ILLINOIS POLLUTION CONTROL BOARD
December
5, 1974
IN THE MATTER OF
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
REGULATIONS
)
R73-11
& 12
OPINION OF THE BOARD
(by Mr. Dumelle)
The National Pollutant Discharge Elimination System
Regulations,
R73-ll and 12
(hereinafter referred to as
NPDES)
,
adopted by the Board on August 29, and September
5,
1974,
together with the Livestock Wastes Regulations, R72-9
(hereinafter referred to as Feedlot),
form the regulatory
basis
for the State of Illinois’
request of the transferral
of authority for issuing NPDES Permits from the U.S. Environ-
mental Protection Agency (hereinafter referred to as
U.S.
EPA)
pursuant to Section 402(b)
of the Federal Water Pollu-
tion Control Act Amendments of 1972
(Public Law 92-500,
33
U.S.C. 1151 et. seq.,(hereinafter referred to as the FWPCA)).
The NPDES Permit system was created by the United States
Congress when it enacted the FWPCA on October
18,
1972.
The
FWPCA directed the U.S. EPA to promulgate regulations to
administer the permit system and to promulgate regulations
to set forth the basic requirements for State NPDES Program
requests pursuant to Section 402(b) of the FWPCA.
On May
22,
1973,
the U.S. EPA promulgated the Environmental Protection
Agency Regulations on Policies and Procedures for the National
Pollutant Discharge Elimination System,
40 CFR 125,
38 FR.
13527
(hereinafter referred to as
40 CFR 125)
,
which set out
the regulatory procedures to be followed by the U.S. EPA in
issuing NPDES Permits. Pursuant to Section 304(h) (2) of the
FWPCA,
the U.S.
EPA promulgated Environmental Protection
Agency Regulations on State Program Elements Necessary for
Participation in the National Pollutant Discharge Elimination
System,
40 CFR 124,
37 FR 28390 as amended by
38 FR 17999,
July 5,
1973 and 38 FR 19894, July 24,
1973
(hereinafter
referred to as 40 CFR 124), which sets out the minimum
program requirements that must be met before the U.S. EPA
can turn over the NPDES Permit Program to a State.
The Board acknowledges, with appreciation,
the assistance
of
Mr. Roy M.
Harsch, Administrative Assistant to the Board,
in this
proceeding.
14
—
661
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The Illinois legislature adopted House Bill 1585 which
amended the Environmental Protection Act
(hereinafter referred
to as Act)
to establish the legislative authority for an
NPDES Permit Program which would secure Federal approval.
On September 14,
1973,
Governor Walker signed House Bill
1585.
Section 13(b)
of the Act directs the Board to adopt:
(r)equirements,
standards,
and procedures which, together
with other regulations adopted pursuant to this Section
13, are necessary or appropriate to enable the State of
Illinois to implement and participate in the National
Pollutant Discharge Elimination System
(NPDES) pursuant
to and under the Federal Water Pollution Control Act
Amendments of 1972
(P.L.
92-500).
All regulations
adopted by the Board governing the NPDES program shall
be consistent with the applicable provisions of such
federal Act and regulations pursuant thereto, and
otherwise shall be consistent with all other provisions
of this Act, and shall exclude from the requirement to
obtain any operating permit otherwise required under
this Title as facility for which an NPDES permit has
been issued under Section 39(b)
(Section l3(b)(l)
of the Act).
To this end, the Illinois Environmental Protection Agency
(hereinafter referred to as Agency)
on October
1,
1973
proposed a comprehensive revision of the Illinois Pollution
Control Board Rules and Regulations, Chapter 3: Water Pollution
and Chapter
1: Procedural Rules
(hereinafter referred to as
Water Pollution Regulations and Procedural Rules, respectively).
The Agency proposal was published in Newsletter
#74 on
October 10,
1973.
Four days of hearings were held throughout
the State on this proposal.
On January 16, 1974,
the then
new director of the Agency requested that the Board “temporarily
defer action on the NPDES regulations” pending review of the
matter by the Agency.
On January 30, 1974,
the Agency
submitted an amended proposal, which in its view encompassed
certain comments and criticisms which had been received by
the Agency at the previous hearings and during the subsequent
comment period.
This amended proposal was published in
Newsletter #80 on February
1,
1974.
One day of hearing was
held on the amended proposal on March 13,
1974 in Chicago.
At the start of this additional hearing, the Agency
appeared and filed a Notion to Suspend the Proceedings. The
Motion requested the Board to table consideration of the
14—662
—3-
NPDES regulatory proposal for five months while the Agency
and the U.S. EPA proceeded to implement a program of State
certification and drafting of NPDES Permits and U.S. EPA
issuance of final NPDES Permits.
The Hearing Officer deferred
this ruling to the Board and proceeded to conduct the hearing
on the Agency’s new proposal
(R.
806).
On March 14, 1974,
the Board denied the Agency’s Motion to Suspend Proceedings
(R73—ll and 12,
11 PCB 609 (March 14, 1974)).
On April
4,
1974,
the Board authorized the publication
of
a draft set of proposed NPDES regulations which reflected
the Board’s review of the four days of hearings on the
Agency’s first proposal and all comments received on that
proposal,
and the testimony presented on the Agency’s second
proposal,
as well as all comments received on it. This
proposed draft was published in Newsletter #83 on April
11,
1974.
In addition,
copies of this proposed draft were
mailed to most of those persons who had appeared at the
previous hearings or had submitted comments.
Numerous comments were received by the Board on this
draft proposal.
On May 29,
1974,
the Board conducted a
“give and take” session on the record, primarily with the
U.S. EPA.
As the result of the comments received and the
testimony at the “give and take”
session, the Board further
amended its proposed draft of NPDES Regulations and authorized
a new final proposed draft on June
28, 1974
for publication.
Tnis final proposed set of NPDES Regulations was published
in Newsletter #81 on July
5,
1974. Individual copies of this
new final proposed draft were again sent to
a majority of
those persons who had commented on prior proposals.
After again reviewing the record, together with those
comments received on the final proposal,
the Board enacted
these NPDES Regulations on August 29, and September
5,
1974.
A major departure from past regulatory procedures had
to be dealt with by the Board in considering this proposal.
