ILLINOIS POLLUTION CONTROL BOARD
May 5, 1994
IN THE
MATTER
OF:
)
R93—20
PRETREATMENT UPDATE,
)
(Identical in Substance
USEPA REGULATIONS,
)
Rulemaking)
(1—1—93 THROUGH 6—30—93)
)
DISMISSAL ORDER.
ORDER OF THE BOARD (by J. Theodore Meyer):
Section 13.3 of the Environmental Protection Act (Act) (415
ILCS 5/13.3 (1992)) requires the Board to adopt regulations which
are “identical in substance” to USEPA rules adopted to implement
Sections 307 and 409 of the Clean Water Act. The term “identical
in substance” is defined in Section 7.2 of the Act.
This docket was reserved to update the Illinois pretreatment
rules (codified at 35 Ill. Adm. Code 307, 309, and 310) to
correspond with federal amendments adopted in the period from
January 1 through June 30, 1993. The only federal amendments
adopted during this period are amendments to the federal sewage
sludge management rules, adopted on February 19, 1993, at 58 Fed.
Reg. 9248. Those February 19 rules amend the removal credits
provisions, and include amendments to 40 CFR 403. The Illinois
counterpart to Part 403 is 35 Il.. Adm. Code 310.1
On February 3, 1994, the Board issued an extension of time
order, stating that this proceeding had been delayed while we
considered our authority to adopt the February 19 federal
amendments under the identical in substance provisions of the
Act. That order was published in the Illinois Register on
February 18, 1994, at 18 Ill. Reg. 2666. The Board subsequently
received one public comment, from the Illinois Environmental
Protection Agency (Agency). (PC #1.)
The February 19 amendments cite Sections 405(d) and (e) of
the Clean Water Act as authority for those regulations. (58 Fed.
Reg. 9248, 9250.) Section 13.3 of the Act allows the Board to
adopt rules that are identical in substance to federal rules
adopted pursuant to Sections 307(b),
(C),
(d), 402(b) (8) and
(b)(9) of the Clean Water Act. (415 ILCS 5/13.3 (1992).) Thus,
the February 19 federal amendments do not fall under the
provisions allowing the Board to adopt rules identical in
substance.
The federal wastewater pretreatment regulations are
found at 40 CFR 400 through 499.
2
The Agency, in its comments (PC #1), agrees that there is
“questionable” authority for the Board to proceed identical in
substance. The Agency recommends that the Board defer
development of a proposal until at least November 1994. The
Agency also contends that there would be no environmental
improvement as a result of Board action at this time, and that
adopting rules at this time would result in potential confusion
in the regulated community. The Agency states that USEPA has
indicated that the sewage sludge regulations are directly
enforceable, so that generators and disposers are already
obligated to observe those regulations. After a state has a
sludge management program approved by USEPA, the sewage sludge
management rules can be implemented through any of several permit
programs, including NPDES. The Agency states that it is actively
engaged in discussing (with USEPA) the necessary elements of a
sludge management program for Illinois, with a decision on
whether to apply expected in September 1995. Until that time,
the Agency states that users and disposers are subject to the
stricter of 40 CFR 503 and the existing state rules at 35
Ill.Adm.Code 309.208.
The Board hereby dismisses this docket. We find that it is
clear, comparing the provisions of Section 13.3 of the Act
(authorizing identical in substance rulemakings for rules
pursuant to Sections 307 and 402 of the Clean Water Act) with the
authority cited for the February 19 rules (Section 405 of the
Clean Water Act), that the Board has no authority to proceed with
an identical in substance rulemaking. Our dismissal is based
solely on the issue of our authority to adopt the rules pursuant
to the identical in substance provisions. Section 13.3 does not
allow the Board to simply defer action on this docket, as the
AgencyITsuggests.IS
SO ORDERED.Therefore,
we dismiss this docket.2
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
4~
day of
______________,
1994, by a vote of
~—ci
Dorothy M. ,~tinn, Clerk
Illinois Pe~ilution Control Board
2 If, in the future, Illinois applies for approval of a
pretreatment or sludge management program, any deficiency caused
by not adopting the February 19 rules can be cured by a
corrective rulemaking. Any person can propose a rulemaking.