ILLINOIS POLLUTION CONTROL BOARD

January 23, 1992

IN THE

MATTER

OF:

)

R91—5

PRETREATMENT UPDATE

)

 (Identical in Substance Rules)

(6/29/90

—

 12/31/90)

)

ADOPTED RULE.

 FINAL ORDER.

OPINION OF THE BOARD

 (by J.G. Anderson):

The 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 6.02 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 (POTW5).

 The rules are

intended to prevent industrial discharges from passing through

POTWs 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

 Ill.

Adm. Code 307 and 310,

 and more recently,

 as part of this

rulemakinq, Part 309.

 Part 307 includes the categorical

129—375

2

pretreatment standards, which are incorporated by reference from

the USEPA rules.

 Part 310 specifies how a POTW sets up

pretreatment program, and how industrial users get pretreatment

permits or authorizations to.discharge.

 •Part

 309. sets forth the

NPDES permit requirements.

 Although Part 309 does not pertain

directly to sewer users and industrial wastewater pretreatment,

it includes requirements at Section 309.103 that pertain to NPDES

permitees required to have an approved pretreatment program.

PUBLIC COMMENTS

The Board adopts the instant amendments to 35 Ill. Adm. Code

307,

 309,

 and 310 by its Order accompanying this Opinion.

The

proposed amendments appeared in the Illinois Register on December

6,

 1991,

 at 15

 Ill. Reg.

17523

 (Part 307),

15

 Ill. Reg.

17523

(Part 309), and 15

 Ill. Reg.

17523

 (Part 310).

The Board received two public comments in this matter.

On

December 12,

 1992,

 we received the first from the Secretary of

State, Administrative Code Division (PC#1).

 That comment

suggested a number of textual format corrections for compliance

with the codification requirements.

 On January 17,

 1992,. the

Board received a comment from the Illinois Environmental

Protection Agency

 (PC #2).

 The Agency suggested a number of

format and substantive corrections.

 Each aspect of the comments

is discussed in the appropriate part of the following discussion.

The detailed discussion that follows indicates each topic on

which the Board especially invited 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).

R88—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

129—376

3

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).

R90—15

 Dismissed, June

20,

1991

 (No USEPA amendments

January 1 through June 28,

 1990).

R9l—5

 This docket

 (USEPA amendments June 29,

1990

through December 31,

 1990).

DETAILED DISCUSSION

The specific amendments derived from the USEPA actions made

on March 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 reyiew 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.

By PC#1,

 the Administrative Code Division suggested that the

Board update all statutory references to the 1989 version of the

Illinois Revised Statutes.

 The Board make this revision at the

main source notes to Parts 307,

 309, and 310 and in the

definition of “act” at Section 310.110.

 The Board also corrects

the citations to “307.Appendix A” and 309.Appendix A” in the

table of contents to Parts 307 and 309 and corrects the effective

date of R88-9 in the source note to Part 307.

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 amends this Section to correspond with the federal

129—377

4

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.

~g

 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 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).

New federal paragraph

(7)

 (corresponding with 35 Ill.

 Adin.

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.

~

 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 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 effects 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 adds a note to this Section that would indicate the source

of this subsection.

 The note cites 40 CFR 403.3 and 55 Fed. Reg.

30129, July 24,

 1990.

SUBPART 0:

 ORGANIC CHEMICALS, PLASTICS

AND

SYNTHETIC FIBERS

~c~trnn

307.2400

 ~n~r~1

 Provisions

Section 307.2401

 Rayon Fibers

ion 307.2402

 Other Fibers

ion 307.2403

 Thermoplastic Resins

Sect

Sect

Section 307.2404

 Thermosetting Resins

Section 307.2405

 Commodity Organic Chemicals

Section 307.2406

 Bulk Organic Chemicals

Section 307.2407

 Specialty Organic Chemicals

129—378

5

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 changes “nothwithstanding” to

“notwithstanding.”

On June 29,

 1990, at 55 Fed. Req.

 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—

dimethyiphenol,

 fluoranthene, naphthalene, phenol,

 bis-

(2-ethyl-

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

phthalate,

 anthracene,

 fluorene, phenanthrene, and pyrene.