Not only did the Board have to adopt regulations that complied
with the Act, but also had to adopt a set of regulations
which met the requirements
of the FWPCA and the basic federal
minimal requirements
set forth
in 40 CFR 124.
This new
requirement,
as previously stated,
is set forth in Section
13(b) (1)
of the Act, which directed the Board to adopt a set
of regulations which would be consistent with Federal requirements.
A serious problem soon presented itself.
It developed,
for the most part,
that the Federal requirements were not
written to anticipate a State program such as Illinois’
where there existed a separation of functions between the
14— 663
Board and the Agency.
This was alluded to in the testimony
of
Mr. Harvey Sheldon, Regional Counsel, Region V,
U.S.
EPA:
“I think that the Board should recognize very, very
frankly, that this law,
the Federal
law, has been
drafted in
a way that makes it easier any time to give
a single agency the authority for the complete permit
issuance process.
I
think that as just a practical
fact and deduction from the analysis of the
law,
that
does not mean a system, where the Board would have
adjudicatory hearings,
is,
first of all improper,
or
secondly necessarily unwise in a given situation.”
(R.
1064)
The Board feels that the NPDES Regulations,
as adopted,
represent a reasonable regulatory approach which continues
the distinct separation of functions of the Agency and the
Board,
and at the sante
time complies with the Federal require-
ments for
a workable State NPDES Permit Program.
The NPDES
Regulations,
as adopted, reflect the Board’s determination
to continue the basic fundamentals of the existing permit
system for dischargers to the maximum degree possible within
the State and Federal requirements.
The NPDES Program does
not represent a radical departure from past permit practices.
Illinois has had a permit program since 1932
(R.
18).
Since
the Act became effective in 1970,
and the Board’s adoption
of the Water Pollution Regulations,
the Agency has been
administering the program consistent with the permit requirements
adopted by the Board.
The prior Board permit regulations
provided the possibility of
a hearing at the Agency level
prior to the issuance of a permit
(see former Rule
961 of
the Water Pollution Regulations).
The prior permits contained
many requirements
or conditions that the permittee had to
comply with,
including both standard and special conditions
specifying certain actions or levels of performance for each
discharger
(R.
20).
These included effluent restrictions,
monitoring requirements and recording requirements.
The
former permit applicant,
or any other person, could appeal
the denial or issuance of the Operating Permit to the Board.
The Board has had held that permits were revokable in appropriate
enforcement actions.
Another similar feature between the
former Operating Permits and the present NPDES Permits is
the maximum five year expiration period
(R.
21 and 22).
During the consideration of the NPDES Regulations three
problems surfaced.
These three problem areas were:
1) What
should be the nature of the Board review concerning Agency
14—~4
-
5”-
issuance or denial of NPDES Permits?,
2)
What should be the
form of any hearing at the Agency level?,
and 3)
Should
the Agency be able to issue NPDES Permits containing schedules
of compliance beyond previously established Board deadlines?
Both the Agency’s amended and original proposals provided
for less than de novo review at the Board level of the
Agency’s decision
(see Proposed Procedural Rule
502 as
published in Newsletter
#74).
The Agency testified that
this change from normal Board review was because the Agency
would be holding a complete adjudicatory hearing at the
Agency level.
A complete evidentiary record of this adjudicatory
hearing would be available upon which the Board could review
the Agency decision without the need to repeat the hearing
process.
In addition,
the Agency testified that because of
this complete hearing,
the Agency’s decision should be given
more weight than variance recommendations
(R.
102).
This
would have represented
a major departure from past Board—
Agency separation of functions.
Many persons commented
adversely on this proposal, including Commonwealth Edison
Company
(R.
689), Peabody Coal Company
(R.
344), and the
Illinois Manufacturers’
Association
(R.
651).
In addition
to these comments, the Board interprets the Act to require a
complete de novo review of all contested provisions of the
Agency’s decision to issue or deny an NPDES Permit.
Section
40 of the Act states that if the Agency refuses to grant a
permit, under Section 39 of the Act,
that the applicant may
contest the Agency’s decision before the Board.
This section
states that the hearing at the Board level shall be in
accordance with Sections 32 and 33(a)
of the Act.
Read
separately, and together,
Sections 32 and 33(a)
require the
Board to exercise de novo review over Agency decisions in
permit cases. The above testimony and determination is the
basis for Rule 910(h) (6)
as adopted, together with Procedural
Rules 502 and 503, which provide the manner in which the
appeal shall be taken.
Once it became obvious that the Board was going to
exercise de novo review of Agency decisions to issue or deny
NPDES Permits,
the Agency submitted a comment to the Board
that its resources would not allow for two adjudicatory-type
hearings
—-
one at the Agency level and another on appeal at
the Board level.
The appropriate federal requirements 40
CFR 124.36 and Section 402
(b)
(3)
of the FWPCA, only require
the opportunity for a public hearing prior to the issuance
of or denial of an NPDES Permit.
After consideration of
the Federal requirement,
the Agency’s comment, and the lack
of strong objections to the proposed final draft which
deleted the Agency level adjudicatory hearing, the Board
adopted Rule 909, Public Hearings on NPDES Permit Applications
which provided only an opportunity to request a public
hearing at the Agency level prior
to the Agency final determination.
14—666
—6—
The third major problem was the provision for schedules
of compliance and NPDES Permits which would allow the applicant
to exceed Board enacted deadlines for compliance with effluent
standards.
Section 39(b)
of the Act states:
The Agency,
subject to any conditions which may be
prescribed by Board regulations,
may issue NPDES permits
to allow discharges beyond deadlines established by
this Act or by regulations of the Board without the
requirement of a variance, subject to the Federal Water
Pollution Control Act Amendments of
1972
(P.L.
92-500)
and regulations pursuant thereto.
This ability to issue schedules of compliance is required by
40 CFR 124.44 and Section 402 of the FWPCA.
However,
this
amounts to
a variance from Board-enacted deadlines without
a showing of arbitrary or unreasonable hardship.
After
consideration of the Federal requirements, the amended Act
and the record, the Board adopted the present Rule 910(f) (6),
which allows the Agency to issue permits containing schedules
of compliance which allow a permit applicant to discharge in
excess of Board standards and in violation of deadlines,
provided that he achieved compliance at the “earliest reasonable
date”, but in no event beyond July 1,
1977.
