ILLflIOIS POLLUTION CONTROL BOARD
~4arch 19,
1981
IN THE MATTER OF:
)
PER~4ITSFOR SLUDGE APPLICATION TO LAND
)
AMENDMENTS
TO THE WATER POLLUTION
)
R77-12,
REGULATIONS: CHAPTER
3,
AND
SPECIAL
)
Docket B
WASTE HAULING REGULATIONS:
CHAPTER
9
)
OF THE ILLINOIS POLLUTION CONTROL BOARD
)
PROPOSED RULE:
SECOND NOTICE
PROPOSED OPINION AND ORDER OF THE
BOARD
(by J.D.
Dumelle):
On May 10,
1977, the Illinois Environmental Protection
Agency
(Agency) filed a proposal, part of which was to add
a new Rule 950 to Chapter
3:
Water Pollution, which proposed
a permit system for the application of sludge to land.
The
entire proposal was docketed as R77—12, but was later divided
into four separate dockets.
That part of the proposal concerninq
the new Rule 950 was designated as R77—12,
Docket
B.
Five
days of merit hearings concerning
this matter were held
in
late
1977 and early
1978.
On December 10,
1979, the Illinois
Institute of Natural Resources
(INR) filed an economic impact
study
(EcIS) concerning the proposed regulation
(Project
No.
80.122,
INR Document No.
79/43).
Thereafter,
two more days
of hearings were held to consider the EcIS and any final testimony.
Dates and places of all hearings are listed below:
1.
September
6,
1977; Springfield
2.
September
7,
1977; Springfield
3.
September
8,
1977; Chicago
4.
January 25,
1978; Chicago
5.
March
6,
1978; Chicago
6.
February
4,
1980; Chicago
7.
February
25,
1980; Springfield
On March
24,
1980,
the Agency filed an amended proposal
which the Board found to contain only such changes
as were
already adequately covered by the hearings and the ECIS.
Therefore,
no additional hearings were deemed to be required,
and none were held.
The Agency submitted a brief supporting
the amended proposal on June 30,
1980.
On December
4,
1980,
the Board adopted a modified
version
of
the Agency’s amended proposal for comment
(Proposed Rule:
Fir~.~-~
Notice).
It was published in the Environmental Register
No.
229 on December
18,
1980,
and in the Illinois Rëgister
41—127
on January 26,
1981.
The comment period ended on February
15,
1981.
Two public comments were received,
one on February
10,
1981, on behalf of the Agency, and another on the same day
on
behalf of
Illinois Power Company.
The Agency submitted proposed Rule 950 to allow
it to
establish a permit program to regulate the land application of
sludge from sewage treatment plants and to allow this application
to take place without individual user permits wherever the
activity could be accomplished without harm to the environment.
Under the proposal,
if three conditions are met,
no permit can be
required unless the Agency determines that environmental
harm
is
possible and notifies the owner or operator of the site in
writing of the requirement to apply for a permit.
The conditions:
are intended to minimize any possible adverse effects.
Further,
those sites which must obtain a permit for receiving sludge
for
land application under some other Board rule or through some
other
state agency would he exempted from the permitting
requirement.
Finally, generators and haulers of municipal waLer
or wastewater treatment plant sludge which
is to be applied to
land and regulated under Chapter
3 would be exempted from the
special waste hauling permit requirement and manifest
requirements under Chapter
9.
During the course of the proceedings it became apparent that
amendments
to other rules were appropriate in order to integrate
proposed Rule 950 with other Board rules.
Therefore, by its
amended petition, the Agency proposed
to add the definition of
“Sludge,” and amend the definitions
of “FWPCA,” “Pretreatment
Works” and
“Wastewater”
of Rule 104 of Chapter
3.
Further,
the
Agency proposed a modification of Rule
910 of Chapter
3 to
clarify the Agency’s authority under §39(b)
of the Act
to include
permit conditions pursuant to both federal and state regulations.
Finally,
the Agency proposed that Rule 211(c) of Chapter
9 be
amended to substitute language parallel
to that proposed
in Rule
950 of Chapter
3 to ensure consistency between chapters
concerning the exemption of municipal haulers and wastewater
treatment plant sludge from permit and manifest requirements.
The Board agrees with the overall
scheme of the Agency’s
proposal and finds that
it will ensure a useful and workable
mechanism for safely managing the application of sludge to land.
However,
in response to comments and testimony
(especially
from
the Metropolitan Sanitary District of Greater Chicago
(MSD)) and
a concern over the statutory authorization of some sections of
the proposal, the Board has made several modifications of the
proposal to clarify some of the language and to ensure the
Board’s oversight of the Agency’s criteria to be used in the
permitting process.
A more comprehensive examination of the
Board’s proposal
follows.
