BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF PILING
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NORA'S RESPONSE TO POST HEARING COMMENTS OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
PROOF OF SERVICE

Wastes
SUPPORTING STATEMENT FOR RENEWAL OF INFORMATION COLLECTION REQUEST NUMBER 1286
"USED OIL MANAGEMENT STANDARDS RECORDKEEPIN( AND REPORTING REQUIREMENTS"

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In the Matter of

)

Proposed Amendment to the

SPECIAL WASTE REGULATIONS

)

R06-20

CONCERNING USED OIL,

(Rulemalung

Land)

111. Adm. Code, 808,809

NOTICE OF PILING

Dorothy Gunn, Clerk

William Richardson, Chef Legal Counsel

Illinois Pollution Control Board

Office of Legal Counsel

James R. Thompson Center

Illinois Dept.

of Natural Resources

100 W. Randolph, Suite 11-500

One Natural Resource Way

Chicago, IL 60601

Springfield,

IL 62702- 127 1

Matthew J.

Dunn

Tim Fox, Hearing Officer

Environmental Bureau Chief

Illinois Pollution Control Board

Office of the Attorney General

James R. Thompson Center

100 W. Randolph Street

1 00 W. Randolph, 1

2th Floor

Suite 1 1-500

Chicago, IL 60601

Stephanie Flowers

Deirdre

K. Hirner, Executive Director

Assistant Counsel

Illinois Environmental Regulatory Group

Division of Legal Counsel

3 150 Roland Avenue

1 02 1 North Grand Avenue East

Springfield, IL 62703

P.O. Box 19276

Springfield, IL 62794-9276

PLEASE TAKE NOTICE

that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board of the State of Illinois NORA'S Response

to Post

Hearing Comments of the Illinois Environmental Protection Agency, a copy of each of

which is herewith served upon you.

Date: October 10, 2006

BROWN,

HAY

STEPHENS, LLP

Claire A. Manning

Registration No.

3 124724

205 S. Fifth Street, Suite 700

P.O. Box 2459

Springfield, IL 62705-2459

(2 1 7) 544-849 1

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In the Matter of

Proposed Amendment to the

)

SPECIAL WASTE REGULATIONS

)

R06-20

CONCERNING USED OIL,

)

(Rulemalung

Land)

Ill. Adm. Code, 808,809

NORA'S RESPONSE TO POST HEARING COMMENTS OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY

NOW COMES

NORA, the Association of Responsible Recyclers ("NORA"), by and

through its attorney, Claire A. Manning, Brown, Hay and Stephens, LLP, and respectfully

submits this RESPONSE TO THE POST HEARING COMMENTS OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY ("Response").

NORA appreciates the opportunity provided by the Illinois Pollution Control Board

("Board") to submit this Response to the Illinois Environmental Protection Agency's Post

Hearing Comments ("Comments"). This Response is made necessary because, in its Comments,

the Illinois Environmental Protection Agency ("IEPA") has for the first time articulated its

position on key aspects of the issue before the Board. Prior thereto, during the public hearing

portion of this proceeding, where NORA could have responded with witness testimony, the

IEPA did not even ask questions of NORA witnesses and claimed that it was unprepared to

discuss Part 739, although Part 739 is at the heart of

NORA'S proposed changes to Part 808 and

809 of the Board's rules.'

ISSUE OVERVIEW

It is now apparent that the position of the IEPA requires an interpretation of Part 739 that

is not warranted by the very language and nature of those rules, nor is it legally appropriate

See Attachment A, pages 54-55 and 58 of Transcript of Hearing, May

25,2005

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considering that those rules were established by the Illinois Pollution Control Board ("Board")

pursuant to its Identical-In-Substance rulemalung authority. Essentially, the IEPA has put

forward a definition of "used oil" that simply ignores Section 739.1 10 of the used oil rules, the

"applicability" section of those rules.

It accepts that "used oil" as defined in the definition

section of Part 739 is "used

oilw2 but it fails to consider, and refuses to accept, that material that

is collected, commingled and treated as used oil pursuant to Section 739.1 10 is also "used oil"

and subject to the provisions of that Part. Importantly, that material could be rain water or

process water or many other materials that are mixed with used oil. The commingled material

allowed to be treated as "used oil" under that section is no longer special

waste because it is no

longer part of the waste stream, but has become part of the valuable recycled used oil material

that is processed, sold as a product and utilized. It is not discarded. It is not waste.

The IEPA

has presented no record evidence, only suspicion and conjecture, that allowance of

NORA'S

language would result in the inappropriate disposal of special waste.3

The Board cannot establish rules (or, as here, decline to make appropriate amendments to

rules) based upon suspicion and conjecture. NORA submits that allowance of the IEPA7s

proposed language, given its position, would result in the unnatural and unworkable distinction

between "used oil7' as it is specifically defined in Section 739.100 and "used oil" as it is

"Used oil7' 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. See

Ill. Adm. Code 730.100.

An example of such conjecture is found at page 10 of the Comments, where IEPA discusses the record testimony

of Safety Kleen: that

in 2005 the company estimated that it collected 180 million gallons of used oil and another 14

million gallons of oily water and that, in the same year, it turned 140 million gallons of "used oil" into "high quality

lubricating oil" On the basis of that testimony, without having questioned the witness from Safety Kleen as to the

nature of the difference between the used oil collected and that turned into "high quality lubricating oil, the IEPA

concludes, without authority, that 54 million gallons was "discharged or sent for disposal." Such testimony shows

the lack of understanding of the IEPA concerning the used oil industry. There are many other markets for the

recycling of "used oil" besides

"hgh quality lubricating oil" (for example, some steel mills and cement kilns are

permitted to take, and utilize low grade used oil fuel). Without more, it is just as possible to conclude that the

unaccounted for gallons were recycled in those markets, as

somethmg less than "high quality lubricating oil."

There is simply no justification for a conclusion that the material was inappropriately disposed of.

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processed and sold and managed in the used oil industry. Such distinctions cannot stand

scrutiny, as they create further

unnecessary economic burdens on the used oil industry as well as

unwarranted confusion.

Moreover, there is no evidence that manifesting the material pursuant to Part 808 and 809

is more protective of the environment than traclung pursuant to Part 739.

NORA has

conclusively established (a) that the IEPA does not even review special waste manifests and

(b)

that the Part 739 traclung requirements, which require DOT tracking documents, and whch are

equally enforceable, are as protective of the environment as manifesting.

