ILLINOIS POLLUTION CONTROL BOARD
May 1, 2008
IN THE MATTER OF:
PROPOSED AMENDMENTS TO THE
BOARD’S SPECIAL WASTE
REGULATIONS CONCERNING
USED OIL, 35 ILL. ADM. CODE 808, 809
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R06-20
(Rulemaking - Land)
Proposed Rule. First Notice.
OPINION AND ORDER OF THE BOARD (by A.S. Moore)
Today the Board proposes amendments to the special waste regulations (35 Ill. Adm.
Code 808, 809) for first-notice publication in the
Illinois Register
. NORA, An Association of
Responsible Recyclers (NORA), formerly known as the National Oil Recycling Association,
initiated this rulemaking by filing a proposal with the Board. After conducting two public
hearings and considering the entire record, the Board adopts for first notice the amendments
described below in this opinion and order. Publication of these proposed amendments in the
Illinois Register
will begin a 45-day public comment period.
In this opinion, the Board first provides a summary of today’s actions, followed by the
procedural history of this rulemaking. Next, the Board summarizes NORA’s proposal and
subsequent filings by the participants in this proceeding before discussing the issues raised in
them. The order following this opinion then sets forth the amendments for first-notice
publication.
SUMMARY OF BOARD ACTIONS
First, the Board adopts first-notice amendments intended to exempt from the manifesting
requirements of Parts 808 and 809 (35 Ill. Adm. Code 808, 809) used oil that is defined by and
managed in accordance with Part 739 (35 Ill. Adm. Code 739).
Second, the Board adopts first-notice amendments intended to exempt from the special
waste hauling permit requirements of Parts 808 and 809 (35 Ill. Adm. Code 808, 809) shipments
that contain no special waste other than used oil that is defined by and managed in accordance
with Part 739 (35 Ill. Adm. Code 739).
Third, the Board specifically seeks from the participants comment on whether to amend
Part 739 to require in used oil tracking documents, information that would allow those
documents to satisfy other informational requirements such as manifests under Parts 808 and
809. Additionally, in the event that a participant wishes to amend Part 739 in this manner, the
Board seeks comment in the form of regulatory language that might be proposed to effect such
an amendment. Specifically, the Board seeks to determine whether the record in this proceeding
may be developed in a way that supports adoption of a proposal similar to that sought by NORA
2
while addressing the concerns of the Illinois Environmental Protection Agency (Agency or
IEPA).
PROCEDURAL MATTERS
Procedural History
NORA filed its proposed rule and statement of reasons (Statement) on December 13,
2005. Also on December 13, 2005, NORA filed a motion to waive signature requirements.
See
415 ILCS 5/28(a) (2006); 35 Ill. Adm. Code 102.202(g) (requiring petition signed by at least 200
persons). In an order dated January 5, 2006, the Board accepted NORA’s proposal for hearing
and granted NORA’s motion to waive the signature requirement. Also in that order, the Board
directed NORA to address in writing three identified informational deficiencies in its proposed
rule and statement of reasons. On May 1, 2006, the Board received the comments of the Agency
(PC #1). Pursuant to a hearing officer order, NORA on May 16, 2006 filed its supplemental
statement of reasons (Supp. Statement) and
errata
sheet #1 (
Errata
1).
The Board held two public hearings in this rulemaking. The first hearing took place in
Springfield on May 25, 2006 (Tr.1). On May 16, 2006, four persons prefiled testimony on
behalf of NORA for the first hearing: (1) Christopher Harris (Harris Prefiled Test.), General
Counsel to NORA; (2) Victoria Custer (Custer Prefiled Test.), Vice President of Southwest Oil, a
director on NORA’s board, and Chair of NORA’s Illinois Working Group; (3) Mike Lenz (Lenz
Prefiled Test.), an Environmental Compliance Specialist for Future Environmental; and (4) Greg
Ray (Ray Prefiled Test.), Vice President of Business Management for Heritage-Crystal Clean,
LLC. Also on May 16, 2006, for the first hearing, Theodore J. Dragovich, manager of the
Disposal Alternatives Unit in the Agency’s Bureau of Land Permit Section, prefiled testimony
(Dragovich Prefiled Test.) on behalf of the Agency. Mr. Harris, Ms. Custer, Mr. Lenz, Mr. Ray,
and Mr. Dragovich each testified at the first hearing.
In an order dated June 1, 2006, the hearing officer noted that the Agency sought to
respond to questions raised at the first hearing by preparing a response for the second hearing. In
that order, the hearing officer directed the Agency to file that response with the Board in the
form of a public comment by June 15, 2006. On that date, the Agency filed Additional
Testimony of Theodore J. Dragovich (Dragovich Addl. Test.) and the testimony of Christopher
N. Cahnovsky, Regional Manager of the Collinsville office of the Agency’s Bureau of Land
(Cahnovsky Prefiled Test.).
The second hearing took place on Chicago on June 29, 2006 (Tr.2). Four persons
testified on behalf of NORA at the second hearing: (1) Catherine A. McCord, Vice President of
Environment, Health, and Safety for Crystal Clean; (2) Dan R. Appelt of Safety-Kleen; (3) Ms.
Custer; and (4) Mr. Lenz. In addition, Mr. Dragovich and Mr. Cahnovsky testified on behalf of
the Agency.
The hearing officer entered the following 18 hearing exhibits into the record:
3
Exhibit 1:
Electronic Code of Federal Regulations 40 C.F.R. 279.1 – 279.82 (Standards for
the Management of Used Oil)
Exhibit 2
:
35 Ill. Adm. Code 739.100 – 739.182 (Standards for the Management of Used
Oil)
Exhibit 3
:
35 Ill. Adm. Code 808.100 – 808.600 (Special Waste Classifications)
Exhibit 4
:
35 Ill. Adm. Code 809.101 – 809.921 (Nonhazardous Special Waste Hauling and
the Uniform Program)
Exhibit 5
:
Testimony of Christopher Harris
Exhibit 6
:
Testimony of Victoria Custer
Exhibit 7
:
Testimony of Mike Lenz
Exhibit 8:
Testimony of Gregory Ray
Exhibit 9:
Supplemental Statement of Reasons and
Errata
Sheet #1
Exhibit 10:
Testimony of Theodore J. Dragovich
Exhibit 11:
Additional Testimony of Theodore J. Dragovich and Christopher N. Cahnovsky
Exhibit 12:
Safety-Kleen Oil Recovery Service/Sales Acknowledgement
Exhibit 13:
Crystal Clean Work Order (dated January 18, 2004)
Exhibit 14:
Future Environmental, Inc. Straight Bill of Lading
Exhibit 15
:
Testimony of Catherine McCord on Behalf of NORA
Exhibit 16:
Additional Testimony of Dan Appelt, Safety-Kleen Systems, Inc.
Exhibit 17:
Safety-Kleen Tracking Document (dated May 22, 2006)
Exhibit 18
:
Safety-Kleen Tracking Document (dated May 23, 2006)
At the second hearing, the participants agreed to a deadline of August 9, 2006 for filing
post-hearing comments. On July 18, 2006, the hearing officer issued an order directing the
participants to file post-hearing comments by that date. On August 7, 2006, the Agency filed a
motion for extension of time in which to file comments. Also on August 7, 2006, the hearing
officer issued an order granted the Agency’s motion and extended the deadline for filing post-
hearing comments to August 16, 2006. On August 11, 2006, NORA filed an oral motion to
extend the deadline for filing post-hearing comments. Also on August 11, 2006, the hearing
4
officer issued an order granting NORA’s motion and extending the deadline for filing post-
hearing comments to September 1, 2006. On September 1, 2006, the Agency filed its post-
hearing comments (PC #33) and NORA filed its post-hearing brief (PC #34).
In an e-mail on September 6, 2006 (PC #35), the Agency sought to correct two technical
errors in citations to the Federal Register in its post-hearing comments. Responding by e-mail on
September 7, 2006 (PC #36), NORA indicated that it did not object to those corrections but
stated that it wished to respond to arguments that it believed the Agency made for the first time
in its post-hearing comments. In an order dated September 8, 2006, the hearing officer directed
the Agency to file correction of its post-hearing comments by September 21, 2006. On
September 18, 2006, the Agency filed its corrections to its post hearing comments (PC #38).
Also in the order dated September 8, 2006, the hearing officer allowed any participant to file a
response to the post-hearing comments filed either by the Agency or by NORA on or before
Monday, October 9, 2006. On October 10, 2006, NORA timely filed its response to the
Agency’s post-hearing comments (PC #39), and the Agency timely filed its comments in
response to NORA’s post-hearing brief (PC #40). The Agency’s response elicited two additional
comments specifically addressing the Agency’s arguments: one from Mr. Lenz (PC #41) and
one from Mr. Ray (PC #42).
On November 5, 2007, NORA filed a “Rule Proposal Amendment” (Prop). NORA’s
filing included an
Errata
Sheet #2, which proposed an amendment to 35 Ill. Adm. Code 809.101.
Prop. at 5. NORA sought to withdraw its original proposal and to offer in its place the language
contained in
Errata
Sheet #2.
Id
. On November 19, 2007, the Agency filed a motion for
extension to December 3, 2007, of the time in which to file a response to the rule proposal
amendment (Mot. Ext.). On December 3, 2007, the Agency filed its response to the rule
proposal amendment (Resp.).
In addition to those comments noted above, the Board received public comments in this
proceeding from the following 31 persons:
PC #2
Shaunti Stalluth, Industrial Water Services
PC #3
Lee J. Plankis; Senior Vice President of Operations, RS Used Oil Services, Inc.
PC #4
Rick Shipley; National Sales Manager, RS Used Oil Services, Inc.
PC #5
Ronald A. Winkle; President, RS Used Oil Services
PC #6
Dave Brown; President, United Waste Water Services, USI
PC #7
Ronald J. Plankis; Vice President, Consulting Services, Profit Consultants, Ltd.
PC # 8
Ken Petruck; Vice President, Operations, Excel Environmental, Inc.
PC # 9
Catherine A. McCord; Vice-President, Environment, Health, and Safety, Crystal
Clean
5
PC #10
Michael Lenz; Environmental Compliance Specialist, Future Environmental
PC #11
Lin Longshore; Senior Vice-President, Environment, Health, and Safety, Safety-
Kleen
PC #12
Jeffrey M. Posick, Waste Alternatives and Consulting, LLC
PC #13
John A. Oxford; Vice President of Compliance, Fuel Processors, Inc.
PC #14
John A. Oxford; Vice President of Compliance, Energy & Material Recovery, Inc.
PC #15
John A. Oxford; Vice President of Compliance, Industrial Oil, Inc.
PC #16
David Osbourne; Manager of Sales and Customer Service, Consolidated
Recycling Co., Inc.
PC #17
Ken Reif, Valley Environmental Service
PC #18
Gary L. Gunderson; President, Recycle Technologies, Inc.
PC #19
Donald R. Kleine; Owner, Vortex Recycling
PC #20
Garry R. Allen
PC #21
Matthew Usher, Usher Oil Company
PC #22
Richard A. Kalin; Vice President, Noble Oil Services, Inc.
PC #23
Deanne Hartman; President/CEO, Approved Remediation and Recycling of Oil
Waste, Inc.
PC #24
Victoria M. Custer; Vice President, Southwest Oil, Inc.
PC #25
Steve Rundell; President, Solvent Systems International, Inc.
PC #26
W.L. Briggs; President, Oil Re-Refining Company, Inc.
PC #27
Benjamin P. Cowart; President of General Partner, Vortex Energy, L.P.
PC #28
Scott D. Parker; Executive Director, NORA
PC #29
Laura M. Krist; Territory Manager, Jacobus Environmental Services
PC #30
Brett Morton; Senior Environmental Engineer/Product Stewardship, Shell
Lubricants
6
PC #31
Chris McNeil; Compliance Officer, Aaron Oil Company, Inc.
PC #32
John H. Datka; General Manager, Moore Oil Environmental Services, LLC
PC #41
Michael Lenz, Environmental Compliance Specialist, Future Environmental
PC #42
Gregory Ray, Vice President of Business Management, Heritage-Crystal Clean,
LLC
Many of these comments claim “that the current manifesting requirements in Illinois for used oil
and items regulated as used oil are unnecessary and burdensome.”
E.g.
, PC #2. As an example,
Catherine A. McCord of Crystal Clean filed PC #9, which states that “[t]he use of hazardous
waste manifests for used oil does not promote additional recycling and does not provide
additional environmental protection or integrity of the regulatory framework.” Michael Lenz of
Future Environmental filed PC #10, which claims that the Agency’s position is “unnecessary,
goes against the intent of the used oil regulations, would strongly discourage Illinois-based
recyclers from recycling certain used oil waste streams, and would be very burdensome and put
the Illinois-based recyclers at a severe disadvantage compared to their out-of-state competitors.”
Each of these public comments supports the proposal filed by NORA and requests that the
Board adopt the proposed language.
E.g.
, PC #2.
As required by Section 27(b) of the Act (415 ILCS 5/27(b) (2006)), the Board requested
that the Department of Commerce and Economic Opportunity (DCEO) conduct an economic
impact study (EcIS) of this rulemaking proposal. In a letter dated February 22, 2006, the Board
requested that DCEO determine whether it would conduct an EcIS concerning this rulemaking
proposal. DCEO did not respond to the Board’s request. At the second hearing, the hearing
officer noted the Board’s request to DCEO for an EcIS and the lack of a response. Tr.2 at 125-
26. Although the hearing officer afforded those present the opportunity to testify regarding the
Board’s request and the lack of a response, no participant offered testimony with regard to that
issue.
See
Tr.2 at 126.
Filing Public Comments
First-notice publication in the
Illinois Register
of these proposed rule changes will start a
period of at least 45 days during which anyone may file a public comment with the Board,
regardless of whether the person has already filed a public comment. The Board encourages
persons to file public comments on these proposed amendments. The docket number for this
rulemaking, R06-20, should be indicated on the public comment.
Public comments must be filed with the Clerk of the Board. Public comments may be
filed at the following address:
Pollution Control Board
John T. Therriault, Assistant Clerk
James R. Thompson Center
7
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
In addition, public comments may be filed electronically through COOL at www.ipcb.state.il.us
.
Any questions about electronic filing through COOL should be directed to the Clerk’s Office at
(312) 814-3629.
Please note that all filings with the Clerk of the Board must be served on the hearing
officer and on those persons on the Service List for this rulemaking. Before filing any document
with the Clerk, please check with the hearing officer or the Clerk’s Office to verify the most
recent version of the Service List.
PRELIMINARY MATTER
On November 19, 2007, the Agency filed a motion for extension of time in which to file
a response to NORA’s November 5, 2007, proposed rule amendment. In that motion, the
Agency stated that NORA’s Rule Proposal Amendment “was not styled as a motion.” Mot. Ext.
at 1. Noting that motions trigger a 14-day response deadline, the Agency stated that it had only
recently learned that the Board intended to construe NORA’s filing as a motion.
Id
. Because
that 14-day deadline fell during the week of a holiday, the Agency indicated that staff time off
and vacation prevented it from having sufficient time to respond adequately.
Id
. The Agency
requested a two-week extension to December 3, 2007, for filing its response.
The Board’s procedural rules provide that, “[w]ithin 14 days after service of a motion, a
party may file a response to the motion. If no response is filed, the party will be deemed to have
waived objection to the granting of the motion, but the waiver of objection does not bind the
Board . . . in its disposition of the motion.” 35 Ill. Adm. Code 101.500(d). In the absence of a
response from NORA or any other participant in this proceeding, the Board grants the Agency’s
motion for extension of the time in which to file its response to NORA’s proposed rule
amendment to December 3, 2007.
The Board notes that, on December 3, 2007, the Agency timely filed its response. In its
response, the Agency requests that the Board “deny NORA’s motion to file its Rule Proposal
Amendment,” apparently construing NORA’s filing as a motion for leave. Resp. at 5. While the
Board accepts NORA’s Rule Proposal Amendment, the Board also accepts the Agency’s
arguments in response and separately summarizes them below at pages 48-51.
SUMMARY OF ORIGINAL NORA PROPOSAL
In the original filing of its proposed rules on December 13, 2005, NORA states that
“[u]sed oil occupies a special place in state and federal statutes and regulations, largely because
government environmental policies have sought to encourage recycling of used oil as a prudent
alternative to disposal.” Statement at 1. NORA argues that “[m]ost states have adopted the
federal used oil recycling rules as the sole regulatory requirements governing the management of
used oil.” Statement at 2, citing 40 C.F.R. 279 (Standards for the Management of Used Oil).
NORA further argues that, because the Board adopted Illinois’ used oil rules through an exercise
8
of its identical in substance rulemaking authority, the Board’s regulations at 35 Ill. Adm. Code
739 “should mirror 40 C.F.R. 279.” Statement at 2,
see
RCRA Update, USEPA Regulations,
(July 1, 1992 through December 31, 1992), R 93-4 (Sept. 23, 1993) (codifying new Part 739).
NORA notes, however, that the Board had adopted special waste rules applicable to activities
including used oil recycling before promulgating Part 739. Statement at 2;
see
35 Ill. Adm. Code
808, 809. NORA argues that these pre-existing special waste rules include requirements such as
manifesting used oil during transportation that are not contained in the federal used oil rules.
Statement at 2.
Specifically, NORA believes “that Illinois’ additional regulatory treatment of used oil as
a special waste, with the corresponding manifesting and special waste hauling requirements, is
not consistent with that goal of making Illinois’ program identical to the federally designed
program.” Statement at 2. NORA claims that “[s]uch requirements make it unduly burdensome
to do business in Illinois.”
Id
. NORA states that it has expressed these views to the Agency with
the hope that discussions would lead to harmonizing the federal and state used oil requirements.
Id
. Following those discussions, NORA filed this proposal “to decouple the special waste
requirements (particularly manifesting and hauling permitting) from the used oil requirements
found at Part 739.” Statement at 3. “While NORA maintains that the current regulator scheme
can be interpreted so that these special waste requirements do not apply to used oil,” NORA
states that it seeks to amend the Board’s regulations in order to provide a stronger basis for this
interpretation. Statement at 3. Specifically, NORA seeks to amend five sections of the Board’s
special waste regulations, each of which is separately discussed below.
Section 808.121: Generator Obligations
Section 808.121(a) requires persons generating waste to determine whether it is a special
waste. 35 Ill. Adm. Code 808.121(a);
see
415 ILCS 5/3.475 (definition of “special waste”), 35
Ill. Adm. Code 808.110 (definition of “special waste”). A Board Note attached to that
subsection cross-references the Board’s hazardous waste regulations by stating that “35 Ill. Adm.
Code 722 requires the person to also determine if the waste is a hazardous waste.” 35 Ill. Adm.
Code 808.121.
Section 808.121(b) provides that “[n]o person shall deliver special waste to a transporter
unless the waste is accompanied by a manifest as specified in Section 808.122, and the
transporter has a special waste hauling permit issued pursuant to 35 Ill. Adm. Code 809.” 35 Ill.
Adm. Code 808.121(b). Section 808.121(b) also provides four exceptions to this prohibition. 35
Ill. Adm. Code 808.121 (b)(1-4). NORA proposes in its original filing to add a fifth exception to
subsection (b) for “[u]sed oil as defined by or managed pursuant to 35 Ill. Adm. Code 739.”
Statement at 4.
Section 809.211: Exemptions for Nonhazardous Special Waste Transporters
Section 809.211 provides that eleven categories of persons “need not obtain a
nonhazardous special waste hauling permit nor carry a manifest if they haul only the waste
indicated.” 35 Ill. Adm. Code 809.211(a-k).
9
NORA proposes in its original filing to add a twelfth exemption for “[a]ny person who
hauls used oil subject to regulation as used oil pursuant to 35 Ill. Adm. Code 739.” Statement at
5 (proposing new subsection 809.211(l).
Section 809.301: Requirements for Delivery of Nonhazardous Special Waste to
Transporters
Section 809.301 provides that
[n]o person may deliver any special waste generated within Illinois or for
disposal, storage or treatment within Illinois unless that person concurrently
delivers a manifest completed in accordance with Subpart E of this Part to a
special waste transporter who holds a current nonhazardous special waste hauling
permit or Uniform Program Registration and Permit issued by the Agency.” 35
Ill. Adm. Code 809.301.
NORA proposes in its original filing to add to this subsection language providing that
“[a] manifest is not required to be delivered to a transporter who hauls used oil subject to
regulation as used oil pursuant to 35 Ill. Adm. Code 739 and who has registered as a used oil
transporter and obtained an Illinois Special Waste identification number.”
Section 809.302: Requirements for Acceptance of Nonhazardous Special or Hazardous
Waste from Transporters
Section 809.302 provides that
[n]o person may accept any special waste for disposal, storage or treatment within
Illinois from a special waste transporter unless the special waste transporter has a
valid nonhazardous special waste hauling permit or Uniform Program
Registration and Permit . . . and concurrently present to the receiver of the special
waste, or the receiver’s agent, a completed, signed manifest . . . , which manifest
designates the receiver’s facility as the destination for the special waste. 35 Ill.
Adm. Code 809.302.
NORA proposes in its original filing to add language providing that “[a] manifest is not required
to be presented by a transporter who hauls used oil subject to regulation as used oil pursuant to
35 Ill. Adm. Code 739, and who has registered as a used oil transporter and obtained an Illinois
Special Waste identification number.” Statement at 6.
Section 809.501: Manifests, Records, Access to Records, Reporting Requirements and
Forms
Section 809.501 provides that “[a]ny person who delivers special waste to a permitted
nonhazardous special or hazardous waste transporter shall complete a uniform hazardous waste
manifest to accompany the special waste from delivery to the destination of the special waste.
The manifest will be provided or prescribed by the Agency.” 35 Ill. Adm. Code 809.501.
10
NORA proposes in its original filing to add language providing that “[a] manifest is not
required to accompany deliveries of used oil by a transporter who hauls used oil subject to
regulation as used oil pursuant to 35 Ill. Adm. Code 739, and who has registered as a used oil
transporter and obtained an Illinois Special Waste identification number.” Statement at 6.
AGENCY COMMENTS ON ORIGINAL NORA PROPOSAL
On May 1, 2006, the Agency submitted comments responding to NORA’s original
proposal.
See
PC #1. The Agency commented separately on each section NORA proposes to
amend, and the Board below summarizes those comments on a section-by-section basis.