19

pollutants were removed from 40 CFR 414.101:

 acenaphthene, 2,4—

dimethyiphenol,

 fluoranthene, naphthalene, phenol,

 bis-(2

-ethyl-

hexyl)phthalate,

 di-N-butylphthalate, diethylphthalate, diinethyl-

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.

 Adin.

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 updates 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

NONFERROUS

METALS

MANUFACTURING

55

Fed.

Req.

31692,

August

3,

 1990,

USEPA

amended

the

129—3 79

6

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 5),

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 judicial

challenges to its rules originally adopted in 1984 and 1985.

Primari~y, 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

amendi~ientsat 55 Fed. Reg.

 36932,

September

1990.

Section

307.3100

Ill.

Adm.

Code

307.3100

derives

from

CFR

421.1

through

421.5.

 Existing subsection

(C)

 incorporates

CFR

421.3

reference,

 and subsection

(d)

 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),

 (d), 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 reason, the Board adds dummy

language in a new subsection

 (b),

 in order that subsections

 (c),

(d), 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

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).

129—380

7

existing subsection

(d)

 ~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

 (d) (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

 (d) (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.

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 CFR 421.151 by reference,

 and subsection

 (d) (1)

incorporates 40 CFR 421.156.

 USEPA amended section 421.156 at 55

Fed. Reg.

 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 amends Section 307.3115

 in response to the federal

amendments.

 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 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) (1)

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

129—38

8

leachate.

The Board amends 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

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 amends Section 307.3120 in response to the federal

amendments.

 The Board updates the incorporation by reference at

subsections

 (ci) (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.

 Adm. 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.

 Reg.

 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 amends 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)

129—382

incorporates

 40 CFR 421.311 by reference, subsection

 (c) (1)

incorporates

CFR

421.315,

and

subsection

 (d)(1)

 incorporates

CFR

421.316.

USEPA

amended

 sections 421.315 and 421.316

 beginning at 55 Fed. Reg.

 31716.

 The effect of these amendments

is to revise all limitations for cobalt in this subcategory.

The Board amends Section 307.3129 in response to the federal

amendments.

 The Board updates the .incorporation by reference at

subsections

(c)

 (1) and

 (ci) (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.

PART 309

PERMITS

SUBPART

NPDES

PERMITS

Section

309.103

Application

—

General

The

USEPA

amendments

July

24,

1990,

55

Fed.

Reg.

30082,

have

significant

impact

certain

POTWs.

They

impose

significant

new reporting

and

recordskeeping

requirements,

and

some

instances,

they

require

periodic

whole

effluent

toxicity

testing

part

the

permit

application

process.

USEPA

added

new

paragraphs

(j)

(1)

through

(j)

(4)

CFR

122.21.

These

new

paragraphs

(applicable

state

programs

pursuant

CFR

123.25,

see

Fed.

Reg.

30128)

require

certain

POTWs

provide

USEPA

(or

the

NPDES

permit-issuing

state)

with

the

results

whole

effluent

toxicity

testing:

POTWs

which

must

provide

this

information:

All

POTWs

with

design

influent

capacity

one

million

gallons

per

day

(MGD)

more,

and

All

POTWs

required

have

pretreatment

program;

and

Other

POTWs

which

USEPA

(or

the

NPDES

permit-issuing

state)

may

reauire

this

information

based

consideration

certain

factors:

The

variability

effluent

pollutants

pollutant

parameters,

The

dilution

ratio

the

receiving

stream,

Existing

controls

point

and

nonpoint

sources

and

maximum

daily

the

receiving

stream

and

the

relative

contribution

the

individual

POTW,

129—3 83

10

4.

 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

reissu~nceor 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

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 amendments.

 On the other hand,

 it is clear that the

present.

 rule does not include concrete circumstances under which

POTW

 must perform the testing and submit the results to the

Agency

together

with

evaluation

 of revising local limits.

Section

13.3

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

 (d) and 402(b) (8)

 and (b)(9)

 of the Clean Water Act,

33

U.S.C.