The company

completes these forms in exactly the same way

identifying the material in exactly the same

way. For a full summary of what tracking and record keeping is required by the federal used oil

program, NORA encloses with these comments

USEPA's "Supporting Statement for Renewal of

Information Collection Request Number

1286 "Used Oil Management Standards Recordkeeping

and Reporting Requirements." Attachment

Uncannily, IEPA asks the Board to summarily dismiss the tracking evidence presented by

NORA members, stating that:

"NORA members provided Exhibits

12 through 17 to illustrate the type of information

included on their members' shipping paper. However, these business records vary

according to company policy and are not required by the regulations. These business

records go beyond the minimum regulatory requirements for Part 739 used oil tracking."

See Comments, p.

4 -5.

The IEPA Comments then present a graphic illustration in an attempt to compare the

recordkeeping requirements under Part 739 and Part 809; such illustration is wrong because it

does not include the DOT requirements pursuant to Part 739. It is further wrong to state that

"these business records

...

are not required by the regulations." That the records "vary

accordingly to company

policy77 simply buttresses NORA testimony that each NORA company

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creates its own individual traclung records to ensure compliance with Part 739 and that one of

NORA'S basic goals is to train companies in how to maintain compliance with the used oil

regulations.

Following is a point-by-point response to the further arguments made in

IEPA's

Comments.

The IEPA argues that "each individual waste stream of a special waste mixture must be

disclosed to the receiving facility." First, such comment ignores the fact that special waste

appropriately mixed with used oil is no longer special waste; it is used oil, destined for recycling.

See 35

Ill. Adm. Code 730,100. Second, the shipping description on a manifest will not provide

the IEPA with any more information than what the shipping description on the tracking

documents of Part 739 will provide. The IEPA simply will not achieve any greater objective by

continuing to require manifesting for material appropriately managed as used oil.

The IEPA argues that "only Part 809 manifesting requires the disclosure of individual

waste streams of a mixture and Part 739 does not." IEPA is again incorrect. The manifest rules

do not require disclosure of the individual waste streams, particularly when such material is

appropriate for commingling as used oil. Obviously, what the IEPA actually seeks is reporting

of material destined to be recycled as used oil to be reported as special waste. Such reporting is

inconsistent with the used oil regulatory scheme. Material that is appropriately commingled with

used oil, and managed as used oil, will be reported as "used oil," whether on the manifest or on

the Part 739 traclung documents.

The IEPA argues that "other non-hazardous wastes mixed with used oil after generation

must be subject to both the used oil standards at Part 739 and the appropriate waste management

standards that applied to the waste before mixture occurred." The IEPA believes this is

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necessary to ensure that "the transporter, emergency responders and receiving facility are made

aware of any waste that has been added to the used oil that may cause the properties of the

mixture to be different from those normally associated with used oil and that may cause the

mixture to behave different (sic) than used oil." Nonetheless, the IEPA recognizes that the Part

739 rules allow hazardous wastes to be mixed with used oil. Of such mixtures, the IEPA

comments: "The Illinois EPA does not propose any changes to the management of conditionally

exempt small quantity hazardous waste."

The comments specifically recognize that the

exemptions under Part 739 for hazardous wastes that are added to used oil would not change

with the

IEPA's proposed language. NORA fails to understand how the IEPA accepts that

hazardous waste can be appropriately mixed with used oil and effectively tracked pursuant to

Part 739, but special waste (by its nature, non-hazardous) cannot.

Moreover, the use of a

manifest in addition to Part 739 traclung will not give an emergency responder any more

information than what is contained in the Part 739 tracking documents. That information is

imbedded in the DOT shipping description. Manifests do not provide or require any more

emergency information.

The IEPA states that "the language proposed by NORA would apply the hauling permit

exemption to all used oil transporters even when they are hauling special waste that is not used

oil."

This statement is simply not correct. NORA does not, and has never, disputed that the

hauling of special waste that is not used oil under Part 739 would be exempt fi-om special waste

hauling permits.

If a used oil transporter hauls special waste that is not regulated pursuant to Part

739, he or she most assuredly needs a special waste hauling permit to do so.

On page

4, the IEPA states that "Clearly, the manifest requirements in part 809 are more

detailed than the traclung requirements

in Part 739."

NORA disagrees. As NORA has stated

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time and again, tracking under Part 739 is virtually identical to manifesting under Part 808 and

809. The Part 808 and 809 rules themselves do not provide for individual listing of special waste

streams. The special waste manifest only provides for a DOT

shpping description, similar to

that required under Part 739. NORA would also disagree with the

IEPA's comment, on page 5,

that "the Part 809 manifest will also satisfy the Part 739 tracking requirement as evidenced by

the table above."

%s comment, and the accompanying table, simply demonstrate that the IEPA

lacks a basic understanding as to how these documents actually apply in practice

at the point of

pick-up and transport.

NORA would argue that Part 739 reporting is much more detailed and that the manifest

does not require the same business information as is necessary for adequate reporting and

traclung of used oil.

See Attachment

B. NORA members do not substitute their Part 739

traclung obligation with a special waste manifest. The IEPA further argues that the DOT

shpping papers required pursuant to Part 739 "do not require disclosure of the separate waste

streams that make up a non-hazardous mixture and would allow the non-hazardous mixture to be

described only as used oil." Again, NORA would respond that neither does special waste

manifesting require such detail in reporting. There is no mechanism contained in the special

waste manifest form for the disclosure of mixtures of special waste and used oil.

The IEPA is wrong in stating that

''NORA has argued that Illinois is the only state that

uses a manifest."

In her testimony, Catherine

McCord mentioned both Michigan and

Massachusetts. However, NORA maintains that the vast majority of states are consistent in their

adoption of a program which is identical to the federal program. No state, however, creates a

distinction between (a) used oil as specifically defined in 739.100 and

(b) used oil allowed to be

treated as such under the applicability section of those same rules

as the IEPA language does.

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On page 6, the IEPA maintains that it "is not seeking a new category of waste or new

interpretation of

Part 739" and further states: "the Illinois EPA would like to clarify that used oil

is a special

waste." Such attempted clarification has significantly muddied the waters in this

proceeding. First, while used oil may have been a special waste when the special waste rules

were adopted, prior to the Identical-In-Substance adoption of the federal program, and while

discarded used oil is still classified as special waste, used oil (and materials

whch can be

appropriately commingled with used oil under the Part 739 rules) are NOT special wastes if they

are managed pursuant to the used oil rules; instead, they constitute a recycled product.