RULE 104 OF CHAPTER 3——DEFINITIONS
“FWPCA”——This change simply updates the previous definition
and should assist public understanding and make the definition
41—128
consistent with federal regulations.
This is done
in
response t~
Agency comments which suggest this alternative to substitution of
Clean Water Act for FWPCA throughout Chapter
3 which was rejected
on the basis of administrative convenience.
“Pretreatment Works”——The changes make the definition
consistent with federal language and uses the correct citatio:i to
the Code of Federal Regulations as changed
in
rules published
on
June 26,
1978
(43 FR 27736—27773).
It is appropriate to amend
the definition in this proceeding because Rule 950 refers to
pretreatment works.
“Sludge”——In 1979 the Illinois General Assembly amended
the
Environmental Protection Act to add the proposed definition of
sludge consistent with the definition used by the United States
Environmental Protection Agency
(USEPA)
in regulations
promulgated under the Resource Conservation and Recovery Act of
1976.
The
record
in
this proceeding centers on land application
of sludge of the type produced by municipal wastewater treatment
plants.
This typically has a high organic content with troubiesor~
traces of metals.
The definition of sludge taken from the Act is considerably
broader than the sludge types addressed in this record.
Sludges
resulting from chemical precipitation are commonly generated
by water treatment plants and by wastewater treatment plants
treating form metals and other contaminants such as those
regulated by Rule 408 of
Chapter
3.
The definition of sludge also includes sludges
from air
pollution control facilities.
A recent case involved a landfill
permit
to accept a gypsum—like sludge (calcium sulfate) produced
by a scrubber on a coal-fired boiler (Environmental Site Devel~ers
v.
EPA, PCB 80—15, June 12,
1980).
Agronomic use of this
sludge could be feasible at some time in the future.
Since the record in this case
is
restricted to municipal
wastewater treatment plant sludge,
the Board will note
in this
Opinion that the rules, permits and exceptions are intended to
apply only to this type of sludge.
The Agency proposal sought to add “sludge” to the definition
of “wastewater,”
However,
Rules 203(a)
and 403
refer
to
“unnatural sludge” and “sludge solids”
as contaminants present
in water or effluents respectively.
If
the sludge itself
were “wastewater” an undesirable circular definition would
be
introduced.
Therefore, the Board declines to amend the
definition of wastewater.
Under Part II of Chapter
3 the water in a stream would
arguably become “wastewater” if contaminated by sludge.
This
would presently be thought of as protected waters contaminated
with sludge.
Under Part IV a conflict could arise from the
amiguity as to whether only the sludge in
a wastestream is
“wastewater” or whether the entire stream is “wastewater.”
41—129
It is not clear what would be gained by adding “sludge”
to the definition of “wastewater.”
Sludge is treated as
a
contaminant under Rule 203(a) and Rule 403.
Its discharge
to waters of the state would violate both rules.
RULE 949 OF CHAPTER 3--NPDES PERMIT CONDITIONS
The Agency has proposed the addition of Rule 910(a)(8).
The
Board, while recognizing the need for such authority
to he
explicitly stated in Chapter
3,
finds that for reasons of
administrative convenience, the rule should be separately
numbered as Rule 949.
The rule can be later renumbered
910(a)(8)
during the codification procedure for Chapter
3.
This
avoids
opening all of Rule 910 to public comment
(which might result
in
delay of this rulemaking) and saves the time and effort of
retyping and publishing the entire rule
(which is quite
lengthy)
at a
time when an examination of the entire rule would be
inappropriate.
By placement of the rule immediately prior to
Rule 950, permit applicants should have no difficulty noting
iL.
The 1977 amendments
(P.L.
95—217) to Section 405 of the
Federal Water Pollution Control
Act of 1972 provided that permits
were to be issued under the NPDES program for the disposal of
sewage sludge where water pollution might occur as a result of
the activity.
Subpart 405(d) requires the Administrator of USEPA
to promulgate “regulations providing guidelines
for the disposal
of sludge and utilization of sludge for various purposes” within
one year after the date
of enactment of the subsection.
Some
regulations implementing Rule 405 have been enacted by USEPA
(40
CFR Part 257,
“Criteria for Classification of Solid Waste
Disposal Facilities and Practices,” Sept.
13,
1979) and are
included as Exhibit B-23 in this proceeding.
The NPDES regulations in Subpart A of Part IX of Chapter
3
were patterned after the federal NPDES regulations applicable at
the time of their adoption.
They contain no
~cific
references
to permit requirements under Section 405 of the Clean Water Act
although Rule 910(a)(4)(ii) indirectly authorizes
the Agency
Lo
include federal requirements under Section 405.
On May
19, 1980
EJSEPA published Consolidated Permit
Regulations at 45 FR 33290 et
~,
The proposed language
in Rule 949
is derived from 40 CFR 122.62(o) which refers
to conditions to be included
in NPDES permits.
