ILLINOIS POLLUTION CONTROL BOARD
May 11, 1989
IN THE MATTER OF:
PRETREATMENT UPDATE
)
R89—3
(7/1/88 through 12/31/88)
)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION OF THE BOARD (by J. Marlin):
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 Proposed 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
the USEPA rules. Part 310 specifies how a POTW sets up a
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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—l1 June 14, 1988; 12 Ill. Reg. 13094, effective July
29, 1988 (USEPA amendments through December 31,
1987).
R88—18 December 17, 1988; 13 Ill. 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, 2988, 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)(1) of the Act, amendments
concerning directives for progam approval have not been adopted.
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 OFR 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
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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. Reg. 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.
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. Reg. 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. Reg. 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.
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Section 310. 222
This Section was derived from 40 CFR 403.6(b), amended at 53
Fed. Reg. 40611, October 17, 1988. The amendment adds 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. Reg. 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.
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’1 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 CFR 403.6(d), amended at 53
Fed. Reg. 40611, October 17, 1988. The effect of the amendments
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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)(l) 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 blowdown streams and
non—contact cooling streams, the average daily flow may also be
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
than 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 CFR 403.8(b), amended at 53
Fed. Reg. 40612, October 17, 1988. The only amendment made to
this Section is updating the board note. For it appears that the
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. Reg. 40612, October 17, 1988.
One amendment to subsection
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(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 (proposed for adoption) by November 16, 1989. This
November, 1989 date is based on the assumption that a statutory
provision exists to allow approval of program modification.
Comment is solicited whether such statutory authority does exist.
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. Reg. 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
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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. Reg. 40613, October 17, 1988. One amendment allows
industrial users who have submitted information to USEPA pursuant
to 40 CFR 128.40(b) (1977), to not have to submit this
information again. The Board proposes to retain the current
federal language. Comment is solicited on this proposal.
Another amendments requires
new sources to submit
information 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 (e).
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, language concerning deadlines for industrial users was
deleted from subsection (h) because Illinois does not regulate
the USEPA.
Finally, a new subsection (i) 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
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set on other contributors to avoid permit violations.
Section 310.604
This Section was derived from 40 CFR 403.12(d), amended at
53 Fed. Reg. 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.
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
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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
(1) 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.
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. Reg. 40614, 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 language as
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. Reg. 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. Reg. 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
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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. Reg. 40615, October 17, 1988.
The amendment updates the
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. Reg. 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. Reg.
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.
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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
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 proposed to omit 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. Reg. 40615, October 17, 1988. This Subpart has
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.
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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 substantial modifications for
purposes of this Section.
Paragraph (c) of the federal language
is not proposed for adoption since it is a directive. Comment is
solicited on the need for
other substantial modifications to be
added to the list.
This Proposed Opinion supports the Board’s Proposed Order of
this same day.
IT IS SO ORDERED.
I, Dorothy 14. Gunn, Clerk of the Illinois Pollution Control
Board, here~ycertify that the above Proposed Opinion was adopted
on the
//~-
day of
~‘h
,
1989, by a vote of 7—~
Dorothy M.4~unn, Clerk
/L~J
Illinois ~llution
Control Board
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