SEP
24
1999
STATE OF ILLINOIS
BEFORE THE ILLINOIS POLLUTION CONTROL BOARIP0IIut10n
Control Board
IN THE MATTER OF:
)
)
AMENDMENTS TO PERMITTING FOR
USED OIL MANAGEMENT AND USED
OIL TRANSPORT
35111. Adm. Code
807 AND 809.
)
)
R99-18
(Rulemaking
—
Land)
)
)
/~,W27
RECEIVED
CLERK’S OFF!CE
NOTICE
OF FILING
TO:
Ms.
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, illinois
60601
(VIA
AIRBORNE EXPRESS)
Joel J. Sternstein, Esq.
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, illinois
60601
(VIA AIRBORNE EXPRESS)
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have filed today with the Clerk of the Illinois
Pollution Control Board an
original and nine copies of the COMMENTS OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP, a copy of which is herewith
served upon you.
Dated:
September 23,
1999
Katherine
D. Hodge
HODGE & DWYER
808
South Second Street
Post Office Box 5776
Springfield, illinois
62705-5776
(217) 523-4900
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
One of Its Attorneys
THIS FILING SUBMITTED ON RECYCLED
PAPER
RECEIVED
OFFICE
SEP
2
4
1999
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF ILLINOIS
Pollution
Contro! Board
IN THE MATTER OF:
)
)
AMENDMENTS TO PERMITTING FOR
)
R99-18
USED OIL MANAGEMENT AND USED
)
(Rulemaking
-
Land)
OIL TRANSPORT
35
IL ADMIN. CODE
)
807 AND 809.
)
COMMENTS OF THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“IERG”), by one of its attorneys, Katherine D. Hodge of HODGE &
DWYER, and
submits the following Post-Hearing Comments with regard to the above-referenced
rulemaking.
On November 2,
1998, the Illinois Environmental Protection Agency (“Agency”)
filed proposed amendments to
35 ill.
Admin. Code Parts 807
and 809 with the Illinois
Pollution Control Board (“Board”) pursuant to Sections 27 and 28 of the Environmental
Protection Act (“Act”) (415 ILCS
5/27 and 5/28 (1998)) and 35 ill.
Admin.
Code
§
102.121.
Hearings were held in this proceeding on February
25,
1999, in Chicago and
on March
1,
1999, in Springfield.
On March 29,
1999, IERG and the Agency filed a
Joint Motion to Extend the Public Comment Period with the Board, which requested that
the comment period be extended from April 9,
1999, to May 7,
1999.
On April
12,
1999,
the Board’s Hearing Officer issued an order granting the Joint Motion to Extend the
Public Comment Period until May 7,
1999.
IERG filed post-hearing comments to those
hearings on May 6,
1999.
On June 18,
1999, due to the volume
ofpublic comments
received subsequent to the first and second hearings, the Board scheduled a third hearing,
held in this proceeding in Chicago on August 23,
1999.
At the third hearing on
August 23,
1999, the Board ordered that
all public comments be filed by September 24,
1999.
IERG hereby submits its post-hearing comments pursuant to
the Board’s
August 23,
1999, third hearing.
As
the Board is aware, this proceeding has generated much discussion and
comments between the regulated community and the Agency.
As
set forth more fully
below, IERG continues to be generally opposed to the permitting scheme for used oil
management facilities contained in the Agency’s rulemaking proposal in the above-
referenced matter.
IERG believes that
as a matter ofpublic policy, requiring these used
oil facilities to obtain land permits
is an unsound decision.
First, the Agency has not established .the need for the Board to
adopt permit
requirements for used oil management facilities,
which would result in a more stringent
approach than the “permit-by-rule” scheme currently mandated by the United States
Environmental Protection Agency (“USEPA”).
In addition, the Agency’s proposal would
result in the imposition ofpermit conditions more stringent than the used oil management
standards
currently in effect and would result in used oil management facilities in illinois
being placed at a competitive disadvantage compared
to competitors located out of state,
due to increased costs of doing business in complying with the more burdensome
requirements.
IERG member companies, in turn, would be charged more for all used oil
management services in illinois.
Finally, there is insufficient information in the record in
this
proceeding to
establish the economic reasonableness and technical feasibility ofthe
Agency’s rulemaking proposal.
All ofthe above are important policy considerations that
the Board should consider when making its decision on this rulemaking proposal.
2
Initially, Subtitle C ofthe federal Resource Conservation and Recovery Act
(“RCRA”) mandates a “permit-by-rule” scheme.
USEPA adopted the federal used oil
management standards, set forth in 40
C.F.R. Part 279, that establish various used oil
management standards but do not require a permit for used oil facilities.