§S

 1317(b),

(c)

&

 (ci)

 & 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 adopts 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 deviated from 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 3.10.107

 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 adds language to

subsection

 (a) that clarifies that the Agency determination as to

129—384

11

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. Reg.

30128

(July 24,

 1990),

 is the source of subsections

 (a) (3) (B) through

(a) (4)

By PC #2, the Agency suggests that the Board correct

“Director” to read “Agency” at subsection

 (a) (3) (C) (v).

The

Board ad,opts this correction,

 consistent with the rendition

throughout the balance of the text of this Section.

PART

310

PRETREATMENT

PROGRAMS

SUBPART

A:

 GENERAL PROVISIONS

Section 310.103

 Federal Law

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 amends 35 Ill. Adm. Code 310.103 (a)

and

 (b) to

delete the volume dates for the Code of Federal Regulations.

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 adds 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 updates the date of the Code of Federal

Regulations referenced at 35 Ill. Adm. Code 3.10.107(b).

 This

does not include 40 CFR 128.140(b)

 (1977), which no longer exists

in the 1990 edition of the Code.

In response to PC#1,

 the Board adds Section source notes to

Sections 310.103 and 310.105.

Section

310.110

Definitions

USEPA added a definition of “significant new user” to 40 CFR

403.3(t)

 at 55 Fed. Reg.

 30129, July 24,

 1990.

 This corresponds

129—385

12

to 35 Ill.

 Adin. 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

a significant industrial user.

The Board adds 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.

By PC #2, the Agency highlights the potential for ambiguity

in the proviso clause in the proposed new definition of

“significant industrial user.”

 The Agency desires greater

clarity that this exception applies only to those industrial

users that discharge an average of 25,000 gallons per day or

more,

 and not to industrial users subject to categorical

pretreatment standards.

 The Agency suggests that the Board

should place the exception language at the beginning of the

second subsection of this definition,

 as follows:

 “Except, upon a

finding that an industrial user

 any other industrial user

that discharges an average of 25,000 gallons per day or more

.“

 The Board appreciates the Agency’s observation with

regard to the need for greater clarity, but the exception clause

is about 80 words long.

 In fact,

 the Board believes that

129—386

13

placement of this long of a clause at the beginning of this

subsection would have an even greater potential for ambiguity.

In fact, USEPA embodies this exception in a separate subsection

at 40 CFR 403.3(t) (2), as amended at 55 Fed.

 Reg.

30129

 (July 24,

1990).

 That,

 and the fact that the Board does not number its

definitions like USEPA, are the reasons we placed the proviso at

the end.

 Nevertheless, the Board agrees that greater clarity is

necessary.

 We theréfore reword the beginning of the clause as

 follows (additions underlined):

 “except, upon a finding that an

industri,al user meeting the criteria of this second subsection ~

this definition

..“

 We believe tha~this maximizes the

clarity of this definition without rendering this definition more

convoluted and potentially confusing than the federal language

from which it derives.

By PC #2, the Agency also recommends that the Board add the

word “by” to the definition of “municipal sludge.”

 Although we

did not propose any amendment to this definition, the Board

adopts the Agency—recommended correction.

SUBPART B:

 PRETREATMENT STANDARDS

The Board amends 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 307.1101(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),

 3.07.1101(b) (7), and 307.1101(b) (8) and

 (b)(9),

respectively).

These recent federal amendments highlight an apparent

129—387

14

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

that the Board Oorrects as it updates that text to correspond to

the new federal language.

 Section 310.210(b)

 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 amends this provision to correspond more accurately with

 the federal rule.

 The Board further adds the relative pronoun

“that” to subsection

 (b) to correspond with the federal text.

We

update ~he 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 effects 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 POTW5 with approved

pretreatment programs.

 These POTWs must continue to develop

specific

 limits as necessary.

 They also must enforce these

limits.

The

Board

adds

the

new

federal

language

at

Ill.

Adin.

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.

 Adin. Code 310.222 derives from 40 CFR

403.6(b).

 35 Ill.

 Adin. 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

129—388

Fed.

