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September 7,
1995
IN THE MATTER OF:
)
SPECIAL WASTE HAULING
)
R95-11
VEHICLE NUMBERS: AMENDMENT TO
)
(Rulemaking -Land)
35 ILL. ADM. CODE 809.401.
)
Proposed Rule.
First Notice.
OPINION
AND
ORDER OF THE BOARD
(by
C.A. Manning):
This matter comes before the Board on our own motion to
amend the Board’s “Vehicle Numbers” provision
of the Special
Waste Hauling regulations,
35
Ill. Adm. Code Part 809.
We
initiated this rulemaking on March 16,
1995 at the request of the
Association of Waste Hazardous Materials Transporters
(AWHMT).
This rulemaking proposes to amend Section 809.401 by deleting the
current provision found at that section and replacing it with new
language which would allow
owner/operators
of vehicles that
transport special waste to maintain the special waste hauling
permit issued by the Illinois Environmental Protection Agency
(Agency) within the vehicle, rather than to require that a permit
number be displayed on the vehicle’s exterior.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et
seq.
(1992)).
The Board is charged therein to “determine, define and implement
the environmental control standards applicable in the State of
Illinois
(Section 5/5(b)).
More generally, the Board’s
rulemaking charge is based on the system of checks and balances
integral to Illinois environmental governance:
The Board bears
responsibility for the rulemaking and principal adjudicatory
functions; the Agency has primary responsibility for
administration of the Act and the Board’s regulations,
including
today’s proposed regulation.
By today’s action, the Board
is adopting the proposed
amendments for the purpose of first notice, pursuant to the
Illinois Administrative Procedure Act
(5 ILCS 100/1-1 et seq.
(1994)).
Publication in the
Illinois Register
will follow
today’s action, whereupon a 45—day public comment period will
begin during which interested persons may file additional public
comment with the Board.
PROCEDURAL HISTORY
AND
BACKGROUND
The Board received the request to open this docket and
initiate this rulemaking by letter from the AWHMT on February 22,
1995.
In that letter,
the AWHMT explained that Illinois’ current
rule on special waste hauler markings was potentially subject to
a preemption challenge before U.S. DOT because it was
inconsistent with federal marking requirements.
AWHMT also
offered specific regulatory language which had been drafted in
consultation with the Agency, and additionally, the AWHMT
indicated the willingness to testify at hearings before the
Board.
On March
16,
1995,
the Board opened this rulemaking
docket and authorized at least two hearings on the proposed
regulatory change as the rule would be one or general
applicability.
In our March
16, 1995 order, while we determined
that we would not first notice the proposed rule until such time
as the Board held hearings in this matter and provided an
opportunity for public comment from the AWHMT and the Agency, we
did set forth the proposed regulatory language.
Accordingly, two public hearings were held in this
rulettaking docket before hearing officer Musette H. Vogel in
Chicago on June 7,
1995 and in Springfield on June 21,
1995.
The
AWHMT presented the pre-filed testimony of Cynthia Hilton, the
Executive Director of AWHMT, which was marked as Exhibit No.
1
and additionally, the Agency offered the pre-filed testimony of
Michael
F. Nechvatal, Manager
of
the
Solid
Waste
Management
Section which was entered as if read and marked as Exhibit No.
2.
During the course of the hearing, the Agency offered
clarifications to the proposed language with which the AWHMT
agreed.
All testimony supports the adoption of the language as
set forth in the Board’s March
16,
1995 order and as amended by
the Agency’s testimony.
A public comment period was established at the hearing which
expired on July 15,
1995.
The Board received no public comments
other than the original February 22,
1995 letter from the AWHMT
which the Board has marked as public comment No.
1.
TECHNICAL
AND
ECONOMIC JUSTIFICATION
The Hazardous Materials Transportation Act
(HMTA) was
substantively amended in 1990 to provide the U.S. Department of
Transportation binding, preemptive authority over duplicative and
inconsistent non-federal rules impacting the transportation of
hazardous materials including hazardous wastes.
(Hilton Test.,
Exh.#1 at
1;
49 U.S.C Sec.
5125.)
Specifically, with regard to
marking requirements, Congress provided that non—federal
requirements pertaining to marking of hazardous materials would
be preempted unless the non-federal requirement was
“substantively the same”.
Thus a non—federal requirement must
“conform in every significant respect to the federal requirement.
Editorial and other similar de minimis changes are permitted.”
(Id.
at 2, citing
49 CIFIR. 107.202(d).)
Congress further
provided that non-federal requirements may be preempted by U.S.
DOT
if
the non—federal requirements, as applied or enforced,
create an obstacle to the accomplishment and execution of the
HMTA
or the hazardous materials regulations
(HMR5).
The HMR5
3
specifically provide that non-federal requirements,
including
marking requirements, that apply only to hazardous waste and that
apply differently from or in addition to the HMR5 are
inconsistent with the HNTA.
(IcY, at 2,
citing,
49 C.F.R.
171.3(c).)
