ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY
BACKGROUND

May 2, 2002

IN THE MATTER OF:

PETITION OF WORLD RECYCLING, INC.

d/b/a PLANET EARTH ANTIFREEZE FOR

AN ADJUSTED STANDARD FROM 35

ILL. ADM. CODE 720.131(c)

)

AS 02-2

(Adjusted Standard - Land)

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

On February 1, 2002, World Recycling Inc. d/b/a Planet Earth Antifreeze (Planet

Earth) filed a petition for an adjusted standard pursuant to Section 28.1 of the Environmental

Protection Act (Act) 415 ILCS 5/28.1 (2000). Planet Earth seeks to show that its process of

filtering used antifreeze at a customer’s site produces a commodity-like material that may be

transported for further reconditioning without being regulated as a waste. Pet. at 1.

Planet Earth requests that the Board make a solid waste determination, in accordance

with 35 Ill. Adm. Code 720.131(c), that the filtered used antifreeze is not a solid waste, and

should not be regulated as such.

Id.

Specifically, Planet Earth is requesting that its operation

not be subject to Board regulations concerning the manifest requirements, transportation and

management of the initially filtered antifreeze.

The Board finds that Planet Earth has established that the filtered used antifreeze is not

a solid waste, and grants Planet Earth’s petition for an adjusted standard.

PROCEDURAL HISTORY

Planet Earth filed a certificate of publication with the Board on February 28, 2002.

The certificate of publication indicates that legal notice was timely published on February 8,

2002, in the

Rockford Register Star.

Planet Earth has waived hearing, and the Board has not received a request for a hearing

in this matter. Accordingly, no hearing has been held.

On March 12, 2002, the Illinois Environmental Protection Agency (Agency) filed its

recommendation that the Board deny Planet Earth’s petition unless Planet Earth provides

sufficient information as requested in the Agency’s recommendation. The Agency requests

that if an adjusted standard is granted, that it be consistent with the Board’s decisions in

In re

1 References to the petition will be cited as “Pet. at __.”; references to the Agency

recommendation will be cited as “Rec. at __.”; references to Planet Earth’s response to the

Agency recommendation will be cited as “Resp. at __.”

Petition of Recycle Technologies, Inc., AS 97-9 (Sept. 3, 1998) and

In re

Petition of

Progressive Environmental Services, Inc. d/b/a/ Antifreeze Recycling, AS 01-7 (Jan. 10,

2002).

On April 3, 2002, Planet Earth filed a response to the Agency’s recommendation. The

response addresses the concerns raised by the Agency’s recommendation and restates Planet

Earth’s request that the Board determine that the filtered used antifreeze is not a solid waste

under 35 Ill. Adm. Code 720.131(c).

BACKGROUND

Planet Earth has been in operation since 1996 and has an established clientele list of over

1000 companies. Pet. at 7. Planet Earth collects and filters used antifreeze onsite, and then

further processes the material at a central facility. Onsite filtered used antifreeze that is further

processed at the central facility is sold back to customers after the used antifreeze is picked up.

Planet Earth filters used antifreeze upon their customers’ request. Pet. at 2. Planet Earth

collects used antifreeze that is processed through a truck mounted bag filtration system at its

customers’ facilities. The system consists of a pump and a two-stage bag filtration system.

The used antifreeze is first filtered through a 20-micron filter and then a 5-micron filter to

remove particles of rust, scale, pieces of gasket and other solid particles.

. Once the material

is filtered, Planet Earth transports the used antifreeze to its central processing facility for further

conditioning where chemical inhibitors and dyes are added.

. The central facility is located at

5024 Willow Creek Road, Machesney Park; however, Planet Earth is planning to move its

operation to 6307 Material Avenue, Loves Park within the next few months. Pet. at 10.

Planet Earth provides each customer with a clean drum to store the used antifreeze. Pet.

at 7. Planet Earth starts the spill/leak prevention program by providing clean leak-free

containers.

