ILLINOIS POLLUTION CONTROL BOARD

November 21, 1991

IN THE MATTER OF:        

)

R91—5

PRETREATMENT UPDATE     

)

(Identical in Substance Rules)

(6/29/90 

—

12/31/90)

PROPOSAL FOR PUBLIC~COMMENT

PROPOSED OPINION OF THE BOARD (by J.C. Marlin):

Thee Board is amending the pretreatment regulations pursuant

to Section 13.3 of the Environmental Protection Act (Act). The

text is contained in a separate Final Order of this same day.

Section 13.3 of the Act requires the Board to adopt

regulations which are “identical in substance” with federal

regulations promulgated by the United States Environmental

Protection Agency (USEPA) to implement the pretreatment

requirements of Sections 307 and 402 of the Clean Water Act,

previously known as the Federal Water Pollution Control Act.

Section 13.3 provides that Title VII of the Act and Sections 5

and 6.0.2 of the Administrative Procedure Act (APA) shall not

apply to identical in substance regulations adopted to establish

the pretreatment program. However, Section 13.3 of the Act does

require the Board to provide for notice and public comment before

rules are filed with the Secretary of State.

S.B. 1834 (P.A. 85-1048) includes a definition of “identical

in substance” in new Section 7.2 of the Act. This legislation

codifies the Board’s past interpretations of its mandate under

Section 13.3 of the Act.

This rulemaking updates the pretreatment rules to cover

USEPA rules adopted from June 29 through December 31, 1990. The

following Federal Registers are included:

55 Fed. Reg. 26691   

June 29, 1990

55 Fed. Reg. 30082   

July 24, 1990

55 Fed. Reg. 31692   

August 3, 1990

55 Fed. Reg. 36932   

September 7, 1990

The pretreatment rules govern discharges by industrial users

to publicly owned treatment works (POTWs). The rules are

intended to prevent industrial discharges from passing through

POTW5 without adequate treatment to waters of the State, and to

prevent industrial discharges from interfering with the operation

of the treatment plant. Effluent discharges are regulated

pursuant to 35 Ill. Adm. Code 304 and 309.

The Illinois pretreatment rules are contained in 35 Iii.

Mm. Code 307 and 310. Part 307 includes the categorical

pretreatment standards, which are incorporated by reference from

127—303

2

the USEPA rules. Part 310 specifies how a POTW sets up a

pretreatment program, and how industrial users get pretreatment

permits or authorizations to discharge.

PUBLIC COMMENTS

The Board proposes the instant amendi~tents to

35

Ill. Adm.

Code 307, 309, and 310 by its Proposed Order accompanying this

Proposed Opinion. The proposed amendments will shortly be

published in the Illinois Register for public comment.

The statutory public comment period will end 45 days after

the date of publication in the Illinois Register. The Board

stresses the importance that coittmenters make their submissions

promptly and directly to the Board, so the Board can obtain the

benefit of the comxnenters input.

The detailed discussion that follows indicates each topic on

which the Board especially invites public comment. In any event,

the Board construes silence as no objection to the Board’s

approach to each topic.

HISTORICAL OUTLINE OF BOARD PRETREATMENT REGULATION

The Illinois pretreatment rules were adopted in R86-44, 84

PCB 89, Opinion and Order of the Board of December 3, 1987. The

rules appeared at 12 Ill. Reg. 2502 (Jan. 29, 1988), effective

January 13, 1988.

The Board has updated the pretreatment rules in the

following update rulemakings:

R88—ll  90 PCB 411, June 14, 1988; 12 Ill. Reg. 13094,

effective July 29, 1988 (USEPA amendments through

December 31, 1987).

P28—18  94 PCB 237, December 17, 1988; 13 Ill. Reg. 1794,

effective January 31, 1989 (USEPA amendments

January 1 through June 30, 1988).

R89—3  

103 PCB 609, September 28, 1989; 13 Ill. Reg.

19243, effective November 17, 1989 (Part. 307) and

November 27, 1989 (Part 310) (USEPA amendments

July 1 through December 31, 1988).

R89—12  110 PCB 119, April 12, 1990; 14 Ill. Reg. 7608,

effective May 8, 1990 (USEPA amendments January 1

through June 30, 1989).

R90—6  

Dismissed, 109 PCB 629, March 22, 1990 (No USEPA

amendments July 1, 1989 through December 31,

1989)

127—304

R90—15  Dismissed, June 20, 1991 (No USEPA amendments

January 1 through June 28, 1990).

R91-5  

This docket (USEPA amendments June 29, 1990

through December 31, 1990).

DETAILED DISCUSSION

The specific amendments derived from the USEPA actions made

on Narcl-r 17 and June 29, 1989 affect the categorical pretreatment

standards reflected in Part 307. The amendments derived from

USEPA actions made on May 2, 1989 affect the program requirements

reflected in Part 310. No amendments arise from the federal

amendments of January 4 and April 4, 1989.

In R86—44 the Board generally referenced the 1986 edition of

the Code of Federal Regulations. The Board is updating the

references to all Sections up for review in this update to the

1990 edition of the Code of Federal Regulations. Pursuant 

~to the

Board’s mandate in Section 7.2(a)(1) of the Act, amendments

concerning directives for program approval have not been adopted.

