RECEIVED
CLERK’S
OFFICE
FEB
1
5
200Z
STATE OF IWNOIS
Pollution
Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph, Suite
11-500
Chicago, Illinois 60601
Ms. Connie L. Tonsor
Associate Counsel
Special Assistant Attorney
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dated:
/3/
Z~O
~
U.S. Environmental Protection
Agency Region 5
77 West Jackson Boulevard
Chicago, Illinois 60604
MichaelMcCambridge
Hearing Officer
James R.
Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois
60601
Michael G. Rosenberg, Attorney
Law Department
Metropolitan Water Reclamation District
of Greater Chicago
100 East Erie Street
Chicago, Illinois
60611
U.S. ENVIRONMENTAL PROTECTION
AGENCY
REGION
5
By:__
David A. Ullrich
Deputy Regional Administrator
BEFORE THE
IN THE MATTER OF:
WASTEWATER PRETREATMENT
UPDATE, USEPA AMENDMENTS
(October 3, 2001)
)
)
)
R02-9
)
(Identical-in-Substance
)
Rulemaking)
NOTICE
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the COMMENT
of the U.S. Environmental Protection Agency
in the above matter, a copy of
which is served
upon
you.
RECEIVED
CLERK’S
OFFVF
FEB
1
5
2002
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
TATE
OF IWNOIS
Pollution
Control Board
IN THE MATTER OF:
)
)
WASTE WATER PRETREATMENT
)
R02-9
UPDATE, USEPA AMENDMENTS
)
(Identical-In-Substance
(October
3, 2001)
)
Rulemaking)
1.
Without commenting on
matters that pertain strictly to State
law, we support comments
provided by the Illinois Environmental Protection Agency (IEPA) regarding this proposal, as they pertain
to the Project eXcellence and Leadership (ProjectXL) Agreement with the Metropolitan Water
Reclamation District of Greater Chicago, and the Federal rule promulgated on October 3,
2001, to
implement that
and other XL projects.
Specifically, we believe that the Illinois Pollution Control
Board’s (the Board) proposed Ill. Admin. Code
Section 310.930(b) is not identical in substance to the
Federal Project XL ru!~,
and would add procedural requirements not contemplated under the Federal XL
process.
2.
On August 30, 2000, the U.S. Environmental Protection Agency (U.S. EPA), IEPA, and the
Metropolitan Water Reclamation District of Greater Chicago (the District) entered into a Final Project
Agreement under U.S. EPA’s Project XL.
The parties solicited involvement from a wide range of
stakeholders,
and a number of industry, environmental and other nongovernmental organizations actively
participated in the stakeholder process.
The Agreement represented ajoint statement of the plans and
commitments of the parties to carry out a pilot project, and would allow the District to implement
its
pretreatment requirements in an innovative manner.
It
is not a contract or regulatory action, and is not
binding or enforceable against any party.
3.
On
October 3, 2001, U.S. EPA promulgateda final rule for Pretreatment Program Reinvention
PilotProjects under Project
XL
at 40 CFR 403.20
(66
FR
50334).
This rule provides, at the Federal
level, the regulatory flexibility that will enable the five Publicly Owned Tceatment Works (POTW) with
signed Project
XL
Agreements (including the District), to implement their projects.
In addition, the
regulation will
enable ten currently undefined projects to participate in and successfully complete the
project XL process.
The
rule recognized, however, that the affected states may first need to revise their
own regulations or statutes to authorize the pilot programs for pretreatment XL project sponsors before
the Federal rule could be implemented in theirjurisdictions.
4.
On November 30, 2001, in responseto JEPA and the District’s request for an expedited
rulemaking, the Board proposed amendments to Ill. Admin. Code Section 310 to incorporate the Federal
Project XL rule.
Under the proposed Section 310.930, the Board provided that the TEPA may modify the
District’s permits in accordance with the XL Agreement finalized on August30, 2000.
However, any
subsequent Project XL agreements would need to be presented to the Board in a rulemaking, adjusted
standard or variance proceeding as established by the Illinois Environmental Protection Act.
5.
Historically, where there have been revisions to the Federal pretreatment rules, the Board has
adopted those rules in an “identical in substance” manner.
U.S. EPA believed that to implement the
District’s XL Project, the Board would use
its identical in substance rulemaking process, and would
amend the state regulations by adopting language that was essentially the same as the Federal rule.
6.
In actuality, however, the process identified in the Board’s proposal differs from the process
established under the Federal rule, and does not appear to be identical in substance.