The schedules
of compliance must also show compliance with the appropriate
Federal requirements, such as best practicable degree of
treatment,
at the earliest reasonable time period, but in no
event beyond July 1,
1977.
It is the Board’s intent not to
extend this 1977 date for compliance with State or Board
requirements, regardless of any Federal modification or
change in the date for achieving best practical degree of
treatment.
The deadlines established in the Water Pollution
Regulations are to be complied with absent the application
of Rule 910(f) (6),
unless the Board has ordered otherwise in
an appropriate variance or enforcement action.
After having discussed the three major problem areas
confronted by the regulatory proposal, this Opinion will now
discuss the individual rules and regulations which were
proposed and adopted.
The NPDES Regulations,
as adopted, consist of amendments
to Chapter 1: Procedural Rules and to Chapter
3: Water
Pollution Regulations.
The amendments to the Procedural
Rules reflect the Board’s determination that a de novo
review for all Agency permit decisions,
including NPDES
Permit decisions,
is required.
Procedural Rule 102, Definitions,
was amended by including a definition of NPDES.
Procedural
Rule 502, Permit Appeals, was amended to differentiate
between appeals from NPDES Permits and all other permits.
The amended Rule 502 (a), Permit Appeals Other Than NPDES Permit
Appeals,
incorporates a prior Rule 502, Denial of Permit,
which sets forth the procedures for appealing non-NPDES
14—666
—7—
Permits. The new Procedural Rule 502(b), NPDES Permit Appeals,
sets forth the procedures
to be followed in any appeal of an
Agency issuance or denial of an NPDES Permit.
Subsection 10
of this Rule sets forth those remedies available in NPDES
Permit appeals.
In order to comply with the federal procedural
requirements when issuing or denying an NPDES Permit, where
appropriate,
the Board intends to direct the Agency to
issue, deny,
or modify an NPDES Permit.
Procedural Rule 503, Permit Review,
as amended,
sets
out the procedure to be followed in the event any person
files
a complaint regarding a permit other than an appeal of
that permit.
Rule 503 (a),
Permit Review other than NPDES
Permit Review,
incorporates the previous Rule 503, Permit
Revocation.
The new Procedural Rule 503 (b), NPDES Permit
Revlew, sets out the procedure pursuant to Rule 912 of the
Water Pollution Regulations,
as amended, regarding an enforcement
complaint seeking modification, suspension, or revocation of
an NPDES permit.
It is intended that this procedure be in
the nature of an enforcement action.
The prior Procedural Rule 504, Nuclear Facilities
Permit, was deleted consistent with the Board’s determination
that it no longer has jurisdiction over permits for nuclear
facilities.
In its place
a new Rule 504, Cost of Review,
was enacted.
This rule,
for the most part, replaces the
prior Rule 505, Transcripts.
The first group of amendments to Chapter
3: Water
Pollution Regulations represents amendments
to Part I through
Part VIII of the present Chapter
3 which were necessary or
desirable to clarify the interrelationship between these
Parts and the NPDES Regulations as adopted.
The second
group of amendments
to Chapter
3 deal with the permit process
and are divided into two subparts.
Subpart A is a new
section which deals with NPDES Permits, including the regulations
governing their issuance, the conditions
to be attached to
the permits and the method of handling public notice for
public hearing.
Subpart B constitutes the prior Part IX:
Permits which have been renumbered and modified to reflect
the existence of NPDES Permits and to exclude from the
requirements from Other Permits those dischargers which are
required to secure NPDES Permits.
The existing Rule 101, Authority, and 102, Policy,
were modified to reflect the changes in the Act in reference
to NPDES Permits.
Rule 104, Definitions, was modified to
include definitions for certain words or phrases that are
used in reference to the NPDES Permit program.
All terms
used in connection with the NPDES Permit program, which have
been defined in the FWPCA or the U.S.
EPA regulations,
14—667
—8--
should be taken to have the same meaning in these NPDES
Regulations unless specifically provided otherwise pursuant
to Rule 104 as amended.
The individual new definitions
added to Rule 104 are self-explanatory.
Part IV: Effluent Standards,
was amended by the adoption
of
a new Rule 410, NPDES Effluent Standards.
This new Rule
410 was adopted to emphiiize that
a discharger who receives
an NPDES Permit must not only comply with the applicable
provisions of the effluent standards found in Part IV, but
also must comply with the terms and conditions contained in
its individual NPDES Permit
(see New Rule 410(a)
and 40 CFR
124.10).
Rule 410(b) was included to prohibit the discharge
of any pollutant which contributes or threatens to cause
a
violation of any applicable Federal or State standard or any
other limitation, unless the limitation for such pollutant
is contained in the NPDES Permit
(see pages
5-8 of Agency’s
May 10,
1974 comment).
Rule 410(c) was adopted after being proposed by Commonwealth
Edison
(R.
690).
This rule was incorporated in the effluent
standards to reflect Section 316(a)
of the FWPCA and Federal
regulations adopted pursuant to Section 316(a)
(Thermal Discharges
40 CFR 122).
This new rule allows an applicant to request and
demonstrate that alternative thermal discharge effluent
standards should be applied to his thermal discharge.
To
the extent required by the FWPCA, this rule will provide for
the opportunity to demonstrate that differing thermal effluent
limitations should apply than those found in the Water Pollution
Regulations and the Federal Guidelines
(Steam Electric Power
Generating Power Source Category,
40 CFR 4.23). Upon the
effective date of Subpart A, such petitions for alternative
discharge limitations shall be made to the Board.
The Board
will conduct a public hearing on the proposed alternative
standards.
The Board together with Agency support, will process
Rule 410(c) requests in a similar manner as that set forth in
40 CFR 122.
Part V: Monitoring and Reporting, was modified by
amending Rule 501, Reporting Requirements1
to require any
person operating
a “pretreatment works,
treatment works or
wastewater source”
to submit operating reports to the Agency.
The reporting requirement for pretreatment works is only
required for those pretreatment works that discharge pollutants
which are toxic or interfere with the treatment process, or
those that discharge 15
or more of the total hydraulic flow
or biological loading to the receiving treatment works.
14—668
—9—
This modification will provide the Agency with information
regarding both the operation of a treatment works and discharges
to that treatment works.
The reporting requirement of a
pretreatment works discharging toxic pollutants is required
by Section 502
of the FWPCA.