PART 307

SEWER DISCHARGE CRITERIA

SUBPART B:

GENERAL AND SPECIFIC PRETREATMENT REQUIREMENTS

Section 307.1101 General and Specific Requirements

35 Ill. Adm. Code 307.1101 derives from 40 CFR 403.5. USEPA

amended paragraph (b) at 55 Fed. Reg. 30129, July 24, 1990. The

Board proposes amending this Section to correspond with the

federal amendments.

The federal amendment of 40 CFR 403.5(b) (1) (corresponding

to 35 Ill. Adm. Code 307.1101(b) (1)) is intended to add

specificity to the prohibition against discharge of materials

that can cause a fire or explosion hazard. ~ 55 Fed. Reg.

30084—87. It now specifies a flashpoint limit and a test method

for the discharges. The only deviation from the federal language

in subsection (b) (1) is the replacement of the citation to the

federal regulation containing the test method with the

corresponding Illinois Administrative Code citation.

New federal paragraph (6) (corresponding with proposed 35

Ill. Adm. Code 307.1101(b) (11)) adds a prohibition against

discharging oils into a sewer of types and in quantities that

could cause treatment plant upset or pass through. See 55 Fed.

Reg. 30091-92. The Board does not deviate from the federal

language at new subsection (b) (11).

127—305

New federal paragraph (7) (corresponding with proposed 35

Ill. Adm. Code 307.1101(b) (12)) adds a prohibition against

discharging pollutants into a sewer that could cause toxic gases,

vapors and fumes at the treatment plant in a quantity which could

endanger worker health and safety. See 55 Fed. Reg. 30087-91.

The Board does not deviate from the federal language, at new

subsection (b) (12).

New federal paragraph (8) (corresponding with proposed 35

Ill. Adm. Code 307.1101(b) (13)) adds a prohibition against

discharging into a sewer system at any point except a point

designated by the POTW. ~ 55 Fed. Reg. 30097-99. The Board

does not deviate from the federal language at new subsection

(b) (13)

The Board also proposes a small number of non-substantive

amendments to Section 307.1101. Initially, we change the

punctuation of both subsections by adding colons after the

lettered subsection headings and semicolons (and the word “or,”

where appropriate) after each numbered subsection. The Board

also proposes adding a note to this Section that would indicate

the source of this subsection. The proposed note cites 40 CFR

403.3 and 55 Fed. Reg. 30129, July 24, 1990.

SUBPART 0: ORGANIC CHEMICALS, PLASTICS AND SYNTHETIC FIBERS

Section 307.2400 General Provisions

Section 307.2401 Rayon Fibers

Section 307.2402 Other Fibers

Section 307.2403 Thermoplastic Resins

Section 307.2404 Thermosetting Resins

Section 307.2405 Commodity Organic Chemicals

Section 307.2406 Bulk Organic Chemicals

Section 307.2407 Specialty Organic Chemicals

Section 307.2490 Non—complexed Metal—bearing and Cyanide-

bearing Wastestreams

The Board uses this opportunity to correct a minor, non-

substantive typographical error at 35 Ill. Adm. Code 307.2400-

(b) (3): the Board proposes changing “nothwithstanding” to

“notwithstanding.”

On June 29, 1990, at 55 Fed. Reg. 26692, USEPA amended a

number of sections in 40 CFR 414 (the Organic Chemicals, Plastics

and Synthetic Fibers Category) in response to a federal judicial

remand in Chemical Manufacturers Association v. EPA, 870 F.2d 177.

(5th Cir. 1989). USEPA withdrew the limitations subject to the

remand. 13 pollutants were deleted from 40 CFR 414.25, 414.35,

414.45, 414.55, 414.65, 414.75, and 414.85: acenaphthene, 2,4—

dimethylphenol, fluoranthene, naphthalene, phenol, 

bis-(2-ethyl-

hexyl)phthalate, di-N-butylphthalate, diethylphthalate, dixnethyl-

phthalate, anthracene, fluorene, phenanthrene, and pyrene. 19

127—306

5

pollutants were removed from 40 CFR 414.101: acenaphthene, 2,4-

dimethylphenol, fluoranthene, naphthalene, phenol, 

bis- 

(2-ethyl-

hexyl)phthalate, di-N-butylphthalate, diethylphthalate, dimethyl-

phthalate, .benzo(a)anthracene, benzo(a)pyrene, 3 ,4—benzofluor-

anthrene, benzo (k) fluoranthene, chrysene, anthracene, fluorene,

phenanthrene, and pyrene. USEPA also deleted the “tetraethyl

lead/alkyl halide ÷sodium-lead alloy” and “tetramethyl lead!

alkyl halide 

sodium—lead alloy” entries from 40 CFR, appendix A

table under the heading “lead.”

35 ‘Ill. Adm. Code 307.2401 derives from 40 CFR 414.25. 35

Ill. Adm. Code 307.2402 derives from 40 CFR 414.35. 35 Ill. Adm.