Under USEPA’s
delegation of authority to Illinois to administer the NPDES
permit program,
the state is required to ensure that permits
comply with all applicable federal requirements pursuant to
Section 39(b)
of the Act.
The language of proposed Rule 949 will clarify the Agency’s
authority to include permit conditions pursuant to both federal
and state regulations in order to implement the requirements
under Section 405.
RULE
950 of CHAPTER 3——PERMITS
FOR SITES RECEIVING SLUDGE
4
1—130
Rule 950(a)(1)
through
(4)
Generally,
the Board does not intend to impose a dual
permit requirement on land application of materials included
in the definition of sludge but which are regulated under
other Agency programs or by other agencies.
These materials
are, therefore, exempted from the requirements of Rule 950.
Rule 950(a)(1) exempts livestock wastes which are regulated
under Chapter
5 of the Board’s Rules and Regulations:
Agriculture
Related Pollution.
Rule 950(a) (2) exempts septic tank pumpings which are
regulated by the Illinois Department
of Public Health under
the Private Sewage Disposal Licensing Act
(Ill.
Rev.
Stat.,
1979, Ch.111½, Sections 116,301 et
,~,
).
Rule 950(a)(3) exempts sludge disposal operations which
are regulated under Chapter
7:
Solid Waste Regulations.
Sludge disposal
in
a landfill is
to be distinguished from
application to land.
The former is regulated because sludge
to be landfilled is “waste” and “refuse” as defined in the Act.
The Act prohibits refuse disposal except pursuant to Board
regulations
(~S21& 22).
On
the
other hand,
land application
of sludge is regulated pursuant to Title III of the Act and
Chapter
3:
Water Pollution.
Sludge
is
a contaminant which
if improperly placed upon the
land creates a water pollution
hazard ~12(b),
12(d)
and 13(a)(3)J.
Regulation of land
application pursuant to Chapter
3 is independent of whether the
sludge is “waste.”
Where the sludge
is indeed waste, unless
exempted,
it
is conceivably also subject to regulation under
Chapter
7.
However, the Board intends
land application pursuant
to Chapter
3 permit
to be exempt from Chapter
7 permits.
Rule
950(a)(4) exempts
a site which is specifically
identified
in an approved sludge management scheme of an operating or
NPDES permit issued by the Agency and which receives sludge
exclusively from the permittee.
This includes sludge generators
who utilize their own sludge,
Rule 950(a) (5)
Rule 950(a)(5) sets
up another group of exempt sites.
However, the basis
for exemption is
of a different
sort.
This exemption is not based upon the site being subject to
other permit requirements, but rather is based upon a perception
that those sites which meet the three conditions
for this
exemption are unlikely to present a potential for environmental
harm.
The three conditions are that the site receives sludge
from a properly permitted generator,
that the user applies
the sludge to less than 300 acres under common ownership or
control
in any year, and that the sludge is handled in compliance
with an approved sludge management scheme.
41—131
MSD has argued that this exemption is inconsistent with
the mandate of paragraph 583.05 of the Wastewater Land Treatment
Site Regulations Act (WLTSRA) which states that “No person
may establish,
operate, manage or maintain any wastewater
land treatment site or any digested sludge utilization site
without first obtaining a permit from the Illinois Environmental
Protection Agency.”
The Agency,
on the other hand, argues that such an exemptio
is consistent with the WLTSRA in that home rule counties are
exempted from coverage of the WLTSRA and that the WLTSRA should
be read consistently with the Environmental Protection
Act
(Act) which granted the Board the power to regulate pollution
sources through the establishment of permit requirements.
The Agency’s first argument,
simply stated,
is that
since some exemptions are built into the WLTSRA,
it could not
have been the intent of the legislature to require a permit
for each and every site at which sludge is applied to land
(See para.
590
of the WLTSRA exempting home rule counties).
The exemptions granted under Rule 950(a)(1) through
(4)
provide
other examples of exemptions which the legislature must have
intended to be permissible,
for if permits were to be required
for such sites, a dual permit system would arise creating needless
administrative costs and,
perhaps, confusion and inconsistency.
The Agency’s second argument is that
th.e WLTSRA must
be read consistently with the Act and when that is done,
must
be read to allow for Board exemptions
from the permitting
requirement.
Section 4(g)
of the Act, the Agency’s enabling
statute, states that the Agency has “the duty to administer,...
such permit and certification systems as may he established
by this Act or by regulations adopted thereunder.”
Under
Sect: ion
4(j)
of the Act, the Agency has only ?~theauthority
to make
recommendations
to the Board for the adoption of regulations.”
Section 5(b)
gives the Board the authority to adopt regulations.
