BEFORE THE ILLINOIS POLLUTlON CONTROL BOARD
NOTICE OF FILING
CERTIFICATE OF SERVICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

BEFORE THE ILLINOIS

POLLUTlON CONTROL BOARD

In the Matter of

PROPOSED AMENDMENTS TO

SPECIAL WASTE REGULATIONS

CONCERNING USED OIL,

35.

Ill. Adm. Code, 808, 809

NOTICE OF FILING

To:

ATTACHED SERVICE LIST

PLEASE TAKE NOTICE

that on May 16, 2006 we filed the attached

PRE-FILED

TESTIMONY OF CHRISTOPHER HARRIS

with Dorothy

Gum, Clerk of the Illinois

Pollution Control Board, a copy of

which is herewith served upon you.

Respectfully submitted,

NORA, AN ASSOCIATION OF RESPONSIBLE

RECYCLERS

By:

//Claire A. Manning

Claire A. Manning, one of its attorneys

BROWN, HAY

STEPHENS, LLP

Claire A. Manning, Esq.

Registration No.

124724

205 S. Fifth Street, Suite 700

P.O. Box 2459

Springfield, IL 62705-2459

(217) 544-8491

(217)241-3111

([ax)

Cmani~inp@,bhslaw.con~

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing PRE-FILED

TESTIMONY OF

CHRISTOPHER HARRIS

was filed, electronically, with the Clerk of the Illinois Pollution

Control Board, and with copies of such

nde proposal being placed in the U.S. mail on May 16,

2006 and addressed to:

DOROTHY

GUNN

Clerk of the Board

Illinois Pollution Control Board

100 W. Randolph Street, Suite 11-500

Chicago, Illinois

6060

TIM FOX

Hearing Officer

Illinois Pollution Control Board

100 W. Randolph Street, Suite 11-500

Chicago, Illinois 60601

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

Stephanie Flowers

Division of Legal Counsel

102 1 North Grand Avenue

P.O. Box 19276

Springfield, Illinois 62794-9276

ILLLINOIS DEPARTMENT OF NATURAL RESOURCES

William Richardson

Chief Legal Counsel

One Natural Resources Way

Springfield, Illinois 62702-1271

OFFICE OF THE ILLINOIS ATTORNEY GENERAL

Matthew J.

Dunn

188 W. Randolph St., 20" Floor

Chicago, Illinois 60601

ILLINOIS ENVIRONMENTAL REGULATORY GROUP

Deirdre K. Hirner

Executive Director

150 Roland Avenue

Springfield, Illinois 62703

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In the Matter of

)

SPECIAL WASTE REGULATIONS

CONCERNING USED OIL,

35.

Ill. Adm. Code, 808, 809

PRE-FILED

TESTIMONY OF CHRISTOPHER HARRIS

name is Christopher Harris.

I have the privilege of serving as General Counsel to

NORA, An Association of Responsible Recyclers.

On behalf of NORA, I would like to express

our appreciation for the opportunity to offer additional views of the rule proposal in this matter.

The purpose of my testimony today is to demonstrate that manifesting shipments of used oil (and

materials regulated as used oil) is not necessary for the protection of human health and the

environment.

Therelore, NORA respectfully requests that Illinois discard the

used oil manifest

requirement

and thereby remove an unnecessary and expensive paperwork

burden on the used oil

generators and transporters in this state.

NORA

is a national trade association whose

meinbers provide recycling

services

throughout

the entire United States including Illinois.

In addition to collecting and recycling

used oil, NORA members collect and recycle oil filters, wastewater, antifreeze and parts cleaning

solvents.

NORA was founded in December 1984 and has participated in all of

EPA's

rule-

making activities concerning used oil conducted by the United States

Environmeiltal Protection

Agency ("US

EPA"), beginning with the first set of used oil management standards that were

promulgated in November 1985.

To provide some background to

NORA'S position, I would

like to briefly review the

origins of the used oil regulatory system in the United States. The enactment by Congress of the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

Used Oil Recycling Act of 1980 marked the first legislative effort to address the unique

challenge of used oil.

In the Congressional "findings" that serve as the predicate for this law,

Congress determined that (I) used oil is a valuable source of increasingly scarce energy; (2)

technology exists to reprocess and recycle used oil; and (3) that used oil constitutes a threat to

public health and the

envirounent when disposed of improperly. 42 U.S.C. 6901; See

nlso

H.R.

Rep. No 1415,

96" Cong., 2d Sess., 10 (1980); S. Rep. No. 879,

96''' Cong.,

2d Sess. 1 (1980).

Because the

US. Environmental Protection Agency failed to issue any regulations to implement

the 1980 statute, Congress, as part of the 1984 RCRA reauthorization, specifically directed the

EPA

to establish

a used oil regnlatory program governing the generation, marketing,

transportation and recycling of used oil. 42 U.S.C. 6935.

The legislative history of the 1984 Congressional mandate makes clear that "where

protection of human health and

the environment can be assured..