Historically, the IEPA has attempted to blur the distinction between waste and recycled product.

See

Alternate Fuels

Environmental Protection Agency

Ill. 2d 219, 830 N.E. 2d 444 (Ill.

2004).

The IEPA's position in this proceeding is yet another example of such blurring. The

IEPA's proposed language is based upon a regulatory interpretation of used oil mixtures that

creates two divergent regulatory settings for recycled used oil. It creates an unrealistic

distinction and,

fiom NORA'S perspective, throws the baby out with the bathwater.

IEPA's comment that its proposal "will allow haulers of used oil not containing other

special waste to be exempt fiom the hauling permit and manifest requirement and therefore will

encourage the out-of-state competitors to recycle used oil at Illinois facilities" cannot be more off

the mark. First, most used oil companies operating in other states do not currently treat used oil

as special waste, and do not currently have manifesting and hauling permits applicable to them.

Second, as soon as these companies recognize that Illinois requires special treatment

(manifesting) of material appropriate for mixing with used oil under the federal rules (but not

[pure] "used oil" itself) the out-of-state competitor will be as confused about the rationale behind

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Illinois' regulatory environment as it relates to used oil as Illinois NORA members are in this

proceeding.

IEPA's comment at page 7 emphasizes the lack of understanding at IEPA concerning the

nature and purpose of the federal used oil rules: to provide an incentive for the development of a

market for used oil, which can appropriately consist of used oil mixed with non-used oil

material, such as water. Thus, the federal rules recognize that the used oil and compatible

materials (those materials appropriately mixed with the used oil) are NOT discarded but are

recycled as product. That comment:

"The proposed NORA language would allow special waste that is mixed with used oil by

the generator, the transporter, or the receiving facility, to become subject to only the used

oil standards of Part 739. The Illinois

EPA's concern is that since no one has conducted

an evaluation of the impact of managing special waste mixed with used oil solely under

the used oil regulations, the used oil regulations at Part 739 may not be the appropriate

management standards for all non-hazardous special waste." (Comments, p. 7)

The IEPA is simply wrong in its conclusion that no one has conducted an evaluation of

the impact of mixing used oil with other would-be special waste, for purpose of treatment as

used oil. The United States Environmental Protection Agency

(USEPA) has done so numerous

times, in particular when it created the used oil program and promulgated the very

"applicability" section of the rules which allow for the mixing which today causes the IEPA such

concern. Indeed, this statement flies in the face of the federal program, which ALLOWS such

mixtures to be treated exclusively as used oil under the federal program. The

USEPA studied

and evaluated the impact of managing non-hazardous waste, as well as hazardous waste, mixed

with used oil both in 1985 and again in 1992 when it promulgated the used oil rules, formulating

the burning and management standards and developing the "applicability" section found now in

state regulations at Section 730.1

10.

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The IEPA argues that NORA'S proposal will provide an incentive to encourage mixing of

special waste with used oil. NORA fails to understand

IEPAYs concern regarding incentives for

mixing, when such mixing (or commingling) is specifically allowed by the federal rules

and

only done where technically appropriate and economically justified. Where the mixture of used

oil and certain non-hazardous solvent is the lowest cost method for a generator to recycle his

waste, and is allowed by law, mixing should be encouraged, as it takes other special wastes out

of the waste stream and allows them to be recycled along with the used oil.

That is a

presumption underlying the federally-created used oil program.

It is worth recalling that

USEPA7s mandate in promulgating the used oil management standards was to encourage

legitimate recycling and protect human health and environment. See testimony of

NORA

General Counsel Christopher Harris, May 25, 2005, Attachment C and Transcript of Hearing,

May 25,2006.

What the IEPA fails to grasp is that after a history of two decades operating under the

federal used oil program, the used oil recycler has become expert at determining which of such

mixtures are appropriate, and still meet all relevant ASTM and used oil regulatory specifications,

as well as the customer's Clean Air Act permits. While IEPA states that products that are mixed

with used oil (which it routinely regulates as special waste) are waste and not recycled products,

the IEPA is wrong. Also under Part 739, a transporter and recycler will not intentionally allow

material that creates problems with the ASTM and EPA specifications (see Section 739.1 11) into

the used oil stream, as to do so creates

a problem meeting those specifications, and devalues the

used oil as a valuable, marketable commodity. Again, the marketplace itself controls the used oil

professional's decision as to whether a material is special waste or whether, through

commingling, it is capable of appropriately blending into a used oil commodity. The used oil

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recycler already has to ensure hazardous waste mixed with used oil or corrosive material mixed

with used oil could cause equipment or tank problems. Any real problems

in the field do not

have to do with intentional mixing, but in ensuring that the generator has not mixed the material

it seeks to have collected mixed with inappropriate materials. If it has, the material will not be

collected as used oil.

IEPA also expresses concern that some facilities profit by

t&ng used oil and non

hazardous special waste mixtures, charge for that service and sell the material as "low grade oil

fuel" to buyers. In fact, most steel mills and cement kilns can effectively burn a "low grade used

oil fuel" in compliance with their air quality permits. The sale proceeds of these low grade,

usually water and sludge emulsified used oils do not normally cover the costs associated with

collection, and a charge is generally paid for recycling the material.

NORA does not consider

ths to be an inappropriate or deviant practice. Still, the material is recycled

as used oil.

However, what the IEPA fails to understand is that a recycler would not intentionally degrade

one stream of used oil to meet a lower standard, because such result would not make economic

sense. Instead of disposing the lower grade material, however, the used oil recycler simply seeks

a user who has use for such material. With these lower value streams, a recycler can process the

material back into used fuel oil and water byproduct (which will be used), or sell as is for a lower

value. This material would not be handled any differently by the recycler or transporter than a

better stream would; it would just be processed at a higher cost to the recycler, since it contains

more waste water, sludge, etc. and, accordingly, has less value than

hgh quality used oil.

The above-referenced discussion points out another reason the

IEPA's scenario for

regulation does not make sense in some areas. Processors and even transfer facilities routinely

deal with water that has separated or has been separated by processing. Water, antifreeze, fuel

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and sludge are all found in used oil to some degree from use. To say a recycler is not capable of

handling

somethng such as an oil and water mixture in a facility where it already deals with that

very same substance does not make sense.

