ILLINOIS POLLUTION CONTROL BOARD
March 5,
1987
IN THE MATTER OF:
R86—44
PRETREATMENT REGULATIONS
)
PROPOSAL FOR PUBLIC COMMENT
PROPOSED OPINION OF THE BOARD (by J. Marlin):
On October
9,
1986,
the Board opened this Docket for
the
purpose of promulgating regulations establishing
a pretreatment
program pursuant to Section 13.3 of the Environmental Protection
Act
(Act), as amended by P.A.
84—1320.
In a separate Order the
Board
is proposing for public comment amendments
to
35
Ill. Adm.
Code 307, and a new 35 Ill. Adm. Code 310.
This Proposed Opinion
supports the Board’s 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
(CWA), which was previously known as the Federal Water Pollution
Control Act.
Section 13.3 creates an abbreviated procedure
similar
to that provided by Sections 13(c),
22.4(a), and 22.7(a)
of the Act for the UIC, RCRA and State CERCLA programs.
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, the Board is required
to provide for notice and public
comment before rules are filed with the Secretary of State.
Because Section
5 of the APA does not apply, the proposed
rules
will not be subject
to second notice review by the Joint
Committee on Administrative Rules
(JCAR).
The Department of
Energy and Natural Resources
(DENR)
is allowed to conduct an
economic impact study (EcIS)
on the rules, but the study and
hearings are not required before the rules are filed.
Section 13.3 requires the Board to “provide for” public
notice and comment.
In order
to avoid delay
in instituting
the
pretreatment program,
the Board will not at this time adopt
generally applicable procedural
rules
to be followed for
maintenance of the pretreatment program rules.
For now the Board
will “provide
for” notice and comment by way of this Opinion and
Order.
Prior
to opening the Docket,
the Board staff conducted
discussions with
the Agency concerning how
to proceed.
The
result was the Board’s decision to develop
a proposal
as
indicated in the October
9
Order.
At that time the Board entered
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various documents as PC1 through
PC6.
PC1 was
a draft proposal
which
the Agency had prepared, but which the Agency was not
prepared to file as a formal proposal.
On November
12,
1986 the
Agency filed
a revised draft proposal which
the Board docketed as
PC7.
The Agency also transmitted the text of its draft proposal
to the Board electronically in the hope that it could form the
basis of the Board’s proposal, saving typing
time.
However,
because of technical difficulties and the necessity of revising
the format to meet codification requirements,
it was simpler to
start over,
rather than to utilize the Agency’s draft
as a
starting point.
The Board
intends
to publish its proposal
in the Illinois
Register utilizing the “first notice” procedures,
under the APA,
even though these are not applicable under Section 13.3 of the
Act.
The Board will allow 45 days for public comment, starting
with the date of publication
in the Illinois Register.
The Board
urges
the Agency,
USEPA and the Attorney General to submit
comments during this period.
After the comment period the Board
will move to a final Order, without going through the JCAR second
notice procedures.
The Board has placed the Agency, Attorney General and USEPA
on the mailing list to receive copies of the Proposed Opinion and
Order,
as well as other persons who have requested to be on the
list.
The Board’s practice with the RCRA and UIC
rules is to
wait up to 30 days after
its final Order before filing rules,
in
order to allow
those agencies involved with the authorization
process to review the rules as modified in response to comment.
If necessary,
the Board will reconsider its final Order
to meet
any objections which might prevent authorization of the
program.
The Board solicits comment from the agencies as to
whether they believe
it desireable
for
the Board to utilize this
procedure.
FEDERAL TEXT USED
The federal pretreatment program is contained in 40 CFR 401
through 471.
The proposal should be consistent with the 1986
edition of the Code of Federal Regulations, Title 40 of which is
current through June
30,
1986.
The Board has incorporated
amendments through September
30,
1986.
These include:
51
Fed.
Reg.
23759, July 1,
1986
51 Fed.
Reg.
30816, August 28,
1986
The proposal was actually prepared utilizing the 1985
edition and Federal Registers,
since the 1986 edition was not
available until
the proposal was substantially complete.
Commenters should therefore pay special attention
to provisions
which were amended during 1985—1986,
since there
is
a much
greater chance
for error
in these provisions.
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The July
1 amendments affect
the procedural aspects of
the
proposal reflected in Part 310.
The August 28 amendments modify
the categorical pretreatment standards for lead battery
manufacturers (Section 307.7103).
The Board does not presently intend to incorporate USEPA
amendments after September 30,
1986 into this proposal.
Rather,
the Board will propose to update the text shortly after
final
adoption of this proposal.
The Board will reconsider this if
there are amendments which are especially important
to the
authorization process.
Establishing
a cut—off date
for the
proposal avoids what could be an infinite race to keep up with
USEPA without ever getting
a proposal out for public comment, and
assures that the public
is able to comment on all amendments
prior
to Board adoption.
OVERVIEW OF PROPOSAL
The following is a general discussion of the pretreatment
program.
A detailed discussion appears after this portion of the
Opinion.
Board regulations protecting water quality presently focus
on discharges
to surface waters.
These are regulated through the
NPDES permit program under Section
12(f)
of the Act and
35
Ill.
Adm. Code
309.
Surface dischargers include industries which
discharge directly to surface waters,
and publicly—owned
treatment plants (POTW’S) which receive wastewater from
households,
businesses and industry,
treat the wastewater and
discharge
it
to surface waters.
The pretreatment program greatly
expands Board regulation of industries which discharge to
a POTW
rather than directly to surface waters.
POTW’s are generally designed to provide biological
treatment of household wastewater.
They can also treat much
industrial wastewater.
However, some industrial wastewater
is of
a nature such that it should not be discharged to the POTW
without pretreatment.
Some wastewater, such as strong acids,
would damage physical structures such
as iron and concrete
sewers.
Flammable solvents pose dangers
to persons working on
sewers or
in the treatment plant.
Toxic materials may kill
bacteria
in the treatment works so that biological treatment
ceases,
allowing household wastewater
to be discharged without
adequate treatment.
Toxic materials may accumulate
in sludge,
preventing
its use or disposal as a soil additive.
Other
industrial pollutants may pass through the treatment works and
cause water quality violations in the receiving stream.
The
pretreatment rules are designed
to prevent interference with or
pass—through at the POTW.
The Board already has some general pretreatment rules
in
35
Ill. Adm. Code 307.
However,
there
is no overall statewide
pretreatment permit program.
The proposal would establish such
a
program.
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The proposal requires that the larger POTW’s serving
industrial users prepare a pretreatment program proposal for
submission to the Agency.
The approved program will become
a
part of the POTW’s NPDES surface discharge permit.
Following
approval
of the program the POTW will administer
the pretreatment
program at the local
level.
Industrial users will be required to
obtain approval from the POTW before discharging wastewater to
sewers.
The proposal also involves incorporation by reference of
detailed USEPA pretreatment regulations for several hundred types
of industrial dischargers.
Through the pretreatment program the
POTW will require that industrial users comply with these
detailed pretreatment requirements.
The Board proposes
to set up the pretreatment program in
a
manner parallel with the NPDES program.
The requirements for
program approval
and permit issuance will be placed
in a new Part
310, which will follow the similar Part 309 NPDES rules.
The
sewer discharge standards will be added
to the existing
requirements
in Part 307.
PART 307:
PRETREATMENT STANDARDS
The Board’s existing pretreatment regulations have been
renumbered and incorporated into the framework of
the proposal.
Section 307.1001
Preamble
The existing language of Section 307.101
is preserved in
paragraph (a).
The Board’s pretreatment rules have been merged
with the general USEPA pretreatment rules from Part
403 and
placed
in Subpart
B.
While existing Section 307.102 and the
USEPA pretreatment rules apply to discharges
to publicly owned
treatment works
(POTW’s), the Board’s mercury and cyanide rules
have a broader scope.
The general standards of
Subpart B will function as back—up
standards for the categorical standards.
Except where the
contrary is indicated,
a categorical discharger will have
to
comply with any more stringent general requirement.
Dischargers
which do not fit into any of the categories will also have to
comply with the general standards.
The Illinois Administrative Procedure Act prohibits
incorporation by reference of future amendments to federal rules
(“forward incorporation”).
Also,
it requires the Board to so
state each time
it makes an incorporation by reference, and
requires prior approval of
incorporated material by the Joint
Committee on Administrative Rules.
Section 13.3 generally
exempts the Board
from compliance with the incorporation by
reference procedures.
The Board construes this as exempting only
the JCAR prior approval, but not as allowing forward
incorporations by reference.
76.200
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The USEPA standards usually contain references
to other
USEPA rules.
USEPA intends to refer
to future amendments of the
referenced Sections.
The Board’s incorporation of these Sections
raises a possibility of an “imbedded forward incorporation:”
the
indirect incorporation of future amendments
to the Section
referred
to in the reference.