. Only Planet Earth handles the filtered used antifreeze during the onsite filtering

process. Before pumping the used antifreeze into the two-stage filtration system situated in

Planet Earth’s trucks, Planet Earth visually checks the storage container, associated tubing and

the receiving tank for structural integrity. Pet. at 7. The used antifreeze is then pumped from the

generators’ container through the two-stage filtration system and into the polyethylene tank.

The Planet Earth driver/operator is present at all times during the pumping operation, and

each truck has been supplied with spill response material in the event of a leak. Pet. at 8. After

collection, the truck returns to Planet Earth’s central facility.

. At the central facility, the

filtered used antifreeze undergoes a split absorption/filtration process designed to further remove

dyes and coloring from the filtered antifreeze in order to give the final product a more uniform

color. Pet. at 5. The end result produces a nearly pure ethylene glycol and water mixture that is

the same end product that is produced using the more common reverse osmosis process.

At the central facility, the filtered used antifreeze is pumped into a polyethylene holding

tank located inside the building. Pet. at 8. The filtered used antifreeze is pumped from the

holding tank into a flocculation system where additional clarification occurs. From there, the

material is routed to a 1-micron filter cartridge. Pet. at 9. The material is filtered into a series of

three charcoal filtration canisters to further remove dyes, and then through another 1-micron

filter.

. The clear product produced after the last stage of filtration allows for the addition of

different colors of dyes to be added.

. The final process is the incorporation of the additives

and dyes in a polyethylene-mixing tank. Pet. at 8-9.

The entire floor of the central facility building is concrete, and concrete containment

dikes surround all the storage tanks. Pet. at 8. There is only one floor drain located in the

building. The floor drain is sealed during any type of operation. Pet. at 9.

All Planet Earth personnel are trained extensively by the owner, Mr. Don Bloyer, on

proper handling, spill prevention and countermeasure procedures for both the onsite filtration

process and the off-site filtration process. Pet. at 8. Mr. Bloyer has approximately ten years

of experience in the antifreeze recycling industry and 35 years of experience in the automotive

industry.

Planet Earth provides each customer with a clean drum to store the used antifreeze.

Pet. at 2. Each drum is labeled “USED ANTIFREEZE ONLY.”

. Planet Earth customers

sign a certification statement indicating that used antifreeze is the only material presented to

Planet Earth.

. Before accepting the used antifreeze, Planet Earth visually checks for

petroleum products such as oil. The physical inspection consists of dipping a clear plastic tube

(suction hose) into the used antifreeze and examining it for evidence of contamination such as

an oil sheen or a detectable petroleum odor.

. A presence of either a sheen or odor would

result in the rejection of the used antifreeze.

. The customer is responsible for disposal of

any contaminated material.

There is no pollution control equipment in place at the central facility. Pet. at 9.

Planet Earth asserts that no equipment is necessary because there are no air emissions, water

discharges or other type of releases to the environment.

. Residuals that are generated from

the process include the filters and the used charcoal. Based on chemical analysis and Planet

Earth’s certification, residuals are not hazardous or special waste and are disposed of in a solid

waste landfill. Pet. at 8-9.

Planet Earth claims that the quality of the onsite-filtered material is chemically and

physically the same as virgin product as both consist primarily of ethylene glycol – the base

substance of antifreeze – as well as residual dyes and inhibitors. Pet. at 5. Thus, the onsite-

filtered used antifreeze is analogous to new antifreeze. Pet. at 6-7. The filtered used

antifreeze contains an approximate 50-50 ratio of antifreeze to water that is appealing to

customers because there is no need to pre-mix the antifreeze with water. Pet. at 5.

Planet Earth states that the market price for onsite filtered used antifreeze in the

Chicago area is $1.65 to $2.00 per gallon depending on the amount reclaimed. Pet. at 6. The

current price for the onsite-filtered used antifreeze that is further reconditioned by Planet Earth

at its central facility is the same.

. The current retail price for 100% virgin antifreeze

premixed with water is approximately $4.00 per gallon. Pet at 6. The filtered used antifreeze

is equivalent to virgin antifreeze from a chemical, physical and financial aspect. Pet. at 3.