Generally, the Agency states that it has several discussions with NORA on various
requirements pertaining to used oil but that “[t]hese discussions were limited to the elimination
of manifests for used oil that is defined by and managed in accordance with the used oil
regulations at 35 Ill. Adm. Code 739 and elimination of hauling permits for transporters that are
transporting no special waste other than used oil that is defined by and managed in accordance
with Part 739.” PC #1 at 1. The Agency further states that it did not discuss other aspects of
special waste regulation with NORA and that it “believes NORA does not intend to exclude used
oil from the definition of special waste, special waste reporting, or any other requirements that
applies to special waste.”
Id
.
The Agency notes that Part 739 requires tracking of used oil shipments, making
unnecessary the additional manifesting requirement under Part 809. PC #1. The Agency states
that it agrees that used oil defined by and managed in accordance with Part 739 can properly be
exempted from the manifesting requirement of Part 809. PC #1 at 2, 5-6;
see
35 Ill. Adm. Code
739, 809. The Agency adds, however, that “a manifest exemption in Part 809 should clarify that
it only applies to used oil that is defined by and managed in accordance with Part 739 and would
not apply to other wastes transported on the same load.” PC #1 at 2.
The Agency also states its agreement that “an exemption from the hauling permit
requirement of Part 809 is proper for loads that contain no special waste other than used oil that
is defined by and managed in accordance with Part 739.” PC #1 at 2;
see also
PC #1 at 5-6. The
Agency argues, however, that “the exemption must clarify that it applies only to the load that a
vehicle is carrying and does not apply to an individual vehicle or all vehicles operated by the
transporter.”
Id
. The Agency adds that it would require registration of the transporter through an
existing notification procedure.
Id
., citing 35 Ill. Adm. Code 739.142.
Summarizing, the Agency stresses that, because Part 739 provides for the proper
transportation and tracking of used oil, it “does not object to used oil as defined in Part 739 being
exempt from hauling permits and manifests if managed in compliance with Part 739.” PC #1 at
5-6. Although the Agency states that it opposes the language proposed by NORA to enact these
exemptions, it offered alternative language it could support and “that would accomplish the goal
of NORA’s proposal.” PC #1 at 6.
11
Section 808.121: Generator Obligations
The Agency states that it cannot agree with NORA’s proposed exemption from having to
obtain a manifest and a special waste hauling permit. PC #1 at 2;
see
Statement at 4 (proposing
new 35 Ill. Adm. Code 808.121(b)(5)). The Agency states that NORA’s proposal “applies to
either used oil as defined by or managed pursuant to 35 Ill. Adm. Code 739.” PC #1 at 2
(emphasis in original). The Agency argues that used oil must be defined by and managed in
accordance with Part 739 in order to eligible for the exemption.
Id
. (emphasis added). The
Agency further argues that the exemption from having to obtain a hauling permit should not
apply to a vehicle that is also transporting special waste other than used oil that is defined by and
managed in accordance with Part 739. PC #1 at 2-3.
Reflecting these arguments, the Agency first proposes to add the following language as
subsection 808.121(b)(5): “[t]he generator is not required to complete a manifest for used oil
that is defined by and managed in accordance with 35 Ill. Adm. Code 739.” PC #1 at 3. The
Agency also proposed to add the following language as subsection 808.121(b)(6): “[a]
transporter is not required to have a special waste hauling permit to transport a load that contains
no special waste other than used oil that is defined by and managed in accordance with 35 Ill.
Adm. Code 739 if the transporter has registered with the Agency as a used oil transporter.” PC
#1 at 3.
Section 809.211: Exemptions for Nonhazardous Special Waste Transporters
The Agency states that it cannot agree with NORA’s proposed exemption from having to
obtain a special waste hauling permit for hauling used oil subject to regulation as used oil
pursuant to 35 Ill. Adm. Code 739. PC #1 at 3;
see
Statement at 4-5. The Agency notes that
“used oil can be subject to regulation both under Part 739 and other regulations” and
recommends instead an exemption based upon used oil “defined and managed in accordance
with Part 739.” PC #1 at 3.
The Agency further argues that “the transporter exemption from hauling permits should
be clear that it would not apply to a vehicle that is also transporting other special waste that is not
used oil that is defined by and managed in accordance with Part 739.” PC #1 at 3. In place of
NORA’s proposed language, the Agency proposes a new subsection 809.211(l): “[a]ny person
who hauls only used oil that is defined by and managed in accordance with 35 Ill. Adm. Code
739, and who has registered with the Agency as a used oil transporter.”
Id
.
Section 809.301: Requirements for Delivery of Nonhazardous Special Waste to
Transporters
The Agency argues that NORA’s proposal to amend Section 809.301 could be interpreted
to exempt all special wastes transported by a used oil hauler from having to obtain a manifest.
PC #1 at 4. The Agency claims that, because the proposed exemption “could be applied to all
hazardous and non-hazardous waste including used oil destined for disposal, the exemption
would be less stringent than the federal RCRA [Resource Conservation and Recovery Act]
12
regulations.”
Id
. The Agency recommends adding language to Section 809.302(a), which the
following paragraph addresses.
Section 809.302: Requirements for Acceptance of Nonhazardous Special or Hazardous
Waste from Transporters
The Agency argues that NORA’s proposal to amend Section 809.302 would allow a
facility to accept waste without a manifest from a transporter who does not have a permit if the
transporter hauls used oil “at some point in time” and registers as a used oil transporter. PC #1 at
4. The Agency claims that the proposed exemption “could be interpreted to apply to all hauling
vehicles that belong to the registered transporter” whether it hauls used oil or other waste.
Id
. In
place of NORA’s proposed language, the Agency proposes adding to Section 809.302(a) the
following language:
[t]he generator (or transporter) is not required to complete a manifest for used oil
that is defined by and managed in accordance with 35 Ill. Adm. Code 739. A
transporter is not required to have a special waste hauling permit to transport a
load that contains no special waste other than used oil that is defined by and
managed in accordance with 35 Ill. Adm. Code 739 if the transporter has
registered with the Agency as a used oil transporter.
Id
. at 4-5.
Section 809.501: Manifests, Records, Access to Records, Reporting Requirements and
Forms
The Agency agues that NORA’s proposed exemption in this section does not require that
a load of used oil comply with Part 739 but requires only “that the hauler hauls some used oil
regulated under Part 739.” PC #1 at 5. The Agency claims that “[t]he wording ‘subject to
regulation as used oil’ could be interpreted to mean that the used oil does not comply with the
requirements of [Part] 739, but is a material that falls within the applicability section of
739.110.”
Id
. The Agency further argues that the definition of “person” in Part 809 includes
both an individual and a company.
Id
.;
see
35 Ill. Adm. Code 809.103;
see also
415 ILCS
5/3.315 (2006) (defining “person”). The Agency thus claims that it is ambiguous whether the
exemption must be met by an individual truck or by the company itself. PC #1 at 5. In place of
NORA’s proposed language, the Agency proposes adding to Section 809.501(a) the following
language:
[t]he generator (or transporter) is not required to complete a manifest for used oil
that is defined by and managed in accordance with 35 Ill. Adm. Code 739. A
transporter is not required to have a special waste hauling permit to transport a
load that contains no special waste other than used oil that is defined by and
managed in accordance with 35 Ill. Adm. Code 739 if the transporter has
registered with the Agency as a used oil transporter.
Id
.
AGENCY TESTIMONY ON ORIGINAL NORA PROPOSAL
13
On May 10, 2006, the Agency pre-filed for the first hearing in this proceeding the
testimony of Theodore Dragovich. For eleven years, Mr. Dragovich has served as the manager
of the Disposal Alternative Unit in the Agency’s Bureau of Land Permit Section. Dragovich
Prefiled Test. at 1;
see
Dragovich Prefiled Test, Exh. 1 (resumé).
Mr. Dragovich states that its discussions with NORA “were limited to the elimination of
manifests for used oil that is defined by and managed in accordance with Part 739 and the
elimination of hauling permits for transporters that are only transporting loads of used oil that is
defined by and managed in accordance with Part 739.” Dragovich Prefiled Test. at 2. Mr.
Dragovich further states that tracking requirements in Part 739 provide necessary information for
shipments of used oil.
Id
. at 3, citing 35 Ill. Adm. Code 739.146, 739.156, 739.165, 739.174.
Mr. Dragovich states that the Agency “supports the concept of providing a manifest exemption
for used oil, but is offering alternative language that will insure that the exemption can only be
applied to used oil as defined by and managed in accordance with” Part 739.
Id
. at 1. Mr.
Dragovich further states the belief that NORA did not intend to exempt other wastes or special
wastes that are not intended to undergo recycling.
Id
. at 2.
Mr. Dragovich agrees with NORA that it is necessary to amend the Board’s regulations
in order to exempt used oil from manifesting and hauling permits. Dragovich Prefiled Test. at 2.
In support of this conclusion, Mr. Dragovich notes the statement in adopting Part 739 that “[t]he
Board agrees that the used oil should be subject to the special waste manifesting regulations.
The Board believes that its existing manifesting regulations in Part 809 are more stringent than
the Federal regulations and thus apply. Therefore, the Board will adopt the regulations to reflect
that used oils are subject to special waste manifesting regulations. . . . “
Id
. at 2-3, citing RCRA
Update, USEPA Regulations (July 1, 1992 through December 31, 1992), R93-4, slip op. at 65
(Sept. 23, 1993). Mr. Dragovich further notes that Part 739 identifies manifests as acceptable
used oil tracking documents. Dragovich Prefiled Test. at 3, citing 35 Ill. Adm. Code 736.156,
739.174.
Mr. Dragovich continues by raising specific issues with NORA’s proposal, which the
Board summaries below on a point-by-point basis.
Special Waste Identification Number
Mr. Dragovich notes that NORA’s proposal refers to a “special waste identification
number,” a term which the Board’s regulations do not define. Dragovich Prefiled Test. at 4. Mr.
Dragovich states that the Board has explained that the term means “‘a generator ID number’ for
generators, ‘a facility ID number’ for TSDs [treatment, storage, or disposal facilities], and ‘a
waste hauling permit number’ for transporters.”
Id
., citing RCRA Update, USEPA Regulations
(January 1, 1993 through June 30, 1993), R93-16, slip op. at 22 (Mar. 17, 1994). Mr. Dragovich
notes that the Agency would not assign an exempt hauler a special waste hauling permit number.
Dragovich Prefiled Test. at 4. Consequently, the Agency “requests that the Board clarify that an
‘Illinois special waste [identification] number’ for a used oil transporter is the number assigned
by the Illinois EPA to the address of the special waste hauling permit exempt used oil
transporter’s main place of business that designates the person as a used oil transporter.”
Dragovich Prefiled Test. at 4.
14
Mr. Dragovich also claims that NORA’s proposal is ambiguous because a transporter
may be an individual driver or a company, making it possible to apply the proposed exemption
either to an individual load or to an entire company. Dragovich Prefiled Test. at 4. Mr.
Dragovich states that the Agency currently issues one hauling permit number to a company,
which must identify and pay a fee for each truck.
Id
. Consequently, the Agency seeks to have
the Board clarify that the proposed hauling permit exemption applies by the load.
Id
. Mr.
Dragovich supports this request by stating that “[i]t would not be appropriate for the company’s
entire fleet to have to be dedicated to hauling used oil before the exemption would apply or for
the entire fleet to receive the exemption because one truck meets the requirements.”
Id
. at 4-5.
Section 808.121(b)(5)
Responding to NORA’s proposed exemption applying either to used oil as defined by or
managed pursuant to 35 Ill. Adm. Code 739, Mr. Dragovich states that “[t]he used oil must
satisfy both criteria rather than either one before the used oil should be exempt.” Dragovich
Prefiled Test. at 5. Mr. Dragovich argues that, as written, the proposed exemption applies to any
waste managed according to Part 739 even if Part 739 does not apply to the waste in question.
Id
. Mr. Dragovich also argues that “the exemption should not apply to hauling permits if the
transporter also transports other special waste at the same time.”
Id
. Consequently, the Agency
restates its proposed alternative language for Section 809.121. Dragovich Prefiled Test. at 6;
see
supra
at 11;
see also
PC #1 at 3.
Section 809.211(l)
Mr. Dragovich states that NORA’s proposal does not require a load of used oil to comply
with Part 739, “only that the hauler hauls some used oil subject to regulation under [Part] 739.”
Dragovich Prefiled Test. at 6. Accordingly, the Agency restates its proposed alternative
language for this section.
Id
.;
see supra
at 11;
see also
PC #1 at 3.
Section 809.301(a)
Mr. Dragovich states that NORA’s proposal could be interpreted only to exempt used oil
from manifesting and not to exempt the used oil from delivery to a permitted hauler. Dragovich
Prefiled Test. at 6. The Agency restates its proposed alternative language for this provision.
Id
.
at 6-7;
see supra
at 11-12;
see also
PC #1 at 4.
Mr. Dragovich states that separating the manifesting and transportation exemptions “will
allow unmanifested loads of used oil to be transported on the same truck with other special waste
that needs a manifest.” Dragovich Prefiled Test. at 7. Mr. Dragovich further states that the
Agency’s proposal for a manifest exemption would not require transporting used oil in separate
containers or compartments, although its proposed transportation exemption “would only exempt
the truck from special waste hauling permits if the only special waste on that individual load is
used oil.”
Id
.
Section 809.302(a)
15
Mr. Dragovich states that NORA’s proposal could be interpreted only to exempt used oil
from manifesting and not to exempt the used oil form delivery to a permitted hauler. Dragovich
Prefiled Test. at 7. Mr. Dragovich further states that NORA’s proposal arguably “would allow a
transporter to be exempt from all manifest and hauling permit requirements if they haul used oil
at some point in time and register as a used oil transporter.”
Id
. at 7-8. The Agency restates its
proposed alternative language for this provision.
Id
. at 7;
see supra
at 12;
see also
PC #1 at 4-5.
Section 809.501(a)
Mr. Dragovich states that NORA’s proposal does not require a load of used oil to comply
with Part 739, “only that the hauler hauls some used oil subject to regulations under [Part] 739.”
The Agency restates its proposed alternative language for this provision. Dragovich Prefiled
Test. at 8. Mr. Dragovich also states that NORA’s proposal is unclear because a transporter may
be an individual driver or a company, making it possible to apply the proposed exemption either
to an individual load or to an entire company.
Id
. Mr. Dragovich further states that the Agency
“does not want the entire fleet to have to be dedicated to hauling used oil before the exemption
would apply, and the Illinois EPA does not want the entire fleet to receive the exemption because
one truck meets the requirements.”
Id
. The Agency restates its proposed alternative language
for this provision.
Id
.;
see supra
at 12;
see also
PC #1 at 5.
In this regard, the Agency seeks clarification that “the transporter number is the number
assigned to the address of the transporter’s main place of business.” Dragovich Prefiled Test. at
8. Mr. Dragovich states that the Agency now assigns one ten-digit address to each address so
that various activities including generation, transportation, treatment, or disposal may be linked
to that ten-digit tracking number.
Id
at 8-9. Accordingly, since a company may already be
assigned a number solely as a generator and not a hauler, the Agency requests that “the Board
clarify that the used oil transporter must obtain a transporter number (or add the transporter
status to their existing number). A transporter number may then be assigned when they register
as a used oil transporter.”
Id
. at 9.
NORA
ERRATA
SHEET
On May 16, 2006, NORA filed its
Errata
Sheet #1. On the basis of its discussions with
the Agency and the Agency’s filings, NORA states that the Agency
shares the sentiment that, where used oil is managed in accordance with Part 739,
the requirements for manifesting used oil as ‘special waste’ and the requirement
for obtaining a ‘special waste hauling permit’ for the transportation of used oil are
requirements that should be eliminated from Part 808 and 809 of the Board’s
rules.
Errata
1 at 4.
NORA further states that “its proposed language is not intended to eliminate the special waste
tracking requirements (manifesting and hauling) for any material that is
not
subject to regulation
as ‘used oil’ under the federal program (and, correspondingly, Part 739 of the Board’s rules).”
Id
at 5 (emphasis in original). NORA claims that it seeks only an exemption for used oil and
16
material like used oil that are managed according to Part 739.
Id
.; citing 35 Ill. Adm. Code
739.110 (applicability of used oil standards).
Seeking to clarify its position and to address the Agency’s misgivings with its original
proposal, NORA proposed alternate language. First, NORA proposed adding the following two
new subsections regarding generator obligations to Section 808.121(b):
(5)
The generator is not required to complete a manifest for material subject to
regulation pursuant to 35 Ill. Adm. Code Part 739.
(6)
A transporter is not required to have a special waste hauling permit to transport
material subject to regulation pursuant to 35 Ill. Adm. Code Part 739, if the
transporter has registered with the Agency as a used oil transporter.
Errata
1 at 6.
Second, NORA proposed amending its original proposal by inserting in Section 809.211 an
exemption from hauling permits for “[a]ny person who hauls material subject to regulation
pursuant to 35 Ill. Adm. Code Part 739 and who has registered with the Agency as a used oil
transporter.”
Id
. Third, NORA proposed amending its original proposal by inserting the
following language in Section 809.301(a) and in Section 809.302(a):
The generator is not required to complete a manifest for material subject to
regulation pursuant to 35 Ill. Adm. Code Part 739. A transporter is not required to
have a special waste hauling permit to transport material subject to regulation
pursuant to 35 Ill. Adm. Code Part 739, if the transporter has registered with the
Agency as a used oil transporter.
Id
.
Fourth, NORA proposed amending its original proposal by inserting the following language in
Section 809.501(a):
The generator (or transporter) is not required to complete a manifest for material
that is subject to regulation pursuant to 35 Ill. Adm. Code Part 739. A transporter
is not required to have a special waste hauling permit to transport material that is
subject to regulation pursuant to 35 Ill. Adm. Code Part 739, if the transporter has
registered with the Agency as a used oil transporter.
Id
.
NORA TESTIMONY
Christopher Harris
Christopher Harris serves as General Counsel of NORA. Harris Prefiled Test. at 1; Tr.1
at 8-9. His prefiled testimony described “the origins of the used oil regulatory system in the
United States.” Harris Prefiled Test. at 1. Mr. Harris states that the U.S. Congress first
addressed this issue in the enactment of the Used Oil Recycling Act of 1980, which included
findings that “(1) used oil is a valuable source of increasingly scarce energy; (2) technology
exists to reprocess and recycle used oil; and (3) that used oil constitutes a threat to public health
and the environment when disposes of improperly.”
Id
. at 2, citing 42 U.S.C. 6901a, H.R. R
EP.
N
O. 96-1415, at 10 (1980); S. REP. NO. 96-879, at 1 (1980);
see
Tr.1 at 9-10. Mr. Harris further
17
states that, after the United States Environmental Protection Agency (USEPA) failed to
promulgate regulations to implement that statue, Congress in 1984 directed it to establish a used
oil program. Harris Prefiled Test. at 2, citing 42 U.S.C. 6935(c)(2)(A);
see
Tr.1 at 10. Mr. Harris
argues that this 1984 enactment demonstrates an intent to encourage used oil recycling consistent
with the protection of human health and the environment. Harris Prefiled Test. at 2, citing H.R.
REP. NO. 98-114 (1984);
see
Tr.1 at 10-11. Mr. Harris states that USEPA adopted used oil
regulations in 1985 and again in 1992, the latter of which the Board adopted under its identical-
in-substance rulemaking authority. Harris Prefiled Test. at 2, citing 40 C.F.R. 279, 35 Ill. Adm.
Code 739;
see
Tr.1 at 11.
Mr. Harris states that NORA’s proposal addresses the requirement to keep records of
used oil shipments. Harris Prefiled Test. at 2. Mr. Harris states that, under both the federal and
state regulations, used oil transporters must create and maintain for at least three years records
“documenting the acceptance and delivery of each used oil shipment.”
Id
. at 3;
see
Tr.1 at 12.
Mr. Harris further states that transporters must create and maintain for at least three years records
“of each shipment of used oil that is delivered to another transporter, fuel marketer, or
processor.” Harris Prefiled Test. at 3, citing 40 C.F.R. 279.46;
see
35 Ill. Adm. Code 739.146
(Tracking), Tr.1 at 12. Mr. Harris also states that used oil processors must maintain similar
records and also maintain an analysis plan. Harris Prefiled Test. at 3, citing 40 C.F.R 279.57;
see
35 Ill. Adm. Code 739.156 (Tracking), Tr.1 at 12. Mr. Harris further states that used oil
generators must comply with applicable United State Department of Transportation (USDOT)
regulations, which include requirements for used oil transporters. Harris Prefiled Test. at 3,
citing 40 C.F.R. 279.43(b);
see
Tr.1 at 13, 30-35.
Mr. Harris argues that USEPA has stated that the all of the information required by the
standard hazardous waste manifest is required by the tracking and record-keeping regulations
and “has determined that these tracking and record-keeping requirements adequately protect
human health and the environment.” Harris Prefiled Test. at 4, citing 50 Fed. Reg. 49196 (Nov.
29, 1985);
see
Tr.1 at 9, 12. Mr. Harris argues that USEPA reasonably concluded that
“manifesting used oil shipments was not necessary,” particularly since used oils shipments
generally include more steps than hazardous waste shipments. Harris Prefiled Test. at 4 n.1;
see
Tr.1 at 13.
Mr. Harris argues that Illinois’ manifest requirement for shipments of used oil “imposes a
significant burden on generators and transporters of used oil.” Harris Prefiled Test. at 4, citing
Ray Prefiled Test. He further argues that no state adjoining Illinois and very few other states
require manifests for transporting used oil. Harris Prefiled Test. at 4. He claims that the
documents required by the federal regulations are sufficient to answer “[a]ny question regarding
the origination, transportation, destination, quantity, and timeline of any used oil shipment.”
Id
.,
citing 40 C.F.R. 279.
Mr. Harris concludes by arguing that the Board should adopt an exemption from
manifesting for “all materials regulated as used oil under 40 C.F.R. Part 279 and 35 Ill. Adm.
Code Part 739.” Harris Prefiled Test. at 4-5;
see
Tr.1 at 14, 55-57. He argues that the tracking
system established by those regulations effectively monitors shipments of both used oil and
materials regulated as used oil. Harris Prefiled Test. at 5;
see
Tr.1 at 14. He suggests that any
18
person who would require manifests for shipments of materials regulated as used oil should
indicate how the used oil tracking system would fail to provide all relevant information and how
a manifest would provide it.
