OIL
fi
—
Natioña
il’
ê~dbrs
Association
•
•
Christopher Harris,
General Counsel
1439 West Babcock
•
Bozeman, Montana
59715
•
(406)
586-9714
•
FAX
(406) 586-9720
RECEIVED
CLER~’S flFFIrE
APR
-
91999
STATE OF ILLINOIS
BY FEDERAL EX
RESS
Pollut ton
Control
Board
April 8, 1999
~‘~?
~-/
I
Illinois Pollution Control Board
-
100 West Randolph
/
-
Chicago, Illinois
60601
Re:
Docket R98-29; Docket R9~18:Used
Oil Regulations
Ladies and Gentlemen:
This letter conveys the thoughts and comments of the National Oil
Recyclers Association (“NORA”) and its Illinois members concerning proposed
and potential regulatory and permit changes that would affect oil recyclers in
Illinois.
In general, we are concerned that the proposed permitting requirements
for oil recyclers under Title 35, Parts 807 and/or
739, could impose on them an
unfair disadvantage vis-à-vis their out-of-state competitors as well as add
significantly to their existing regulatory burdens and costs.
One fundamental concern is that Part 807 allows Illinois EPA to
promulgate
additional
used oil facility permit conditions that would prove to be
excessively burdensome.
While genuine improvements in the structure or
wording of facility permits is always welcome, any new permit conditions
should be consistent with existing regulations promulgated by the Pollution
Control Board.
As you are aware, the used oil regulations were adopted by
reference under sections 7.2 and 22.4
of the Act.
This legislation requires that the
Board adopt rules that are “identical in substance” to those adopted by United
States Environmental Protection Agency (“EPA”) under Subtitle C of the
Resource Conservation and Recovery Act (“RCRA”).
In addition, the Board has
issued explicit guidance governing these rules on April 21, 1994.
See
IN THE
MATTER OF RCRA UPDATE, USEPA REGULATIONS (1/1/93 through
6/30/93),
R93-16.
Illinois
Pollution Control Board
April 8,
1999
Page 2
Specifically, the Board stated, on page 3, 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.”
In addition, the Board
stated: “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 Sections 7.2 and 22.4”
(copy enclosed).
As the General Counsel of the National Oil Recyclers Association, I have
had the privilege to work with EPA in developing both the 1985 standards for
used oil burning and the 1992 federal used oil management standards (now
codified at 40 CFR Part 279).
In addition, I have a good working knowledge of
the implementation efforts of several states.
I am therefore familiar with the
intent and operation of the federal used oil regulations, especially with respect to
used oil collectors and recyclers.
In light of NORA’s collective experience with used oil regulations, we are
gravely concerned that:
(1) permit conditions may be added that will expand the used oil
requirements, in addition to Part 739 requirements, or impose additional
costs
upon Illinois used oil storage and processing facilities at a level that would be
significantly higher than their out-of-state competitors;
(2) forthcoming regulations and/or permit conditions will improperly
impose more stringent requirements on Illinois transfer facilities, marketers, and
burners of used oil than existing Part 739 regulations; and
(3) future permit conditions and regulations may be inconsistent with the
intent of the federal used oil management standards.
In addition, we worry that Illinois EPA will attempt to impose the many
additional restrictions and regulations on recyclers that were attempted in the
mid-1990s.
These restrictions and regulations would have made it impossible for
Illinois
oil recyclers to compete with their out-of-state companies, and would
have made oil recycling costs (imposed on Illinois
generators) some of the
highest in the Nation.
Illinois
Pollution Control Board
April 8,
1999
Page 3
Let me briefly detail some of those previously proposed restrictions and
regulations
and how they would have impacted used oil collectors and
processors in Illinois.
*
Completed generator certifications for each generator prior to
acceptance of any used oil from the generator for the first time.
While
this would be a major burden for Illinois-based recyclers, out-of-state
competitors would not be slowed or hampered by this restriction.
Generators often expect same or next day service.
*
Full analysis required from all “industrial” generators prior to
acceptance.
In contrast to Illinois recyclers, out-of-state competitors
would not be slowed or hampered by
this restriction.
*Annual generator re-certification.
A single average sized recycler
services thousands of generators.
Annual re-certification of all those
generators would be virtually impossible due to many reasons, and again
this would be a substantial cost to Illinois recyclers not borne by their out-
of-state competitors.
*
Restrictions over used oils mixed with other wastes that were more
stringent than the Part 739 used oil regulations.
Again, this places a
severe burden on Illinois collectors and recyclers but not on their out-of-
state competitors.
