BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATER OF:
)
PROPOSED AMENDMENTS TO THE
)
BOARD’S SPECIAL WASTE REGULATIONS
)
R06-20
CONCERNING USED OIL
)
(Rulemaking – Land)
35 ILL. ADM. CODE 808, 809
)
)
SOUTHWEST OIL AND FUTURE
)
ENVIRONMENTAL COMMENTS
)
PRE-FILED TESTIMONY
)
NOTICE OF FILING
Office of the Attorney General
Ms.Deirdre K. Hirner
69 West Washington Street, Suite 1800
Executive Director
Chicago, Illinois 60602
Illinois Pollution Control Board
100 Randolph Street
Mr. Matthew J. Dunn
Suite 11-500
Illinois Environmental Protection Agency
Chicago, Illinois 60601
1021 North Grand Avenue East
P. O. Box 19276
Ms. Dorothy Gunn
Springfield, Illinois 62794
Clerk of Illinois Pollution Control
Board
Stephanie Flowers, Esquire
100 Randolph Street Suite 11-500
Brown, Hay and Stephens, L.L.P.
Chicago, Illinois 60601
700 First Mercantile Bank Building
205 South Fifth Street
Tim Fox, Esquire
P. O. Box 2459
Hearing Officer
Springfield, Illinois 62705
Illinois Pollution Control Board
100 Randolph Street
Claire A. Manning, Esquire
Suite 11-500
Illinois Environmental Regulatory Group
Chicago, Illinois 60601
215 East Adams Street
Springfield, Illinois 62701
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution Control
Board NORA’s Comments, a copy of which is herewith served upon you.
Christopher Harris
September 22, 2008
2001 South Tracy
Bozeman, Montana 59715
Telephone: (406) 586-9902
Electronic Filing - Received, Clerk's Office, September 22, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In the matter of:
PROPOSED AMENDMENTS TO THE
SPECIAL WASTE REGULATIONS
R06-20
CONCERNING USED OIL,
(Rulemaking-Land)
35. Ill. Adm. Code, 739, 808 AND 809
COMMENTS ON NORA’S PROPOSED REGULATORY LANGUAGE AND RULE CHANGE
These comments represent the views of Future Environmental, Inc. Our trade association, NORA, has
made repeated attempts to find a compromise concerning the mixture of special wastes and used oil.
Future Environmental fully supports and endorses NORA’s proposed regulatory language as a way to
remedy the complications between the used oil regulations and the special waste regulations, as
requested by the Board. I want to encourage all parties involved to keep trying to find that compromise.
I also want to say most of us, if not all of us in the industry understand some of IEPA’s concerns on this
issue. Used oil should not be a medium to mix anything into, so that it becomes used oil. However, we,
along with NORA, are certain that the Federal Regulations (40 CFR Part 279) did intend to allow the
generator to mix his own compatible wastes with his used oil for legitimate recycling.
One such reason is that in the more rural areas of Illinois used oil recyclers are the only recycler that
cares to service such areas. There are simply not enough of any other wastes generated to interest other
recyclers. So allowing those generators to mix some compatible wastes with their used oil may be their
only means to recycle those other wastes. Numerous times we have tried to get recyclers to come to
rural central Illinois areas to pick-up a single drum of hazardous or special waste that was not
compatible with used oil for our customers, and it is not easy or economical. Many times after receiving
the price to have that waste hauled away we never got a call back. I’m sure some of those wastes wound
up not being recycled or disposed of properly, and on different occasions we simply couldn’t find
anyone who was interested to pick-up the waste. I have no first hand knowledge of what ultimately
happened to that waste either, but I can take a pretty good guess. Where appropriate (appropriate wastes)
those generators need us as an economical alternative for recycling. When forming the federal used oil
regulations USEPA realized that costs of recycling effected participation more than passing any
regulation on what had to be done with a certain waste, especially in rural areas. That was one of the
major reasons USEPA ultimately decided against a hazardous waste listing for used oil.