These
imbedded forward
incorporations are mostly procedural requirements which
the Board
will adopt
in Part 310.
Section 307.lOOl(c)(2) provides that
these are to be construed as references to the comparable Board
procedures.
The Board intends to adopt complete procedural
rules,
utilizing incorporation only for standards,
requirements
and definitions.
In no instance does the Board intend
to make a
forward incorporation.
Section 307.1002
Definitions
The Board will utilize
a separate definition set for the
pretreatment rules rather than the Part 301 definitions.
Alteration of the general definitions would require
a review to
ascertain whether the changes were modifying the other water
rules.
The preferable course
is to utilize the USEPA definition
sets associated with the pretreatment program.
The 40 CFR 401 definitions include terms which relate only
to the surface water program.
It is not necessary to include
these.
The Board has identified
the definitions which are
relevant to pretreatment, and set them out
in the Part 310
definitions.
The Board will utilize the same definition set for
Part 307.
Section 307.1003
Test Procedures
This Section
is drawn from
40 CFR 401.13, which
in turn
references 40 CFR 136, which establishes test procedures for
measurement of pollutant concentrations.
40 CFR 401.13 contains
an imbedded forward incorporation by reference.
Simply
incorporating this provision would be open
to the interpretation
that the Board was indirectly making
a forward incorporation.
As
noted above,
the Board believes this would violate the APA.
For
this reason the Board has incorporated the 1986 edition of 40 CFR
136
as well as 401.13.
It will be necessary to amend
this
Section to update the incorporation to include future amendments
to Part 136.
Section 307.1005 and 307.1006
These Sections incorporate 40 CFR 401.15 and 401.16, which
list toxic and conventional pollutants.
The Board solicits
comment
as to the necessity of this in the Illinois pretreatment
program.
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Section 307.1007
pH Monitoring
40 CFR 401.17 includes an averaging rule for pH under
continuous monitoring.
It
is stated as an effluent rule only.
Because it seems
to be necessary for the pretreatment standards
also,
the Board has adopted an equivalent which has been reworded
so it applies
to the pretreatment standards.
Section 307.1101
General Requirements
Subpart B contains the generic pretreatment standards.
These are derived from existing Part 307 and from 40 CFR 403.
They function as back—ups to the categorical standards.
Existing Section 307.102 includes general pretreatment
requirements which are similar
to 40 CFR 403.5(b).
The Board has
proposed to merge these provisions.
The language is mainly drawn
from 40 CFR 403.5.
The Section 307.102 language which
is not
fully present
in Section 403.5 has been inserted at the
appropriate places.
The additional requirements
are included
in
the following subsections:
(b)(2)
Pollutants which would cause safety hazards other
than fire or
explosion.
(b)(S)
Pollutants other than low pH which would be
injurious
to structures.
(b)(lO)
Pollutants which would cause the effluent to
violate NPDES permit conditions.
Section 307.1102
Mercury
This Section has been moved more or less verbatim from
Section 307.103.
It applies
to publicly regulated sewers, as
well as POTW’S.
Categorical discharges would have to meet this
standard even
if there
is no mercury standard specified in the
categorical standards.
The generic standard would override any
less stringent categorical standard, unless the Board
in adopting
the categorical standard expressly stated that
it was to be
applied
in lieu of the generic standard.
Section 307.1103
Cyanide
This Section has been moved more or
less verbatim from
Section 307.104.
It applies to publicly regulated sewers, as
well
as POTW’s.
It would function like the mercury standards
with the categorical
standards.
Section 307.1501 et seq.
Categorical Standards
What follows
in the rules is the Board’s equivalent of the
USEPA categorical pretreatment rules.
The text
is around 250
pages long.
These will
be discussed
in summary only.
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The USEPA pretreatment standards are contained
in
40 CFR 405
et seq.
They are arranged by industry category and subcategory,
which follow the scheme established
by the federal SIC Codes.
The USEPA rules devote a Subpart
to each industry subcategory,
with individual Sections typically used to state the scope of the
Subpart,
special definitions, surface effluent standards and
pretreatment standards for existing and new sources.
The Board
has proposed to incorporate the necessary material by
reference.
The proposal
is arranged
in the same order as the USEPA
rules.
However,
the levels of subdivision
in the proposal are
one step lower than in the USEPA rules:
Categories are addressed
in Subparts and subcategories
in Sections, with incorporations of
USEPA Sections at the subsection level.
GENERAL OUTLINE OF CATEGORICAL PRETREATMENT STANDARDS
In the Board proposal, one Subpart
is devoted
to each
regulated industry category, and one Section
is devoted to each
regulated industry subcategory.
Most Sections follow the
following outline:
1.
The subcategory
is defined
in an applicability
statement.
2.
Specialized definitions are incorporated by reference.
3.
The pretreatment standards
for existing sources
(PSES)
are incorporated by reference, and existing sources are
required
to comply with the standards.
4.
The pretreatment standards for new sources
(PSNS)
are
incorporated by reference, and new sources are required
to comply with the standards.
5.
The cut—off date
for new sources
for the subcategory is
specified.
There are
a few isolated instances
in which the
incorporations do not follow the above outline.
These should be
self—explanatory.
A few of the USEPA Parts have applicability statements
defining the entire category, along with specialized definitions
and rules affecting the entire category.
These USEPA provisions
are reflected in Sections with two zeros at the end.
For
example, Section 307.2000
is drawn from the introductory material
40 CFR 410.
Some of these introductory provisions include Sections on
“compliance dates.”
These have generally been incorporated by
reference.
(For example,
40 CFR 415.01/Section 307.2500.)
These
“compliance dates” should not be confused with the “new source”
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dates
in item
5 above.
Dischargers generally have
3 years after
a standard
is promulgated to come into compliance with it.
Which
standard they comply with depends on whether they are
a “new
source,” which
relates back
to the date the standard was
proposed.
Compliance dates have been incorporated by reference where
they are found
in the CFR, but have not been set out in full.
For the older pretreatment standards,
they have passed and are no
longer of any prospective interest.
For the newer standards they
have been set out in the text of the CFR so that they they are
readily available to the public.
In any event, since the
compliance dates would be within three years after publication
in
the Federal Register, they should be readily available to the
public.
Compliance dates are discussed further
in connection
with Section 310.222 below.
ALTERNATIVE APPROACHES
It takes nearly a full page to handle each subcategory
according to the above outline.
This results
in a proposal which
is several hundred pages long.
The Board has considered some
shorter methods.
The shortest approach would be to incorporate the
pretreatment standards en masse in a few lines.
This would have
the effect of
also incorporating the effluent discharge limits
which are not related
to the pretreatment program.
Another approach would be
to adopt in a single Section
a
table listing all of the pretreatment provisions.
Such
a table
would be itself quite lengthy.
A practical problem would arise
in attempting
to update such
a table:
The Board would be
continuously republishing the entire table as
it was updated.
Errors would certainly creep into the table as
it was
republished.
It
is difficult to detect errors
in
a table
of
numbers, especially if they occur away from the areas being
changed.
Under
the proposal the Board would republish only the
Sections relating
to the subcategories being amended.
There are more fundamental problems with these approaches.
For one thing,
there
is
a question as to whether
simple
publication of USEPA numbers
in the Illinois Register adequately
informs the public.
Under the system proposed, the Board would
publish the name of the subcategory and
a description of the
subcategory each time
it updated an incorporation affecting the
subcategory.
Persons who fit within a subcategory could then
tell from the Illinois Register publication whether there had
been a USEPA amendment which affected them.
Another problem has
to do with the definitions
of “new” and
“existing” sources.
As noted above, the USEPA
rules define these
in terms of the date USEPA first published
a proposal
to regulate
the subcategory.
This date
is not generally found with the
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pretreatment standards, but must be determined from a search of
old Federal Registers.
Therefore
a member of the public could
not determine whether the new or existing source standard applied
to his or her situation simply by reading the incorporated
material.
It would therefore be necessary also to incorporate
the Federal Register proposal.
However,
it
is doubtful whether
very old Federal Registers are readily available
to the public.
Anyway,
it
is simpler
to just specify the new source date.
The
proposal
includes this date with the incorporations.
The shorter methods would place a much greater burden on
small businesses by forcing them to keep up with USEPA rulemaking
in general.
Under the proposal the Board undertakes much of the
research effort.
iNCORPORATION BY REFERENCE OF STANDARDS
The APA requires that each time the Board makes an
incorporation by reference
it repeat
a disclaimer to the effect
that
it is not incorporating any future amendments or editions.
As noted elsewhere,
the Board construes Section 13.3 of the Act
as exempting
it from the procedures involved with prior review of
incorporated material, but not from the prohibition of forward
incorporations.
It is tempting to classify the disclaimer as
a
procedural
requirement which
the Board need not comply with.
However,
the incorporation by reference provisions of the APA
have been amended several times
in recent years.
