FIRST DRAFT (5/6/98 by MJM)

ILLINOIS POLLUTION CONTROL BOARD

January 10, 2002

IN THE MATTER OF:

)

WASTEWATER PRETREATMENT ) R02-3

UPDATE, USEPA AMENDMENTS ) (Identical-in-Substance

(January 1, 2001 through June 30, 2001) ) Rulemaking - Public Water Supply)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

Under Sections 7.2 and 13.3 of the Environmental Protection Act (Act) (415 ILCS 5/7.2

and 13.3 (2000)), the Board today adopts amendments to the Illinois regulations that are

“identical in substance” to wastewater pretreatment regulations that the United States

Environmental Protection Agency (USEPA) adopted to implement Sections 307(b), (c), and (d)

and 402(b)(8) and (b)(9) of the federal Water Pollution Control Act (FWPCA) (33 U.S.C.

§§ 1317(b), (c), and (d) and 1342(b)(8) and (b)(9) (1994)). The nominal timeframe of this

docket includes federal wastewater pretreatment amendments that USEPA adopted in the period

January 1, 2001 through June 30, 2001.

Sections 7.2 and 13.3 provide for quick adoption of regulations that are identical in

substance to federal wastewater pretreatment regulations that USEPA adopts to implement

Sections 307(b), (c), and (d) and 402(b)(8) and (b)(9) of the FWPCA. Section 13.3 also provides

that Title VII of the Act and Section 5 of the Administrative Procedure Act (APA) (5 ILCS

100/5-35 and 5-40 (2000)) do not apply to the Board’s adoption of identical-in-substance

regulations. The federal wastewater pretreatment regulations are found at 40 C.F.R. 400 through

499.

This opinion supports an order that the Board also adopts today. The Board will

promptly file these adopted amendments with the Office of the Secretary of State and will cause

the adopted amendments to be published in the

Illinois Register

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

The following briefly summarizes the federal actions considered in this rulemaking.

Docket R02-3: January 1, 2001 through June 30, 2001 Wastewater

Pretreatment Amendments

USEPA amended the federal wastewater pretreatment regulations on six occasions during

the period January 1, 2001 through June 30, 2001. This is summarized below:

66 Fed. Reg. 3466 (January 16, 2001)

By a direct final rule, USEPA approved the use of updated test procedures for

determination of various contaminants in water and wastewater. USEPA amended 40

C.F.R. 136, but later withdrew the amendments on May 15, 2001.

66 Fed. Reg. 3770 (January 22, 2001)

USEPA adopted effluent limitations and new source performance standards applicable to

the offshore and coastal subcategories of the oil and gas extraction point source category.

The amendments pertained only to direct discharges, and did not pertain to any

pretreatment standards.

66 Fed. Reg. 26795 (May 15, 2001)

USEPA withdrew its January 16, 2001 (66 Fed. Reg. 3466) direct final rule that approved

the use of updated test procedures for determination of various contaminants in water and

wastewater.

66 Fed. Reg. 30807 (June 8, 2001)

USEPA corrected its January 22, 2001 (66 Fed. Reg. 3770) effluent limitations and new

source performance standards for the oil and gas extraction point source category.

66 Fed. Reg. 32774 (June 18, 2001)

USEPA adopted technical corrections to the test procedures for determination of mercury

in water and wastewater. USEPA amended 40 C.F.R. 136, which is incorporated by

reference in 35 Ill. Adm. Code 310.107.

66 Fed. Reg. 33134 (June 20, 2001)

USEPA adopted a correction to its January 22, 2001 (66 Fed. Reg. 6850) effluent

limitations and new source performance standards applicable to the offshore and coastal

subcategories of the oil and gas extraction point source category.

No Board Action on Certain Federal Actions

Some of the federal actions that occurred during the period of January 1, 2001 through

June 30, 2001 required no action on the part of the Board to amend the Illinois drinking water

regulations. The Board summarizes those federal actions here:

1. No action was necessary on the federal January 22, 2001 (66 Fed. Reg. 3770) effluent

limitations and new source performance standards applicable to sources in the offshore

and coastal subcategories of the oil and gas extraction point source category. The same

was true of the June 8, 2001 (66 Fed. Reg. 30807) and June 20, 2001 (66 Fed. Reg.