We need to find a compromise because if our rule proposal just gets dismissed we will be back here
before the board again and again, probably arguing over a specific issues as how existing rules relate
concerning used oil recycling.
I want to start here by briefly listing IEPA’s concerns and beliefs as we understand them:
Electronic Filing - Received, Clerk's Office, September 22, 2008
1. Only Part 809 manifesting requires the disclosure of individual waste streams in a used
oil mixture which is needed to alert the transporter, recycler, burner and emergency
response personal to the possible differing characteristics of the included non used oil
streams.
2. IEPA wants to decide, on an individual substance basis if a certain special waste mixture
with used oil should be allowed.
3. 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 may not be
appropriate management standards for all non hazardous special waste. This should be
evaluated at a minimum before it is allowed.
4. IEPA believes it will lose control of the special waste universe if by adding a small
amount of used oil to any special waste stream it will pull that waste out from under Part
809 regulation into Part 739 regulation.
5. NORA has not proposed a minimum amount of used oil required in the mixture for the
mixture to be considered used oil.
6. IEPA is concerned used oil recyclers will improperly handle and/or dispose of waste
water streams if we are allowed to take them as used oil, or that we may just permanently
store separated water in a tank long-term and basically leave it there to avoid disposal
costs
7. IEPA has stated that burning a waste for energy recovery is not recycling, but is disposal.
8. IEPA is concerned that the addition of other non used oil special wastes to the used oil
may negatively affect the burning characteristics of the mixture causing performance
and/or environmental problems.
9. IEPA believes the federal regulations do not encourage mixture of different waste
streams.
10. IEPA believes that the current Part 739 regulations regulate hazardous waste and used oil
mixtures adequately and are proposing no changes for handling those mixtures.
11. IEPA believes that by allowing mixture of other special wastes with used oil it will
“frustrate” their efforts to keep track of how many gallons of used oil is recycled verses
how many gallons of other special waste is recycled, as is required to be answered and
kept track of in their annual reporting requirements. They don’t want to include the
special waste numbers in the used oil number.
Electronic Filing - Received, Clerk's Office, September 22, 2008
4
12. IEPA wants to require that all used oil and special waste mixtures managed as
used oil be manifested as a special waste and be taken only to facilities that
operate under a Part 807 special waste permit.
We feel the Part 739 language NORA has proposed is a viable way to help IEPA deal
with these issues without manifesting used oil and special wastes mixtures managed as
used oil, and putting oil recyclers under Part 807 permitting. IEPA has stated their
proposal would “allow haulers of used oil not containing other special wastes 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.” This may be true to
some extent; however, recyclers with facilities in Illinois would be at a severe
competitive disadvantage to out of state competitors when it comes to used oil and other
waste mixtures. Out of state competitors would not face the burdens or expense of
managing used oil and other wastes commonly found mixed with used oil, such as water,
at facilities requiring any of the time, energy and expense that Illinois Part 807 permits
will require. Therefore out of state recyclers would most assuredly stay out of state, and
therefore gain a decidedly upper hand over Illinois based recyclers.
A fact unknown to the general public is that this is a very competitive business, operated
on very thin profit margins. Therefore even a slight advantage by an out of state
competitor could devastate in state recyclers. This should be of concern to the Board and
Agency due to the fact that it is the in state, more local recyclers that have set up the
facilities and networks for do it yourself oil changers to properly recycle their used oil.
The out of state recyclers are only after the larger generators of used oil. They are limited
to those types of generators due to time constraints driving from out of state. It is
estimated that around 30 percent of oil is still changed by do it yourselfers.
Back in the 1990s IEPA had proposed to put all used oil facilities under Part 807
permitting requirements. NORA argued against this idea and on December 16, 1999 the
Board dismissed IEPA’s proposal. One of the main arguments the Board sited was the
competitive disadvantage it would impose on in state recyclers. Concerning the current
proposal, if water is included as a waste if mixed with used oil that will be required to go
to a Part 807 facility, all used oil recyclers will be forced to adopt Part 807 permits
because post use mixture of water is virtually in all used oil.