At one time the
APA simply prohibited forward
incorporations; now it requires the
disclaimer
as well.
Apparently the General Assembly added the
disclaimer
in response to abuses of the simple prohibition on
forward
incorporations.
The Board concludes
that, from the
attention the General Assembly has given this matter,. the
disclaimer
is an important,
fundamental protection
of due
process,
as
is the prohibition on forward incorporations.
It
is possible that
a single disclaimer
in Part
307 would
satisfy the APA requirement.
Other possibilities
include a
disclaimer with each Subpart or with each Section.
The Board has
opted
to repeat the disclaimer with each incorporation by
reference, which means that the disclaimer is often repeated
several times within
a single Section.
This adds around 30 pages
to the proposal, against the minimal option of
a single
disclaimer
for the Part.
Section 13.3 of the Act requires that the Board continue to
update these
rules to maintain consistency with USEPA
rules.
If
the Board were
to adopt
a single disclaimer
for
the Part,
or one
for each Subpart, there would
be no assurance that a disclaimer
would appear with the materials published in the Illinois
Register during such subsequent amendments.
There is
a
possibility that
this could
be held
to violate the APA
requirement.
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If each Section included
a single disclaimer,
the disclaimer
would certainly appear with each subsequent amendment.
However,
the mechanics of this option wind up consuming almost as much
space as the option chosen:
repeating the disclaimer with each
incorporation.
This option has the added advantage of being the
least likely to be subject
to attack
for failure to comply with
the APA.
APPLICABILITY STATEMENT
Each Section starts with an applicability statement which
defines the subcategory.
Because the USEPA equivalent also
functions to define the applicability of the surface discharge
standards, and in order
to provide notice
to dischargers
in
Illinois,
the Board has set the applicability statement out
in
full rather than incorporating it by reference.
Since some
rewording is always necessary,
the Board has gone on to put these
as nearly as possible into
a consistent format.
No substantive
changes are intended.
Interested persons are urged
to review
these and
to comment
if they believe any substantive changes have
been made.
The USEPA applicability statements contain what appears to
be
a consistent error which the Board has corrected.
An example
occurs
in 40 CFR 415.60, which provides that the chlor—alkali
subcategory applies “to discharges resulting from the production
of chlorine
...
by the diaphragm cell process and the mercury
cell process.”
Since the diaphragm and mercury cell processes
are mutually exclusive, alternative ways of manufacturing
chlorine, the subcategory seems
to reduce to the null set.
The USEPA rules also include similar errors which, while not
destroying the meaning of a Section, severely limit applicability
in an unlikely way.
For example, the iron and steel
alkaline
cleaning subcategory seems limited
to cleaning baths
used to
remove “mineral and animal fats or oils” from steel.
(40 CFR
420.110/Section 307.3011).
The Board assumes that USEPA intends
to regulate persons who use either pure lard or mineral oil as
well as those who use
a mixture.
These “and/or” errors occur
in around 30
of
the
subcategories
in some Parts of
the pretreatment standards.
They
have ge erally been corrected and will not be discussed
further.
Interested persons are invited to comment on any
instances
in which the proposal may not accurately reflect
USEPA’s intent.
There are
a few Sections
in which USEPA appears
to use “and”
to mean “and.”
For example, Sections 307.2901 et seq. seem to be
intended
to apply only where
a petroleum refinery carries out
a
series of processes.
Other examples are found
in Sections
307.3501
et seq.
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Some of the subcategories by their definition would be
impossible,
or virtually impossible,
to conduct in Illinois.
Examples are Alaska King Crab Processing and Puerto Rican Sugar
Cane Processing.
Some of these standards apply only if the
process
is conducted
in a certain region which does not include
Illinois.
These clearly do not need
to be incorporated.
Others
involve processing of materials taken
in specified regions which
do not include Illinois.
In these situations
there
is a
possibility that in the absence of
the standard someone might
ship the material to Illinois for processing to avoid the
standard.
The Board has attempted to judge whether this would be
economically feasible.
If someone actually does this,
the
general standards would apply until the Board would be able to
adopt the categorical standard.
A third situation arises
in
which a subcategory is processing a material which
is not found
in Illinois,
but with no regional specification in the rule.
An
example would
be vanadium ore, which
is not found
in Illinois,
but the processing of which would be the subject of an effluent
rule if
it were.
The Board has generally included these
subcategories, but invites suggestions as
to any possibilities
which are too remote
for inclusion.
DEFINITIONS
A “definitions” subsection follows “applicability”
in the
outline of each subcategory.
The Board has incorporated by
reference any special definitions applicable to the
subcategory.
If there
is no special definitions Section
in the
USEPA rules for the subcategory, the Board has
inserted “none”
after the heading for definitions.
In many cases
there
is a
special definitions Section for
the subcategory which merely
recites that the general definitions for the pretreatment rules
apply.
(For example,
40 CFR 406.51/ Section 307.1605.)
Where
such Sections exist,
the Board has incorporated them by
reference, even though
the same result could be more easily
reached by saying “none.”
The Board solicits comment as
to which
approach
is preferable.
Some of
the special definitions reference the special
definitions used for another subcategory.
This raises the
possibility of an imbedded forward incorporation by reference.
For example, see 40 CFR 419.31/ Section 307.2903, which reference
40 CFR 419.11/ Section 307.2901.
In these situations,
as
provided by Section 307.1001, the Board’s incorporation of the
USEPA reference is
to be construed as
a reference
to the
equivalent Board
rule,
rather than the imbedded USEPA
reference.
In the example, Section 307.2903 references 40 CFR
419.31, which
in turn references
40 CFR 419.11.
This is to be
construed as
a reference to the equivalent Section 307.2901.
Therefore, any USEPA amendment to 40 CFR 419.11 will not be
referenced until Section 307.2901
is amended, thus avoiding
a
forward incorporation.
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An alternative way of avoiding the imbedded forward
incorporation would be to reference both USEPA Sections in the
Board
rule.
In the example,
the Board would reference both
40
CFR 419.31 and 419.11
in Section 307.2903.
This reference would
have to be updated
to incorporate any amendments to 40 CFR
419.11.
However,
it would be very difficult to find these
references during maintenance of the rules, since nothing in the
USEPA materials would necessarily suggest that the definitions in
40 CFR 419.11 were also used
in other Sections.
The Board
solicits comment on these alternatives.
PRETREATMENT STANDARDS
The next portion of the general outline
is the incorporation
by reference of the pretreatment standards for existing sources
(“PSES”)
and for new sources (“PSNS”).
There are five
possibilities, all of which exist
in the proposal:
1.
There are no pretreatment standards for any subcategory
in a category, but only surface discharge standards.
2.
There are pretreatment standards for at least one
subcategory within
a category, but another subcategory
has no pretreatment standards.
3.
There is
a PSNS, but no PSES for
a subcategory.
4.
There are both
a PSNS and
a PSES for
a subcategory.
5.
There ~isa PSES, but no PSNS for
a subcategory.
In the first case, the Board has completely excluded those
industry categories for which there are no pretreatment standards
in any subcategory.
An example
is the coal mining category,
for
which there are surface discharge standards only.
An alternative
would be to define these categories and/or subcategories, and to
require them
to comply with the general pretreatment standards
of
Subpart B (which
is required anyway).
In the second case,
in which there are pretreatment
standards for
some, but not all subcategories, the Board has
proposed
a Section for each USEPA subcategory.
If there
is no
pretreatment standard for
a subcategory,
the Board has provided a
reference
to the general pretreatment standards of Subpart B.
Providing a Section for each subcategory assures that each
is
defined, avoiding problems which could arise if some subcategory
definitions were omitted altogether:
operations which should be
in the omitted categories might then appear
to fit
in the
included categories, some of which are catch—all
in nature.
In the third case, where
there
is a PSNS but no PSES, the
Board has incorporated the PSNS by reference,
and provided
a
reference
to the general pretreatment standards
of Subpart B for
existing sources.
76.208
—13—
Many of the industry subcategories have pretreatment
standards which simply require compliance with the general
pretreatment requirements reflected in the Board’s rules
in
Subpart B.
The rules could be simplified, and maybe shortened,
if,
instead of incorporating the USEPA rule by reference,
the
Board were to state
for these subcategories that only the general
requirements of Subpart B apply.
Under
this approach the Board
would handle them the same way as the missing standards in cases
two and three.
Examples are found
in 40 CFR 405/ Section
307.1501 et seq.
The Board solicits comment on this possibility.
The first
three cases,
and the subcategories for which the
USEPA rule references the general
rule, raise a question as to
the effect of
inclusion in the regulated subcategories.
Section
310.301 requires a POTW to develop a pretreatment program
if it
receives discharges “which are otherwise subject to pretreatment
standards.”
Does this include the Subpart B standards?
If not,
does the approach taken change the scope of
the pretreatment
program requirement?