In 1994, the U.S. DOT issued a preemption determination
concerning hazardous materials marking requirements in the State
of Michigan on the basis that Michigan’s statutes and regulations
were not substantively the sane as the corresponding federal
requirements and that they posed an obstacle to the
accomplishment
of
the
T4MTA.
(59 Fed.
Req.
6156,
February 9,
1994.) Both the Agency and the AWHMT agree that Michigan’s
requirements for vehicle marking are similar to that of Illinois’
marking requirements, and the similarity is such that Section
809.401 may also pose an obstacle to the accomplishment of the
IIMTh and the HMR5.
(Nechvatal Test.
Exh.
#2 at 2.)
Specifically, the Board’s current rule states;
Upon issuance of
a special waste hauling permit, the
owner and operator of any vehicle used to transport
special waste except truck tractors as defined in
Subpart A shall display a number issued by the Agency
on opposite sides of the permitted vehicle following
the words, “Licensed Special Waste Hauler:
(number)
.“
Numbers and letters shall not be less than two inches
high and shall be removable only by destruction.
Directly adjacent to said words and number,
the vehicle
owner and operator shall display a seal furnished by
the Agency which shall designate the date on which the
permit was issued.
The AWHMT believes that Illinois’ rule as currently adopted
is inconsistent with federal requirements.
The AWHMT’s support
for amending the rule to allow the permit to be carried in the
cab of the vehicle is based on several legal and technical
justifications.
Its concerns are:
1)
The size of the marking and the requirement that the
number must be on all licensed vehicles shows that its
intent is to alert the public and enforcement personnel
of risk presented by the transportation of hazardous
waste.
2) Because hazardous wastes are found in every DOT
hazard class, there is no technical justification to
distinguish the marking of vehicle transporting
hazardous waste from those transporting other types of
hazardous materials.
3) Vehicles transporting hazardous waste typically
‘1
operate in a number of jurisdictions.
To the extent
that the public and local emergency responders in other
jurisdictions are unfamiliar with Illinois’ marking,
confusion will result and safety will be undermined.
4)
Unless,
preempted or
amended by Illinois,
other
jurisdictions would have license to impose their own
unique marking requirements.
As do the Illinois
requirements, other non—federal marking requirements
that AWHMT is familiar with provide unique size and
placement standards.
No non-federal marking
requirement that
AWMHT
is aware of provide reciprocity
for the marking requirements of another jurisdiction.
The possibility exists that motor carriers could be in
situations where vehicles otherwise in compliance with
the
HMRs
would be precluded from entering jurisdictions
because the marking requirements of the jurisdiction
conflict with the marking requirements of another non—
federal jurisdiction.
5) Because of the permanent nature of the Illinois
markings, they cannot be physically removed without
great hardship when vehicles are empty or transporting
non—hazardous waste loads.
The permanent nature of the
Illinois marking requirements violates the prohibitions
in the
HNTA
and the
HMR5
against labeling or placarding
vehicles that do not contain hazardous materials.
Congress provided in the 1990 amendments that non-
federal requirements would be preempted unless
substantively the same as the federal requirements,
and also provided that “no person shall by marking or
otherwise,
represent that a hazardous material is
present in a
.
.
.inotor vehicle. .if the hazardous
materials are not present.”
(49 U.S.C.Sec.
5104(a) and
49 C.F.R. 171.2(f).)
While economic justification in this rule is more of
ancillary matter than the immediate need to address the question
of potential preemption, the AWHMT also offered testimony that
there will be an economic savings to business operations under
the proposed amendment.
The AWHMT believes that there will be
saving from less transportation disruptions and moreover,
if the
rule is amended, this paves the way for the Agency to create a
standard form, which the AWHMT and the Agency are currently
negotiating.
This form would track the vehicle and the permit
through the use of a VIN number rather than the license plate
number, which according to the
AHWTA,
will lead to less paperwork
and fewer times of having to shut down a trucking fleet to
exchange papers when the license plate changes.
The AHWTA
offered at hearing an example of New York’s tracking form.
(Tr.
at 20, Exh.
#3.)
D
AGENCY’S RECOMMENDED LANGUAGE
In the pre-filed testimony and at hearing, the Agency has
recommended a clarification to the proposed language.
The Agency
suggests that we add the concept that in addition to the vehicle
owner/operator having to disclose the special waste hauling
permit to the Agency, any representative of the State of
Illinois, or the receiving facility, the permit must also be
shown to any generator of special waste.
CONCLUSION
The Board believes that there is sufficient evidence in the
record warranting the proposal of the rule amendment to Section
809.401 as drafted by AWHMT and the Agency for first notice.
We
also accept the Agency’s recommended change and incorporate it
into our proposed rule.
The Board will again review the record
in this matter upon completion of the first notice period to
determined whether the record continues to support moving toward
final adoption.
ORDER
The Board hereby propose for first notice the following
amendment to 35 Ill.
Adm. Code Section 809.401.