The operating report for
dischargers discharging 15
or more of total hydraulic flow
or total biological loading was included to provide the
Agency with information to adequately regulate the receiving
treatment works.
The establishment of
this
15
minimum was
included because the Board felt that discharges below 15
would not have
a significant effect on the majority of
~.reatmentplants. A new Rule 501(c) was adopted to provide
a
reference between Part V and Part IX,
Subpart A because
NPDES Permits will contain enforceable requirements dealing
with monitoring, sampling, recording and reporting
(see Rule
910(f) and SectiOns 309(a) and
(d)
of FWPCA).
Part VII:
Sewer Discharge Criteria, was amended by
adopting Rule 704, Pretreatment Requirements.
This new
rule prohibits an industrial discharger to a publicly owned
treatment works from violating any pretreatment standards
promulgated by the Administrator
(Sections 307(b) and
(c)
of
FWPCA).
The limitations on discharges to sewers are designed
to protect treatment works against harm that might cause
violations of effluent or water quality standards
(R.
602).
The third portion of the NPDES Regulations consist of
an amended Part IX: Permits.
Part IX was enacted in two
subparts.
Subpart A deals solely with NPDES Permits.
Sub-
part B, which encompasses the former Part IX, deals with all
of the permits issued by the Agency other than NPDES Permits.
Subpart A,
NPDES Permits, represent the majority of
the new regulation adopted by the Board to enable Illinois
to participate in the NPDES Permit Program.
The main provisions
of Subpart A were adopted to comply with 40 CFR 124, which
sets out the minimum regulatory scheme necessary for State
implementation of the NPDES Permit Program.
Rule
901,
NPDES Permit Required, contains the basic prohibition of any
discharge of
a contaminant or pollutant into the waters of
the State from a point source or into a well without an
NPDES Permit.
This rule is taken from Section 12(f)
of the
Act and Section 301(a)
of the
FWPCA.
It
is the intention of
the Board to require NPDES Permits for all dischargers who,
by reason of the FWPCA or regulations adopted pursuant to
it, have to obtain an NPDES Permit from the U.S.
EPA.
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—10—
Rule 902, Application-General,
sets out the basic
requirements of who has to apply, how they apply, the manner
of the application, and the authority of the Agency to deny
applications.
This rule parallels the Federal requirement
found in 40 CFR 124.21 and 40 CFR 125.12.
Rule 902(a),
Application Forms, was modified from the Agency’s original
proposal in that only the application forms promulgated by
the U.S. EPA can be required by the Agency.
The Agency,
however, may require additional information as it reasonably
deems necessary to administer the permit program.
This
change was adopted after the Board received numerous comments
regarding the voluminous task of completing former Agency
permit application forms such as those required by Chapter
2: Air Pollution Regulations
(R.
648).
Subpart 2 of Rule
902(a) enables the Agency to require plans and specifications
for treatment works and summaries of design criteria in
order that the Agency may review such works prior to issuing
an authorization to construct.
This is consistent with the
incorporation of an authorization to construct within the
NPDES Permit requirement
(see Rule 908(c)).
Rule 902(b), Animal Waste Facilities, was included to
provide a cross reference between the NPDES Permit Require-
ments, and Chapter
5,
Agriculture-Related Pollution Regulations,
Section I:Livestock Waste Regulations.
Rule 902(c),
Mine
Waste, directs all those dischargers,
who by reason of Federal requirements must obtain an NPDES
Permit,
to apply for an NPDES Permit with the Agency.
It is
the intention of the Board to only require NPDES Permits for
those mines or mine waste facilities which have a point
source discharge.
This rule recognizes that water quality
standards found
in Chapter
3 and the Chapter
4 Mine Related
Pollution standards and limitations shall be the applicable
water quality and effluent limitations incorporated within
NPDES Permits to the extent consistent with Federal Regulations.
In adopting this rule,
the
Board notes that for the limited
number of mines and mine waste facilities which have point
source discharges,
a dual permit requirement is in existence
in that both an NPDES Permit pursuant to Chapter 3 and an
Operating Permit pursuant to Part II, Chapter
4, Mine
Related Pollution, will be required.
If the dual permit
system presents a major problem,
it is hoped that a review
of Chapter 3 and Chapter 4 would be made and modification of
the Regulations proposed to the Board.
Rule 902 (d), Pending Refuse Application, and 902 (e),
Current Dischargers
—-
No Prior Application, are consistent
with Section 402(k)
of the FWPCA in that applications made
under the Refuse Act or applications pursuant to the FWPCA
for an NPDES Permit, which have been filed with the U.S.
EPA,
shall be deemed an application for NPDES Permit filed
14—670
—11—
with the Agency
(40 CFR 124.21(b)).
Rule 902(f), Additional
Information, was adopted to
enable the Agency to obtain additional information where the
NPDES Permit Application was not filed with the Agency but,
by operation of the Act or in the previously discussed
rules,
is considered to be such
(40 CFR 21(e)).
Additional
information may also be required in order to allow the Agency
and the Board to carry out their statutory responsibilities.
Rule 902(g), New Discharges, requires that an application
for a renewal of an NPDES Permit or an NPDES Permit for
discharge commencing after the effective date of these
regulations shall be filed 180 days in advance of the date
in which such an NPDES Permit
is required
(40 CFR 21(d)).
Rule 902(h),
Signatures,
is consistent with requirements
of
40 CFR 124.24 in describing who must sign an NPDES Permit
Application.
Rule 902(i), Renewal, provides the same 180 day requirement
for applying for an NPDES Permit as found in Rule
902(g)
(124.52(a)).
Rule 902(j),
Authority to Deny Permits,
sets out five
conditions where an NPDES Permit may not be issued by the
Agency.
The first four conditions incorporate the prohibitions
found in 40 CFR 124.41.
The fifth prohibition was proposed
by the Agency to require the applicant to establish some
basis for showing that he can comply with the terms and
conditions of
a proposed permit
(R. 1143 and 1146).
This
will allow the Agency to comply with Section 39(a)
of the
Act which states that it
is
“the duty of the Agency to issue
such a permit upon proof by the applicant that the facility...
will not cause a violation of this Act or the regulations
hereunder”.
