ILLINOIS POLLUTION CONTROL BOARD

September 28, 1989

IN THE MATTER OF:

)

R89—3.

PRETREATMENT UPDATE

)

(Identical

in Substance Rules)

(7/1/88 through 12/31/88)

)

FINAL ORDER.

ADOPTED RULE.

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),

Ill.

Rev.

Stat.

ch. 111 1/2,

par.

1013.3.

The text is contained in a

separate 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)

do 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 July

1 through December

31,

1988.

The

following Federal Registers are included:

53 Fed. Reg.

40610

October

17, 1988

53

Fed. Reg.

52369

December

27, 1988

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.

Adm.

Code 307 and 310.

Part

307 includes the categorical

pretreatment standards, which are incorporated by reference from

1O3—6fl~

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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.

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—ll

June

14,

1988;

12

Ill. Reg.

13094, effective July

29,

1988

(USEPA amendments through December

31,

1987)

R88—18

December

17,

1988;

13

Iii. Reg.

1794, effective

January 31,

1989

(USEPA amendments through June

30, 1988).

R89—3

This Docket;

(USEPA amendments through December

31,

1988)

The specific amendments derived from the USEPA actions made

on December

27,

1988 affect the categorical pretreatment

standards reflected in Part 307.

The amendments derived from

USEPA action made on October

17,

1988,

1988 affect the program

requirements relected in Part 310.

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

1988 edition of the Code of Federal Regulations.

Pursuant the

Board’s mandate

in Section 7.2(a)(l)

of the Act, amendments

concerning directives

for progam approval have not been adopted.

PUBLIC COMMENTS

The proposed revisions to

35

Ill. Adm. Code 307 appeared at

13

Ill. Reg.

9471, June

23,

1989.

The proposed revisions to 35

Ill. Adm. Code 310 appeared at

13

Ill.

Reg.

9426, June

23,

1989.

The public comment period closed on July 28,

1989.

The

Board received three public comments on the proposed rule.

The

first

(P.C.

#1),

received July 14,

1989 from the Office of the

Secretary of State highlights one code format error and one

omission from subsection 307.7703(d)(3)

in the text of

the

proposed rule as published

in the Illinois Register

(at

13

Ill.

Reg.

9471,

June

23,

1989).

The second

(P.C.

#2),

received July

31,

1989 from the Illinois Department of Commerce and Community

Affairs includes the Department’s Impact Analysis relating to the

proposed Part

307 revisions.

That Analysis indicates that the

Part 307 revisions will have no effect on small businesses.

The

third

(P.C.

#3),

received August

23, 1989 from the Illinois

Department of Commerce and Community Affairs includes the

1f~3,-~1r

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—3—

Department’s Impact Analysis relating to the proposed Part

310

revisions.

That Analysis indicates that the Part 310 revisions

will also have no effect on small businesses.

The Board also received several useful commants from the

Joint Committee on Administrative Rules

(JCAR)

after

the public

comment period.

Both documents dated September

8, 1989, and the

Board received them on September 12.

JCAR noted three

administrative code format errors and one grammatical error

in

the text of the proposed rule.

It noted an erroneous Federal

Register refer~riceat

13

Ill. Reg.

9426

(June

23, 1989).

JCAR

questioned the Board’s restructuring of Section 310.602 from the

parallel federal provision at

40 CFR 403.12(b) and pointed out

language omitted from Section 310.922 that appears

in

corresponding 40 CFR 403.18(c), as amended at

53 Fed. Reg.

40615

(Oct.

17,

1988).

The Board outlines below the substantive revisions made as

a

result of these public and JCAR comments.

REVISIONS FROM PROPOSED TEXT OF THE RULE

The published text of

35

Ill. Adm. Code 307.7703(d)(3)

omitted some of the text of the existing

rule and included new

text indicating an incorporation by reference.

The Board

intended no change in the text of the existing rule,

and today’s

Final Order will

reflect the fact that no change has occurred as

a result of this proceeding.