Code 307.2403 derives from 40 CFR 414.45. 35 Ill. Adm. Code

307.2404 derives from 40 CFR 414.55. 35 Ill. Adm. Code 307.2404

derives from 40 CFR 414.55. 35 Ill. Adm. Code 307.2405 derives

from 40 CFR 414.65. 35 Ill. Adm. Code 307.2406 derives from 40

CFR 414.75.

35 Ill. Adm. Code 307.2407 derives from 40 CFR

414.85.

35 Ill. Adm. Code 307.2490 derives from 40 CFR 414, App.

A. Each of these provisions incorporates the corresponding

federal limitations 

by reference.

For this reason, the Board proposes updating the incorporations

by reference at the appropriate places to include the revisions

as embodied in the

1990 edition of the Code of Federal

Regulations.

This volume includes the June 29, 1990 federal

amendments. This means the Board

updates the references at 35

Ill. Adm. Code 307.2401(c) (1) & (d) (1), 307.2402(c) (1) & (d) (1),

307.2403(c) (1)

& (d)(1), 307.2404(c) (1) 

& (d)(1)

307.2405(c) (1)

& (d) (1), 307.2406(c) (1) & (d) (1), 307.2407(c) (1) & (d) (1)

and

307.2490.

SUBPART V:

NONFERROUS METALS MANUFACTURING

At 55 Fed. Reg. 31692, August 3, 1990, USEPA amended the

effluent discharge

limitations and pretreatment requirements at

40 CFR 421, the Nonferrous Metals Manufacturing category.

This

included amendments to the

Metallurgical Acid Plants (subpart I),

Primary Beryllium (Subpart 0), Primary Molybdenum (Subpart S),

Secondary Molybdenum and Vanadium (subpart T), Secondary Precious

Metals

(Subpart X), and Secondary Tungsten and Cobalt (subpart

AC) subcategories. USEPA promulgated these amendments as a

result of settlement negotiations arising from several judi~cial

1 The Board has not adopted categorical effluent limitations

that correspond with those promulgated by USEPA. Rather, the Board

focuses on the

categorical pretreatment standards that USEPA

adopts.

discussion

in opinions of December 3, 1987 in R86-

44, 84 PCB 89, 94 & 103—04, and April 12, 1990 in R89—12, 110 PCB

119, 126-27 

(why the Board has not yet pursued adoption of

categorical effluent limitations identical-in-substance to the

federal ones).

127—307

challenges to its rules originally adopted in 1984 and 1985.

Primarily, the amendments change limitations based on revised

estimates of treatment removal effectiveness for various

pollutants. They also correct certain assumptions as to

manufacturing production, revise effective dates, and effect some

clarifications. USEPA published corrections to some of these

amendments at 55 Fed. Reg. 36932, September 7, 1990.

Section 307.3100

35 ~tl1.Adm. Code 307.3100 derives from 40 CFR 421.1 through

421.5. Existing subsection (c) incorporates 

40 CFR 421.3 by

reference, and subsection (ci) incorporates 40 CFR 421.4. USEPA

amended section 421.3 at 55 Fed. Reg. 31697. 

New paragraph (b)

waives the routine cyanide testing requirement for certain

facilities

in the Primary Beryllium subcategory under certain

limited circumstances: an annual test for cyanide must indicate

less than 0.07 mg/l cyanide, and the facility must certify that

it does not generate or use cyanide. The Board updates the

incorporation by reference at 35 Ill. Adm. Code 307.3100(c) to

include this federal change.

In addition to the amendment in response to this federal

amendment, the Board effects two minor, non—substantive

amendments to Section 307.3100. First, there is no subsection

(b). Rather, the subsections run (a), (c), (ci), then (e). This

corresponds to the federal source material (i.e, Section

307.3100(a) derived from 40 CFR 421.1, Section 307.3100(c)

derived from 40 CFR 421.3, etc.; 40 CFR 421.2 is reserved), but

it does not comport with the Board’s usual practice of sequential

numbering

of subsections. For this t~eason, the Board proposes

adding dummy language in a new subsection (b), in

order that

subsections

(c), (ci), and (e) continue to correspond numerically

with their federal counterparts. Second, the Board uses this

opportunity to routinely change the date of the incorporation by

reference at existing subsection (ci) (renumbered to subsection

(c)) to the 1990 edition of the Code of Federal Regulations.

Section 307.3109

35 Ill. Adm. Code 307.3109 derives from 40 CFR 421.91

through 421.96 (40 CFR Subpart I). Existing subsection (b)

incorporates 40 CFR 421.91 by reference, subsection (c) (1)

incorporates 40 CFR 421.95, and subsection (ci) (1) incorporates 40

CFR 421.96. USEPA amended section 421.96 at 55 Fed. Reg. 31697.

The effect of this amendment is to remove molybdenum as a limited

pollutant. The Board updates the incorporation by reference at

subsection (ci) (1) to reflect this federal amendment. As a

routine, non—substantive matter, the Board further updates the

incorporation by reference at subsections (b) and (c) (1) to

reflect the more recent editiOn of the Code of Federal

Regulations.

