ILLINOIS POLLUTION CONTROL BOARD
    December 6,
    1989
    IN THE MAT1ER OF:
    )
    )
    R89—12
    PRETREATMENT UPDATE
    )
    (Identical
    in Substance Rules)
    (1/1/89
    -
    6/30/89)
    )
    PROPOSAL FOP PUBLIC COMMENT
    PROPOSED OPINION
    OF THE
    BOARD (by J. Anderson):
    The Board
    is proposing the pretreatrn~ntregulations pursuant to Section
    13.3 of the Environmental Protection Act
    (Act).
    The text is contained in
    a
    separate Proposed 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 implement the pretreatment
    requirements of Sections
    307 and 402 of the Clean Water Act, previously known
    as the Federal Water Po’iution Control
    Act.
    Section 13.3 provides that Title
    VII
    of
    the Act and Sections
    5 and 6.02 of the Administrative Procedure Act
    (APP)
    shall
    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.
    The Board will accept public comments for
    45 days following publication
    of the Notice of
    Proposed Amendments
    in the
    Illinois Register.
    S.B.
    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 USEPA rules
    adopted from January
    1 through June 30,
    1989.
    The following Federal
    Registers
    are included:
    54 Fed.
    Reg. 246
    January 4,
    1989
    54 Fed.
    Reg.
    11346
    March
    17,
    1989
    54 Fed. Reg.
    13606
    April
    4, 1989
    54 Fed. Reg. 13716
    May 2,
    1989
    54 Fed.
    Reg.
    27351
    June 29,
    1989
    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 operation of
    the treatment plant.
    Effluent discharges
    are regulated pursuant to
    35
    Ill. Adm. Code 304 and 309.
    The Illinois pretreatment rules are contained
    in
    35 Ill. Adm. Code 307
    and
    310.
    Part 307 includes the categorical pretreatment standards, which
    are
    106--359

    -2-
    incorporated
    by reference from the USEPA rules.
    Part 310 specifies how
    a P07W
    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
    Ill.
    Reg.
    2502.
    They were filed with the Secretary of State on January 13,
    1988.
    The pretreatment rules were recently amended
    in the following update
    ruiemakings:
    R88—11
    June 14,
    1988;
    12
    Ill.
    Reg.
    13094. effective July 29,
    1988
    (USEPA amendments through December 31,
    1987).
    R88-18
    December
    17,
    1988;
    13
    Ill.
    Reg.
    1794,
    effective January
    31,
    1989
    (USEPA amendments through ~~ne30,
    1988).
    R89—3
    September 28, 1989;
    13 I~l.Rea.
    19243, effective November
    17,
    1989 (Part 307) and November 2,
    1989 (Part 310)
    (USEPA
    amendments through December 31, 192c).
    R89-12
    This docket
    (USEPA amendments through June 30,
    1989).
    The specific amendments derived from the USEPA actions made on March
    17
    and
    June 29,
    1989 affect the categorical pretreatment standards reflected in
    Part 307.
    The amendments derived from USEPA actions made on May
    2,
    1989
    affect the program requirements reflected in Part 310.
    No proposed changes
    arise from the federal amendments of January 4 and April
    4,
    1989.
    In R86—44 the Board generally referenced the 1986 edition
    of the Code of
    Federal Regulations.
    The Board
    is updating
    the references to all Sections up
    for review
    in this update to the 1989 edition of the Code of Federal
    Regulations.
    Pursuant to the Board’s mandate in Section 7.2(a)(1)
    of the Act,
    amendments concerning directives for program approval have not been adopted.
    PART 307
    SEWER DISCHARGE~CRITERIA
    SUBPART 0:
    ORGANIC CHEMICALS, PLASTICS AND
    S’T’NTHETIC FIBERS
    35
    111.
    Adm. Code 307.2490 incorporates 40 CFR 414, App. A by reference,
    and 35
    Ill. Adm. Code 307.2491 incorporates 40 CFR
    414, App.
    B
    by reference.
    USEPA amended both federal appendices
    at
    54 Fed. Reg. 27352, June 29,
    1989.
    The Board proposes updating both incarporations
    by reference to include the
    revisions as embodied
    in the 1989 edition
    of the Code of Federal Regulations.
    The effect of
    the proposed revision
    to Section 307.2490 (corresponding to
    40 CFR 414, App.
    A)
    is
    to exclude “Anti-knock fuel additive/Blending purchased
    tetraethyl
    lead & tetraethyi
    lead additives~from th?~list or ‘non—complexed
    metal—bearing waste streams and cyanide—bearing waste streams” under lead in
    the organic chemicals, plastics,
    and synthetic fibers
    (OCPSF) category.
