ILLINOIS POLLUTION CONTROL BOARD
    December
    15, 1988
    IN
    THE MATTER
    OF:
    PRETREATMENT UPDATE
    )
    R88-18
    (1/1/88 through 6/30/88)
    FINAL ORDER.
    ADOPTED RULES
    OPINION
    OF
    THE BOARD
    (by J.
    Marlin):
    The Board
    is
    amending the pretreatment
    regulations
    pursuant
    to Section
    13.3 of the Environmental
    Protection Act
    (Act).
    The text
    is contained
    in
    a
    separate Order
    of this same day.
    Section
    13.3 of the Act
    requires the Board
    to
    adopt
    regulations which
    are
    “identical
    in
    substance’ with federal
    regulations
    promulgated
    by the
    United
    States Environmental Protection Agency
    (USEPA)
    to
    inplement the pretreatment
    requirements
    of Sections
    307 and
    402 of the Clean Water Act, which was
    previously
    known
    as the Federal Water Pollution Control
    Act.
    Section 13.3
    provides that Title VII of the Act
    and Sections
    5
    and 6.02 of the
    Administrative Procedure Act
    (APA)
    do not apply
    to identical
    in substance
    regulations adopted
    to
    establish the pretreatment
    program.
    However, Section
    13.3 of the Act
    does require the Board
    to
    provide
    for
    notice
    and
    public
    comment
    before rules
    are filed with
    the Secretary of State.
    5.8. 1834
    (P.A.
    85-1048) includes
    a definition
    of
    “identical
    in
    substance”
    in new Section
    7.2 of
    the Act.
    This legislation codifies
    the
    Board’s
    past interpretations
    of
    its mandate under Section
    13.3 of the Act.
    This rulemaking
    updates the pretreatment
    rules
    to cover
    LISEPA rules
    adopted from January
    1 through
    June
    30, 1988
    The following Federal
    Registers
    are
    included:
    53 Fed.
    Reg. 1704
    January
    21,
    1988
    53 Fed.
    Reg.
    9176
    March
    21,
    1988
    The Agency filed
    a public
    comment
    in
    R88-1 which
    included
    a
    list
    of
    typographical
    errors
    in the
    rules adopted
    in R86-44.
    The Board
    has made this
    comment
    a public
    comment
    in this Docket,
    in
    order
    to address
    errors made
    in
    an
    identical
    in substance rulemaking
    in the
    same procedural
    context.
    The Board adopted
    a Proposed Opinion
    and
    Order
    on September 22,
    1988.
    The proposed
    rules appeared
    on October
    14,
    1988,
    at
    12
    Ill.
    Reg. 16396.
    The
    Board
    received
    a determination
    of
    no
    effect from
    the Small
    Business Office
    of
    the Department
    of
    Commerce and Community Affairs,
    and codification comments
    The Board
    appreciates the assistance
    of Morton Dorothy
    in drafting the Order
    and Opinion.
    94—237
    —2—
    from the Administrative Code Unit.
    The Board
    has
    received
    no other
    public
    comment.
    The pretreatment rules govern discharges
    by
    industrial
    users
    to
    publicly
    owned
    treatment works
    (POTWs).
    The rules
    are
    intended to
    prevent
    industrial
    discharges from passing through POTW treatment plants without adequate
    treatment
    to waters
    of the State,
    and
    to prevent
    industrial
    discharges
    from
    interfering with the ope~-ation of the treatment plant.
    The Illinois pretreatment
    rules
    are contained
    in
    35
    Ill.
    Adm. Code 307
    and 310.
    Part 307 includes the categorical
    pretreatment
    standards, which are
    incorporated
    by
    reference from the USEPA rules.
    Part
    310 specifies how
    a
    POTW
    sets up
    a pretreatment
    program,
    and how
    industrial
    users
    get pretreatment
    permits
    or authorizations
    to discharge.
    The Illinois pretreatment
    rules were adopted
    in R86-44, Opinion
    and Order
    of the Board
    of December
    3,
    1987.
    The rules
    appeared
    on January
    29,
    1988 at
    12
    111.
    Reg. 2502.
    They were filed
    with
    the Secretary of State
    on January
    13,
    1988.
    The pretreatment
    rules
    were amended
    in the following update rulemaking:
    R88-11
    June 14,
    1988;
    12
    Ill.
    Reg.
    13094,
    effective July 29,
    1988
    (USEPA amendments
    through December
    31,
    1987).
    R88-18
    This Docket
    (January
    1 through June 30,
    1988).
    The specific amendments derived from the USEPA actions affect only the
    categorical
    pretreatment
    standards reflected
    in Part 307;
    there
    are no USEPA
    amendments
    to the program requirements
    of Part 310.
    The following
    is
    a
    summary of the amendments:
    January
    21
    Modifications for
    the Primary Tungsten Subcategory.
    March
    21
    Modifications for Leather Tanning Subcategory.
    Both
    of these represent
    minor modifications
    to the USEPA rules
    resulting
    from litigation.
    The changes
    are mainly
    updated incorporations
    by
    reference.
    Most
    of the changes
    are corrections
    of minor typographical
    errors which
    occurred
    in adoption
    of Parts
    307 and 310
    in R86-44.
    Many
    of these were
    pointed
    out
    by the Agency
    in
    its
    public comment
    in R88-1,
    as discussed above.
    DETAILED DISCUSSION
    Section 307.1508
    This Section corrects
    the spelling of
    “sherbet’,
    and corrects
    the
    incorporation by reference of 40 CFR
    405.86.
