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ILLINOIS POLLUTION CONTROL BOARD

March 7, 2002

Adopted Rule. Final Order.

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

The Board received a motion for expedited consideration from the Illinois Environmental Protection Agency (Agency) and the Metropolitan Water Reclamation District of Greater Chicago (MWRDGC) on October 31, 2001. By that motion, the Agency and the MWRDGC requested that the Board expedite consideration of certain amendments adopted by United States Environmental Protection Agency (USEPA) on October 3, 2001. Those federal amendments are intended to implement the federal Project eXellence and Leadership (Project XL). The joint motion requested that the Board incorporate the October 3, 2001 federal amendments into the wastewater pretreatment amendments proposed by the Board in Wastewater Pretreatment Update, USEPA Amendments (January 1, 2001 through June 30, 2001), R02-3 (Oct. 4, 2001).

In its November 15, 2001 opinion and order, the Board granted this request and proposed corresponding amendments to the Illinois wastewater pretreatment regulations. A Notice of Proposed Amendments appeared in the November 30, 2001 issue of the Illinois Register, at 25 Ill. Reg. 15365. The public comment period would have expired after 45 days, on January 14, 2002. The Illinois Environmental Protection Agency (Agency) filed comments on January 14, 2002. However, on January 24, 2002, the Board granted the January 11, 2002 request from USEPA that it be allowed to file comments until February 15, 2002. USEPA filed its comments on February 15, 2002.

In this opinion and order, the Board adopts as final amendments based on the October 3, 2001 federal amendments. In response to the Agency and USEPA comments that portions of the Board’s proposal were not truly “identical-in-substance” to the USEPA rules, the Board has deleted a segment of the rule proposed as 35 Ill. Adm. Code 310.930(b).

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 proposes amendments to the Illinois regulations that are “identical in substance” to wastewater pretreatment regulations that the 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 federal action that underlies this docket includes the federal wastewater pretreatment amendments that USEPA adopted on October 3, 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.

The Board will promptly file these amendments with the Office of the Secretary of State.

THE FEDERAL ACTION CONSIDERED IN THIS RULEMAKING

On October 3, 2001 (at 66 Fed. Reg. 50334), USEPA amended the federal wastewater pretreatment regulations to facilitate its Project XL. Project XL allows the imposition of alternative requirements to the generally applicable environmental regulations for the sake of achieving greater environmental benefits by alternative means. The specific October 3, 2001 Project XL action incorporated a new provision in the federal wastewater pretreatment regulations that would allow the State to issue permits that relax the generally applicable regulations in favor of imposing alternative requirements that would confer greater environmental benefits than would compliance with the generally applicable rules. USEPA undertook the October 3, 2001 Project XL action for the immediate benefit of five publicly owned treatment works (POTWs), including the MWRDGC, which is regulated under the Illinois wastewater pretreatment program. ¹ The new provision added to the federal regulations, however, is drafted broadly enough that it would apply to other POTWs in the future.

PUBLIC COMMENTS

The Board adopted a proposal for public comment in this matter on November 15, 2001. A Notice of Proposed Amendments appeared in the November 30, 2001 issue of the Illinois Register, at 25 Ill. Reg. 15365. The public comment period would have expired on January 14, 2002, but the Board extended the public comment period until February 14, 2002 based on the January 11, 2002 request of USEPA. The Board received public comments on this proposal until February 15, 2002. During the comment period, the Board received the following two public comments:

Both the Agency (by PC 1) and USEPA (by PC 2) requested that the Board change the proposal by removing proposed subsection (b). The comments received and the Board’s response are described below in the discussion of the amendments.

DISCUSSION

The Board incorporated the October 3, 2001 federal amendments to the wastewater pretreatment regulations into the Illinois wastewater pretreatment regulations with minimal deviation from the federal text. Persons interested in the substance of the underlying federal action should refer to the notice that appeared in the October 3, 2001 issue of the Federal Register. This discussion considers only incorporating the federal Project XL provision into the Illinois regulations. The Board has found it necessary to deviate from the text of the federal regulations, and this discussion focuses on those deviations.