Rule 903, Access to Facilities and Further Information,
was adopted to parallel the provisions of 40 CFR 124.21(e)
in that if satisfactory additional information is not received
by the Agency, the Agency will take final action based on
the information currently before it.
This final action
could be either
a denial or an issuance of the permit.
Rule 904, Distribution of Applications, directs the
Agency to send a copy of the complete NPDES Permit Application
to the District Engineer of the appropriate District of the
U.S.
Corps of Engineers.
Section 402(b) (6)
of the FWPCA and
Rule 902(j) (2)
prohibits the issuance of an NPDES Permit if
anchorage and navigation would be substantially impaired.
Rule 904(b) directs
the Agency to send a copy of the complete
NPDES Permit Application to the Regional Administrator of
the U.S.
EPA.
Section 402(d)
of the FWPCA and Rule 903(j)
14—671
—12-
(3) prohibit the issuance of an NPDES Permit if the Administrator
of the U.S. EPA notifies the Agency of his objection,
in
writing, within
90 days of the transmittal of the permit
application.
Rule 905,
Tentative Determination in Draft Permit, was
enacted to be consistent with the Federal requirement set
forth in 40 CFR 124.31 and Section 39(a)
of the Act.
Rule
905(c)
requires the Agency to prepare a statement which
substantiates the basis for the conditions imposed in an
NPDES Permit.
This statement will provide a useful reference
in the event a permit condition is challenged.
Rule 905(d)
was included to comply with Section
39(a)
of the Act.
Rule 906,
Public Notice,
is consistent with ~he requirements
found in 40 CFR 124.32, which set forth the methods in which
public notice must be given regarding NPDES Permit Applications.
The regulation as adopted is self-explanatory.
Rule 907, Fact Sheets, was enacted in compliance with
40 CFR 124.33.
In addition to the requirements for setting
forth the average daily allowable discharge in pounds per
day,
the Agency will also list the average allowable concentration
in mg/l in fact sheets.
This was enacted because the Illinois
regulations deal with concentration in mg/i rather than
pounds per day.
The Agency has stated that its intent
is to require
applicants
to provide the Agency with draft fact sheets.
Rule 908, Notice to Other Governmental Agencies, was
adopted to reflect the requirements set forth in 40 CFR
124.34, which set out the manner in which
Ehe Agency must
give notice required by Rule 906 and 909.
Rule 909, Public Hearings on NPDES Permit Applications,
was adopted witE~ajorchanges from that proposed by the
Agency.
The form in which Rule 909 was adopted reflects the
Board’s determination that de novo review of Agency permit
decisions was required by the Act.
This requirement represents
the continuation of the separation of functions between the
Agency and the Board.
Thus,
the Board enacted Rule 909 to
provide for the opportunity of a public hearing at the
Agency’s level if the Agency determines that a significant
degree of public interest warrants the conduct of such a
hearing
(Rule 902(a)).
The determination of what manner
and form of the Agency public hearing should take has been
left to the Agency.
The minimal requirements are found in
Rule 909 and 40 CFR 124.36.
The Agency indicated that its
resources would not provide for two adjudicatory hearings.
This decision by the Board has been previously discussed at
pages
4 and 5 of this Opinion.
14—672
—13—
The Federal requirements found in Section 402(b) (3) of
the FWPCA and 40 CFR
124.36
do not require the holding of a
public hearing, but merely require the opportunity for
requesting such a hearing
(R.
275 and 319).
Rule 909(a) (2)
establishes the broad standing for those persons seeking to
request a public hearing on a proposed NPDES Permit.
The
term person includes as
a minimum those affected states,
interstate agencies, counties, Agency,
the Regional Administrator
of the U.S. EPA, the applicant, and any other person or
group.
Rule 909(b) allows the Director to appoint
a Hearing
Board, consisting of one or more Agency employes, once the
Agency has determined, under Rule
909(a),
that a public
hearing is required.
The person or persons serving on this
Hearing Board would have to comply with the conflict of
interest provisions found at Section 304 (h) (2) (D)
of the
FWPCA
(R.
175).
Rule
909(d)
sets forth the location in which the hearing
must be held and establishes the duty of the Chairman of the
Hearing Board in conducting the hearing.
These two provisions
are in compliance with 40 CFR 105.6(e) and 40 CFR 124.36.
Rule 909(e)
requires the Agency to issue public notice,
at least 30 days prior to the holding of hearings in the
manner described in Rule 906 and 908.
The rule also sets
forth the minimum requirements to be included in the notice.
Rule 909(f)
allows any person the right to submit oral
or written statements and data concerning the proposed
permits.
The rule gives the Chairman the authority to fix
reasonable limitations on the time
for oral statements and
allows him to require statements
in writing.
Rule 909(g) directs the Chairman to prepare a hearing
file which shall be a public document and as such will be
open to review by any member of the public or representative
of the U.S.
EPA.
The hearing file shall consist of all
materials submitted at the hearing, a report of the major
issues raised at the hearing,
an estimate of the number of
persons present, and the Hearing Officer’s recommendations
concerning actions to be taken regarding the proposed permit.
Rule
909(h) establishes the action the Agency may take
following a public hearing.
It requires the Agency to give
notice pursuant to Rule 906 regarding the Agency’s transmittal
to the Regional Administrator of the U.S. EPA of the permit
as modified to reflect information presented at the public
14—673
—14--
hearing.
In addition,
this Rule states that all permits
become effective when issued.
The permit would be issued
once the Regional Adminstrator has either waived his review
rights or approved the proposed permit as •transmitted to him
by the Agency.
Rule 910,
Terms and Conditions of NPDES Permits, sets
out what limitations can be included within an NPDES Permit
by the Agency.
Rule 910(a),
General Conditions,
set forth
seven possible types of limitations which may be included in
an NPDES Permit whenever they are applicable.
These include
limitations pursuant to Sections 208(b),
301,
302,
303,
306,
and 308 of the FWPCA and those
(adopted by the Secretary of
the Department in which the Coast Guard is operating)
for
discharges into navigable waters from a vessel or floating
craft.
Agency witnesses testified that for most NPDES
Permits, Sections 301,
302,
306, and 307 of the FWPCA will
be satisfied by applying the Illinois effluent limitations
and water quality standards found in Chapter
3
(R.
569)
Subsection
4 of this Rule requires
the inclusion
of any more stringent limitation pursuant to any Illinois
statute or regulation within the terms and conditions of an
NPDES Permit pursuant to Section 510 of the FWPCA.