The Clerk of the
Board is directed to filed this proposed rule with the Secretary
of State.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBPART G:
WASTE DISPOSAL
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER h:
SOLID WASTE AND
SPECIAL WASTE HAULING
PART 809
SPECIAL WASTE HAULING
SUBPART
A:
GENERAL
PROVISIONS
Section
809.101
Authority,
Policy and Purposes
809
•
102
Severability
209.
103
flef
initions
SUBPART
B:
SPECIAL
WASTE
HAULING
PERMITS
Section
809.201
Special Waste Hauling Permits
-
General
809.202
Applications for Special Waste Hauling Permit
-
Contents
b
809.203
Applications for Special Waste Hauling Permit
-
Signatures and Authorization
809.204
Applications for Special Waste Hauling Permit
-
Filing
and Final Action by the Agency
809.205
Special Waste Hauling Permit Conditions
809.206
special Waste Hauling Permit Revision
809.207
Transfer of Special Waste Hauling Permits
809.208
Special Waste Hauling Permit Revocation
809.209
Permit
No
Defense
809.210.
General Exemption from Special Waste Hauling Permit
Requirements
809.211
Exemptions for Special Waste Haulers
SUBPART
C:
DELIVERY
AND
ACCEPTANCE
Section
809.301
Requirements for Delivery of Special Waste to Haulers
809.302
Requirements for Acceptance of Special Waste from
Haulers
SUBPART
D:
VEHICLE NUMBERS AND SYMBOLS
Section
809.401
Vehicle Numbers
809.402
Special Waste Symbols
SUBPART E:
MANIFESTS, RECORDS AND REPORTING
Section
809.501
Manifests, Records, Access to Records,
and
Reporting
Requirements and Forms
SUBPART
F:
DURATION
OF
PERMITS
AND
TANK
NUMBERS
Section
809.601
Duration of Special Waste Hauler Permits and Tank
Numbers
SUBPART G: EMERGENCY CONTINGENCIES FOR SPILLS
Section
809.701
General Provision
SUBPART H:
EFFECTIVE DATES
Section
809.801
Compliance
Date
~1
Definitions
Disposal Methods
Rendering Innocuous by Sterilization
Rendering Innocuous by Incineration
Recordkeeping Requirements for Generators
Defense to Enforcement Action
SOURCEt
Adopted
in R76-10,
33 PCB 131,
at
3
Ill.
Reg.
13,
p.
155, effective March
31,
1979;
emergency amendment in R76—10,
39
PCB 175,
at 4 Ill.
Reg.
34,
p. 214, effective August 7,
1980 for
a maximum of 150 days; emergency amendment in R80-19,
40 PCB 159,
at 5 Ill. Reg.
270,
effective January
1,
1981 for a maximum of
150 days; amended in R77—12(B),
41 PCB 369,
at 5 Ill.
Reg.
6384,
effective May 28,
1981; amended in R80—l9,
41 PCB 459,
at 5 Ill.
Reg.
6378, effective May 31,
1981; codified in R8l—9,
53 PCB 269,
at 7 Ill. Reg.
13640; recodified in R84—5,
58 PCB 267, from
Subchapter h to Subchapter
i at 8 Ill. Reg.
13198; amended in
R89-13A at 14 Ill.
flog.
14076, effective August 15,
1990; amcndcd
in R91—8 at 16 Ill
Reg
130, effective January
1,
1992, amended
~
Section 809.401
Vehicle Numbers
Upon—issuance of
a special waste hauling permit, the owner and
operator of any vehicle used to trancport special waste except
truck tractors as defined in Subpart A shall display a number
issued by thc Agency en opposite sides of the permitted vehicle
following the words,
“Li-eenccd—-Special Waste Haulcr-~(number)
.“
Numbers and letters shall not be less than two inches high and
shall be removable only by destruction.
Directly adjacent to
caid—words and number, the vehicle owner and operator nha1-~
display a seal furnished--by--the--Agency which—shall designate the
da-te---on--which the permit was issued.
The owner and operator of any vehicle, except truck tractors as
defined
in
subpart
A1
which
is
used to transport
special. waste
shall
list
each
such
vehicle
on
the
special
waste
hauling
permit
application
upon
issuance
ot
a
special
waste
hauling permit,
809.802
Exceptions
SUBPART
I: HAZARDOUS
(INFECTIOUS)
HOSPITAL WASTE
Section
809.901
809.902
809
•
903
809.904
809. 905
809.906
Appendix A
Old Rule Numbers Referenced
AUTHORITY:
Implementing
Sections
5,
10,
13 and 22 and authorized
by
section
27
of
the
Environmental
Protection
Act
(Ill.
Rev.
Stat.
1989,
ch.
111½,pars.
1005,
1010,
1013,
1022,
and
1027).
S
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois
Pollution Control
Board, hereby certify that the ab ye
‘nion and order was
adopted on the
7V’
day of
..t2
,
1995,
by
a
vote of
7—p
~
~
Dorothy M.
941n,
Clerk
Illinois Pc4jution Control Board