IEPA also argues that non-hazardous special wastes need more regulation than used oil

because "waste" poses a present or potential threat to human health or the environment. Again,

the IEPA misses the point that these materials also become part of the recycled stream and, in

any event, do not pose any larger hazard that does the used oil itself. The only hazard posed is if

the material is discarded or disposed of

in the environment without doing so properly, or without

appropriate documentation. The IEPA has

no

evidence that such is the case; NORA maintains,

and has testified, that it is not. Used oil recyclers are very capable of handling used oil and non-

hazardous waste streams that would fall under Part

739 regulation. Those regulations have

significant record keeping requirements. The mixture of special waste (and material such as oily

water, which almost all used oil contains

to varying degrees) with pure used oil, is only done

when the process works economically for the recycler, the oil buyer, the oil burner and the

generator

legally and safely. IEPA's proposed language and arguments presuppose nefarious

motives that are simply not supported by the record.

IEPA also argues that, with its language, a re-refiner such as Safety

Kleen would be more

selective about the types of streams it accepts. This is simply not true. A re-refiner can handle

practically anything in the oil because it splits everything apart again. Antifreeze and many other

special wastes are not

a problem for a re-refiner. They just charge accordingly. Oil destined for

fuel, however, has to be much cleaner if it is to be marketed and meet ASTM and regulatory

specifications. In any event, IEPA has every right to inspect any facilities it believes to be

unlawfully disposing of special waste. If there is a problem with compliance, that problem

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should be dealt with pursuant to Section 3 1, not by narrowing an exemption fiom manifesting to

the extent that such exemption makes no sense.

The IEPA also argues that its proposal would not overly discourage used oil recycling in

Illinois.

It made that same argument in 1999, in R99-18. It was wrong then (as the Board

determined); it is wrong now. As the Board then recognized: the

IEPA's proposal to treat used

oil as special waste (then for purposes of requiring Part 807 permitting) "is not economically

reasonable when

t&ng into account the extensive existing federal and state regulatory system."

The IEPA also argues, at page 11 -12, that "there are many other toxic constitutes that

should be evaluated if other non hazardous special waste is burned as fuel." If the constituents

are determined to be "toxic" the waste would be considered a hazardous waste, not a non

hazardous waste. For those products, the TCLP rules apply and, if the wastes are not toxic under

the TCLP rules, then the waste will hardly be more toxic than the used oil itself. Again, though,

there is no reason to suspect that the material collected from the oil recycler, or processed by the

used oil processor, will be discarded. Thus, it is not waste and cannot therefore be "special

waste" requiring the implication of Part 807

809.

At page 12, the IEPA argues that placing special wastes in the used oil could change the

viscosity, BTU value or ash. This is precisely why NORA helped establish the ASTM

specifications for recycled used oil fuel that addresses

ths issue. See the enclosed table of

specifications. Attachment

Concerning the toxic characteristics of other wastes in used oil,

USEPA fully evaluated all such constituents in 1985 in determining what was to be required (and

what was not required) of the EPA used oil fuel specification requirements.

See

Federal

USEPA evaluated these concerns by taking

random samples of used oil from generators and recyclers sites. The Board should note that such

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sampling was done in the early 1980's, well before sophistication of the used oil recycling

industry

which results from years of experience in determining what can and can not

appropriately and

economica~ly be mixed into used oil

and marketed as such.

Overall, today's used oil is much less contaminated than the samples

USEPA relied on

for analysis. The

USEPA used oil specification tests divide used oil up into three categories: On

Specification (deemed equivalent to virgin fuels);

Off Specification (required to only go to

specially permitted facilities for energy recovery burning); and Hazardous Waste. Since the

original federal rule, studies have been done concerning used oil fuel and emissions

from

burning it by the USEPA, all with favorable results. NORA'S point in response to the unfounded

and undocumented concerns of the IEPA is that the burning of used oil for fuel, including

contaminants and other materials found in used oil has been very well documented, evaluated

and studied. NORA members are well aware of these studies, as the economic success of their

businesses, and proper compliance, depends on such knowledge.

In what may be the most surprising comment in all of the

IEPA's comments is its citation

from the

USEPA preamble to the rewrite of the used oil rules in 1992. Using only a partial quote

from

Federal

that the

USEPA somehow considers its used oil regulations incomplete. The partial quote: "The

USEPA has decided that these current regulations [the original 1985 used oil rules] are protective

but not complete or sufficient to protect

human health or the environment from potential

mismanagement of used oils that are recycled."

However, the IEPA cites that

USEPA statement, inappropriately, in isolation and

certainly out of context for the point IEPA attempts to make. The statement was given as a

precursor to the

USEPA's explanation of its adoption of the 1992 rules, the very rules whch

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created the record keeping standards that are relevant to ths NORA rulemaking. As the USEPA

explains directly after the language the IEPA cites: "Therefore, in addition to the existing

regulatio~is [the original used oil rules], used oil handlers will have to comply with additional

management standards that EPA is promulgating today, such as recordkeeping and analysis

requirements, and a requirement for containment consisting of impervious floor and

dikeshems." The USEPA promulgation of the very recordkeeping requirements we discuss in

this proceeding were intended to (and do) provide the management safeguards that were missing

in the original rule

and that make the Illinois backdrop of manifesting of used oil (and

substances appropriated mixed with used oil) superfluous, burdensome and unnecessary.

The IEPA points out that any state can regulate used oil in a more stringent manner than

federal regulations. This is true as a general statement; but the way the EPA would apply that

authority here is inappropriate. If Illinois wishes to regulate used oil in a more stringent manner

than that required pursuant to the federal identical-in-substance program, it cannot do so by

simply bootstrapping pre-existing rules to an identical-in-substance program, without further

general rulemaking. To do so is to obviate the public comment and hearing that is required

pursuant to the Section

27 and 28 of the Illinois Environmental Protection Act ("Act") and the

Illinois Administrative Procedures Act. The Act requires that all RCRA-derived programs, as

the used oil program, is be adopted in Illinois in a manner that is identical to the federal program.

If more stringent requirements are necessary, and appropriate in Illinois,

NORA maintains that a

later in time rulemaking

is required

to insure adequate public participation regarding the

question of reasonableness of more stringent rules. Here, the IEPA never sought more

stringent

rules subsequent to adoption of the federal used oil rules. Instead, it now seeks to bootstrap pre-

existing rules into newer rules (which define, in the applicability clause, certain substances that

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are entitled to be mixed with used oil for purposes of recycling). Such bootstrapping

inappropriately seeks to lock in substances that are now entitled to be recycled as used oil into a

more archaic definition of special waste.