Planet Earth notes that in expert testimony elicited in Recycle Technologies, Edward

Eaton stated that filtered used antifreeze is not merely commodity-like, but a commodity. Pet.

at 3. Planet Earth asserts that the filtered used antifreeze can be sold at a lesser price that the

virgin material, and that due to similarities between the onsite filtered used antifreeze and the

virgin antifreeze, the value is similar. Pet. at 5-6.

AGENCY RECOMMENDATION

The Agency recommends that the Board deny Planet Earth’s request for an adjusted

standard unless Planet Earth addresses certain concerns raised by the Agency. The Agency

requested that the Board impose the same conditions as found in Recycle Technologies,

AS 97-9 and Progressive Environmental Services, AS 01-7 if the Board grants the adjusted

standard to Planet Earth. The Agency, in its recommendation, presents an analysis of how it

perceived the petition by Planet Earth inadequately addressed certain factors under 35 Ill.

Adm. Code 104.406 and 720.131(c).

The Agency first states that Planet Earth did not provide a narrative description of the

proposed adjusted standard or proposed language for a Board order that would impose the

standard, or present the efforts necessary to achieve the proposed standard and the

corresponding costs. Rec. at 4.

The Agency next asserts that if Planet Earth complied with the regulations of general

applicability, the Agency would provide regulatory oversight of Planet Earth’s activities, and

that this regulatory oversight would be absent if Planet Earth were to comply only with the

proposed adjusted standard. Rec. at 4-5

The Agency states that it is unclear whether the onsite process utilized by Planet Earth

for the used antifreeze includes augmentation of additives and dyes at the customer’s site or

whether they are added at the central facility. Rec. at 6. The Agency asserts that the freeze

point is the quality of the antifreeze most important to its effectiveness as a product and that it

is necessary to know the freeze point of the on-site material after it has been filtered. Rec. at

7. The Agency also contends that Exhibit 10 of the petition does not state whether the results

of the “before” analysis in test number 6383 is antifreeze that has been filtered on site and that

to understand this data additional information is necessary.

The Agency asks that Planet Earth better explain the degree to which the filtered used

antifreeze is like an analogous raw material, maintains that Planet Earth should provide

information on the concentration of the parameters that would make antifreeze unacceptable for

continued use, and contends that on-site filtered used antifreeze should be compared to the

performance requirements in ASTM D6461. Rec. at 7.

The Agency recommends that Planet Earth answer several inquiries concerning the

extent that Planet Earth handles filtered used antifreeze to minimize loss of the material. Rec.

at 8. The Agency contends that to properly evaluate the extent to which the reclaimed material

is handled to minimize loss, it is necessary to know the volume of the secondary containment

in comparison to the volume of the largest tank at the central facility and Planet Earth’s

inspection program to identify spill and leaks from equipment at the off-site facility.

Finally, the Agency discusses other relevant factors that concern Planet Earth’s petition

for an adjusted standard. The Agency requests information on the quality control, such as

sampling frequency, that Planet Earth utilizes to ensure that the product from the on-site

filtration process or the off-site process meets the specifications referenced in the petition.

Rec. at 8. The Agency requests information on the record keeping that Planet Earth maintains

for the entire recycling process, and asks how Planet Earth’s site will be decontaminated if

Planet Earth ceases operations.

. The Agency enquires about the process Planet Earth will

follow if a drum of used antifreeze is rejected at the customer’s site, and also asks if the central

facility would meet the design operating requirements of a permitted special waste facility.

RESPONSE TO RECOMMENDATION

Planet Earth proposes the following as a narrative description of the adjusted standard:

“The Board finds that the filtered used automotive antifreeze is not a solid waste and grants

Planet Earth an adjusted standard under 35 Ill. Adm. Code 720.131(c).” Resp. at 2. Planet

Earth asserts that the efforts and costs necessary to achieve the standard are set forth in the

petition.

