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ILLINOIS POLLUTION CONTROL BOARD

April 15, 2004

Proposed Rule. Proposal for Public Comment.

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

This identical-in-substance rulemaking proposes updating the Illinois wastewater pretreatment regulations to incorporate revisions to the federal regulations. The United States Environmental Protection Agency (USEPA) made the amendments that prompted this action during the period of July 1, 2003 through December 31, 2003. This proceeding proposes amendments to 35 Ill. Adm. Code 307 and 310.

Sections 7.2 and 13.3 of the Environmental Protection Act (Act) (415 ILCS 5/7.2 and 13.3 (2002)) require that the Board adopt regulations that are “identical in substance” to federal wastewater pretreatment regulations. These are rules adopted by the USEPA pursuant to sections 307(b), (c), and (d) and 402(b)(8) and (b)(9) of the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. §§ 1317(b), (c), and (d) and 1342(b)(8) and (b)(9) (1994)). Section 13.3 also provides that Title VII of the Act and Section 5 of the Administrative Procedure Act (APA) (5 ILCS 100/5-35 and 5-40 (2002)) do not apply to the Board’s adoption of identical-in-substance regulations. The federal wastewater pretreatment regulations are found at 40 C.F.R. 400 through 499.

The Board will cause the proposed amendments to be published in the Illinois Register and will hold the docket open to receive public comments for 45 days after the date of publication. The Board presently intends to adopt final amendments based on this proposal by July 8, 2004.

FEDERAL ACTIONS CONSIDERED IN THIS RULEMAKING

The following listing briefly summarizes the federal actions considered in this wastewater pretreatment update rulemaking:

Docket R04-18: July 1, 2003 through December 31, 2003,

Wastewater Pretreatment Amendments

USEPA amended the federal wastewater pretreatment regulations on one occasion during the period July 1, 2003 through December 31, 2003. That action is summarized below:

December 22, 2003 (68 Fed. Reg. 71014)

USEPA amended the effluent limitations and pretreatment standards for the centralized waste treatment category.

No Later Wastewater Pretreatment Amendments of Interest to Date

The Board engages in ongoing monitoring of federal actions. As of the date of this opinion and accompanying order, the Board has identified no other USEPA actions since January 1, 2004 that further amend the wastewater pretreatment rules in a way that would require immediate Board attention.

When the Board observes an action outside the nominal timeframe of a docket that would require expedited consideration in the pending docket, the Board will expedite consideration of those amendments. Federal actions that could warrant expedited consideration include those that directly affect the amendments involved in this docket, those for which compelling reasons would warrant consideration as soon as possible, and those for which the Board has received a request for expedited consideration. If the Board identifies any additional federal actions that fulfill these criteria prior to final action, the Board may include those amendments in the present update docket R04-18.

Other Federal Actions Having a Direct Impact on the Illinois Wastewater Pretreatment Regulations

In addition to the amendments to the federal wastewater pretreatment regulations, amendments to other federal regulations occasionally affect the Illinois wastewater pretreatment rules. Most notably, 35 Ill. Adm. Code 310.107 includes incorporations of federal regulations by reference. The incorporated regulations include segments of various USEPA environmental regulations, most notably 40 C.F.R. 136, which sets forth methods for analysis of water and wastewater.

As of the date of this proposal for public comment, the Board found two sets of amendments to the incorporated materials. Those amendments are listed as follows:

July 21, 2003 (68 Fed. Reg. 43272)

USEPA approved new methods for microbiological analysis of water and wastewater in 40 C.F.R. 136.

September 19, 2003 (68 Fed. Reg. 54934)

USEPA corrected its July 21, 2003 approval of new methods for microbiological analysis of water and wastewater.

Summary Listing of the Federal Actions Forming the Basis of the Board’s Actions in These Consolidated Dockets

Based on the foregoing, the federal actions that form the basis for Board action in this update docket are the following, listed in chronological order:

PUBLIC COMMENTS

The Board will receive public comments on this proposal for a period of 45 days following its publication in the Illinois Register. After that time, the Board will immediately consider adoption of the amendments, making any necessary changes in response to public comments.