The Board then
adopted 35 Ill. Admin.
Code Part 739 as an identical-in-substance rulemaking under
Sections 22.4.and 27 of the Act (415 ILCS 5/22.4 and
.5/27 (1998)).
The Agency has
failed to establish a need for permitting requirements more stringent than the federal
“permit-by-rule” requirements.
As noted in IERG’s May 6,
1999, comments at the Board hearing in Springfield
on March
1,
1999, the Agency indicated that it was not sure of the number ofused oil
facilities that would be impacted by the proposed rulemaking.
(~
pages
16 and
17)
Hearing Transcript for R99-18, March
1,
1999.)
The need for such permit requirements
cannot be determined when the Agency knows. neither the number of affected facilities
nor particular “environmental risks” at such facilities.
In response to this comment, the Agency attempted to
demonstrate such
environmental risks by offering the testimonies ofLawrence Eastep, who summarized
environmental concerns the Agency had at eight “typical used oil management facilities,”
(see pages
15-21, Hearing Transcript for R99-18, August 23,
1999) and Leslie Morrow,
who summarizes potential health risks and the toxicity of used oil
(~
pages 21-26,
Hearing Transcript for R99-18, August 23,
1999).
However, as the Agency fails to
recognize, these examples of so-called environmental risks do not equate into mandating
a permitting scheme for all used oil facilities over and above what USEPA,
and indeed
the Board, have already considered when adopting its
“permit-by-rule” structure.
3
Further, the eight “typical used oil management facilities” referenced by Mr. Eastep were
facilities which had compliance problems primarily in the
1970’s and 1980’s.
To use
facilities where compliance issues are over a decade old to demonstrate environmental
risks is simply not adequate, given the almost daily changing and tightening of
environmental regulations.
Further,
since 1993
(the effective date of the permit-by-rule), the Agency has had
a history of dealing with used oil management facilities.
What has been the record?
The
Agency need only review its inspection records from
1993 forward and present them to
the Board.
Is there a history of problems?
The Agency need only review its enforcement
records regarding compliance inquiry letters, violation notices, referrals to the Attorney
General’s Office, etc., and present it to
the Board.
Is there a history of enforcement
activity?
To the contrary, the Agency states that it cannot even get a good estimate of
how many facilities would be affected by this proposal.
Instead, all the Agency does is
offer up eight so-called representative used oil facilities.
Ifthese facilities pose an
environmental problem, would it not have made sense for the Agency
-
at some time
between
1993 and today
-
to have called the USEPA and compared notes on who knows
what about which facilities?
Ifthe Agency cannot produce
inspection reports or
enforcement records showing current environmental concerns and/or cannot identify the
facilities affected by the proposed rule, the Board should not
adopt the rulemaking
proposal.
Additionally, the Agency has not shown there to be an environmental benefit
from requiring additional paperwork burdens on these used oil facilities.
IERG believes
that the Board cannot adopt this
rulemaking proposal consistent with its obligations under
Section 27(a) of the Act (415 ILCS
5/27(a)).
4
IERG
has no debate with the Agency that State rules can be more stringent than
federal rules; its
dispute is that these rules simply are not needed.
This proceeding is not
one to fill a regulatory void.
Instead, it is a proceeding that proposes to replace a
regulatory structure that was adopted by the Board in
1993 based on a deliberate and
reasoned decision.
The decision
was, at
that time, to adopt by the identical-in-substance
procedure, a permit-by-rule system
for used oil waste management facilities.
The
identical-in-substance procedure was established to assure that Illinois rules are at least as
stringent as the federal rules.
However, over time, it has become clear that federal rules
are far from lenient and very seldom does the Agency or the Board find a need to deviate
from the federal model.
In particular, RCRA regulations have never been considered
lenient.
The preamble to
the adoption of 40 C.F.R. Part 279 makes it clear that the lack
of need for a permit was not adopted without input from the regulated community
and
considerable deliberation by USEPA.
The USEPA stated:
The majority of commenters believed that the permit-by-rule mechanism
was unnecessary for implementation and enforcement of the used oil
management system under part 279.
EPA agrees with the commenters and
has not established
any permit-by-rule requirements for used oil facilities.
The Agency believes that the recordkeeping requirements in part 279 will
provide sufficient information for enforcement of the used oil
management standards.
The Agency decided against the permit-by-rule
requirement because the requirements
in today’s rule are basic
management practices that are largely
self-implementing and do not
require additional permit consideration of site-specific conditions.
57 Fed. Reg.
41604 (September
10,
1992).