Rule 910(b),
Water Quality Standards and Wasteload
Allocations, provides that the Agency must conduct wasteload
al1ocatio~sin any case where more stringent standards are
applied to
a discharge pursuant to Rule 910 (a) (1),
(2), and
(3). The purpose of this-Rule is to insure that the discharge
will not cause a violation of applicable water quality
standards
(even if the discharge would be in compliance with
the applicable effluent standard).
Rule 910(c), Effluent Limitations, requires the Agency
to include specific average and maximum daily quantitative
limitations for levels of pollutants authorized by the NPDES
Permit in terms of weight
(except for those other pollutants
not appropriately expressed by weight).
In addition to the
daily quantitative limitations by weight, the Agency may,
in
its discretion, specify such other limitations as average or
maximum concentrations.
Rule 910(d), Federal New Source Standards of Performance,
was enacted to comply with Section 306(d)
of the FWPCA by
providing a period during which a new source could not be
subjected
to any more stringent federal standard of performance.
A federal standard of performance is defined in Rule 104.
To the extent allowed by federal requirements, this Rule
does not preclude the application of more stringent standards
as they apply to toxic pollutants
(R.
1136 and 1137).
Rule 910(e), Duration of Permits,
limits NPDES Permits
14
—
674
—15--
to a maximum of five years
(40 CFR 124.51 and Section 402(b) (1) (B)
of FWPCA).
Rule 910(f), Authority to Establish Recording, Reporting,
Monitoring and Sampling Requirements, was enacted to ~omply
with 40 CFR 124.61,
62, 63, and 64.
In addition,
the Agency
may require additional information that is reasonably necessary
to carry out its duties.
The NPDES program will be a self-
monitoring program because of the requirements of this rule
(R.
573).
In addition to requiring holders of NPDES Permits
for publicly owned and public regulated treatment works, the
Agency may as
a condition of such an NPDES Permit require
all industrial users of such treatment works to undertake
the same recording,
reporting, monitoring, and sampling
requirements as could be imposed on the original permittee.
However, it is the intent of the Board that such expensive
procedures only be required by the Agency when necessary.
Rule 910 (g), Authority to Apply Entry and Inspection
Requirements, was adopted to comply with 40 CFR 124.45(c).
In addition to these federal requirements, Rule 910(g) (5)
allows the Agency broad entry and inspection rights, subject
to constitutional limitations,
to enable to the Agency to
carry out its statutory duty under the Act to determine the
possibility of present or future violations of the Act,
applicable regulations,
of NPDES Permit conditions.
Rule 910(h), Schedules of Compliance,sets forth the
conditions to be imposed in any NPDES Permit which provides
for attainment of the applicable
standards and limitations
through the establishment of
a schedule of compliance which
will be included in that NPDES Permit as issued
(40 CFR
124.44). The schedule of compliance must provide for compliance
within the shortest reasonable time period consistent with
the guideline requirements of the FWPCA and the Act.
Whenever
the schedule of compliance exceeds nine months,
the Agency
must include interim requirements and dates for their
achievement, which shall not exceed nine months in time.
These interim requirements and dates are enforceable without
otherwise showing
a violation of an effluent limitation or
injury to water quality
(40 CFR 124.44(e)). The interim
dates and requirements shall represent deadlines for the
completion
of various stages of the project.
Where this is
not possible,
the dates shall be specified for the submission
of reports toward progress with the interim and final requirement.
The permittee is required to provide written notice to the
Agency of the permittee’s compliance or non-compliance with
interim or final requirements.
This rule directs that the
Agency prepare a cuarterly list,
in accordance with 40 CFR
14
—
675
-16-
124.44(d),
of those permittees who are not in compliance
with the terms and conditions of their NPDES Permit.
This
list shall be filed with the Regional Administrator and
shall be available for public inspection
at the Agency’s
Springfield and Chicago offices.
Rule 910(h) (6) was enacted in a form different from
that proposed by the Agency.
This modification has been previously
discussed at pages
4 and 5 of this Opinion.
The Agency,
through this
Rule,
is given the authority to establish
schedules of compliance
in NPDES Permits, either earlier or
later than deadlines established by the Board. However, the
Agency may not issue a permit which provides for compliance
beyond July 1,
1977, unless the applicant has obtained a
variance from the applicable Illinois standards or has been
ordered pursuant to an enforcement action to obtain all
necessary permits.
This was adopted to provide a limitation
upon
the Agency’s ability to issue what amounts to a variance
without the applicant having filed a request for a variance
with the Board.
Rule 910 (h) (7) requires the Agency to develop a statement
on the factual basis upon which the schedule of compliance
is
based.
This should provide a written basis which may be
examined in the event of any appeal of the issued permit or
subsequent petition to modify the permit.
Rule 910 (h) (8) provides an additional cross reference
between Rules 911 and 912 in regard to review by the Board
of schedules of compliance contained in NPDES Permits.
It
is not the intent of this subsection to create a new method
of review beyond that provided by Rules 911 and
912.
Rule 910(i), Authority to Require Notice of Introduction
of Pollutants into Publicly Owned Treatment Works, was
adopted to provide the Agency with information regarding all
discharges into publicly owned or public regulated treatment
works
(40 CFR 124.45(d)).
Subsection
4 of this Rule provides
a warning system which should prevent treatment plants from
reaching and exceeding their design capacity. (R.
34 and 35).
Rule 910(j), Authority to Insure Compliance by Industrial
Users with Section
204(b),
307, and 308 of the FWPCA,
was adopted to insure that publicly owned and publicly
regulated treatment works comply both with user charges and
recovery of construction costs pursuant to Section 204(b)
of
the FWPCA; Toxic Pollutant Effluent Standards and Pretreatment
14—676
-17-
Standards,
pursuant to Section
307 of the FWPCA; and Monitoring
and Entry Requirements, pursuant to Section 308 of the FWPCA
(40 CFR 124.45(e) and
(g)).
This Rule directs the holder
of
an NPDES Permit to require industrial users of
its facilities
to comply with Section 307 of the FWPCA.
Rules 910 (k), Maintenance and Equipment
910 (1), Toxic
Pollutants
and 910(m)
,
Deep Well Disposal of Pollutants,
are consistent with Federal requirements
found in
40 CFR
124.