TIMETABLE FOR COMPLETION OF THIS RULEMAKING

Under Section 7.2 of the Act (415 ILCS 5/7.2(b) (2002)), the Board must complete this rulemaking within one year of the date of the earliest set of federal amendments considered in this docket. USEPA adopted the earliest federal amendments that required Board attention on July 21, 2003, so that the deadline for Board adoption of these amendments is July 21, 2004. The Board scheduled adoption of this proposal for public comment for the Board meeting of April 15, 2004, to allow for timely adoption of the rule by July 8, 2004. This will allow filing of these amendments before the July 21, 2004 deadline.

Considering the proposal of these amendments on this date, the Board projects the following will occur in the progress towards completion of these amendments:

DISCUSSION

The following discussion begins with a description of the various deviations the Board makes from the literal text of federal regulations in adopting identical-in-substance rules. It is followed by a discussion of the amendments and actions undertaken in direct response to the federal actions involved in this proceeding. This first series of discussions is organized by federal subject matter, generally appearing in chronological order of the relevant Federal Register notices involved. Finally, this discussion closes with a description of the amendments and actions that are not directly derived from the federal actions.

General Revisions and Deviations from the Federal Text

In incorporating the federal rules into the Illinois system, some deviation from the federal text is unavoidable. This deviation arises primarily through differences between the federal and state regulatory structure and systems. Some deviation also arises through errors in and problems with the federal text itself. The Board conforms the federal text to the Illinois rules and regulatory scheme and corrects errors that we see in the text as we engage in these routine update rulemakings.

In addition to the amendments derived from federal amendments, the Board often finds it necessary to alter the text of various passages of the existing rules as provisions are opened for update in response to USEPA actions. This involves correcting deficiencies, clarifying provisions, and making other changes that are necessary to establish a clear set of rules that closely parallel the corresponding federal requirements within the codification scheme of the Illinois Administrative Code.

In the course of completing the two previous updates to the wastewater pretreatment regulations of 35 Ill. Adm. Code 307 and 310, the Board extensively reviewed and corrected the text of the rules. See Wastewater Pretreatment Update, USEPA Amendments (July 1, 2002 through December 31, 2002), R03-13 (Sept. 4, 2003) and Wastewater Pretreatment Update, USEPA Amendments (January 1, 2003 through June 30, 2003), R04-1 (Jan. 22, 2004). As a result, only two additional corrective amendments were found necessary at this time. The two amendments are limited to updating the version of federal statutes incorporated by reference in Section 310.107. Those two corrective amendments are listed in the table on page 7 of this opinion.

Discussion of the Particular Federal Actions Involved in This Docket

Amended Standards for the Centralized Waste Treatment Point Source Category--Sections 307.4701 through 307.4704

The USEPA action of December 22, 2003 (68 Fed. Reg. 71014), related to discharges from facilities in the centralized waste treatment point source category. USEPA deleted certain effluent limitations and pretreatment standards. USEPA deleted the selenium limitations and standards from certain segments of 40 C.F.R. 437, Subpart A, which applies to the metals treatment and recovery subcategory. USEPA further deleted the barium, molybdenum, antimony, and titanium limitations and standards from certain segments of 40 C.F.R. 437, Subpart B, which applies to the oils treatment and recovery subcategory. USEPA deleted the molybdenum, antimony, aniline, and 2,3-dicholoroaniline limitations and standards from certain segments of 40 C.F.R. 437, Subpart C, which applies to the organics treatment and recovery subcategory. Finally, USEPA amended segments of 40 C.F.R. 437, Subpart D, which applies to the multiple wastestream subcategory, to reflect the amendments to the amendments to Subparts A through C. Other USEPA amendments related only to direct dischargers, and not to wastewater pretreatment.