Planet Earth states that it is currently transporting the on-site filtered used antifreeze to

the central facility without the addition of dyes and inhibitors. Resp. at 3. Planet Earth notes

that the freeze point analytical report contained a typographical error and should have indicated

that the antifreeze had a freeze point of –40 degrees C, and that the results show the used

antifreeze to be within the ASTM standard.

. Planet Earth clarifies that the “before”

analysis of the report provided to show the effectiveness of the split absorption/filtration

process indicates pre-filtration.

Planet Earth contends that the concentrations that would make the antifreeze

unacceptable for continued use are found in Exhibit 6 of the petition, and that ASTM D6461

relates to silt fence materials and should not apply to this situation. Resp. at 3.

Planet Earth states that it is currently in the process of evaluating the location of various

structures at its new plant, but that it will take all actions necessary to minimize the loss of

reclaimed material. Resp. at 3.

In addressing the other relevant factors, Planet Earth states that spill preventative

techniques are exercised on a regular basis and that Planet Earth visually inspects valves,

couplings, hoses, tanks and other appurtenances on a daily basis. Resp. at 4. Planet Earth

asserts that any spills that might occur will be promptly remediated and actions taken to

prevent similar occurrences from happening in the future.

Planet Earth maintains that it inspects each drum of used antifreeze from each customer

prior to filtering, and that the customer is questioned as to whether or not the used antifreeze is

free from contaminants and if it has been stored in a safe and secure manner. Resp. at 4.

Planet Earth further asserts that it field samples each batch of on-site filtered used antifreeze

for pH and freeze point level, and that the filters and carbon canisters are changed on as as-

needed basis.

. Planet Earth responds that sampling on a regular basis is being investigated.

Planet Earth maintains that it keeps records for business purposes, and that those

records include the location and amount of used antifreeze filtered and collected from each

facility and the total amount of used antifreeze sold, along with associated costs. Resp. at 5.

Planet Earth contends that decontamination of the site upon closure is not anticipated because

the facility will be maintained so as to safeguard against spills and leaks, but that if

decontamination is necessary, Planet Earth will pursue all appropriate post-closure procedures.

Finally, Planet Earth states that if it rejects a drum of used antifreeze at the customer’s

site, the drum stays with the customer and that the customer is ultimately responsible for

proper disposal of any rejected materials.

DISCUSSION

In this section, the Board discusses whether the filtered used antifreeze collected by

Planet Earth qualifies for a nonsolid waste determination in accordance with Section

720.131(c) of the Board regulations.

See

35 Ill. Adm. Code 720.131(c). The Board first

provides a general framework of the regulations concerning this matter. The Board next

examines whether the determination under Section 720.131(c) is available to Planet Earth.

Finally, the Board analyzes whether the filtered used antifreeze initially reclaimed by Planet

Earth is commodity-like, according to the six factors under Section 720.131(c).

Legal Framework

Planet Earth requests that the Board find that the filtered used antifreeze collected from

its customers’ facilities is not a solid waste under 35 Ill. Adm. Code 720.131(c). Section

720.131(c) of the Board’s regulations reads in part as follows:

The Board will determine that those materials that have been reclaimed but must

be reclaimed further before recovery is completed are not solid wastes if, after

initial reclamation, the resulting material is commodity-like (even though it is

not yet a commercial product, and has to be reclaimed further) . . . . 35 Ill.

Adm. Code 720.131(c).

The Board notes that these regulations are substantively identical to regulations that the United

States Environmental Protection Agency (USEPA) promulgated under the Solid Waste

Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA),

as amended, 42 U.S.C. 6901

et seq

. According to the USEPA, to “determine if a secondary

material is a RCRA solid waste when recycled, one must examine both the material and the

recycling activity involved.” 50 Fed. Reg. 614, 619 (Jan. 4, 1985).

Generally, the Board considers three factors to determine whether and how material

becomes a solid waste.

See

Recycle Technologies, Inc., AS 97-9, slip op. at 7; 35 Ill. Adm.