Further, Section 39 directs the Agency to issue permits upon
a demonstration by the applicant that “the facility,
equipn1cn~:,
vehicle, vessel,
or aircraft will not cause a violation of
this Act or regulations hereunder.”
The
Agency
argues
that
nothing
in
the
language
of
the
WLTSRA
suggests
that
the
General
Assembly
intended
to
carve
out
a
section
of
pollution
control
and
abatement called
“wastewater land treatment sites and digested sludge utilization
sites,” assign responsibility for regulating and issuing
permits for such sites to the Agency,
and,
in that manner,
erode the Board’s authority as the promulgator of pollution
control regulations in the State of Illinois.
Such compart-
mentalization of regulatory authority would interfere with
the express legislative intent stated in Section
2 of the
Environmental Protection Act “that air,
water,
and other
resource pollution, public water
supply,
solid waste disposal,
noise, and other environmental problems are closely interrelated
and must be dealt with as a unified uhole
in order to safeguard
the environment.”
41—132
Therefore,
the argument continues,
the only reasonable
way to resolve the apparent conflict between provision of
the
two
statutes
is
to
conclude
that
a
permit
is
required
under Paragraph 583.05 of the WLTSRA only
if
a permit is
required by Board regulation under the Environmental Protection
Act.
Section 12(b)
of the Act states that no person shall
“construct,
install, or operate any equipment,
facility, vessel,
or aircraft capable of causing or contributing to water pollution
.of any type designated
by
Board regulations,
without a permit
granted by the Agency.”
(Emphasis added.)
This language suggests
that the Board has discretion in designating those facilities and
activities for which
a permit will be required under the Act.
The exercise of this discretion is illustrated
in other
regulations in Part
IX of Chapter
3.
Rule 951(b)
for example,
excludes from the requirement of
a construction permit new
projects such as storm sewers than transport only land runoff
(among others).
Rule 952 excludes these
sources from the
requirement of obtaining an operating permit as well.
Furthermore,
in Rule 953 the Board makes exceptions to the general requirement
of operating permits as applied to existing treatment works,
pretreatment works,
and wastewater sources.
By adopting regulations which exclude some potential
pollution sources,
the Board has exercised its authority
to adopt “different provisions as required by circumstances
for different contaminant sources” under Section 27 of the
Environmental Protection
1~ct.
The Board
is acting consistently
with prior practice and with Section 27
in exempting some
sludge application sites from the requirement to obtain a
permit.
Thus concludes the Agency’s second argument.
Clearly the Board must pass regulations prior to the
Agency’s commencement of permitting facilities under
Rule
950.
The Board finds that the WLTSRA did not take away any
of the Board’s regulatory powers.
However,
in rebuttal to the
Agency’s argument,
it could
be argued that the WLTSRA indirectly
compelled the Board to pass
a
regulation without exemptions.
The Board finds that such is not the case.
As stated above,
the exemptions granted in Rule 950(a)(1) through
(4)
must have
been intended.
Further,
the
granting
of exemptions under
Rule 950(a)(5) does not relieve those
who
fall under it from
the obligation to transport, store and apply the sludge according
to an approved management scheme
(Rule 950(a)(5)(C)).
Thus,
the Agency retains control over the management of the sludge
which is certainly consistent with the legislative intent
of the WLTSRA.
41—133
The overriding justification for the Rule 950(a)(5) exemption
is economic.
A requirement
for site-specific permits is1estimated
to be an annual cost to the Agency of $120,000
(R.VI—16)
With the exemption the annual cost is approximately $23,000
(R.VI—15).
These figures are
in 1978 dollars (R.VI-28) and do
not take into consideration other costs, especially those to
the applicant,
a considerable part of which would also be saved.
The second major justification for the exemption is
the intent to encourage the use of the land application of
sludge.
If the agricultural user had to apply
for a permit,
it is less likely that he would participate in a utilization
program (EcIS 2).
Mr.
Erwin D.
Torber, an author of the EelS,
estimated total savings accruing to the Illinois agricultural
industry at $5.3 million (EelS
2 and 79) but qualified that by
stating that that is the total value of the sludge which can be
applied to land and that much of this amount is currently being
applied anyway
(R.VI—17).
Further, this figure ignores the fact
that farmers may well have to make extra applications to the field
because sludge
is not a complete fertilizer and must he supple-
mented
(R.VII-23).
Two other assumptions also lower this
figure.
It
is assumed that all the sludge is,
in fact, applied
to agricultural land, and that commercial fertilizer would
he purchased for the land if sludge were not available
(EelS 79).
Thus, the true value to all of the users
is something considerably
less than $5.3 million.
This relatively small benefit
to the individual may well
be more than offset in many farmer’s minds by
any
requirement
of
a permit.