The Board proposes to incorporate the wastewater pretreatment segments of the federal centralized waste treatment point source category amendments without deviation from the corresponding federal text. The structure of the Illinois wastewater pretreatment regulations is such that the primary means of incorporating federal requirements is by use of incorporation of the federal rules by reference. Generally, the Illinois regulations set forth the text of shorter general provisions, like applicability statements, and incorporate the more lengthy federal substantive requirements by reference. Following this general pattern, incorporation of the December 22, 2003 federal amendments appears to require the following amendments to the Illinois rules:

The Board requests public comment on the proposed incorporation of the December 22, 2003 federal amendments affecting the centralized waste treatment point source category.

Amended Methods for Analysis of Biological Pollutants in Water--Section 310.107

On July 21, 2003 (68 Fed. Reg. 43272), USEPA adopted amendments to the methods for analysis of water and wastewater. The amendments incorporated new methods for analysis of microbiological contaminants: Escherichia coli, Cryptosporidium, and Giardia in fresh water and for enterococci in marine waters. The methods are published by a variety of sources, but all are listed in 40 C.F.R. 136.3. USEPA corrected the July 21, 2003 amendments on September 19, 2003 (68 Fed. Reg. 54934).

The Board proposes to incorporate the federal July 21, 2003 amendments and September 19, 2003 corrections to 40 C.F.R. 136.3. This is done by updating the incorporation of 40 C.F.R. 136 by reference in Section 307.107(b) to included the July 21, 2003 amendments and the September 19, 2003 corrections. The Board updates the incorporation despite uncertainty that any of the new methods relate to implementation of the federal wastewater pretreatment standards.

The Board requests public comment on the proposed incorporation of the federal July 21, 2003 amendments and September 19, 2003 corrections to 40 C.F.R. 136.3.

Discussion of Corrective Amendments

The Board has traditionally used the occasion of these identical-in-substance updates to correct segments of the base text of the Illinois regulations. The Board has added to this proceeding two corrective amendments to sections of the rules not affected by the underlying federal amendments. These corrections are exclusively non-substantive in effect.

Review of the references in Section 310.107(c) to federal statutes revealed that two are outdated. The most recent version of the United States Code available was published in 2000. The citations to the federal Clean Water Act and the Resource Conservation and Recovery Act referred to the 1994 edition of the Code. The examination further revealed the existence of amendments to the Clean Water Act dated November 7, 2000, which post-date the 2000 version of the Code. The Board has amended the incorporations of these two federal statutes by reference to reflect these later editions of the two statutes. These amendments are listed in the table that appears in the following segment of this opinion.

The Board requests public comment on the proposed update to the incorporations of the federal Clean Water Act and the Resource Conservation and Recovery Act by reference.

Discussion of Miscellaneous Housekeeping Amendments

The table below lists corrections and amendments that are not based on current federal amendments. The table (beginning immediately below) includes corrections and clarifications that the Board made in the base text involved in this proposal.

Table:

Board Housekeeping Amendments

ORDER

The Board proposes the following amendments for public comment:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 307

