RECEIVED
C~
~P~’S
OFFrCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
0 7
1999
IN THE MATTER OF:
)
)
AMENDMENTS TO PERMiTTING FOR
)
USED OIL MANAGEMENT AND USED
)
OIL TRANSPORT
35
IL ADMIN. CODE
)
807 AND 809.
)
R99-18
(Rulemaking
—
Land)
~
STAfE OF ILLINOIS
Pollution
Control Board
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 ofthe COMMENTS OF THE ILLINOIS
ENVIRONMENTAL REGULATORY GROUP, a copy of which is herewith served upon you.
808
South Second Street
Springfield, illinois
62704
(217) 523-4900
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
One ofIts Attorneys
By:
Dated:
May 6,
1999
Katherine D. Hodge
Karen L. Bernoteit
HODGE
& DWYER
THIS FILING SUBMITTED ON
RECYCLED PAPER
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 ofillinois 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 sending said
documents via Airborne Express in Springfield, illinois on or before 5:00 p.m.
on May 6,
1999, and upon:
Sanjay K. Sofat, Esq.
illinois Environmental Regulatory Group
215 East Adams Street
Springfield, illinoIs
62701
Matthew J. Dunn, Chief
Environment Bureau
Office of the Attorney General
100 West Randolph Street,
12th
Floor
Chicago, illinois
60601
Cynthia Hilton, Executive Director
Association ofWaste Hazardous
Materials Transporters
2200 Mill Road
Alexandria, Virginia
22314
Vicki Thomas
JCAR
Wm. G.
Stratton Bldg., Room 700
Springfield, illinois
62706
Robert Lawley
Chief Legal Counsel
Department of Natural Resources
524 South Second Street
Springfield, illinois
62701-1787
Jennifer Marsh
Chemical Industry Council
ofillinois
920 South Spring
Springfield, Illinois
62704
Kimberly A.
Geving, Assistant Counsel
illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
Post Office Box 19276
Springfield, illinois
62794-9276
Jeffrey Jeep
EMCO Chemical Distributors, Inc.
2100 Commonwealth Avenue
North Chicago, illinois
60064
2
Paul Pike
ChristopherHarris
(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 May 6,
1999.
Katherine D. Hodge
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLr~’~
~
P4/W
071999
IN THE MATTER OF:
)
~,TA1
£ OF ILLINOIS
AMENDMENTS TO PERMITTING
FOR
)
R99-18
PO1JUtIOfl
Control Board
USED OIL MANAGEMENT AND USED
)
(Rulemaking
-
Land)
OILTRANSPORT
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 ofHODGE & 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
(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.
As
set forth more fully below, IERG is generally opposed to the permitting scheme for
used oil management facilities contained in the Agency’s rulemaking proposal in the above-
referenced matter.
However, in the event that the Board should decide to proceed with adoption
ofthese proposed rules,
IERG offers several comments on particular issues of concern.
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 of
permit 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.
Subtitle C
ofthe federal Resource Conservation and Recovery Act 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.
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
can not be determined when
the Agency knows neither the number of affected facilities nor particular “environmental risks”
at such facilities.
2
IERG member companies are concerned that the imposition of a 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 associated with applying for and
obtaining a land permit and obtaining subsequent permit renewals are costs
that would not be
incurred by out of state competitors that operate under a “permit by rule” scheme.
In addition,
companies that
seek to enter the used oil management field may be discouraged from doing so,
due to
the fact that they would incur costs associated with obtaining a land developmental permit
and possibly, of going through the local siting approval process.
This may have the impact of
discouraging the recycling ofused oil when, from a public policy standpoint, the State of illinois
tries to encourage recycling of materials to
the greatest extent possible
Under the Agency’s rulemaking proposal as it currently exists,
the Agency may have
discretion to impose permit conditions that are more burdensome than the used oil management
standards that currently exist in
Part 739.
This possibility will also increase the likelihood that
used oil management facilities will be at a competitive disadvantage as compared to
out-of-state
competitors.
The increased costs associated with compliance with more burdensome
requirements are costs that will be passed along to IERG member companies who utilize the
services ofthese used oil management facilities.
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 ofbeing required to obtain a state land
permit; the Agency has presented no testimony on the costs associated with meeting the more
burdensome permitting requirements.
3
In conclusion, due to the above reasons,
IERG
urges the Board not to adopt the above-
referenced rulemaking proposal.
However,
in the event that the Board decides to proceed with
adoption of these proposed rules,
IERG
offers the following comments
on several issues of
particular concern:
1.
If the Board intends to proceed with this rulemaking proposal, the Board should
add an exemption from state land permit requirements for used oil management facilities which
use an outside party to process or treat used oil on the site where the used oil is generated.
Such
used oil management facilities should not be subject to state land permit requirements because
the facilities will have control over the used oil from the time it is generated through the
processing or treating of the used oil.
Therefore, a land permit requirement should not be
applicable since the concerns the Agency may have about used oil management facilities that
handle used oil generated at another site are not present in this situation.
2.
There should be no state land permit requirement for generators of used oil that
also are the first to
claim that their used oil, to be burned for energy recovery, meets the used oil
specifications in 35 ill. Admin.
Code
§
739.111.
These generators are also by definition “used
oil fuel marketers,” as defined in 35
111. Admin. Code
§
739.100.
Under the current rulemaking
proposal, a state land permit issued pursuant to 35 ill.
Admin. Code Part 807 would be required
for this activity.
A permit
should not be required for activity, which is
limited
to sampling, and
analyzing used oil to determine whether it meets the specification requirements.
This issue has
been discussed with the Agency and
IERG
understands that the Agency will propose an
amendment that will address the concern.
3.
Under the current regulatory proposal, existing used oil facilities that operate in
compliance with the “permit-by-rule” scheme will not be in
compliance with the above
4
rulemaking proposal upon its effective date because those facilities that must obtain local siting
approval will not be able to obtain local siting and
a permit upon the effective date ofthe rule.
In
addition, used oil facilities that would only be subject to
the permit requirement would not be
able to obtain a permit by the effective date of the rule and, as such, would not be in compliance
with the rule.
This issue
has been discussed with the Agency and IERG understands that the
Agency will propose an amendment that will address this concern.
In conclusion, IERG reserves the right to offer additional comments on the amendments
expected to
be submitted by the Agency, especially if the Board determines to
proceed with
adoption of these regulations.
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:_________
One of Its Attorneys
Dated:
May 6,
1999
Katherine D. Hodge
Karen L. Bernoteit
HODGE & DWYER
808 South Second Street
Springfield,
illinois
62704
(217) 523-4900
5