Code 721.102(c) and 721 Appendix Z. The first factor that the Board considers is the category

of the secondary material, such as whether it is a by-product, sludge, or spent material.

2 The

second factor is whether it is an unlisted “characteristic” hazardous waste or a “listed”

hazardous waste. The third factor that the Board considers is which recycling activity is

involved.

With regards to the second factor, solid waste generally is also hazardous waste if it

exhibits certain characteristics (

i.e.

it is toxic, corrosive, ignitable, or reactive) or is “listed” as

a hazardous waste.

See

35 Ill. Adm. Code 721.103, 721, Subparts C and D

For regulations

implementing Subtitle C of RCRA, the definition of “solid waste” is applicable to those that

are hazardous wastes .

See

35 Ill. Adm. Code 721.101(b)(1).

The USEPA explains this scope

in its federal regulations:

Although hazardous wastes are a subset of solid wastes under RCRA,

[USEPA’s] regulatory authority under Subtitle C applies only to hazardous

wastes. Since the present regulations apply only to Subtitle C, we have chosen

to make the definition of solid waste applicable to those materials that also are

hazardous wastes. 50 Fed. Reg. 614, 616, n. 3 (Jan. 4, 1985).

Used automotive antifreeze is not a listed hazardous waste. Planet Earth conducted

tests on its used filters and filtered used antifreeze generated from the onsite filtration process.

Pet. at 8. The test results for the filters and filtered used antifreeze appear to be contained in

Exhibits 7 and 8 of the petition. The analysis revealed that the filters and filtered used

antifreeze are below all hazardous waste levels. Pet. at 4. Planet Earth certifies that the other

residuals generated from the process (filters and charcoal) are non-hazardous and not special

waste. Pet. at 8.

, “If spent materials are listed or characteristic [hazardous waste], they are solid wastes

if they are to be recycled by reclamation” unless a non-solid waste determination is made. See

Recycle Technologies, AS 97-9, slip op. at 7.

The Board regulations state that a material is reclaimed if it is:

2 The Board regulations define “spent material” as “any material that has been used and as a

result of contamination can no longer serve the purpose for which it was produced without

processing.” 35 Ill. Adm. Code 721.101(c)(1).

processed to recover a usable product, or if it is regenerated. Examples are

recovery of lead values from spent batteries and regeneration of spent solvents.

35 Ill. Adm. Code 721.101(c)(4).

According to the USEPA, materials are reclaimed if “material values . . . are recovered as an

end-product of a process” or if they are “processed to remove contaminants in a way that

restores them to their usable original condition.” Recycle Technologies, AS 97-9, slip op. at

8, quoting 50 Fed. Reg. 614, 633 (Jan. 4, 1985). With regards to the third factor considered

by the Board, Planet Earth’s processing of filtered used antifreeze through the truck mounted

bag filtration system is consistent with this material reclamation process.

Without the non-solid waste determination, the Board finds that the filtered used

antifreeze collected by Planet Earth, if considered under the hazardous waste regulations, is a

“solid waste” because it is a “spent material” being “reclaimed.”

See

35 Ill. Adm. Code

721.102(c)(3) and 721 Appendix Z.

Availability of Relief Under Section 720.131(c)

Planet Earth is eligible for a non-solid waste determination, pursuant to 35 Ill. Adm.

Code 720.131(c) if, after Planet Earth initially reclaims the used antifreeze, the resulting

material is commodity-like. The filtered used antifreeze can qualify as commodity-like even

though it is not yet a commercial product and has to be reclaimed further. Without a non-solid

waste determination, a waste that is in the process of being reclaimed is a waste until the

reclamation is complete.

See

Recycle Technologies, AS 97-9, slip op. at 8. “A nonsolid

waste determination under Section 720.131(c) applies only to wastes after they have been

initially reclaimed.”

See

50 Fed. Reg. 614, 620, 633-34, 655 (Jan. 4, 1985). According to

the USEPA, the provision is designed to address situations where “the initial reclamation step

is so substantial that the resulting material is more commodity-like than waste-like even though

no end-product has been recovered.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985).

