections to better organize new and existing concepts. New and changed provisions are noted below.
Section 6.27.1 Wastewater Constituents and Characteristics and Effluent Data.


This subsection provides, in accordance with the Clean Water Act, that wastewater constituents and characteristics and other effluent data will be available to the public without restriction. This provision is carried over from the current version of Section 6.27. The following proposed language will be added into the Rules and Regulations as Section 6.27.1:

“6.27.1  Wastewater Constituents and Characteristics and Effluent Data 

As provided under the Clean Water Act, wastewater constituents and characteristics and other effluent data will be available to the public without restriction.”


The language in this new subsection will directly reflect Metro Water Recovery’s obligations under the Colorado Open Records Act (CORA), specifically providing that information and data about an Industrial User (IU) will generally be available for public inspection unless the IU demonstrates to Metro’s satisfaction the information or data is entitled to protection under CORA. In line with the current version of Section 6.27, an IU will be required to mark/stamp any materials for which protection from disclosure to the public is claimed. New language will additionally require an IU to provide the specific legal citation and substantiation for why the materials are entitled to protection. Failure to provide this information to Metro’s satisfaction will result in the materials being made available for public inspection.


This subsection also includes a provision clarifying that information deemed by Metro Water Recovery to be protected from disclosure to the public will be made available upon request to governmental agencies for uses related to the National Pollutant Discharge Elimination System (NPDES) program or Pretreatment Program and in certain enforcement proceedings. This reflects language in the current version of Section 6.27 but removes a provision requiring Metro to provide an IU with written notice and a ten-day period to object to such a release.

The following proposed language will be added into the Rules and Regulations as Section 6.27.2:

“6.27.2  Public Records

Information and data about an Industrial User obtained from reports, questionnaires, permit applications, permits, monitoring programs, and inspections will be available for public inspection, unless an Industrial User demonstrates to the satisfaction of Metro that the release of information or data would divulge information entitled to protection from disclosure to the public under the Colorado Open Records Act (C.R.S. 24-72-201, et. seq.).   

If an Industrial User has information that it believes is entitled to protection from disclosure to the public, the Industrial User must at the time the information is provided to Metro:  

  1. Identify the information that is entitled to protection from disclosure to the public (including, as appropriate, specific words, provisions, diagrams, etc.) by highlighting or otherwise clearly marking; and 
  2. Provide the specific legal citation and associated substantiation to explain why the information is protected from disclosure to the public. 

Failure to provide this information to Metro’s satisfaction will result in the information at issue being made available for public inspection.  Metro retains the sole decision-making authority regarding whether information is entitled to protection from disclosure to the public.   

Information that Metro determines is protected from disclosure to the public shall be made available immediately upon request to governmental agencies for uses related to the NPDES program or Pretreatment Program, and in enforcement proceedings involving the person furnishing the report.” 

Section 6.27.3 Indemnification


Section 6.27 currently requires an IU, at the IU’s expense, to cooperate with Metro Water Recovery in defending a determination to withhold materials from public inspection and to directly provide such defense at Metro’s request. As a condition of permit coverage, the new subsection requires an IU, to indemnify Metro against challenges to its determination to withhold materials from public inspection. It also requires an IU to hold Metro harmless with respect to its decision to either disclose or withhold materials the IU has claimed as subject to protection.

The following proposed language will be added into the Rules and Regulations as Section 6.27.3:

6.27.3  Indemnification

As a condition of permit coverage under these Rules and Regulations, an Industrial User claiming materials as protected from disclosure to the public shall agree to indemnify Metro Water Recovery against any third-party legal action challenging a Metro determination to withhold the materials from public inspection, including attorneys’ fees and damages.  Industrial Users shall hold Metro harmless with respect to any decision to disclose or withhold materials claimed to be protected from disclosure to the public.”  

Proposed Revision 3 – Sections 5.7.1, 6.18.5, and 6.22.1


Historical Alignment


In 2021, Metro’s Board approved the removal of language in Section 6 which no longer aligns with current practices. Routine use of the Rules and Regulations by Metro Water Recovery has identified three other locations within the Rules that contain the same language for revision. The following sections highlight the removal of the historical phrasing, thought to be previously removed:

5.7.1 Site Limitations

Only those disposal sites which have been authorized by Metro Water Recovery shall be used for the disposal of wastes under the permits granted by these Rules and Regulations.


6.18.5. Dilution Prohibited


Except where permitted by Categorical Standards, no Industrial User may increase the use of process water or, in any way, attempt to dilute a discharge as a partial or complete substitute for adequate treatment to attain compliance with the limitations contained in National Categorical Pretreatment Standards or any other specific discharge limitations contained in this Section 6. Metro Water Recovery may set mass limitations or alternate concentration-based limitations for those Industrial Users which are using improper dilution to meet these limitations.

6.22.1. Applicability


All Significant Industrial Users and other Industrial Users as required by Metro Water Recovery, discharging to, proposing to discharge to, or with a potential to discharge to Metro or engaging in certain industrial processes shall obtain a Wastewater Discharge Permit, General Permit, or Zero Discharge Permit. Such permit shall be issued by Metro. Requirements pertaining to permits by Metro Water Recovery are contained in Metro’s Rules and Regulations.