..the [EPA] Administrator

should make every

effort not to discourage recycling

or used oil. For example, if there are

several alternative

conlrols that would be environmentally acceptable, the

Agency should allow

those which would be least likely to discourage used oil recycling." H.R. Rep. 1133, 98"' Cong.,

2d Sess., 114 (1984). Responding to this directive, EPA promulgated the basic regulations

governing used oil management in November 1985 and followed up with a more comprehensive

set of regulations in September 1992.

These regulations, codified at 40 CFR Part 279, are

usually referred to as "the used oil management standards" or as the "Part 279 regulations." The

regulations have

been

adopted

Illinois pursuant

this Board's

idelltical-in-substallce

rulemalting authority, and are found at 35

111. Adm. Code Part 739.

The component of the used oil management standards we are concerned about today is

the record-keeping requirement for shipments of used oil. Under the federal and corresponding

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

state requirements, transporters are required

to maintain records (for at least three years)

documenting the acceptance and delivery of each

used oil shipment. Records for each shipment

must include: (1) the date of shipment; (2) the name, address and EPA Identification Number (if

applicable) of the entity who provided the

used oil for shipment; (3) the quantity and type of

used oil accepted; and (4) the dated signature of the party providing the used oil.

In addition, transporters

must also create and maintain records (for at least three years) of

each shipment of used oil that is delivered to another transporter, fuel marketer, or processor.

Records of each delivery must include: (1) the date of delivery; (2) the name, address and EPA

identification of the receiving facility or transporter; (3) the quantity of

used oil delivered; and

(4) the dated signature of a representative of the receiving facility or transporter.

40 CFR

279.46.

A parallel set of records must be maintained by processors. 40 CFR 279.56;

I11.Adm.

Code. Moreover, processors must also maintain an analysis plan which requires comprehensive

records regarding

(I)

any used oil subject to the rebuttable presumption; and (2) analysis

demonstrating meeting the on-specification standards.

This information must be included,

together with reports on any incidents requiring implementation of the contingency plan, in the

operating record and all biennial reports. 40 CFR 279.57.

Finally, all used oil generators must

comply with applicable

US. Department

Transportation hazardous material requirements that include identification and classification,

packaging, marking, labeling and manifesting used oil destined for disposal. Transporters of

used

oil

have

comply

with

DOT

requirements

governing placarding,

record-keeping,

insurance, and reporting spill incidents. 40 CFR

279.43(b).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

US EPA has determined that these tracking and record-keeping requirements adequately

protects human health and the environment and pointed out that

"[all1 of this information

[required by the tracking requirements] is currently required in the standard EPA hazardous

waste manifest." 50 Federal Register 49196, November 29, 1985.

In other words, all of the

relevant information concerning used oil shipments is collected, recorded, and available to

regulators; but it was not necessary to impose the burden of a requiring manifest to accompany

each shipment.

Givcn that used oil shipments generally involve more transactions' than

hazardous waste shipments (and each segment of the transportation journey requires a separate

manifest) it was reasonable for EPA to conclude that manifesting used oil shipments was not

necessary.

In this way, EPA fulfilled

the Congressional mandate to choose the regulatory option

that "would be least

likely to discourage used oil recycling." In contrast, the Illinois manifest

requirement for shipment of used oil imposes a significant burden on generators and transporters

of used oil as the testimony of Gregory Ray, Vice President of Crystal Clean, clearly establishes.

As the Board is aware, very few states require manifests for transporting used oil.

(Nearly all of the states have adopted the federal used oil management standards with respect to

tracking requirement.)

None of the states bordering Illinois imposes any manifest requirement

on used oil generators or transporters. It is apparent to NORA that the Part 279

traclting system

(without any manifest requirement) works well.

It does not have any "loopholes" and has not

been subject to abuse. Any question regarding the origination, transportation.

destination,

quantity, and

timeline

any used oil shipment can be answered by the required

docinnents.

Finally, NORA strongly believes that the proposed regulatory change ending the manifest

requirement for used oil should encompass all materials regulated as used oil under 40 CFR Part

A shipment of used oil commences with the generator and may be collected from one transporter before being

transcerred to another.

may be subsequently stored at a

transfer facility before being sent to a processor.

contrast, hazardous waste is typically sent from

the generator directly to the TSD facility.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006

239 and 35

I11.Adm. Code Part 739.

The tracking system works effectively to monitor used oil

shipments and does so with equal effectiveness for materials regulated as used oil (such as

oillwater mixtures).

Any advocate of requiring manifests for materials regulated as used oil

should be asked to cite either an actual or theoretical example of how the Part

2791 Part 739

tracking system would NOT function to provide all relevant information and why the manifest

requirement would provide such information.

Accordingly, for the reasons stated above, NORA respectfully requests that the Illinois

Pollution Control Board amend Parts 808 and 809 of its rules and end the manifest requirement

for used oil and materials regulated as used oil.

Respectfully submitted,

IsIChristopher Harris

Christopher Harris

General Counsel

NORA, An Association of Responsible Recyclers

BROWN, HAY

STEPHENS, LLP

Claire

Manning, Esq.

Registration No. 3124724

205 S. Fifth Street, Suite 700

P.O. Box 2459

Springfield,

IL 62705-2459

(2 17) 544-849 1

(217)

241-31

(fax)

Cmanninai~bhslaw.coni

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 16, 2006