If that were to
happen,
the greater benefits
which accrue to others would be
lost,
These other benefits accrue to the sludge generator and
to society as a whole and result from the ability of
the
sludge generator to dispose of an unwanted product
at
little
or no expense rather than transporting
it
for
disposal
at
increasingly expensive and scarce landfills.
As Mr.
Rothenberg
of the MSD pointed out,
in April of 1978
it cost MSD $1.40 per
cubic yard to landfill sludge;
whereas
in February
of
1980 the
cost had risen to
$3.60
per cubic yard.
He
stated
further
that if MSD’s give-away program were to halt,
taxpayers would
have to pay $12.8 million for transportation
of the unwanted
sludge to Fulton County and as much
as $25 million for additional
capital expenditures (R.VII—20).
The EcIS found that unit costs
for
land application systems ranged from $10 to $38 per dry ton while
landfilling costs ranged from $81 to $177 per dry ton
(EelS
71—80).
For all of these reasons,
the
Board finds that
it was
the intent
of
the
1~gicz1M-nr~
to allow the Board to use its
discretion in determining how the application of sludge to
1Although the transcrips
of the first five hearings are numbered
consecutively, the 5th 6th and 7th hearing transcripts are
numbered separetely.
Hence,
the page numbers of those transcripts
will be referred to as V-p, VI—p.,
and Vu—p.
4
1—134
land should be regulated and that the exemption granted
in
proposed Rule 950(a)(5)
is an appropriate exercise or that
discretion.
Rule 950(a)(5)(A)
This is the first of the three conditions each of which
must be met to be exempted from the permit requirement under
this subsection.
Two
points are of particular note here.
First,
the requirement that the sludge generator inform
the user that he has an approved sludge management scheme is
included to ensure that an unknowing user
is not found to be
operating without a required permit simply because the generator
is acting improperly;
i.e. the failure of the generator to inform
the user is a defense in an action against a user for operating
without a permit which is predicated upon
a violation of Rule
950(a) (5) (A).
Second, this subsection is written to ensure that products
(such as “Milorganite”) which are produced by a sludge generator
in a state other than Illinois, but which are sold in Illinois,
are subject to the same limitations as those imposed on Illinois
generators whose sludge management schemes will be part of
their operating or NPDES permits.
The First Notice proposal
inadvertently altered the language proposed by the Agency
such that out—of state products would be treated differently,
but the Board now proposes to change the language back to what
it was.
It should he noted that the Agency will approve or
disapprove an out—of—state generator’s sludge management
scheme on the basis of the draft NPDES permit from that state
which goes to the Agency for comment.
Rule 950(a)(5)(B)
The condition that the user apply the sludge to less than
300 acres under common ownership or control was reached by
balancing the risk of pollution to the waters of the state
against the Agency’s ability to administer the permit program
and the intent to encourage the application of sludge to land
by the average farmer.
The Agency had originally proposed
a 200
acre limitation.
However, the MSD objected to that as being too
restrictive.
The 200—acre limitation would have subjected the
Agency to the possibility of issuing permits to about 40,000
farms;
whereas the amended proposal would reduce the number to
12,000, which the Agency now contends
is
a number which can he
reasonably handled administratively
(See p.
12 of Attachment
C to
the Agency’s Petition for Amendments).
While the Board agrees that the 300 acre figure is a
reasonable one, the Board has modified the language to allow the
aggregation of separate parcels of land which are not contiguous.
The Board finds that it would not promote the purposes of the act
to allow a farmer to be exempted from the permit requirement because
41—135
a public road divides his
land into two 250 contiguous acre
parcels whereas his neighbor with 350 contiguous acres could not
be exempted.
Rule 950(a)(5)(C)
This third condition for exemption under Rule 950(a)(5)
ensures that any sludge which
is applied to land,
which is not
regulated by some agency other
than1 the Environmental Protection
Agency or by some other Board regulation,
will be applied
pursuant to procedures which have been reviewed by the Agency.
Rule 950(b)
and
(c)
These paragraphs add another level of scrutiny by the Agency
over exempted sites.
They allow the Agency to require permits on
a case—by—case basis for sites which would be otherwise exempted.
Upon an Agency determination that a potential for pollution
exists at such a site, the Agency may give written notice that a
permit is required.
Users of sludge falling under the exemption
of Rule 950(a) (1) through
(5) may assume no permit is necessary
unless notified otherwise by the Agency.
A listing of factors which the Agency
shall consider in
making a determination that special circumstances exist which
require a permit is included in this paragraph.
If the permit
requirement
is attacked,
the burden shall be on the Agency
to
demonstrate the special circumstances which demonstrate that the
potential for harm to the environment
or the public health
justifies the requirement of a permit.
