ILLINOIS POLLUTION CONTROL BOARD
June
16,
1988
IN THE MATTER OF:
PRETREATMENT UPDATE
)
R88—ll
(4/1/87 through 12/31/97)
FINAL
ORDER.
ADOPTED
RULE
OPINION OF THE BOARD
(by J.
Marlin):
The
Board
is
amending
the
pretreatment
regulations
pursuant
to Section 13.3 of
the Environmental Protection t~ct(Act).
The
text of
the rules
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
the Board
to provide
for notice and public
comment
before
rules
are
filed with the Secretary of State.
This
rulemaking updates
the pretreatment
rules
to cover
USEPA rules adopted between April
1,
1987 and December
31,
1987.
The
following
Federal
Registers
are
included:
52
Fed.
Reg.
25556
July
7,
1987
52 Fed.
Reg.
28432
July
29,
1987
52
Fed.
Reg.
42568
November
5,
1987
The Board adopted
a Proposed Opinion and Order on April
7,
1988.
In order
to provide
the public with
notice and
the
opportunity
to comment,
the Board published
the text of the
proposed
rules
in
the
Illinois
Register,
and
mailed
copies
to
the
persons
on
the
R86—44
mailing
list.
The
proposal
appeared
on
April
29,
1988,
at
12
Ill.
Reg.
7494.
The
Board
received
no
public
comment.
The
Board
did
receive
codification
comments
from
the
Administrative
Code
Unit.
The
Board
appreciates
the
assistance
of
Morton
Dorothy
in
drafting
the
rules
and
Opinion.
90—411
—2—
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 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 specific amendments encompassed by this update 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:
July
7
Nonferrous
metals
category
July 29
Fertilizer category
November
5
Organic chemicals,
plastics and synthetic
fibers
category
The July
7 amendments are minor
revisions
to existing
regulations governing aluminum smelting.
The November
5
amendments
include new rules
defining and regulating new
subcategories related
to organic chemical manufacturing.
The
July
29 amendments
are
site specific federal rules
relating only
to the Louisiana pretreatment program.
DETAILED DISCUSSION
Section 307.2400
et
seq.
Organic Chemicals
This Subpart
is drawn from 40 CFR 414, which was
amended
at
52
Fed.
Req.
42568,
November
5,
1987.
The
Part
has
been
expandea
to regulate discharges from the manufacture
of organic chemicals,
plastics and synthetic fibers.
40 CFR
414
previously
contained
a
single
subpart
which
governed
the manufacture
of butadiene
by the oxidative
dehydrogenation of butene.
This
is
reflected
in Section
307.2402, which
is
repealed in this rulemaking.
Butadiene
is now
regulated
as
a
commodity organic chemical under
40 CFR 414.60,
which
will
now
be
reflected
in
Section
307.2405.
90—412
—3—
The general outline of
the Board’s
sections incorporating
the
categorical
standards
by
reference
is
discussed
starting
at
page
12
of
the
December
5
Opinion
in
R86—44.
These
amendments
present some difficulties.
The Board has generally edited
the applicability statements
to
remove
references
to
point
source
effluent
discharges.
These
are
regulated
under
Part
309
of
the
Board’s
rules.
Part
310
addresses only discharges to sewers.
40 CFR 414, Subparts
I and J address effluent discharges
only.
As discussed
on page 15 of
the R96—44 Opinion,
the Board
generally adopts
a definition of all subcategories even
if
there
are no pretreatment standards
imposed on
the subcategory.
This
avoids interpretations
of the Board’s rules which might
place
a
discharger from the omitted subcategory
into one of
the included
subcategories.
Also,
it assures
that any sewer dischargers which
may exist
are subject
to the pretreatment permit requirement even
though
there might
be no specific pretreatment standards.
However, Subparts
I and J differ
from most
of the Subparts
in the
USEPA rules
in that they do not define
and regulate
a
subcategory.