The Board finds that relief under Section 720.131(c) is available in this case because

Planet Earth initially reclaims the used automotive antifreeze when it filters it through its bag

filtration system at its customers’ facilities. This results in a commodity-like material, even

though the filtered used antifreeze is not yet a commercial product until it is reclaimed further

through the split absorption/filtration process and supplemented with dyes and inhibitors.

Below, the Board addresses the evidence on the Section 720.131(c) factors to determine if the

initially reclaimed material (the filtered used antifreeze) is commodity-like and thus not a solid

waste.

Section 720.131(c) Factors

The Board must determine whether the filtered used antifreeze that Planet Earth initially

reclaims at its customers’ facilities is commodity-like according to the Section 720.131(c)

factors. The Board must consider the following six factors under Section 720.131(c):

1) The degree of processing the material has undergone and the degree of

further processing that is required;

2) The value of the material after it has been reclaimed;

3) The degree to which the reclaimed material is like an analogous raw

material;

4) The extent to which an end market for the reclaimed material is

guaranteed;

5) The extent to which the reclaimed material is handled to minimize loss;

and

6) Other relevant factors. 35 Ill. Adm. Code 720.131(c).

The Board finds that the filtered used antifreeze is commodity-like based on these

factors. The Board addresses these factors in turn.

The Degree of Processing the Material has Undergone and the Degree of Further

Processing that is Required

The USEPA states that the “more substantial the initial processing, the more likely the

resulting material is to be commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). For the

initial processing, Planet Earth first inspects and filters used automotive antifreeze through a

truck mounted bag filtration system at its customers’ facilities. The bag filtration removes

particles of rust, scale, pieces of gasket and other solid particles.

The Board has previously found that there is a large market for filtered used antifreeze,

and that “it is not only commodity-like, but a commodity.”

See

Recycle Technologies, AS 97-

9, slip op. at 9.; Progressive Environmental Services, AS 01-7, slip op. at 9.

In its recommendation, the Agency expressed concerns about the when the additives

and dyes are added to the antifreeze. Rec. at 6. The Agency asserts that it is necessary to

know the freeze point of the on-site material after it has been filtered and also contends that

Exhibit 10 of the petition needs clarification on the definition of the “before” in the analysis of

test number 6383. Id.

In response, Planet Earth clarified that it is currently transporting the on-site filtered

used antifreeze to the central facility without the addition of dyes and inhibitors, and that the

test results show the filtered used antifreeze to be within the ASTM standard. Planet Earth

stated that the “before” analysis of the report provided to show the effectiveness of the split

absorption/filtration process indicates pre-filtration.

The Board finds that Planet Earth provided sufficient information in its response to address the

Agency’s concerns. The Agency’s concerns do not alter the fact that Planet Earth has shown

the bag filtration system is a substantial processing step in the overall reclamation process and

produces a commodity-like material.

The Value of the Material After it Has Been Reclaimed

The USEPA states that “the more valuable a material is after initial processing, the

more likely it is to be commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). As noted

above, there is a large market for filtered used antifreeze without further processing. The

filtered used antifreeze, which contains ethylene glycol and water, is also an essential raw

material in manufacturing split absorption/filtered used antifreeze.

The Board finds that Planet Earth provides sufficient evidence to show that filtered

used antifreeze as well as the split absorption/filtration filtered antifreeze have both an

economic and practical value. The practical value of the filtered used antifreeze to Planet

Earth lies in its use as a raw material that is a necessary part of its business. From an

economic standpoint, the filtered used antifreeze contains ethylene glycol, water, and residual

inhibitors and may be used as antifreeze without any further processing.

See, e.g.,

Recycle

Technologies, AS 97-9, slip op. at 9.

The USEPA stated that “[i]f the initially-reclaimed material can substitute for a virgin

material, . . . it is more likely to be commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985).

