ILLINOIS POLLUTION CONTROL BOARD
April
12,
1990
IN THE MATTER OF:
R89—12
PRETREATMENT UPDATE
)
(Identical
in Substance Rules)
(1/1/89
—
6/30/89)
ADOPTED RULE.
FINAL ORDER.
OPINION OF THE BOARD
(by J.
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 substanc&’
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 January
1 through June
30,
1989.
The
following Federal Registers are included:
54
Fed. Reg.
246
January
4,
1989
54
Fed.
Reg.
11346
March 17, 1989
54
Fed.
Reg.
13606
April
4,
1989
54
Fed.
Reg.
13716
May
2,
1989
54
Fed.
Reg.
27351
June
29,
1989
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
POTW treatment plants 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.
Adni.
Code 307 and 310.
Part 307 includes the categorical
110—119
2
pretreatment standards,
which are incorporated by reference from
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 proposed the instant amendments to 35
Ill.
Adm.
Code 307 and 310 by its Proposed Order and accompanying Proposed
Opinion of December
6,
1989.
The Board immediately submitted the
proposed amendments for publication in the Illinois Register and
for public comment.
The Notice of Proposed Amendments appeared
on December 29,
1989,
at 13 Ill.
Reg.
20240 for Part 310 and at
13 Ill.
Reg.
20257 for Part
307.
The statutory public comment period ended on February 12,
1990,
45 days after the date of publication in the Illinois
Register.
The Board adopted an Order on March
8,
1990 that
effectively extended the public comment period through the end of
March.
In the December
6,
1989 Proposed Opinion,
the Board
stressed the importance that conimenters make their submissions
promptly and directly to the Board,
so the Board could obtain the
benefit of their input.
The Board received only one, non—
substantive public comment on the proposed amendments.
Public Comment number one
(PC #1) was from the Secretary of
State,
and received January 30,
1990.
The Board has made the
format revisions to the Board Notes
in Section 310.110 suggested
by the Secretary of State.
The detailed discussion that follows indicates each topic on
which the Board invited public comment.
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,
Opinion and Order of the Board of December
3,
1987.
The rules
appeared on January 29,
1988 at
12
Ill.
Reg.
2502.
They were
filed with the Secretary of State on January
13,
1988.
The pretreatment rules were recently amended
in the
following update rulemakings:
R88—11
June
14,
1988;
12 Ill. Reg.
13094, effective July
29,
1988
(USEPA amendments through December 31,
1987)
R88—l8
December 17,
1988;
13
Ill.
Reg.
1794,
effective
January
31,
1989
(USEPA amendments January
1
through June 30,
1988).
110—i 20
3
R89—3
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-l2
This docket; Proposal
for Public Comment December
6,
1989;
13
1-11.
Reg.
20240
(USEPA amendments
January
1 through June 30,
1989).
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
thern 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
1989 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 0:
ORGANIC CHEMICALS, PLASTICS AND SYNTHETIC FIBERS
35
Ill. Adm.
Code 307.2490 incorporates
40 CFR 414, App. A
by reference, and
35 Ill.
Adin.
Code 307.2491 incorporates
40 CFR
414, App.
B by reference.
USEPA amended both federal appendices
at 54
Fed.
Reg.
27352, June 29,
1989.
The Board updates both
incorporations by reference to include the revisions as embodied
in the 1989 edition of the Code of Federal Regulations.
The effect of the amendment to Section 307.2490
(corresponding to 40 CFR 414,
App.
A)
is to exclude “Anti—knock
fuel additive/Blending purchased tetraethyl lead
& tetraethyl
lead additives”
from the list of “non-complexed metal—bearing
waste streams and cyanide—bearing waste streams” under lead
in
the organic chemicals,
plastics,
and synthetic fibers
(OCPSF)
category..
The effect of the revision to Section 307.2491
(corresponding to
40 CFR 414, App.
B)
is to exclude “Vat
dyes/Mixing purchased dyestuffs
(Anthraquiriones,
polycyclic
Quinones and Indigoids)” under chromium and copper from the list
of “complexed metal—bearing waste streams”
in that category.
For
the Section 307.2491 revision,
“Vat dyes”
is substituted under
chromium
(as it already appears under copper).
USEPA asserts at 54 Fed.
Peg.
27351 that the corresponding
110—121
4
federal amendments,
upon which the amendments are based, delete
misleading language.
The regulations apply only to wastewaters
from the manufacture of OCPSF product/process, under 40 CFR
414.11(a)
(35 Ill.
Adni.
Code 307.2400(b)).
USEPA includes
chemical syntheses and engineering within this, but it does not
include formulation that exclusively comprises blending and
mixing operations.
USEPA deleted these references because they
relate exclusively to blending and mixing and were,
therefore,
erroneous.