See
Harris Prefiled Test. at 5.
Victoria Custer
Victoria Custer states that she has been employed by Southwest Oil for 31 years. Custer
Prefiled Test. at 1. She further states that she is a director on NORA’s board and serves as chair
of NORA’s Illinois Working Group, a part of its Used Oil Recycling Council, which was created
to advocate changes in Illinois’ special waste regulations.
Id
. at 1-2;
see
Tr.1 at 14. Specifically,
the Group seeks to eliminate special waste hauling permit and manifesting requirements for
shipments of used oil. Custer Prefiled Test. at 2-3. Ms. Custer states that these requirements are
inconsistent with the federal program and that they make it more onerous for NORA members to
do business in Illinois than in adjoining states.
Id
. In this regard, Ms. Custer testified that
Illinois is estimated annually to generate 42 million gallons of used oil from 34,000 generators.
Tr.1 at 19.
Ms. Custer notes that Indiana in 1988 repealed its Liquid Industrial Waste Hauler Rule.
Custer Prefiled Test. at 3, citing Exh. A (Final Notice from Indiana Department of
Environmental Management). Ms. Custer notes that this repeal “ended the requirements to have
a permit to haul liquid industrial waste in the State of Indiana and the associated monthly
reporting requirement.” Custer Prefiled Test. at 3, citing Exh. A. She further notes that the
repeal explicitly did not affect hazardous waste transportation requirements. Custer Prefiled
Test. at 3, citing Exh. A.
Ms. Custer indicates that adoption of NORA’s proposal would eliminate the expense of
manifests while maintaining used oil tracking under the federal program adopted in Illinois.
Custer Prefiled Test. at 3. She states that this change will ease her employer’s paperwork burden
and increase the number of its customers.
Id
.;
see
Tr.1 at 45.
Mike Lenz
Mike Lenz states that Future Environmental, a used oil transporting and marketing
company, employs him as a consultant responsible for compliance. Lenz Prefiled Test. at 1. He
estimates that Future Environmental serves 10,000 used oil generators in Illinois, including such
entities as service stations, automobile dealers, and factories.
Id
. He also estimates that Future
Environmental serves 15 Illinois entities using used oil.
Id
. Mr. Lenz has been involved with
NORA since 1985, including time as a member of its Board of Directors and as Co-Chair of its
Government Affairs Committee.
Id
.
Mr. Lenz states that manifesting involves the direct cost of the manifest itself and of
mailing it. Lenz Prefiled Test. at 2. He indicates that, because used oil generators are not
generally prepared to supply and complete a manifest, recyclers have assumed those
responsibilities.
Id
. He further states that purchasing manifests costs Future Environmental
approximately $600 per day of operation, as the Agency charges three dollars per manifest and
19
the company has twenty Illinois drivers daily picking up as many as 20 loads of used oil from
generators in the state.
Id
.
Mr. Lenz states that manifests also involve the cost of time. Lenz Prefiled Test. at 2. He
estimates that a Future Environmental employee requires two minutes to complete a manifest,
amounting daily to six hours of its employees’ time.
Id
. He further states that office personnel
handle manifests and mail copies to generators.
Id
.;
see
Tr.1 at 45.
Mr. Lenz suggests that these manifests duplicate the tracking requirements in Part 739 of
the Board’s regulations. Lenz Prefiled Test. at 2-3;
see
35 Ill. Adm. Code 739. Using his own
employer as an example of these tracking requirements, Mr. Lenz states that Future
Environmental receives from each source generating used oil a ticket reflecting the name and
address of the source, the date of the pick-up, and the generator’s signature. Lenz Prefiled Test.
at 3. In addition, its drivers maintain a log on which they note each load of used oil picked up
from a generator.
Id
. Also, each truck has a load form, including the pick-up tickets described
above and the destination of the used oil.
Id
. Future Environmental retains all of these tracking
documents in its offices.
Id
. Mr. Lenz argues that these requirements under Part 739 are
“completely protective” and may be even more protective than special waste manifest by
tracking used oil from the generator to the end user.
Id
. He further argues that, in the case of a
bad actor, the information gathered under Part 739 “allows the regulators to ‘track’ the problem.”
Id
. at 6.
Mr. Lenz also argues that, “[f]or similar reasons, the used [oil] hauling permit
requirements are also redundant.” Lenz Prefiled Test. at 4. He states that, although Future
Environmental expects to obtain a used oil identifying number, “there is absolutely no reason to
have hauling permits for each separate vehicle.”
Id
. For Future Environmental, he states that
special waste hauling permits costs exceed $1,400 per year.
Id
.;
see
Tr.1 at 39-42.
Mr. Lenz also argues that manifests conflict with used oil tracking regulations by citing
examples.
See
Tr.1 at 19-20. First, he states that special waste manifests require a generator
number or identification number. He claims that, because recyclers cannot legally pick up used
oil without such a number, manifesting encourages improper storage or disposal of used oil,
contrary to federal policy. Lenz Prefiled Test. at 4. Second, he states that the Agency issues
site-specific generator numbers, making it difficult to prepare manifest at larger sites for
construction and road-building.
Id
. at 4-5. Third, he argues that reliance on used oil transfer
facilities makes it difficult to list the end user of used oil, which manifests require.
Id
. at 5.
Fourth, he claims that the Agency had allowed “multi-stop” manifesting for each load of used oil
and not for each generator, in effect listing the used oil recycler as the generator.
Id
. at 5-6.
Citing “major problems with this procedure,’ Mr. Lenz states that the Agency stopped allowing
its use.
Id
at 6.
Mr. Lenz also argues that Illinois’ manifesting requirement is not consistent with
surrounding states. He indicates that “[t]he neighboring states of Iowa and Indiana simply
require adherence to the federal rules. While Michigan requires manifesting, the manifest
requirement is per load, not per generator.” Lenz Prefiled Test. at 6. He claims that this
inconsistency burdens Illinois used oil recycling businesses.
Id
.
20
Gregory Ray
Mr. Ray states that he has twenty year of experience in the used oil recycling industry
with participation in trade associations including NORA and that he serves as Vice President of
Business Management for Heritage Crystal Clean, LLC (HCC). Ray Prefiled Test. at 1;
see
Tr.1
at 20. Mr. Ray states that, having recognized that most used oil was managed through recycling,
USEPA determined that “used oil could be most effectively regulated if managed without the
burdens associated with a hazardous waste designation.” Ray Prefiled Test. at 1-2; Tr.1 at 20-21.
He further states that USEPA then promulgated used oil management standards adopted by the
vast majority of states. Ray Prefiled Test. at 2;
see
Tr.1 at 21-22. Mr. Ray argues that Illinois
significantly deviates from these standards by requiring generators to ship used oil with special
waste manifests. Ray Prefiled Test.;
see
Tr.1 at 21-22.
Mr. Ray states that the Agency once authorized used oil firms to use a multi-stop
manifest for a single truckload instead of collecting manifests from each used oil generator. Ray
Prefiled Test. at 2. He further states that, when HCC five year ago sought this authorization, the
Agency denied it on the basis that it could no longer issue multi-stop permits. Mr. Ray argues
that that Agency thus requires each of HCC’s customers to use special waste manifest.
Id
.
Because Mr. Ray believes that firms that had been authorized to use a multi-stop manifest
continue to do so, he claims that HCC has been placed at a competitive disadvantage.
Id
. Mr.
Ray states that HCC annually generates approximately 2,800 special waste manifests.
Id
. at 3;
see
Tr.1 at 23. He further states that these manifests require “several full-time employees” and
that eight to ten field personnel have these manifests as “a significant fraction of their daily
work.” Ray Prefiled Test. at 3. Even as one of the smallest used oil collectors in the state, Mr.
Ray claims that the manifesting requirements annually cost it $100,000.
Id
.;
see
Tr.1 at 23, 43-
46. Mr. Ray contends that the exercise of completing this paperwork “is a waste of paper, time,
and energy” and that it “does nothing to enhance the protection of human health and the
environment.” Tr.1 at 23.
Mr. Ray notes that NORA’s original proposal sought to exempt from manifesting “used
oil defined by or managed pursuant to 35 Ill. Adm. Code 739.” Ray Prefiled Test. at 3;
see
Statement at 3-6, Tr.1 at 24. He further notes the Agency’s belief that NORA’s original proposal
“could be construed to exempt from manifesting certain used oil which is NOT subject to
management pursuant to 35 Ill. Adm. Code 739.” Ray Prefiled Test. at 3;
see
Tr.1 at 24. Stating
that NORA did not intend this construction, he claims that NORA’s amended proposal responds
fully to the Agency’s position. Ray Prefiled Test. at 3;
see
Tr.1 at 24. Specifically, he states that
NORA proposes to apply a manifest exemption to “materials subject to regulation as used oil
pursuant to 35 Ill. Adm. Code 739.” Ray Prefiled Test.;
see
Tr.1 at 24.
Mr. Ray characterizes the definition of “used oil” in the federal regulations as brief and
narrow: “[u]sed oil means any oil that has been refined from crude oil , or any synthetic oil, that
has been used and as a result of such use is contaminated by physical or chemical impurities.”
Ray Prefiled Test. at 3, citing 40 C.F.R. 279.1;
see
Tr.1 at 24-25. Mr. Ray argues that USEPA
“recognized that there were a variety of common materials which occur in proximity to used oil
and are compatible with used oil, and are safely and properly recycled within the national used
21
oil recycling system.” Ray Prefiled Test. at 3;
see
Tr.1 at 25. Stating that mixtures of some of
these materials with used oil are virtually indistinguishable from “normal used oil,” Mr. Ray
argues that USEPA “felt that it was beneficial that these used-oil-like materials were also eligible
to be managed under the used oil regulations.” Ray Prefiled Test. at 3;
see
Tr.1 at 25. He further
argues that the federal regulations list examples of materials that are not used oil but are subject
to regulation as used oil.
Id
. at 3-4, citing 40 C.F.R. 279.10;
see
Tr.1 at 25. Mr. Ray states that
Illinois’ used oil regulations closely follow the federal regulations and also list used-oil-like
mixtures appropriate for management as used oil.
Id
. at 4;
see
35 Ill. Adm. Code 739.110(b),
Tr.1 at 26.
Mr. Ray states that NORA favors a manifest exemption both for used oil and mixtures
subject to regulation as used oil. Ray Prefiled Test. at 4;
see
Tr.1 at 26. He argues that failure to
adopt NORA’s amended proposal would generate a number of problems. First, he claims that
that it would make Illinois’ used oil regulations inconsistent with the federal system and other
states. Ray Prefiled Test. at 4;
see
Tr.1 at 26. Second, he argues that it would distinguish used
oil from used-oil-like mixtures, a distinction that is “virtually impossible” to make in the course
of the used oil business. Ray Prefiled Test. at 4;
see
Tr.1 at 26, 36-37. Third, he claims that it
would discourage safe recovery of conditionally exempt small quantity generator hazardous
waste. Ray Prefiled Test. at 4;
see
Tr.1 at 26-27, 37-38.
Catherine McCord
Ms. McCord states that she has worked in the field of waste for more than 25 years,
including tenure with USEPA and the Ohio Environmental Protection Agency. Exh. 15 at 1.
She currently serves as Vice-President of Environment, Health, and Safety for Heritage-Crystal
Clean and once served as a NORA board member.
Id
. at 2.
Ms. McCord states that NORA’s proposal would allow used oil tracking documents,
“essentially shipping paper, to substitute for a special waste manifest for shipments of used oil in
Illinois.” Exh. 15 at 2. She argues that these shipping papers or bills of lading are anticipated by
federal regulations and used by most other states.
Id
.;
see generally
Tr.2 at 51-52, 107.
Ms. McCord argues that shipping papers would contain the same information as
hazardous waste manifest for used oil. Exh. 15 at 3;
see
Tr.2 at 21. She states that shipping
papers contain information such as the shipper, transporter, and emergency information, although
she acknowledges that they are not prescribed forms and may also contain additional business
information. Exh. 15 at 3. She further states that, because a hazardous waste manifest cannot
contain this business information, shipments of used oil must have manifest and a second
business-related document.
Id
. at 3-4. She argues that “[t]here is no information that is on the
prescribed manifest that is not included on a shipping paper.”
Id
. at 4. Characterizing NORA’s
proposal as “paperwork relief,” she claims that “[t]he definition of used oil is not relevant to our
proposal” and that NORA does not understand why the Agency has raised the issue of that
definition.
Id
.
Ms. McCord states NORA’s goal of exempting from special waste manifesting
requirements “materials that the state of Illinois has already deemed suitable to manage pursuant
22
to the state’s used oil regulations – namely, used oil (as defined) and certain limited mixtures
containing used oil.” Exh. 15 at 5. Stating that the state’s current used oil regulations allow
certain used-oil-like mixtures to be managed as used oil, she claims that the Agency’s position is
contrary to those regulations and fails to recognize the distinction between the issues of waste
manifesting and waste management.
Id
. at 6;
see
Tr.2 at 50. Ms. McCord expresses the view
that Illinois’ system for managing used oil is not a problem.
Id
. She claims that this proceeding
has revealed that “[t]he Agency opposes the existing Illinois used oil regulations” and that it
seeks to “arrive at a more restrictive regulatory framework.” Exh. 15 at 6-7.
Ms. McCord expresses strong disagreement with the Agency’s position that limiting a
manifest exemption to used oil as defined in Part 739 would not be burdensome to transporters.
Exh. 15 at 7;
see
Tr.2 at 30. She suggests that, in addition to having to explain Illinois’
regulations and prepare manifests, transporters would also have the burden of characterizing
shipments. Exh. 15 at 7. She further argues that generators under the Agency’s proposal would
also experience the burden of managing a category of waste she describes as “material subject to
regulation as used oil, but not meeting the definition of used oil, and therefore subject to special
waste manifesting requirements.”
Id
. at 8 n.3.
Ms. McCord argues that adoption of the Agency’s proposal would make Illinois’
regulations inconsistent with other states and with the federal system, would artificially
distinguish from one another materials that are virtually impossible to distinguish in the course of
business operations, and would frustrate safe recovery of CESQG hazardous waste. Exh. 15 at 8.
She concludes by claiming that NORA’s proposal “does nothing to change the current
management practices in Illinois,” which allow used oil and used-oil-like mixtures to be
managed as used oil.”
Id
. at 8-9.
Dan Appelt
Mr. Appelt states that he has worked for Safety-Kleen Systems, Inc. (Safety-Kleen) in
environmental compliance roles for the past 17 years and now acts as its Director of Compliance
Administration. Exh. 16 at 1. He further states that Safety-Kleen primarily engages in
“recycling of industrial fluids and oils throughout North America.”
Id
. Mr. Appelt states the
position that “Safety-Kleen opposes continuing to require a manifest for transporting used oil as
defined by 40 CFR 279.”
Id
. at 2. He also states that the company’s own documents provide
identical information.
Id
.;
see generally
Tr.2 at 98-100, Exhs. 17, 18.
Mr. Appelt cites his company’s collection of oily water to illustrate its position. He states
that Safety-Kleen ordinarily ships oily water to wastewater treatment plants under company
shipping documents. Exh. 16. at 2. He further states that, at the treatment facility, the oil and
non-oil fractions are separated from one another.
Id
. He states that, if the used oil is of a certain
quality, “it is sent for reclamation or fuel blending.”
Id
. He argues that “[t]his material as
initially collected from the customer qualifies under the authority of 40 CFR 279.”
Id
. He
claims that “the Company’s service documents for this material are identical to those for
shipments with low water content (dry oil), which Safety-Kleen re-refines for reuse as
lubricating oils.”
Id
. Mr. Appelt concludes that, whether for used oil or oily water, no manifest
should be necessary for shipments of either material.
Id
.
23
ADDITIONAL AGENCY TESTIMONY
Additional Dragovich Testimony
Scope of Exemption
Mr. Dragovich states that the Board enacted Part 739 by exercising its identical-in-
substance rulemaking authority to adopt Part 279 of USEPA’s regulations. Dragovich Addl.
Test. at 2;
see
40 C.F.R. 279, 35 Ill. Adm. Code 739. Mr. Dragovich claims that USEPA
promulgated Part 279 “to regulate as used oil materials that contain used oil or are contaminated
with used oil until the free flowing oil is removed.” Dragovich Addl. Test. at 2. He further
claims that, because federal regulations do not address non-hazardous waste management prior
to disposal, “USEPA considered this approach more restrictive.”
Id
.;
see
Tr.2 at 26. He also
states that Illinois regulated materials including used oil as special waste before the adoption of
federal and state used oil programs. Dragovich Addl. Test. at 2. He argues that exempting “all
materials regulated under Part 739 from special waste manifest and permitting requirements
would reduce the regulatory requirements for special waste that has been mixed with used oil.”
Id
.;
see
Tr.2. at 11-12. Mr. Dragovich further argues that such an exemption would encourage
more wastes to be mixed with used oil after generation. Dragovich Addl. Test. at 2. Because the
Agency has not fully evaluated the effect of managing these wastes as used oil, Mr. Dragovich
claims that “other non-hazardous wastes mixed with used oil after generation must be subject to
both the used oil standards and the appropriate waste management standards that applied to the
waste before the mixture occurred.”
Id
at 2-3;
see
Tr.2 at 12, 32. He argues that materials added
to used oil after generation should be exempt from manifest and hauling permit requirements
only pursuant to existing exemptions.
Id
. at 5, citing 35 Ill. Adm. Code 809.210, 809.211;
see
Tr.2 at 11, 32.
Mr. Dragovich claims that the Agency’s position encourages proper recycling.
Dragovich Addl. Test. at 1, 4;
see
Tr.2 at 11. He argues that USEPA encourages separation of
wastes in order to make them more suitable for recycling and, in effect, discourages mixtures of
other wastes into recyclable used oil. Dragovich Addl. Test. at 4, citing 57 Fed. Reg. 41574,
41581 (Sept. 10, 1992);
see
Tr.2 at 32-33. He states the Agency’s position that “it is likely that
other waste added into the mixtures (
e.g.
, inks, solvents, and coolants) will not be recycled, but
will be burned with the used oil or treated in a wastewater treatment plant.” Dragovich Addl.
Test. at 4. Mr. Dragovich claims that, because those other wastes may not have suitable fuel
value, separating the wastes makes appropriate recycling more likely.
Id
.; see Attachment 2
(USEPA letter).
Mr. Dragovich responds to NORA’s view that used oil fuel undergoes stringent testing to
find concentration of unsuitable materials. He argues that the used oil specification “only
establishes limits for arsenic, cadmium, chromium, lead, flash point, and total halogens.”
Dragovich Addl. Test. at 4. He claims that, because a mixture could contain other materials that
may reduce viscosity or increase ash content or emissions, it could meet the specification without
being marketable as used oil fuel.
Id
. He cites examples of waste managed under Part 739 after
mixture with used oil: “plastic pellets, carbon filter media, surfactants, waster based paint, water
24
based ink, emulsion solutions, grain/water/oil mixture, cleaning compound, sludge, wash water,
super abrasive, sand tank sludge, water based coolants and barge bilge water.”
Id
. at 4-5. Mr.
Dragovich claims that, because these materials may not behave like used oil, “the use of a
manifest that accompanies the load would be beneficial to emergency response personnel and the
end receiver of the materials.”
Id
. at 5. Accordingly, the Agency objects to NORA’s amended
proposal.
Id
. at 5-6.
In addition, Mr. Dragovich responds to NORA’s claim that used oil generators may
sometimes add diesel fuel to used oil. He notes that USEPA has concluded that, because diesel
is a fuel and will be used as fuel after mixture with used oil, it is not a waste. Dragovich Addl.
Test. at 3;
see
Attachment A (USEPA letter). He states that the diesel fuel would not then
become subject to manifesting or other waste management requirements.
Id
. Specifically, he
states the Agency’s conclusion that “the used oil and diesel fuel mixture is regulated under
Section 739.110(d) and not 35 Ill. Adm. Code 807.”
Id
.
Mr. Dragovich also responds to NORA’s claim “that it would be burdensome for the used
oil transporter to determined if the used oil had been adulterated with other wastes.” Dragovich
Addl. Test. at 3. He argues that a generator mixing used oil with other special waste has the
obligation to determine the type and quantity of that waste and complete a manifest.
Id
. He
further argues that, other than the rebuttable presumption for used oil, neither Part 739 nor Part
809 requires a transporter to determine whether used oil has been mixed with other waste.
Id
.
He states the Agency’s view that “limiting the manifest exemption to used oil as defined in Part
739” is not burdensome for transporters.
Id
.;
see
Tr.2 at 11, 30.
Proposed Additional Language in Sections 809.301, 809.302, and 809.501
Mr. Dragovich states that transporters may transport other special wastes in separate
containers, separate compartments, or in the same compartment on the same load. Dragovich
Addl. Test. at 6. He further states that transporters may employ a single truck to transport only
used oil on one load and other special wastes that are not regulated by Part 739 on other loads.
Id
. He argues that the additional language proposed for these three sections “is necessary to
specify two separate exemptions, a manifest exemption and a hauling permit exemption.”
Id
.
Specifically, he states that a generator is exempt from preparing a manifest if he or she provides
only used oil as defined and managed in accordance with Part 739 to a transporter.
Id
.
Similarly, the transporter would be exempt from the hauling permit requirements if all of the
load on a truck consist of used oil as defined and managed in accordance with Part 739 to a
transporter.
Id
.
Mr. Dragovich suggests that this proposed additional language would not generate doubt
about whether exemptions in Section 809.211 still apply to these three sections. Dragovich
Addl. Test. at 6. Specifically, he states that “[t]he Agency does not believe that adding this
language will impact the other exemptions found in Part 809.”
Id
.
Manifest Quantities
25
Mr. Dragovich states that the Agency determined the number of manifests purchased by
facilities providing notification of the used oil activity. Dragovich Addl. Test. at 7. He states
two reasons why this number may be inaccurate: “the used oil notifiers may have used some of
these manifests for the transportation of non-hazardous special waste that is not used oil; and the
count does not include used oil generators that purchased their own manifest, but are not
registered used oil facilities.”
Id
. Mr. Dragovich claims that used oil facilities purchased
524,824 manifests from the Agency in a two and one-half year period, or 210,330 manifests
annually.
Id
. Of those manifests, the Agency estimates that facilities purchased 168,650
manifests for the transportation of used oil in a two and one-half year period, or 67,460 manifests
annually.