    The
    effect of the proposed revision
    to Section 307.2491 (corresponding to 40 CFR
    414, App.
    B)
    is to exclude “Vat dyes/Mixing purchased dyestuffs (Anthraqui—
    106—360

    nones, polycyclic Quinones and Indiqoids)” under chromium and copper from the
    list of
    ‘complexed metal-bearing waste streams
    in that category.
    For the
    proposed Section 307.2491 revision,
    “Vat dyes’
    is substituted under chromium
    (as it already
    appears under copper).
    USEPA asserts
    at
    54 Fed.
    Req. 27351 that the corresponding federal
    amendments, upon which the proposed amendments
    are based, delete misleading
    language.
    The reguThtions apply only to wastewaters from the manufacture of
    OCPSF
    product/process, under 40 CFR ~114.l1(a)
    (35
    Ill.
    4dm. Code
    307.2430(b)).
    USEPA. includes chemical
    syntheses and engineering within this,
    but
    it does not include formulation that exclusively comprises blending
    and
    mixing operations.
    USEPA deleted these references
    .ecause they relate
    exclusively
    to blending and mixing
    and were, therefore, erroneous.
    SUBPART CT:
    NONFERROUS METALS FORMING
    ANC
    MET~LPOWDERS
    35 Ill. Adm. Code 307.8103(c)(I) incorporates 40 CF1~471.34
    by reference,
    35
    Ill.
    Adm. Code 307.8103(d)(1) incorporates
    40
    CFP. 471.35
    by reference,
    35
    ill.
    Adnm.
    Code 307.81O9(c)(1)
    incorporates 40 CFR 471.94 by reference,
    and
    35
    Ill. Adm. Code 307.8109(d)(1) incorporates
    40 CFR 414.95 by reference.
    USEPA
    amended
    all four federal sections at
    54 Fed. Req. 11352,
    March
    17,
    1989,
    and
    correctea 40 CFR 471.34(d)
    at
    54 Fed. Req. 13606,
    April
    4,
    19E’~
    .
    The Board
    proposes updating the four incorporations by reference to
    inciLde the
    revisions as embodied
    in the
    1989 edition of the Code of Federal
    Regulations.
    The effect of the proposed revisions
    to Sections 307.8103(c)(1)
    (corresponding to 40 CFR 471.34(d)), 3O7.81O3(d)(1) (corresponding
    to 40 CFR
    471.35(d)), 307.81O9(c)(1)
    (corresponding to 40 CFR 471.94(g)),
    and
    307.81O9(d)(I)
    (corresponding to 40 CFR 471.95(g))
    is
    to provide an
    alternative
    to zero discharge of
    process wastewaters from tube reducing for
    new and existing sources
    in the nickel-coba1t and zirconium-hafnium forming
    subcategories of the nonferrous metals forming
    and metal po~derspoint
    source
    category.
    Under the proposed
    amendments,
    such entities may discharge their
    wastewaters
    if the results of monthly chemical analyses
    show
    no
    levels
    of
    three nitrosamines above the detection limits for method 1625
    (40 CFR
    136.3,
    Table
    1C & App.
    A, Method 1625,
    incorporated
    by reference at
    35
    Ill. Adm. Code
    307.1003 and
    310.107).
    (These nitrosamines and
    their corresponding detection
    limits are N-Nitrosodimethylamine,
    0.050 mg/l; N-Nitrosodiphenylamine, 0.020
    mg/l; and N-.Nitroso-n-propylamine,
    0.020 mg,’l.)
    The sampling frequency
    reduces
    to quarterly if none of these amines are detected above the limits set
    forth.
    There
    is no
    mass
    allowance, and the analytical procedure must have
    sufficient sensitivity to allow for back-calculation
    to remove any effects
    of
    dilution from the point of discharge form the reducing process to the point
    of
    sampling.
    PART 310
    PRETREATMENT PROGRAMS
    SUBPART
    A:
    GENERAL PROVISIONS
    Section 310.107
    Incorporations by Reference
    Section 310.110
    Definitions
    106-361

    -4-
    USEPA promulgated new 43 CFR
    503 and am~nded40 CFR
    122,
    123,
    and
    124 at
    54 Fed.
    Req.
    1878T. May 2, 19~9. This action implemented th~permtting
    arid
    state program portions
    of ne~sewage sludge management requirements under
    Section
    405
    of
    the
    federal
    Clean Water Act, as ~endec
    by
    Section
    406
    of
    the
    Water
    Quality
    Act
    of
    1987.