Rather,

the underlined

laqguage,

which relates

to an incorporation by reference, should have

appeared as part of the update amendment to the Section

307.7703(d)(l)

incorporation.

Today’s Final Order

includes this

language erroneously omitted from subsection

(d)(l) and added to

subsection (d)(3).

The proposed text

off

310.230(c)

included the phrase,

“capacity by rather.”

The Board corrects this to “capacity,

but

rather.”

The proposed text of

35

Ill. Adm. Code 310.602(h)

erroneously indicated deletions from the existing rule, and

35

Ill. Adm. Code 310.602(i)

was erroneously indicated as the wrong

level of subsection.

Further, additional examination of the

parallel

text of

40 CFR 403.12(b),

as amended at

53

Fed.

Reg.

40613

(Oct.

17,

1988),

indicates an anomaly

in the federal

rule.

The text of both subsections

(h) and

(1), as proposed is

corrected and combined into subsections

(h)(l) through

(h)(2)(C)

as adopted

in today’s Final Order.

The Board’s independent review of the text of the proposed

rules revealed an omission from the text of proposed

35

Ill. Adm.

Code 310.913.

The text of proposed subsections 310.913

(a)

through

(c) now appear as subsections 3l0.9l3(a)(1)

through

(a)(3), and the erroneously omitted text appears as subsection

310.913(b).

103--611

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—4—

The proposed text of 35

Ill. Adm. Code 310.922 did not

include the text of

40 CFR 403.18(c)(3).

The Board corrects this

omission by addition of new subsections (c)(l)

through

(c)(3).

The Board makes

no other substantive revisions to the text

of the rule as proposed and published in the Illinois Register on

June 23, 1989.

However,

the Board corrects a small number of

code

format errors without specific mention

in this opinion.

The Board appreciates the imput received in the form of the

public comments submitted.

The Board invited comments on a

number

of specific aspects of the proposed rule.

The Board

construes silence as acceptance of its adaptation of those

aspects from the text of the corresponding federal rules.

SECTION-BY SECTION DISCUSSION

PART 307

SUBPART CP: ALUMINUM FORMING

As no easy method for listing the changes Section by Section

is available,

the amendments are categorized by subject,

as

in

the Federal Register.

Due to the structure of the amendments,

all four pages,

53 Fed. Reg.

52369 through

52372 should be

reviewed for amendments.

Oil and Grease Amendments:

A change was made in certain parts of

40 CFR 467 amending

the oil and grease alternate monitoring parameter

for total

toxic

organics

(TTO)

for Pretreatment Standards for Existing Sources

(PSES).

These revisions are intended

to provide adequate

insurance

that the TTO limits are met when oil and grease

is

maintained below 52 mg/L for any one day and

26 mg/L for any one

month.

The Sections affected by this change are 35

Ill. Adm Code

307.7701(c), 307.7702(c), 307.7703(c), 307.7704(c), 307.7705(c)

and 307.7706(c).

Each Section has had its incorporation by

reference language updated with the Federal Register citation of

the amendment,

53 Fed.

Req.

52369,

December

27,

1988.

Flow Allowances

for the Cleaning or Etching Rinse Amendments:

An amendment revises the BAT and PSES flow allowances

for

cleaning or etching rinses based on two-stage countercurrent

cascade

rinsing that achieves

72 percent flow reduction instead

of

90 percent.

Both affected Sections,

307.7703(c)

and

307.7704(c), have been updated

to reflect the amendment

from 53

Fed.

Reg.

52369,

December

27,

1988.

Another amendment from

53 Fed. Reg.

52369,

December

27,

1988, adds

the definition of a

“hot water

seal”

to

40 CFR

467.02.

The Section affected, 307.7700(b),

has been updated to

reflect the amendment.

103—612

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—5—

PART 310

SUBPART A: GENERAL PROVISIONS

Section 310.107

40 CFR 128.140(b)

(1977)

has been added to the incorporation

by reference list.