Rules 910(n)
,
Authority to Construct, was adopted to
provide a procedure whereby the existing construction permit
requirements could be merged with the NPDES Permit requirements
which authorize a discharge.
By including an authorization
to construct clause in NPDES Permits for new or modified
treatment works, disposal well or wastewater sources,
a dual
state permit system was avoided.
The authorization to
construct provides a continuance of the Agency’s past technical
review of proposed construction to insure that facilities
will be constructed so as to meet the applicable standards
and limitations.
This provides both a service to those who
are investing their money and a protection that the constructed
facility will not cause violation of applicable standards.
Rule 911, Appeal of Final Agency Action on
a Permit
Application, was enacted
to provide the right to appeal to
EIie Board an Agency decision regarding the issuance or
denial of an NPDES Permit.
As previously discussed,
this
appeal would be de novo and would thus extend to all matters
which are contested by the person appealing the Agency
decision.
Such appeals
shall be filed within 30 days after
final Agency action.
Procedural Rule 502(b)
sets forth the
matter in which the appeal shall be filed with the Board.
Rule 912, Authority to Modify,
Suspend or Revoke Permits
was enacted to be consistent with Section 33(b)
of the Act,
which allows the Board to revoke an Agency-issued permit in
an enforcement action.
40 CFR 124.72(a) requires that the
State have the authority to modify,
suspend,
or revoke
permits for cause.
The causes for which
a permit can be
revoked are specified in Rule
912(d).
These include, but
are not limited to, violations of any term or condition of a
permit, obtaining a permit by misrepresentation,
and any
change in circumstance which mandates a reduction or elimination
of
the permitted discharge
(40 CFR 124.45(b)
and
(c)).
This
Rule continues the Illinois philosophy of allowing any
person to file an enforcement-type proceeding challenging an
issued permit, whether or not that person was a party or
14
—677
—18—
participant to the issuance of the original permit.
Procedural
Rule 503(b) details the manner in which such a petition
shall be filed with the Board.
Rule
913, Revision of Schedules of Compliance, was
enacted to provide the Agency with the authority to modify
schedule-of-compliance interim dates contained in NPDES
Permits
(R.
661).
This authority is required by 40 CFR
124.72(b).
The basis on which an Agency can extend these
interim compliance dates are set forth in Rule 913(a). Rule
913(b)
represents a restriction upon the Agency’s ability to
modify permits
for cause because the Agency may only make
revisions when the Agency has determined that the final
compliance dates shall not be extended by more than 90 days
as originally contained in the permit.
Any extension or
series of extensions which would extend the final compliance
date beyond 90 days would require the applicant to file a
variance petition with the Board.
Rule 914, Variance From NPDES Limitations,
Standards,
and Requirements, continues the present variance relief from
the Act and Board regulations to the extent authorized by
the FWPCA.
If a variance is granted by the Board or by
operation of law,
it is intended that the Agency would then
issue or modify an NPDES Permit consistent with the variance
to the extent allowed by the FPWCA.
Rule 915, Public Access
to Information, was adopted
after suggestion by the U.S.
EPA.
This rule reiterates the
provisions
of Section 7(b)
of the Act, regarding public
access to information.
Rule 916, Effective Date, sets out the effective date
of Subpart A, Part IX.
Because the existence of the Illinois
NPDES Permit Program is contingent upon approval by the
Administrator of the U.S. EPA, the Board enacted as the
effective date of Part IX, Subpart A
(as well as those
changes to the Procedural Rules and the Water Pollution
Regulations as previously discussed),
the date upon which a
letter is filed with the Secretary of State which contains
the approval and transfer of NPDES authority by the Administrator.
The second portion of Part IX: Permits, Subpart B,
Other Permits, includes the regulations concerning the
issuance of permits for the construction, modification, and
operation of treatment works, pretreatment works, sewers,
wastewater sources and other discharges which are not required
to have NPDES Permits pursuant to Subpart A.
Testimony was presented throughout the hearings and
many
comments were received following the hearings
14—678
-19--
regarding the broad area of State regulation versus local
regulation concerning the construction and operation of
sewers and dischargers into municipal sewer systems.
What
was basically proposed was the fundamental shift of the
regulatory authority from the Agency to the local sanitary
district or municipality. The Agency was desirous of retaining
the Construction and Operating Permit Program for sanitary
sewer extensions in order to maintain the enforcement tool
of restricting additional loading to facilities
that are
reaching or have reached design capacity
——
an Agency imposed
sewer ban
(R.
34 and 35).
The Board has chosen not to adopt
these provisions because they represent such a major change
in the regulatory philosophy of the State’s control of water
pollution.
Such a proposal should be made in a separate
regulatory proceeding where it could be dealt with separately.
Rule 95l,Construction Permits, continues the prior Rule
901 with some modifications.
The requirement that the
treatment works, sewer, or wastewater source designed and
intended to serve a single building with an eventual discharge
of 15 or more persons was modified to read
“an average of
1500 gallons per day of domestic sewage”.
This change was
premised upon a population equivalent of 100 gallons per
person, which equates 15 or more persons to 1500 gallons per
day of domestic sewage.
In addition, Construction Permits
will not be required for any sewer required by statute to
secure a permit from the Illinois Department of Public
Health.
This exclusion applies primarily to sewers constructed
in mobile home parks.
An additional exemption was provided
for private sewers tributary to industrial treatment works
owned by the same person,
if such additional wasteload does
not exceed the design capacity of the industrial treatment
works.
The final effluent from such a treatment system,
if
discharged to the waters of the State, would be regulated by
the terms and conditions of the applicable NPDES Permit.
Rule 951(c)
further provides that Construction Permits
are required for any construction of
a pretreatment works or
modification to a pretreatment works if such pretreatment
works will discharge pollutants which are either toxic or
which will interfere with the treatment processes of the
receiving treatment works, discharge 15
or more of the
total hydraulic flow received by the treatment works, or
will discharge 15
or more of the total biological loading
received by the treatment works.
Rule 951 requires a Construction Permit for all dischargers
including those
who
have obtained an NPDES Permit from the
U.S.
EPA, until such time as the Agency begins to issue
NPDES Permits containing an authorization to construction
provision.