33134) corrections to the January 22, 2001 amendments. There are two reasons why no

Board action was necessary on these three actions. First, there are no sources in the

offshore and coastal subcategory in Illinois. Section 7.2(a)(1) of the Act (415 ILCS

5/7.2(a)(1) (2000)) prohibits the Board from adopting regulations that do not apply to

facilities in this State. Second, all of the amendments relate to direct discharges to the

waters of the United States, not to indirect discharges to the collection system of a

publicly owned treatment works (POTW) that would be subject to wastewater

pretreatment standards.

2. On May 15, 2001 (66 Fed. Reg. 26795), USEPA withdrew its direct final rule of January

16, 2001 (66 Fed. Reg. 3466) in which it approved updated test procedures for water

contaminants. This withdrawal obviated Board action on the January 16, 2001

amendments.

No Later Wastewater Pretreatment Amendments Requiring Action Here

The Board engages in ongoing monitoring of federal actions. As of the date of this

opinion and accompanying order, we have identified one USEPA action since June 30, 2001 that

further amends the wastewater pretreatment rules. But no action is being taken on these

amendments in this docket, for the reasons discussed below.

On October 3, 2001 (at 66 Fed. Reg. 32774), USEPA added a provision to the federal

wastewater pretreatment regulations that allows the states to modify local pretreatment programs

to implement federal Project XL agreements. On October 31, 2001, the Board received from the

Illinois Environmental Protection Agency and the Metropolitan Water Reclamation District of

Greater Chicago a request for expedited consideration of the October 3, 2001 action in this

docket. On November 15, 2001, the Board declined to introduce the October 3, 2001

amendments into this docket, but instead granted expedited consideration of the amendments in a

new wastewater pretreatment docket, Wastewater Pretreatment Update, USEPA Amendments

(Oct. 3, 2001), R02-9 (Nov. 15, 2001), specifically for the later federal amendments.

Summary Tabulation of the Federal Action Included in This Docket

June 18, 2001

(66 Fed. Reg. 32774)

Technical corrections to the test procedures for determination of

mercury in water and wastewater in 40 C.F.R. 136.

PUBLIC COMMENTS

The Board adopted a proposal for public comment involving the present amendments on

October 4, 2001. A Notice of Proposed Amendments appeared in the October 26, 2001 issue of

the

Illinois Register

, at 26 Ill. Reg. 13373, which started the public comment period. The Board

held the public comment period on the proposal open for 45 days following its publication, until

December 10, 2001. We received no comments on the proposal.

DISCUSSION

The following discussion begins with a description of the types of deviations the Board

makes from the literal text of federal regulations in adopting identical-in-substance rules. It is

followed by a discussion of the amendments and actions undertaken in direct response to the

federal actions involved in this proceeding. This first series of discussions is organized by

federal subject matter, generally appearing in chronological order of the relevant

Federal

Register

notices involved. Finally, this discussion closes with a description of the amendments

and actions that are not directly derived from the federal actions.

General Revisions and Deviations from the Federal Text

In incorporating the federal rules into the Illinois system, some deviation from the federal

text is unavoidable. This deviation arises primarily through differences between the federal and

state regulatory structure and systems. Some deviation also arises through errors in and

problems with the federal text itself. The Board conforms the federal text to the Illinois rules

and regulatory scheme and corrects errors that we see in the text as we engage in these routine

update rulemakings.

In addition to the amendments derived from federal amendments, the Board often finds it

necessary to alter the text of various passages of the existing rules as provisions are opened for

update in response to USEPA actions. This involves correcting deficiencies, clarifying

provisions, and making other changes that are necessary to establish a clear set of rules that

closely parallel the corresponding federal requirements within the codification scheme of the

Illinois Administrative Code.

The Board updates the citations to the

Code of Federal Regulations

to the most recent

version available. As of the date of this opinion, the most recent version of the

Code of Federal

Regulations

available to the Board is the July 1, 2000 version. Thus, we have updated all

citations to the 2000 version, adding references to later amendments using their appropriate

Federal Register

citation, where necessary.

