ILLINOIS POLLUTION
CONTROL BOARD
March 7,
1996
IN THE MATTER OF:
)
)
SPECIAL WASTE
HAULING
)
R95-11
VEHICLE NUMBERS:
AMENDMENT TO
)
(Rulemaking
-
Land)
35 ILL.
ADM.
CODE 809.401,
)
Adopted Rule.
Final Order.
OPINION AND ORDER OF THE BOARD
(by C.A. Manning):
On March
16,
1995,
at the request of
the
Association of Waste Hazardous Materials
Transporters (AWHMT),
the Board. initiated this rulemaking which proposes to
amend Section
809.401
(35
Ill. Adm.
Code Part
809).
The proposal deletes the current provision found at
Section 809.401
and replaces
it with new language which
would allow the owner/operators of
vehicles that transport special
waste to maintain
the special
waste hauling
permit
issued by the
Illinois Environmental Protection
Agency
(Agency) within the vehicle, rather than to require
that a permit number be displayed on the vehicle’s exterior.
This matter came before the Board
on our own motion to
amend the
“Vehicle
Numbers” provision of the Special Waste Hauling regulations
in Section 809.401.
First notice
of the proposed rule was published at
19
Illinois Register
13182 (September 22,
1995).
During the first notice period,
the Board
received two
public comments.
The Board proceeded
to
second notice
on December
20,
1995.
At its meeting of February 20,
1996,
the
Joint
Committee on Administrative Rules
(JCAR) noted a certificate of no objection to the rules.
The Board’s responsibility in this matter arises from the Environmental Protection Act
(Act)
(415 ILCS
5/1
et seq.
(1994)).
The Board is
charged therein to
“determine,
define and
implement
the
environmental control standards applicable
in the State of Illinois”(Section
5/5(b)).
More generally, the Board’s rulemaking charge is based
on the system of checks and
balances
integral to Illinois
environmental governance.
The Board bears responsibility for the
rulemaking and principal adjudicatory functions;
the Agency has primary responsibility for
administration of the Act and the Board1s regulations, including today’s proposed regulation.
Today the Board adopts
the amendment as final and directs the Clerk to submit to
the
Administrative Code Division of the Office of Secretary of State for filing and
assignment
of
an effective date pursuant to
Section
5
of the Illinois
Administrative Procedure Act
(5
ILCS
100/5-40(d)
(1994)).
2
PROCEDURAL HISTORY AND BACKGROUND
The Board received
the request to open this
docket and
initiate this rulemaking
by
letter
from the AWHMT on February
22,
1995.
In that letter, the AWHMT explained that Illinois’
current rule on
special waste
hauler markings was potentially
subject to
a preemption challenge
before the United States Department of Transportation (U.S.
DOT) because it was inconsistent
with federal marking requirements.
The AWHMT also
offered specific regulatory language
which had been drafted in consultation with the Agency,
and additionally,
the AWHMT
indicated willingness to testify at hearings before the Board.
On March
16,
1995,
the Board
opened this rulemaking docket and authorized at least two hearings on the proposed regulatory
change as the rule would be one of general
applicability.
In our March
16,
1995
order, while
we determined that we would not first notice the proposed rule until
such time as the Board
held hearings in this matter and provided an opportunity
for public
comment from the
AWHMT and the Agency,
we did
set forth the proposed regulatory
language.
Accordingly,
two public hearings were held in this rulemaking docket before hearing
officer Musette H. Vogel
in Chicago on June 7,
1995
and in Springfield on June 21,
1995.
The AWHMT presented the pre-filed testimony of Cynthia Hilton, the Executive Director of
the AWHMT (Exhibit No.
1) and the Agency
offered the pre-filed
testimony of Michael F.
Nechvatal, Manager of the Solid Waste Management Section
(Exhibit No.
2).
During the course of the hearings, the Agency
offered clarifications to
the proposed
language with which
the AWHMT agreed.
All
testimony
supported the adoption of the
language as set forth in the Board’s March
16,
1995
order and as amended by
the Agency’s
testimony.
A public comment period was established
at the second hearing which expired on July
15,
1995.
The Board received no public comments at that time other than the original
February 22,
1995
letter from the AWHMT which the Board has marked as Public Comment
Number
1
(PC
1).
By order of September 7,
1995
the Board adopted its own proposal for first notice.
First notice publication occurred at
19
Illinois Register
13182 (September 22,
1995).