In the fourth case the Board has incorporated the
PSES and
PSNS by reference.
In the fifth case USEPA has promulgated a standard for
existing sources, but none
for new sources.
It seems strange to
regulate existing sources before new sources.
However, the
definition of “new source”
in 40 CFR 403 is keyed
to the date
USEPA proposes standards which would be applicable
to “such
source.”
The best interpretation of this seems
to be that, where
USEPA has proposed no new source
rule,
all sources are “existing
sources,” including those built
after the existing source
standard is adopted.
Consistent with this interpretation, the
Board has proposed
to state for this case that the existing
source standards apply.
In these cases the heading remains
“new
sources,” even though,
strictly speaking, there are no new
sources.
The Board solicits comment on its interpretation of
these rules.
The above interpretation implies that there
is a difference
in the USEPA rules between the absence of
a PSNS and
a PSNS rule
which says the general standards or PSES apply.
In the complete
absence of a PSNS rule there is no new source date.
However, by
adopting
a PSNS which references the general standards or
the
PSES, USEPA has established
a new source date.
If USEPA
subsequently adopts more stringent new source rules, they will
apply
to sources which were in existence as of this date.
The
Board solicits comment as
to whether this interpretation is
intended by USEPA.
Some of
the USEPA standards reference other
standards.
This
carries a risk of an imbedded forward incorporation by reference
similar
to that discussed
in connection with the definitions
above.
Where the reference
is
to another pretreatment standard
which
the Board
is incorporating elsewhere, the Board will
76-209
—14—
construe these as referencing the related Board standard.
However, many of
these involve a reference to surface discharge
standards which the Board will not be proposing to incorporate at
any forseeable
time.
An approach
to preventing the imbedded
forward incorporation would be
to cite both USEPA sections
in the
Board
rule.
However, this would pose extreme problems
in
maintenance of the rules.
Not only would there be no way to find
these references
in the rules,
but the USEPA amendments would
likely occur
in connection with the surface water program,
without apparent connection to pretreatment.
Where these
situations occur,
the Board will construe the reference to
include only the surface discharge standard as
it exists at the
time the Board references it.
NEW SOURCE DATES
As noted above, the USEPA rules define “new source”
in terms
of the date the proposal
to regulate the subcategory appeared
in
the Federal Register.
Since
these dates are not readily
available
to the public, the Board has proposed to adopt for each
subcategory a definition of “new source” containing
the actual
date.
For the reasons noted above, the Board has decided that
it
must include these dates in the rules to have an enforceable
program.
The fact that it
is difficult to determine these dates
with certainty raises
the possibility that the Board might adopt
a date which
is different than the correct interpretation of the
USEPA rule.
However,
the difficulty the Board faces
is the same
as that which would confront the public
in attempting
to comply
with rules an essential part of which would not be readily
available.
It
is better
to have an enforceable program with
a
few wrong new source dates than to have an unenforceable
program.
Therefore,
the agencies and the public are urged to
review these carefully and
to comment on any errors.
The Board
will correct any errors on final adoption.
Thereafter,
the Board
will amend the rules
if necessary to correct any additional
errors which may come to light.
To determine
the new source dates the Board has relied
in
part on PC #8:
Summaries of Categorical Pretreatment Standards,
IEPA, prepared by Angela Tin and Joe Subsits, Third
Edition,
August, 1986.
This document addresses only categories
for which
there are pretreatment standards other
than the generic
standards.
For the categories contained in the document,
the
Board has accepted the date of the proposed USEPA regulation of
the category as the new source date,
unless some inconsistency is
apparent between the document and the CFR.
For other categories
the date
is based on researching back from the Federal Registers
cited
in the CFR source notes.
Apart from simply miscopying these dates, there are several
possible sources of error.
Two of these are noted above
in
connection with the discussion of point number five under
76-210
—15—
“pretreatment standards:”
Is there
a new source date
if there
is
a PSES but no PSNS?
Does USEPA define a new source date when it
adopts a rule which references the general standards or
the
PSES?
Other questions include the following:
What happens if
USEPA enlarges
a subcategory after
it is proposed?
Can there be
separate new source dates
for sub—subcategories?
What is the new
source date
if
a proposal
is withdrawn and reproposed?
The Board has followed the following conventions in drafting
the proposal:
1.
The new source date
is the date of the first proposal of
standards for a subcategory
if the subcategory includes
a PSNS Section in the CFR, even if
it
is merely a
reference to the general standards.
2.
No new source date
is specified
if there
is no PSES or
PSNS Section in the CFR,
in which case “new” sources are
required by Board
rules
to comply with Subpart
B.
3.
No new source date
is specified
if there
is a PSES,
but
no PSNS Section
in the CFR, in which case “new”
sources
are required by Board rules to comply with the PSES.
No date is specified
in the second or third cases, because
the standard
is the same whether the source
is “new”
or
existing.
As
is discussed above, there
is a possibility that
at
the USEPA level
there may actually be
a new source date
in some
of these cases,
but
it is irrelevant
at the present time.
If
USEPA in the fu’ture adopts
a “real” PSNS for these, the new
source date may relate back to this date.
Hopefully this will be
made clear
in the Federal Register materials so the Board
specifies the right date in amending the rules.
If this has
already happened,
it would
fall into case
1, and the Board has
hopefully proposed the right date.
PART 310:
PRETREATMENT PROGRAMS
Part
310 establishes the pretreatment program.
It specifies
how POTW’s set up pretreatment programs, and sets requirements
which users must meet to get pretreatment permits from the POTW,
or
from the Agency in some cases.
Part 310
is drawn from
40 CFR 403.
Immediately following
is
a general discussion of how Part 403 was modified
to form Part
310.
Following on this
is
a detailed discussion of the Sections
involved.
40 CFR 403 serves
a larger function than Part 310:
In
addition to the functions noted above
for Part 310,
Part 403
specifies how a state obtains approval of
its pretreatment
program from USEPA,
specifies certain minimal requirements which
must be present
in state law for program approval, specifies how
USEPA acts in certain situations with an approved state program
76.211
—16—
and how USEPA acts
in the absence of an approved program.
Part
403 also includes broad introductory material and statements of
purpose relating to the national program.
This type of material
has generally been deleted.
In particular,
Part 310:
1.
Assumes that the Agency will administer an approved
program.
(See 40 CFR 403.3(c))
2.
Does not purport
to regulate actions
to be taken by
USEPA.
(See 40 CFR 403.6(a)(4))
3.
Does not purport to specify which offices within USEPA
approve various aspects of the pretreatment program.
(See 40 CFR 403.6(a)(4))
4.
Does not include introductory material or statements of
intent broader than the Illinois program.
(See 40 CFR
403.13(b))
5.
Specifies what State law
is to be applied
in
pretreatment permits.
(See 40 CFR 403.4)
6.
Specifies procedures
to be followed
in situations
in
which USEPA allows a range of procedures within an
approved program.
(See
40 CFR 403.6(a)(l))
7.
Adopts substantive requirements in situations
in which
USEPA requires that a rule be adopted, but allows
a
range of options.
(See 40 CFR 403.12(b))
8.
Translates general directives into specific State
requirements.
(See 40 CFR 403.9(g))
9.
Specifies procedural steps which must be taken under
State law.
(See 40 CFR 403.13)
10.
Modifies Part 403 to the extent necessary to comport
with Illinois constitutional, statutory and
administrative law.
(See 40 CFR 403.8(e))
11.
Rewords provisions for clarity.
The text of Part
310
is drawn from Part 403 as nearly
verbatim as possible.
The text
is
in nearly the same order as
in
Part 403.
However,
in order
to comply with codification
requirements, the first
level of subdivision of USEPA sections
has been promoted
to Sections
in Part 310.
USEPA Sections
generally correspond with Subparts in Part 310.
The Board has
added notes
to each proposed Section referencing
the Part 403
subsection from which
it
is drawn.
76.212
—17—
Section 310.101
Part 310 serves two functions:
it governs the approval by
the Agency of pretreatment programs for POTW5; and,
it governs
the issuance of pretreatment permits by the POTW to industrial
users.
This Section has no close USEPA counterpart.
Section 310.102
This Section
is drawn from 40 CFR 403.2.
Unnecessary USEPA
introductory material has been deleted.
Some of the provisions
have been reworded for clarity.
Section 310.104
This Section
is drawn from 40 CFR 403.4.
The USEPA rule has
been applied to the Illinois situation, but is not repeated.
The USEPA rule governs conflicts between State, and local,
law and USEPA rules.
USEPA allows more stringent State or local
law to override its requirements.
With respect to State
requirements, the Board has identified the more stringent
requirements.
Section
5 of the Act requires the Board
to “determine,
define and implement the environmental control standards
applicable
in the State.”
The Board cannot subdelegate this
authority to local government.
The POTW must apply the Board
rules
in the issuance of pretreatment permits.