The Board has further updated the citations to the

United States Code

to the latest official

edition available, which is the 1994 edition (updated through the supplement 5, January 23,

2000). We have further changed the former “as of July 1, 1988” with “ as amended through

. . .,” setting forth the date of the latest amendments to the individual statute. The date of the

latest amendments was January 6, 1999 for Section 1001 of the Criminal Code (18 U.S.C. 1001

(1994) (relating to false statements), October 31, 1994 for the Clean Water Act (33 U.S.C. 1251

et seq.

(1994)), and March 26, 1996 for the Resource Conservation and Recover Act of 1976 (42

U.S.C. 6901

et seq.

(1994)).

The Board has assembled a table to aid in the location of these alterations and to briefly

outline their intended purpose. The table sets forth the miscellaneous corrections to the pre-

amended base text of the rules in detail. The table is set forth and explained beginning on the

next page of this opinion and order. There is no further discussion of most of the deviations and

revisions elsewhere in this opinion.

Discussion of the Federal Action

Technical Correction to the Methods for Measurement of Mercury in Water—Section

310.107

On June 18, 2001 (66 Fed. Reg. 32774), USEPA adopted technical corrections to its

“Guidelines Establishing Test Procedures for the Analysis of Pollutants.” The corrections

clarified the use of field blanks for mercury testing under the Clean Water Act. The corrections

rectified an omission in the version of “Method 1631: Mercury in Water by Oxidation, Purge

and Trap and Cold Vapor Atomic Fluorescence Spectrometry.” USEPA originally adopted

Method 1631 on May 26, 1998 (63 Fed. Reg. 28867). On June 8, 1999 (64 Fed. Reg. 30417),

USEPA adopted Revision B to this method. As a result of litigation involving this method, in

Alliance of Automobile Manufacturers v. EPA, No. 99-1420 (D.C. Cir.), USEPA agreed to

revise the method relating to the use of field blanks. To effect the corrections, USEPA added a

reference to Revision C to Method 1631 at 40 C.F.R. 136.3(b)(41). Incorporating the technical

corrections, USEPA stated that it would follow through with more substantive amendments to

Method 1631 in the future.

The Board incorporated the federal technical corrections into the Illinois wastewater

pretreatment regulations without deviation. 40 C.F.R. 136 is incorporated by reference at 35 Ill.

Adm. Code 310.107(b). To incorporate the federal amendments into the Illinois wastewater

pretreatment regulations, the Board updates the reference to 40 C.F.R. 136 to include the June

18, 2001 amendments. Persons interested in the substance of the underlying federal action

should refer to the notice that appeared in the January 16, 2001 issue of the

Federal Register

The Board received no public comment on our incorporation of the June 18, 2001 federal

technical corrections to Method 1631 for determining mercury in water into the Illinois

wastewater pretreatment regulations.

Discussion of Miscellaneous Housekeeping Amendments

The tables below list numerous corrections and amendments that are not based on current

federal amendments. Table 1 (beginning immediately below) includes corrections and

clarifications that the Board made in the base text involved in this rulemaking. Table 2

(beginning immediately after Table 1) is a listing of revisions made to the text of the

amendments from that proposed and set forth in the Board’s opinion and order of October 4,

2001. Table 2 indicates the changes made, as well as the source that suggested each of the

changes. Some of the entries in this table are discussed further in the general discussion on the

previous page of this opinion.

Table 1:

Board Housekeeping Amendments

Section Source

Revision(s)

310.107(a)(1)

Board

Added the parallel Westlaw citation for the court order

310.107(b) “40 CFR

2.302”

Board Updated the

Code or Federal Regulations

citation to

the latest edition available

310.107(b) “40 CFR

25”

Board Updated the

Code or Federal Regulations

citation to

the latest edition available

310.107(b) “40 CFR

122”

Board Updated the

Code or Federal Regulations

citation to

the latest edition available

310.107(b) “40 CFR

403”

Board Updated the

Code or Federal Regulations

citation to

the latest edition available

310.107(b) “40 CFR

403, Appendix D”

Board Updated the

Code or Federal Regulations

citation to

the latest edition available

310.107(c)(1)

Board

Changed “the Criminal Code” to “Crimes and Criminal

Procedure”; added the date of the latest edition of the

United States Code

310.107(c)(2)

Board

Added the date of the latest edition of the

United States

Code

; changed “as of July 1, 1988” to “amended

through October 31,1994”

310.107(c)(3)

Board

Added the date of the latest edition of the

United States

Code

; changed “as of July 1, 1988” to “amended

through March 26, 1996”

Table 2:

Revisions to the Text of the Proposed Amendments in Final Adoption

Section Revised

Source(s) of

Revision(s)

310.107(c)(1) JCAR,

Board

Changed “the Criminal Code” to “Crimes and Criminal

Procedure”; updated the version to the 2000 edition,

deleting the “as of . . .”

