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