    “Sherbet”
    is misspelled
    in the
    USEPA rule,
    but
    the Board
    has corrected
    it here.
    The Board
    has
    not corrected the spelling of
    “buttermilk”
    or
    “butter
    milk”
    It
    is unlikely that this would mislead
    anyone.
    Attempting
    to
    correct
    minor
    typographical
    errors
    carries
    a
    risk of making
    a major error.
    The
    Board
    94—238
    -3—
    has
    noted
    many
    of the Agency’s suggestions,
    and will
    correct them as these
    Sections
    come
    up
    for review.
    In R86-44 the Board
    generally referenced the
    1986 edition
    of the Code of
    Federal
    Regulations.
    The Board
    has
    updated the
    references
    in
    all
    Sections
    up
    for
    review to
    the 1987 edition.
    Section
    307.1704
    “Onto”
    has
    been corrected
    to read
    “into”.
    Section
    307.2101
    “Contracted”
    has
    been corrected to
    read “contacted”.
    Section
    307.2903
    “Of”
    has been corrected
    to read
    “or”.
    In Section
    307.2904, the Board
    cannot find
    the error mentioned
    by
    the
    Agency
    in
    its
    comment.
    In Section
    307.3100, there
    is
    no rule which prohibits
    omission
    of
    subsection labels.
    Section
    307.3100(b)
    is
    reserved for
    a
    reserved
    USEPA Section.
    There
    is
    a
    rule against
    placing
    a
    “reserved”
    in the
    subsecti on.
    Section 307.3110
    The pretreatment
    standards
    for primary tungsten manufacture were amended
    at
    53 Fed.
    Reg.
    1711, January
    21,
    1988.
    Section 307.3129
    The spelling
    of
    “tungsten”
    has
    been corrected,
    and
    an
    extra
    “or”
    dropped.
    Several minor errors
    noted
    by the Agency
    in ensuing Sections have
    been noted,
    but
    no changes
    have been made at
    this time.
    In Section
    307.4301,
    the applicability statement
    is
    absent,
    reflecting the unique
    structure of
    40
    CFR 433, which was discussed.
    in R86-44.
    Section 307.3500
    et
    seq.
    Several
    introductory rules and pretreatment
    standards relating to Leather
    Tanning
    and Finishing were amended
    at
    53 Fed. Reg. 9181,
    March
    21, 1988.
    Section 307.4004
    The Board
    has corrected
    a
    reference to
    a USEPA rule
    in
    this Section.
    Section 307.8100
    The problem noted
    by the Agency
    has been corrected by
    insertion of
    “alloys”.
    The Board
    has considered the Agency’s suggestions
    as
    to
    rewording
    the USEPA language and
    grammar,
    but declines to
    do
    so,
    since
    the USEPA
    language
    is understandable.
    94—23 9
    -4-
    Section 310.107
    The Board
    has updated the references
    to the Code of
    Federal Regulations
    to
    reflect
    the 1987 edition.
    The Board solicited comment
    as
    to whether
    any of
    the remaining references
    need updating, but received
    no
    response.
    Section 310.110
    In R86—44 the Board adopted definitions
    of
    “treatment works”,
    “unit
    of
    local
    government”
    and
    “POTW”.
    The federal
    text
    had to
    be changed,
    in part
    to
    accommodate constitutional
    and statutory definitions
    of
    “unit
    of
    local
    government”
    and
    “municipality”,
    and
    in part
    to avoid
    relying
    on
    a
    reference to
    a
    federal
    statutory definition.
    In crafting these definitions,
    the Board
    inadvertently omitted the
    State of Illinois
    as
    an entity which becomes
    a
    POTW
    when
    it
    operates
    a treatment works
    under
    40 CFR 403.3(o).
    The Board has
    corrected this error.
    The Board
    addressed the similar definition
    of Section 301.365
    in R88-1.
    As was discussed
    in
    Scott Air Force Base
    v.
    IEPA, PCB
    88-69, August
    10,
    1988,
    federal
    facilities within
    Illinois
    are not
    “POTW’s” within the meaning
    of the
    NPDES program.
    This appears
    also
    to
    be USEPA’s intent
    with respect
    to the
    pretreatment program.
    The main effect
    of this
    is
    that
    federal
    facilities
    are
    not
    required
    to develop pretreatment
    programs.
    In
    Section 310.311(a) the Board
    cannot
    find the problems noted
    by the
    Agency.
    The
    forms
    of
    reference between portions
    of the Administrative Code
    are mandated
    1
    Ill.
    Adm. Code 100.370.
    The remaining typographical
    errors
    in
    Part
    310
    have been noted,
    and will
    be corrected
    as
    the Sections come up for
    review.
    This Opinion supports the Board’s Order
    of this same day.
    The Board will
    withhold final
    filing of
    these rules until
    January
    17,
    1989,
    in order
    to
    allow
    motions for reconsideration
    by the agencies involved
    in
    the authorization
    process.
    IT
    IS
    SO ORDERED.
    I, Dorothy M.
    Gunn, Clerk
    of the
    Illinois Pollution Control B9ard,
    hereby
    certify
    that the
    above Opinion was adopted
    on
    the /5~day of
    /i-~~
    ~
    1988,
    by
    a vote of 7~
    .
    /.
    ~L
    ~
    Dorothy
    NI.
    Gujln, Clerk
    Illinois Poll~utionControl
    Board
    94—240

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