SEWER DISCHARGE CRITERIA

SUBPART A: GENERAL PROVISIONS

Section

SUBPART B: GENERAL AND SPECIFIC PRETREATMENT REQUIREMENTS

Section

SUBPART F: DAIRY PRODUCTS PROCESSING

Section

SUBPART G: GRAIN MILLS

Section

SUBPART H: CANNED AND PRESERVED FRUITS AND VEGETABLES

Section

SUBPART I: CANNED AND PRESERVED SEAFOOD

Section

SUBPART J: SUGAR PROCESSING

Section

SUBPART K: TEXTILE MILLS

Section

SUBPART L: CEMENT MANUFACTURING

Section

SUBPART M: CONCENTRATED ANIMAL FEEDING OPERATIONS

Section

SUBPART N: ELECTROPLATING

Section

SUBPART O: ORGANIC CHEMICALS, PLASTICS, AND SYNTHETIC FIBERS

Section

SUBPART P: INORGANIC CHEMICALS MANUFACTURING

Section

SUBPART R: SOAP AND DETERGENTS

Section

SUBPART S: FERTILIZER MANUFACTURING

Section

SUBPART T: PETROLEUM REFINING

Section

SUBPART U: IRON AND STEEL MANUFACTURING

Section

307.3013  Other Operations

SUBPART V: NONFERROUS METALS MANUFACTURING

Section

SUBPART X: STEAM ELECTRIC POWER GENERATING

Section

SUBPART Y: FERROALLOY MANUFACTURING

Section

SUBPART Z: LEATHER TANNING AND FINISHING

Section

SUBPART BA: GLASS MANUFACTURING

Section

SUBPART BB: ASBESTOS MANUFACTURING

Section

SUBPART BC: RUBBER MANUFACTURING

Section

Section

SUBPART BE: PULP, PAPER, AND PAPERBOARD

Section

SUBPART BF: BUILDERS’ PAPER AND BOARD MILLS

Section

SUBPART BG: MEAT PRODUCTS

Section

SUBPART BH: METAL FINISHING

Section

SUBPART BL: CENTRALIZED WASTE TREATMENT

Section

SUBPART BN: PHARMACEUTICAL MANUFACTURING

Section

SUBPART BQ: TRANSPORTATION EQUIPMENT CLEANING

Section

SUBPART BR: PAVING AND ROOFING MATERIALS (TARS AND ASPHALT)

Section

SUBPART BS: WASTE COMBUSTORS

Section

SUBPART BT: LANDFILLS

Section

SUBPART BU: PAINT FORMULATING

Section

SUBPART BV: INK FORMULATING

Section

SUBPART CD: PESTICIDE CHEMICALS

Section

SUBPART CG: CARBON BLACK MANUFACTURING

Section

SUBPART CJ: BATTERY MANUFACTURING

Section

SUBPART CL: PLASTICS MOLDING AND FORMING

Section

SUBPART CM: METAL MOLDING AND CASTING

Section

SUBPART CN: COIL COATING

Section

SUBPART CO: PORCELAIN ENAMELING

Section

SUBPART CP: ALUMINUM FORMING

Section

SUBPART CQ: COPPER FORMING

Section

SUBPART CR: ELECTRICAL AND ELECTRONIC COMPONENTS

Section

SUBPART CT: NONFERROUS METALS FORMING AND METAL POWDERS

Section

AUTHORITY: Implementing Sections 7.2, 13, and 13.3 and authorized by Section 27 of the Environmental Protection Act [415 ILCS 5/7.2, 13, 13.3, and 27].

SOURCE: Adopted in R70-5, at 1 PCB 426, March 31, 1971; amended in R71-14, at 4 PCB 3, March 7, 1972; amended in R74-3, at 19 PCB 182, October 30, 1975; amended in R74-15, 16, at 31 PCB 405, at 2 Ill. Reg. 44, p. 151, effective November 2, 1978; amended in R76-17, at 31 PCB 713, at 2 Ill. Reg. 45, p. 101, effective November 5, 1978; amended in R76-21, at 44 PCB 203, at 6 Ill. Reg. 563, effective December 24, 1981; codified at 6 Ill. Reg. 7818; amended in R82-5, 10, at 54 PCB 411, at 8 Ill. Reg. 1625, effective January 18, 1984; amended in R86-44 at 12 Ill. Reg. 2592, effective January 13, 1988; amended in R88-11 at 12 Ill. Reg. 13094, effective July 29, 1988; amended in R88-18 at 13 Ill. Reg. 1794, effective January 31, 1989; amended in R89-3 at 13 Ill. Reg. 19288, effective November 17, 1989; amended in R88-9 at 14 Ill. Reg. 3100, effective February 20, 1990; amended in R89-12 at 14 Ill. Reg. 7620, effective May 8, 1990; amended in R91-5 at 16 Ill. Reg. 7377, effective April 27, 1992; amended in R93-2 at 17 Ill. Reg. 19483, effective October 29, 1993; amended in R94-10 at 19 Ill. Reg. 9142, effective June 23, 1995; amended in R95-22 at 20 Ill. Reg. 5549, effective April 1, 1996; amended in R97-23 at 21 Ill. Reg. 11930, effective August 12, 1997; amended in R99-4 at 23 Ill. Reg. 4413, effective March 31, 1999; amended in R99-17 at 23 Ill. Reg. 8421, effective July 12, 1999; amended in R00-15 at 24 Ill. Reg. 11640, effective July 24, 2000; amended in R01-5 at 25 Ill. Reg. 1735, effective January 11, 2001; amended in R01-25 at 25 Ill. Reg. 10867, effective August 14, 2001; amended in R03-13 at 27 Ill. Reg. 15095, effective September 10, 2003; amended in R04-1 at 28 Ill. Reg. 3076, effective February 6, 2004; amended in R04-18 at 28 Ill. Reg. ________, effective ______________________.