Id
. Because it included no growth factor in these figures, “the Agency estimates that
the number of shipments of used oil that would be exempt from manifesting is about 67,460, but
could be more than 210,330 shipments per year.”
Id
.;
see
Tr.2. at 12.
Reporting Requirements
While Mr. Dragovich states that “Section 739.157 requires processors to send a biennial
report to USEPA concerning their used oil activities, the Agency relies on the annual non-
hazardous special waste report in Section 809.501 to collect information on used oil.” Dragovich
Addl. Test. at 8. He further states that that report requires separate designation of used oil and
other special waste.
Id
.,
see
35 Ill. Adm. Code 809.501. The Agency claims that “any used oil
exempt from manifesting as a result of this rule is still subject to the annual reporting
requirements of Section 809.501. Dragovich Addl. Test. at 8.
Mr. Dragovich also states that, if the Board adopts NORA’s amended proposal, “there
will be confusion as to the annual non-hazardous waste reporting requirements of Section
809.501 because it will be unclear whether the quantity of used oil that is reported is used oil as
defined in part 739 or the total quantity of special waste regulated as used oil.” Dragovich Addl.
Test. at 8. He notes that the “regulations do not specify a minimum amount of used oil that must
be mixed with non-hazardous special waste” in order for that waste to be regulated as used oil.
Id
. He argues that adopting the Agency’s proposal establishes “a bright line” on one side of
which used oil as defined in Part 739 is reported as such and all other non-hazardous special
wastes would be reported together.
Id
. at 8-9.
Requirements of Other States
Mr. Dragovich responds to NORA’s claim “that Illinois is the only state that classifies
used oil as a special waste or requires generators to manifest used oil.” Dragovich Addl. Test. at
9. He argues that requirements vary and that “some other states do have specific state hauling
and record keeping requirements, even though they do not designate the used oil as special
waste.”
Id
. (citations omitted). He states that the Agency supports its proposed amendment of
the regulations “not because it will make the regulations consistent with other states, but because
the used oil tracking and transportation requirements in Part 739 are adequate for tracking and
transportation of used oil as defined and managed in accordance with Part 739.”
Id
. at 10;
see
Tr.2 at 12-13. He further states the Agency’s position that the Board should not exempt other
non-hazardous special wastes from manifests and hauling permits after evaluating them
26
separately for those exemptions and not simply because the waste was mixed with used oil.
Dragovich Addl. Test. at 10.
Board Notes
Mr. Dragovich states that existing Board Notes in Part 739 explain that “generators of
small quantity used oil that transport their own used oil or gave a contractual hauler may still be
subject to the hauling permit requirements in Part 809.” Dragovich Addl. Test. at 10. He notes
that, while NORA expressed the view that the Board Note would become irrelevant, “the Agency
believes this note is still necessary because the used oil may be transported along with other
special waste that is not used oil.”
Id
.
Christopher Cahnovsky
Mr. Cahnovsky is Regional Manager in the Collinsville office for the Agency’s Bureau of
Land. Cahnovsky Prefiled Test. at 1. He states that he is a Certified Hazardous Material
Manager and had conducted more than 1,300 inspections of facilities generating solid waste.
Id
.;
see
Tr.2 at 13. He offered testimony on inspection of and documents from facilities mixing used
oil with other special waste and managing the mixture as used oil. Cahnovsky Prefiled Test. at
1;
see
Tr.2 at 13-14. He claims that “[i]n some cases non-used oil special waste was transported
directly to a used oil transfer facility and subsequently managed as used oil.” Cahnovsky
Prefiled Test. at 1;
see
Tr.2 at 13-14. Specifically, he refers to six examples separately
summarized below.
March 13, 1998 Manifest IL8154584
Mr. Cahnovsky states that, on March 13, 1998, Safety-Kleen picked up from Rogers
Cartage Company and delivered to its own rail site 1,492 gallons of Used Oil and Water Mixture
(Not USDOT Hazardous Material). Cahnovsky Prefiled Test. at 2;
see
Attachment 2. He further
states that, through interviews and a review of records, he
discovered that the waste on Illinois Manifest IL8154584 contains sludge and
water from a three tank wastewater treatment system used to treat wastewater
from the cleaning of the residues from the insides of tanker trucks that contained
chlorobenzene and international shipping containers that contained para-
nitrochlorobenzene. The service bays where the used oil is generated are not
connected to this wastewater treatment system. Cahnovsky Prefiled Test. at 2.
Mr. Cahnovsky further states that Safety-Kleen’s Oil Recovery Placement Form confirms this
discovery. Cahnovsky Prefiled Test. at 2;
see
Attachment 2. He argues that this sludge and
water do not meet the definition of used oil and that its previous shipment was managed as
hazardous on the basis of ignitability. Cahnovsky Prefiled Test. at 2.
July 7, 1999 Manifests IL8642755 and IL8876533
27
Mr. Cahnovsky states that these two manifests show that, on July 7, 1999, Safety-Kleen’s
East St. Louis rail site accepted shipments of 2,800 gallons of water and 2,064 gallons of paint
(Not USDOT or USEPA Hazardous Material). Cahnovsky Prefiled Test. at 2;
see
Attachment 3.
He further states that these materials contained barium and methyl ethyl ketone and that they
were mixed with used oil at the rail site.
Id
. He argues that, although this waste did not meet the
definition of used oil, it was subsequently managed as used oil.
Id
.
September 3, 1999 Manifest IL8097851
Mr. Cahnovsky states that, in the course of an October 7, 1999, the Agency obtained
Illinois Manifest IL8097851. Cahnovsky Prefiled Test.;
see
Attachment 1. He further states that
this document shows that, on September 3, 1999, Safety-Kleen Systems, Inc. (Safety-Kleen)
picked up 440 gallons of fixer (not USDOT or USEPA hazardous material) from Schwartkopf
Printing, Inc in Alton, Illinois. Cahnovsky Prefiled Test. at 1;
see
Attachment 1. He states that
the manifest also shows “that Tanker Truck SK55173 off loaded the fixer into rail car
UTLX67980 at Safety-Kleen’s East St. Louis Rail Site.” Cahnovsky Prefiled Test. at 1;
see
Attachment 1. He further states that an October 29, 1999 inspection of that site showed that the
rail car “was shipped to Safety-Kleen in Baton Rouge, Louisiana on September 16, 1999 as Used
Oil and Water (not USDPT Hazardous Material).” Cahnovsky Prefiled Test. at 1;
see
Attachment 1. Mr. Cahnovsky argues that Safety-Kleen picked up and managed the fixer waste
as used oil although it did not meet the definition of “used oil.” Cahnovsky Prefiled Test. at 1;
citing 35 Ill. Adm. Code 739.
January 26, 2001 Meeting Document
Mr. Cahnovsky states that he determined through inspections, meetings, and reviewing
files that Safety-Kleen commonly mixed used oil with other wastes and managed those mixtures
as used oil. Cahnovsky Prefiled Test. at 3. He further states that he obtained from Safety-Kleen
a document listing “non-oil waste streams that Safety-Kleen intends to accept with used oil and
manage as used oil once mixed.”
Id
.;
see
Attachment 4. Those non-oil waste streams include
such materials as plastic pellets, carbon filter media, surfactants, water-based paint, water-based
ink, emulsion solution, grain/oil/water mixture, cleaning compound, sludge, wash water, super
abrasive, sand, tank sludge, and water-based coolants.
Id
.
February 13, 2001 Meeting Document
Mr. Cahnovsky states that he obtained from Safety-Kleen a revision of the list “of the
Non-Oil Waste Streams accepted by Safety-Kleen at their East St. Louis Used Oil Transfer
Station.” Cahnovsky Prefiled Test. at 3;
see
Attachment 5. Those non-oil waste streams include
such materials as plastic pellets, carbon filter media, surfactants, water-based paint, water-based
ink, emulsion solution, grain/oil/water mixture, cleaning compound, sludge, wash water, super
abrasive, sand, tank sludge, water-based coolants, and barge bilge water.
Id
.
Safety-Kleen Waste Report
28
Mr. Cahnovsky states that a Safety-Kleen Facility Waste Report summarizes all waste
received at its East St. Louis rail site from November 1, 1999 to December 31, 2002. Cahnovsky
Prefiled Test. at 3;
see
Attachment 6. He further states that it “shows that the Safety-Kleen
facility accepts combustible liquid, water, wash water, fixer, grease, soil, ink oily sludge, sludge,
waste liquid, mineral oil, oil sludge, diesel, asphalt and combustible liquids.”
Id
. He argues that
these other wastes are mixed with used oil and managed by Safety-Kleen under Part 739 of the
Board’s regulations.
Id
., citing 35 Ill. Adm. Code 739.
AGENCY POST-HEARING COMMENTS
The Agency states that, in its initial discussions with NORA on exempting used oil from
manifest requirements, it appeared that they differed on specific language of an exemption. PC
#33 at 1. The Agency argues that, over the course of this proceeding, it has concluded that it
disagrees with NORA not about the specific language of an exemption but about its breadth.
Id
.
The Agency states that it favors exempting used oil defined and managed in accordance with 35
Ill. Adm. Code 739 from the manifesting requirements at 35 Ill. Adm. Code 809.
Id
. The
Agency states that it also favors an exemption for loads containing no special waste other than
used oil defined and managed in accordance with 35 Ill. Adm. Code 739 from the hauling permit
requirements of 35 Ill. Adm. Code 809.
Id
. at 1-2. The Agency states that it “believes the
exemption cannot extend to all mixtures of used oil with other special wastes as requested by
NORA . . . .”
Id
. at 2. The Agency seeks adoption of the language it proposed in its comments
and testimony.
Id
.;
see
PC #1, Dragovich Prefiled Test. at 5-8. The Board below summarizes
one-by-one the Agency’s arguments in support of that proposed language.
Scope of Exemption
The Agency states that it “does not want to prohibit the mixing of used oil and other
waste.” PC #33 at 2. The Agency notes that, while manifests under Part 809 of the Board’s
regulations require disclosure of individual waste streams in a mixture, tracking requirements
under Part 739 do not.
Id
., citing 35 Ill. Adm. Code 739, 809. Because the Agency wishes to
convey information necessary for managing waste mixtures, it states that “each individual waste
stream of a special waste mixture must be disclosed to the receiving facility.” PC #33 at 2. The
Agency further states that “the tracking requirements of Part 739 are not sufficient for mixtures
of used oil and other special waste.” PC #33 at 2, 14.
The Agency states that Part 739 defines “used oil” to include oil and the contaminants
mixed with it during use. PC #33 at 2;
see
35 Ill. Adm. Code 739.100 (definitions). The Agency
further states that “[o]ther materials that are added to used oil after it has been generated do not
become used oil, but become regulated by Part 739 because they are contaminated with used
oil.” PC #33 at 2. The Agency argues that non-hazardous wastes mixed with used oil after
generation should be regulated both by used oil standards in Part 739 and by the standards
applicable to the other waste before mixture.
Id
. The Agency expresses the belief “that other
non-hazardous special wastes should be evaluated separately to determine if they should be
exempted from hauling permits and manifests, and should not be exempt merely because the
waste was mixed with used oil.”
Id
. at 2;
see id
. at 15.
29
The Agency claims that mixing used oil with other wastes may cause the mixture to have
different properties than those associated with used oil and cause it to behave differently than
used oil. PC #33 at 3. The Agency argues that “[t]he use of a manifest for non-hazardous waste
added to used oil will ensure that the transporter, emergency responder and receiving facility are
made aware of any waste that has been added to the used oil.”
Id
. The Agency further argues
that NORA’s proposed language does not does not ensure that these persons receive this
information.
Id
. The Agency claims that,
[s]ince there is not minimum amount of used oil that must be added to the waste
to make it subject to the used oil standards in Part 739, the language as proposed
by NORA would allow waste streams that have chemical and physical properties
completely different from used oil to be transported and managed like used oil
even when those practices are not appropriate for that waste stream.
Id
. at 3, 15.
The Agency acknowledges that used oil transporters may wish to transport single loads
including both used oil and other special wastes. PC #33 at 3. The Agency also acknowledges
that used oil transporters may use the same truck at some times to transport loads consisting
exclusively of used oil and at other times to transport special wastes other than those regulated
by Part 739.
Id
. The Agency suggests that its proposal reflects these acknowledgments by
including separate exemptions:
[t]he manifest exemption will work independently from the hauling permit
exemption because a generator would not have to initiate a manifest if the waste
given to the transporter is only used oil as defined and managed in accordance
with Part 739 but the transporter would not be exempt from the hauling permit
requirements unless all the loads that are picked up by that truck are used oil as
defined and managed in accordance with Part 739.
Id
. at 4.
The Agency states that a used oil transporter may opt to pick up other loads of non-exempt
waste, but those other loads would require the transporter to have a haulers permit and a
manifest.
Id
. The Agency distinguishes NORA’s proposal from its own by stating that NORA’s
“would apply the hauling permit exemption to all used oil transporters even when they are
hauling special waste that is not used oil.”
Id
.
The Agency addresses NORA’s argument that transporters may not be able to determine
in the field whether used oil contains added nonhazardous special waste. PC #33 at 4. The
Agency claims that, “other than the rebuttable presumption at Section 739.144, nowhere in Part
739 or Part 809 does it require the transporter to determine if the used oil has been mixed with
other waste.”
Id
. The Agency argues that it is the generator’s responsibility to prepare a
manifest if, for example, the generator mixes used oil with other special waste that is not exempt
from manifesting requirements.
Id
. The Agency thus argues that “[t]he transporter does not
have to determine whether the used oil contains other special waste.”
Id
.
The Agency also addresses NORA’s argument “that business records already provide the
information necessary to track and identify the special waste mixtures.” PC #33 at 4. The
Agency acknowledges that NORA has submitted exhibits demonstrating the information
30
contained in its members’ shipping papers.
Id
. The Agency states that these records exceed the
minimum used oil tracking requirements of Part 739 but argues that they “vary according to
company policy and are not required by the regulations.”
Id
. The Agency provides a “simplified
list” comparing used oil tracking to special waste manifesting:
Regulations Who must keep records
Information required in shipping paper
Part 739
1. Transporters
2. Receiving facilities:
Processors, Burners,
Marketers
1. Name and address of the generator,
transporter, or processor;
2. USEPA ID number and Illinois Special waste
number;
3. Quantity of used oil;
4. Signatures.
Part 809
1. Generators
2. Haulers
3. Receiving facilities
1. Generator name, address, phone number and
generator number;
2. Information stating when and where the
special waste was generated;
3. Name of person who accepted delivery and
name and address of site;
4. Name, phone number and permit number of
the transporter;
5. Classification and quantity, US DOT
Description, proper shipping name, hazard class,
ID number, number of containers, quantity and
additional description of special waste delivered
to transporter;
6. Special handling instructions;
7. Date, name, and signature of generator,
receiving facility and all transporters.
PC #33 at 5.
The Agency concludes that “the manifest requirements in Part 809 are more detailed than the
tracking requirements in Part 739.”
Id
. at 4-5.
The Agency also responds to NORA’s claim regarding paperwork burdens. The Agency
claims that its position involves “no additional paperwork because a mixture of used oil and
other special waste does not have to be documented twice.” PC #33 at 5. The Agency claims
that, because the Part 809 manifests are more detailed than the Part 739 tracking, those manifests
will satisfy requirements under both Parts of the Board’s regulations.
Id
. The Agency states that
it does not intend to require a particular manifest for shipments of used oil.
Id
. The Agency
further states that it seeks to “limit the new special waste manifest exemption in Part 809 to used
oil as defined by and managed in accordance with Part 739 and clarify that mixtures of used oil
and other wastes will require an appropriate manifest for tracking.”
Id
.
The Agency addresses NORA’s argument that USDOT shipping papers make the
manifests unnecessary. The Agency states that USDOT shipping papers “do not require
disclosure of the separate waste streams that make up a non-hazardous mixture and would allow
31
the non-hazardous mixture to be described only as used oil.” PC #33 at 6. The Agency further
states that USDOT does not require a generator to keep shipping papers.
Id
. While the Agency
acknowledges that the shipping papers must accompany transported non-hazardous materials, the
description of those materials as used oil would be misleading when the shipment consists of
other wastes mixed with used oil.
Id
.
Responding to NORA’s argument that “it would be confusing to manage waste both
under the used oil standards and the special waste regulations,” the Agency emphasizes that used
oil is a special waste with specific management standards. PC #33 at 6. The Agency further
argues that special waste manifesting and hauling regulations have applied to used oil since those
regulations were adopted.
Id
. The Agency claims that it “is not seeking a new category of waste
or new interpretation of Part 739.”
Id
. The Agency further argues that, even if this rulemaking
exempts used oil from manifesting and hauling permits, it remains subject to other special waste
requirements.
Id
., citing 35 Ill. Adm. Code 809.501 (Manifests, Records, Access to Records,
Reporting Requirements and Forms).
The Agency also responds to NORA’s claim that the Agency’s proposal will place
Illinois used oil recyclers at a competitive disadvantage against out-of-state recyclers. The
Agency argues that “used oil regulations vary from state to state” and that “Illinois is not the
only state to require a manifest for mixtures of used oil and other nonhazardous waste.” PC #33
at 6, 14. The Agency further argues that all transporters must now obtain a hauling permit and
use manifests in order to transport special wastes such as used oil in Illinois.
Id
. at 7. The
Agency claims that its “proposal will allow haulers of used oil not containing other special waste
to be exempt from the hauling permit and manifest requirement and therefore will encourage the
out-of-state competitors to recycle used oil at Illinois facilities.”
Id
.
Although the Agency acknowledges that paperwork associated with waste handling
requirements “is time consuming,” the Agency argues that NORA’s proposal would allow a
generator, transporter, or receiving facility to mix special waste with used oil and have the
mixture be subject only to used oil standards. PC #33 at 7, 15;
see
35 Ill. Adm. Code 739. The
Agency further argues that those standards may not be appropriate for the management of all
non-hazardous special waste, particularly in the absence of an evaluation of the impact of
managing mixtures of special waste and used oil solely under the used oil regulations.
Id
. The
Agency concludes its argument on the scope of the proposed exemption by claiming that, “if all
non-hazardous special waste is allowed to be regulated under Part 739, the Illinois EPA believes
the rulemaking should not be disguised by its proponents as a manifest exemption.”
Id
. at 7-8.
Incentive to Mix Used Oil with Non-Hazardous Special Wastes
The Agency argues that, because NORA’s proposal does not require non-hazardous
special waste to contain a minimum quantity of used oil before a mixture of the two may be
designated as used oil, it would allow any mixture to be relabeled and managed as used oil. PC
#33 at 8. The Agency further argues that, if it is relabeled as used oil, “the mixture may be
received by used oil facilities that have less stringent permitting and siting requirements than
special waste facilities.”
Id
. The Agency believes that these less stringent requirements provide
an incentive to combine used oil with special waste and designate it as used oil.
Id
. The Agency
32
claims that adoption of NORA’s proposal would jeopardize its regulatory control over non-
hazardous special waste and would effectively eliminate special waste regulations.
Id
. at 8, 15-
16;
see
35 Il. Adm. Code 808, 809.
The Agency addresses NORA’s claim that the market for and value of used oil will
ensure proper management of wastes.
See
PC #33 at 8. The Agency acknowledges that this
incentive may apply to high-grade used oil products, but the Agency states that it “knows that
many facilities also profit by collecting generator fees and disposing of the mixtures as low grade
used oil fuel.”
Id
. The Agency further states that it has experienced abuse of the used oil
manifest exemption to receive special waste, which “must normally be managed at a facility that
has siting and has been permitted to manage special waste.”
Id
.
In addition, the Agency addressed the view of NORA members that special wastes are
non-hazardous and that used oil should have no characteristics causing it to become hazardous
waste. PC #33 at 9. The Agency notes that the definition of “special waste” includes both
hazardous waste and non-hazardous waste such as pollution control waste and industrial process
waste.
Id
., citing 415 ILCS 5/3.475 (2006). The Agency argues that “[t]hese non-hazardous
wastes are regulated as special waste not because they exhibit hazardous characteristics, but
because they pose a present or potential threat to human health or the environment.” PC #33 at
9.
Consequences of Proposal for Recycling
The Agency argues that, if mixtures of special waste and used oil are exempt from
manifests and hauling permits, more waste will be mixed with used oil after generation. PC #33
at 9. The Agency further argues that, by providing an incentive for these mixtures, NORA’s
proposal would reduce the ability to recycle the separate waste streams.
Id
. Specifically, the
Agency expresses the belief that wastes such as inks, solvents, and coolants added to used oil
would be less likely to be recycled and more likely either to be burned or treated in a wastewater
treatment unit.
Id
. at 9-10. The Agency also argues that, by encouraging mixtures, the proposal
would result in the improper handling, managing, or burning of wastes.
Id
. at 10. Specifically,
“[s]ome of the wastes added to used oil which will be blended for fuel do not have fuel value
themselves and may contain constituents that are not appropriate to burn in that setting.”
Id
.
The Agency argues that its own proposal, limiting the manifest exemption to used oil as defined
and managed in accordance with Part 739, “encourages the generator to keep waste streams
separate for appropriate management and recycling . . . .”
Id
., citing 35 Ill. Adm. Code 739.
The Agency further argues that its proposal also ensures that a generator “provides the
type of information necessary to make the transporter and receiving facility aware of the source
and type of waste.” PC #33 at 10. The Agency emphasizes that “[t]his would not mean that the
used oil mixtures that NORA said they are currently recycling would no longer be recycled. It
would only mean that these mixtures still have to be transported under a special waste manifest.”
Id
. The Agency claims that recycling used oil and used oil mixtures has continued through the
years that special waste regulations have been in effect in Illinois.
Id
. at 11. Addressing
NORA’s argument that federal used oil regulations intend to promote recycling of used oil, the
Agency states that review of federal authorities “makes it clear that protection of human health
33
and the environment was the prime concern even if it would discourage recycling.”
Id
., citing 57
Fed. Reg. 41566 (Sept. 10, 1992), 50 Fed. Reg. 49213 (Nov. 29, 1989).
The Agency attempts to support its argument with an example drawn from NORA’s
testimony. The Agency states that Safety Kleen in 2005 collected approximately 180 million
gallons of used oil and 14 millions gallons on oily water, from which it produced approximately
140 million gallons of high-quality lubricating oil. PC #33 at 10. The Agency concludes that
this production resulted in 54 million gallons of waste.