As part
of the first notice proposal,
the Board
included recommended language from the Agency
adding the generator of special .waste to the list ofpersons to whom the vehicle owner/operator
must disclose the special
waste hauling permit.
In response to the first notice publication,
the
Board received two additional public comments
which are discussed herein.
By order of December 20,
1995
the Board adopted its proposal for second
notice.
The
Board made minor editorial changes as requested by
the Joint Committee on Administrative
Rules (JCAR).
The matter was accordingly filed with JCAR which voted a certificate of no
objection to the adoption of the proposal
on February
20,
1996.
3
TECHNICAL AND ECONOMIC JUSTIFICATION
The Hazardous Materials
Transportation Act
(HMTA) was substantively amended in
1990 to provide
the U.S.
DOT with binding, preemptive authority over duplicative
and
inconsistent non-federal
rules
impacting the transportation of hazardous materials including
hazardous wastes.
(Hilton Test., Exh. #1
at
1;
49 U.S. C
Sec.
5125.)
Specifically,
with regard
to marking requirements, Congress provided that
non-federal requirements pertaining to
marking of hazardous materials would be preempted unless the non-federal requirement was
“substantively the same”.
Thus a non-federal requirement must
“conform in every significant
respect to the federal
requirement.
Editorial
and other similar de minimis changes are
permitted.”
(Id.
at 2,
citing
49 C.F.R.
107.202(d).)
Congress further provided that non-
federal
requirements may be preempted by
the U.S.
DOT if the non-federal requirements,
as
applied or enforced, create an obstacle to the accomplishment and
execution of the HMTA or
the hazardous materials regulations (HMRs).
The HMRs
specifically provide that non-federal
requirements,
including marking requirements, that apply only to hazardous waste and that
apply differently from or in addition to the HMRs are inconsistent with the HMTA.
(Id.
at
2,
citing,
49
C.F.R.
171.3(c).)
In
1994,
the U.S. DOT issued
a preemption determination concerning hazardous
materials marking requirements in the State of Michigan on the basis that Michigan’s statutes
and
regulations were not substantively the same as the corresponding federal requirements and
that they posed an obstacle to the accomplishment of the HMTA.
(59 Fed.
Reg.
6186,
February
9,
1994.) Both the Agency and the AWHMT agree that Michigan’s requirements for
vehicle marking are similar to that of Illinois’
marking requirements, and the similarity
is such
that Section 809.401
may also pose an obstacle to
the accomplishment of the HMTA and the
HMRs.
(Nechvatal Test, Exh.
#2
at 2.)
Specifically,
the Board’s current rule states:
Upon issuance of a special
waste hauling permit,
the owner and operator of any
vehicle used to transport special waste except truck tractors as defined in
Subpart A shall display a number issued by the Agency on opposite
sides of the
permitted vehicle following the words,
“Licensed Special Waste Hauler:
(number).”
Numbers and letters
shall not be less than two
inches high and shall
be removable only by destruction.
Directly adjacent to
said words and number,
the vehicle owner and operator shall display a seal furnished by
the Agency
which shall designate the date on which the permit was issued.
The AWHMT believes
that Illinois’
rule as currently
adopted is
inconsistent with
federal requirements.
The AWHMT’s support for amending the rule to allow the permit to be
carried
in the cab of the vehicle is based on
several legal
and technical justifications.
Its
concerns are:
4
1) The size of the marking and the requirement that the number must be
on all
licensed vehicles shows
that its
intent
is to alert the public
and enforcement
personnel of risk presented by the transportation of hazardous waste.
2) Because hazardous wastes are found in every DOT hazardous class,
there is
no
technical justification to distinguish the marking of vehicle transporting
hazardous waste
from those transporting other types of hazardous materials.
3) Vehicles transporting hazardous waste typically
operate
in a number of
jurisdictions.
To the extent that the public and
local emergency responders
in
other jurisdictions are unfamiliar with Illinois’
marking, confusion will result
and safety will be undermined.
4)
Unless, preempted or
amended by Illinois,
other jurisdictions would
have
license to
impose their own unique marking requirements.
As
do the Illinois
requirements, other non-federal marking requirements that the AWHMT is
familiar with provide unique size and placement standards.
No non-federal
marking requirement that the AWMHT is aware of provide reciprocity for the
marking requirements of anotherjurisdiction.