ORDER

The complete text of the proposed amendments follows:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 310

PRETREATMENT PROGRAMS

SUBPART A: GENERAL PROVISIONS

Section

310.101 Applicability

310.102 Objectives

310.103 Federal Law

310.104 State Law

310.105 Confidentiality

310.107 Incorporations by Reference

310.110 Definitions

310.111 New Source

SUBPART B: PRETREATMENT STANDARDS

Section

310.201 General Prohibitions

310.202 Specific Prohibitions

310.210 Specific Limits Developed by POTW

310.211 Local Limits

310.220 Categorical Standards

310.221 Category Determination Request

310.222 Deadline for Compliance with Categorical Standards

310.230 Concentration and Mass Limits

310.232 Dilution

310.233 Combined Wastestream Formula

SUBPART C: REMOVAL CREDITS

Section

310.301 Special Definitions

310.302 Authority

310.303 Conditions for Authorization to Grant Removal Credits

310.310 Calculation of Revised Discharge Limits

310.311 Demonstration of Consistent Removal

310.312 Provisional Credits

310.320 Compensation for Overflow

310.330 Exception to POTW Pretreatment Program

310.340 Application for Removal Credits Authorization

310.341 Agency Review

310.343 Assistance of POTW

310.350 Continuation of Authorization

310.351 Modification or Withdrawal of Removal Credits

SUBPART D: PRETREATMENT PERMITS

Section

310.400 Preamble

310.401 Pretreatment Permits

310.402 Time to Apply

310.403 Imminent Endangerment

310.410 Application

310.411 Certification of Capacity

310.412 Signatures

310.413 Site Visit

310.414 Completeness

310.415 Time Limits

310.420 Standard for Issuance

310.421 Final Action

310.430 Conditions

310.431 Duration of Permits

310.432 Schedules of Compliance

310.441 Effect of a Permit

310.442 Modification

310.443 Revocation

310.444 Appeal

SUBPART E: POTW PRETREATMENT PROGRAMS

Section

310.501 Pretreatment Programs Required

310.502 Deadline for Program Approval

310.503 Incorporation of Approved Programs in Permits

310.504 Incorporation of Compliance Schedules in Permits

310.505 Reissuance or Modification of Permits

310.510 Pretreatment Program Requirements

310.521 Program Approval

310.522 Contents of Program Submission

310.524 Content of Removal Allowance Submission

310.531 Agency Action

310.532 Defective Submission

310.533 Water Quality Management

310.541 Deadline for Review

310.542 Public Notice and Hearing

310.543 Agency Decision

310.544 USEPA Objection

310.545 Notice of Decision

310.546 Public Access to Submission

310.547 Appeal

SUBPART F: REPORTING REQUIREMENTS

Section

310.601 Definition of Control Authority

310.602 Baseline Report

310.603 Compliance Schedule

310.604 Report on Compliance with Deadline

310.605 Periodic Reports on Compliance

310.606 Notice of Potential Problems

310.610 Monitoring and Analysis

310.611 Requirements for Non-Categorical Standard Users

310.612 Annual POTW Reports

310.613 Notification of Changed Discharge

310.621 Compliance Schedule for POTW’s

310.631 Signatory Requirements for Industrial User Reports

310.632 Signatory Requirements for POTW Reports

310.633 Fraud and False Statements

310.634 Recordkeeping Requirements

310.635 Notification of Discharge of Hazardous Waste

SUBPART G: FUNDAMENTALLY DIFFERENT FACTORS

Section

310.701 Definition of Requester

310.702 Purpose and Scope

310.703 Criteria

310.704 Fundamentally Different Factors

310.705 Factors which are Not Fundamentally Different

310.706 More Stringent State Law

310.711 Application Deadline

310.712 Contents of FDF Request

310.713 Deficient Requests

310.714 Public Notice

310.721 Agency Review of FDF Requests

310.722 USEPA Review of FDF Requests