    At
    5~Fed.
    Req.
    5746,
    February
    6,
    1989,
    USEPA
    proposed substantive requirements
    as
    part
    of
    this
    program.
    It
    is
    apparent
    that USEPA
    intends
    to promulgate this new body c~rules
    in staces,
    progressively including new segments
    of
    the regulated community and new
    renuirements.
    From
    a
    ve’-y general perspective, t~sBoard
    notes severa~ issues arising
    from this new
    ederal program.
    ihe pri~aryfocus
    of
    these reiatE~to whether
    the Board
    sho.
    d proceed to a:.semjie rulemaking proposals incorpo~atinathe
    federal
    sludge use
    and management
    rules
    as USEPA promulgates them,
    or whether
    the Board ShOUld take some alternati~e a,. ‘~icn.
    Section 13.3
    of
    the Act mandates that
    the Board
    acopt ~egulations
    identical
    in su~stanc~:
    to
    USEP1~regulations promulgated pursuant to Se’.tions
    307(b).
    307(c), 307(d
    .
    4O~b’ 3),
    and
    402(b) (9)
    of
    the
    Fede~m.lWater
    Pollut
    n Control
    Act
    (Clean ~er
    Act).
    All five of
    those federal prcv~sions
    relate
    o pretreatmeom regulation
    The Board notes
    that USEPA preamble
    discussons
    the Federal
    Registe’~and Code of
    Federal Regulations reaulatory
    authority notes are not always
    as explicit or complete
    as to the statutory
    authority for particular L~PArules.
    The USF~Asludge
    use and management
    regulations are appearently outside the authority of Sections 307(b),
    307(c),
    307(d), 402(b)(8),
    and 4O2(h)(9).
    However,
    the Board requests clarifica ion
    of this
    issue.
    Section 13(b)
    of the Act mandates that the
    Board adopt “requirements,
    standards, and
    procedure.
    ...
    necessary or appropriate
    to enable the S~ate of
    Illinois to
    irn~lementand participate in
    th
    NPDES
    programi
    ..
    .
    .‘
    Ne..
    i
    amended 40 CFR 123.25(a) provides that sluc
    ~.
    use and management
    rules are not
    a mandatory part of
    the state NPDES prograr..
    The states may implement sludge
    use and management rules
    as
    a separate program or as part of
    a program
    independent
    of their NPDES programs.
    USEPA will
    implement
    the sludge program
    in states not authorized to administer
    ‘it.
    Initially this raises questions as
    to whether the Agency has authority to impose NPDES permit conditions based on
    the federal
    rules as they take effect.
    It also raises issues
    as to whether
    state— or federally—imposed permit conditions
    become ‘sludge requirements”
    within the meaning
    of the pretreatment program.
    Finally,
    it raises the
    question
    as
    to whether the Board should begin to assemble
    a rulemaKing
    proposal under Section 13(b)
    to incorporate the federal
    sludge
    use and
    management requirements.
    The Board summarizes
    its concerns:
    Does any aspect of the new federal
    sludge use and management requirements
    fall within tho
    “identical
    in
    substance” mandate of Sect~cn13.3 of the Act?
    Do they fall within the
    mandate of Section 13(b)?
    Should the Board begin to assemble a rulemaking
    proposal that would incorporate the substance of these requirements?
    If
    so,
    should the board propose their incorporation into the existing NPULS program,
    the solid waste disposal program, some other program,
    or create an independent
    program?
    Should the Board approach the General Assembly for some new
    rulemaking authority to adopt rules identical
    in substance to the federal
    requirements?
    Does the Agency have the authority to impose NPDES permit
    106—362

    —5—
    conditions derived from the federal
    sludge requirements?
    The Board solicits
    comment
    from
    any interested
    persons
    on
    these
    issues,
    most
    specifically
    from
    the
    Agency,
    USEPA,
    and
    the Attorney General.
    More specifically to this particular rulemaking,
    the Board proposes an
    amendment
    to
    the
    35
    Ill.
    Adm. Code
    310.110
    definition
    of
    “sludge
    requirements”
    to incorporate any requirements imposed
    by NPDES permit condition, whether by
    the Agency or USEPA.
    The Board proposes adding language to
    the definition
    as
    fo1 lows,
    in order to accommodate the May
    2,
    1989 federal
    amendments:
    “Sludge
    requirements’
    means
    any
    of the following permits o’-
    regulations:
    .
    ..309.155 (NPDES
    Permits),
    ...
    Section 39(h)
    of
    the Act
    (NPDES Permits), and Section 405(b)
    of the Clean Water
    Act
    (federally—imposed
    sludge
    use
    and
    management
    require-
    ments).