Many facilities today have oil/water separators as a way to help keep the water generated
in their facility from floor washing, spills, leaks, snow melt, drips, etc…from going
directly into the sewer system along with anything else in the water. The reason these are
called oil/water separators is usually, in such facilities that need them, oil is the main
ingredient that goes into these separators along with the water and it floats on top of the
water. This oil is normally collected from these separators and put into the used oil
tank…along with some water. Also, 55 gallon drums are often stored outside and often
have some water get in them since the top of a 55 gallon drum acts as a funnel due to the
bung holes being lower than the rim of the drum. If the bung plug is not tight they will
Electronic Filing - Received, Clerk's Office, September 22, 2008
funnel water into the drum where it goes to the bottom of the drum, which can often not
be detected by the generator or recycler until the load of used oil is inspected prior to off
loading. In addition, at many manufacturing facilities water gets into the used oil stream
from oil/water separators, process leaks and other reasons. Normally “factory” used oil
has somewhere between 5 to 25% water in it.
IEPA’s proposal would be very difficult for any facility or persons trying to operate
under Part 739 regulations only. There is no reliable, clean and fast way to tell if water is
in the container on the bottom before pumping, especially if the oil is in drums and/or the
water has emulsified into the oil. Even when the transporter catches unknown water
being pumped, often the generator states they are unaware how it got there. How is the
recycler to determine if the water is from contamination thru use, or post use mixture?
And even more challenging how is the recycler to determine all this on the phone when
the generator first calls for a pump out? Based on the above facts, how would a Part 739
only recycler determine who they could or couldn’t service when a pump out call comes
in?
As stated in IEPA’s concerns above, we understand IEPA’s concern about waste waters.
However, water is something that every used oil transporter, transfer facility
or processor deals with on a daily basis and is in every facility to some degree. Also, as
stated is often unknown to be in the load by the generator and the transporter until the
load is inspected or off loaded by the transporter, transfer facility or processor.
IEPA’s past concern about possible long term water storage to avoid disposal costs may
have been a legitimate concern in time past. However, today the Spill, Prevention,
Contingency and Countermeasure (SPCC) regulations, which were expanded and
reworked over the last few years have made the safety standards for above ground storage
tanks (AST’s) and the extensive underground tank (UST) regulations, both much too
expensive to ever consider for long term storage of waste water. In addition, if an oil
recycler was ever foolish enough to occupy their tank storage with waste water in this
fashion, there would be no possible potential environmental harm associated with that
activity due to the current SPCC and UST regulations. Further, if any oil recycler would
want to do any final treatment and release the waste water, the facility would be
considered an industrial waste water processing facility which includes many more
safeguards and Part 807 permits. In addition, NPDES permitting would currently be
required for the facility prior to this activity.
For these reasons it is our hope that the Board, and hopefully IEPA, will agree that Part
807 regulation of waste water being collected with used oil and stored at used oil
facilities, would effectively require all used oil recyclers to adopt Part 807 permits at all
their facilities. This would put them at a severe disadvantage with their out of state
competitors (as the Board has already noted), and is not required. Further, if water is
included as one of the mixtures that will cause the used oil mixture to only go to a Part
807 permitted facility, used oil 35 day transfer facilities would also have to be permitted
under Part 807. This would mean not only would a recyclers processing facility have to
Electronic Filing - Received, Clerk's Office, September 22, 2008
obtain the permit, but also it’s often numerous transfer facility sites, increasing the
overall permitting cost to Illinois based recyclers many times over.