 Reg. 30129, July 24,

 1990.

 The amendment changed a citatioi

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

 “applicable pretreatment standards and requirements” of part 403.

The

corresponding

Illinois

standards

and

requirements

appear

35 Ill. Adm. Code 307.1101 and 310.

 The Board amends the

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

prohibitions established in Sections 310.201 through 210.211”

(ar

obvious error)

 to “the standards and requirements set forth at

3E

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 changes the citations to the Code of Federal Regulations to

the

recent

edition,

adds

citation

the

source

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

Federal

Regulations

the

recent

edition

and

updates

the

format

the

Board

Note.

SUBPART

POTW

PRETREATMENT

PROGRAMS

310.510

Pretreatment

Program

Requirements:

Development

and

Implementation

POTW

Ill.

Acm.

Code

310.510

derives

from

CFR

403.8(f).

USEPA extensively amended the corresponding federal provision at

55

 Fed. Reg.

 30129, July 24,

 1990.

 The effect of the federal

amendments

revise

the

section

title,

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

based

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

issue

enforceable

permits

“individual

control

mechanisms”

significant

industrial

users,

and

they

specify

number

 conditions these mechanisms must include.

 These

12 9—389

conditions include a duration not to exceed five years,

a

statement

non-transferability

without

prior

notice

the

POTW, discharge limitations, monitoring and recordskeeping

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.

Ano,ther new requirement imposed on 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

310.510(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

notify

significant

industrial

users

their

status

such

within

days

after

Agency

approval

the

lists

subsequent

modification.

New

language

the

end

.of

paragraph

(f)

(2) (v)

(corresponding with Section 310.510(b) (5)) requires POTWs 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

plan

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

CFR

403.8(f)

(1) (vi)

(B)

(corresponding

with

Ill.

Adm.

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

now

gone

from

this

provision.

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

POTW5 to assemble an enforcement response plan for investigation

of noncompliance.

 This provision outlines minimum plan

requirements.

The

Board

adopts

amendments

correspond

with

the

new

federal

amendments.

The

Board

deviates

from

the

federal

language

minimally-—only

the

extent

necessary

comport

with

the

state

regulatory

format.

Additionally,

the

Board

repunctuates

various

subsections

Section

310.510

for

consistency,

updates

the

129—390

reference to the Code of Federal Regulations in the Board Note,

and adds a citation to the source of the more recent federal

amendments.

response

PC#1,

the

Board

corrects

the

reference

“this

Part”

subsection

(a)(3)(D)

and

the

reference

“310.

Subpart

F”

subsection

(a) (4) (B).

response

#2,

the

Board

adds

comma

between

the

words

“permit”

~and “order”

subsection

(a)

(3).

This

correction

the

pre—existing

language

this

subsection,

correspond to that of 40 CFR 408.3(f)(1)(iii).

 The Agency

further

highlights

few

other

editorial

errors

the

text

this

Section.

response

the

Agency

suggestions,

the

Board

changes

subsection

(a)(3)(D)

read

“this

Part

.,“

deleting

the

reference

“403,”

 erroneously left in during editing the

federal

text;

render

“containment

structures”

the

plural

subsection

(b) (5) (D);

and

render

the

language

“non-substantial

modification”

subsection

(f).

With

regard

this

last

revision,

the

listing

substantial

modifications

Section

310.922

would

not

appear

contemplate

the

submission

the

information

required

Section

310.510(f).

Nevertheless,

the

word

“nonsubstantial”

appears

the

federal

rule

from

which

subsection

(f)

derives,

and

the

addition

this

word

does

add

clarity.

Therefore,

the

Board

adds

suggested

the

Agency.

However,

not

capitalize

“such”

subsection

(a)

(3)

(E)

response

the

Agency’s

comment.

Rather,

the

Board

corrects

subsection

(b) (3) (E),

there

now

comma,

rather

than

period,

after

“however.”

This

obviates

the

capitalization

suggested

the

Agency.

SUBPART

REPORTING

REQUIREMENTS

310.611

Requirements

for

Non—Categorical

Standard

Users

Ill.

Adm.