Certainly, for purposes of regulation of used oil under Part 807, IEPA knew it had to go

through formal rulemalung to include used oil (once the used oil rules were passed). Moreover,

Part

807.105(a) exempts used oil from regulation under that Part. That part states: "Persons and

facilities regulated pursuant to 35

Ill. Adm. Code 700 through 749 are not subject to the

requirements of

ths part or of 35 Ill. Adm. Code 81 1 through 8 17. However, if such a facility

also contains one or more units used solely for the disposal of solid wastes, as defined in 35

Ill.

Adm. Code 81 0.103, such units are subject to the requirements of ths Part and Parts 35 Ill. Adm.

Code 8 1 1 through

8 17."

Therefore, as long as there is no on site disposal of any used oil itself or any wastes

separated from the used oil, the regulation of the used oil, including mixtures of used oil and

other materials regulated under Part 73 9, is not pursuant to Part 807, and has not been since the

state adopted Part 739. The Board reiterated

ths fact in its December 16, 1999 ruling in R99-18,

where it dismissed the

IEPA's attempt to require special waste permitting to used oil. See

Attachment E.

The IEPA incorrectly argues that

"(T)he federal regulations do not encourage mixtures."

In the case of used oil

ths is not correct. USEPA did say that it encouraged the separation of

used oils

from used oillsolid waste mixtures (solids being non liquids). Nonetheless, it endorsed

liquid to liquid mixtures. See Section 739.1 10.

Finally, IEPA appears to consider

NORA'S proposed exemption language somehow

flawed because it "does not include limits on the percentage of oil that would be present

in the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

waste." From that they state a belief that "should NORA's proposal be adopted by the Board,

Illinois will lose regulatory control over non-hazardous special waste." NORA is only interested

in exempting

from special waste manifesting that material which is subject to regulation as used

oil pursuant to Part 739. Section 739.1 10 details the materials that can be mixed with used oil,

for purposes of recycling as used oil. NORA has established that the Part 739 tracking and

record keeping requirements are substantial and enforceable. Thus, those materials would be

sub~ect to the same exemption as used oil because, in effect, they are or will be mixed with used

oil for purposes of recycling. NORA has no reason to offer a percentage of mixture which is or

is not appropriate for recycling, as the applicability section of the federal rules (adopted as

Section 739.1 10) themselves govern, as they have been written, and justified.

NORA disagrees with the IEPA presumption that

NORA's proposal would cause it to

somehow lose regulatory control in Illinois. NORA would submit that there is absolutely no

reason for the IEPA to hang onto a regulatory concept (treating as special waste material that is

mixed with used oil for purposes of recycling) which has become, through the implementation of

the federal used oil rules, in essence, obsolete. Again, if it is subject to regulation pursuant to

Part 739, it is recycled used oil, not special waste. What the IEPA appears to miss is the

important fact that, in order for Part 739 to apply in the first instance, the waste stream being

collected has to be "destined for recycling." As NORA has pointed out, there are many special

waste materials and special waste streams that a recycler would not prefer in his or her oil

(because they lower the base oil value or

BTU value); accordingly, they are not collected and

transported and processed as "used oil." For those substances, the special waste rules would still

apply. Moreover, Part 739 is itself law

and enforceable.

There is no reason why the IEPA

cannot investigate to ensure compliance with that part, if it feels such is necessary. How is

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

eliminating a requirement to report, because it is tracked in another part of the regulations, losing

regulatory control?

NORA submits that IEPA has seriously misrepresented industry motives in

ths

rulemalung. NORA understands that, in most cases, a single generator will and should attempt

to keep used oil separate

&om special waste. In reality, that doesn't always happen, so a recycler

who is suspicious about the product will have to make appropriate inquires, and manifest or track

appropriately. Only if the material is appropriate for mixing with used oil and recycling as such

is the NORA language relevant. Moreover, NORA does not anticipate that its proposal will

allow a recycler to go from one facility and collect pure used oil

(whch it will track pursuant to

Part 739) and go to the next facility and collect special waste

(e.g., antifieeze) and call that

special waste "used oil." NORA recognizes an obligation to treat that second load (antifieeze) as

special waste and manifest accordingly. A special waste hauling permit would also be

applicable. However, where the load being picked up is already used oil mixed with material

encompassed within Section 739.1 10

(e.g., oily waste water), there is absolutely no reason to

manifest that load because the material is destined to be recycled and Part 739 tracking applies.

IEPA's fear of "loss of regulatory control" is not real; nor is it a reason to deny NORA the

regulatory clarification and relief it seeks and has justified in

ths proceeding.

CONCLUSION

NORA has spent much time and effort

trylng to achieve an objective that is reasonable,

legitimate, economically wise and

techcally sound. The IEPA has agreed that manifesting of

used oil pursuant to Part 808 and 809 ought to be discontinued, since it is covered by Part 739.

Yet, the IEPA's language is a half measure that would, without justification and based purely on

lack of familiarity with Part 739, as well as suspicion and speculation, dissect Part 739 in a way

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

that is not workable in this industry and not contemplated by Federal or state law. NORA urges

the Board to move forward with

NORA'S requested changes to Part 808 and 809

which would

exempt materials regulated as used oil pursuant to

Part 739 from the special waste manifesting

and hauling permit requirements of

Part 808 and 809, by recognizing that such material is

already sufficiently regulated pursuant to Part 739.

Respectfully Submitted,

an ~ss~tqf

Resesponsiblo Recyclers

By: Claire A. Manning

0

BROWN HAY

STEPHENS, LLP

Claire

Manning

Registration No. 3 124724

205 S. Fifth Street, Suite 700

P.O. Box 2459

Springfield,

IL 62705-2459

(217) 544-8491

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

STATE OF ILLINOIS

COUNTY OF SANGAMON

)

PROOF OF SERVICE

I, the undersigned, on oath state that I have served the attached NORA'S Response to

Post- Hearing Comments of the Illinois Environmental Protection

Agencv upon the persons to

whom they are directed, by placing a copy of each in

an

envelope addressed to:

Dorothy

Gunn, Clerk

William Richardson, Chief Legal Counsel

Illinois Pollution Control Board

Office of Legal Counsel

James R. Thompson Center

Illinois Dept. of Natural Resources

100 W. Randolph, Suite 11-500

One Natural Resource Way

Chicago, IL 60601

Springfield, IL 62702- 127

Matthew J. Dunn

Tim Fox, Hearing Officer

Environmental Bureau Chief

Illinois Pollution Control Board

Office of the Attorney General

James R. Thompson Center

100 W. Randolph Street

100 W. Randolph, 1

2th Floor

Suite 1 1-500

Chicago, IL 60601

Stephanie Flowers

Deirdre

K. Hirner, Executive Director

Assistant Counsel

Illinois Environmental Regulatory Group

Division of Legal Counsel

3 1 5 0 Roland Avenue

102 1 North Grand Avenue East

Springfield, IL 62703

P.O. Box 19276

Springfield, IL 62794-9276

and mailing it by First Class Mail

fiom Springfield, Illinois on October 10,2006, with sufficient

postage affixed.