Finally, the
last sentence of Rule 950(c)
indicates that the
requirement of a permit may only be reviewed in a permit appeal
proceeding.
The Agency comments recommend that language be added
to allow for such review
in the context of an enforcement
proceeding.
The Board declines
to add such
language.
It appears
that the Agency has misapprehended the substance of this
sentence.
The Agency argues that there is no means
for enforcement
of its determination that
a permit
is required under these
subsections unless
the
user applies for a permit and
is either
denied or wishes
to contest conditions of
it.
The Agency
argues further that there would be no reason for the user to
make such application.
That
is
riot,
in fact, the intent of
this rule.
As soon as the Agency notifies the user that
a
permit is required,
that requirement becomes effective.
If
the user fails to apply
for a permit,
he will then be operating
without a required permit and will be subject to an enforcement
action on that basis and
in which the requirement of
a permit
will not be reviewed.
This should give the user considerable
incentive to apply for a permit in a timely fashion.
If the
Board were to follow the Agency’s comment,
the following
circuitous situation would be
likely to result.
The Agency
brings an enforcement action for operating without a permit;
the permit requirement is upheld by the Board;
the user applies
4 1—136
for a permit and
is denied;
finally, the Board again reviews
the permit
in a permit appeal proceeding.
By requiring the permit
to be attacked in a permit appeal proceeding
in this first instance,
this possibility of double review is avoided,
and the matter is
expedited.
Rule 950(d)
On March
15,
1979 the Board adopted Chapter 9 by which the
transport of special wastes is regulated under a permit and
manifest system (R76—10).
Rule 211(C) of Chapter
9 states
that “Any person who hauls only municipal water or wastewater
treatment plant sludge pursuant
to established Agency policy
need not obtain a special waste hauling permit or carry and
complete a manifest under this Chapter.”
However, the Board did
“...
reserve consideration of
the sludge exemption from the
requirements of this proposed Chapter for the concurrent
proceeding R77—12,
Docket B.”
(P76—10 Opinion, page 26.)
Rule 950(d)
is the Board’s proposal fo~final action on the
question of exclusion of municipal water and wastewater treatment
plant sludges from the requirements of Chapter
9,
Special Waste
Hauling Regulations.
The Board finds that only municipal sludges,
which are applied to land and regulated under proposed Rule 950
and Agency policy adopted pursuant to Rule 967
of Chapter
3,
should be exempt from the requirements of Chapter
9.
All sludge
destined for landfills should be tracked through the manifest
system which,
in turn, will provide a means for monitoring the
generator’s implementation of the approved sludge management
program, as regards the transport of sludge for purposes other
than land application.
The exemption is
intended to encourage
land application where that practice is
a reasonable and safe
management alternative.
Rule 950(e) and
(f)
These paragraphs, which were not part
of
any Agency proposal,
were added by the Board
in an
attempt to retain the essence of
the Agency’s proposal
as
well
as to alleviate concerns expressed
by MSD regarding the possibility of
an unauthorized subdelegation
to the Agency.
The major problem that these
paraqraphs
address
is the
function of Agency criteria
(WPC
3
and
LPC 77).
The Agency’s
Petition for Amendment
(Attachment
C,
p.5)
included in what is
now being proposed as Rule 950(a)(5)(C)
a condition that the
sludge be transported,
stored and applied in compliance with
Agency criteria.
The Board’s proposal,
on the other hand,
requires compliance with an approved sludge management scheme.
The Board
finds that this distinction is crucial to the avoidance
of unauthorized subdelegation of the Board’s regulatory powers,
and yet also finds that the ability of the Agency to adopt such
criteria could be quite useful
in assuring an efficient regulatory
scheme.
4
1—137
Therefore, paragraph
(e) enables the Agency to adopt such
criteria; whereas paragraph
(f) makes
it clear that these criteria
are not given the force and effect of regulations.
Pursuant to
the Board’s proposal,
the Agency’s criteria act,
in effect,
as a
model permit.
If the permit applicant desires to simply adopt
the Agency criteria as its sludge management scheme,
the submission
of the application to the Agenc~’shall be accepted as a prima
facie showing that the scheme will not violate the Act or Chapter
3.
If,
however, the applicant desires to be permitted to utilize
an alternate scheme, that scheme shall be approved upon an adequate
demonstration that the sludge will be stored, transported and
applied
so as not to cause a violation of the Act or of Chapter
3.
In this way the Agency criteria are reviewable by the Board,
and the applicant will not he faced with the necessity of
conforming to the design criteria without an opportunity
to
present a workable alternative.
At the same time,
the criteria can be easily amended without
resorting
to the Board’s requirements for rulemaking.
The Board
finds that such a mechanism is appropriate
in this matter.