The possibility
exists
that motor
carriers could be
in situations where
vehicles otherwise in compliance with the
HMRs would be precluded from entering jurisdictions because the marking
requirements of the jurisdiction conflict with the marking requirements of
another non-federal jurisdiction.
5)
Because of the permanent nature of the Illinois markings,
they cannot be
physically removed without great hardship when vehicles
are empty or
transporting non-hazardous waste
loads.
The permanent nature of the Illinois
marking requirements violates the prohibitions
in the HMTA and the HMRs
against labeling or placarding vehicles that do not contain hazardous materials.
Congress provided in the
1990 amendments that non-federal requirements would
be preempted unless substantively
the same as the federal requirements,
and
also provided that
“no person shall by
marking or otherwise,
represent that a
hazardous material is
present in a
.
.
.
motor vehicle.
.
if the hazardous materials
are not
present.”
(49 U.S.C.Sec.
5104(a)
and 49
C.F.R.
171.2(f).)
While economic justification
in this rule
is more of an ancillary matter than the
immediate need to address the question of potential preemption,
the AWHMT also offered
testimony
that there will be an economic savings to business operations under the proposed
amendment.
The AWHMT believes that there will be
saving from less transportation
disruptions and moreover, if the rule is
amended, this paves the way for the Agency
to create a
standard form,
which the AWHMT and the Agency are currently
negotiating.
This form
would track the vehicle and the permit
through the use of a YIN number rather than the license
plate number,
which according to the AWHMT, will lead to less paperwork and fewer times
ofhaving to
shut down a trucking fleet to exchange papers when the license plate changes.
The AWHMT offered at hearing an example of New York’s tracking form.
(Tr.
at 20,
Exh.
#3.)
PUBLIC
COMMENTS RECEIVED
DURING
FIRST NOTICE
Two additional
public comments
were filed during the first notice period.
The public
comment from Mid-West Truckers Association, Inc.
(PC 2),
which is comprised of over 2500
companies
operating over 50,000 trucks,
fully supports the rule as proposed at first notice.
The public
comment from Browning-Ferris Industries
(BFI)
(PC 3) generally supports
the Board’s proposal of Section 809.401
as necessary to avoid preemption by
the U.S. DOT
regulations and
to
insure Illinois
is consistent with federal
law.
BFI makes several comments
regarding the implementation of the rule.’
BFI’s public
comment also
includes the following
recommended language:
“the owner and operator of any
vehicle, except truck tractors as
defined in
Subpart A,
which
is used to transport special waste,
shall apply for a
special waste
hauling permit application”.
(PC
3
at 1.)
However, the Board will not adopt this
amendment to the present proposal
since this requirement already
exists in Section 809.202.
(Ill.
Adm.
Code 809.202.)
Additionally,
BFI believes that the present proposal would be
further clarified as
follows:
“ulpon
issuance of a special waste hauling
permit,
the owner or operator of any
such
vehicle used to transport special
waste shall maintain within the vehicle or truck tractor,
as
defined in Subpart
A.
a legible photocopy of the special
waste hauling
permit.”
(PC
3
at 1-2.)
Again, we decline to make this change because the term,
“vehicle”,
as defined in Section
809.103
(Ill.
Adm.
Code
809.103) encompasses the term “truck tractor”.
An owner/operator
may accordingly carry the permit
within the cab of truck tractor as well as in the trailer.
The
Board
also notes that the addition of “truck tractor” at this point would prove inconsistent and
confusing with the first line of the proposal
since truck tractors are an exception to the waste
hauling permit application requirement.
The Board also
acknowledges the receipt of minor editorial revisions from JCAR.
These changes are reflected in the order.
The Board
finds that the proposed rule is technically
feasible and economically reasonable as required in the Act (415 ILCS
5/27) for adoption of
the rule.
The Board
finds that the record before us justifies adoption of its proposed rule.
Accordingly, we today adopt that rule.
ORDER
The Board hereby adopts the amendment as final and directs the Clerk to submit to the
Administrative Code Division of the Office of Secretary of State for filing and assignment of
an effective date pursuant to Section
5
ofthe Illinois
Administrative Procedure Act
(5
ILCS
As noted during
the hearing, implementation of the rule upon adoption,
including the design
ofboth the application
and permit,
will be performed by the Agency.
(Tr.
at
18,
20.)