Id
. The Agency argues that, because of
quality control applicable to lubricating oils, “Safety Kleen would be more selective about the
waste that they accept as used oil as opposed to used oil fuel marketers who only have to meet
individual customers’ standards to satisfy their contract with a used oil burner.”
Id
. at 10-11.
The Agency further argues that these used oil fuel marketers could allow a higher proportion
than Safety Kleen’s 54 million gallons of non-used oil wastes to be included in used oil.
Id
. at
11. The Agency concludes that “continued use of a special waste manifest would alert burners
that the used oil contains other waste and would provide the record necessary to determine”
whether it is appropriate to burn the special waste that may be mixed with used oil.
Id
.
The Agency also addresses NORA’s argument that mixtures of used oil and special
wastes “are subject to stringent testing and examination in order to be sold as fuel.” PC #33 at
11. The Agency claims that regulations require testing only for a limited number of constituents
and do not require testing for many others that may be present if non-hazardous special waste is
burned with used oil as fuel.
Id
. The Agency argues that these additional constituents “could
reduce viscosity or BTU content or increase ash content of emissions from burning the oil.”
Id
.
at 12. The Agency further argues that receiving facilities can only test for these additional
constituents if they receive notice of the waste streams in the mixture.
Id
. at 11-12. The Agency
claims that “[n]o one from NORA testified that they evaluate BTU and toxic constituent
concentration values of the waste prior to commingling the waste or testified that they consider
the impact of these constituents when burned as used oil.”
Id
. at 12.
Federal and State Regulations
The Agency states that Illinois adopted federal used oil requirements as Part 739 of the
Board’s regulations. PC #33 at 12;
see
RCRA Update, USEPA Regulations, (July 1, 1992
through December 31, 1992), R 93-4 (Sept. 23, 1993) (codifying new Part 739). The Agency
further states that, before adoption of Part 739, “the special waste regulations at Part 808 and Part
809 already applied to used oil.” PC #33 at 12. The Agency stresses its interpretation that, while
federal regulations require non-hazardous waste mixed with used oil to meet Part 739 standards,
those federal regulations do not preempt more stringent state regulations.
Id
. In support of this
interpretation, the Agency states that other states impose mores stringent used oil requirements.
Id
. at 14, citing N.H. CODE ADMIN. R. ANN. ENV. - WM 80-7.07, N.J. ADMIN. CODE 7:26A, §
6.6(g), S.C. CODE ANN. REGS. 61-107.279. The Agency also cites a USEPA statement that the
federal regulations “are protective but not complete or sufficient to protect human health and the
environment from potential mismanagement of used oils that are recycled.”
Id
. at 12-13, citing
57 Fed. Reg. 41569 (Sept. 10, 1992). The Agency characterizes NORA’s position as one that
would allow “all non-hazardous wastes contaminated with some used oil” effectively to be
exempt from special waste requirements and subject only to Part 739. PC #33 at 12.
34
The Agency argues that, while federal used oil regulations intend to provide standards for
management and recycling of used oil and materials contaminated with it, those regulations “do
not intend to preempt more stringent state regulations of these non-hazardous wastes.” PC #33 at
13. In support of this argument, the Agency cites USEPA’s recognition “that several states
regulate used oil as a hazardous waste, and some states regulate it as a special waste . . . . A used
oil handler must comply with all state requirements applicable to used oil in his/her states, in
addition to any federal requirements that apply.”
Id
., citing 57 Fed. Reg. 21526 (May 21, 1992).
The Agency further argues that federal regulations provide an incentive not to mix
wastes. PC #33 at 13. The Agency claims that USEPA did not contemplate mixing used oil with
other non-hazardous wastes because unregulated non-hazardous wastes would then for the first
time become subject to federal regulation.
Id
. The Agency argues that NORA’s proposal would
reverse this incentive because it “would encourage mixtures of used oil and other special wastes
to take advantage of the reduced siting, operating and permitting requirements of used oil
facilities compared to special waste facilities.”
Id
. The Agency claims that this would relax
Illinois’ special waste requirements by allowing non-hazardous wastes contaminated with some
used oil to be exempt from the system of special waste manifests and hauling permits.
Id
. at 13-
14.
Responding to NORA’s argument that the its proposal would deter safe recovery of
CESQG [conditionally exempt small quantity generator] hazardous waste, the Agency states that
it “does not propose any changes to the management of conditionally exempt small quantity
hazardous waste.” PC #33 at 14. The Agency further states that “[t]he current regulations at
Part 739 already address which hazardous wastes much be managed under traditional RCRA
[Resource Conservation and Recovery Act] regulations and which hazardous wastes may be
managed under Part 739.”
Id
.
NORA POST-HEARING BRIEF
NORA states that the Board enacted Parts 808 and 809 of its regulations under its general
rulemaking authority and that those regulations predate the federal used oil program. PC #34 at
2, citing 415 ILCS 5/27, 28 (2006);
see
35 Ill. Adm. Code 808, 809. NORA further states that
the Board enacted Illinois’ used oil regulations under more limited authority to adopt rules
identical in substance to federal statutes such as RCRA. PC #34 at 2, citing 40 C.F.R. 270, 35
Ill. Adm. Code 739;
see
415 ILCS 5/7.2, 22.4(a) (2006). NORA argues that the federal used oil
program adopted by the Board intends to promote used oil recycling. PC #34 at 2, citing Tr.1 at
10-11 (Christopher Harris testimony).
NORA claims that materials subject to regulation as used oil include those defined as
used oil by the Board’s regulations: “any oil that has been refined from crude oil, or any
synthetic oil, that has been used and as a result of such use is contaminated by physical or
chemical impurities.” PC #34 at 2, citing 40 C.F.R. 279.100, 35 Ill. Adm. Code 739.100.
NORA further claims that materials subject to regulation as used oil also include “those materials
which, through the applicability section of those rules, are entitled to be managed as used oil
under the used oil program.” PC #34 at 2, citing 35 Ill. Adm. Code 739.110 (Applicability).
35
NORA argues that Part 739 applies not only to materials defined as used oil but also to
“materials that are destined for recycling as used oil.” PC #34 at 8, citing PC #34, Attachment A
(McCoy’s RCRA Unraveled);
see
35 Ill. Adm. Code 739.100, 739.110. NORA further argues
that its amended rulemaking proposal would achieve the goal of excluding “from special waste
manifesting used oil as it is defined by and managed and regulated pursuant to Part 739. PC #34
at 8, citing
Errata
1.
NORA notes that the Agency has proposed language of its own to revise the manifest
requirements. PC #34 at 8, citing PC #1 at 2. NORA argues that the Agency’s proposal appears
to distinguish between materials defined as used oil, which would be exempt from special waste
manifests, and material subject to regulation as used oil, which would not be exempt. PC #34 at
9, citing 35 Ill. Adm. Code 739.100, 739.110. NORA states three objections to the Agency’s
proposal. First, NORA argues that the Agency’s distinction is not reflected in the used oil
industry and “would create an untenable positions” for it. PC #34 at 9. Second, NORA argues
that the Agency’s position is inconsistent with definitions contained in the federal regulations.
Third, NORA claims that the Agency’s proposal is also inconsistent with the used oil program’s
goal of encouraging recycling.
Id
.
Noting that the Act requires the Board to consider the economic reasonableness of rules
proposed to it, NORA argues that its proposal would make Illinois’ used oil program more
economically reasonable and more consistent with the federal program. PC #34 at 11-12, citing
415 ILCS 5/27 (2006), Tr.1 at 10-11 (Christopher Harris testimony). NORA further argues that
the Agency’s position and proposal do not promote either of these goals. PC #34 at 12. In this
regard, NORA refers to business principles to which its members are committed.
Id
. at 12;
see
also
Custer Prefiled Test. at 2.
NORA states that, in its industry, generators provide used oil and material subject to
regulation as used oil to collectors. PC #34 at 15, citing 35 Ill. Adm. Code 739.110. NORA
further states that collectors record and report each shipment by using tracking documents under
Part 739 and provide copies of those documents to generators. PC #34 at 15. NORA argues that
these tracking documents have been admitted into the record as exhibits and are similar, if not
identical to manifests.
Id
. at 17. NORA indicates that “collectors then deliver the used oil and
used oil materials to recycling facilities where the oil is recovered and reused for fuel or lubricant
or other legitimate reusable purposes.”
Id
. at 15. NORA claims that generators, collectors, and
recyclers do not distinguish between used oil and materials subject to regulations as used oil
because Part 739 does not regulate either as waste and because both are recyclable material.
Id
.
NORA argues that, under these circumstances, manifests are unnecessary and that “tracking
pursuant to the tracking provisions is sufficient and encourages recycling.”
Id
. at 15-16. NORA
further argues special waste manifests for these materials waste time and other resources.
Id
. at
14-16; citing Tr.1 at 23-24 (Gregory Ray testimony).
NORA characterizes Illinois’ used oil regulation as “unusual in that it designates used oil
as a special waste, which triggers a requirement for shipments to be manifested.” PC #34 at 16.
NORA argues that these manifests duplicate information contained in DOT shipping papers or
gathered under the requirements of Part 739.
Id
., citing 35 Ill. Adm. Code 739.146, 739.156,
739.165, 739.174. NORA further argues that it is not “desirable” to place the burden of these
36
manifests on Illinois’ 34,000 generators of used oil, who do not customarily prepare manifests.
PC #34 at 16;
see
Tr.1 at 19 (Victoria Custer testimony). NORA claims that this burden on
generators is not consistent with the federal program and states that “the Agency does not even
receive a copy of any of the used oil manifest documents.” PC #34 at 16.
NORA acknowledges “that Illinois is allowed to have stricter requirements than the
federal [used oil] program allows.” PC #34 at 161-17. NORA argues, however, that Illinois
should first adopt federal standards through identical in substance rulemaking and that the
Agency should then propose stricter regulations through the Board’s general rulemaking
authority.
Id
. at 17;
see
415 ILCS 5/27, 28 (2006). NORA further argues that, “[t]o do
otherwise is to forego any public participation in the stricter state requirements as they relate to
the newer federal rule.”
Id
.
NORA emphasizes that “[i]t only seeks to eliminate special waste manifesting
requirements for materials that are already tracked pursuant to Part 739 as used oil.” PC #34 at
16. NORA further emphasizes that its proposal “does not change the way the used oil industry
does business, nor does it seek to change what is or is not entitled to be treated as used oil
pursuant to current regulation.”
Id
. NORA professes that it fails to understand the Agency’s
position and its distinction between used oil and materials treated and recycled as used oil.
Id
. at
17. NORA concludes by arguing that, if materials are properly recycled as used oil, they are
regulated and tracked under the provisions of Part 739, making special waste manifests
unnecessary and undesirable.
Id
. at 18. NORA argues that the Agency’s position is not
supported by “real evidence” of any danger resulting from the current used oil program and
“virtually negates the intended positive impact of NORA’s proposal.”
Id
. at 17-18.
AGENCY RESPONSE TO NORA POST-HEARING BRIEF
Federal and State Regulations
The Agency disputes NORA’s argument that federal used oil regulations intend chiefly to
promote recycling of used oil.
See
PC #34 at 2, 12. The Agency argues that the Federal Register
clarifies the goal of those regulations: “to provide management standards for used oil and for
materials contaminated with used oil and that protection of human health and the environment
from the hazards of used oil is the prime concern even if it discourages recycling of this
material.” PC #40 at 1, citing 50 Fed. Reg. 49213 (Nov. 29, 1985), 57 Fed. Reg. 41566 (Sept.
10, 1992).
The Agency also disputes NORA’s argument that federal regulations removed used oil
from the “realm of more rigorously regulated ‘waste.’” PC #40 at 1, citing 40 C.F.R. 279;
see
PC #34 at 2, citing Tr.1 at 10-11 (Christopher Harris testimony). The Agency argues that RCRA
regulations, which the Board also adopted through its identical in substance rulemaking
authority, “clarifies that used oil still meets the definition of solid waste, but has its own
management standards as a recyclable material.” PC #40 at 1-2. Specifically, the Agency cites
the provisions that “[u]sed oil that is recycled and is also a hazardous waste solely because it
exhibits a hazardous characteristic is not subject to the requirements of 435 Ill. Adm. Code 720
37
through 728, but it is regulated under 35 Ill. Adm. Code 739.” PC #40 at 2, citing 35 Ill. Adm.
Code 721.106(a)(4) (Requirements for Recyclable Materials).
The Agency also addresses NORA’s argument that “the federal regulations ‘entitle’ all
non-hazardous wastes contaminated with some used oil to be effectively exempt from Illinois’
special waste requirements and only regulated by Part 739.” PC #40 at 2,
see
PC #34 at 2, citing
35 Ill. Adm. Code 739.110. The Agency argues that federal regulations, which the Agency
interprets to require non-hazardous waste mixed with used oil to meet used oil management
standards, does not preempt more stringent state regulations. PC 40 at 2. In support of this
conclusion, the Agency cites USEPA’s recognition “that several states regulate used oil as a
hazardous waste, and some states regulate it as a special waste. . . . A used oil handler must
comply with all state requirements applicable to used oil in his/her state, in addition to any
federal requirements that apply.”
Id
., citing 57 Fed. Reg. 21528 (May 20, 1992). The Agency
also cites USEPA’s decision “that these current regulation are protective but not complete or
sufficient to protect human health and the environment from potential mismanagement of the
used oils that are recycled.” PC #40 at 2, citing 57 Fed. Reg. 41569 (Sept. 10, 1992).
The Agency claims that the federal program now regulates materials that had not been
regulated if they are contaminated with used oil. PC #40 at 2. The Agency argues that this is
incentive not to mix unregulated non-hazardous waste with regulated used oil.
Id
. The Agency
claims that NORA’s proposal would effectively reverse this incentive by encouraging “mixtures
of used oil and other special wastes to take advantage of the reduced siting, operating, and
permitting requirements of used oil facilities compared to other special waste facilities.” PC #40
at 2-3. The Agency argues that “[m]aterial contaminated with used oil is not ‘entitled’ to be
managed under less stringent regulation” and that NORA’s proposal would relax Illinois special
waste regulations.
Id
.
Consequences of Proposal for Recycling
The Agency addresses NORA’s argument “that there is no distinction between used oil as
defined at Section 739.100 and materials regulated as used oil at Section 739.110.” PC #40 at 3;
see
35 Ill. Adm. Code 739.100, 739.110. The Agency argues that USEPA defined used oil to
discourage adulteration of that oil after its use. PC #40 at 3. Specifically, the Agency cites
federal authority stating that “[u]sed oils that become adulterated after use should be subject to
management standards that discourage this practice.”
Id
., citing 57 Fed. Reg. 41574 (Sept. 10,
1992). The Agency expresses the belief that NORA’s proposal would encourage this
adulteration after use by providing an exemption from manifests for mixtures of used oil and
other wastes. PC #40 at 3.
The Agency argues that, because its proposal limits this exemption from manifests to
used oil as defined and managed in accordance with Part 739.100, it “encourages the generator to
keep waste streams separate for appropriate management and recycling.” PC #40 at 3. The
Agency considers it probable that other wastes such as inks, solvents, and coolants that may be
added to used oil would not be recycled but will instead “be burned with the used oil or treated in
a wastewater treatment unit.”
Id
. The Agency argues that some of the other wastes “do not have
38
fuel value themselves and may contain constituents that are not appropriate to burn in that
setting.”
Id
.
The Agency argues that these other non-hazardous special wastes that may be mixed with
used oil should not be exempt from hauling permits and manifests merely because they have
been mixed with used oil. PC #40 at 4. The Agency further argues that these other wastes
should be evaluated and should be exempt from hauling and manifest requirements only if they
meet specified criteria in the Board’s special waste hauling regulations.
Id
., citing 35 Ill. Adm.
Code 808.121, 809.210, 809.211.
The Agency argues that it is not the purpose of Section 739.110 to classify as used oil
other materials that may be mixed with used oil. PC #40 at 4. The Agency claims that that
provision is intended “to encourage separation of used oil and other wastes and to allow less
federal regulation of non-hazardous solid waste once it was separated from used oil.”
Id
. In
support of this claim the Agency cites the statements that USEPA “encourages the separation of
used oils from used oil/solid waste mixtures and from used oil-contaminated materials prior to
management of the mixture. Used oils separated from mixtures containing other solid wastes
should be recycled in accordance with [40 CFR 279].”
Id
., citing 57 Fed. Reg. 41581 (Sept. 10,
1992).
The Agency responds to NORA’s argument that “the Agency’s position is . . .
inconsistent with . . . federal laws that allow specific mixtures to be manages as used oil.” PC
#40 at 4;
see
PC #34 at 18. Although the Agency acknowledges that “mixtures of used oil and
other non-hazardous special waste are subject to the used oil management standards at Part 739,”
the Agency states that these other wastes are no longer subject to those standards once free-
flowing oil is removed from them. PC #40 at 4. The Agency takes the position that these
mixtures should require a special waste manifest so they do not become unregulated. The
Agency states that
Illinois has chosen to regulate non-hazardous special waste and therefore the
continued use of a special waste manifest is necessary to adequately track the
special waste, to alert burners that used oil contains other special waste, and to
provide the record necessary to determine whether the other special waste was
handled, managed, or burned inappropriately. PC #40 at 4.
Scope of Exemption
Responding to NORA’s stated intent to “eliminate the burdens associated with
manifesting of used oil,” the Agency acknowledges that “appropriate paperwork is time-
consuming.” PC #40 at 5;
see
PC #34 at 14. The Agency argues that, if wastes do not meet the
definition of used oil, a manifest is necessary because “the used oil tracking system will only
identify the waste as used oil and will not require the generator to have a record of the
transportation and disposal of the non-hazardous special waste mixed with the used oil.” PC #40
at 5. The Agency suggests that USDOT shipping papers would not supply this record and states
that NORA members testified that they “ do not rely solely on the USDOT shipping paper for
their own records.”
Id
. at 6.
39
The Agency also addresses NORA’s argument that Illinois has embraced an unusual and
inequitable approach to managing used oil by designating it as a special waste. PC #40 at 6. The
Agency responds that used oil regulations vary, with some states requiring only compliance with
federal regulations while “others require hauling permits, manifest, and other tracking papers for
mixtures of used oil and other non-hazardous special waste.”
Id
. at 7. The Agency further
responds that “Illinois is not the only state that designates used oil as a special waste and is not
the only state that uses a manifest for mixtures of used oil and other special waste.”
Id
. Finally,
the Agency claims that the Board in this proceeding is not determining whether to exclude used
oil from the definition of special waste.
Id
.
The Agency also addresses NORA’s argument that the Agency’s proposal would not
encourage used oil recycling. The Agency argues that facilities in Illinois have recycled used oil
and used oil mixtures for years since special waste regulations became effective. PC #40 at 7.
The Agency further argues that used oil transporters, whether from Illinois or other states, must
obtain a hauling permit and use a manifest in order to transport special wastes such as used oil in
Illinois.
Id
. The Agency claims that its proposal “will allow haulers of used oil not containing
other special waste to be exempt from the hauling permit and manifest requirement and therefore
will encourage the out-of-state competitors to recycle used oil at Illinois facilities.”
Id
. The
Agency states that, if this is not a result intended by NORA, then the Agency “must question the
true intent of NORA’s proposal.”
Id
.
The Agency responds to NORA’s argument that manifests are redundant and wasteful by
stating that mixtures of used oil and other special waste should not require separate documents:
“[t]he Part 809 manifest will also satisfy the Part 739 tracking requirements.” PC #40 at 6;
see
35
Ill. Adm. Code 739, 809. The Agency appears to accept NORA’s argument that “company
tracking documents were put in evidence in this proceeding and bear similar, if not identical,
resemblance to Illinois manifesting documents.” PC #40 at 6;
see
PC #34 at 17. The Agency
responds that such company records are not required and that not all businesses will be so
thorough in the absence of a regulatory requirement. PC #40 at 6. Noting that information
contained in the business records in evidence exceeds the requirements of Part 739, the Agency
argues that, “if NORA members keep manifest-like records for their business, it should not be
burdensome for the company to fill out a Part 809 manifest.”
Id
. The Agency expresses the
belief that NORA proposes to exempt mixtures of used oil and other special waste from
manifesting requirements “so that the other special waste that usually must go to a permitted and
sited special waste facility may be hidden in the used oil and sent to an unpermitted, unsited used
oil facility to be processed.”
Id
. at 6-7.
Incentive to Mix Used Oil with Non-hazardous Special Wastes
The Agency argues that NORA’s proposal does not require a specified minimum amount
of used oil that must be added to non-hazardous special waste before a mixture may be relabeled
as used oil. PC #40 at 8. The Agency further argues that NORA’s proposal “will allow all non-
hazardous special waste to be relabeled ‘used oil’ and be managed solely under the Part 739
regulations.”
Id
. The Agency claims that, once the mixture is relabeled as used oil, “the mixture
may be received by used oil facilities that have less stringent permitting and siting requirements
40
than special waste facilities.”
Id
. The Agency expresses the belief that those less stringent
requirements provide an incentive to mixed used oil with other special waste and relabel the
mixture as used oil.
Id
. The Agency concludes that adoption of NORA’s proposal would cause
it to lose regulatory control of non-hazardous special waste and would effectively gut the
Board’s special waste regulations.
Id
.;
see
35 Ill. Adm. Code 808, 809.
The Agency notes NORA’s claim that other wastes subject to regulation under Part 739
are “used oil like substances” and that those substances should not concern the Agency as long as
used oil handlers manage them. PC #40 at 8;
see
PC #34 at 17-18. The Agency also notes
NORA’s suggestion that “waste will always have valuable amounts of recyclable oil and
therefore will be managed properly.” PC #40 at 8. The Agency acknowledges that that incentive
may apply to high-grade used oil products.
Id
. The Agency responds to NORA by stating that it
“knows that many facilities also profit by collecting generator fees and disposing of the mixtures
as low grade used oil fuel.”
Id
. Referring to its experience with these practices, the Agency
states its belief that “many of these facilities will abuse the used oil manifest exemption to
receive special waste that must normally be managed at a facility that has siting and has been
permitted to manage special waste.”
Id
.
Noting NORA’s reference to its member’s business principles, the Agency “commends
NORA for its good business practices.” PC #40 at 9;
see
PC #34 at 12, Custer Prefiled Test. at 2.