Most year references have been updated to

reflect 1988, with several exceptions,

including the above

citation.

Section 310.110

The definition for “new source” has been amended to cross—

reference the new definition

in Section 310.111.

All year

references have

been updated

to reflect 1988.

Section 310.111

This Section was derived from 40 CFR 403.3(k), added at

53

Fed. Req.

40610, October

17,

1988.

It defines “new source” and

the requirements

to meet the definition.

Subsection

(d) was

derived from

40 CFR 403.6(b), amended at 53 Fed.

Req.

40611,

October 17,

1988.

Subsection

(d)

states what

new sources must

install

to meet applicable pretreatment standards, and the time

frame

in which they must meet

the standards.

SUBPART

B:

PRETREATMENT STANDARDS

Section 310.221

This Section was derived from 40 CFR 403.6, amended at

53

Fed. Reg.

40611, October

17,

1988.

The amendment replaces the

current required certification statement by an applicant with a

new version.

Section 310.222

This Section was derived from 40 CFR 403.6(b), amended at

53

Fed.

Req.

40611,

October 17,

1988.

The amendment

add’s a

subsection

to address compliance deadlines for “new sources”

which was added

in this update.

The major language was added to

the new Section addressing new sources,

310.111, which will apply

to 35

Ill. Adm.

Code

307.

Section 310.230

This Section was derived from 40 CFR 403.6(c), amended at

53

Fed. Req.

40611, October

17,

1988.

It adds several new

subsections.

In general, the amendments change the legal status

of equivalent concentration or mass limits calculated by control

authorities from production based categorical standards.

103—613

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—6—

One converts a production based standard to a mass

limitation by multiplying the limit

in the standard by an

appropriate production

rate.

The production rate is based upon

a

reasonable measure of the facility’s actual long-term average

daily production (e.g.,

the daily average during a representative

year).

This ensures that facilities operating below full

capacity are treating their wastewaster

to the extent required by

the Federal Clean Water Act’s technology—based pretreatment

requirements,

rather than reducing their level of treatment due

to unused production capacity.

This approach also ensures equity

among facilities

in the same industry,

regardless of

their design

capacity.

Also,

the amendment requires the industrial user

to notify

the control authority within

2 business days after the user has a

reasonable basis

to know that the production level will

significantly change within the next calendar month.

The control

authority will then adjust the equivalent mass and concentration

limits to reflect these changes.

Any user

not notifying the

control authority of such anticipated change will be required to

meet the mass or concentration limits,

in its permit or

authorization to discharge,

which were based on the original

estimate of the long term average production rate.

One final minor change from the federal language was made

in

subsection

(b).

The federal language states “the control

authority may convert the limits to equivalent limitations

expressed either as mass of pollutant discharged per day of

effluent concentration...”

The Board believes “of”

is a

typographical error and it should be “or”.

Thus, the subsection

is amended by substituting “or”

in place of

“of”.

Section 310.232

This Section was derived from 40

CFP. 403.6(d), amended at

53

Fed. Reg.

40611,

October

17,

1988.

The effect of the amendments

adding the words

“or requirement”

in two places requires the

industrial user

to obey requirements as well as pretreatment

standards.

Section 310.233

This Section was derived from

40 CFR 403.6(e), amended at

53

Fed. Reg.

40611, October

17,

1988.

One amendment adds language

to subsection

(a)(l),

(a)(2) and subsection

(d),

the proviso

to

which

(a)(1) and (a)(2)

are subject.

Subsection

(a)(l)

specifies

how the control authority shall derive alternative concentration

limits.

Subsection

(a)(2) specifies how the control authority

shall derive the alternative mass

limits.

One factor common

in

both formulas

is the average daily flow

(D).

Prior

to the

amendment,

the average daily flow was to be taken from only

boiler blowdown streams and non-contact cooling streams.

The

amendment adds that in addition

to boiler

blowdowri streams and

non—contact cooling streams,

the average daily flow may also be

103—614

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—7—

taken from stormwater streams and demineralizer backwash streams,

subject to subsection

(d).