SUBPART BL: CENTRALIZED WASTE TREATMENT

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 310

PRETREATMENT PROGRAMS

SUBPART A: GENERAL PROVISIONS

Section

SUBPART B: PRETREATMENT STANDARDS

Section

SUBPART C: REMOVAL CREDITS

Section

SUBPART D: PRETREATMENT PERMITS

Section

SUBPART E: POTW PRETREATMENT PROGRAMS

Section

SUBPART F: REPORTING REQUIREMENTS

Section

SUBPART G: FUNDAMENTALLY DIFFERENT FACTORS

Section

SUBPART H: ADJUSTMENTS FOR POLLUTANTS IN INTAKE

Section

SUBPART I: UPSETS

Section

SUBPART J: BYPASS

Section

SUBPART K: MODIFICATION OF POTW PRETREATMENT PROGRAMS

Section

SUBPART L: FEDERAL PROJECT XL AGREEMENTS

Section

AUTHORITY: Implementing and authorized by Sections 7.2, 13, 13.3, and 27 of the Environmental Protection Act [415 ILCS 5/7.2, 13, 13.3, and 27].

SOURCE: Adopted in R86-44 at 12 Ill. Reg. 2502, effective January 13, 1988; amended in R88-18 at 13 Ill. Reg. 2463, effective January 31, 1989; amended in R89-3 at 13 Ill. Reg. 19243, effective November 27, 1989; amended in R89-12 at 14 Ill. Reg. 7608, effective May 8, 1990; amended in R91-5 at 16 Ill. Reg. 7346, effective April 27, 1992; amended in R95-22 at 20 Ill. Reg. 5533, effective April 1, 1996; amended in R96-12 at 20 Ill. Reg. 10671, effective July 24, 1996; amended in R97-7 at 21 Ill. Reg. 5163, effective April 10, 1997; amended in R98-23 at 22 Ill. Reg. 11465, effective June 22, 1998; amended in R99-17 at 23 Ill. Reg. 8412, effective July 12, 1999; amended in R00-7 at 24 Ill. Reg. 2372, effective January 26, 2000; amended in R00-15 at 24 Ill. Reg. 11633, effective July 24, 2000; amended in R01-5 at 25 Ill. Reg. 1322, effective January 11, 2001; amended in R01-25 at 25 Ill. Reg. 10860, effective August 14, 2001; amended in R02-3 at 26 Ill. Reg. 4008, effective February 28, 2002; amended in R02-9 at 26 Ill. Reg. 4653, effective March 18, 2002; amended in R03-13 at 27 Ill. Reg. 15137, effective September 10, 2003; amended in R04-1 at 28 Ill. Reg. 3390, effective February 6, 2004 amended in R04-18 at 28 Ill. Reg. ________, effective ______________________.

SUBPART A: GENERAL PROVISIONS

40 CFR 2.302 (2003)

40 CFR 25 (2003)

40 CFR 122, Appendix D, Tables II and III (2003)

40 CFR 128.140(b) (1977)

40 CFR 136 (2002) (2003), as amended at 67 Fed. Reg. 65220 (October 23, 2002), 67 Fed. Reg. 65876 (October 29, 2002), and 67 Fed. Reg. 69952 (November 19, 2002) 68 Fed. Reg. 43272 (July 21, 2003) and 68 Fed. Reg. 54934 (September 19, 2003).

40 CFR 403 (2003)

40 CFR 403, Appendix D (2003)

(Source: Amended at 28 Ill. Reg. ________, effective ______________________)

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above opinion and order on April 15, 2004, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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