Rather,
they appear
to contain additional
requirements that certain direct dischargers within the other
subcategories must meet.
The Board has therefore not adopted
any
equivalent
to these Subparts.
The category and subcategories are defined
in terms of SIC
codes.
The Board has previously
incorporated the Standard
Industrial Classification Manual
by reference
in Part
310.
The
Board has referenced
that here
in order
to comply with APA
incorporation by reference requirements.
The USEPA applicability statements include
a
lot of minor
editorial problems,
as
is the case with
all
of the pretreatment
standards.
Some
of
these will be discussed in this Opinion.
40 CFR 414.11(a) defines
the category regulated.
The Board
has eliminated unnecessary verbiage from the introductory
language, consistent with the
rest of the Part.
The Board has
also edited
the introductory language
to correct grammatical
deficiencies.
The applicability statement includes establishments which
manufacture OCPSF products which
are covered
by
the subcategories
“and” which
are included
in certain major SIC groups.
The Board
has looked
at this closely,
since
the USEPA rules often use “and”
to mean
“or”.
The effect of
“and”
is
to impose
a global
limitation on the entire Part,
so that
if one of the lists
in
a
Subpart specifically includes
something outside
of the SIC major
groups,
the specific inclusion
is cancelled by the global
applicability statement.
In this Part
the subcategories appear
to all belong within
the listed SIC major
groups.
Therefore,
the
Board has retained
“and”
in the global applicability statement.
The alternative would
be to substitute
“or”,
so that the
90—413
—4—
applicability would be controlled by the individual Subparts.
The Board solicited comment
as
to whether USEPA intended
“and”
or
“or”
in this applicability statement.
The Board
received
no
response,
and has left this
as
“and”.
The remaining applicability statements generally use “and”
to mean
“or”.
For example,
40 CFR 414, Subpart F applies
to
discharges resulting from the manufacture
of
“SIC
2865 and 2869
commodity organic chemicals”.
The SIC categories
are
intended
to
define non—overlapping
sets,
so that the group
of dischargers
manufacturing something
in both sets
is probably very small.
USEPA certainly means
“or” instead
of
“and”.
The Board has
corrected this consistent
error.
The applicability statements are mainly lists of
chemicals.
USEPA has not followed the generally accepted format
which
it uses
in 40 CFR 261.
Chemical lists
are supposed
to
be
alphabetized according
to the first
letters
of
the name,
ignoring
numbers and certain other prefixes,
such
as
“n—”,
“N—”,
“0—”,
“cis—”,
etc.
Many of the lists have been alphabetized by
prefix.
Following
the main list
is
a sublist of chemicals which
start with
a numerical prefix,
arranged
in numerical
order.
Finally,
there
is
a third sublist
of chemicals which apparently
were
too difficult
to arrange
in either
sublist.
Also, USEPA has
used creative capitalization.
In some cases
this changes
a
chemical name (“n”
is for
normal,
“N”
is
for nitrogen).
The
usual practice
is
to capitalize
the
letter by which
the name
is
alphabetized, which makes
it
a
lot easier to use
the list.
It would be very difficult for someone used
to seeing
alphabetical lists
of chemicals
to
find
a given chemical
in
the
list.
However,
properly alphabetizing the list would make
comparison with the USEPA
list more difficult.
The Board
solicited comment
as to whether
it would
be better
to leave
the
lists
in the order presented in the USEPA rules,
or
to attempt
to
properly
alphabetize
them.
The Board received
no comment,
and
will therefore leave the
order generally the same
as that used
by
USEPA.
40 CFR 414.70(d)
is
a list of halogenated bulk organic
chemicals.
USEPA has included l,4—Phenylenediamine
dihydrochloride.
This
is
not
a
halogenated
organic
in
the
usual
meaning of
the
term,
or
as defined
in
40 CFR 268,
or
35
Ill.
AdTn.
Code 728 or
729,
since there
is
no carbon—halogen bond.