The split absorption/filtered used antifreeze processed by Planet Earth also has

economic value. Planet Earth states the quality of the reclaimed product approximates virgin

antifreeze, and the value is similar. The economic value of spilt absorption/filtered antifreeze

may not be similar to virgin antifreeze, but the practical value to the consumer would be. The

economic value is seen in the current market price for reclaimed antifreeze, which is $1.65 to

$2.00 per gallon for filtered used antifreeze in the Chicago Metro Area. Pet. at 6. This price

is also within the same range that the Board has previously seen for filtered used antifreeze

without further processing.

See, e.g.,

Recycle Technologies, AS 97-9, slip op. at 9.

The fact that Planet Earth provides a higher grade alternative to on-site filtered used

antifreeze does not mean that a market for the lower quality onsite filtered used antifreeze no

longer exists.

The Degree to Which the Reclaimed Material is Like an Analogous Raw Material

Section 720.131(c)(3) of the Board’s regulations requires that the petitioner demonstrate

the extent to which the reclaimed material is like an analogous raw material. In this case, the

reclaimed material is the onsite filtered used antifreeze. The filtered used antifreeze, as the

main ingredient, is like an analogous raw material in Planet Earth’s process to further reclaim

and produce its split absorption/filtered used antifreeze filtered at the central facility. The

filtered used antifreeze contains ethylene glycol and water, which are an essential part of the

final used antifreeze product.

The Board finds that the filtered used antifreeze is used as raw material to make

antifreeze filtered by split absorption/filtration, which can be substituted for new antifreeze

with the addition of chemical dyes and inhibitors.

The Extent to Which an End Market for the Reclaimed Material is Guaranteed

In discussing this factor, the USEPA states that:

If the [petitioner] can show that there is an existing and guaranteed end market

for the initially-reclaimed material (for instance, value, traditional usage or

contractual arrangements), the material is more likely to be commodity-like. 50

Fed. Reg. 614, 655 (Jan 4, 1985).

As stated above and in Recycle Technologies, AS 97-9, slip op. at 10 and Progressive

Environmental Services, AS 01-7, slip op. at 12, there is a large market for filtered used

antifreeze that only passes through bag filtration without further processing. Planet Earth

claims that it has an established client list of over 1000 companies. Planet Earth also

guarantees its own end market in that it plans to use all of the filtered used antifreeze that it

collects to make its final product, the split absorption/filtered used antifreeze with additives.

As to the end market for the on-site filtered antifreeze that is further processed at the

central facility, Planet Earth claims that it was just granted a contract with PACE, a large

transportation company with nine locations in the Chicago metro area.

In addition, customers typically use more recycled antifreeze than they collect for

recycling. This is due in part to leaks and spills and vehicle repairs. Pet. at 7.

The Board finds that there is a guaranteed end market for all of the filtered used

antifreeze and the filtered used antifreeze that is further processed at Planet Earth’s central

facility.

The Extent to Which the Reclaimed Material is Handled to Minimize Loss

According to the USEPA, the “more carefully a material is handled, the more it is

commodity-like.” 50 Fed. Reg. 614, 655 (Jan. 4, 1985). Only Planet Earth handles the

filtered used antifreeze during the on-site filtration process. Planet Earth provides each

customer a clean drum. Planet Earth inspects each drum of used antifreeze from each

customer prior to filtering, and questions the customer about the storage of the antifreeze.

Planet Earth further asserts that it field samples each batch of on-site filtered used antifreeze

for pH and freeze point level, and that the filters and carbon canisters are changed on as as-

needed basis.

Before accepting the used antifreeze, Planet Earth visually checks for petroleum products

such as oil. The Planet Earth driver/operator is present at all times during the pumping

operation, and each truck has been supplied with spill response material in the event of a leak.

After collection, the truck returns to Planet Earth’s central facility. At the central facility, the

filtered used antifreeze is pumped into a polyethylene holding tank located inside the building.

The entire floor of the central facility building is concrete, and concrete containment dikes

surround all the storage tanks. There is only one floor drain located in the building. The floor

drain is sealed during any type of operation.