SUBPART
CT:
NONFERROUS
METALS FORMING AND METAL POWDERS
35
Ill. Adm.
Code 307.8103(c) (1)
incorporates 40 CFR 471.34
by reference,
35
Iii.
Adin.
Code 307.8103(d)(1)
incorporates
40
CFR 471.35 by reference,
35
Ill.
Adm.
Code 307.8109(c) (1)
incorporates
40 CFR 471.94 by reference, and
35 Ill. Adm. Code
307.8109(d) (1) incorporates 40 CFR 414.95 by reference.
USEPA
amended all four federal sections at 54 Fed.
Reg.
11352, March
17,
1989,
and corrected 40 CFR 471.34(d) at 54
Fed. Reg.
13606,
April
4,
1989.
The Board updates the four incorporations by
reference to include the revisions as embodied
in the
1989
edition of the Code of Federal Regulations.
The effect of the amendments to Sections 307.8103(c) (1)
(corresponding to 40 CFR 471.34(d)),
307.8103(d) (1)
(corresponding to 40 CFR 471.35(d)),
307.8109(c) (1)
(corresponding to 40 CFR 471.94(g)),
and 307.8109(d) (1)
(corresponding to 40 CFR 471.95(g))
is to provide an alternative
to zero discharge of process wastewaters from tube reducing for
new and existing sources in the nickel—cobalt and zirconium—
hafnium forming subcategories of the nonferrous metals forming
and metal powders point source category.
Under the amendments,
such entities may discharge their wastewaters if the results
of
monthly chemical analyses show no levels of three nitrosamines
above the detection limits for method 1625
(40 CFR 136.3, Table
1C
& App.
A, Method
1625,
incorporated by reference
at 35 Ill.
Adni.
Code 307.1003 and 310.107).
(These nitrosamines and their
corresponding detection limits are N-Nitrosodimethylamine,
0.050
mg/l;
N-Nitrosodiphenylamine,
0.020 mg/i; and N-Nitroso-n—
propylamine,
0.020 mg/i.)
The sampling frequency reduces to
quarterly
if none of these amines are detected above the limits
set forth.
There
is no mass allowance,
and the analytical
procedure must have sufficient sensitivity to allow for back-
calculation to remove any effects of dilution from the point of
discharge from the reducing process to the point of sampling.
110—122
5
PART
310
PRETREATMENT
PROGRAMS
SUBPART
A:
GENERAL
PROVISIONS
Section 310.107
Incorporations by Reference
Section 310.110
Definitions
USEPA
promulgated
new
40
CFR
503
and
amended
40
CFR
122,
123,
and
124
at
54
Fed.
Reg.
18780,
May
2,
1989.
This
action
implemented
the
permitting
and
state
program
portions
of
new
sewage sludge management requirements under Section 405 of the
federal Clean Water Act,
as amended by Section 406 of the Water
Quality Act of 1987.
At
54
Fed.
Peg.
5746,
February
6,
1989,
USEPA proposed substantive requirements as part of this program.
It
is apparent that USEPA intends to promulgate this new body of
rules in stages, progressively including new segments of the
regulated community and new requirements.
From a very general perspective,
the Board notes several
issues arising from this new federal program.
The primary focus
of these relates to whether the Board should proceed to assemble
rulemaking
proposals
incorporating
the
federal sludge use and
management
rules
as
USEPA
promulgates
them,
or
whether the Board
should take some alternative action.
Section 13.3 of the Act mandates that the Board adopt
regulations
identical
in
substance
to
USEPA
regulations
promulgated pursuant to Sections 307(b),
307(c),
307(d),
402(b) (8),
and 402(b) (9)
of the Federal Water Pollution Control
Act (Clean Water Act).
All five of those federal provisions
relate to pretreatment regulation.
The Board notes that USEPA
preamble discussions
in the Federal Register and Code of Federal
Regulations
regulatory
authority
notes
are
not always as explicit
or complete as to the statutory authority for particular USEPA
rules.
The USEPA sludge use and management regulations are
apparently outside the authority of Sections 307(b),
307(c),
307(d),
402(b) (8),
and 402(b) (9).
In it Proposed Opinion of
December
6,
1989,
the Board requested clarification of this
issue,
but
it received no comments.
Section 13(b)
of the Act mandates that the Board adopt
“requirements,
standards,
and procedures
...
necessary or
appropriate to enable the State of Illinois to implement and
participate in the
NPDES
program
.
.
.
..“
Newly amended 40 CFR
123.25(a)
provides that sludge use and management rules are not
a
mandatory part of the state NPDES program.
The states may
implement sludge use and management rules as a separate program
or as part of a program independent of their NPDES programs.
USEPA will implement the sludge program
in states not authorized
to administer
it.
Initially this raises questions as to whether
the Agency has authority to impose NPDES permit conditions based
110—123
6
on the federal rules as they take effect.