However, as
is
discussed below
in connection with Sections 310.210 and 310.211,
the POTW must evaluate its system and develop more stringent
standards based on its capacity to treat discharges,
from the
cumulative effect of actual dischargers,
so as to avoid
interference or pass—through.
The pretreatment program should not be construed as
in any
way superseding any existing powers of
a municipality
to charge
a
user fee or.to refuse to accept discharges which
it does not
believe the treatment plant can handle.
As discussed above, there are three
types of prohibitions
and standards.
In Section 307.1101 the Board combined the USEPA
general pretreatment requirements with the existing Board general
requirements.
POTWs and users will be able to refer
to this rule
without further consideration of
stringency, unless there
is
a
local requirement.
Sections 307.1102 and 307.1103 contain
concentration based standards for mercury and cyanide which will
apply to all POTWs.
Sections 307.1501 et seq.
include the USEPA
categorical standards, which are often expressed as mass
discharge limits dependent on production rates.
Because of the
different method of expressing
the standards,
the POTW will have
to apply each set of rules
to a given situation
to decide which
type of standard
is more stringent.
For example,
it may be
necessary to determine a production rate,
calculate an allowable
76-213
—18—
mass discharge limit and divide by flow to obtain a concentration
limit to compare with the Board standards.
Section 310.105
This Section
is drawn from 40 CFR 403.14.
The USEPA rule
has been applied, rather than repeated.
For information in the
hands of the Board or Agency, confidentiality is governed by Part
120.
The Board sees no need
to modify these rules at this
time.
POTWs will need to adopt procedures
to protect
confidentiality before pretreatment programs are approved.
The
Agency will review these procedures to assure that they meet the
minimum requirements specified by this Section and 40 CFR 403.14.
Section 310.105(a)
is drawn from 40 CFR 403.14(b).
It
provides that “effluent data shall be available
to the public
without restriction.”
The Board solicits comment as to how this
should be interpreted in the context of the pretreatment
program.
Section 310.107
This Section will include all materials which must be
incorporated by reference for use
in the later Sections.
The
Board has incorporated the Standard Industrial Classification
Manual
in that SIC Codes are requested
in a subsequent Section.
Section 310.110
The
40 CFR~401 definitions have been consolidated with the
Part 403 definitions for inclusion in Section 310.110.
Definitions which seem to apply only to NPDES discharges have
been omitted.
The Board has added a number
of definitions
appropriate to the Illinois program.
The definition of “approval authority” has been modified on
the assumption that the Agency will administer an approved
program
in Illinois.
Therefore,
“approval authority”
is
equivalent to “Agency”.
“Approved POTW pretreatment program”
is drawn from
40 CFR
403.3(d).
It has been modified on the assumption that the Agency
will be the approval authority.
The USEPA rule includes a
condition that the program meet the criteria
for approval, as
well as having been approved.
This has been omitted as
redundant.
The Agency cannot approve
a program unless
it meets
the criteria.
Once approved,
a program will remain “approved”
until the Agency takes steps
to cancel the approval.
At first sight the term “discharge of pollutants” appears
to
belong with the pretreatment rules.
(40 CFR 401.11(h))
However,
on closer examination,
it applies only to effluent discharges.
76-214
—19—
The definition of “interference”
is drawn from 40 CFR
401.3(i).
The Board has specified the Part 309 sludge
application permits, RCRA permits and Part 807 solid waste
permits
as those, which
if violated, would result
in
interference.
The definition of “municipality”
is drawn from 40 CFR
401.11(m), which references
the CWA.
The definition has been
modified to use the term “unit of local government,”
an all—
inclusive term defined by Art.
7, Sec.
1 of the Illinois
Constitution.
The term “new source”
is drawn from 40 CFR 401.11(c).
The
USEPA definition references the date a proposal for
a categorical
standard appeared in the Federal Register.
As
is discussed
above,
the Board has proposed
to specify these dates in Part
307.
The definition of
“pass—through”
is drawn from
40 CFR
403.3(n).
The definition of “person”
is drawn from 40 CFR 401.11(m)
and the CWA.
The CWA definition does not include the U.S.
Government.
However, the definition
in 40 CFR 122.2, applicable
to the NPDES program, which seems
to be based on the same CWA
definition, specifically includes the U.S. Government.
Since
there is no positive intent expressed by USEPA
to exclude federal
agencies the Board has proposed
to include the U.S. Government
in
the State program, but solicits comment.
Section 13(h) of the Act provides that no person shall
discharge
to a sewer except in compliance with Board
rules.
Section 13.3 requires the Board
to adopt
identical
in substance
rules.
The Board construes this to mean that it is
to adopt a
definition of “person” consistent with the USEPA program,
and
that that definition will control the the scope of
Section
13(h).
If the definition of
“person”
found
in the Act were to
control Section 13(h), the scope
of the pretreatment program
might be different than the program mandated by USEPA, violating
Section 13.3.
The definition of “pollutant”
is drawn from 40 CFR
401.11(f).
That definition specifies discharges into “water”,
and as such seems
to be inapplicable to the pretreatment
program.
However,
in that the term is essential, the Board has
proposed
to modify the definition
to include discharges to
“sewers.”
The Board has also proposed
to omit the exclusion of
injections
to facilitate oil production and sewage from
vessels.
These seem to be relevant only to the surface discharge
program.
It would not be physically possible to facilitate oil
production by injecting water
or other material into a sewer.
Also,
it would seem appropriate to apply the pretreatment rules
if sewage from a vessel were somehow discharged
to
a sewer.
76.215
—20—
The definition of “pretreatment standard”
is drawn from
40
CFR 403.3(j).
The Board has dropped the equivalent term
“national pretreatment standard.”
As these terms are used
in the
proposal, more stringent Board standards would also be
“national,” which would be confusing.
There
is no need in the
proposal for terms distinguishing the USEPA standards from the
Board standards, since their function does not depend on their
origin.
The Board has conditioned this definition on adoption of
USEPA standards by the Board.
Therefore additional categorical
standards will not become “pretreatment standards”
until the
Board adopts them as State rules.
The definition of “POTW”
is drawn from 40 CFR 403.3(o).
It
has been made more specific so
it applies
in Illinois.
It has
been simplified through the addition of definitions for
“treatment works” and “municipality.”
The definition of “schedule of compliance”
is referenced
in
40 CFR 401.11(m).
It has been set out
in the proposal.
A
sentence has been added referencing the sources of schedules
of
compliance.
The traditional methods of establishing such
schedules in Illinois have been temporary hardship variances and
Board enforcement Orders.
The proposal would also allow the
Agency and POTW to establish compliance schedules in permits
within certain bounds.
The Board has added a definition of “SIC Code”,
a term which
is used
in the rules.
The definition of “submission” has been narrowed from that
of 40 CFR 403.3(t).
As defined,
it will include only the request
from the POTW to the Agency for approval of a pretreatment
program.
The references
to removal credits have been dropped
throughout
the proposal.
The submission from the Agency to USEPA
for approval
of the State program is not the subject
of these
rules.
The
tJSEPA rules use “submittal”
as a substitute for
“submission”
in several places.
The Board has used the defined
term throughout.
Also,
it should be noted that the USEPA rules
actually use “submission”
in contexts other than those listed.
The Board has added
a definition
for “treatment works”,
a
term that
is essential
to the applicability of the pretreatment
program.
The definition
is implied by the definition of “POTW,”
which references Section 212
of the CWA.
The Board has proposed
to define the term by reference to the CWA, with
the first
sentence of the CWA definition set out
in full
for clarity.
The
rest of the definition
in Section 212 seems to be specifying what
is or
is not elegible for
the grants program, and
is not
particularly appropriate
for inclusion.
76.216
—21—
Section 310.201
This Section includes the general prohibition against
introduction of pollutants which pass through or interfere with
the operation of the POTW.
This Section
is drawn from 40 CFR
403.5(a).
Some of the provisions have been reworded for clarity.
Section 310.202
The “specific” prohibitions of 40 CFR 403.5(b)
have been
combined with the similar existing Board requirements
in Section
307.1102.
These are part of
the “general” pretreatment
requirements of Subpart B of Part 307.
Section 310.210
This Section is drawn from 40 CFR 403.5(c).
It has been
reworded for clarity.
POTW’s which are required
to develop
pretreatment programs have to evaluate their system with respect
to the cumulative effect of discharges upon it.
They may have to
develop and enforce more stringent specific limits based on this
evaluation.
The Board has modifed the language to make it clear
that this evaluation and the more stringent limits are
to be a
part of the pretreatment program submission.
As such,
the limits
will
be reviewed by the Agency and subject to appeal
to the
Board.
As
is discussed above
in connection with Section 310.104,
only the Board has authority to adopt -environmental control
standards.
The~Boardhas therefore added Section 310.210(d)
to
the USEPA text.
Specific limits developed by the POTW are to be
based on the characteristics of the treatment plant and
discharges to
it.