The first addition to the federal text is the addition of a definition of “Project XL” to the Illinois regulations. We added this definition to Section 310.110, the centralized body of definitions intended for use with the wastewater pretreatment regulations. To define “Project XL” the Board referred to the federal “Project for eXcellence and Leadership” and facility-based and community-based regulatory reinvention projects as described in the two Federal Register notices that announced initiation of the federal program. On May 23, 1995, at 60 Fed. Reg. 27282, USEPA announced the program for facility-based projects, and on November 1, 1995, at 60 Fed. Reg. 55569, USEPA announced expansion of the program to include community-based projects. The definition refers to both Federal Register notices. The Board invites comment on our added definition of “Project XL.”

A second deviation from the federal text relates to the structural changes made in adapting 40 C.F.R. 403 into the Illinois rules at 35 Ill. Adm. Code 310. Many of the federal provisions have been divided into several Sections in the Illinois regulations. Often, a single federal provision equates to a Subpart of Part 310 of the Illinois rules. In codifying the new Project XL-related federal provision, 40 C.F.R. 403.20, the Board has modified the federal text to make the rule conform to this existing codification scheme. The Board has codified new 40 C.F.R. 403.20 as a single Section, 35 Ill. Adm. Code 310.930, but placed it in a new Subpart L, pertaining to federal Project XL agreements.

A less desireable alternative was to place this new Section in existing Subpart K, which currently includes a few Sections based on 40 C.F.R. 403.18, relating to modification of pretreatment programs. This alternative, however, would have required deviation from the existing structure of the Part 310, and it could lead to confusion of the two distinct subject matters of existing Subpart K and Section 310.930. The Board requested comments on our creation of a new Subpart L for new Section 310.930, and none of the comments objected to this aspect of the proposal.

A third set of deviations from the federal text relates to the structure of the rule. The Board has divided the federal text into a preamble and two subsections, (a) and (b). We believe that this division enhances the clarity of the text by separating the general ability of the Agency to issue permits based on Project XL agreements (in the preamble), the requirement for the POTW to submit alternative requirements as a substantial program modification (in subsection (a)), and the requirement for inclusion of a reopener clause in the permit (in subsection (b)). The Board invited comment on our division of the federally derived text into three segments to enhance the clarity of the rule, and none of the comments objected to this aspect of the proposal.

Objections to and Deletion of Section 310.930(b)

In this opinion and order the Board is eliminating a fourth set of deviations from the text of 40 C.F.R. 403.20 that appeared in the November 15, 2001 proposal for public comment. Those related to differences in the federal and Illinois regulatory schemes. The Board is eliminating that fourth set of deviations from the text of the federal rule in response to the comments from the Agency and USEPA. Despite the elimination of these deviations, the Board explains this set of amendments and considers the comments received in this segment of this opinion.

At the federal level, one agency, USEPA, establishes general regulations, issues environmental permits, and grants exceptions or variances from the generally applicable rules. In Illinois, these functions are divided between the Agency and the Board. The Board establishes the Illinois environmental standards and grants variances or adjusted standards from those standards. 415 ILCS 5/5 (1998). The Agency issues all environmental permits and participates directly with USEPA to resolve issues relating to the implementation of federal programs in Illinois. 415 ILCS 5/4 (1998). Basically, this means that although the Agency participates with USEPA in the development of any Project XL agreement relating to an Illinois facility, which confers relief from the federal wastewater pretreatment requirements, the Board must grant any necessary relief from the Illinois regulations that may be needed to implement that Project XL agreement.