It also raises issues
as to whether state— or federally—imposed permit conditions
become “sludge requirements” within the meaning
of the
pretreatment
program.
Finally,
it
raises
the
question
as
to
whether
the
Board should begin to assemble a rulemaking proposal
under Section 13(b)
to incorporate the federal sludge use and
management
requirements.
In its Proposed Opinion, the Board summarized its concerns:
Does any aspect of the new federal sludge use and management
requirements fall within the “identical
in substance” mandate of
Section 13.3 of the Act?
Do they fall within the mandate of
Section 13(b)?
Should the Board begin to assemble a rulemaking
proposal that would incorporate the substance of these
requirements?
If so, should the Board propose their
incorporation
into
the
existing
NPDES
program,
the
solid
waste
disposal
program,
some
other
program,
or create an independent
program?
Should the Board approach the General Assembly
for
some
new
rulemaking
authority
to
adopt
rules identical
in substance to
the
federal
requirements?
Does
the
Agency have the authority to
impose
NPDES
permit
conditions
derived
from
the
federal
sludge
requirements?
The
Board
solicited
comment
from
any
interested
persons
on
these
issues, most specifically from the Agency,
USEPA,
and
the
Attorney
General.
The
Board
received no such
comments
from
any
source.
Therefore,
these
issues
remain
without
resolution
at
the
present time.
More specifically to this particular rulemaking,
the Board
amends the 35
Ill. Adm. Code 310.110 definition of “sludge
requirements”
to
incorporate
any
requirements
imposed
by
NPDES
permit
condition,
whether
by
the
Agency
or
USEPA.
The
Board
adds
language
to
the
definition
as
follows,
in
order
to
accommodate
the
May
2,
1989
federal
amendments:
“Sludge requirements” means any of the following permits or
regulations:
...309.155
(NPDES Permits).
...
Section
39(b)
of the Act
(NPDES Permits)
,
and Section 405(b)
of the Clean
Water Act (federally-imposed sludge use and management
requirements).
An alternative method of accommodating these new federal
requirements
in
the
pretreatment
rules
is
to
reference
them
by
federal rules
(i.e.,
by specifically referencing 40 CFR 122
sections),
but
this
method
would
lengthen
the
reference
to
the
federal
requirements
and
necessarily
result
in a
less
comprehensive reference that would require greater effort
in
future pretreatment updates.
The intended effect of this
amendment
is
to
include
these
new
federal
requirements
within
the
“sludge
requirements”
referred
to
in
such
diverse
provisions
as
35
Ill.
Adm.
Code
310.201(a)
(2)
(B)
and
310.303
(d)
,
which
relate
to
affirmative
defenses
and
removal
credits,
respectively.
Revising
this
definition
does
not
broaden
the
Agency’s
permitting
110—124
7
authority by authorizing the Agency to impose federal
regulations.
Rather, the effect
is to allow consideration of the
impact of an industrial user’s discharge on the POTW’s compliance
with any state or federally—imposed sludge use rules.
As a routine matter, the Board adopts a small number of
revisions to the text of Sections 310.107 and 310.110.
The Board
amends
all
the
incorporations
of
federal
regulations by reference
at
Section
310.107(c)
to
the
1989
edition
of
the
Code
of
Federal
Regulations.
The
Board
similarly
updates
the
CFR
references
in
the
Board
Notes
of
Section
310.110.
The
Board
adds
the
name
of
the
court
and
date
of
decision
to
the
reference
to
NRDC
v.
Costle
in
Section
310.107(a),
to
complete
that
reference.
Finally,
the
Board
adds
the
phrase
“et
seq.”
to
the
statutory
reference
to
Subtitles
C
and
D
of
the
Resources
Conservation
and
Recovery
Act
in Section 310.107(c),
in
order
to
avoid
any
confusion
that
the
Board did not intend the entirety of those Subtitles.
The
Board
solicited
comments,
most
specifically
from
USEPA
and
the
Agency,
as
to
these
updates
to
the
definition
of “sludge
requirements,”
at
least
until
alternative references to Board
rules
are
available,
and
to
the
incorporations by reference.
The
Board
received
no
comments
on
this issue.
SUBPART
G:
FUNDAMENTALLY
DIFFERENT
FACTORS
Section 310.711
Application Deadline
This
section
derives
from
40
CFR
403.13(g).
USEPA
amended
the corresponding federal section at 54
Fed.
Peg.
258, January
4,
1989.
The Board updates the Board note to this Section, but does
not amend 35 111. Adm.
Code 310.711(b)
to include the federal
amendment.
Such revision is unnecessary.
The USEPA amendments to 40 CFR 403.13(g)
insert July
3,
1989
as the deadline for “fundamentally different factors” petitions
from
those
affected
by
categorical
pretreatment
standards
promulgated prior to February
4,
1987
(the date that Congress
adopted the Water Quality Act of 1987).
