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.

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