SUBPART H: ADJUSTMENTS FOR POLLUTANTS IN INTAKE

Section

310.801 Net/Gross Calculation by USEPA

SUBPART I: UPSETS

Section

310.901 Definition

310.902 Effect of an Upset

310.903 Conditions Necessary for an Upset

310.904 Burden of Proof

310.905 Reviewability of Claims of Upset

310.906 User Responsibility in Case of Upset

SUBPART J: BYPASS

Section

310.910 Definition

310.911 Bypass Not Violating Applicable Pretreatment Standards or Requirements

310.912 Notice

310.913 Prohibition of Bypass

SUBPART K: MODIFICATION OF POTW PRETREATMENT PROGRAMS

Section

310.920 General

310.921 Substantial Modifications Defined

310.922 Approval Procedures for Substantial Modifications

310.923 Approval Procedures for Non-Substantial Modifications

310.924 Incorporation of Modifications into the Permit

AUTHORITY: Implementing and authorized by Sections 7.2, 13, 13.3, and 27 of the

Environmental Protection Act [415 ILCS 5/7.2, 13, 13.3 and 27].

SOURCE: Adopted in R86-44 at 12 Ill. Reg. 2502, effective January 13, 1988; amended in R88-

18 at 13 Ill. Reg. 2463, effective January 31, 1989; amended in R89-3 at 13 Ill. Reg. 19243,

effective November 27, 1989; amended in R89-12 at 14 Ill. Reg. 7608, effective May 8, 1990;

amended in R91-5 at 16 Ill. Reg. 7346, effective April 27, 1992; amended in R95-22 at 20 Ill.

Reg. 5533, effective April 1, 1996; amended in R96-12 at 20 Ill. Reg. 10671, effective July 24,

1996; amended in R97-7 at 21 Ill. Reg. 5163, effective April 10, 1997; amended in R98-23 at 22

Ill. Reg. 11465, effective June 22, 1998; amended in R99-17 at 23 Ill. Reg. 8412, effective July

12, 1999; amended in R00-7 at 24 Ill. Reg. 2372, effective January 26, 2000; amended in R00-15

at 24 Ill. Reg. 11633, effective July 24, 2000; amended in R01-5 at 25 Ill. Reg. 1322, effective

January 11, 2001; amended in R01-25 at 25 Ill. Reg. 10860, effective August 14, 2001; amended

in R02-3 at _____ Ill. Reg. ________, effective ______________________.

SUBPART A: GENERAL PROVISIONS

Section 310.107 Incorporations by Reference

a) The following publications are incorporated by reference:

1) The consent decree in NRDC v. Costle, 1978 WL 23471, 12 Environment

Reporter Cases 1833 (D.C. Cir. August 16, 1978).

2) Standard Industrial Classification Manual (1972), and 1977 Supplement,

republished in 1983, available from the Superintendent of Documents,

U.S. Government Printing Office, Washington, D.C. 20401.

b) The following provisions of the Code of Federal Regulations are incorporated by

reference:

40 CFR 2.302 (1999) (2000)

40 CFR 25 (1999) (2000)

40 CFR 122, Appendix D, Tables II and III (1999) (2000)

40 CFR 128.140(b) (1977)

40 CFR 136 (1999) (2000), as amended at 64 Fed. Reg. 42552, August 4,

1999, 64 Fed. Reg. 73414, December 30, 1999, 65 Fed. Reg. 3008,

January 19, 2000, and 65 Fed. Reg. 81242, December 22, 2000 and 66

Fed. Reg. 32774 (June 18, 2001)

40 CFR 403 (1999) (2000)

40 CFR 403, Appendix D (1999) (2000)

The following federal statutes are incorporated by reference:

Section 1001 of the Criminal Code Crimes and Criminal Procedure (18

USC 1001 (1994) (2000)) as of July 1, 1988

Clean Water Act (33 USC 1251 et seq. (1994)) as of July 1, 1988 amended

through October 31, 1994

Subtitles C and D of the Resource Conservation and Recovery Act (42

USC 6901 et seq. (1994)) as of July 1, 1988 amended through March 26,

1996

This Part incorporates no future editions or amendments.

(Source: Amended at _____ Ill. Reg. ________, effective ______________________)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, do certify that the

Board adopted the above opinion and order on January 10, 2002, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board