12 7—308

Section 307.3115

35 Ill. Adm. Code 307.3115 derives from 40 CFR 421.150

through 421.156 (40 CFR Subpart 0). Existing subsection (b)

incorporates 40 C?R 421.151 by reference, and subsection (ci) (1)

incorporates 40 CFR 421.156. USEPA amended section 421.156 at 55

Fed. Peg. 31700. The effect of these amendments is to increase

the limitation for fluoride discharges for beryllium hydroxide

supernatant and to add beryllium, total chromium, copper, total

cyanide,’ ammonia—nitrogen, and fluoride limitations for certain

equipment and activities. These equipment and activities include

beryl ore gangue dewatering, bertrandite ore gangue dewatering,

beryl ore processing, aluminum iron sludge area wastewater,

bertrandite ore leaching scrubber, and bertrandite ore

countercurrent

and decantation scrubber.

The Board proposes amendment of Section 307.3115 in response

to the federal amendments. The Board updates the incorporation

by reference at subsection (d) (1) to reflect this federal

amendment. As a routine, non—substantive matter, the Board

further. updates the incorporation

by reference at subsection

(b)

to reflect the more recent edition of the Code of Federal

Regulations.

Section 307.3119

35 Ill. Adm. Code 307.3119 derives from 40 CFR 421.210

through 421.216 (40 CFR Subpart S). Existing subsection (b)

incorporates 40 CFR 421.211

by reference, and subsection (ci) (I)

incorporates 40 CFR 421.216.

USEPA amended section 

421.216

at 55

Fed. Reg. 31702.

The effect of these amendments is to remove

molybdenum as a limited pollutant for certain equipment’ and

activities.

These equipment and

activities are molybdenum

sulfide leachate, roaster SO2 scrubber and molybdic oxide

leachate.

The Board proposes amendment of Section 307.3119 in response

to the federal amendments. The Board updates the incorporation

by reference at subsection (d) (1) to reflect this federal

amendment. As a routine, non-substantive matter, the Board

further updates the incorporation by reference at subsection (b)

to reflect the more recent edition of the Code of Federal

Regulations.

Section 307.3120

35 Ill. Adm. Code 307.3120 derives from 40 CFR 421.220

through 421.226 (40 CFR Subpart T). Existing subsection (b)

incorporates 40 CFR 421.221 by reference, and 

subsection (d)

(1)

incorporates 40 CFR 421.226. USEPA amended section 421.226 at 55

127—309

8

Fed. Reg. 31705. The effect of these amendments is to remove

molybdenum as a limited pollutant and to change the limitations

for arsenic, chromium, lead, nickel, iron, molybdenum, and

ammonia—nitrogen for certain equipment and activities. Those

equipment and activities are leach tailings and molybdenum

filtrate solvent extraction raffinate. The amendments also add

limitations for those pollutants for pure grade molybdenum.

The Board proposes amendment of Section 307.3120 in response

to the federal amendments. The Board updates the incorporation

by refer’ence at subsections (d) (1) to reflect these federal

amendments. As a routine, non—substantive matter, the Board

further updates the incorporation by reference at subsection (b)

to reflect the more recent edition of the Code of Federal

Regulations.

Section 307.3124

35 Ill. Adin. Code 307.3124 derives from 40 CFR 421.260

through 421.266 (40 CFR Subpart X). Existing subsection (b)

incorporates 40 CFR 421.261 by reference, subsection (c) (1)

incorporates 40 CFR 421.265, and subsection (ci) (1) incorporates

40 CFR 421.266. USEPA amended sections 421.261, 421.265, and

421.266 beginning at 55 Fed. Peg. 31705. The effect of these

amendments is to add a new paragraph defining “combined metals”

as the, total of gold, platinum, and palladium and to replace

individual limitations for these metals with limitations for

“combined metals.”

The Board proposes amendment of Section 307.3124 in response

to the federal amendments. The Board updates the incorporation

by reference at subsections (b), (c) (1), and (d) (1) to reflect

these federal amendments.

Section 307.3129

35 Ill. Adm. Code 307.3129 derives from 40 CFR 421.310

through 421.316 (40 CFR Subpart AC). Existing subsection (b)

incorporates 40 CFR 421.311 by reference, subsection (c) (1)

incorporates 40 CFR 421.315, and subsection (d)(l) incorporates

40 CFR 421.316. USEPA amended sections 421.315 and 421.316

beginning at 55 Fed. Peg. 31716. The effect of these amendments

is to revise all limitations for cobalt in this subcategory.

The Board proposes amendment of Section 307.3129 in response

to the federal amendments. The Board updates the incorporation

by reference, at subsections 

(C)

(1) and (d) (1) to reflect these

federal amendments. As a routine, non—substantive matter, the

Board further updates the incorporation by reference at

subsection (b) to reflect the more recent edition of the Code of

Federal Regulations.

127—3 10

9

PART 309

PERMITS

SUBPART A:

NPDES PERMITS

Section 309.103 Application 

General

The USEPA amendments of July 24, 1990, at 55 Fed. Reg.

30082, have a significant impact on certain POTWs. They impose

significant new reporting and recordskeeping requirements, and in

some instances, they require periodic whole effluent toxicity

testing as part of the permit application process.