One of the other major reasons the Board dismissed IEPA’s proposal in 1999 was the fact
we educated them about how the used oil industry in Illinois (and elsewhere) currently
works. One of those points was that many transfer facility sites, along with many larger
longer term or seasonal storage sites are at leased commercial petroleum storage
facilities. This is required do to the cost of building the larger longer term seasonal
facilities is beyond many used oil recyclers capabilities, especially if those facilities are
for later river transportation. Buyers of used oil transported from river facilities often
will not pay much more for dry oil than moderately wet oil, so many times EPA on
specification used oil and low level water mixtures are stored at these types of facilities.
Transfer facilities can also be used to achieve economical collection costs and
economical land transportation costs to put the recycler in a position to ship the product
to the more regional area buyers in a timely fashion, when the buyer needs the product
(keeping the product as close to the buyer as possible). I believe the Board came to
understand that requiring commercial petroleum storage facilities to obtain Part 807
permits to store used oil would effectively take these commercial facilities off the market
for used oil, severely disrupting the current used oil industry in Illinois and make
recycling used oil much more expensive in Illinois than in surrounding states.
In the Board’s 1999 decision the Board also stated that Part 807 permitting for used oil
recyclers was “not economically reasonable when taking into account the existing
Federal and State regulatory system.” Since that conclusion in 1999 there have been
numerous additions to the regulatory system. The Spill Prevention, Countermeasure and
Contingency (SPCC) regulations, the Stormwater Pollution Prevention Plan (SWPPP)
regulations and the Oil Spill Prevention and Response Plan regulations have all been
reworked, with many more intensive and inclusive measures being taken than in 1999.
They now require very strict and regular inspections, a higher standard for secondary
containment, integrity testing of the storage tanks and much, much more.
For other waste and used oil post use mixtures NORA’s proposal would give the IEPA
more authority over such post use mixtures, but still keep some of them that our industry
believes were intended to be handled with used oil under the original intent of the federal
regulations and out of the Part 807 universe.
As stated, we believe NORA’s proposed language would cover the vast majority of
IEPA’s concerns as we understand them. However, the Board needs to understand that
IEPA only submitted three examples of problem mixtures in detail. All three of the
mixture problems IEPA presented as evidence in its 6-15-2006 comments of current
problems, could be violations under current rules. We do not believe current rules allow
generators and oil recyclers to pick up special waste streams containing no used oil (Fixer
and Paint Waste) and manifest such streams to used oil facilities that do not hold a Part
807 permit for such wastes, which is what we believe IEPA stated was happening in two
of the examples. This would seem to be a violation by the generator of Parts 808.121c, d
and possibly e. It would seem to also be a violation by the transporter under Parts
Electronic Filing - Received, Clerk's Office, September 22, 2008
808.121c, d and possibly e, and Part 809.302 b. Under current rules unless the waste
stream could be considered used oil it has to be manifested according to what it actually
is. Accordingly, if the generator and transporter follow current rules such wastes could
only be manifested to Part 807 facilities. The other example involved an ignitable only
hazardous wastewater/sludge and oil stream being mixed with used oil by the same
generator. Here the Part 739 used oil regulations are clear. If the mixture continues to
exhibit a characteristic of ignitability it is a hazardous waste, if not it is used oil. In
addition, it seems that the IEPA would be notified as to what other non used oil streams
the used oil facilities were receiving from the requirements of Part 809.501 j and k
concerning annual reporting requirements.
The sludge aspect of the stream is not a problem for used oil recyclers set up with
vacuum trucks and the proper equipment at the receiving facility. Sludge is another item
that every used oil recycler handles to some degree on a daily basis from tank
bottoms, filter cleanings and routine truck and facility tank cleanings. After oil and water
separation this sludge would be considered a newly generated waste, generated by the oil
recycler. Most of this material tests out nonhazardous and is made into a slurry fuel by
the cement manufacturers and burned for energy recovery in the production of cement, or
solidified and landfilled.