14—679
—20—
Rule 952,
Operating Permits: New or Nodified Trbatment
Works, Sewers and Wastewater Sources,continues the prior
Rule 902 by prohibiting the operation of any treatment
works, sewer, or wastewater source for which a Construction
Permit is required under Rule 951.
The requirement for
obtaining Operating Permits under Rules
952 and 953 for
dischargers for which an NPDES Permit is required will be
abolished pursuant to Section 13(b) (1)
of the Act when the
State of Illinois’ NPDES Permit Program is approved by the
Administrator.
In the interim,
the requirement for Operating
Permit has been suspended from the effective date of Subpart
B
(October 12,
1974, when the Subpart B Regulations were
filed with the Secretary of State), until
the earlier of
January 31, 1975 or the date of final determination by the
Administrator regarding the Illinois NPDES Permit Program
request.
This interim suspension was enacted to provide
a
release from the dual permit system and to allow the Agency
to concentrate its resources in the certification and drafting
of NPDES Permits for final issuance by the U.S.
EPA.
Rule 953,
Operating Permits: Existing Treatment Works,
Pretreatment Works and Wastewater Sources, continues the
former Rule 903 which applied to Operating Permits for
existing sources.
The interim suspension of the requirement
and the final abolishment of the requirement to obtain an
Operating Permit contained in Rule 952 is also included in
Rule 953.
The same change was incorporated which requires
an Operating Permit for those treatment works and wastewater
sources that are designed and intended to serve a single
building with an average discharge of domestic sewage equal
toor greater than 1500 gallons per day.
In .addition, Operating
Permits are now not required for those pretreatment works
which will not discharge pollutants which are toxic or which
will interfere with the treatment process of the receiving
treatment works, or will not discharge 15
or more of the
hydraulic flow of the receiving treatment works, or will not
discharge 15
or more of the biological loading of the
receiving treatment works.
Rule 954, Joint Construction and Operating Permits,
which was formerly Rule 906, was amended to include pretreatment
works in those facilities which may be issued a joint permit.
Rule 955, Experimental Permits, which was formerly Rule
907, was amended to provide that Experimental Permits may
not be issued in place of NPDES Permits where an NPDES
Permit is required.
14—680
—21—
Rule
956, Former Permits, which was formerly Rule
908,
was amended to add a Subsection B, which specifies that no
Construction or Operating Permit issued by the Agency or its
predecessor can fulfill the requirements of obtaining an
NPDES Permit under Section 39(b)
of the Act.
Rule
957, Applications
-
Contents, which was formerly
Rule 911, was amended to require tnat plans and specifications
accompanying a permit application be prepared by an Illinois
Registered Professional Engineer when required by the provisions
of the Illinois Professional Engineering Act
(Ill.
Rev.
Stat.
1971 Ch. 481/2).
Rule
958, Applications
-
Signatures and Authorizations,
which was formerly Rule 912, was amended to parallel the
signature requirements enacted in Subpart A, Rule 902(h).
Rule 959, Application
-
Registered or Certified Mail,
is the former Rule 913.
Rule 960, Applications
-
Time to Apply
Rule 961,
Applications -~ilingand Final Action by the Agency
Rule
962,
Standards for Issuance
and Rule 963, Duration of Permits Issued
Under Subpart B, are á~continuationof the former RuIles
914,
915,
921, and 922, respectively.
Rule 961(d) was changed by
deleting the requirement of certified or registered mail
when the Agency sends written notice to the applicant regarding
final action on a permit application.
A modification of
Rule 963 (b) was also made which would allow the Agency to
issue Operating Permits for a period of time shorter than
one year in circumstances set forth in the Rule
(R.
44).
In addition,
thi~ssubsection provides that Operating Permits,
issued under Rule 952 for newly constructed sewers, may
extend beyond the five year limit for all other Operating
Permits.
Rules 964, Conditions
965, Appeals from Conditions
in Permits
966, Permit No Defense and 968, Modification
of Permits, represent a continuation of the former Rules
923,
924,
925, and 941, respectively.
Rule 967,
Design, Operation and Maintenance Criteria,
which was forme~1yRule 931, was amended to allow the Agency
to adopt criteria for the design, operation, and maintenance
of pretreatment works.
Rule 969, Permit Revocation, which was formerly Rule
942, was amended by adding a Subsection B which allows the
Board to revoke a permit
issued
pursuant to Subpart B if the
permit holder is delinquent
in the payment of any charges
which may be required under Section 204(b)
of the FWPCA.
These charges would include both user charges and industrial
14—681
—22—
cost recovery charges that the permit holder may be ~ob1igated
to pay under the provisions
of the Federal law.
The Board
enacted this provision
to provide an additional enforcement
tool
to insure against delinquency in the payment by industrial
users of publicly owned or publicly regulated treatment
works.
Rule 970, Approval
of Federal Permits, which was
formerly Rule 951, was an~endedto allow the Agency to certify
~or purposes of Federal permits, other than NPDES Permits
issued by the Administrator, that the applicant is in compliance
with the appropriate provisions of the Act and Chapter
3,
or
has been granted a variance from the provisions of the Act
and Chapter
3,
or
is
in compliance with the terms and conditions
of an NPDES Permit, including interim dates within a schedules
compliance.
Rule 972, Effective Date,was enacted to set an effective
date for Subpart B of Part IX as the date upon which the
Regulations were filed with the Secretary of State on an
emergency basis1
The Regulations were filed on October 12,
1974.
These NPDES Regulations together with the amended
Act provide a workable NPDES Permit system that can be approved
by the U.S.
EPA.
By adopting these Regulations,
the Board
has fulfilled the legislative mandate to avoid a dual permit
system.
Once Illinois has been delegated the NPDES Permit
authority
(and during the interim while Rules 952 and 953
suspend the Operating Permit requirements), permit applicants
will be able to file one application for an NPDES Permit
that will comply with both state and federal requirements.
This
will result in significant cost savings to permit applicants
and to the State.
For these reasons the Board adopted the
NPDES Regulations.
I,
Christan L. Moffett, Clerk of the Illinois Pollution~ontrol
Board
hereb
certify the above Opinion was adopted on the _______day
of _______________________,
1974 by
a vote of
~_ø
Christan L.
Moffett,,’~,ierk
Illinois Pollution c~ontrolBoard
14—682