There
is an important distinction between environmental
control standards and standards based on evaluation of a given
system.
New categorical pretreatment standards would be based on
evaluation,
or reevaluation, of treatment technology similar
to
that done by USEPA
in adopting the categorical standards.
On the
other hand, treatment technology would be
a secondary
consideration for the POTW after evaluation of its system.
The
Board considered adding to paragraph
(d)
a sentence stating that
this Section does not authorize POTW’s to develop additional
categorical standards.
However,
this seems to go too far, in
that
a POTW would probably in fact address categories of
dischargers after evaluating
its system.
The Board has been
unable
to find better negative language to insert into the rule
at this point, but solicits comment.
Section 310.211
This Section
is drawn from 40 CFR 403.5(d).
The additional
pretreatment standards which the POTW develops from the
76.217
—22—
characteristics of the treatment plant and discharges will
function the same as categorical pretreatment standards.
Section 310.212
This Section
is drawn from 40 CFR 403.5(e).
It requires
a
30 day notice before
the Agency can assume enforcement
responsibility if a POTW fails to take action.
The Board
solicits comment as to whether this limitation is consistent with
the Agency’s enforcement powers under the Act.
This Section has been edited so that
it does not purport to
regulate actions by USEPA.
40 CFR 403.5(f) sets
a compliance date for the USEPA
rules.
This has been omitted,
since
it is long since past.
These
rules will become effective when filed.
Section 310.220
This Section
is drawn from
40 CFR 403.6.
The Board solicits
comment as
to whether this general introductory material
is
necessary.
Section 310.221
This Section
is drawn from 40 CFR 403.6(a).
A user can
request a category determination within 60 days after a new
categorical standard
is adopted.
The Board has edited this
Section on the assumption that the Agency will be delegated the
authority to make these determinations.
Some of the provisions have been reworded for clarity.
Paragraph (d)(l)
has been edited to allow for the possibility
that the Agency might determine that a submission is not
complete.
Paragraph (d)(2)
has been edited so that it does not
purport
to regulate actions by USEPA.
USEPA will retain
a case—by—case oversight authority on
category determinations,
unless
it waives this authority.
If
USEPA does not waive
its oversight authority,
there will be
a
problem of finality and appeal.
If the Agency refuses or fails
to make a determination, the action can be appealed to the
Board.
Agency determinations, however, are subject to review by
USEPA.
If USEPA accepts
the Agency determination, the
determination
is appealable
to the Board
for 35 days after
notification
of the Agency decision to the user.
To avoid
confusion,
the Agency should not notify the user of a
determination until USEPA review is complete.
If USEPA modifies
the Agency determination, the user must utilise USEPA procedures
to challenge USEPA’S decision.
The user cannot appeal the USEPA
action
to the Board,
or appeal the Agency’s action
to the Board
if modified by USEPA.
76-218
—23—
Section 310.222
This Section
is related
to 40 CFR 403.6(b).
Compliance
dates were discussed above
in connection with the general
discussion of the categorical pretreatment standards.
For the
earlier standards,
USEPA was silent as to the compliance date.
40 CFR 403.6(b) operated to give three years
for existing sources
to come into compliance with new standards.
For the more recent
standards, USEPA has specified the compliance dates with the
categorical
standards.
Compliance dates at the State level are somewhat more
complex.
The standards are not enforceable as State law until
the Board has adopted them or
incorporated them by reference, and
until USEPA has approved the Illinois pretreatment program.
The Board cannot adopt the text of the USEPA rule.
First,
it would not adequately state the situation with respect to
compliance dates
at the State
level.
Second, since USEPA now
specifies the dates with the standards, there would be
a
possibility of
a conflict between this Section and the date
specified by USEPA.
Indeed,
40 CFR 403.6(b)
is best interpreted
as
a formula used by USEPA
to decide what dates
to include with
the standards.
The Board cannot adopt a rule which purports
to
regulate USEPA.
For
these reasons the Board has drafted a State
rule with no close federal counterpart.
There are basically three situations with respect to
compliance dates.
Where compliance
is already required at the
federal level, compliance will be required at the State level as
soon as USEPA approves the Illinois program.
For standards which
are adopted after program approval, the Board will adopt or
incorporate the USEPA compliance date with the standard.
The
intermediate case
is the most complex:
categories for which
compliance will be required at the USEPA level during the
pendency of program approval.
For these sources compliance will
be required as of the latest of the following dates:
USEPA
compliance date; Board adoption or incorporation; and program
approval.
This scheme assumes that USEPA will continue
to specify the
compliance date with the standards,
as
is its current practice.
If USEPA stops doing
this,
it will
be necessary for the Board to
determine the date and specify
it when it incorporates the
standard.
In the absence of
a specified date, immediate
compliance will be required upon adoption or incorporation by the
Board.
Section 310.230
This Section
is drawn from
40 CFR 403.6(c).
The Board has
proposed
to drop introductory language reflecting USEPA’s
intentions
in adopting categorical standards.
The Board has also
edited
“effluent” to “discharge”
in the last sentence.
76-219
—24—
The Board solicits comment as to whether this Section serves
any purpose
in the Board rules.
Section 310.232
This Section
is drawn from 40 CFR 403.6(d).
This contains
the anti—dilution rule.
The USEPA rule is limited to
“categorical” pretreatment standards.
The Board has proposed to
make this applicable to all the pretreatment standards, including
the concentration—based standards for mercury and cyanide.
Section 310.233
This Section is drawn from 40 CFR 403.6(e).
It specifies
the methods for deriving discharge limits where wastewater from
more than one source
is combined prior
to discharge.
Most of the changes
to this Section involve format.
The
symbols
in the formulas have been modified to avoid the use of
subscripts and superscripts, which inevitably cause problems
in
the printed version of Board
rules.
For similar reasons, the
sigma sign for summation has been replaced with the “SUM”
function, which
is defined in the rule.
The formula has been
written
in a one line format,
also to avoid proofreading
problems.
40 CFR 403.6(e)
contains two large asides
in the definitions
of the terms used in each
of the formulas.
It
is impossible to
meet codification requirements with this format.
The asides have
been moved to Section 310.233(d)
and
(e).
This also avoids
unnecessary repetition of the asides.
Section 310.233(d)
has been modified to remove discretionary
language.
The control authority will have to make the dilution
determination
if the user asks for one.
Section 310.241
The following Sections govern issuance of pretreatment
permits by the Agency.
These permits will be required
of
dischargers unless and until the Agency approves a pretreatment
program.
These
rules are based on 40 CFR 403.10(e)
and
(f).
However,
they do not follow the text of
the USEPA rule, which
specifies the contents of the program submission which IEPA will
give
to USEPA.
The Board rules will be
a portion of this
submission, which will also include things out of the Board’s
jurisdiction, such as the adequacy of funding for inspections.
Section 310.241(a)
prohibits discharges from “non—domestic
sources”
to POTW’s unless the POTW has an approved pretreatment
program.
Section 310.241(b)
requires compliance with the
conditions of the permit.
76.220
—25—
The limitation to “non—domestic sources”
is taken from
Section 310.201 and 40 CFR 403.5(a), which require compliance
with pretreatment standards.
This could also be phrased
in terms
of “industrial user.”
The Board solicits comment on this.
There are six possibilities:
1.
The discharge
is to a POTW with an approved program.
2.
The discharge
is to
a
POTW
whose program has not yet
been approved.
3.
The discharge is to
a POTW which refuses or
fails to
file a program application.
4.
The discharge
is to
a POTW whose application has been
denied,
or whose program has been cancelled through
modification of its NPDES permit.
5.
The discharge
is
to a POTW which is not required
to have
an approved program.
6.
The discharge
is not
to a POTW.
Discharges
to
a POTW with
an approved plan are exempt from
the pretreatment permit requirement.
(Case
1)
The Agency will
issue permits temporarily to dischargers during the pendency of
a
POTW application.
(Case
2).
The Agency will
issue permits
indefinitely where there
is no local program.
This will not
excuse the POTW from the requirement
to have an approved
program.
(Cases
3 and
4).
Under
Section 310.301
it appears that
POTW’s
receiving less than 5 mgd may be exempt from the
pretreatment program requirement under certain circumstances.
The Board has proposed to require pretreatment permits issued by
the Agency for any non—domestic sources discharging
to such small
POTW’s,
but
solicits
comment.
(Case
5)
The
proposal
is
worded
in
such
a
manner
that
discharges
to
treatment plants which are not POTW’s would not be subject to the
pretreatment permit requirement.
There
is at least one privately
owned wastewater treatment plant serving
a municipality in
Illinois.
The Board
is not aware of anything
in the federal or
Illinois law which requires pretreatment permits for discharges
to non—POTW’s,
but solicits comment.
(Case 6).
Section 310.242
The
Board
has
proposed
to
require
the
Agency
to
promulgate
application forms pursuant to Section 39(a)
of the Act.