USEPA added new paragraphs 

(j)

(1) through 

(j)

(4) to 40 CFR

122.21. These new paragraphs (applicable to state programs

pursuant to 40 CFR 123.25, see 55 Fed. Peg. 30128) require

certain POTWs to provide USEPA (or the NPDES permit-issuing

state) with the results of whole effluent toxicity testing:

POTW5 which must provide this information:

1.  All POTWs with a design influent capacity of one

million gallons per day (NGD) or more, and

2.  All POTWs required to have a pretreatment program; and

Other POTWs of which USEPA (or the NPDES permit-issuing

state) may require this information based on consideration

of certain factors:

1.

The variability of

effluent pollutants or pollutant

parameters,

2.  The dilution ratio in the receiving stream,

3.  Existing controls on point and nonpoint sources and

maximum daily loading in the receiving stream and the

relative contribution of the individual POTW,

Receiving stream characteristics

(known water quality

impairment; whether it is a coastal water, a Great

Lake, or an outstanding natural resource; etc.), and

5.

Other considerations that could cause or contribute to

adverse water quality impacts (including the history of

toxic impact and POTW compliance problems).

This testing must have occurred since the latest permit

reissuance or modification. The POTW must submit this

information together with its NPDES permit application,

and if it

has an approved pretreatment program, a written technical

evaluation of the need to revise local pretreatment limitations

12 7—3 11

10

must accompany the results of the testing.

The existing NPDES regulations include provision for whole

effluent toxicity testing. 35 Ill. Adm. Code 309.103 (a) (3)

confers the determination on the Agency, pursuant to Section 39

of the Act, to require such testing for the POTW to demonstrate

compliance with acute and chronic toxicity criteria. ~ 35 Ill.

Adm. Code 302.621 & 302.630. It is not clear that this Agency

determination to require testing is concurrent with the authority

now required by USEPA for state programs as a result of these

federal ~mendments. On the other hand, it is clear that the

present rule does not include concrete circumstances under which

a POTW must perform the testing and submit the results to the

Agency together with an evaluation of revising local limits.

Section 13.3 of the Act requires the Board to adopt

regulations that are identical in substance to federal

regulations promulgated by USEPA pursuant to sections 307(b),

(c), and (ci) and 402(b) (8) and (b)(9) of the Clean Water Act, 33

U.S.C. 

§S

1317(b), (c) & (d) & 402(b) (8) & (b)(9). USEPA asserts

these provisions, at least in part, as the authority for these

amendments. 

55 Fed. Reg. 30082 & 30128—29 (July 24, 1990).

Therefore, the Board proposes adopting the new federal

requirements nearly verbatim.

In so doing the Board renumbers existing Section

309.103(a) (3) to Section 309.103(a) (3) (A) and places the

identical in substance rule at Section 309.103(a)(3)(B). The

Board has revised the federal language only to the extent

necessary to comport with codification as a state rule. This

requires the incorporation of 40 CFR 122.62 (a) by reference.

The Board incorporates this reference at this location, rather

than at the incorporations by reference section at 35 Ill. Adm.

Code 310.107, because this incorporation is specific to this

provision, and Section 310.107 is specific to Part 310. The

incorporated federal provision recites the reasons for permit

modification since which the POTW must have last performed the

toxicity testing. Additionally, the Board proposes adding

language to subsection (a) that clarifies that the Agency

determination as to toxicity testing is,made pursuant to Section

39 of the Act, and is, therefore, a permit determination

appealable to the Board. The Board also adds a note. to

subsection (a)(3)(A) to indicate that 40 CFR 122.21(j) ‘(1990), as

amended at 55 Fed. Peg. 30128 (July 24, 1990), is the source of

subsections (a) (3) (B) through (a) (4).

PART 310

PRETREATMENT PROGRAMS

SUBPART A: GENERAL

PROVISIONS

Section 310.103

Federal Law

12 7—3 12

Section 310.105 Confidentiality

Section 310.107 Incorporations by Reference

Section 310.110 Definitions

The Board uses this opportunity to update incorporations by

reference and make a small number of format corrections. None of

these amendments are prompted by recent federal amendments.

The Board proposes amending 35 Ill. Adm. Code 310.103(a) and

(b) to delete the volume dates for the Code of Federal

Regulati?ons. These references are not incorporations by

reference. Rather, they are recitations of authorities reserved

by USEPA. USEPA is not restricted to any but the latest version

of its rules for authority for its actions. Therefore, the dates

are superfluous and possibly misleading.

The Board proposes adding the date of the Code of Federal

Regulations at 35 Ill. Adm. Code 310.105(c) for clarity and

consistency with other incorporated citations. Further, the

Board updates the format of the Board Note and the version of the

Code of Federal Regulations cited therein.

The Board proposes updating the date of the Code of Federal

Regulations referenced at 35 Ill. Adm. Code 310.107(b). This

does not include 40 CFR 128.140(b) (1977), which no longer exists

in the 1990 edition of the Code.