*
Additional restrictions and regulations on wastewater generated by
used oil/water
separation over and above the regulatory controls in the
CleanWater or Clean Air Acts. Once again, this places a severe burden
on Illinois collectors and recyclers but not on their out-of-state
competitors.
*
More restrictive regulations on low-level PCB contamination in used
oil than the federal regulations.
This will not affect out-of state collectors
but will be extremely costly to Illinois collectors and recyclers.
*
More stringent and restrictive regulations on storage tanks than the
Part 739 regulations.
Again, a disadvantage to out-of-state competitors
and very costly to Illinois oil recyclers (and therefore Illinois generators).
Moreover, NORA believes that used oil transfer facilities, used oil fuel
marketers and used oil burners should not be included under the permitting
requirement at all.
Many used oil recyclers use commercial leased tank storage
Illinois
Pollution Control Board
April 8,1999
Page 4
for transfer facilities.
Also, many used oil fuel marketers use commercial leased
tank storage for finished product on-specification used oil fuel, for off-season or
pre-delivery storage.
These lessors will not want to deal with used oil recyclers
storage needs if they will be required to permit their facilities.
This would cause
enormous upheaval of the used oil system in Illinois.
We also feel strongly that
burners of used oil fuel, especially EPA on-specification fuel, should not be
required to obtain permits.
According to EPA, “specification
used oil fuel
poses no greater risk than virgin fuel oil and, once it enters the commercial fuel
market should not be regulated differently than virgin fuel oil.” 50 Fed. Reg.
49189.
Illinois should adopt this approach.
In an era of low petroleum prices there is little incentive for burners to
burn used oil fuel (a relatively small cost savings compared to virgin fuel
products).
Requiring burners to be permitted would almost certainly result in a
loss of virtually all used oil burners in Illinois.
They would simply switch back
to virgin fuels.
Used oil burners currently provide over 90 percent of the used oil
recycling market in the United States.
In addition,
NORA and its Illinois members believe that certain other issues
(previously proposed by Illinois EPA) need to be addressed.
First, on-
specification used oil fuel should be exempt from the special waste regulations,
as is the case with that Part 739 regulations.
(However, we would not object to a
reasonable minimum BS&W standard being added
—
a requirement that Illinois
EPA has previously indicated it may want to establish).
Second, sampling and analysis of
each shipment
of used oil fuel would
significantly increase costs to Illinois marketers over their out-of-state
competitors and is more restrictive than the Part 739 regulations.
Third, more
restrictive and extensive tank storage requirements than the Part 739 regulations
require would constitute a tremendous advantage to out-of-state companies.
It is our view that most of the proposed permit conditions were contrary
to the intent of the federal used oil regulations (and therefore were also
inconsistent with the Part 739 regulations).
Equally important, these regulations
were not applied in a nondiscriminatory manner.
This raises serious
Constitutional questions concerning an unjustified burden on interstate
commerce.
Illinois recyclers simply would not be able to compete against out-of-
state companies that are not impacted by such extensive and expensive
regulations.
In today’s marketplace,
Illinois recyclers could not survive once
they were forced to charge more for used oil pick-ups than their out-of-state
competitors.
Illinois
Pollution Control Board
April 8,1999
Page 5
The reason the federal regulations did not go as far as what Illinois EPA
proposed as permit conditions is that EPA realized that if used oil recyclers were
saddled with a lot of expensive regulations, charging a high price for used-oil
pick-up would become prevalent and would lead to improper disposal of used
oil.
Simply stated, charging generators for used oil collection services above
nominal fees causes pollution problems.
In general, the greater the cost of
compliance, the more commercial generators and Do It Yourself Oil Changers
(still some 40 percent of the new oil market) would decide to avoid the recycling
system.
The potential for ever-escalating costs that would have resulted from
compliance with the previously proposed permit requirements would have
created the very problems that EPA was determined to prevent.
Finally, we urge the Board to consider adopting, pursuant to Part 739, a
registration program (as opposed to a permitting system) for used oil recyclers
managing off-specification used oil.
Such a program could provide Illinois EPA
with all the information it needs to carefully regulate and monitor oil recyclers
and collectors in Illinois, without imposing the excessive burdens described in
this letter.
On behalf of NORA and its Illinois members, we would appreciate the
consideration of the concerns and issues set forth in this letter.
We initially inquired about this issue
on January 15, 1999 to the Illinois
EPA.
We never received a response until March 11.
This left us very little time
to respond before the April
9th
deadline.
Due to the magnitude and importance
of these issues, we respectfully request additional time so that these issues can be
adequately addressed and discussed between all affected parties prior to the
Board’s final determination.