    An
    alternative
    method
    of
    accommodating
    these
    new
    federal
    requirements
    in
    the
    pretreatment
    rules
    is
    to
    reference
    them
    by
    federal
    rules
    (i.e., by
    specifically
    referencing
    43
    CFR
    122
    sections),
    but
    this
    method
    would lengthen
    the
    reference
    to
    the
    federal requirements and necessarily result
    in
    a less
    comprehensive reference that would require greater effort
    in future
    pretreatment updates.
    The intended effect of this proposed amendment
    is
    to
    include these new federal requirements within the “sludge requirements”
    referred to
    in such diverse provisions
    as
    35
    Ill.
    Adn’.
    Code 310.201(a)(2)(B)
    and 31O.3C’3(d), which relate to affirmative defenses and removal credits,
    respectively.
    Revising
    this
    definition
    does
    not
    broaden the Agency’s
    permitting
    authority
    by
    authorizing
    the
    Agency
    to
    impose
    federal
    regulations.
    Rather,
    the
    effect
    is
    to
    allow
    consideration
    of
    the
    impact
    of
    an
    industrial
    user’s
    discharge
    on
    the
    POTW’s
    compliance
    with
    any
    state
    or
    federally-imposed
    sludge
    use
    rules.
    The
    Board
    invites comment
    as
    to whether
    this revision effectively incorporates the substance of the new federal
    program into the definition
    of
    sludge requirements”
    in the pretreatment
    rules,
    at
    least until
    alternative references to Board rules are available.
    As
    a routine matter,
    the Board proposes
    a small
    number of revisions to
    the text of Sections 310.107 and
    310.110.
    The Board proposes amending
    all the
    incorporations of federal regulations
    by reference at Section 310.107(c) to to
    the 1989 edition of the Code of Federal Regulations.
    The Board proposes
    similarly
    updating
    the
    CFR
    references
    in
    the
    Board
    Notes
    of
    Section
    310.110.
    The
    Board
    proposes
    adding
    the
    name
    of
    the
    court
    and
    date
    of
    decision
    to
    the
    reference
    to
    NRDC
    v.
    Costle
    in
    Section
    310.107(a),
    to
    complete
    that
    reference.
    Finally,
    the
    Board
    proposes
    adding
    the
    phrase
    “et
    seq.”
    to
    the
    statutory reference to Subtitles
    C and D of
    the Resources Conservation and
    Recovery Act in Section 310.107(c),
    in order to avoid any confusion that the
    Board did not
    intend the entirety of those
    Subtitles.
    The Board solicits comments, most specifically
    IJSEP.A and the Agency,
    as
    to these
    updates to the definition of “sludge requirements” and the
    incorporations by reference.
    SUBPART G:
    FUNDAMENTALLY DIFFERENT FACTORS
    Section 310.711
    Application Deadline
    106—3 63

    —6-
    This section derives from 40 CFR 4O3.l3(g).
    USEPA amended the
    corresponding federal sectio
    at
    54 Fed.
    Rec. 258, January 4,
    1989.
    The Board
    pr’poses to update the Board
    note to this Section, but does
    not propose to
    am~nd35
    Iii.
    Adrr,,
    Codn 310.711(b)
    to
    include the federal amendment.
    Such
    revision is unnecessary.
    The
    USEPA. amendments to
    40
    CFPV 403.13(n)
    insert July 3,
    1989
    as the
    deadline for ‘fundamental1y different factoFs’ petitions from those affected
    by categorical pretreatment standards promulgated
    prior to February
    ~,
    1987
    (the date that Congress adopted the Water Quality Act of 1987).
    Unc~’~’the
    federal
    revisio~s,USEPA will give those affected
    by
    later standards i~Odays
    from the date of promulgation to file their petitions.
    USEPA intends to
    rnvise the substantive
    “FDF’
    criteria
    at
    a later date in response
    to the WQA
    of
    1987.
    The Board will update the date of
    the CFR
    in the Board note to this
    section,
    but
    it will
    not make any substantive change
    to
    35
    Ill.
    Adm. Code
    310.711
    in response to the federal
    amendment..
    Section 310.711(b) (1) provides
    that petitioners must direct their FOE petitions to USEPA until
    USEPI\ approves
    the state pretreatment program.
    USEPA has not yet authorized
    the Illinois
    procram.
    Section 310.711(h)(2) already provides that petitioners must submit
    thE .r petitions within 180 days of when the Board
    adopts or incorporates a
    st~’~dardthat brings that person into the program.