Section 310.110 Definitions

USEPA added a definition of “significant new user” to 

CFR

403.3(t) at 55 Fed. Reg. 30129, July 24, 1990. This corresponds

to 35 Ill. Adm. Code 310.107, the definitions section of Part

310. Under this definition, a “significant new user” is any

industrial user (defined in this section) subject to categorical

pretreatment standards or which meets certain conditions:

1.  It discharges an average of 25,000 

gallons per

day

(GPD) of process wastewater to the POTW,

2.  Its process wastestream contributes five percent or

more of the dry weather loading of the POTW, or

3.  It has been designated as such by the POTW due to a

reasonable potential for adversely affecting the POTW’s

operation or for violating a pretreatment standard.

The second subsection of this definition 

includes an exception

(which does not apply to the first subsection): an industrial

user may petition the local authority and the local authority may

determine that the user has no reasonable potential for adversely

affecting the POTW’s operation or for violating a pretreatment

standard.

Under such a determination the industrial user is not

127 —3 13

12

a significant industrial user.

The Board proposes this definition with only minor deviation

from the federal text to comport with codification requirements.

One format change involves the placement of the exception clause

USEPA states

the definition itself as a paragraph with two

subparagraph.

The federal exception appears as a separate

paragraph that applies only to the second of the two

subparagraphs.

The Board embodies the exception within the

subsection that corresponds to the second federal

subparagraphs.

The exception is germane to only one half of the

definition, and

the Board felt that this structure more clearly conveys this

fact.

This is further true because Board definitions subsections

do not normally include labels that would facilitate

external

reference to an individual subsection at the exclusion of

another.

SUBPART B:

PRETREATMENT STANDARDS

The Board proposes amendments to various Sections in 35 

Ill.

Adm. Code 301.Subpart B not prompted by federal amendments.

These are updates of Code of

Federal Regulations citations.

Several other amendments derive from federal amendments.

Section 310.201 General Prohibitions

Section 310.202

Specific Prohibitions

Section 310.210

Specific Limits Developed by POTW

USEPA amended 40 CFR 403.5 at 55 Fed. Reg. 30129.

Paragraph

(a) corresponds to 

35 Ill. Adm. Code 310.201.

Paragraph (b)

corresponds to ‘35 Ill. Adm. Code 307’.llOl(b) and 310.202.

Paragraph (c) corresponds to 35 Ill. Adm. Code 310.210.

Paragraph (e) is a solely federal

enforcement provision.

The effect of the federal amendments to paragraph (b) is to

add several prohibited discharges.

The Board discusses the

amendments to this provision above, with Section 307.1101, supra,

at page 3. The effect of the amendments to paragraph (a) (2) is

to expand the universe of specific prohibitions for which an

affirmative defense is available to include two of the three new

prohibited discharges: discharges of mineral oil, nondegradable

cutting

oils, etc. and discharges of pollutants that can cause

toxic vapors and gases.

The affirmative defense is already

available for violations of 40

CFR 403.5(a) (1), (b) (3), (b) (4),

and (b) (5) (corresponding to 35 Ill. Adm. Code 310.201(a),

307.1101(b) (6), 307.1101(b) (7), and 307.1101(b) (8.) and (b) (9),

respectively).

These recent federal amendments highlight an apparent

deficiency in the existing text of 35 Ill. Adm. Code 310.201(b)

that the Board proposes correcting as it updates that text to

correspond to the new federal language.

Section 310.210(b)

12 7—3 14

13

allows the affirmative defense in the case of any of the various

types of prohibited discharges.

The corresponding federal

language is selective as to the instances when the defense is

available. The Board proposes amending this provision to

correspond more accurately with the federal rule. The Board

further proposes adding the relative pronoun “that” to subsection

(b) to correspond with the federal text.

We update the Board

Note to indicate the most recent version of the Code of Federal

Regulations, indicate the source of the more recent federal

amendments, and update the format of the Board Note.

35 Ill. Adm. Code 310.202, which roughly corresponds to the

40 CFR 403.5(b) preamble, acts as a road map to 35 Ill. Adm. Code

307.Subpart B, which

actually sets forth the prohibited

discharges, in addition to prohibitions relating to mercury and

cyanide. The regulatory language would

track the federal

prohibitions more closely if the Board amends the citation to “35

Ill. Adm. Code 307.Subpart B” to “35 Ill. Adm. Code 307.1101(b).”

The Board proposes such an amendment. The Board also changes the

citation to the Code of Federal Regulations to the recent edition

and updates the format of the Board Note.

The effect of the federal amendments to paragraph

(C)

is to

impose a continuing obligation on POTWs with approved

pretreatment programs.

These POTWs must continue to develop

specific limits as necessary.

They also must enforce these

limits.

The Board proposes adding the new federal language at 35

Ill. Adm. Code 310.210(a).

The Board also changes the citation

to the Code of Federal Regulations to the recent edition, adds a

citation to the source of the federal amendments; and updates the

format of the Board Note.