The
Board could also specify the minimum contents of the application
in
the
rule.
76.221
—26—
Section 310.243
The Agency
is to issue a pretreatment permit
if the
discharger demonstrates that the discharge will meet the
requirements of Parts
307 and 310.
Section 310.244
The Agency
is to impose such conditions as are necessary to
assure that the discharge complies with Parts
307 and 310.
Specific conditions are listed.
The Agency is to include
discharge limitations based on Part 307, and more stringent
limitations based on the ability of the POTW to treat the
discharge without interference or pass through.
The permit must
also include monitoring,
reporting and inspection conditions.
Section 310.245
The Board has proposed
to allow the discharger,
the POTW or
a member
of the public
to appeal the issuance or denial of a
pretreatment permit to the Board.
The Board construes the
discharger’s pretreatment permit to be a part of the POTW’s NPDES
permit.
However, the Board solicits comment on its authority to
allow third party appeals
in this situation.
Section 310.301
This Section
is drawn from 40 CFR 403.8(a).
This Section
determines which POTW’s are required to develop pretreatment
programs:
those above
5 mgd which receive from industrial users
pollutants which pass through or
interfere with the
POTW,
or
which receive discharges from users which are subject to
pretreatment standards.
The Agency can also require smaller
POTW’s to develop programs under certain stated circumstances.
This Section has been reworded from the comparable federal
language.
The USEPA language is worded as a directive to the
State to adopt
a requirement;
the Board has met the directive by
adopting the requirement.
The USEPA
rule is very confusing,
including several misplaced modifiers.
The Board has adopted
a
rule which seems clear, and which appears to meet the USEPA
directive.
However,
the Board solicits comment on whether the
proposal captures the intent of the USEPA rule.
40 CFR 403.8(a) exempts POTW’s
if the State assumes direct
responsibility for pretreatment permits.
The Board has proposed
not to exercise this option, but solicits comment.
The Agency
will issue certain pretreatment permits directly under Section
310.241,
but these will not excuse the POTW from the obligation
to prepare
a program.
Section 310.302
This Section
is drawn from 40 CFR 403.8(b).
The USEPA rule
76.222
—27—
requires POTW’s
to develop pretreatment programs no later than
July 1, 1983,
which has already passed.
The Board has proposed
to substitute July 1,
1988, as the Illinois deadline.
This date
is chosen
for consistency with important compliance dates in the
CWA.
The Board solicits comment as to whether this allows
adequate time for POTW’s to develop programs.
Section 310.303
This Section
is drawn from 40 CFR 403.8(c).
The USEPA rule
treats modification of the POTW’s NPDES permit to incorporate an
approved pretreatment program as a “minor modification.”
As such
it
is not subject to the detailed procedures for permit issuance
of 40 CFR 122.
However, the Board has never adopted the minor
modification procedures as part of the NPDES procedures of Part
309.
The Board has therefore simply provided that this type of
permit modification
is not subject to Part 309.
Section 310.304
This Section is drawn from
40 CFR 403.8(d).
If the Agency
issues an NPDES permit for
a POTW required
to establish a
pretreatment program, but which has not done so, the Agency is to
include
a compliance, schedule
in the permit.
The compliance
schedule
is to lead to an approved program at the latest by July
1,
1988,
a date chosen for consistency with Section 310.302.
Section 310.305
This
Secti’on
is drawn from 40 CFR 403.8(e).
It requires the
Agency
to modify or
reissue permits to incorporate an approved
pretreatment program or
to place the POTW on a compliance
schedule leading
to an approved program.
The USEPA rule uses the phrase “revoke and reissue”
instead
of “reissue” to describe the process by which the Agency replaces
an earlier permit with
a new permit.
The Board has modifed the
term to avoid confusion with permit revocation as
a penalty for
violation of the Act.
This modification
is consistent with the
terminology adopted
in the RCRA rules in R86—1
(Opinion and Order
of June
20 and July 11,
1986.)
Subsection
(b)
authorizes the Agency to coordinate
construction grants with the compliance schedules for
pretreatment programs.
The Board does not generally regulate the
grants process,
and solicits comment as to the necessity and
propriety of the provision.
Section 310.310
This Section
is drawn from 40 CFR 403.8(f).
This Section
establishes the requirements for an approvable pretreatment
program.
76.223
—28—
40 CFR 403.8(f)(l)
establishes the legal authority which
a
POTW
must have for program approval.
Generally the POTW has to
have legal authority to enforce Parts
307 and 310.
The Board has
specified in Section 310.310(a)
only its own rules,
without
requiring the POTW to have the authority to enforce the USEPA
rules
or CWA directly.
40 CFR 403.8(f)(l)(v) requires that the POTW have authority
to enter any place where records are required to be kept under 40
CFR 403.12(m).
The correct reference should be to Section
403.12(1), whose equivalent is Section 310.434.
40 CFR 403.8(f)(l)(vi)
requires that POTW’s have authority
to seek civil or criminal penalties against dischargers which do
not comply with pretreatment requirements
if the state has laws
which allow POTW’s to seek such penalties.
If the state does not
allow actual penalties,
POTW’s have to contract with dischargers
specifying penalties.
P.A. 84—1320 does not include a specific
grant of authority to municipalities to adopt ordinances
containing these penalties.
The Board solicits comment
concerning any limitations
on the authority of POTW’s or
associated municipalities to exact penalties
in Illinois.
The
Board notes,
in particular, its concerns about the limitations,
both Constitutional and statutory, on the powers of units
of
local government to impose criminal penalties.
For purposes of
soliciting public comment,
the Board has proposed
in Section
310.3l0(a)(6)(A)
to require both federal options
in the Illinois
program.
That
is,
each POTW would have to pass ordinances and
contract with each industrial user.
“Municipality”
is defined above to be the equivalent of
“unit of local government”
under the Illinois Constitution.
The Board will ask specific questions to be answered by
commenters, especially the Attorney General.
What is the
authority of municipalities,
as defined
in the proposal, to adopt
ordinances with criminal penalties?
Would civil penalties be
sufficient under federal law?
What is the authority of
municipalities to adopt civil penalties?
Does this depend on the
type of municipality?
What is the authority of municipalities to
enter
into contracts involving liquidated damages of this sort?
Is the practice
of requiring individual contracts with industrial
dischargers widespread?
Or, would a requirement of individual
contracts impose burdensome costs on municipalities?
40 CFR 403.8(f)(1)(vi)(B)
requires the
POTW
to have
authority to immediately halt discharge of pollutants which
“reasonably appears
to present an imminent endangerment...”
The
Board has proposed to change this
to “presents an imminent
endangerment...”
(Section 310.310(a)(6)(B)).
40 CFR 403.8(f)(2)
contains several provisions requiring the
POTW to share information with USEPA or the State agency.
The
Board has proposed in Section 310.310(b)
to require the POTW to
76.224
—29—
share information only with the Agency.
USEPA and the Agency
will presumably share information pursuant to the delegation
agreement.
40 CFR 403.8(f)(2)(vii)
requires notices to be published in
the largest daily newspaper “published”
in the municipality in
which the POTW is located.
The Board has proposed
in Section
310.3l0(b)(7)
to change this to
“circulated,” recognizing that
many municipalities depend primarily on newspapers published
elsewhere, and that there may be cases in which a newspaper
actually published
in
a given town may not be the largest
circulation paper
in the town.
For example, the Wall Street
Journal
is published
in Naperville, but
is probably not an
appropriate newspaper for
a notice of local importance.
Section 310.333
This Section implements
40 CFR 403.9(g).
The Section is
simple because the Agency is the water quality management agency
in Illinois.
The Board has proposed no equivalent of
40 CFR 403.10, which
governs the IEPA’s submission of the State program to USEPA.
These rules should be submitted
to USEPA as
a part of the program
submission under
this Section.
Section 310.341
This Section is drawn from 40 CFR 403.11(a).
This and the
following Sections set up the procedures which the Agency follows
in approving pretreatment programs.
As provided above,
this
results
in
a modification of the POTW’s NPDES permit, although
the Part 309 procedures will not be followed.
40 CFR 403.11 includes provisions governing the granting
of
removal credits by POTW’s.
The Board has not proposed
to adopt
the provisions regarding removal credits.
Section 310.342
This Section
is drawn from 40 CFR 403.11(b).
The Board has
implemented the USEPA rule by specifying certain agencies which
are to receive public notice of the pretreatment program.
The
Board has specified that regional planning agencies responsible
for water quality management plans are to receive notice.
This
recognizes the interest of the regional planning agencies, such
as NIPC,
in water quality management plans.
Section 310.344
This Section leads
into 40 CFR 403.11(d).
The Board has not
adopted the USEPA text,
since it specifies only procedures to be
followed by USEPA.
76.225
—30—
USEPA has the right to object to a proposed pretreatment
program.