Under the Federal
provision, 40 CFR 403.20, the Approval Authority may allow any POTW that has afinal Project XL
Agreement to implement a Pretreatment Program that includes legal authorities and requirements that are
different than the administrative requirements otherwise applicable under that part.
The POTW must
submit the agreed upon alternative requirements as a substantial program modification to its Approval
Authority, which in this case is U.S. EPA Region
5,
in accordance with 40
CFR
403.18.
The approved
modified program would then be incorporated by the National Pollutant Discharge Elimination System
(NPDES) permitting authority as an enforceable part ofthe POTW’s NPDES permit.
IEPA is the agency
with whom U.S. EPA interacts regarding implementation ofthe Clean WaterAct and other Federal
environmental programs.
7.
An
identical in
substance rule at the State
level would have authorized IEPA to allow any
POTW that has a final XL Agreement (one which as been agreed to by
U.S. EPA, IEPA, and any other
parties with input from
interested stakeholders) to implement a Pretreatment Program that includes legal
authorities and requirements that are different than the administrative requirements otherwise applicable
under the state’s pretreatment regulations.
An identical in substance rule would not have required the
POTW to go through a site-specific rulemaking process.
Under the Board’s proposal, however, each
additional XL project would have to go through a site-specific rulemaking.
8.
In addition, the Board is proposing procedural requirements under Section
3 10.930(b) beyond
those anticipated under the Federal XL process.
The Federal XL rule provides for a POTW with an XL
Agreement to obtain a Pretreatment Program modification from its Approval Authority, (U.S. EPA
Region
5).
Under the Federal Pretreatment Program, there is no formal mechanism for an undelegated
state suc~i
as Illinois to review and approve proposed POTW Pretreatment Program changes in a
regulatory proceeding.
Under 40
CFR 403.20,
such POTWs
would submit aproposed substantial
Pretreatment Program modification to their Approval Authority, and the Approval Authority would
review and approve the modification, after completing the necessary public notice requirements.
The
State would not be substantively involved in this process. Yet, in the scenario created under the Board’s
proposed rule, the Board would have an opportunity to review and potentially object to a proposed
pretreatment program modification.
Thus, a situation could arise where LEPA endorses an XL project,
and the Board subsequently disapproves it.
Accordingly, the status of that project would be unclear, at
best.
9.
Based on the above, we share IEPA’s concern that the process laid out in the Board’s
proposal, which was not anticipated by the parties, would place additional administrative burdens on the
District ifit became necessary to modify its Agreement, and/or on any other POTWs that wished to
pursue aProject XL Agreement in
Illinois.
Project XL is intended to test innovative ideas that
demonstrate environmental excellence and leadership by those who must comply with U.S. EPA
regulations and policies.
Moreover, the intent of promoting XL projects regarding POTW Pretreatment
Programs was to streamline and reduce transactional costs to POTWs, and potentially to U.S. EPA and
state agencies.
In
keeping with this intent, we would encourage the Board to support the current process
whereby all interested parties and stakeholders are given full opportunity to participate during the
developmentof individual Project XL Agreements.
10.
For the reasons set forth above, we believe that the Board’s proposed Ill. Admin. Code
Section 310.930(b)
is not identical in substance to the Federal Project XL rule, and would add procedural
requirements not contemplated under the Federal XL process.
Respectfully submitted,
David
A.
Ullrich
Deputy RegionalAdministrator
Dated:
~
/3,
2~oO
~
U.S.
EPA Region
~‘
77
W. Jackson Blvd
Chicago, IL 60604
STATE OF ILLINOIS
)
COUNTY OF COOK
)
)
PROOF OF SERVICE
I, the undersigned,
on oath state that I have served the attached Comments
upon
the persons to whom
it is directed, by placing a copy
in an
envelope addressed to:
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Ms.
Connie L. Tonsor
Associate Counsel
Special Assistant Attorney
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Michael McCambridge
Hearing Officer
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Michael G. Rosenberg, Attorney
Law Department
Metropolitan Water Reclamation District
of Greater Chicago
100 East Erie Street
Chicago, Illinois 60611
and
mailing
it from Chicago, Illinois on February
13, 2002 with sufficient postage affixed.
SUBSCRIBED AND SWORN TO BEFORE ME
this
______
day of’~Q.
,
2002.
NOTARY PUBLIC
~
OFFICIAL
SEAL
JOSEPH
H.
KRUTH
Notary
Public,
State of Illinois
My Commission
Expires
07/24/04