Rather,
it
is
the salt of
an amine,
and belongs
in Section 414.70(b) with
the other
amines.
This placement
is
so misleading that
the Board
has moved
it
to the correct heading.
40 CFR 414.12 requires existing sources
to come
into
compliance within three years.
The Board
has substituted the
actual date,
November
5,
1990.
As was discussed on page 16
of the R86—44 Opinion,
the USEPA
rules define “new source” by reference to the date
a proposal to
90—414
—5—
regulate
the subcategory
appeared
in the Federal Register.
(40
CFR 403.3(k)).
Since
these proposal dates are not readily
available,
the Board included the actual dates
for each
subcategory
in
the rules.
There are difficulties
in determining
these dates
for the OCPSF category.
40 CFR
414 was originally proposed
on December
17,
1973.
The Part was adopted,
and the subject
of
a lawsuit.
As
a
result,
the entire Part was repealed,
except
the portion regulating
the
oxidative dehydrogenation of butene
to butadiene.
At about the
same time USEPA adopted
40 CFR
416, which regulated the plastics
and synthetics point source category.
As
a result of
litigation,
most
of the effluent standards
in Part 416 were “suspended.”
Parts 414
and 416 have now been combined into new Part
414.
The
new source date
for
the current proposal
is March
21,
1983.
(See
52 Fed.
Reg.
42526, November
5,
1987.
The definition
of
“new source”
in
40 CFR 403.3(k) provides
that the date standards are proposed under section 307(c)
of
the
Clean Water Act
is the new source date
“if such Standards are
thereafter promulgated
in accordance with that section.”
Since
the Part 414 standards were repealed
as
a result of
litigation,
the proposed date
is
not the new source date,
except with respect
to butadiene.
40 CFR 403 includes
a definition of “new source” which
overrides
the similar definition of “new source”
in
40 CFR 401,
which applies only to point
source,
effluent discharges
to waters
of the U.S.
40 CFR 416
included no pretreatment standards.
Therefore,
the proposed date has no
impact
on the new source date
for the pretreatment standards.
The Board
has used the date
of the current Part 414
proposal, March
21,
1983,
as the new source date
for
all
of the
OCPSF subcategories, except
for oxidative dehydrogenation
of
butene
to butadiene.
The new
source date for
the
latter will
be
December
17,
1973, which
is the date cited
in the Federal
Register
as the proposal date for Part
414.
Repealed Section
307.2402 used April
25,
1974 as the new source date for butadiene
manufacture.
This was
a
later version
of the Part 414 proposal
which
the Board
inadvertently referenced
in R86—44.
Section 307.2801
Fertilizer Manufacturing
This Section
is
drawn from 40 CFR 418, which was amended at
52 Fed.
Reg.
28432, July 29, 1987.
The amendments exclude
certain phosphoric acid plants
in Louisiana from Part 418.
Since
this has
no impact
in Illinois,
the Board has adopted no
revisions.
However,
the Board has updated the incorporation by
reference
to include the 1987 CFR.
Section 307.3102
et
seq.
Aluminum Smelting
These Sections are drawn from 40 CFR 421, which was amended
90—415
—6—
at
52
Fed.
Reg.
25556,
July
7,
1987.
The
amendments
set
new
pretreatment
standards
for
primary
and
secondary aluminum
smelting.
The
Board
has
updated
the
incorporations
by
reference
to
include
the
amendments.
This
Opinion
supports
the
Board’s
Order
of
this
same
day.
The
Board
will
withhold
filing
of
these
rules
until
July
1,
1988,
to
allow
time
for
motions
for
reconsideration
by
the
agencies
invloved
in
the
authorization process.
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
he~reby certify—-~that
the
above
Opinion
was
adopted
on
the
/~~day
of
_____________,
1988,
by
a
vote
of
7o
~
~.
Dorothy
M.
~unn,
Clerk
Illinois
Pollution
Control
Board
90—4 16