ILLINOIS POLLUTION COt~TROLBOARD
    September 22, 1988
    IN THE MATTER OF:
    PRETREATMENT UPDATE
    )
    R88-18
    (1/1/88 through 6/30/88)
    )
    PROPOSAL FOR PUBLIC COMMENT
    PROPOSED OPINION OF
    THE BOARD
    (by J.
    Marlin):
    The Board
    is
    proposing to amend the pretreatment
    regulations pursuant to
    Section
    13.3 of the Environmental
    Protection Act
    (Act).
    The text of the
    proposal
    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, which was
    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 theBoard to provide
    for notice and public
    coninent before rules
    are filed with the Secretary of State.
    S.B. 1834 enacted
    in the recent Session includes
    a definition
    of
    “identical
    in
    substance.~’ This legislation
    largely codifies the Board’s past
    interpretation 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,
    1988
    The following Federal Registers
    are included:
    53 Fed.
    Reg. 1704
    January 21, 1988
    53 Fed.
    Reg. 9176
    March
    21, 1988
    The Agency filed
    a public
    conziient
    in R88—1 which
    included
    a
    list of
    typographical
    errors
    in the rules
    adopted
    in R86—44.
    The Board
    has made this
    coment
    a
    public
    coniiient
    in this Docket,
    in order
    to address errors
    made
    in
    an
    identical
    in substance rulemaking
    in
    the same procedural
    context.
    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.
    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
    ~)2—6O3

    -2-
    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 Iii. Reg. 2502.
    They were filed with the Secretary of State
    on January
    13,
    1988.
    The pretreatment rules were amended
    in the following update rulemaking:
    R88—11
    June 14, 1988;
    12
    Ill.
    Reg. 13094, effective July 29,
    1988.
    The specific amendments derived from the USEPA actions
    affect only the
    categorical pretreatment standards reflected
    in Part 307;
    there
    are no
    amendments
    to the program requirements
    of Part 310.
    The following
    is
    a
    summary
    of the amendments:
    January
    21
    Modifications for the Primary Tungsten Subcategory.
    March
    21
    Modifications for Leather Tanning Subcategory.
    Both
    of these represent minor modifications to
    the USEPA rules resulting
    from litigation.
    The changes
    are mainly updated incorporations by
    reference.
    Most of the changes
    in the proposal
    are corrections
    of minor
    typographical
    errors which occurred
    in
    adoption of the rules
    in R86-44.
    Many
    of these were pointed
    out
    by the Agency
    in
    its
    public
    comment
    in R88-1,
    as
    discussed above.
    DETAILED DISCUSSION
    Section 307.1508
    This Section corrects the spelling of 1’sherbet”, and corrects the
    incorporation by
    reference of 40 CFR 405.86.
    “Sherbet”
    is misspelled
    in the
    USEPA rule,
    but the Board
    has proposed to correct
    it here~
    The Board has not proposed to correct the spelling of
    “buttermilk”
    or
    “butter
    milk”
    It
    is unlikely that this would mislead
    anyone.
    Attempting to
    correct minor typographical errors carries
    a risk of making
    a major error.
    The
    Board has noted many of the Agency’s suggestions,
    and will
    propose
    to
    correct them as
    these Sections come
    up
    for
    review.
    In R86—44 the Board generally referenced the 1986 edition of the Code of
    Federal Regulations.
    The Board
    has proposed
    to update the
    references
    in
    all
    Sections
    up
    for review to the
    1987 edition.
    Section 307.1704
    “Onto”
    has been corrected to
    read “into”.
    Section 307.2101
    “Contracted”
    has been corrected to read “contacted”.
    ‘)2—60 4

    —3-
    Section 307.2903
    “Of”
    has been corrected to
    read
    “or”.
    In Section 307.2904,
    the Board
    cannot find
    the error.
    In Section
    307.3100, there
    is
    no rule which prohibits omission of subsection
    labels.
    Section 307.3100(b)
    is
    reserved for
    a
    reserved USEPA Section.
    There
    is
    a rule
    against placing
    a “reserved”
    in the subsection.
    Section 307.3110
    The pretreatment standards for primary tungsten manufacture were amended
    at
    53 Fed. Reg.
    1711, January 21,
    1988.
    Section 307.3129
    The spelling of
    “tungsten”
    has
    been corrected,
    and
    an extra
    “or”
    dropped.
    Several minor errors
    noted by the Agency
    in ensuing Sections have
    been noted,
    but no changes
    proposed.
    In Section 307.4301, the applicability
    statement
    is absent,
    reflecting the unique structure of
    40 CFR 433, which was
    discussed
    in R86-44.
    Section 307.3500 et
    seq.
    Several
    introductory
    rules and pretreatment
    standards relating to Leather
    Tanning and Finishing were amended
    at
    53 Fed. Reg. 9181,
    March
    21, 1988.
    Section 307.4004
    The
    Board
    has
    proposed to correct
    a reference to
    a USEPA rule
    in this
    Section.
    Section 307.8100
    This has
    been corrected by insertion of
    “alloys”. ~JheBo~ardhas
    considered the Agency’s suggestions as
    to rewording the
    USEPA language and
    grammer,
    but declines to do
    so,
    since the USEPA language is understandable.
    Section 310.107
    The Board
    has
    proposed to update the references
    to the Code of Federal
    Regulations
    to reflect the 1987 edition.
    The
    Board solicits comment
    as
    to
    whether any of the remaining references
    need updating.
    Section 310.110
    In R86—44 the Board adopted definitions of
    “treatment works”,
    “unit
    of
    local
    government” and “POTW”.
    The federal
    text had
    to
    be changed,
    in part to
    accommodate constitutional
    and statutory definitions
    of
    “unit of
    local
    government” and “municipality”, and
    in part to avoid
    relying on
    a
    reference to
    a
    federal
    statutory definition.
    In
    crafting these definitions, the Board
    inadvertently omitted the State of Illinois
    as
    an entity which
    becomes
    a POTW
    when
    it
    operates
    a treatment works
    under
    40 CFR 403.3(o).
    The Board
    has
    92—605

    proposed
    to correct this
    error.
    The Board
    addressed the similar definition of Section
    iui.365
    in R88—1.
    As was discussed
    in Scott Air Force Base
    v.
    IPCB,
    PCB
    88-69, August
    10, 1988,
    federal
    facilities within
    Illinois
    are not
    “POTW’s” within
    the meaning of the
    NPDES
    program.
    This appears
    also to
    be USEPA’s intent with respect
    to
    the
    pretreatment
    program.
    The main effect
    of this
    is
    that federal
    facilities are
    not required
    to develop pretreatment programs.
    In Section 310.311(a)
    the Board
    cannot find
    the problems noted
    by the
    Agency.
    The
    forms
    of reference between portions
    of the Administrative Code
    are mandated
    1
    Ill.
    Adm. Code 100.370.
    The remaining typographical errors
    in
    Part 310 have been noted,
    and will
    be
    corrected
    as
    the Sections come up
    for
    review.
    The text
    of the proposal
    is
    contained
    in
    a separate Proposed Order.
    The
    Board will
    accept
    public comment
    for
    a
    period of 45 days after the date of
    publication
    in the Illinois Register.
    IT
    IS
    SO ORDERED.
    I,
    Dorothy
    NI.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby
    certify that the above Opinion was adopted
    on
    the~&d
    day of
    _____________
    1988,
    by
    a vote of
    7.y~
    4~I~
    ~
    .
    Dorothy M.c~3unn,Clerk
    Illinois Pollution Control
    Board
    92—606

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