The Agency responds that it cannot enforce these principles and that not all used oil recyclers
follow them. PC #40 at 9. Stressing that that NORA’s proposal does not require any minimum
amount of used oil in a waste mixture before that mixture may be relabeled as used oil, the
Agency argues that “[e]nforcement against facilities that accept waste containing small amounts
of used oil would be difficult.”
Id
.
The Agency argues that testimony indicates that used oil handlers also manage waste
including “plastic pellets, carbon filer media, surfactants, water-based paint, water-based ink,
emulsion solutions, grain/water/oil mixture, cleaning compound, sludge, wash water, super
abrasive, sand, tank sludge, water-based coolants, and barge bilge water.” PC #40 at 9. The
Agency argues that NORA’s proposal does not distinguish between waste that is used oil that
will be recycled and waste that is mainly non-hazardous special waste including a small amount
of used oil.
Id
. The Agency claims that the mere addition of “a few drops of oil” should not
exempt these waste from manifests or exempt the receiving facility from receiving siting and
permitting.”
Id
.
The Agency addresses NORA’s view that the Agency’s position is “contrary to the status
quo.” PC #40 at 9;
see
PC #34 at 18. The Agency states that “special waste manifesting and
hauling regulations already exist and already apply to used oil.” PC #40 at 9. The Agency
argues that its position seeks only to limit any new special waste manifest exemption to used oil
as defined and managed in accordance with Part 739.
Id
. at 9-10. The Agency further argues
that this new exemption would not discourage recycling of used oil mixtures: “[i]t only means
that these mixtures would still have to be transported under a manifest.”
Id
. at 10. The Agency
also claims that its proposal “would not change the regulatory status of waste currently exempt
from manifesting under other regulations.”
Id
.
41
The Agency also responds to NORA’s argument that the Agency has authority enforce
the requirements of Part 739 against any entity that does not comply with it. PC #40 at 10;
see
PC #34 at 18. The Agency indicates that its objection to NORA’s proposal is not based on
failure to enforce those requirements. PC #40 at 10. The Agency argues that, under NORA’s
proposal, “the addition of small amounts of used oil to other waste would allow the other waste
to go without a manifest or any identification to an unsited, unpermitted facility that it only
registered to accept used oil.”
Id
. Without that manifest and identification, the Agency argues
that waste handlers, the receiving facility, emergency responders, and the Agency would all lack
important information about the waste.
Id
. The Agency further argues that “this is inconsistent
with the cradle-to-grave tracking of special waste required in the current special waste
regulations.”
Id
. The Agency concludes by claiming that, without requiring the addition of a
minimum amount of used oil to a waste to make it subject to Part 739, “NORA’s proposed
exemption would result in abuse of the manifest system” and also of the Act’s permitting and
local siting approval requirements.
Id
., citing 415 ILCS 5/21(d), 39.2 (2006).
NORA RESPONSE TO AGENCY POST-HEARING COMMENTS
NORA argues that the Agency’s general position in this proceeding stems from an
interpretation of Part 739 that is not legally appropriate and is not consistent with the plain
language of those regulations. PC #39 at 1-2. Specifically, NORA claims that the Agency “fails
to consider, and refuses to accept, that material that is collected, commingled and treated as used
oil pursuant to Section 739.110 is also ‘used oil’ and subject to the provisions of that Part [739].”
Id
. at 2, citing 35 Ill. Adm. Code 739.110. NORA argues that this “commingled material
allowed to be treated as ‘used oil’ under that section is no longer special
waste
because it is no
longer part of the waste stream, but has become part of the valuable recycled used oil material.”
PC #39 at 2 (emphasis in original). NORA further argues that adoption of the Agency’s position
would unnaturally and unworkably distinguish between “used oil” as defined by Section 739.100
and as managed by industry.
Id
. at 2-3;
see
35 Ill. Adm. Code 739.100. NORA further argues
that the Agency has not persuasively claimed that adoption of NORA’s proposal would result in
inappropriate special waste disposal.
Id
. at 2.
NORA also states that there is no evidence that special waste manifests are more
protective of the environment than used oil tracking. PC #39 at 3;
see
35 Ill. Adm. Code 739,
808, 809. NORA claims to have established conclusively that the Agency does not review
special waste manifests and that used oil tracking requirements are as protective as manifests.
PC #39 at 3;
see
PC #39 at Attachment B (“Supporting Statement for Renewal of Information
Collection Request Number 1286 ‘Used Oil Management Standards Recordkeeping and
Reporting Requirements’”). NORA disputes the Agency’s comparison of the recordkeeping
requirements under Parts 739 and 809 by arguing that the Agency overlooked DOT requirements
under Part 739. PC #39 at 3;
see
PC #33 at 4-5. NORA also disputes the Agency’s claims that
its members’ business records are not required by the regulations as “wrong.” PC #39 at 3. In
addition, NORA challenges the Agency’s claims that those records vary from company to
company by stating that records demonstrate that members ensure compliance with used oil
regulations.. PC #39 at 3-4;
see
Exh. 12-17.
42
NORA disagrees with the Agency’s view that adoption of NORA’s proposal would cause
the Agency to lose regulatory control. PC #39 at 16;
see
PC #33 at 15-16. NORA emphasizes
that Part 739 applies to a waste stream that is “destined for recycling.” PC 39 at 16. NORA
claims that “if it is subject to regulation pursuant to Part 739, it is recycled used oil, not special
waste.”
Id
. NORA claims that many special waste materials would compromise the value of
used oil and that recyclers would therefore not collect, transport, or process those materials as
used oil.
Id
. NORA acknowledges that special waste regulations would still apply to those
materials.
Id
. NORA further argues that Part 739 is enforceable law and that the Agency can
launch an investigation to ensure compliance with its provisions.
Id
.
NORA also claims that the Agency “has seriously misrepresented industry motives in this
rulemaking.” PC #39 at 17. NORA states its understanding that most individual generators
“will and should attempt to keep used oil separate from special waste.”
Id
. NORA further states
that, because recyclers cannot always rely on that separation, they “will have to make appropriate
inquiries, and manifest or track accordingly.”
Id
. NORA argues that its proposed language is
relevant only if the special waste in question is appropriately mixed with used oil.
Id
. In
addition, NORA offers an example:
it “does not anticipate that its proposal will allow a recycler to go from one
facility and collect pure used oil (which it will track pursuant to Part 739) and go
to the next facility and collect special waste (e.g., antifreeze) and call that special
waste ‘used oil.’ NORA recognizes an obligation to treat that second load
(antifreeze) as special waste and manifest accordingly. PC #39 at 17.
NORA continues by claiming that, if a recycler picks up a load containing used oil already
mixed as allowed by Part 739.110, “there is absolutely no reason to manifest that load because
the material is destined to be recycled and Part 739 tracking applies.”
Id
.
In addition to making the general arguments above, NORA responds “point-by-point” to
individual arguments made by the Agency in its post-hearing comments. PC #39 at 4;
see
PC
#33.
First, NORA disputes the Agency’s belief that “each individual waste stream of a special
waste mixture must be disclosed to the receiving facility.” PC #39 at 4;
see
PC #33 at 2. NORA
claims that this belief “ignores the fact that special waste appropriately mixed with used oil is no
longer special waste; it is used oil, destined for recycling.” PC #39 at 4, citing 35 Ill. Adm. Code
730.100.
1
NORA also claims that a manifest provides the Agency with no more information
than tracking documents under Part 739. PC #39 at 4;
see
35 Ill. Adm. Code 739.
Second, NORA characterizes as “incorrect” the Agency’s argument that “only Part 809
manifesting requires the disclosure of individual waste streams and Part 739 does not.” PC 39 at
1
As Part 730 of the Board’s regulations addresses underground injection control operating
requirements and does not include a Section 730.100, the Board construes this as a citation to 35
Ill. Adm. Code 739.100, which provides definitions with regard to standards for the management
of used oil.
43
4;
see
PC #33 at 2. NORA responds that manifests “do not require disclosure of the individual
waste stream, particularly when such material is appropriate for commingling as used oil.” PC
#39 at 4. NORA argues that “[m]aterial that is appropriately commingled with used oil, and
managed as used oil, will be reported as ‘used oil,’ whether on the manifest or on the Part 739
tracking documents.”
Id
. NORA claims that the Agency actually seeks to require reporting as
special waste any material intended for recycling as used oil.
Id
. NORA argues that this is not
consistent with used oil regulations.
Id
.
Third, NORA addresses the Agency’s argument that “other non-hazardous waste mixed
with used oil after generation must be subject to both the used oil standards at Part 739 and the
appropriate waste management standards that applied to the waste before mixture occurred.” PC
#39 at 4;
see
PC #33 at 3. NORA notes the Agency’s claim that this is necessary to provide
notice that the mixture may have properties different from used oil, but NORA argues that a
manifest provides no more information than a tracking document under Part 739. PC #39 at 5.
NORA also responds that the Agency recognizes that Part 739 allows mixtures of used oil and
hazardous wastes.
Id
. NORA notes the Agency’s statement that the Agency proposes no
changes with regard to management of conditionally exempt small quantity hazardous waste.
Id
.;
see
PC #33 at 14. In light of the Agency’s position on these issues, NORA states that it
“fails to understand how the IEPA accepts that hazardous waste can be appropriately mixed with
used oil and effectively tracked pursuant to Part 739, but special waste (by its nature, non-
hazardous) cannot.” PC #39 at 5.
Fourth, NORA challenges as “incorrect” the Agency’s argument that NORA’s proposal
“would apply the hauling permit exemption to all used oil transporters even when they are
hauling special waste that is not used oil.” PC #39 at 5;
see
PC #33 at 4. NORA clarifies that,
[i]f a used oil transporter hauls special waste that is not regulated pursuant to Part 739, he or she
most assuredly needs a special waste hauling permit to do so.” PC #39 at 5. NORA states that it
has not taken a contrary position on this issue.
Id
.
Fifth, NORA disagrees with the Agency’s claim that, “[c]learly, the manifest
requirements in part 809 are more detailed than the tracking requirements in Part 739.” PC #39
at 5, citing PC #33 at 5. NORA states that Parts 808 and 809 “do not themselves provide for
individual listing of special waste streams.” PC #39 at 6. NORA claims that the manifests
provide only for a shipping description similar to what is required by Part 739.
Id
. NORA
further states that manifesting under Parts 808 and 809 is “virtually identical” to used oil tracking
in Part 739.
Id
.
Sixth, NORA disputes the Agency’s claim that “the Part 809 manifest will also satisfy the
Part 739 tracking requirements.” PC #39 at 6, citing PC #33 at 5. Noting that the Agency has
compared the tracking and manifesting requirements in a table in its comments, NORA responds
that “[t]his comment, and the accompanying table, simply demonstrate that the IEPA lacks a
basic understanding as to how these documents actually apply in practice – at the point of pick-
up and transport.” PC #39 at 6;
see supra
at 30 (Agency table comparing regulations).
Notwithstanding its repeated claim that manifesting under Part 808 and 809 and special waste
tracking under Part 739 are “virtually identical” to one another (PC #39 at 5-6), NORA states
that it “would argue that Part 739 reporting is much more detailed and that the manifest does not
44
require the same business information as is necessary for adequate reporting and tracking of used
oil.” PC #39 at 6, citing PC #39, Attachment B (“Supporting Statement for Renewal of
Information Collection Request Number 1286 ‘Used Oil Management Standards Recordkeeping
and Reporting Requirements’”);
see
35 Ill. Adm. Code 739.146, 739.156, 739.165, 739.174
(tracking requirements). NORA further states that its members do not use a special waste
manifest to meet their used oil tracking obligations. PC #39 at 6.
Seventh, NORA characterizes as “wrong” the Agency’s claim that “NORA has argued
that Illinois is the only state that uses a manifest.” PC #39 at 6;
see
PC #33 at 6. NORA claims
that “the vast majority of states” are consistent with one another in adopting used oil regulations
identical to the federal program. PC #39 at 6. NORA further claims that no state “creates a
distinction between (a) used oil as specifically defined in [35 Ill. Adm. Code] 739.100 and (b)
used oil allowed to be treated as such under the applicability section of those same rules – as the
IEPA language does.” PC #39 at 6;
see
35 Ill. Adm. Code 739.110.
Eighth, NORA counters the Agency’s claims that “it is not seeking a new category of
waste or new interpretation of Part 739” and that “used oil is a special waste.” PC #39 at 7;
see
PC #33 at 6. NORA acknowledges that, before Illinois’ adoption of the federal used oil
program, used oil “may have been a special waste” under the pre-existing special waste
regulations.
Id
. NORA further acknowledges that “discarded used oil is still classified as special
waste.”
Id
. NORA argues that, if used oil and mixtures of used oil with appropriate materials
are recycled products and are not special wastes “if they are managed pursuant to the used oil
rules.”
Id
. NORA claims that the Agency’s position unrealistically creates separate regulatory
requirements for recycled used oil.
Id
.
Ninth, NORA discounts the Agency’s comment that the Agency proposal would
encourage haulers from other states to recycle used oil at Illinois facilities. PC #39 at 7;
see
PC
#33 at 7. NORA states that other states do not treat used oil as special waste and do not apply
manifesting and hauling permit requirements to used oil companies. PC #39 at 7. NORA further
states that the Agency’s proposal with regard to mixtures of appropriate materials with used oil
would confuse out-of-state companies.
Id
. at 7-8.
Tenth, NORA disparages as showing a “lack of understanding” the Agency’s comment
that
[t]he proposed NORA language would allow special waste that is mixed with
used oil by the generator, the transporter, or the receiving facility, to become
subject to only the used oil standards of Part 739. The Illinois EPA’s concern is
that since no one has conducted an evaluation of the impact of managing special
waste mixed with used oil solely under the used oil regulations, the used oil
regulations at Part 739 may not be the appropriate management standards for all
non-hazardous special waste. PC #39 at 8, citing PC #33 at 7
NORA suggests that this comment is inconsistent with federal used oil regulations, which allow
mixtures to be treated as used oil and which are intended to develop a market for used oil. PC
#39 at 8. Also, NORA argues that USEPA has evaluated mixtures of used oil and non-hazardous
45
waste and suggests that USEPA relied upon the results of those evaluations in adopting the
federal used oil regulations, including language now in effect at 35 Ill. Adm. Code 739.110
regarding the applicability of those regulations.
Id
.
Eleventh, NORA addresses the Agency’s view that NORA’s proposal would encourage
mixing special waste with used oil. PC #39 at 9. NORA argues that the Agency is “wrong” to
state that materials mixed with used oil “are waste and not recycled products.”
Id
. NORA
professes that it “fails to understand” the Agency’s view when the federal rules allow such
mixing to be performed “where technically appropriate and economically justified.”
Id
. NORA
argues that, in promulgating used oil regulations, USEPA sought to “encourage legitimate
recycling and protect human health and [the] environment.”
Id
, citing Tr.1 at 9-11, Harris
Prefiled Test. at 2. NORA claims that mixtures of used oil and certain non-hazardous wastes
should be encouraged where it is allowed by law and provides the least expensive way to recycle
wastes. PC #39 at 9. NORA states that such a mixture “takes other special wastes out of the
waste stream and allows them to be recycled along with the used oil.”
Id
.
Twelfth, NORA argues that the Agency “fails to grasp” the expertise acquired by used oil
recyclers in the two decades since the enactment of the federal used oil program. PC #39 at 9.
NORA claims that those recyclers have “become expert” in determining which mixtures of used
oil and other materials are appropriate, meet applicable ASTM and used oil regulatory standards,
and comply with customers’ Clean Air Act permits.
Id
. NORA further claims that the market
for used oil controls a recycler’s determination whether material is a special waste or whether “it
is capable of appropriately blending into a used oil commodity.”
Id
. NORA argues that a
recycler would not intentionally introduce into the stream of used oil for recycling any material
that might prevent the mixture from meeting ASTM or regulatory standards, as this would
reduce the value of the used oil as a marketable commodity.
Id
., citing 35 Ill. Adm. Code
739.111 (Used Oil Specifications). Specifically, NORA states that recyclers must already ensure
that used oil has not been mixed with hazardous waste or corrosive material, either of which
could harm tanks or other equipment. PC #39 at 9-10. NORA claims that “[a]ny real problems
in the field do not have to do with intentional mixing, but in ensuring that the generator has not
mixed the material it seeks to have collected mixed with inappropriate materials. If it has, the
material will not be collected as used oil.” PC #39 at 10.
Thirteenth, NORA responds to the Agency’s view that some used oil facilities accept
mixtures of used oil and non-hazardous special wastes, profit by charging for that acceptance,
and sell the mixture as low-grade used oil. PC #39 at 10;
see
PC #33 at 8. NORA states that it
“does not regard this to be an inappropriate or deviant practice.” PC #39 at 10. NORA further
states that many steel mills and cement kilns can use low-grade used oil fuel while still
complying with their air permits.
Id
. NORA argues, however, that the sale price of low-grade
used oils does “not normally cover the costs associated with collection, and a charge is generally
paid for recycling the material.”
Id
. NORA claims that the Agency “fails to understand” that it
does not make economic sense intentionally to degrade a stream of used oil in order to meet a
lower standard.
Id
. NORA suggests, however, that recyclers do not generally dispose of these
lower-grade materials.
Id
. at 10, 11 NORA claims that, faced with a lower-grade stream, a
recycler can process it back into used oil and the material with which it was mixed or sell it at a
lower price to an entity able to use it.
Id
. at 10.
46
Fourteenth, NORA disputes the Agency’s argument “that non-hazardous special wastes
need more regulation than used oil because “waste” poses a present of potential threat to human
health or the environment.” PC #39 at 11;
see
PC #33 at 9. NORA argues that these materials
undergo recycling and pose no greater hazard than the used oil itself. PC #39 at 11. NORA
claims that mixtures of special waste and used oil occur only when they are economical for
entities in the recycling process.
Id
. NORA further claims that “[u]sed oil recyclers are very
capable of handling used oil and non-hazardous waste streams that would fall under Part 739
regulations,” which include record keeping requirements.
Id
. NORA argues that hazards result
only when such streams are discarded or disposed of improperly.
Id
. NORA further argues that
the Agency does not have evidence that these hazards occur.
Id
. NORA also argues that the
Agency’s “proposed language and arguments presuppose nefarious motives that are simply not
supported by the record.”
Id
.
Fifteenth, NORA dismisses as “not true” the argument that the Agency’s proposal would
make re-refiners more selective about the used oil streams they accept. PC #39 at 11;
see
PC
#33 at 10-11. NORA claims that a re-refiner “can handle practically anything in the oil” because
it separates used oil from various special wastes and charge accordingly for their service. PC
#39 at 11. NORA argues that, if the Agency believes a facility is unlawfully disposing of special
waste, it can inspect that facility.
Id
. NORA further argues that the Agency should address
compliance issues through its enforcement authority and “not by narrowing an exemption from
manifesting to the extent that such exemption makes no sense.”
Id
. at 11-12, citing 415 ILCS
5/31 (2006) (Notice; complaint; hearing).
Sixteenth, NORA responds to the argument that the Agency’s proposal “would not overly
discourage used oil recycling in Illinois.” PC #39 at 12;
see
PC #33 at 10. NORA claims that,
when the Agency made this argument in 1999, the Board determined that it was wrong. PC #39
at 12, citing Amendments to Permitting for Used Oil Management and Used Oil Transport 35 Ill.
Adm. Code 807 and 809, R99-18, slip op. at 1, 8 (Dec. 16, 1999). NORA further claims that it
remains wrong. PC #39 at 12.
Seventeenth, NORA addresses the Agency’s argument that, while used oil mixtures may
be subject to testing for some constituents in order to be sold as fuel, “there are many other toxic
constituents that should be evaluated if other if other non-hazardous special waste is burned as
fuel.” PC #39 at 12;
see
PC #33 at 11. NORA claims that “USEPA fully evaluated all such
constituents in 1985 in determining what was to be required” by used oil fuel specifications. PC
#39 at 12, citing 50 Fed. Reg. 49174-87 (Nov. 29, 1985). NORA further claims that USEPA has
continued studying emissions from burning used oil fuel, “all with favorable results.” PC #39 at
13. NORA continues by claiming that “there is no reason to suspect that the material collected
from the oil recycler, or processed by the used oil processor, will be discarded,” so the material is
not waste subject to Parts 807-09. PC #39 at 12;
see
35 Ill. Adm. Code 807-09. NORA argues
that, if the material includes toxic constituents, it would be considered a hazardous waste subject
to TCLP rules. PC #39 at 12. NORA further argues that, if the material is not toxic, then it “will
hardly be more toxic than the used oil itself.”
Id
.
47
Eighteenth, NORA addresses the claim that mixing special wastes with used oil would
affect the viscosity, BTU value, or ash content of the oil. PC #39 at 12;
see
PC #33 at 12.
NORA argues that this is the reason it “helped establish the ASTM specifications for recycled
used oil fuel.” PC #39 at 12, citing PC #39 at Attachment D (Detailed Requirements for
Industrial Burner Fuels from Used Lubricating Oils).
Nineteenth, NORA claims that the Agency has selectively quoted USEPA language to
suggest that USEPA considers its used oil regulations to be incomplete. PC #39 at 13;
see
PC
#33 at 12-13. Specifically, NORA notes the Agency’s citation to the preamble to 1992
regulations: “[t]he USEPA has decided that these current regulations [the original 1985 used oil
rules] are protective but not complete or sufficient to protect human health or the environment
from potential mismanagement of used oils that are recycled.” PC #39 at 13, citing PC #33 at
13;
see
57 Fed. Reg. 41569 (Sept. 10, 1992). NORA argues that USEPA’s statement
accompanied adoption of 1992 rules, “the very rules which created the record keeping standards
that are relevant to this NORA rulemaking.” PC #39 at 13-14. NORA argues that that the
language quoted by the Agency continues: “[t]herefore, in addition to the existing regulations
[the original used oil rules], used oil handlers will have to comply with additional management
standards that EPA is promulgating today, such as recordkeeping and analysis requirements, and
a requirement for containment consisting of impervious floor and dikes/berms.” PC #39 at 13;
see
57 Fed. Reg. 41569 (Sept. 10, 1992).
Twentieth, NORA acknowledges as generally true the Agency’s claim that “any state can
regulate used oil in a more stringent manner than federal regulations.” PC #39 at 14;
see
PC #33
at 13. NORA responds, however, that the Agency seeks in this docket to apply that authority
inappropriately. PC #39 at 14. NORA states that programs derived from RCRA, including used
oil, are required by the Environmental Protection Act to “be adopted in Illinois is a manner that
is identical to the federal program.”