Sincerely,
~
Christopher Harris
CKH/msj
Enclosures
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ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
IN THE MATTER OF:
)
R93—16
RcRA
UPDATE, USEPA REGULATIONS
)
(Identical in Substance Rules)
(1—1—93 THROUGH 6—30—93)
)
Adopted Rule.
Final
Order..
SUPPLEMENTAL OPINION
AND
ORDER OF THE
HOARD
(by E. Dunham):
The Board adopted amendments to the Illinois hazardous waste
regulations on March 17,
1994 in this docket.
That action under
this docket included incorporating the federal a:mendments that
occurred during
the
period of January
1 through June 30,
1993
into the Illinois
RCRA
Subtitle C hazardous waste
regulations
and
restoring text that was erroneously omitted from the base text
during the course of prior update dockets.
The Board issues this
supplemental opinion
arid
order to address additional public
comments received subsequent to final adoption and to restore an
additional segment of text inadvertently omitted from our March
17 order.
The Board received the following three public comments alter
the adoption on March
17,
1994:
PC
5 U.S. EPA Region
5
(4-8-94, by Norman R. Niedergang,
Associate Division Director of
RCRA,
Waste Management
Division)
Pc
6 Lenz Oil Service,
Inc.
(4-13-94, by Mike Lenz,
President)
PC
7 National oil Recyclers Association (4-20—94,
by
Christopher Harris, General Counsel)
In PC
5,
U.S.
EPA
comments
that the Board has in our March 17,
1994 order, adequately addressed its comments submitted in PC
3
on February 14,
1994.
PC
6 generally commends the Board’s
approach to adopting the used and waste oil regulations, but
ma~kesadditional comments on implementation issues
PC
7
endorses the Board’s proposal to adopt the used and waste oil
regulations as adopted by U.S. EPA.
It states that the propo5ed
regulations will encourage recycling while imposing reasonable
controls,
The Notices of Proposed Amendments for this rulemaking
appeared in the I1J.inojs
Register
on January
4,
1994.
Therefore,
pursuant to the Administrative Procedure Act, the public comment
period closed on February 28.~ The Board adopted the amendments
on March17,
1994.
We withheld filing the alriendments with the
Scicret~ryOf State for 30 days,
as part of our primacy agreement
with U.S.. EPA,
in
order
to
al1os.~ the filing
of any additional
P.
e4
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comments by U.S. EPA on the adopted version of the amendments
(PC
5).
Consequently,
Pc
6 and PC 7 are untimely.
Nevertheless,
since the Board is issuing this supplemental opinion and order1
addressing these public comments will cause no delay.
Neither PC
7 nor PC 6 will result in any change in the text of the adopted
rules.
However, the Board does not routinely address such
late-
filed comments.
Identical-in-substance rulexnakings are on a
legislatively-mandated tight time schedule and late—filed
comments could jeopardize the Board’s ability to timely meet its
deadlines.
PC.6 expresses concerns over the status of. water soluble
oils that were used as coolants or cutting oils as “used oil”.
The comment states that U.S.
EPA considers these materials “uscd
oil”,
as contemplated by the used and waste oil regulations.
The
comment
further
states
as
follows:
IEPA considers this waste
a ~sic) “oily waste”.
This
distinction subjects water soluble oils to full TCLP
parameters even when recycled in Illinois.
This puts
Illinois companies at a major disadvantage when
competing outside Illinois for this waste.
Companies
outside Illinois only have the fuel specification tests
to meet.
Thus, the comment implies that Illinois EPA applies
a definition
of “used oil” that is more stringent than the federal definition.
In response, the Board highlights the scope of the
legislative mandate by which we adopted these rules.
Sections
7.2 and 22.4 of the Act require the Board to adopt rules that are
“identical in substance”
to those adopted by U.S~EPA under
RCP.A
Subtitle C.
This we have done.
The Board’s Section 739.100
definition of “used oil” is identical to the federal definition
of 40 CFR 279.1:
“Used 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.
Unless the Board were to engage in
a general rulemaking under
Section 27 of the Act on a petition from the Illinois EPA or some
other interested person,
subject to the public hearings and full
Administrative Procedure Act requirements, this is the only
definition we are free to adopt.
Therefore,
the Act requires
that meanings applied to the federal definition are to be applied
to the Illj~ojsdefinition.
Although the federal definition of “used oil” itself makes
no reference to water soluble oils,
the preamble discussion in
the
Fe~jg~cr
indicates that U.s.
EPA did address these
P.
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materials.
U.S.