Code

310.611

derives

from

CFR

403.12(h).

USEPA

amended

CFR

403.12(h)

Fed.

Reg.

30131,

July

24,

1990).

These

amendments

impose

significant

semi—annual

reporting

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

adopts

the

federal

amendments

with

only

much

revision

required

for

codification

the

Illinois

rule.

keeping

with

this,

the

Board

adopts

the

language

this

129— 39

Section as suggested by the Agency.

 We render the end of the

fourth sentence as follows:

“.

 approved by the Agency.”

As

the

Agency

 notes, this embodies greater consistency between the

state and federal regulatory systems.

 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.

Reg.

30131,

July

24,

1990).

New

paragraph

(p)

requires

industrial users to notify the POTW and the Agency of any

discharge

material

that

would

otherwise

hazardous

waste

pursuant

CFR

261

(corresponding

with

Ill.

Adm.

Code

721).

the

discharge

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

the

effective

date

the

rule,

within

180

days

when

the

discharge

begins,

within

days

the

effective

date

regulations

for

newly—listed

hazardous

wastes.

Only

one

notification

required

for

each

hazardous

waste

discharged,

and

notification

required

where

the

user

has

already

reported

under

the

self—monitoring

requirements

CFR

403.12(b),

(ci),

and

(e)

 (corresponding with

Ill.

Adm.

Code

310.602,

310.604,

and

310.605).

The

threshold

quantity

hazardous

waste

that

triggers

the

reporting

requirement

(about

lbs.),

unless

the

waste

acutely

hazardous

waste,

which

the

user

must

report

the

discharge

any

quantity.

The

user

must

certify

with

the

report

that

has

program

for

the

reduction

hazardous

waste

volume

and

toxicity

the

extent

economically

practical.

The

federal

 amendment of

CFR

403.12(j)

(corresponding

with

Ill.

Adm.

Code

310.613)

the

addition

paragraph

(p),

but

imposes

additional,

independent

requirement.

Under

amended

paragraph

(j),

user

must

notify

the

POTW

advance

any

substantial

change

the

character

quantity

any

listed

and

characteristic

hazardous

wastes

its

discharge.

The

Board

adopts

the

federal

amendments

with

the

minimal,

non—substantive revisions necessary to comport with the Illinois

regulatory format.

 The Board adopts the Agency—recommended

designation “Manager, Division of Land Pollution Control,” see

#2, rather than the proposed language,

 “Manager, Division of

Water

 Pollution Control,” at 35 Ill.

Adm.

Code

310.635(a)

(1),

and

“Division

Land

Pollution

Control,”,

rather

than

“Division

Water

Pollution

Control,”

subsection

(c).

further

revise

129—392

“Discharges

 are exempt

.“

 at subsection

 (b) to read

“Dischargers are exempt

.“

response

#2.

 The Board

further

updates

 the Board Notes at both Section 310.613

and

310.635

reflect

the

most

recent

edition

the

Code

Federal

Regulations

and

reflect

the

source

the

recent

federal

amendments.

310.63~ Fraud and False Statements

35 ,Ill.

Admn.

 Code 310.633 derives

from

former

CFR

403.12(n).

USEPA

amended

CFR

403.12(n)

Fed.

Reg.

30131,

July

24,

1990).

The

amendments

this

provision

broaden

the

perjury

warning

include

the

definition

Section

309(c)

(6)

the

Clean

Water

Act,

U.S.C.

1319(c)

(6),

which

renders

“responsible

corporate

officers”

subject

penalties

for

perjury.

The

Board

adopts

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”

“this

Subpart.”

The

corresponding

federal

citation

“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

the

Board

Note

the

latest

edition

 the Code of Federal Regulations and adds a citation to

the

source

the

later

federal

amendments.

ORDERED.

Dorothy

Gunn,

Clerk

the

‘Illinois

Pollution

Control

Board,

hereby

tify

that

the

above

Opinion

was

adopted

the

2~.’~day of

_____________,

1992,

vote

..~T—

C

i7~.

 Dorothy M.~unn,

Clerk

Illinois

Pollution

Control

Board

129—3 93