    The Board
    invites comments, most specifically from USEPA and the Agency,
    as to its proposec
    amendment to this section.
    FEDERAL AMENDMENTS
    NOT PROPOSED TO THE PRETREATMENT RULES
    During this update period USEPA also updated effluent criteria contained
    in
    40 CFR 414 and 471.
    As was discussed in the R86-44 Opinion
    (pages
    6,
    12,
    13 and
    15),
    the Board construes Section
    13.3 of the Act
    as
    requirinG
    adoption
    of regulations.
    However, the Board recognizes that the language of Section
    13.3 does not specifically
    limit the authority to “pretreatment”.
    The Board
    solicits comment
    as
    to whether, absent legislative clarification,
    it
    is
    correctly construing
    its Section
    13.3 authority as precluding
    it from
    augmenting or replacing the effluent standards of
    35
    Ill. Adm. Code 304, and
    NPDES permit
    rules of
    35
    Ill.
    Adra. Code
    309, using the identical
    in substance
    procedures.
    Amendments to
    the effluent standards
    in the instant proceeding impact the
    direct discharge point sources
    in the organic chemicals,
    plastics,
    and
    synthetic fibers category (40 CFR 414, Subparts
    I
    and J)
    and
    in the nickel—
    cobalt forming, the zirconium-hafnium forming, and
    the metal powders
    subcategories of the nonferrous metals
    forming and metal powders point source
    category
    (40 Cr: 471, Subparts
    C,
    I,
    and 3).
    These effluent
    rules are
    companions
    to the federal
    pretreatment requirements in
    the USEPA rules.
    We
    also note that these recent parallel federal effluent amendments raise several
    of the same issues and questions as do the new federal
    sewage sludge use and
    management
    program.
    As
    it
    aid
    for the
    above
    discussion
    of
    the sludge rules,
    the Board
    notes that USEPA preamble discussions and authority notes do not
    always fully guide the Board.
    Is the authority exercised
    by USEPA
    in adopting
    effluent amendments outside the scope of those Clean Water Act provisions that
    106—364

    —7—
    would
    evoke
    the
    Board’s
    Section
    13.3
    identical
    in substance mandate?
    The
    Board requests comment on this issue.
    Also as described above, Section 13(b)
    of the Act mandates that the Board
    adopt “requirements, standards, and procedures
    ...
    necessary or appropriate to
    enable the State
    of
    Illinois to implement and participate
    ‘fn the
    ENPDES
    program
    ....“
    These categorical
    effluent rules
    are necessarily a mandatory
    part of the state NPDES program.
    Section 39(b)
    of the Act and various of the
    Board’s Part 309 rules authorize the Agency to
    impose permit conditions
    predicated
    on
    federal
    NPDES
    standards
    and
    limitations.
    Noting
    the
    potential
    anomaly
    of
    the
    Board
    adopting pretreatment regulations but not the companion
    effluent regulations for the same industrial categories,
    the Board questions
    whether
    it
    should
    assemble
    a
    rulemaking proposal
    to adopt the federal effluent
    limitations into the Water Pollution Control requirements.
    The
    Board
    summarizes
    its
    concerns:
    Does
    any
    aspect
    of
    the
    categorical
    federal effluent effluent requirements fall within the
    “identical
    in
    substance” mandate of Section 13.3 of the Act?
    Do they fall within the
    mandate of Section 13(b)?
    Should the Board begin
    to assemble
    a rulemaking
    proposal that would incorporate the substance of these requirements?
    Should
    the Board approach
    the General Assembly for some new
    rulemaking authority to
    adopt rules identical
    in substance to the federal categorical effluent
    requirements?
    SUBMITTING PUBLIC COMMENTS
    The Board will
    immediately submit this proposal for publication
    in the
    Illinois Register and for public
    comment.
    The statutory public comment period
    will
    end
    45
    days
    after
    the date of publication
    in the Illinois Register, at
    which time the Board will immediately prepare for final action on
    these
    proposed
    amendments.
    It
    is
    therefore
    important
    that
    commenters
    make
    their
    submissions
    promptly
    and
    directly
    to
    the
    Board,
    so
    the
    Board
    can obtain the
    benefit of
    their input.
    IT
    IS SO ORDERED.
    1, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby
    certify that the above Proposed Opinion was adopted on the d.”(~ day
    of ,~/Q~(
    ~
    ~-‘~-~
    1989,
    by a vote of
    (.
    “~
    “7,
    ~ ~
    ,~)
    Dorothy M. ~inn,Clerk
    Illinois Pol’lution Control
    Board
    106—365

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