SUBSCRIBED AND SWORN

.:.':..:..:..:..:..:..'.....:

BEFORE

.... ... ...

... . .:..:. .:. .:..:. .:.+.. .,...: ........ *.

This

1 ofi day of October, 2006

CINDY

O~F~C~AL

STOCKER

SEAL

.. ...

2 NOTARY PUBLIC. STATE OF

ILLINOIS $

.:">.:..>.:..:..:..:..:..:,.:-.:..:..:..:,.:..:..:..:..:..:.

1

MYCOMMISSION EXPIRES 5.1

.....+

1.2009

. . ....:.,>

-:-

October 10,2006\jlpW\WORD\CAM\CAM 

CLENTSWORAWORA RESPONSES REVISED.DOC 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

ATTACHMENT

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* * * * * PC #39 * * * * *

managed in accordance with 739. 

MR. RAO: When you say defined and managed 

pursuant to Part 739, does that include other materials 

that are regulated under Part 

739? 

MS. FLOWERS: We think 739 stands dn its own 

and we don't want to get 

we're talking about 808 and 

809, and if 739 for some reason is inadequate by how 

it's 

that would be an issue with 739. We're just 

going to agree to an exemption for used oil that's in 

compliance with and defined by 739. 

MR. RAO: SO 

MS. FLOWERS: We're not prepared to discuss 

739 today. 

MR. RAO: Okay. In that case, let me ask 

you this question now. Mr. Ray gave some examples about 

what these other materials could be, so if somebody's 

picking up used oil from an oil change facility and there 

is some fuel mixed up with the used oil, would that 

qualify for an exemption under your interpretation? 

MR. DRAGOVICH: Yeah, that meets the 

definition 

of used oil. Used oil is used oil that's 

contaminated through use, and so that's a perfect example 

of the contaminants that are in used oil. 

MR. RAO: Okay. 

Keefe Reporting Company 

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* * * * * PC #39 * * * * *

MS. MANNING: I have a follow-up question to 

that, if 

I might. When the Agency uses the word "used 

oil" in its proposed language to the Board, does it mean 

used oil as defined in 

739.100, which is a discreet 

two-and-a-half-line definition, or does it mean used oil 

both as defined in 739.100 plus as set forth in the 

applicability section found at 

739.110? That is a 

question related to 

MS. FLOWERS: Well, I mean, we'll have to 

get back to the comments on that. We weren't prepared to 

discuss 

739. 

MR. RAO: Okay. Any input from your part 

will be helpful to the Board. 

MS. MANNING: If Mr. Harris could offer a 

comment at this point as well? 

MR. HARRIS: 

I wanted to amplify, if you 

will, on the exchange we've just had here. Mr. Ray 

testified that there may be circumstances where the fuel 

is sort of naturally part 

of the used oil. I think he 

also indicated that there may be 

a situation where the 

generator would take some fuel, such as diesel 

maybe 

it's a cup of diesel fuel, virgin diesel 

and put it 

into the used oil. From my perspective, that would not 

specifically meet the definition of used oil but it still 

Keefe Reporting Company      

5

5

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* * * * * PC #39 * * * * *

2

MR. RAY: 739.110(d)(l). Little D 

excuse 

me

lower case D, numeral 1. 

MR. HARRIS: And 

I will just read that 

provision. "Mixtures of used oil and fuels or other fuel 

products are subject to regulation as used oil under this 

part. 

BOARD MEMBER GIRARD: So I'm trying to 

understand what the Agency is trying to say here. So 

you're saying that you need some specific language to 

make sure there's a cross-reference here between this and 

808 and 809 that we're dealing with today, or is it the 

other way around, that the Agency wants that 

cross-reference? 

MS. MANNING: I think we need to have a 

clear understanding of what the Agency's position is 

regarding their rule, their proposed language. 

BOARD MEMBER GIRARD: Thank you. So you 

~t

77s +_&y;

14

that 

2 0

MS. FLOWERS: No, actually, we were not 

21

readyy. We were prepared to talk 

22 about 808 and 809. 

2

3

MS. MANNING: Yet if I might, their proposed 

24 rule language particularly segues into 739, which is why 

Keefe Reporting Company      

5 8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

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ATTACHMENT B

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* * * * * PC #39 * * * * *

Wastes

Used Oil

Page 1 of 29

U.S,

E~vironmenlpi

Prohetion

Agene y

Wastes

Recent Add~tlons I C_onta_cf Us I Print Version

ria

EPA Home > Wastes > Your Home & Cornmunlty

Industry > Used 011

SUPPORTING STATEMENT FOR RENEWAL OF

INFORMATION COLLECTION REQUEST NUMBER

1286

"USED OIL MANAGEMENT STANDARDS RECORDKEEPIN(

AND REPORTING REQUIREMENTS"

SEPTEMBER 28,1998

1. IDENTIFICATION OF THE INFORMATION COLLECTION

l(a) Title and Number of the lnformation Collection

This ICR is titled "Used Oil Management Standards Recordkeeping and Reporting Requirements," ICR number 1:

I (b) Short Characterization

Section 3014 of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid

Amendments of 1984 (HSWA), directs EPA to "promulgate regulations

... as may be necessary to protect public he

environment from the hazards associated with recycled oil" and, at the same time, to not discourage used oil recy

mandate was amended to RCRA as Section 3012 by the Used Oil Recycling Act (UORA) of 1980, and later

redes

Section 3014 by HSWA. In 1985, EPA established regulations for used oil burners and marketers to mitigate pote

hazards to human health and the environment from the mismanagement of used oils. These standards were codil

CFR Part 266. EPA assessed the burdens and costs imposed upon the regulated community by these

requireme1

Specific Units Information Collection Request (ICR), ICR 1572 or the "Specific Units ICR."