If
the Board were to take the alternative route of examining the
criteria and promulgating them as rules,
the Board would be
tied,
for example, to specific cadmium limitations which may well
change in the near future
(R.V—356),
Since there is presently
considerable disagreement over these numbers because sludge
management is an infant science, this allows flexibility
(R.V—357).
Further, the United States Environmental Protection
Agency
(tJSEPA) will presumably be promulgating such standards,
and Illinois will be required to conform to them
(R.V—340).
Again, this calls
for
the greater flexibility of criteria.
The Board finds that
the Agency criteria
are not presently
before the Board and makes
no finding as to their
sufficiency or
desireability.
However,
since their effect
is essentially
being limited to that of guidance documents,
the Board finds
that they do not constitute an unauthorized subdelegation
of regulatory authority.
Rule 211 of Chapter
9:
Special Waste Haulinqj~u1ations
The Board proposes that Rule 211(C)
of Chapter
9 he amended
to substitute language parallel to that proposed
in
Rule
950(d).
The interim character of the exemption in Chapter
9,
as noted above,
and the Board’s continuing jurisdiction over
the matter are implicit
in the
statement “Until the Board
makes
a decision upon Docket B, the pollution control waste
exclusion of water
and wastewater treatment plant sludge and
the Rule 211(C) exemption will continue as part of this Chapter.”
(R76—10 Opinion,
p.
26.)
Proposed Rule 950(c)
states the
scope of the exemption,
as originally intended by the Agency,
and provides notice in the appropriate
place
for those affected by
the exemption.
41—138
Finally, the Board retains jurisdiction over these proceedings
until
January
31,
1982,
and
requires
the
Agency
to
submit
any
adopted
criteria
under
Rule
950,
in
order
that
it
can
reassess
its
position
on
the
Agency
criteria
in
light
of
any
changes
in
the
state
of
the
art
of
sludge
management
and
any
federal
promulgations
which
arise
between
the
date
of
this
Order
and
that
date.
ORDER
The
Board
proposes
to
adopt
the
language
of
the
Order
of
December
4,
1980
with a
correction
of
the
numbering
of
the
definitional
rule
in
Chapter
3
to
Rule
104,
the
addition
of
the
amendment
to
Rule
104
of
Chapter
3
concerning
the
definition
of
“FWPCA”,
and
the
amendment
of
Rule
950(a)(5)(A)
which
simply
conforms
the
language
of
that
subparagraph
to
the
originally
proposed
Agency
language
which
was
inadvertently
changed
in
the
First
Notice.
Lastly,
the
definition
of
“wastewater”
has
been
omitted
in
that
the
Board
no
longer
intends
to
amend
it.
Any
Agency
criteria
established
under
Rule
950
and
any
revisions
thereto
shall
be
filed with the Board by the Agency.
The
Board
will
retain
jurisdiction
over
this regulatory proceeding
until
January
31,
1982,
The
Clerk
is
directed
to
institute
the
Second
Notice
period.
The
language
of
the
Second
Notice
proposed
rules
is
below.
Language
which
is
new
with
respect
to
existing
rules
is
underlined,
and
deletions
are
stricken~.
104
Definitions
“FWPCA” means the Federal Water Pollution Control Act,
as amended, U.S.C.
1251,
et seq.,
Public Law 92—500,
enacted by the Congress October 18,
1:972,
as amended;
by
the “Clean Water Act,”
Public Law 95—217, enacted
December 12,
1977,
as amended.
“Pretreatment Works” means a treatment works designed
and intended for the treatment of wastewater
from a ma~e~
ee~4~g
~a~y
an indir~:di~1~rcj~rJndustrial
user,
as defined
in 40 CFR
~
Part_403, before introduction
into a sewer system tributary to a publicly owned or
publicly regulated treatment works.
“Sludge means any solid,
semisolid,
or liquid waste
generated from
a municipal, commercial,
or
industrial
wastewater
treatment
plant,
water supply treatment plant,
or air pollution control facili~yor any other such
waste having similar characteristics and effects.
949
Terms
and
Conditions
of
NPDES
Permits
Concerning
Sewage
Sludge
Disposal
In
addition
to
Agency
authority
granted
in
Rule
910,
in
establishin9
the
terms
and
conditions
of
each
issued
NPDES
permit,
the
Agency
shall
apply
and
ensure
compliance
4 1—139
with
applicable
regulations
promulgated
under
Section
405
of
the
FW?CA
governing
the
disposal
of
sewage
sludge
from
treatment
works.
