ILLINOIS POLLUTION CONTROL BOARD
April
7,
1988
IN THE MATTER OF:
)
PRETREATMENT UPDATE
)
R88-li
(4/1/87
through 12/31/87)
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
Proposed Order
of this same day.
The Board will publish
the
proposal
in the Illinois Register and receive public comment
for
45 days after
the date of publication.
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 proposal 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 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 tJSEPA rules.
Part 310 specifies how a POTW sets up
a
pretreatment program,
and how industrial
users get pretreatment
S8~-
219
—2—
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.
Reg.
42568, November
5,
1987.
The Part has been expanded
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
the Board has proposed
to repeal.
Butadiene
is
now regulated as
a commodity organic chemical under
40 CFR
414.60,
which will now be
reflected
in Section 307.2405.
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.
In adopting the categorical standards,
the Board generally
set out the applicability of
a category
in
full,
and incorporated
the standards by reference.
The Board avoided
incorporating
applicability statements by reference.
The reason behind this
was
to inform the public
as
to whether
they were subject
to
a
rule before asking them
to read the
federal
rule.
Part 414 poses
a problem since
it has by far the longest applicability
88—220
—3—
statements of any of the categorical standards.
The Board has
proposed
to adopt
the full
text.
An alternative would
be
to
provide
that
a Section applies,
for example,
to manufacture
of
SIC 2865
or 2869 commodity organic chemicals as defined
in
40 CFR
414.60(a), which
is incorporated by reference.
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 3 address effluent discharges
only.
As discussed on page 15 of
the R86—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 proposed to
adopt 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 proposed
to
reference 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 proposed
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
88—221
—4—
Board has retained “and”
in the global applicability statement.
The alternative would be
to substitute
“or”,
so that the
applicability would
be controlled by the individual
Subparts.
The Board
solicits comment
as
to whether
USEPA intended “and”
or
“or”
in this applicability statement.
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.
40 CFR 414.11(b)
includes pilot scale operations
in
conjunction with “existing”
OCPSF activities.
Does USEPA mean
“existing”
as used elsewhere
in
its rules?
That
is, are pilot
scale operations exempt
if
they are
in conjunction with OCPSF
activities commenced
after
the new source date?
Does this make
any sense at all?
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!
It would
be
very difficult
for someone used
to
seeing alphabetical
lists
of
chemicals
to
find a given chemical
in the list.
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.
The Administrative Code Unit requires lists to
be
in
numerical
or alphabetical
order.
There
is a question
as to
whether
the USEPA list can be filed.
However, properly
alphabetizing the list would make comparison
with the USEPA
list
more difficult.
The proposal remains
in the same order
as
the
USEPA
list.
The Board solicits 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.
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.
Adm.
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
88—2 22
—5—
the other
amines.
It would be difficult
for
a chemist
to find
this chemical
in
the rule.
However, proper placement would make
comparison with the USEPA
text difficult.
40 CFR 414.12 requires existing sources
to come
into
compliance with 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
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.
Note,
however,
that,
since
the
effluent standards for
pH survived,
the Part 416 proposed date
could constitute
the new source date
for any effluent standards
moved
to Part 414.
Fortunately the Board doesn’t have
to address
this.
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
88—223
—6—
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 proposed
no
revisions.
However,
the Board has proposed
to update 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
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 proposed Opinion supports the Board’s proposed Order
of
this same
day.
The Board will allow 45 days for public comment
after
the date of publication
in the Illinois Register.
IT
IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that
t~,he above Proposed Opinion was adopted
on the
T~
day of
______________,
1988,
by
a vote
of
7~-c~
Dorothy
M. Gunn,
Clerk
Illinois Pollution Control Board
88—224