When EPA codified standards for used oil destined for recycling in 40 CFR Part 279, the Agency decided to

cons(

related standards for used oil fuels from Part 266 of 40 CFR to Part 279. EPA assessed the burdens and costs as

with the new management standards in ICR 1286 "Used Oil ICR." To avoid double counting, EPA did not assess

and costs associated with the requirements promulgated in 1985, since they were included in the Specific Units

New standards for boilers and industrial furnaces (BIFs) that burn hazardous waste fuels were then promulgated i

Part 266. Accordingly, EPA revised the Specific Units ICR to include the burdens and costs associated with the nt

standards. At this time, the burdens and costs associated with the used oil burner standards were mistakenly dele

were no longer codified in 40 CFR Part 266.

The purpose for this ICR is to renew and revise the current Used Oil ICR 1286 to update and include all burdens

imposed upon the regulated community by the used oil management standards. Specifically, this involves updatin

estimate for burdens and costs assessed in the Used Oil ICR, and identifying and adding the requirements associ

the used oil burner standards which were previously accounted for in the original Specific Units ICR, but not

accol

the revised Specific Units ICR.

Certain used oil handlers required by the current regulations to notify EPA of their hazardous waste activities havt

done so because of regulations at 40 CFR Parts 262 and 266. The burdens for these information collections are

the Notification of Hazardous Waste Activity ICR ("Notification ICR"), No. 261, OMB Control Number 2050-0028. 1

continue to account for the reporting and recordkeeping burden for these requirements under the Notification ICR

Throughout this supporting statement, EPA indicates which specific requirements are covered by this clearance.

2. NEED FOR AND USE OF THE COLLECTION

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Wastes

Used Oil

Page 2 of 29

2(a) Need And Authority For The Collection

Section 3014 of RCRA, as amended, provides EPA with the statutory authority to promulgate the 40 CFR Part 27'

management standards to protect public health and the environment and to not discourage recycling. Sections 30

3013 of RCRA provide EPA with the authority to require the collection of information associated with these stand;

3007 provides that any hazardous waste handler shall, upon request by any authorized representative of EPA, ful

information relating to the wastes being managed, and grant access to all records relating to such wastes. Sectior

EPA the authority to issue an order requiring a facility

ownerloperator to conduct monitoring, testing, analysis, an(

with respect to such facility to ascertain the nature and extent of a condition that may pose a substantial hazard tc

health and the environment. In accordance with section 301 0 of the Act, used oil handlers who have not received

identification number must obtain one by notifying EPA of their used oil activity by submitting EPA Form

8700-12

requesting an EPA identification number.

USED OIL GENERATORS

In order for a burden to qualify as an lnformation Collection Request (ICR) element as part of the Paperwork Redl

must impose a monitoring, reporting, or recordkeeping requirement, and not be considered a customary business

Although Subpart C contains at least the burden element of reading and understanding the regulations, by definiti

burden is not subject to the ICR requirement.

USED OIL COLLECTION CENTERS AND AGGREGATION POINTS

In order for a burden to qualify as an lnformation Collection Request (ICR) element as part of the Paperwork Red1

must impose a monitoring, reporting, or recordkeeping requirement, and not be considered a customary business

Subpart

D of Part 279 does contain burden elements for collection centers. However, reading and understanding

regulations, by definition, is not subject to the ICR requirement. Furthermore, the section 279.31 burden associate

registration, licensing, or permitting by a state and local government is considered to be a widely conducted indus

USED OIL TRANSPORTERS AND TRANSFER FACILITIES

Transporter and transfer facility requirements for used oil are set forth in Part 279, Subpart E. Pursuant to section

used oil transporter and transfer facilities must determine the total halogen content of the used oil. Section 279.46

used oil transporters and transfer facilities to keep records of each used oil shipment accepted for transport

and10

to another used oil transporter, or to a used oil burner, fuel marketer, or used oil recycling facility. The records mu

maintained for at least three years. These requirements assist in keeping used oil handlers accountable for the

used oil. EPA also believes these recordkeeping requirements are necessary to monitor the flow of used oil within

oil management system. By providing a paper trail documenting all parties who handled the used oil, the requirerr

discourage adulteration of used oil by any used oil handler.

USED OIL PROCESSORS AND RE- REFINERS

Processor and re-refiner requirements for used oil are set forth in Part 279, Subpart F. Owners/operators of used

processing and re-refining facilities are also required to undertake prevention and preparedness activities at their

such as compliance with section 279.52 standards, which are very similar to Part 265 Subpart

D contingency plan

emergency procedure requirements for hazardous waste management facilities. These requirements will ensure

processing and re-refining facilities are maintained to minimize the threat of a sudden or non-sudden release, fire,

or similar emergency, as well as ensure that facilities are prepared to undertake appropriate actions if an emerger

occurs.

In addition, section

279.54(h) requires that oil processing and re-refining facilities that store or process used oil in

aboveground or underground tanks determine at the time of closure whether all contaminated soils can be practic

removed or decontaminated as required. If the

ownerloperator cannot make the determination, the ownerloperato

close the tank system and perform post-closure in accordance with section 265.310. Based on existing Superfunc

RCRA enforcement information available for the solid waste management units used for used oil storage or mana

EPA is convinced that the closure requirements of section 279.54 are critical to minimizing the potential creation

Superfund sites.

Pursuant to section 279.55, used oil processors and re- refiners must develop a written used oil analysis plan and

copy of the plan at the facility. The plan must include information concerning methods, location and frequency for

used oil. This requirement will ensure that the facilities are consistent in used oil testing methodologies.

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Wastes

Used Oil

Page 3 of 29

Section 279.56 sets forth tracking requirements for used oil processors and re-refiners. Used oil processors and rt

are required to keep a record for each used oil shipment that is accepted for processing or re-refining or delivered

used oil processor and re-refiner, or to a used oil burner or disposal facility. All records must be maintained for at

years. These requirements will assist in keeping used oil processors or re-refiners accountable for movements of

EPA also believes these recordkeeping requirements are necessary to monitor the flow of used oil within the usec

management system. By providing a paper trail documenting all parties who handled the used oil, the requiremen

discourage adulteration of used oil by any used oil processor or re-refiner.

Pursuant to section

279.57(b), processors and re-refiners must submit a biennial report to EPA. EPA requires this

submission so that the statistics can be grouped and used to identify industry trends.