As far as IEPA’s concern that these mixtures would complicate their efforts to keep track
of how many gallons of used oil is recycled, they could ask for the water to be separated
from the oil in the reporting numbers. We believe that water numbers would be easy to
separate for most used oil recyclers. This would still allow other wastes, such as other
BTU valuable wastes to be included in the used oil number, but those wastes are a very
small percentage compared to the used oil numbers, and those wastes are still getting
recycled as defined under the used oil rules and the Illinois Environmental Protection
Act.
In closing, we have set up our business models based on the used oil regulations and have
been operating that way since Illinois adopted those regulations in 1993.
From 1993 to 2000 we were told we didn’t have to manifest our used oil individually.
We were told to continue to use the old multi stop procedures. We asked how to manifest
at all to a used oil transfer facility (because it is not the final recycling destination as the
manifest regulations require to be listed on the manifest), we were told by IEPA to keep
doing it as we had been until IEPA figured it out. We were reassured by a Board
guidance letter from April, 21 1994, in the matter of “RCRA UPDATE, USEPA
REGULATIONS (1/1/93 through 6/30/93, R93-16”. Specifically the board stated that,
with respect to the definition of used oil: “The act requires that meanings applied to the
federal definition are to be applied to the Illinois definition.” Also, “The Illinois
regulations will, as always, be consistent with those adopted by USEPA. Thus the impact
of these rules on entities operating in Illinois will be no greater than that of the minimum
Federal Standards applied in other states, as was intended by the general Assembly when
they drafted section 7.2 and 22.4.”
Further, as discussed above in 1999 the Board again confirmed that we would be
operating under the used oil regulations in Illinois with its dismissal of IEPA’s Part 807
Electronic Filing - Received, Clerk's Office, September 22, 2008
permitting proposal. Then in April 2000 IEPA sent out a guidance letter to some of the
Illinois based oil recyclers that stated each used oil generator had to be manifested
individually. However, that letter did not specify how to manifest the used oil to used
oil transfer facilities. In addition, no explanation was included concerning how the
generator and/or recycler would not be breaking regulations such as Part 808.121, d or
Part 809.302, b, by taking a manifested special waste (used oil) to a non-Part 807
permitted facility.
We started out these current discussions thinking we were dealing with a paperwork issue
to rectify these problems. Now it has become a permitting issue as well, with much more
serious potential consequences for Illinois based oil recyclers. We encourage the Board
to adopt NORA’s proposed regulatory language as a way to both rectify this issue
(manifesting and special waste/used oil mixtures) and keep used oil regulation in Illinois
consistent with surrounding states and consistent with past Board opinions.
Respectfully submitted,
Michael Lenz
Future Environmental, Inc.
September 22, 2008
Electronic Filing - Received, Clerk's Office, September 22, 2008
9
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached NORA’s Comments (Pre-filed
Testimony), by U. S. mail, upon the following persons:
Office of the Attorney General
Ms.Deirdre K. Hirner
69 West Washington Street, Suite 1800
Executive Director
Chicago, Illinois 60602
Illinois Pollution Control
Board
100 Randolph Street
Mr. Matthew J. Dunn
Suite 11-500
Illinois Environmental Protection Agency
Chicago, Illinois 60601
1021 North Grand Avenue East
P. O. Box 19276
Ms. Dorothy Gunn
Springfield, Illinois 62794
Clerk of Illinois Pollution
Control
Board
Stephanie Flowers, Esquire
100 Randolph Street Suite
11-500
Brown, Hay and Stephens, L.L.P.
Chicago, Illinois 60601
700 First Mercantile Bank Building
205 South Fifth Street
Tim Fox, Esquire
P. O. Box 2459
Hearing Officer
Springfield, Illinois 62705
Illinois Pollution Control
Board
100 Randolph Street
Claire A. Manning, Esquire
Suite 11-500
Illinois Environmental Regulatory Group
Chicago, Illinois 60601
215 East Adams Street
Springfield, Illinois 62701
________________________________________
Christopher Harris
September 22, 2008
Electronic Filing - Received, Clerk's Office, September 22, 2008