950
Permits
for
Sites
Receiving
Sludge
for
Land
Application
(a)
A
construction
and
an
operating
permit
are
required
under
this
Chapter
for
any
site
receiving
sludge
for
land
application
unless:
(1)
The
site
receives
only
livestock
wastes;
or
(2)
The
site
receives
only
septic
tank
sludges
generated
from
domestic
sources;
or
(3)
The
site
is
regulated
under
Chapter
7
of
the
Boards
regulations;
or
(4)
The
site
is
specifically
identified
in
an
approved
sludge
management
scheme
of
an
operating
or
NPDES
permit
issued
by
the
Agency
and
receives
sludge
exclusively
from
the
permittee;
or
(5)
All
of
the
following
conditions
are
satisfied:
(A)
The
site
is
not
specifically
identified
in
an
NPDES
or
operating
permit
of
any
treatment
works
or
pretreatment
works
but
receives
sludge
from
a
treatment
works
or
pretreatment
works
which
has
a
valid
operating
permit
issued
by
the
Agency,
or
an
NPDES
permit
with
a
sludge
management
scheme
approved
by
the
Agency.
The
sludge
generator
shall
inform
the
user
that
this
requirement
has
been
met;
and
(B)
The
sludge
user
apples
the
sludge
to
less
than
300
acres
under
common
owner-
ship
or
control
in
any
year;
and
(C)
The
sludge
is
transported,
stored
and
applied
by
the
user
in
compl:Lance
with
the
approved
sludge
management
scheme
of
the
generator
from
which
the
user
receives
the
sludge.
Any
person
who
intends
to
transport,
store,
or
apply
sludge
in
any
manner
other
than
that
described
in
the approved sludge
management
scheme
must
apply
for
(b)
Notwithstanding subparagraphs
(1)
through
(5)
of paragraph
(a), the Agency may require a user
receiving
sludge
for
land
application
to
obtain
a
permit
under
this
rule
when
the
Agency
determines
that
special
circumstances
exist
such
that
a
permIt
is
required
to protect the
environment
or
the
public
health.
In
making
its
determination,
the
~gency
shall
consider
the
following
factors:
(1)
Where
the
sludge
will
he
stored
(2)
The
proposed
rate
and
method
of
application
of
the
sludge
to
the
receiving
L
41—140
(3)
The quality (enn.~it~i~nt~
and
concen-
trations) of the sludge
to he applied
to the receiving site;
and,
(4)
The
geological
and
hydrological
charac-
teristics
of
the receiving site,
including
proximity to waters of the state.
(c)
No
permit
may
be
required
under
Rule
950(b)
for
a
user
receiving
sludge
for
land
appli-
cation unless the owner or operator is
notified in writing of the requirement
to apply for a permit.
That notification
shall
include a statement
of the special
circumstances
requiring
the
site
to
be
permitted.
The
requirement
of
a
permit
is
reviewable
only
in
a
permit
appeal
~~din.
(d)
Generators
and
haulers
of
municipal
water
or
wastewater
treatment
plant
sludge,
which
is
to
be
applied
to
land
and
which
is
regulated
under
this
Chapter,
need
not
obtain
a
special
waste
hauling
permit
or
prepare,
carry
arid
complete
a
manifest
under
Chapter
9
of
the
Board’s
regulations.
(e)
The
Agency
may
establish
and
revise
criteria
in
accordance
with
Rule
967
of
this
Chapter
for
the
design,
operation,
and
maintenance
of
facilities
regulated
under
this
Rule.
(f)
For
purposes
of
permit
issuance
and
approval
of a sludge management scheme, proof of
conformity with Agency criteria shall be
prima
facie
evidence
of
no
violation
of
the
Act
or Chapter
3,
However, nonconformity
with
Agency
criteria
shall
not
be
grounds
for
permit denial,
or for
failure
to
approve
a
sludge
management
scheme,
if
the
applicant
submits
adequate
information
showing
that.
the
sludge
will
be
stored,
transported
arid
applied
so
as
not
to
cause
a
violation
of
the
Act
or
chapter
3.
Chapter
9:
Special
Waste
Hauling Regulations
211
Exemptions
for
Special
i~aste
Haulers
Items
A, B,D, F,
F,C, an~
TI
are
not
changed.
(C)
Generators
and
haulers
of
a~y
~e~se~
w~e
ha~~
e~iy municipal
water
or
washowater
treatment
plant
sludge
which
is
to
be
applied
to
land
and
which
is
to
he
regulated
under
Chapter
3
pursuant
to
c~tab~ishcd a
sludge
management
scheme
approved
by
the
Agency
pe~ey
need
not
obtain
a
special
waste
hauling
permit
or
j~reJlare,
carry
and
complete
a
manifest
under
this
Chapter
for
that
sludge.
IT
IS
SO
ORDERED.
4
1—14
1
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board,
hereby certify that the above Order was adopted
on the
/4’
“~‘
day of
_______________,
1981 by a vote of
~
-
~
.L~
~
~
~
Christan L.
Moff~t~?/
Clerk
Illinois Pollution Control Board
41—142