Subsection

(d)

is amended to also include “stormwater

streams and demineralizer backwash”.

Both stormwater streams and

demineralizer backwash are subject to the same conditions as the

blowdown and non—contact cooling streams.

A new subsection

(f)

was also added.

It requires that where

treated regulated process wastestream is combined before

treatment with wastewaters other

t-han those generated by the

regulated process,

the industrial user may monitor either the

segregated process wastestream or the combined wastestream for

the purpose of determining compliance with pretreatment

standards.

It continues to state the requirements for each

choice of monitoring location and once established,

the

industrial user can change monitoring locations only with

approval of

the control authority.

Finally,

it requires the

control authority to ensure that any change

in the monitoring

points does not substitute dilution for adequate treatment to

achieve compliance with applicable standards.

SUBPART E: POTW PRETREATMENT PROGRAMS

Section 310.502

This Section was derived from 40

CFP.

403.8(b),~amended at

53

Fed.

Reg.

40612,

October 17,

1988.

The only amendtheht’made

to

this Section

is updating the board note.

The existing state

language already reflects the substantive changes made in the

federal amendment.

Section 310.510

This Section was derived from 40

CFR 403.8(f), amended at

53

Fed. Req.

40612, October

17,

1988.

One amendment

to subsection

(a)(3) was not adopted since the subject word,

contract(s), does

not appear

in current State

text as discussed in the R86—44

Opinion at

P.

50.

Basically,

the word is not present

in the

Illinois regulations because units of government appear

to have

local authority to regulate by ordinance,

which was

the

preference of commenters of the R86—44 Opinion.

Also,

one

commenter

in R86—44 pointed out that contracts appears to be

inconsistent with control through ordinances.

However, revision has occurred

in subsection

(a)(6)(A),

relating

to POTW’s remedies for noncompliance.

The amendment

allows all POTW’s

to be able

to seek or assess

civil

or criminal

penalties of at

least $1000

a day for each violation by

industrial users of pretreatment standards and requirements.

For

POTW’s to obtain this authority,

they must

submit a request for

approval of a program modification

in accordance with Section

310.Subpart K (adopted today) by November

16, 1989.

This

November,

1989 date

is based on the assumption that a statutory

103-615

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—8—

provision exists

to allow approval of program modification.

Also,

a new subsection

(d) was added.

It clarifies that the

development of local limits

(or

a demonstration that they are not

necessary)

is a prerequisite

to POTW program approval

(and the

continuing legal acceptability of a local program).

Section 310.522

This Section was derived

from 40 CFR 403.9(b), amended at

53

Fed. Reg.

40612, October

17,

1988.

The federal amendment is

the

deletion of the word “contract” and “contracts”

from subsections

(a)(2) and

(b), respectively.

For contracts are

no longer

considered an adequate enforcement mechanism by the USEPA and the

words should not appear

in the state language as discussed in

Section 310.510.

Most references

to the words “contract” were

deleted from the state language; these two references were

inadvertantly left

in.

Section 310.531

This Section was derived from 40 CFR 403.9(e), amended at

53

Fed. Reg.

40612, October

17,

1988.

The amendment adds a

60 day

deadline date within which time the Agency must make its

preliminary determination that the submission meets the

requirements of Section

310.522 and if appropriate, Section

310.524.

Section 310.542

This Section was derived from 40 CFR 403.11(b), amended at

53 Fed. Req.

40613, October

17,

1988.

The amendment lengthens

the amount of time the Agency has

to determine whether

a

submission meets the necessary completeness requirements from

5

days

to

20 days.

The amendment also replaces the words “credit

authorization” with “allowance approval”.

Additionally,

the Federal Register language changes the

reference from Section 403.7(e)

to 403.7(d).

However,

this

appears

to be

a typographical error and no corresponding change

is made in the Illinois regulations.