Id
.;
see
415 ILCS 5/7.2, 22.4(a) (2006). Specifically,
NORA claims that Agency relies on pre-existing language to define as special waste materials
that are able to be recycled as used oil under subsequent regulations. PC #39 at 15. NORA
argues that, if Illinois requires more stringent regulations, it is necessary to hold a subsequent
rulemaking in order to obtain public comment on the reasonableness of the proposed rules.
Id
. at
14;
see
415 ILCS 5/27, 28 (2006). NORA further argues that, after adoption of used oil rules,
the Agency recognized that it had to initiate a formal rulemaking in order to regulate used oil
under Part 807 solid waste provisions. PC #39 at 15;
see
PC 39 at Attachment E (Amendments
to Permitting for Used Oil Management and Used Oil Transport 35 Ill. Adm. Code 807 and 809,
R99-18) (Dec. 16, 1999)).
Twenty-first, NORA argues that the Agency is not correct in the case of used oil to
argues that the “federal regulations do not encourage mixtures.” PC #39 at 15;
see
PC #33 at 13.
NORA acknowledges that USEPA encourages separation of used oil from solid wastes. PC #39
at 15. NORA argues, however, that USEPA endorses mixtures of liquids.
Id
., citing 35 Ill.
Adm. Code 739.110.
Twenty-second and finally, NORA notes the Agency’s view that NORA’s proposal “does
not include limits on the percentage of oil that would be present in the waste.” PC #39 at 15-16;
see
PC #33 at 15. NORA argues that it “has established that the Part 739 tracking and record
48
keeping requirements are substantial and enforceable.” PC #39 at 16, citing 35 Ill. Adm. Code
739. NORA further argues that the Board’s regulations describe the materials that can be mixed
with used oil for purposes of recycling. PC #39 at 16, citing 35 Ill. Adm. Code 739.110. NORA
claims that it “has no reason to offer a percentage of mixture which is or is not appropriate for
recycling,” as the applicability language exempts those mixtures from special waste manifesting.
PC #39 at 16;
see
35 Ill. Adm. Code 739.110.
NORA concludes by noting that the Agency has agreed to discontinue manifesting of
used oil under Parts 808 and 809, as Part 739 addresses used oil. PC #39 at 17. NORA argues,
however, that the Agency’s proposal “is a half measure that would, without justification and
based purely on lack of familiarity with Part 739, as well as suspicion and speculation, dissect
Part 739 in a way that is not workable in this [used oil] industry and not contemplated by Federal
or state law.”
Id
. at 17-18. NORA urges adoption of a proposal that would exempt from special
waste manifest and hauling permits “materials
regulated as used oil
on the basis that it is
sufficiently regulated by Part 739.”
Id
. at 18 (emphasis added).
NORA’S AMENDED RULE PROPOSAL AND SECOND
ERRATA
SHEET
In filing its proposed amendment on November 5, 2007, NORA expressed the suspicion
“that the Board has not yet acted on this rule proposal since the IEPA and NORA have not been
in agreement as to the specific language of the rule.” Prop. at 2. NORA suggests that its
amended proposal is based upon a reconsideration of its original proposal and the Agency’s
position.
Id
. NORA summarizes that position: “since Part 739 tracking is not as prescriptive as
Part 809 manifesting, the IEPA will not be in a position to effectively regulate special waste that
is being inappropriately managed as used oil since tracking under Part 739 is not as extensive as
manifesting under Part 809.” Prop. at 2;
see
35 Ill. Adm. Code 739, 809.
NORA states that its amended proposal offers “a manifest exemption for used oil” that is
intended to be “more simple” and to meet the objectives of both NORA and the Agency. Prop.
at 2. Specifically, NORA proposes language “which would eliminate manifesting for used oil
that is tracked in accordance with Part 739, provided that such tracking contains information
relevant and necessary for the IEPA to ascertain that the material is used oil regulated under Part
739.”
Id
.;
see
35 Ill. Am. Code 739.
NORA suggest that this language meets its objectives in this proceeding: “members of
NORA who have tracking procedures which are relevant and necessary to identifying the
material as used oil under Part 739 will not be required to utilize two separate and duplicative
tracking mechanisms.” Prop. at 3. NORA also suggests that its amended proposal addresses the
Agency’s view: “IEPA will be able to oversee and regulate the transportation of used oil in the
very same manner it does now, so that it may continue to be aware of individual waste streams
and pursue any perceived violations.”
Id
at 2-3. Specifically, NORA argues that its amended
proposal requires used oil recyclers to identify waste streams as they do with manifesting.
Id
. at
3. NORA further argues that this gives responsible recyclers with appropriate tracking
mechanisms the benefit of reduced paperwork.
Id
. In addition, NORA claims that “irresponsible
recyclers will not be in a position to utilize the new language toward an inappropriate purpose.”
Id
.
49
NORA seeks to have its amended proposal, attached to its filing as Exhibit A and offered
as
Errata
Sheet #2, supersede its earlier proposal. The amended proposal would add the
following second paragraph to 35 Ill. Adm. Code 809.101:
[u]sed oil which is regulated under 35 Ill. Adm. Code 739 is not subject to the
manifesting and permit hauling requirements of this Part, including Sections
809.210(b); 809.211; 809.301; 809.302(a); 809.501(a), provided that the tracking
documents which are utilized pursuant to 35 Ill. Adm. Code Part 739 contain
information relevant and necessary to identify and track the material as used oil
regulated under that Part. Prop. at 5 (Exhibit A consisting of
Errata
Sheet #2).
NORA argues that this amended proposal “would achieve the intended result of all parties” and
“urges the Board to accept and adopt this language in a First Notice Order as soon as possible.”
Id
. at 3.
AGENCY RESPONSE TO AMENDED RULE PROPOSAL
The Agency first argues that NORA’s proposed amendment mischaracterizes the current
regulations as requiring unnecessary and duplicative paperwork. Resp. at 1, citing Prop. at 1.
The Agency claims that the information contained in a special waste manifest also satisfies used
oil tracking requirements. Resp. at 1 n.2. The Agency argues that, “if a transporter carries any
special waste, including used oil, they need only one special waste manifest for each load
received from each generator.” Resp. at 1.
The Agency states that its proposed language would modify the Board’s regulations by
eliminating special waste manifests for used oil. Resp. at 1, citing Dragovich Pre-Field Test.
The Agency supports its own language by noting that, even though used oil would no longer
require a special waste manifest, it remains subject to used oil tracking regulations. Resp. at 1;
see
35 Ill. Adm. Code 739, 809. The Agency states that cannot support exempting any other
special waste from manifesting requirements because “[t]here is no second regulatory framework
to pick up other special waste tracking as there is for used oil in Part 739.” Resp. at 2.
The Agency acknowledges that NORA accurately states its concern that it “will not be in
a position to effectively regulate special waste that’s being inappropriately managed as used oil
since tracking under Part 739 is not as extensive as manifesting under Part 809.” Resp. at 2,
citing Prop. at 2. However, the Agency claims that NORA’s amended proposal fails to address
this concern.
The Agency notes that NORA’s amended proposal incorporates that phrase “used oil
regulated under Part 739” and claims that this language would exempt mixtures of used oil and
special waste from manifesting. Resp. at 2. The Agency distinguishes mixtures resulting from
original use of the oil from intentional mixtures of used oil after its generation with other special
wastes.
Id
. n.6. The Agency further claims that used oil mixed after its generation with other
special waste is subject to both used oil and special waste regulations.
Id
. The Agency argues
that, since mixtures are “technically ‘regulated under Part 739,’” it cannot support a proposal
50
allowing mixtures to be regulated only as used oil. Resp. at 2. The Agency restates its view that
NORA’s language would encourage generators and transporters to mix other special waste into
used oil in order to take advantage of an exemption from manifests and hauling permits.
Id
. at 2-
3. The Agency also claims that NORA’s language would also encourage mixing by receiving
facilities, as no documents would identify waste as anything other than used oil and they could
then receive special wastes without having to obtain permits or local siting approval under Part
807.
Id
. at 3;
see
35 Ill. Adm. Code 807.
The Agency disputes as “not true” NORA’s claim that NORA’s own proposal “puts the
burden on a used oil recycler to identify the waste stream, just as it would do with manifesting
. . . . ” Resp. at 3, citing Prop. at 3. The Agency argues that NORA’s amended proposal
“requires no more than that the material be tracked as used oil regulated under Part 739.” Resp.
at 3, citing Prop. at 5 (Exhibit A). The Agency further argues that, because mixtures of used oil
and other special waste are regulated under both Part 739 and Part 809, a transporter reporting
that a mixture is regulated by Part 739 “would not be incorrect but would be misleading as it fails
to identify the other special waste in the mixture.” Resp. at 3. The Agency claims that, because
Part 739 does not require the generator to keep copies of shipping records
indicating where the other special waste was sent for storage, treatment, recycling
or disposal and since the receiving facility would not be notified that the waste
contained anything other than used oil, the identification of the other special
waste in the mixture would be lost.
Id
. at 3-4.
The Agency concludes by claiming that NORA’s amended proposal makes it easy to hide the
presence of other special wastes added to used oil at facilities that are not permitted to accept
those other special wastes.
Id
. at 4.
The Agency argues that it has consistently opposed any exemption from manifesting that
applies to materials “regulated under Part 739.” Resp. at 4, citing PC #1. The Agency states that
most materials contaminated with used oil are regulated by Part 739 but often are also regulated
by stricter standards such as the special waste regulations. Resp. at 4. The Agency argues that
“[m]aterials that should be regulated under stricter standards cannot be allowed out of these
standards simply because they contain used oil because this would encourage the contamination
of these materials with used oil.”
Id
.
The Agency states that it has proposed language exempting from manifests only recycled
used oil by limiting that exemption to “used oil as defined by and managed in accordance with
Part 739.” Resp. at 4. The Agency claims that NORA”S first
errata
sheet changed that quoted
phrase in order to expand its scope.
Id
. The Agency claims that, [s]ince NORA’s members
transport used oil mixed with special waste[,] they want a release from manifesting these loads
also.”
Id
. at 4-5. Although the Agency members of NORA “may make a good faith effort to
track the other special waste, their proposed exemption would leave no regulations in place that
would require them to do so.”
Id
. at 5. The Agency restates its view that “NORA’s exemption
would create a significant loophole for bad actors and others to circumvent the special waste
rules[,] including the requirements of permitting and siting of special waste facilities.”
Id
., citing
51
PC #33 at 8, PC #40 at 8. The Agency argues that NORA’s
Errata
Sheet #2 does nothing to
address its repeated objection to the scope of NORA’s proposal. Resp. at 5.
The Agency concludes by requesting that the Board deny NORA’s motion to file its Rule
Proposal Amendment. Resp. at 5.
DISCUSSION
For the reasons below, the Board is proceeding to first notice with NORA’s proposal, as
amended by the Agency. Specifically, the Board today proposes first-notice amendments
designed to (1) exempt used oil, defined by and managed in accordance with Part 739 (35 Ill.
Adm. Code 739), from the manifesting requirements of Parts 808 and 809 (35 Ill. Adm. Code
808, 809); and (2) exempts shipments containing no special waste other than used oil, defined by
and managed in accordance with Part 739 (35 ill. Adm. Code 739), from the special waste
hauling permit requirements of Parts 808 and 809 (35 Ill. Adm. Code 808, 809).
In this section of the opinion, the Board first briefly addresses the background of Illinois’
used oil regulations before addressing the scope of its proposed exemption from the special
waste manifesting and hauling permit requirements. The Board then makes findings with regard
to the technical feasibility and economic reasonableness of its proposal before seeking public
comment on specific issues related to used oil tracking documents.
Background of Used Oil Rules
Both NORA and the Agency have noted that, before promulgating standards for the
management of used oil (
see
35 Ill. Adm. Code 739), the Board had established special waste
regulations applicable in part to used oil. Statement at 2; PC #33 at 12;
see
Special Waste
Hauling Regulations, R76-10 (Mar. 15, 1979) (final adoption of special waste hauling
regulations); IDENR Special Waste Categorization, R89-13A (Aug. 9, 1990) (creating Part 808).
These regulations now require that, with specified exceptions, “[n]o person shall deliver special
waste to a transporter unless the waste is accompanied by a manifest . . . and the transporter has a
special waste hauling permit. . . .” 35 Ill. Adm. Code 808.121(b).
Part 809 of the Board’s regulations provides various exemptions from the requirement of
obtaining a special waste hauling permit. 35 Ill. Adm. Code 809.211. The same part requires a
manifest for delivery or acceptance of special waste for disposal, storage, or treatment, and it
places requirements on special waste transporters. 35 Ill. Adm. Code 809.301, 809.302. Section
809.501 provides in pertinent that “[a]ny person who delivers special waste to a permitted
nonhazardous special or hazardous waste transporter shall complete a uniform hazardous waste
manifest to accompany the special waste from delivery to the destination of the special waste”
and establishes other requirements. 35 Ill. Adm. Code 809.501(a).
In 1992, USEPA promulgated standards for the management of used oil. 57 Fed. Reg.
41612 (Sept. 10, 1992);
see
40 C.F.R. 279. Exercising its authority to adopt rules that are
identical-in-substance to those adopted by USEPA under specified federal programs (415 ILCS
5/7.2, 22.4(a) (2006)), the Board adopted those used oil management standards as a new Part 739
52
of its regulations. RCRA Update, USEPA Regulations (7/1/92 – 12/31/92), R93-4 (Sept. 23,
1993). Among its other provisions, Part 739 addresses tracking on the part of used oil generators
(35 Ill. Adm. Code 739.120(b)), used oil transporters (35 Ill. Adm. Code 739.146), used oil
processors, (35 Ill. Adm. Code 739.156), and used oil burners (35 Ill. Adm. Code 739.165).
Tracking records requires specified information.
E.g.
, 35 Ill. Adm. Code 739.146(a) (addressing
acceptance of shipment for transport).
In its opinion adopting used oil management standards, the Board noted a comment from
Safety-Kleen Corporation that the tracking provisions did not correspond to existing regulations
that may classify used oil as special waste. Specifically, Safety-Kleen Corporation stated that
[a]s such, these used oils will be subject to the manifesting requirements of 35
IAC Section 809.501, as well as the new proposed used oil management
regulations. In accordance with the “special waste” regulations, used oil
generators are required to obtain an Illinois generator Id number and are required
to manifest their used oil off-site. Transporters are required to obtain a permit and
manifest the used oils to a permitted special waste facility. Transfer facilities and
processing facilities are required to obtain a Special Waste operating Permit and
Waste Stream authorization numbers for each type of oil received. None of these
provisions are included or referenced in the used oil regulations. In fact, Section
739.156 states that processors records “may take the form of a log, invoice,
manifest, bill of lading or other shipping documents.” Using an invoice or a bill
of lading may not be in compliance with the special waste requirements. The
IPCB must make clear which tracking requirements apply to used oil shipments.
RCRA Update, USEPA Regulations (7/1/92 – 12/31/92), R93-4, slip op. at 64-65
(Sept. 23, 1993).
The Board addressed Safety-Kleen Corporation’s comment by stating that the Board
agrees that the used oil should be subject to the special waste manifesting
regulations. The Board believes that its existing manifest regulations in Part 809
are more stringent than the Federal regulations and thus apply. Therefore, the
Board will adopt the regulations to reflect that used oils are subject to special
waste manifesting regulations . . . .”
Id
.
Scope of Proposed Exemption
In filing its original proposal and statement of reasons, NORA stated that discussed the
used oil program with the Agency and had “reached substantial agreement on the specific
changes” necessary to amend Illinois’ special waste hauling and manifesting requirements for
used oil. Statement at 3. In his comments and testimony, Mr. Dragovich agreed that the Agency
had discussed used oil requirements with NORA before NORA filed its proposal in this
proceeding. PC #1 at 1. However, in recommending revisions to NORA’s original proposal, he
stated that these discussions
53
were limited to the elimination of manifests for used oil that is defined by and
managed in accordance with Part 739 and the elimination of hauling permits for
transporters that are only transporting loads of used oil that is defined by and
managed in accordance with Part 739. No other aspects of the special waste
regulations were discussed with NORA, and it is the Illinois EPA’s belief that
NORA does not intend to exclude used oil from the definition of special waste or
any other requirements such as reporting that may still apply. The Illinois EPA
also believes that it was not NORA’s intention to propose an exemption that
includes other wastes that are not used oil that is defined by and managed in
compliance with Part 739 or special wastes that are clearly not destined for
recycling.
Id
., Dragovich Test. at 2.
Addressing the participants’ positions, counsel for the Agency at the second hearing indicated
that NORA and the Agency had misunderstood the extent to which they had reached agreement
because their discussions referred “conversationally” to the term “used oil” outside the presence
of their respective technical staffs. Tr.2 at 7-8.
NORA takes the position that its proposed manifest exemption should apply not only to
what is defined as “used oil” but “also to all of the used-oil-like mixtures which are already
subject to management as used oil pursuant to federal regulations and also pursuant to 35 Ill.
Adm. Code 739.” Ray Prefiled Test. at 4. Mr. Harris echoes this general position and claims
that used oil tracking documents monitor shipments of materials regulated as used oil just as
effectively as they monitor shipments of used oil. Harris Prefiled Test. at 4-5. Mr. Ray
specifically identifies “material containing or otherwise contaminated with used oil that is burned
for energy recovery” as one material that does not meet the definition of “used oil” but which is
subject to regulation as used oil. Ray Prefiled Test. at 3-4;
see
35 Ill. Adm. Code 739.110(c)(2).
The Agency takes the position that an exemption from the special waste hauling permit
and manifesting requirements “should be clear that it only applies to used oil as defined by Part
739 and would not apply to other wastes transported on the same load, or other vehicles operated
by the transporter that are not carrying exempt loads of used oil.” Dragovich Prefiled Test. at 3.
The Agency believes that NORA’s proposal “would give generators of non-hazardous special
waste the opportunity to mix their non-hazardous special waste with used oil and would relieve
them of any responsibility to convey this to the transporter or receiving facility, effectively
hiding the waste in used oil.” PC #33 at 7. In his testimony at the second hearing, Mr.
Dragovich elaborated on the Agency’s belief in this regard.
The problem with the proposal is that you can take a cup of oil and put it into
another waste and call all that used oil and say it’s exempt, and now you’ve got
something that doesn’t behave at all like used oil but the entire description from
there on forward is going to say this is used oil. And everybody’s going to treat it
like used oil. Tr.2 at 33.
The Board notes that Section 739.100 defines used oil as “any oil that has been refined
from crude oil or any synthetic oil that has been used and as a result of such use is contaminated
by physical or chemical impurities.” 35 Ill. Adm. Code 739.100. The Board further notes that
54
used oil mixed after generation with special waste would not meet this definition. However, the
mixture may become “subject to regulation as used oil” in the course of recycling.
See
35 Ill.
Adm. Code 739.110. If a manifest exemption applied to such a mixture on the basis that it is
“subject to regulation as used oil,” it would be tracked as used oil without identifying the special
waste. Because the mixture could ease the burden of managing special waste, the Board can
only conclude that such a manifest exemption would encourage more special waste to be mixed
with used oil after generation. The Board notes that the Agency offered evidence that various
special wastes had been mixed with used oil and managed as used oil under the requirements of
Part 739. Cahnovsky Prefiled Test. at 1, Attachments 1-6; Tr.2 at 13-14.
Although the Board’s first-notice proposal below does nothing to prohibit such mixtures,
tracking mixtures solely as used oil without a special waste manifest raises a number of issues.
For example, reliance solely on a used oil tracking document for those mixtures may not reveal
to transporters, emergency responders, and various receiving facilities that special waste has
been mixed with used oil. The special waste may have properties significantly different from
used oil, which may thwart recycling.
In addition, NORA’s proposal would not require that a special waste mixture contain
some minimum amount of used oil in order to qualify for an exemption from the manifest
requirements. Members of NORA offered some testimony that the market for used oil and the
nature of their business may limit the application of a manifest exemption. Mr. Lenz noted that
Part 739 presumes used oil recycling, and he appeared to suggest that NORA would like to allow
a manifest exemption for “wastes that are compatible with the used oil, that will pass the used oil
EPA specification test, that will pass the ASTM used oil performance test.” Tr.2 at 55. When
asked by Mr. Dragovich how much used oil a mixture would have to contain in order to be
deemed used oil, Mr. Lenz opined “more than
de minimis
amounts,” and Ms. McCord suggested
a recoverable amount of used oil in the mixture. Tr.2 at 110-11. The Board need not determine
today whether this testimony provides a basis to extend an exemption from special waste
requirements beyond used oil as defined in Section 739.100. No participant has formally
proposed language of this nature, and the record is not sufficiently clear for the Board to propose
it for first notice.
Technical Feasibility and Economic Reasonableness
In the course of these proceedings, the Agency introduced testimony that that used oil
facilities purchased 524,824 manifests from it during a two and one-half year period at a rate of
210,330 manifests annually. The Agency estimated that facilities purchased 168,650 manifests
for the transportation of used oil in that two and one-half year period at a rate of 67,460
manifests annually. The Agency did not include a growth factor in those figures. It concluded
that the number of shipments of used oil that would be exempt from manifesting is
approximately 67,460 but could be more than 210,330 shipments per year. Even though it is
limited to used oil as defined by and managed in accordance with Part 739, the exemption
proposed today by the Board for first-notice publication would eliminate the filing of some
manifests and result in some savings to regulated entities.
55
NORA also offered testimony regarding the costs of manifesting shipments of used oil.
Mr. Lenz testified that, for Future Environmental, purchasing manifests costs $600 per day of
operation and involves the cost of additional time on the part of its field and office personnel.
Also, Mr. Ray testified that, even as one of the smaller used oil collectors in the State,
manifesting annually costs Heritage Crystal Clean $100,000. Nothing in the record suggests that
the manifesting costs for other used oil entities differ significantly from these figures.
The Board thus finds that NORA’s proposal, as amended by the Agency, is economically
reasonable. Also, as the record does not demonstrate than an exemption from filing a special
waste manifest for shipments of used as oil as defined by 35 Ill. Adm. Code 739.100 itself
presents any technical issues, the Board also finds that NORA’s proposal, as amended by the
Agency, is technically feasible.