The Act establishes the mechanisms that the Board must use to grant regulatory relief. These are by rulemaking (415 ILCS 5/27 and 28 (1998)), by an adjusted standard (415 ILCS 5/28.1 (1998)), or by a variance (415 ILCS 5/35 through 28 (1998)). In order for the implementation of a Project XL agreement to occur in accordance with Illinois law, the Board must grant one form of this relief or another from any regulation that would stand as an impediment to that implementation. For this reason, in the proposal for public comment the Board had conditioned the authority of the Agency to authorize alternative requirements on fulfillment of the requirements of an added subsection (b).

Subsection (b), as proposed, essentially provided for prior Board approval of a Project XL agreement before the Agency and the affected POTW may proceed to implement the agreement. In this provision, the Board differentiated between the Project XL agreement involving the MWRDGC, which USEPA has essentially endorsed by rule, and any subsequent Project XL agreements for which such federal approval by rule is unlikely. In proposed subsection (b)(1) the Board approved (using the identical-in-substance rulemaking authority) to the August 30, 2001 agreement among the Agency, USEPA, and MWRDGC that prompted this action. In proposed subsection (b)(2) the Board provided for Board approval of any subsequent Project XL agreements by alternative means.

The Board invited comment on proposed Section 310.930(b)(1) and (b)(2). USEPA and the Agency both submitted adverse comments on the proposal. Those comments have caused the Board to eliminate proposed subsection (b) in its entirety and make other corresponding changes in the text of this Section to reflect the removal. Thus, proposed subsections (a)(1) and (a)(2) have become subsections (a) and (b), respectively, in the adopted amendments, and subsection (b), which included proposed subsections (b)(1) and (b)(2), has been removed.

In PC 1, the Agency asserted that the Board exhibited a misunderstanding of the Project XL process in the pretreatment area. The Agency further observed that the Board appeared to position itself to review USEPA actions. The Agency further criticized the proposal in that it elevated the Project XL agreement to the status of an enforceable agreement, while the agreement itself provides that it is not enforceable against any party.

In PC 2, USEPA similarly criticizes the addition of proposed subsection (b) as making the rule not identical-in-substance to the corresponding federal rule. USEPA acknowledged that states may need to modify their regulations or statutes to allow for implementation of Project XL agreements, but took issue with the fact that proposed subsection (b) would have required the Board to grant relief from the Illinois regulations based on any future Project XL agreement.

In response to the comments from USEPA and the Agency, proposed subsection (b) has been removed from the text of the amendments as adopted.

General Revisions and Deviations from the Federal Text

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.

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 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 Miscellaneous Housekeeping Amendments

The tables below list numerous corrections and amendments that are not based on current federal amendments. The first table (beginning immediately below) includes deviations made in this Proposal for Public Comment from the verbatim text of the federal amendments. The second table (beginning below at page 7) contains corrections and clarifications that the Board made in the base text involved in this proposal. The amendments listed in this second table are not directly derived from the current federal amendments. Some of the entries in these tables are discussed further in appropriate segments of the general discussion beginning at page 4 of this opinion. Table 3 (beginning on page 11 below) 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 November 15, 2001. Table 3 indicates the changes made, as well as the source that suggested each of the changes.

Table 1:

Deviations from the Text of the Federal Amendments

Table2 :

Board Housekeeping Amendments

Table 3:

Revisions to the Text of the Proposed Amendments in Final Adoption

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

SUBPART B: PRETREATMENT STANDARDS

Section

SUBPART C: REMOVAL CREDITS

Section

SUBPART D: PRETREATMENT PERMITS

Section

SUBPART E: POTW PRETREATMENT PROGRAMS

Section

SUBPART F: REPORTING REQUIREMENTS

Section

SUBPART G: FUNDAMENTALLY DIFFERENT FACTORS

Section

SUBPART H: ADJUSTMENTS FOR POLLUTANTS IN INTAKE

Section

SUBPART I: UPSETS

Section

SUBPART J: BYPASS

Section

SUBPART K: MODIFICATION OF POTW PRETREATMENT PROGRAMS

Section

SUBPART L: FEDERAL PROJECT XL AGREEMENTS

Section