Section 310.220 Categorical Standards

Section 310.221 Category Determination Request

Section 310.222 Deadline for

Compliance with Categorical

Standards

Section 310.230 Concentration and Mass Limits

Section 310.232 Dilution

Section 310.233 Combined Wastestream Formula

35 Ill. Adm. Code 310.220 derives from the preamble to 40

CFR 403.6. 35 Ill. Adm. Code 310.221 derives from 40 CFR

403.6(a). 35 Ill. Adm. Code 310.222 derives from 40 CFR

403.6(b). 35 Ill. Adm. Code 310.230 derives from 40 CFR

403.6(c). 35 Ill. Adm. Code 310.232 derives from 40 CFR

403.6(d). 35 Ill. Adm. Code 

310.233 derives from 40 CFR

403.6(e).

USEPA amended the preamble

language of 

40 CFR 403.6 at 55

Fed. Reg. 30129, July 24, 1990.

The amendment changed a citation

to the general prohibitions of section 403.5 to a citation to the

“applicable pretreatment standards and requirements” of part’ 403.

12 7—3 15

The corresponding Illinois standards and requirements appear at

35 Ill. Adm. Code 307.1101 and 310. The Board proposes amending

the citation at 35 Ill. Adm. Code 310.220 to “the general

prohibitions established in Sections 310.201 through 210.211” (an

obvious error) to “the standards and requirements set forth at 35

Ill. Adm. Code 307.1101 and 310.”

In addition to the amendment prompted by the federal

amendment, the Board effects other, non—substantive amendments.

For each of 35 Ill. Adm. Code 310.220 through 310.233, the Board

also ch&nges the citations to the Code of Federal Regulations to

the recent edition, adds a citation to the source of the federal

amendments, and updates the format of the Board Notes.

SUBPART C:

REMOVAL CREDITS

310.330

Exception to POTW Pretreatment Program

35 Ill. Adm. Code 310.330 derives from 40 CFR 403.7(d).

USEPA did not amend the corresponding federal provision during

the update period.

Rather, the Board effects non-substantive

revisions to this Section. The Board changes the citation to the

Code of Federal Regulations to the recent edition and updates the

format of the Board Note.

SUBPART E:

POTW PRETREATMENT PROGRAMS

310.510

Pretreatment Program Requirements:

Development and

Implementation by POTW

35 Ill. Adm. Code 310.510 derives from 40 CFR 403.8(f).

USEPA extensively amended the corresponding federal provision at

55 Fed. Peg. 30129, July 24, 1990. The effect of the federal

amendments is to revise the section title, to reword the preamble

language, and to impose several new

requirements. The object of

the title change and rewording of the preamble is to more

pointedly state that “POTW pretreatment programs must be based on

legal authorities and procedures which shall at all times be

fully and effectively exercised and implemented.”

55 Fed. Reg.

30127.

The major thrust of the amendments to 

40 CFR 403.8. involves

increased regulation of significant industrial users. This

Opinion discusses the new definition of “significant new user,”

supra at page 11. At 40 CFR 403.8(f) (1) 

(iii)

(corresponding with

35 Ill. Adm. Code 310.510(a) (3)), the federal amendments require

the POTW to issue enforceable permits or “individual control

mechanisms”

to significant industrial users, and they specify a

number of conditions these mechanisms must include. These

conditions include a duration not to exceed five years, a

statement of non-transferability

without prior notice to the

POTW, discharge limitations,

monitoring and recordskeeping

127—316

requirements, and a statement of 

applicable penalties for

violation.

USEPA amended paragraph (f) (1) (vi) (B) (corresponding

with Section 310.510(a) (6) (B)) to require the POTW to seek

remedies for non—compliance with the conditions in a permit or

individual control mechanism.

Another new requirement impose don the POTW relating to

significant industrial users is the requirement to determine

industrial users’ status as such and to notify the Agency and the

user. New federal paragraph (f) (6) (corresponding with Section

310.5l0(’f)) requires each POTW to prepare lists of entities

meeting various criteria of the definition of “significant new

user” and submit the lists to the Agency. (The lists and

subsequent modifications are deemed approved 90 days after

submission.) The amendment to paragraph (f) (2) (iii)

(corresponding with Section 310.510(b) (3)) requires the POTW to

notify significant industrial users of their status as such

within 30 days after Agency approval of the lists or subsequent

modification. New language at the end of paragraph (f) (2) (v)

(corresponding with Section 310.510(b) (5)) requires POTW5 to

sample and analyze effluent from each significant industrial user

at least once a year, and to determine at least once every two

years whether each user needs a plan to control slug discharges.

If such control is necessary, the amended rule includes minimum

requirements for plan contents.

Other amendments to 40 CFR 403~8(f) relate to enforcement,

some of which clarify various provisions.

Part

of the amendment

to 40 CFR 403.8(f) (1) (vi) (B) (corresponding with 35 Ill. Adrn.

Code 310.510(a) (6) (B)) now specifies that the Agency may

independently seek relief when it feels the monetary penalty

sought by the POTW against a POTW is insufficient. The

procedural provision relating to ex parte temporary injunctive

relief is now gone from this provisiPn. At 40 CFR

403.8(f) (2) (vii) (corresponding with Section 310.510(b) (7)), the

provision requiring newspaper notice of industrial users found in

violation during the preceding 12 months, the focus has changed

to noncompliant users, and noncompliance is now extensively

defined for the purposes of this notice requirement.