Accordingly, the Board adopts for first-notice NORA’s proposal, as amended by the
Agency. The Board notes that, in doing so, it is not amending the definition of “used oil” at
Section 739.100 or the applicability of the used oil regulations under Section 739.110. Likewise,
the Board is not today in any way amending the used oil management standards of Part 739.
Furthermore, the Board is providing an exemption from an existing requirement and is not
imposing a new requirement.
Request for Public Comment
During the second hearing, Ms. McCord expressed frustration that NORA’s proposal had
been misinterpreted:
I don’t understand how we’ve gotten off the mark in focusing on the definition of
used oil. That’s not what we’re asking for. We’re asking to substitute for a piece
of paper with information. And if the Department feels there’s elements that are
missing or you need to have standardized, you know, pieces of information on
those shipments, lay them out. Tr.2 at 52-53.
In response, counsel for the Agency argues that the tracking requirements in Part 739 only allow
the Agency to require information relevant to shipments of used oil.
Id
. at 53. She suggested
that it is only through a special waste manifest that the Agency has the authority to require
information pertinent to special wastes mixed with used oil after generation.
See id
. at 53-54.
The Agency has noted that NORA introduced as hearing exhibits a number of the
shipping papers used by its members in the course of transporting used oil. While the Agency
has acknowledged that these shipping papers appear to resemble a special waste manifest, the
Agency notes that the information in these shipping papers exceeds what is required under Part
739 and that the Agency lacks authority under Part 739 to require the filing of such documents.
The Board seeks comment from the participants on whether the Part 739 tracking
document requirements should be amended to require information necessary to satisfy other
informational requirements such as those for manifesting under Parts 808 and 809. If a
participant seeks to revise Part 739, the Board requests that the comment include regulatory
56
language that might be proposed to effect such a revision and that may support a manifest
exemption for materials regulated as used oil. Specifically, the Board seeks to determine
whether the record in this proceeding may be developed in a way that supports adoption of a
proposal similar to that sought by NORA while addressing the Agency’s concerns.
CONCLUSION
The Board proposes for first-notice publication in the
Illinois Register
language that
would exempt from the manifesting requirements of Parts 808 and 809 (35 Ill. Adm. Code 808,
809) used oil that is defined by and managed in accordance with Part 739 (35 Ill. Adm. Code
739) and that would exempt from the special waste hauling permit requirements of Parts 808 and
809 (35 Ill. Adm. Code 808, 809) shipments that contain no special waste other than used oil that
is defined by and managed in accordance with Part 739 (35 Ill. Adm. Code 739).
In addition, the Board specifically seeks comment on whether to amend the tracking
requirements in Part 739 so that those regulations would require in a single document,
information sufficient to satisfy the various informational requirements that may apply to
shipments of used oil. Additionally, in the event that a participant wishes to amend Part 739 in
this manner, the Board seeks comment in the form of regulatory language that might be proposed
to effect such an amendment. Specifically, the Board seeks to determine whether the record in
this proceeding may be developed in a way that supports adoption of a proposal similar to that
sought by NORA while addressing the Agency’s concerns.
ORDER
The Board directs the Clerk to cause first-notice publication of the following proposed
amendments to the Board’s special waste regulations concerning used oil in the
Illinois Register
.
Proposed additions to Parts 808 and 809 are underlined; proposed deletions appear stricken.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING
PART 808
SPECIAL WASTE CLASSIFICATIONS
SUBPART A: GENERAL PROVISIONS
Section
808.100
Purpose, Scope and Applicability
808.101
Transitional Rule
808.110
Definitions
808.111
Incorporations by Reference
57
808.121
Generator Obligations
808.122
Manifests
808.123
Small Quantity Generators
SUBPART B: CLASSES OF SPECIAL WASTE
Section
808.240
Special Waste Classes
808.241
Default Classification of Special Wastes
808.242
Special Handling Waste
808.243
Wastes Categorized by Source
808.244
Wastes Categorized by Characteristics
808.245
Classification of Wastes
SUBPART C: CRITERIA AND DATA REQUIREMENTS
Section
808.300
Introduction
808.301
Degree of Hazard Determination by Computer
808.302
Data Base and Bioassay Procedures
SUBPART D: REQUEST FOR WASTE CLASSIFICATION
Section
808.400
Introduction
808.401
Application Forms
808.402
Application for Waste Classification
808.410
Physical and Chemical Analysis
808.411
Significant Trace Constituents
808.412
Common Names
808.413
Wastestream Description
808.420
Quality Assurance Plan
808.430
Degree of Hazard Data
808.431
Toxicological Testing
SUBPART E: REVIEW OF CLASSIFICATION REQUESTS
Section
808.501
Order of Requesting Information
808.502
Completeness
808.503
Standard for Classification
58
SUBPART F: WASTESTREAM CLASSIFICATION DETERMINATIONS
Section
808.520
Time for Agency Action
808.521
Conditions of Wastestream Classification
808.522
Final Agency Action
SUBPART G: MODIFICATION, APPEAL AND ENFORCEMENT
Section
808.541
Request for Modification
808.542
Appeal
808.543
Effect of Classification
808.544
Enforcement
808.545
Modification
SUBPART H: CATEGORICAL AND CHARACTERISTIC WASTES
Section
808.600
Introduction
808.APPENDIX A
Assignment Of Special Waste To Classes
808.APPENDIX B
Toxicity Hazard
AUTHORITY: Implementing Sections 21, 22, 22.01 and 22.9, and authorized by Section 27 of
the Environmental Protection Act [415 ILCS 5/21, 22, 22.01, 22.9].
SOURCE: Adopted in R89-13A at 14 Ill. Reg. 14043, effective August 15, 1990; amended in
R98-29 at 23 Ill. Reg. 6875, effective July 1, 1999; amended in R06-20 at 32 Ill. Reg.
_________, effective ____________.
SUBPART A: GENERAL PROVISIONS
Section 808.121
Generator Obligations
a)
Each person who generates waste shall determine whether the waste is a special
waste.
BOARD NOTE: 35 Ill. Adm. Code 722 requires the person to also determine if
the waste is a hazardous waste.
b)
No person shall deliver special waste to a transporter unless the waste is
accompanied by a manifest as specified in Section 808.122, and the transporter
59
has a special waste hauling permit issued pursuant to 35 Ill. Adm. Code 809. The
following are exceptions to this prohibition:
1)
The person is subject to the small quantity generator exemption of Section
808.123.
2)
The transporter and waste are subject to a transporter exemption under 35
Ill. Adm. Code 809.211.
3)
The Agency has determined pursuant to this Part that the waste is not a
special waste.
4)
The waste consists of municipal water or wastewater treatment plant
sludge regulated under a sludge management plan approved by the
Agency pursuant to 35 Ill. Adm. Code 309.208.
5)
The generator is not required to complete a manifest for used oil that is
defined by and managed in accordance with 35 Ill. Adm. Code 739.
6)
A transporter is not required to have a special waste hauling permit to
transport a load that contains no special waste other than used oil that is
defined by and managed in accordance with 35 Ill. Adm. Code 739 if the
transporter has registered with the Agency as a used oil transporter.
c)
No person shall cause, threaten or allow the treatment, storage or disposal of
special waste in Illinois except:
1)
At a facility permitted or otherwise authorized to manage the special
waste pursuant to 35 Ill. Adm. Code 703 or 807
[415 ILCS 5/21(d) and
(e)] (Sections 21(d) and (e) of the Act); or
2)
At a facility owned and operated by such person and subject to the on-site
disposal exemption of Section 21(d) of the Act
[415 ILCS 5/21(d)]
(Section 21(d) of the Act).
d) No person shall deliver special waste to a transporter or a permitted facility without a
supplemental wastestream permit.
e)
No person shall deliver to a transporter or permitted facility special waste with a
wastestream identification number unless the waste conforms with the
wastestream description in the wastestream classification determination.
(Source: Amended at 32 Ill. Reg. _________, effective ____________)
TITLE 35: ENVIRONMENTAL PROTECTION
60
SUBTITLE G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING
PART 809
NONHAZARDOUS SPECIAL WASTE HAULING AND THE UNIFORM PROGRAM
SUBPART A: GENERAL PROVISIONS
Section
809.101
Authority, Policy and Purposes
809.102
Severability
809.103
Definitions
809.104
Incorporations by Reference
809.105
Public Records
SUBPART B: NONHAZARDOUS SPECIAL WASTE HAULING PERMITS
Section
809.201
Nonhazardous Special Waste Hauling Permits-General
809.202
Applications for Nonhazardous Special Waste Hauling Permit-Contents
809.203
Applications for Nonhazardous Special Waste Hauling Permit-Signatures and
Authorization
809.204
Applications for Nonhazardous Special Waste Hauling Permit-Filing and Final
Action by the Agency
809.205
Nonhazardous Special Waste Hauling Permit Conditions
809.206
Nonhazardous Special Waste Hauling Permit Revision
809.207
Transfer of Nonhazardous Special Waste Hauling Permits
809.208
Nonhazardous Special Waste Hauling Permit Revocation
809.209
Permit No Defense
809.210
General Exemption from Nonhazardous Special Waste Hauling Permit
Requirements
809.211
Exemptions for Nonhazardous Special Waste Transporters
809.212
Duration of Nonhazardous Special Waste Hauling Permits
SUBPART C: DELIVERY AND ACCEPTANCE
Section
809.301
Requirements for Delivery of Nonhazardous Special Waste to Transporters
809.302
Requirements for Acceptance of Nonhazardous Special or Hazardous
Waste from Transporters
SUBPART D: PERMIT AVAILABILITY AND SYMBOLS
Section
61
809.401
Permit Availability
809.402
Nonhazardous Special Waste Symbols
SUBPART E: MANIFESTS, RECORDS AND REPORTING
Section
809.501
Manifests, Records, Access to Records, Reporting Requirements and Forms
SUBPART F: DURATION OF PERMITS AND TANK NUMBERS
Section
809.601
Duration of Special Waste Hauler Permits and Tank Numbers (Repealed)
SUBPART G: EMERGENCY CONTINGENCIES FOR SPILLS
Section
809.701
General Provision
SUBPART H: EFFECTIVE DATES
Section
809.801
Compliance Date
809.802
Exceptions (Repealed)
SUBPART I: HAZARDOUS (INFECTIOUS) HOSPITAL WASTE
Section
809.901
Definitions (Repealed)
809.902
Disposal Methods (Repealed)
809.903
Rendering Innocuous by Sterilization (Repealed)
809.904
Rendering Innocuous by Incineration (Repealed)
809.905
Recordkeeping Requirements for Generators (Repealed)
809.906
Defense to Enforcement Action (Repealed)
SUBPART J: UNIFORM PROGRAM
Section
809.910
Uniform State Hazardous Waste Transportation Registration and Permit Program
809.911
Application for a Uniform Permit
809.912
Application for Uniform Registration
62
809.913
Payment of Processing and Audit Fees
809.914
Payment of Apportioned Mile Fees
809.915
Submittal of Fees
809.916
Previously Permitted Transporters
809.917
Uniform Registration and Uniform Permit Conditions
809.918
Uniform Registration and Uniform Permit Revision
809.919
Transfer of Uniform Registration and Uniform Permits
809.920
Audits and Uniform Registration and Uniform Permit Revocation
809.921
Permit No Defense
809.APPENDIX A
Old Rule Numbers Referenced (Repealed)
AUTHORITY: Implementing Sections 5, 10, 13, 21, 22, 22.01, and 22.2 and authorized by
Section 27 of the Environmental Protection Act [415 ILCS 5/5, 10, 13, 21, 22, 22.01, and 22.2
and 27] (see P.A. 90-219).
SOURCE: 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 R80-19, 41 PCB 459, at 5 Ill. Reg.
6378, effective May 31, 1981; codified in R81-9, 53 PCB 269, at 7 Ill. Reg. 13640; effective
September 30, 1983; 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. Reg. 14076, effective August 15, 1990; amended
in R91-18 at 16 Ill. Reg. 130, effective January 1, 1992; amended in R95-11 at 20 Ill. Reg. 5635,
effective March 27, 1996; amended in R98-29 at 23 Ill. Reg. 6842, effective July 1, 1999;
amended in R00-18 at 24 Ill. Reg. 14747, effective September 25, 2000; amended in R06-20 at
32 Ill. Reg. _________, effective ____________.
SUBPART B: NONHAZARDOUS SPECIAL WASTE HAULING PERMITS
Section 809.211
Exemptions for Nonhazardous Special Waste Transporters
The following persons need not obtain a nonhazardous special waste hauling permit nor carry a
manifest if they haul only the waste indicated:
a)
Any person licensed in accordance with the Private Sewage Disposal Licensing
Act [225 ILCS 225] and who hauls only septic tank pumpings.
b)
Any person who hauls only livestock waste intended for land application pursuant
to 35 Ill. Adm. Code 560.
c)
Transporters of municipal water or wastewater treatment plant sludge that is to be
applied to land and that is regulated under a sludge management scheme approved
by the Agency pursuant to 35 Ill. Adm. Code 309.208.
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d)
Any person licensed in accordance with the Illinois Dead Animal Disposal Act
[225 ILCS 610] and who hauls only grease, meat packing scraps, dead animals
and parts of animals for delivery to a renderer.
e)
Any person operating under rules and regulations adopted pursuant to the Illinois
Oil and Gas Act [225 ILCS 725] and who hauls only oil and gas extraction wastes
as defined in that Act.
f)
Any person who hauls only radioactive wastes as defined by the Radiation
Protection Act [420 ILCS 40].
g)
Any person who hauls only coal combustion fly ash.
h)
Any person who hauls only declassified waste or refuse.
i)
Any person who hauls only special waste exempted by 35 Ill. Adm. Code 808.123
(small quantity generators of 220 pounds or less per month of special waste).
j) Any person who hauls potentially infectious medical waste that is regulated under 35
Ill. Adm. Code Subtitle M.
k)
Any person who hauls used tires regulated under 35 Ill. Adm. Code 848.
l)
Any person who hauls only used oil that is defined by and managed in accordance
with 35 Ill. Adm. Code 739, and who has registered with the Agency as a used oil
transporter.
(Source: Amended at 32 Ill. Reg. ____________, effective ______________)
SUBPART C: DELIVERY AND ACCEPTANCE
Section 809.301
Requirements for Delivery of Nonhazardous Special Waste to
Transporters
No person may deliver any special waste generated within Illinois or for disposal, storage or
treatment within Illinois unless that person concurrently delivers a manifest completed in
accordance with Subpart E of this Part to a special waste transporter who holds a current
nonhazardous special waste hauling permit or Uniform Program Registration and Permit issued
by the Agency under Subpart B or C of this Part. The generator or transporter is not required to
complete a manifest for used oil that is defined by and managed in accordance with 35 Ill. Adm.
Code 739. A transporter is not required to have a special waste hauling permit to transport a load
that contains no special waste other than used oil that is defined by and managed in accordance
with 35 Ill. Adm. Code 739 if the transporter has registered with the Agency as a used oil
transporter.
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(Source: Amended at 32 Ill. Reg. ____________, effective ______________)
Section 809.302
Requirements for Acceptance of Nonhazardous Special or Hazardous
Waste from Transporters
a)
No person may accept any special waste for disposal, storage or treatment within
Illinois from a special waste transporter unless the special waste transporter has a
valid nonhazardous special waste hauling permit or Uniform Program
Registration and Permit issued by the Agency under Subpart B or J of this Part
and concurrently presents to the receiver of the special waste, or the receiver's
agent, a completed, signed manifest as required by Subpart E of this Part, which
manifest designates the receiver's facility as the destination for the special waste.
The generator or transporter is not required to complete a manifest for used oil
that is defined by and managed in accordance with 35 Ill. Adm. Code 739. A
transporter is not required to have a special waste hauling permit to transport a
load that contains no special waste other than used oil that is defined by and
managed in accordance with 35 Ill. Adm. Code 739 if the transporter has
registered with the Agency as a used oil transporter.
b)
No person may deliver special waste in Illinois for disposal, storage or treatment
unless the person who accepts the special waste has a current, valid operating
permit issued by the Agency and the necessary supplemental permits required by
35 Ill. Adm. Code 807, as well as all other applicable permits as required by the
Act and Board regulations.
(Source: Amended at 32 Ill. Reg. __________, effective ___________)
SUBPART E: MANIFESTS, RECORDS AND REPORTING
Section 809.501
Manifests, Records, Access to Records, Reporting Requirements and
Forms
a)
Any person who delivers special waste to a permitted nonhazardous special or
hazardous waste transporter shall complete a uniform hazardous waste manifest to
accompany the special waste from delivery to the destination of the special waste.
The manifest form will be provided or prescribed by the Agency. The generator
or transporter is not required to complete a manifest for used oil that is defined by
and managed in accordance with 35 Ill. Adm. Code 739. A transporter is not
required to have a special waste hauling permit to transport a load that contains no
special waste other than used oil that is defined by and managed in accordance
with 35 Ill. Adm. Code 739 if the transporter has registered with the Agency as a
used oil transporter.
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b)
The transporter shall include in the manifest the following:
1)
The name of the generator of the special waste and generator number;
2)
Information stating when and where the special waste was generated;
3)
The name of the person from whom delivery is accepted and the name of
the site from which delivered;
4)
The name and permit number of the transporter;
5)
The date of delivery; and
6)
The classification and quantity of the special waste delivered to the
transporter.
c)
Manifest copies to be sent to the Agency:
1)
Every person who delivers RCRA hazardous waste or polychlorinated
biphenyl (PCB) wastes to a transporter shall submit a copy of the Illinois
manifest to the Agency within two days after the shipment. Every person
who accepts RCRA hazardous waste or PCB waste from a transporter
shall submit a copy of the Illinois manifest to the Agency within 30 days
after receipt.
2)
A person who delivers RCRA hazardous waste or PCB wastes to a
transporter on another state's manifest, such as where the destination state
requires use of its manifest, does not have to submit manifest copies to the
Agency.
3)
A person who delivers non-RCRA hazardous wastes or non-PCB wastes
to a transporter does not have to send a copy of the manifest to the
Agency. A person who accepts non-RCRA hazardous waste or non-PCB
wastes from a transporter does not have to send a copy of the manifest to
the Agency.
d)
The manifest will consist of at least four parts, in contrasting colors, such that an
entry or signature on one part will be directly reproduced upon all underlying
parts. The top part of the manifest shall be signed by the person who delivers
special waste to a special waste transporter, acknowledging the delivery. The top
part of the manifest shall also be signed by the special waste transporter,
acknowledging receipt of the special waste. The person who delivers special
waste to a special waste transporter shall retain the designated parts of the
manifest as a record. The remaining parts of the manifest shall accompany the
special waste shipment. At the destination, the manifest shall be signed by the
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person who accepts special waste from a special waste transporter,
acknowledging receipt of the special waste.
e)
A permitted site that receives special waste for disposal, storage or treatment of
special waste must be designated on the manifest as the final destination point.
Any subsequent delivery of the special waste or any portion or product thereof to
a special waste transporter shall be conducted under a manifest initiated by the
permitted disposal, storage or treatment site.
f)
In all cases, the special waste transporter shall deliver the designated parts of the
complete, signed manifest to the person who accepts delivery of special waste
from the transporter. The special waste transporter shall retain the designated part
of the complete, signed manifest as a record of delivery to a permitted disposal,
storage or treatment site. In addition, at the end of each month, or longer if
approved by the Agency, the owner and the operator of the permitted disposal,
storage or treatment site who accepts special waste from a special waste
transporter shall send the designated part of the completed manifest to the person
who delivered the special waste to the special waste transporter.
g)
Every generator who delivers special waste to a special waste transporter, every
person who accepts special waste from a special waste transporter and every
special waste transporter shall retain their respective parts of the special waste
manifest as a record of all special waste transactions. These parts shall be
retained for three years and will be made available at reasonable times for
inspection and photocopying by the Agency.
BOARD NOTE: The manifest requirements of 35 Ill. Adm. Code 722, 724 and
725 relative to RCRA hazardous wastes are not affected by this subsection.
Generators and receiving facilities subject to those Parts shall continue to supply
designated copies of all manifests to the Agency.
h)
Every generator who delivers nonhazardous special waste via a transporter to a
facility located outside Illinois shall file a report, on forms prescribed or provided
by the Agency, summarizing all such activity during the preceding calendar year.
Such reports shall, at a minimum, include the information specified in subsection
(i) of this Section and should be received by the Agency no later than February 1.
i)
Every annual report required to be filed with the Agency by a generator for waste
going out of state pursuant to subsection (h) of this Section shall include the
following:
1)
The IEPA identification number, name and address of the generator;
2)
The period (calendar year) covered by the report;
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3)
The IEPA identification number, name and address for each off-site
treatment, storage or disposal facility to which waste was shipped during
the period;
4)
The name and IEPA special waste hauling number of each transporter
used during the period for shipments to a treatment, storage or disposal
facility;
5)
A description and the total quantity of each nonhazardous special waste
shipped out of state, listed by IEPA identification number of each
receiving site;
6)
The method of treatment, storage or disposal for each nonhazardous
special waste; and
7)
A certification signed by the generator or the generator's authorized
representative.
j)
Every in-State facility that accepts nonhazardous special waste from a
nonhazardous special waste transporter shall file a report, on forms prescribed or
provided by the Agency, summarizing all such activity during the preceding
calendar year. Such reports should, at a minimum, include the information
specified in subsection (k) of this Section and be received by the Agency no later
than February 1. This subsection is applicable to all nonhazardous special wastes
that are delivered to a nonhazardous special waste transporter on or after January
1, 1991.
k)
Every annual report required to be filed with the Agency by a person accepting
nonhazardous special waste from a nonhazardous special waste transporter
pursuant to subsection (j) of this Section shall include the following information:
1)
The IEPA identification number, name and address of the facility;
2)
The period (calendar year) covered by the report;
3)
The IEPA identification number, name and address of each nonhazardous
special waste generator from which the facility received a nonhazardous
special waste during the period;
4)
A description and the total quantity of each nonhazardous special waste
the facility received from off-site during the period. This information
shall be listed by IEPA identification number of each generator;
5)
The method of treatment, storage or disposal for each nonhazardous
special waste; and
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6)
A certification signed by the owner or operator of the facility or the
owner’s or operator's authorized representative.
(Source: Amended at 32 Ill. Reg. __________, effective ______________)
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above opinion and order on May 1, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