EPA
stated
in
the
Fe~era~RçgiS~
preamble
discussion that it received comments relating to “synthetic oil”,
including water soluble and water—bearing water soluble oils-
The cominenters requested that U.S.
EPA exclude copper drawing
solution from the definition of “used oil”.
U.S. EPA observed,
“Copper drawing solution is an emulsion of
1 to
2 percent oil
ir~
water.”
(57
Fed. Reg.
41574
(Sept.
10,
1992)
.)
The discussion
stated that U.S. EPA revised the definition prior to final
adoption to add “synthetic oil”.
(57 Fed. Req.
41604
(Sept.
10,
1992).)
The discussion further stated as follows:
EPA has concluded that synthetic oils that are not
petroleum based
(i.e.,
those produced from coal or oil
shale),
those that are petroleum-based but are water
soluble
(e.g.,
concentrates of metalworking
oils/fluids), or those that are polymer-type, are all
used as lubricants similar to petroleum-based
lubricants,
oils,
and laminating surface agents.
Therefore, EPA believes that all oils, including used
synthetic oils,
should be regulated in a similar
fashion and, hence,
EPA has decided to include
synthetic oils in the definition of used oil.
For the
large
part,
the
definition
of
used
oil
includes
used
lubricants of all kinds that are used for a purpose of
lubrication
57
Fed. Reg.
41574
(Sept.
10,
1992).
To
address
the concerns expressed in PC
6, the Board need
not revise the Illinois definition to implement the federally-
derived regulations.
Because U.S. EPA contemplated that
synthetic water soluble oil lubricants be included in the federal
definition of “used oil”,
the identical-in-substance definition
must include them as well.
The Illinois regulations will,
as
always,
be
consistent
with
those adopted by U.S.
EPA.
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 Sections 7.2 and 22.4.
As to the omitted language, the Board is correcting the
adopted text of the rules to include the language.
As more fully
discussed in the March 17,
1994 opinion, we adopted amendments to
Part 728 in P91—13
(January
1 through June 30,
1991; effective
June 9,
1992)
that were excluded from the base text in P93—4
(July
1 through December 31,
1992; effective November 22,
1993).
Much
of the work involved in the present docket has been to make
those restorations.
We add one segment of text omitted from our
March
17 order at this time because we have not yet filed the
adopted amendments with the Secretary of State.
The
missing
text
(segment
in bold type)
is
restored to Section 728.107(e) (3) (5)
as
fol lows:
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p.06
4
Section
728.107
Waste
Analysis
and
Recordkeeping
a)
.
,
p
.
a
3)
If a generator’s waste is subject to an exemption
from
a
prohibition
on
the
type
of
land
disposal
method utilized for the waste
(such as, but not
limIted to,
a case-by-case extension under
Section
728.105,
an exemption under Section 728.106,
an
•
extension under SectIon 728.101(C) (3)
or
a
nationwide capacity variance under 40 CFR
268.Subpart C (19~9),with each shipment of waste,
the generator shall submit a notice with the waste
to the facility receiving the generator’s waste,
stating that the waste is not prohibited from land
disposal.
The notice must include the following
information:
B)
The corresponding treatment standards for
wastes FOOl— through P005, F039 and wastes
prohibited pursuant to Section 728.132 or
Section 3004(d)
of the Resource Conservation
and Recovery Act, referenced
in Section
728.139.
Treatment standards for all other
restricted wastes must either be jpçluded
p~
~~referenced
a—a-bevc, or -by including on
the notification the ee~a#ege~y—e~--t4’~e
wa-s
t-e-~—the—tr-eat~abi-1
i t-y
~oup-~-c
)—ef----the
w-(-s~-~p
1
icab
1
e~a~t
ew&t.~ror
nQnwastewater
(as~finedj~n
~ectj~n_728.
102J.
catego~y~ the
applicable
s~ibdivis~ons
made
~jthin a waste code based on waste-specific
c~iteriaJ~uch
as
D003,
reactive
çy~nides),
and the Section and subsection where the
~pplica1e
treatment standarde appear~.
Where the applicable treatment standards are
expressed as specified technologies
in
Section 728.142, the applicable five-letter
treatment code found
in Sect~n728.Table C
(e.g.,
INCIN,
WETOX)
also
must
be listed on
the
notification.
IT IS SO ORDERED.
MAR—29—99
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I, Dorothy N. GUnn,
cleric of the Illinois Pollution Control
Board,
do
hereby
certify
that the above supplemental opinion and
ord,r wa~adopted by the Board on the
~
day
of
______________
1994, by a vote of
c~.
--~
~.
P.
07
Dorothy
M.
Illinois
Pa,
Control
Board