SUBPART F: REPORTING REQUIREMENTS

Section 310.602

This Section was derived from 40 CFR 403.12(b),

amended at

53

Fed.

Req.

40613,

October

17,

1988.

One amendment allows

industrial users who have submitted information to USEPA pursuant

to

40 CFR 128.140(b)

(1977),

to not have

to submit this

information again.

The Board retains the current federal

language.

Other amendments requires new sources

to submit

information

103-~616

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—9—

on the method of pretreatment that

it intends

to use to meet

applicable pretreatment standards.

It also requires estimates

for flow measurement, subsection

(d), and measurement of

pollutants,

subsection

Ce).

Another change

is the replacement of two subsections,

(e)(3)

and (e)(4) with simpler requirements for taking samples

to

demonstrate a preliminary picture of an industrial user’s

processes and wastestream characteristics to the Agency.

The

reduced sampling for the baseline report will

not affect other

sampling and analysis requirements.

Amended subsection (e)(3)

requires that,

except for five

named pollutants,

the industrial user must obtain

24 hour

composite samples through flow-proportioned techniques where

feasible.

Grab samples are not required for pH, cyanide,

total

phenols, oil and grease and sulfide because they degrade too

rapidly for the

24 composite method.

Unlike the NPDES rules,

temperature,

residual chlorine and fecal coliform are not

required because they are not regulated under categorical

pretreatment standards and thus need not be reported.

Subsection

(e)(4) establishes

a minimum sampling requirement

of one sample

for all industrial users.

Next,

a new subsection (h)(2)(B)

was added requiring new

sources, and existing sources

that become industrial users

subsequent

to the promulgation of an applicable categorical

standard,

to submit

a baseline report at least

90 days before

beginning to discharge

to a

POTW.

The POTW may require earlier

submission where appropriate.

Early submission of information

is

necessary to determine whether more stringent limits need to be

set on other contributors

to avoid permit violations.

Finally,

the USEPA—added language concerning deadlines

for

the submission of baseline reports by “new sources,”

to 40 CFR

403.12(b),

created an anomaly:

“new sources”

(deemed

so as of

the date USEPA proposed regulating their activities)

that already

discharge as of the date of the regulatory promulgation or

administrative decision that included them

in the system must

file the base report

90 days before beginning

their discharge.

The Board attempts

to correct this by redefining this group of

“new sources” as “existing sources”

for the purposes of this

deadline only, by adding subsection

(h)(2)(C).

Section 310.604

This Section was derived from 40 CFR 403.12(d), amended at

53

Fed. Req.

40613,

October

17, 1988.

The amendment does not

change existing requirements, but

just clarifies the contents of

the 90 day compliance

report.

It

requires the industrial user

to

submit

in his compliance report the same detailed information as

in the base

line report.

It also specifies additional

information required by industrial users subject

to equivalent

mass or concentration limits.

103—

~~17

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—10—

Section 310.605

This Section was derived from 40 CFR 403.12(e),

amended at

53

Fed.

Reg. 40613, October

17,

1988.

The amendment adds a new

subsection

(c).

This new subsection states reporting

requirements for

industrial users

subject to equivalent mass or

concentration limits established by the Agency and for industrial

users subject

to categorical pretreatment standards expressed

only in terms of allowable pollutant discharge per unit of

production.

Section 310.606

This Section was derived from 40 CFR 403.12(f), amended at

53

Fed.

Reg.

40614,

October

17,

1988.

This amendment replaces

the current

requirement that

the industrial user notify the POTW

only for slug loadings with a broader requirement that industrial

users, categorical and non—categorical,

notify the POTW of any

problems that could cause problems, including slug loadings.

The

Section head is revised to read “Notice of Potential Problems”.

Section 310.610

This Section was derived from 40 CFR 403.12(g), amended at

53

Fed. Reg.

40614,

October

17,

1988.

Four new subsections have

been added.

To establish a minimal acceptable amount

of

monitoring

for the periodic compliance report, clarifying

language has been included as to what amount of sampling and

analysis are necessary.