Under the federal
revisions,
USEPA
will
give
those
affected
by
later
standards
180
days
from
the
date
of
promulgation to file their petitions.
USEPA
intends
to
revise
the
substantive
“FDF”
criteria
at
a
later
date
in
response
to
the
WQA
of
1987.
The
Board
will
update
the
date
of
the
CFR
in
the
Board
note
to
this
section,
but
it
will
not
make
any
substantive
change
to
35 Ill.
Adin.
Code
310.711
in
response
to
the
federal
amendment.
Section 310.711(b) (1) provides that petitioners must direct their
FDF petitions to USEPA until USEPA approves the state pretreat-
ment program.
USEPA has not yet authorized the Illinois program.
Section 310.711(b) (2) already provides that petitioners must
submit their petitions within 180 days of when the Board adopts
llfl—125
8
or incorporates a standard that brings that person into the
program.
The Board invited comments, most specifically
from USEPA and
the Agency,
as to its proposed amendment to this section,
and
received
none.
FEDERAL
AMENDMENTS
NOT
MADE
TO
THE
PRETREATMENT
RULES
During
this
update
period
USEPA
also
updated
effluent
criteria contained in 40 CFR 414 and 471.
As was discussed in
the
R86—44
Opinion
(pages
6,
12,
13
and
15),
the Board construes
Section
13.3
of
the
Act
as
requiring adoption of regulations.
However,
the
Board
recognizes
that
the
language
of
Section
13.3
does
not
specifically
limit
the
authority
to
“pretreatment”.
The
Board
solicited
comment as to whether,
absent legislative
clarification,
it
is
correctly
construing its Section 13.3
authority as precluding
it from augmenting or replacing the
effluent standards of
35 Ill.
Adm.
Code 304,
and NPDES permit
rules
of
35
Ill.
Adm.
Code
309,
using
the
identical
in
substance
procedures.
The
Board
received
no
public
comments
on
these
issues.
Amendments
to
the
effluent
standards
in
the
instant
proceeding
impact
the
direct discharge point sources in the
organic chemicals,
plastics,
and synthetic fibers category
(40
CFR
414,
Subparts
I
and
J)
and
in
the
nickel-cobalt
forming,
the
zirconium-hafnium forming, and the metal powders subcategories of
the nonferrous metals
forming and metal powders point source
category
(40 CFR 471,
Subparts C,
I,
and
J)
.
These effluent
rules are companions to the federal pretreatment requirements
in
the USEPA rules.
We also note that these recent parallel federal
effluent amendments raise several of the same issues and
questions as do the new federal sewage sludge use and management
program.
As it did for the above discussion of the sludge rules,
the Board notes that USEPA preamble discussions and authority
notes do not always fully guide the Board.
Is the authority
exercised by USEPA in adopting effluent amendments outside the
scope of those Clean Water Act provisions that would evoke the
Board’s Section
13.3
identical in substance mandate?
The Board
requested comment on this issue,
but received no comments.
Also as described above,
Section
13(b)
of the Act mandates
that the Board adopt “requirements,
standards, and procedures
necessary or appropriate to enable the State of Illinois to
implement and participate in the (NPDES program
.
...“
These
categorical effluent rules are necessarily
a mandatory part of
the state NPDES program.
Section 39(b)
of the Act and various of
the Board’s Part 309 rules authorize the Agency to impose permit
conditions predicated on federal NPDES standards and limitations.
Noting the potential anomaly of the Board adopting pretreatment
regulations but not the companion effluent regulations for the
110—1 2
9
same industrial categories, the Board requested comments as to
whether it should assemble a rulemaking proposal to adopt the
federal effluent limitations into the Water Pollution Control
requirements.
The Board received no comments on this issue.
In the Proposed Opinion,
the Board summarized its concerns:
Does any aspect of the categorical federal effluent requirements
fall within the “identical
in substance” mandate of Section 13.3
of the Act?
Do they fall within the mandate of Section 13(b)?
Should the Board begin to assemble a rulemaking proposal that
would incorporate the substance of these requirements?
Should
the Board approach the General Assembly for some new rulemaking
authority to adopt rules identical
in substance to the federal
categorical effluent requirements?
Having received no comment on
these important issues,
the Board will defer any discussion as to
possible alternatives until some future time.
The Board will withhold filing the adopted amendments with
the Secretary of State
for
30 days,
in order to give USEPA an
opportunity to comment.
IT IS
SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
do hereby cert~ifythat the above Opinion was adopted on
the
~
day of
______________
,
1990,
by a vote of
/
~
~
L~.
/
/
~
.~
~-
Dorothy N. “Gunn, Clerk
Illinois Pollution Control Board
110—127