The program proposal has to be modified to meet this
objection.
The POTW can contest the objection in accordance with
USEPA
rules, but cannot appeal the USEPA objection to the Board.
Section 310.347
Since approval of pretreatment programs does not proceed
through the Part 309 procedures,
the Board has specified that the
decision
is appealable pursuant to this Section.
Section 310.401
This and the following Sections specify reporting
requirements.
Section 310.401 is drawn from 40 CFR 403.12(a).
It contains
a definition of
“control authority:”
the POTW after
the pretreatment program has been approved, and the Agency
before.
The Board has proposed
to adopt this as
a global
definition in Section 310.110, since the term
is used throughout
the Part.
Section 310.402
This Section
is drawn from 40 CFR 403.12(b).
It requires
industrial users to prepare
a “baseline report”
within 180 days
after the Board adopts a pretreatment standard,
or within 180
days after
a category determination
is made.
The Board has
proposed to key the report to the Board adoption rather
than the
USEPA adoption.
Section 310.402(e)(6) governs sampling and analysis.
40 CFR
403.l2(b)(5)(vi)
appears to contain
a reference
to future
amendments to 40 CFR 136.
The Board believes these are precluded
by the APA.
The Board has incorporated the current version of
Part 136
in Section 307.1003, which will be referenced at this
point.
That Section will be periodically updated as these rules
are maintained.
The USEPA rules allow the Administrator
to approve
alternative sampling and analysis methods.
The Board has
proposed
to allow the Agency to make this determination, on the
assumption that USEPA does not intend
to retain this authority.
The Board solicits comment on this.
Section 310.405
This Section
is drawn from 40 CFR 403.12(e), which allows
the control authority to “agree”
to alter the requirement of
reports
in June and December at
its discretion,
in consideration
of such things as budget cycles.
It
is not clear with whom the
agreement is to be made.
The Board has simplified and clarified
the language,
to provide that the control authority “may alter”
the due months.
The reports will
still be due every six months,
76-226
—31—
except
for the initial period
in which an alternative schedule
is
established.
Section 310.410
This Section
is drawn from 40 CFR 403.12(g).
The first
sentence of the USEPA rule contains a “therein” which has been
rendered as “in the discharge”
for clarity.
For the reasons
noted above, the Section has been edited on the assumption that
the Agency will be delegated authority to approve alternate
sampling and analysis methods.
Forward incorporations of 40 CFR
136 will be handled by way of Section 307.1003.
Section 310.431
This Section
is drawn from 40 CFR 403.12(i).
The
introductory language has been modified to replace “may be” with
“is”
in the definition of “authorized representative.”
Section 310.434
This Section
is drawn from 40 CFR 403.12(1).
Paragraph
(c)
has been modified
so that the Agency will control retention of
documents by the POTW.
If USEPA wants reports retained for
a
longer period,
it would instruct the Agency
to request longer
retention.
This can be dealt with in the delegation agreement
rather than the rules.
Section 310.501
This Section
is drawn from 40 CFR 403.13(a).
This and the
following Sections deal with “fundamentally different factors”
(“FDF”)
variances.
The Board has modified the rules to avoid
describing these as “variances,”
a term which would be confusing
in light of Board variances granted pursuant to Title
IX of
the
Act.
The Board has instead used “determination”
to describe the
fundamentally different factors process.
Board variances grant temporary relief
from a rule when a
petitioner demonstrates arbitrary and unreasonable hardship.
The
petitioner must have
a plan for eventual compliance.
On the
other hand an FDF determination results in a permanent
limitation, with no plan for eventual compliance.
The variance
procedures are clearly inappropriate.
There
is still
a question
as to whether the FDF determination
is the equivalent of
determining an environmental control standard, and hence an
action reserved
to the Board by Sections 5(c) and l3(a)(2)
of the
Act, or whether
it
is implementation of a Board rule as a part of
permit issuance,
and hence an action reserved
to the Agency by
Sections 4(g),
4(1)
and
39
of the Act.
If the decision is
reserved to
the Board, the appropriate procedure would be the
adjusted standards of Section 28.1 of the Act.
76.227
—32—
The pretreatment program differs from the NPDES program
in
that, with respect to NPDES permits for surface discharges, USEPA
retains the authority to make FDF determinations.
The surface
discharger directs to USEPA requests for FDF determinations with
respect
to USEPA’s categorical effluent limitations, and directs
to the Board petitions for variances or site—specific rules with
respect to the Board’s effluent standards.
The Agency sorts
this
all out and issues an NPDES permit based on the most stringent
limitations.
This process cannot serve as a model
for the
pretreatment program because
it is so different.
As
is explained
in the introductory material to 40 CFR
403.13(b), the need for FDF determinations arises because of the
method USEPA chose to establish pretreatment standards.
USEPA
chose
to regulate by industry categories, rather than by
pollutant.
Industry categories,
established by SIC codes, are
mainly defined by products, without consideration of pollution
potential.
This raises
the possibility that a discharger may
meet the definition for inclusion in an industry category, yet
have little
in common with the industries which USEPA sampled
in
establishing the pretreatment standards for the category.
USEPA
has provided a mechanism by way of the FDF determination for
arriving at permit limitations for users which fit into
a
regulated category, but which have factors fundamentally
different than those looked at by USEPA
in arriving at the
categorical pretreatment standards.
Sections 310.503 et seq.
spell out
in great detail the
factors to be considered by the Agency in making an FDF
determination.
Section 310.522 allows the requester
to appeal
a
denial
to the Board.
The specified factors appear to be
sufficiently detailed
to allow the Board
to review the Agency’s
decision
in
a meaningful way.
The Board therefore concludes that
the FDF determination is
in the nature of a permit review action
which
is within the Agency’s authority.
The Board retains the authority to issue variances pursuant
to the Act for arbitrary or unreasonable hardship.
These would
have
to be consistent with federal
law.
A variance would have to
meet the requirements
of
a delayed compliance plan,
as well as
the requirements specified under the Act and Part 104.
Section 310.502
This Section
is drawn from 40 CFR 403.13(b).
Much of the
basic introductory material, which was referenced above, has been
dropped.
This relates
to the rationale of USEPA
in adopting the
categorical standards, and is not appropriate
in the Board rule,
since the Board has merely incorporated the standards by
reference.
Section 310.506
This Section
is drawn from 40 CFR 403.13(f)
,
which allows
76-228
—33—
more stringent State and local requirements
to override FDF
determinations.
Rather than repeat the directive of the USEPA
rule, the Board has implemented
it by stating.the Illinois law on
this.
The Agency cannot grant an FDF determination with respect
to the more stringent requirements established pursuant to
independent Board authority.
This presently consists of the
cyanide and mercury standards discussed above.
Also,
the FDF
determination could not be used to override any more stringent
local limitations based on an evaluation of the system and
discharges to it.
Section 310.513
This Section is drawn from 40 CFR 403.13(i).
‘It
has been
reworded
for clarity.
Section 310.514
This Section is drawn from 40 CFR 403.13(j).
For the
reasons noted above,
the Board has implemented the USEPA notice
requirements with
a more specific list of entities to be
notified.
Section 310.522
This Section
is drawn from 40 CFR 403.13(1).
The preceding
Section requires the Agency
to notify the requester
if
it denies
an FDF determination, or
to otherwise forward the request to
USEPA with an approval recommendation..
Section 310.522(a)
references the ,USEPA procedures for review of FDF determinations,
but does not purport to specify them.
Section 310.522(b)
prohibits the Agency from granting any FDF approval unless USEPA
approves.
Section 3l0.522(c)(l)
allows the requester to appeal to the
Board any finding
of the Agency that FDF do not exist.
Section
310.522(c)(2) provides that the requester may contest USEPA
decisions only as
allowed by USEPA.
Section 310.601
This Section references the USEPA procedures of 40 CFR
403.15 for adjusting categorical standards to reflect the
presence of pollutants
in intake waters.
Section 310.701 et seq.
These provisions are drawn from 40 CFR 403.16, governing
“upsets.”
An upset
is an affirmative defense
in the event
of an
enforcement action.
However,
to claim an upset, the discharger
has
to notify the
POTW
within 24 hours after the upset,
and
provide certain specified information.
If the discharger
fails
to notify the POTW within 24 hours, the discharger
is barred from
later claiming
that
non—compliance resulted from an upset.
76-229
—34—
Section 310.705 provides that the Agency
is to review upset
claims, although any determinations are not final actions subject
to review.
The only review would come
in the event of an
enforcement action, at which time the Board would decide whether
an upset occurred.
This Proposed Opinion supports the Board’s Proposed Order
for public comment of this same day.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify tha~theabove Proposed Opinion was adopted
on the
~-~‘
day of
_________________,
1987, by
a vote
of
__________
Dorothy M./Gunn, Clerk
Illinois Pollution Control
Board
76-230