IERG member companies are concerned that the imposition ofa land permit
requirement will put those used oil facilities subject to the permit requirement at a
competitive disadvantage
with respect to competitors located in other states.
The costs
5
associated with applying for and obtaining a land permit and obtaining subsequent permit
renewals are costs that would not be incurredby out of state competitors that operate
under a “permit-by-rule” scheme.
This may have the impact of discouraging the
recycling of used oil when, from a public policy standpoint, the State ofillinois
tries to
encourage recycling ofmaterials to
the greatest extent possible.
In addition, there is insufficient information in this record to
allow the Board to
consider the economic reasonableness and technological feasibility of the Agency’s
rulemaking proposal.
The Agency has presented no testimony regarding the specific
types of requirements that used oil management companies will have to meet as a result
of being required to obtain a state land permit; the Agency has presented no testimony on
the costs
associated with meeting the more burdensome permitting requirements.
Although the Agency filed a draft land permit with its August 6.
1999, pre-filed
testimony of Theodore Dragovich,
and attempted to estimate the costs associated with
preparing the applicable permit applications at the August 23,
1999, hearing, nowhere did
the Agency present any actual
costs or demonstrate economical reasonableness or
technical feasibility ofcomplying with the proposed rulemaking.
Instead the Board
requested information from the National Oil Recyclers Association (“NORA”) as to the
costs of preparing the applicable permit applications.
Additionally, the August 9,
1999, pre-filed testimony and extensive comments at
the August 23,
1999, hearing provided by Christopher Harris of NORA indeed supports
many of IERG’s concerns as delineated above,
and IERG urges the Board to consider
NORA’s comments as well when deciding this rulemaking proposal.
6
In conclusion, due to the above reasons, IERG urges the Board not to adopt the
above-referenced rulemaking proposal.
WHEREFORE, IERG appreciates the opportunity to participate in this proceeding
•.~and
respectfully requests the Board to take action on the Agency’s regulatory proposal
consistent with these comments.
Respectfully
submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By: ~
b
One of Its Attorneys
Dated:
September 23,
1999
Katherine D. Hodge
HODGE & DWYER
808 South Second Street
Post Office Box 5776
Springfield, Illinois
62705-5776
(217)523-4900
7
CERTIFICATE OF SERVICE
I, Katherine D. Hodge, the undersigned, certify that I have served the attached
COMMENTS OF THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP upon:
Ms. Dorothy M. Gunn
Clerk of the Board
illinois Pollution Control Board
State of illinois Center
100 West Randolph Street
Suite 11-500
Chicago, illinois
60601
Joel J. Sternstein, Esq.
Hearing Officer
illinois Pollution
Control Board
State of illinois Center
100 West Randolph Street
Suite 11-500
Chicago, illinois
60601
by depositing said documents via Airborne Express in
Springfield, illinois on
orbefore
5:00 p.m.
on September 23,
1999,
and upon:
Ms. Deirdre K. Hirner
Executive Director
illinois Environmental Regulatory Group
215 East Adams Street
Springfield, illinois
62701
Matthew J. Dunn, Esq.
Chief, Environmental Bureau
Office of the Attorney General
100 West Randolph Street,
12th
Floor
Chicago, illinois
60601
Ms. Cynthia Hilton
Executive Director
Association ofHazardous
Waste
Materials Transporters
2200 Mill Road
Alexandria, Virginia
22314
Ms.
Vicki Thomas
JCAR
Wm. G. Stratton Building
Room 700
Springfield, illinois
62706
Robert Lawley, Esq.
ChiefLegal Counsel
Department ofNatural Resources
524 South Second Street
Springfield, illinois
62701-1787
Ms. Jennifer Marsh Ginder
Chemical Industry Council of Illinois
9801 West Higgins
Suite 515
Rosemont, illinois
60018
Kimberly A. Geving, Esq.
Division of Legal Counsel
illinois Environmental Protection Agency
1021
North Grand Avenue East
Post Office Box
19276
Springfield, illinois
62794-9276
Mr. Jeffrey Jeep
EMCO Chemical Distributors,
Inc.
2100 Commonwealth Avenue
North Chicago, illinois
60064
2
Mr. Paul Pike
Christopher Harris, Esq.
(MC-602)
General Counsel
Ameren Services
National Oil Recyclers Association
Post Office Box 66149
1439 West Babcock
St. Louis, Missouri
63166
Bozeman, Montana
59715
by depositing said documents in the U.S. Mail in
Springfield, Illinois on or before
5:00 p.m. on
September 23,
1999.
Katherine D. Hodge
3