6
100/5-40(d) (1994)). The proposed language
is indicated by underlining and the proposed
deletions are indicated by
striking out the previous rule.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE
G:
WASTE DISPOSAL
CHAPTER I:
POLLUTION CONTROL BOARD
SUBCHAPTER i:
SOLID WASTE AND SPECIAL WASTE HAULING
PART 809
SPECIAL WASTE HAULING
SUBPART
A:
GENERAL PROVISIONS
Section
809.101
Authority,
Policy and
Purposes
809.102
Severability
809.103
Definitions
SUBPART
B:
SPECIAL WASTE HAULING PERMITS
Section
809.201
Special Waste Hauling Permits
-
General
809.202
Applications for Special Waste Hauling Permit
-
Contents
809.203
Applications for Special Waste Hauling Permit
-
Signatures and Authorization
809.204
Applications for Special Waste Hauling Permit
-
Filing and Final Action by
the Agency
809.205
Special Waste Hauling Permit Conditions
809.206
Special Waste Hauling Permit
Revision
809.207
Transfer of Special Waste Hauling Permits
809.208
Special Waste Hauling Permit
Revocation
809.209
Permit No Defense
809.2 10
General Exemption from
Special
Waste Hauling Permit
Requirements
809.211
Exemptions for Special Waste Haulers
SUBPART
C:
DELIVERY AND ACCEPTANCE
Section
809.30 1
Requirements for Delivery of Special Waste to Haulers
809.302
Requirements for Acceptance of Special Waste from
Haulers
7
SUBPART D:
VEHICLE NUMBERS
AND SYMBOLS
Section
809.40 1
Vehicle Numbers
809.402
Special Waste Symbols
SUBPART E:
MANIFESTS,
RECORDS AND REPORTING
Section
809.501
Manifests,
Records,
Access to
Records, and Reporting
Requirements and Forms
SUBPART
F:
DURATION OF PERMITS AND TANK NUMBERS
Section
809.601
Duration of Special Waste Hauler Permits and Tank
Numbers
SUBPART
G:
EMERGENCY CONTINGENCIES FOR SPILLS
Section
809.701
General Provision
SUBPART
H:
EFFECTIVE DATES
Section
809.801
Compliance Date
809.802
Exceptions
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)
Appendix A
Old Rule Numbers Referenced
AUTHORITY:
Implementing Sections
5,
10,
13
and 22
and authorized
by Section 27
of the Environmental Protection Act 415
ILCS
5/5,
10,
13,
22 and 27.
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
8
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
111.
Reg.
130, effective January
1,
1992;
amended in
R95-1 1
at 20 Ill. Reg.
—,
effective
_________________
SUBPART
D:
VEHICLE NUMBERS
AND SYMBOLS
Section 809.401
Vehicle
Numbers
Upon issuance of a special waste
hauling
permit,
the owner and operator of any
vehicle used to
transport special
waste
except truck tractors as defined in Subpart A shall display a number
issued by the Agency on
opposite
sides of the permitted vehicle following the words,
“Licensed Special
Waste Hauler:
(number).”
Numbers and
letters shall not be
less than two
inches high and
shall be removable only
by destruction.
Directly
adjacent to
said
words
and
number,
the vehicle owner and
operator shall display a seal furnished
by the Agency
which
shall designate the date on which the permit was issued.
The owner and operator of any
vehicle,
except truck tractors as defined in Subpart A, which
is
used to transport special waste shall list each such vehicle on the special waste hauling permit
application.
Upon issuance of a special waste hauling
permit,
the owner and operator of any
such vehicle used to
transport special
waste shall maintain within the vehicle a legible
photocopy of the special
waste hauling
permit.
Issuance of the special waste
hauling permit
shall be disclosed
by
the owner and operator of the vehicle to any representative of the State of
Illinois
(including,
but not limited
to,
the Agency),
any generator(s) of the special
waste, or
any
treatment,
storage, or disposal
facility which has handled,
is handling,
or will handle the
special
waste.
Upon request by
such representative,
the photocopy shall be made available by
the owner and operator of the vehicle for review.
The owner and operator of the vehicle shall
also comply
with any
otherwise applicable federal
regulations.
(Source:
Amended at 20 Ill. Reg.
,
effective
____________)
IT IS
SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois
Pollution
Control Board,
hereby certify
that
the above opinion and
order was adopted on the
1~
day of
7h
~
1996,byavoteof
7~0
.
~k
‘~~-~i
)ift~
Dorothy M.
Gu4in,
Clerk
Illinois Polluti~JiControl Board