Planet Earth handles the antifreeze so that it does

not spill.

In its recommendation, the Agency requested information concerning on the volume of

the secondary containment in comparison to the volume of the largest tank at the central

facility, and Planet Earth’s inspection program to identify spill and leaks from equipment at the

off-site facility. In response, Planet Earth states that it is in the process of evaluating the

location of various structures at its new plant, but that it will take necessary actions to

minimize the loss of reclaimed material.

The Board finds that Planet Earth handles the filtered used antifreeze so as to minimize

loss. Planet Earth also has a financial incentive not to lose the filtered used antifreeze. Lost

material would deplete its supply of recycled product to sell to its customers.

The Board notes that the process of reclaiming the used antifreeze makes Planet Earth

the generator of any wastes produced in that process. However, the solid waste determination

only pertains to filtered used antifreeze collected and transferred from customers’ facilities to

the centralized processing facility. It does not include wastes produced during the reclamation

process.

The Board further notes that Planet Earth is in the process of opening a new facility in

Loves Park. In order for this adjusted standard to apply to the new facility, the features and

practices at the new facility must not be materially different than those described for the

current facility.

Other Relevant Factors

The Agency expressed several concerns regarding the scope of a nonsolid waste

determination in this matter. The Agency requests information on the quality control, such as

sampling frequency, that Planet Earth utilizes to ensure that the product from the on-site

filtration process or the off-site process meets the specifications referenced in the petition. The

Agency requests information on the record keeping that Planet Earth maintains for the entire

recycling process, and asks how Planet Earth’s site will be decontaminated if Planet Earth

ceases operations. The Agency enquires about what the process is if Planet Earth rejects a

drum of used antifreeze at the customer’s site, and also asks if the central facility would meet

the design operating requirements of a permitted special waste facility.

The Board finds that the remaining issues raised by the Agency concerning quality

control and disposal are all adequately addressed in the petition and Planet Earth’s response.

As for issues that the Agency raised concerning record keeping and closure, such requirements

would not apply in the context of this adjusted standard because of this non-solid waste

determination.

CONCLUSION

The Board finds that Planet Earth established under Section 720.131 of the Board

regulations (35 Ill. Adm. Code 720.131(c)), that the filtered used antifreeze is commodity-like.

Accordingly, the Board finds that the material is not a solid waste, and grants the petition for

an adjusted standard.

The Board emphasizes that this nonsolid waste determination applies only to used

antifreeze once it has been initially reclaimed by Planet Earth at the customer’s site,

i.e.,

applies only after Planet Earth processes the material through the bag filtration system and

finds that it meets their quality control and assurance measures. In addition, this nonsolid

waste determination applies only to the filtered used antifreeze that is to be further processed

by Planet Earth through split absorption/filtration at its centralized facility for sale to customers

in its recycling program.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

1. The Board finds that the filtered used automotive antifreeze currently handled by

Planet Earth at its

central facility at 5024 Willow Creek Road, Machesney Park,

and soon to be handled at Planet Earth’s new central facility at 6307 Material

Avenue, Loves Park

, is not a solid waste. The Board accordingly grants Planet

Earth an adjusted standard under 35 Ill. Adm. Code 720.131(c).

2. The adjusted standard applies only to used automotive antifreeze that Planet

Earth initially reclaims it through a bag filtration unit at the customer’s site

where the used automotive antifreeze was generated and that meets Planet

Earth’s quality control and assurance measures. In addition, the adjusted

standard applies only to such filtered used antifreeze that is to be further

processed by Planet Earth through split absorption/filtration at its centralized

facility for sale to customers in its recycling program.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906,

102.706. Illinois Supreme Court Rule 335 establishes filing requirements that apply when the

Illinois Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335.

The Board’s procedural rules provide that motions for the Board to reconsider or modify its

final orders may be filed with the Board within 35 days after the order is received. 35 Ill.

Adm. Code 101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the Board adopted the above opinion and order on May 2, 2002, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board