The Agency will monitor frequency for

indirect dischargers on a case—by—case basis, based on certain

criteria.

Another change expressly allows a POTW to monitor

versus self—monitoring

by industrial users.

Section 310.611

This new Section

is derived from a new

40 CFR 403.12(h),

added at

53 Fed. Reg.

40614,

October

17,

1988.

The old paragraph

(h) has been redesignated

40 CFR 403.12(k).

The Section has been

headed “Requirements for Non—Categorical Users”.

The Section

provides that the control authority shall

require appropriate

reporting from those industrial users with discharges

that are

not subject

to categorical pretreatment standards.

Section 310.612

This new Section

is derived from

a new

40 CFR 403.12(i),

added

at

53

Fed.

Reg.

40614, October

17,

1988.

The old paragraph

(i) has been redesignated 40 CFR 403.12(1).

This new Section

is

headed “Annual POTW Reports”.

The Section requires POTW’s with

approved pretreatment programs

to provide the Agency with a

report containing specified information within one year from the

date its pretreatment program was approved.

103—618

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—11—

Section 310.613

This new Section is derived from a new 40 CFR 403.12(j),

added at

53 Fed.

Reg. 40614, October

17,

1988.

The old paragraph

(j)

has been redesignated

40 CFR 403.12(m).

This new Section is

headed “Notification of Changed Discharge”.

It requires all

industrial users

to promptly notify the POTW in advance of any

substantive change in the volume or character of pollutants

in

their discharge.

Section 310.621

This Section was derived from 40 CFR 403.12(h), amended at

53 Fed.

Reg.

40614, October

17, 1988.

The old paragraph

(h)

has

been redesignated

40 CFR 403.12(k).

Section 310.631

This Section was derived from 40 CFR 403.12(i).

However,

due to the amendment at

53 Fed. Req.

406l4,October

17,

1988,

this Section is now derived from 40 CFR 403.12(1).

The amendment

to this Section adds language to the introductory sentence

requiring the certification statement in the required reports.

Subsection (a)

has also been expanded with detailed lan~uageas

to who qualifies as a responsible corporate officer.

Subsection

(c)

has also been expanded with detailed language concerning duly

authorized representatives.

Section 310.632

This Section was originally derived from 40 CFR 403.12(j).

Due

to the amendment at

53 Fed.

Req.

40614,

October

17,

1988 this

Section is now 40 CFR 403.12(m).

Section 310.633

This Section was derived

from 40 CFR 403.12(k).

Due to the

amendment

at

53 Fed. Req.

40614,

October

17,

1988,

this Section

is now 40 CFR 403.12(n).

The Section was amended to make an

additional reference

to the new Sections 310.611 and 310.612.

Section 310.634

This Section was derived from

40 CFR 403.12(1).

Due to

the

amendment at

53 Fed. Reg.

40614,

October

17,

1988, this Section

is now

40 CFR 403.12(o).

The Section is amended to add a

reference

to the new 310.611.

SUBPART H:

ADJUSTMENTS FOR POLLUTANTS IN INTAKE

Section 310.801

This Section was derived from 40 CFR 403.15, amended at

53

Fed. Req.

40615,

October

17,

1988.

The amendment updates the

103—619

---

—12--

year reference and adds

a reference to the amendment modifying

the Section.

SUBPART

I: UPSETS

Section 310.903

This Section was derived from

40 CFR 403.16(c), amended at

53 Fed. Req. 40615, October

17,

1988.

The amendment deletes the

word “specific” from subsection

(a)

to clarify that the

regulation does not require investigation to an impossible degree

of certainty in establishing an upset defense.

Now the

industrial user must only identify the cause of the upset.

SUBPART

J: BYPASS

This new subpart was derived entirely from 40 CFR 403.17,

added at

53 Fed.

Req.

40615,

October

17,

1988.

A bypass

is the

intentional diversion of waste streams from any portion of a

discharger’s treatment facility.