New federal

paragraph (f)(5) (corresponding with Section 310.510(e)) requires

POTWs to assemble an enforcement response plan for investigation

of noncompliance.

This provision outlines minimum p,,lan

requirements.

The Board proposes adopting amendments to correspond with’

the new federal amendments.

The Board revises the federal

language minimally——only to the extent necessary to comport with

the state

regulatory format. Additionally, the Board

repunctuates various subsections of Section 310.510 

for

consistency, 

updates the reference to the Code of Federal

Regulations in the Board Note, and adds a citation to the source

of the more recent federal amendments.

12 7—3 17

16

SUBPART F: REPORTING REQUIREMENTS

310.611 Requirements for Non-Categorical Standard Users

35 Ill. Adm. Code 310.611 derives from 40 CFR 4,03.12(h).

USEPA amended 40 CFR 403.12(h) at 55 Fed. Reg. 30131, July 24,

1990). These amendments impose significant semi—annual repor.ting

requirements on significant non—categorical users. The

significant noncategorical industrial user must assemble these

reports ‘using specified procedures and submit them to the control

authority (the Agency, unless the POTW has an authorized

pretreatment program) unless the POTW has already done so. This’

provision defines a “significant noncategorical user” as a

significant industrial user that is not subject to categorical

pretreatment standards.

The Board proposed adoption of the federal amendments with

only as much revision as is required for codification in the

Illinois rule. The Board also amends the Board note to reflect

the most recent edition of the Code of Federal Regulations and

adds a reference to the source of the federal amendments.

310.613 Notification of Changed Discharge

310.635 Notification of Discharge of Hazardous Waste

35 Ill. Adm. Code 310.613 derives from 40 CFR 403.12(j).

New 35 Ill. Adm. Code 310.635 derives from new 40 CFR 403.12(p).

USEPA amended 40 CFR 403.12(j) and added 40 CFR 403.12(p) at 55

Fed. Peg. 30131, July 24, 1990). New paragraph (p) requires

industrial users to notify the POTW and the Agency of any

discharge of a material that would otherwise be a hazardous waste

pursuant ‘~o40 CFR 261 (corresponding with 35 Ill. Adm. Code

721). If’the discharge is greater than 100 kilograms (kg) (about

221 pounds (lbs.)) per month, the provision specifies specific

informational requirements. The initial notification must occur

within 180 days of the effective date of the rule, within 180

days of when the discharge begins, or within 90 days of the

effective date of regulations for newly—listed hazardous wastes.

Only one notification is required for each hazardous waste

discharged, and no notification is required where the user has

already reported under the self—monitoring requirements of 40 CFR

403.12(b), (d), and (e) (corresponding with 35 Ill. Adm. Code

310.602, 310.604, and 310.605). The threshold quantity of

hazardous waste that triggers the reporting requirement is 15 kg

(about 33 lbs.), unless the waste is an acutely hazardous waste,

in which the user must report the discharge of any quantity. The

user must certify with the report that it has a program for the

reduction of hazardous waste volume and toxicity to the extent

economically practical.

The federal amendment of 40 CFR 403.12(j) (corresponding

127—3 18

17

with 35 Ill. Adm. Code 310.613) is related to the addition of

paragraph (p), but it imposes an additional, independent

requirement. Under amended paragraph 

(j),

a user must notify the

POTW in advance of any substantial change in the character or

quantity of any listed and characteristic hazardous wastes in its

discharge.

The Board proposes adoption of the federal amendments with

the minimal, non—substantive revisions necessary to comport

with

the Illinois regulatory format. The Board further revises the

Board No’tes at both Section 310.613 and 310.635 to reflect the

most recent edition of the Code of Federal Regulations and to

reflect the source of the more recent federal amendments.

310.633 Fraud and False Statements

35 Ill. Adni. Code 310.633 derives from former 40 CFR

403.12(n). USEPA amended 40 CFR 403.12(n) at 55 Fed. Reg. 30131,

July 24, 1990). The amendments to this provision broaden the

perjury warning to include the definition at Section 309(c) (6) of

the Clean Water Act, 33 U.S.C. 

1319(c) (6), which renders

“responsible corporate officers” subject to penalties for

perjury.

The Board proposes adoption of the federal amendment without

substantive change. The Board further revises the citation to

“Sections 310.602, 310.604, 310.605, 310.611, 310.612, and

310.621” to “this Subpart.” The corresponding federal citation

is to “this section” (40 CFR 403.12), for which the corresponding

Board rules are located throughout 35 Ill. Adm. Code 310.Subpart

F. The Board changes the reference in the Board Note to the

latest edition of the Code of Federal Regulations and adds a

citation to the source of the later federal amendments.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, do hereby ce~jifythat the above Opinion was a4opted on

the --~‘2/”~~’dayof  ~         

by a vote of 

~‘

,~‘)

~17 ~‘

—~‘~-~-

,.//

Dorothy N. pñnn, Clerk

Illinois P/6ilution Control Board

12 7—3 19