To date there has been bypass

provisions only

in the NPDES regulations.

Since

the purposes

served by the NPDES bypass provisions are equally important in

the pretreatment

context, similar provisions are now being added

to these pretreament regulations.

The purpose of

the bypass

provisions

is to ensure that industrial

users properly operate

and maintain their treatment facilities and thus fulfill the

purpose and assumptions underlying technology-based standards.

Like the NPDES provision,

industrial users must operate their

treatment systems at all times.

This Subpart also excuses

bypasses under the same circumstances as the NPDES bypass

provision.

Section 310.910

This Section defines “Bypass” and “Severe Property Damage”.

Section 310.911

This Section provides that an industrial user may allow a

bypass

if

it is for essential maintenance

to assure efficient

operation so long as the bypass does not cause a violation

of the

pretreatment standards

or requirements.

Section 310.912

This Section states

that

if an industrial user knows

in

advance of the need for a bypass,

an industrial user must submit

prior notice to the control authority at

least

10 days before the

bypass.

Also,

oral notice must

be given of an unanticipated

bypass within

24 hours from the time the industrial user becomes

aware of the bypass,

followed by written notice within

5 days of

the time the industrial user became aware.

The information that

is required in the written submission

is detailed.

Finally,

the

Section gives the control authority the authority to waive the

103—620

---

—13—

written report on a case—by—case basis

if the oral report has

been received within the 24 hours.

Section 310.913

This Section provides that bypass

is prohibited, unless the

industrial user can show all three elements of

a defense.

The

three elements of the defense are 1)

the bypass was unavoidable

to prevent loss of life, personal injury or severe property

damage;

2)

there were no feasible alternatives; and 3)

the

industrial user submitted notices as required under Section

910.912.

This Section also gives

the control authority the

ability to approve an anticipated bypass

if the control authority

determines that

it will meet the three conditions and the adverse

effects are considered.

The USEPA

rule provides

that the control authority may not

file an enforcement action if the defense is present.

The Board

has omitted this provision since

it does not regulate the

Agency’s prosecutorial discretion.

SUBPART

K:

MODIFICATION OF POTW PRETREATMENT PROGRAMS

This entire new Subpart was derived from 40 CFR 403.18,

added at

53 Fed.

Req.

40615, October

17,

1988.

This Subpart h~s

been added to address the situation where changing conditions at

the POTW may warrant changes

in the operation of the program.

Changes that may require program modification include the

addition of new industrial

users, new connections with outlying

jurisdictions,

the establishment of

new water quality standards,

new treatment techniques or sludge use or disposal methods,

changing resource conditions etc.

This Subpart is intended

to

track the program approval process, providing procedures and

criteria for modification

of approved programs.

Section 310.920

This Section gives either

the Agency or the POTW with an

approved POTW pretreatment program the authority to initiate

program modification at any time to reflect changing conditions

of the POTW.

Section 310.921

This Section states the procedures

to modify the program.

The CFR citation and federal language concerning minor

modification of permits has not been added

in Section 310.910.

For as discussed in the R86—44 Opinion,

p.

48, minor modification

procedures do not exist for NPDES permits under

the Illinois

regulations at

35

Ill. Adm. Code

309.

Section 310.922

This Section states what are the modifications for the

1fl3. (~1

---

—14—

purposes of Subpart

K.

This Opinion supports the Board’s Final Order of this same

day.

The Board will delay filing the text of these

rules with the

Secretary of State for

14 days in order

to allow additional

time

for comment by the U.S. Environmental Protection Agency and the

Illinois Environmental Protection Agency.

IT IS ~JOORDERED.

I, Dorothy M. Gunn, Clerk of

the Illinois Pollution Control

Board,

hereby certijy that the above Opinion was adopte)1 on

the

~‘~-

day of

,-,~,

,

1989,

by a vote of

~

~2).

Dorothy M. c~ünn, Clerk

Illinois Pó-llution Control Board

103-622