USED OIL BURNERS WHO BURN OFF- SPECIFICATION USED OIL FOR ENERGY RECOVERY

On November 29, 1985, EPA promulgated notification, analysis and recordkeeping requirements for used oil burn

of the used oil final Phase I burning regulations at 40

CFR 266.44. These standards are now codified under Part

Section 279.65 sets forth tracking requirements for used oil burners. Burners are required to keep a record for eac

shipment that is accepted for burning. Section 279.66 stipulates that before a burner can accept off-specification

from a generator, transporter, or processor or re-refiner, he must provide to the used oil marketer a one-time writtc

signed notice certifying that the burner has notified EPA of his location and has provided a general description of I

management activities, and that the burner will burn the used oil only in an industrial furnace or boiler identified in

The certification must be maintained for three years from the date the burner last receives a shipment of

off-speci,

used oil from that generator, transporter, or processor or re-refiner. These requirements are the final step in monit

flow of used oil within the used oil management system and discouraging adulteration of used oil by any used oil

providing a paper trail documenting all parties who handled the used oil. These requirements provide a self- imple

mechanism to ensure that off-specification used oils are burned only in approved units.

USED OIL FUEL MARKETERS

On November 29, 1985, EPA promulgated notification, analysis and recordkeeping requirements for marketers of

fuels as part of the used oil final Phase I burning regulations at 40 CFR 266.43. These standards are now codifiec

279, Subpart

Pursuant to section 279.72, marketers that demonstrate that used oil meets the specifications of section 279.1 1 a

subject to further regulation. These persons may determine that used oil meets the specifications of section 279.1

performing analyses on the used oil or by obtaining copies of analyses or other information documenting that the

meets the specifications. All copies of analysis or other information must be kept for at least three years. This

reql

provides useful market information for burners and blenders and helps discourage any adulteration of used oil by

handler.

Section 279.74 sets forth tracking requirements for used oil marketers. Marketers who direct a shipment of

off-spc

used oil to a burner are required to keep a record for each used oil shipment. Section 279.75 stipulates that beforc

marketer sends a first shipment of off-specification used oil fuel to a burner, he must obtain from the burner a one

and signed notice certifying that the burner has notified EPA of his location and has provided a general

descriptio~

used oil management activities, and that the burner will burn the used oil only in an industrial furnace or boiler ide

s279.61. The certification must be maintained for three years from the date the marketer last sends a shipment of

specification used oil to the burner. This provides assurances that the off-specification oil is burned in facilities wit

appropriate emission controls. It also provides a paper trail documenting all parties who handled the used oil, ther

discouraging adulteration of used oil by any used oil handler.

STATE PETITIONS

Section 279.82 provides that a State may petition EPA to allow the use of used oil (that is not mixed with hazard0

and does not exhibit a characteristic other than ignitability) as a dust suppressant. The State must show that it ha:

in place to prevent the use of used

oil/hazardous waste mixtures or used oil exhibiting a characteristic other than i

as a dust suppressant. In addition, such programs must minimize the impacts of road oiling on the environment.

rules have been in place, no states have petitioned to use used oil as a dust suppressant. Therefore, EPA estimz

burden imposed upon States is insignificant.

2(b)

Practical UtilitylUsers of the Data

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Wastes

Used Oil

Page 4 of 29

The halogen content and tracking requirements help document the condition and management of the used oil as

responsibility of its handlers. Specifically, the requirements provide valuable market information. They also enable

and EPA, if EPA requests this documentation, to review and account for shipments of used oil. EPA also believes

recordkeeping requirements help to monitor the flow of used oil within the used oil management system and to

di:

any adulteration of used oil by any used oil handler, by providing a paper trail documenting all parties who handle1

oil.

The preparedness and prevention requirements of section 279 Subpart F (contingency plans and emergency plar

designed to minimize the threat of a sudden or non-sudden release, explosion or fire or similar event at used oil p

and re- refining facilities. EPA believes that the majority of recycling facilities have preparedness and prevention

contingency measures in place as a customary business practice or because they are required to under the Spill I

Control, and Countermeasures (SPCC) program.

The analysis plan requirement assigns marketers responsibility to establish documentation for used oil making its

through the used oil management system. Developing and retaining these records also discourages any adulteral

oil by subsequent used oil handlers.

The biennial reports will help EPA develop Phase

II management standards that may include incentives for encoL

generated (do-it- yourself) used oil recycling andlor more stringent management standards for a particular form of

The biennial reports also help the Agency monitor the flow and disposition of used oil and allow the Agency to ass

relative amounts of used oil that are recycled in different manners.

The response and closure requirements are critical to protect against potential future damages that could result

sites; the requirements stipulate that the ownerloperators must control used oil spills or releases and that contami

near or beneath the storage units must be removed or decontaminated.

The notices provide a self-implementing mechanism ensuring that off-specification used oils are burned only in ur

approved by EPA (industrial furnaces or boilers identified in section 279.61). Recordkeeping requirements ensure

certifications can be made available to EPA upon request.

The on-specification fuel requirements for used oil marketers, and the associated recordkeeping, in effect remove

regulatory burden from used oil burners burning on-specification used oil fuel and others handling used oil that mc

specifications. EPA believes that little is gained from regulating these fuels more stringently than virgin fuels,

sincc

used oil fuels essentially present no greater risk to human health and the environment.

The off-specification requirements for used oil marketers, and the associated recordkeeping, assist EPA in

keepin

marketers and burners accountable for regulatory compliance and help document the movement and burning of u

EPA.

3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

3(a) Nonduplication

There is no other Federal agency that collects the information as required under Part 279 concerning the manage

used oil for recycling. EPA has coordinated the development of the Part 279 requirements with the Department of

Transportation's 49 CFR regulations, where applicable. Used oil transporters must comply with all applicable

pack

labeling, and placarding requirements of 49 CFR Parts 173, 178, and 179. In addition, used oil transporters must

discharges of used oil according to existing 49 CFR Part 171 and

33 CFR Part 153 requirements.

3(b) Consultations

On November 29, 1985, EPA proposed a comprehensive set of management standards for generators, transportc

recycling facilities that handle and recycle used oil. EPA received substantial public comment on the 1985

propos)

requirements. On September 23, 1991, EPA published a Supplemental Notice of Proposed Rulemaking that disc1

Agency's recent data collection activities for the identification and listing of used oil, and discussed several option!

oil management standards. An objective of the management standards alternatives identified and discussed in

thc

Supplemental Notice was to clarify or modify certain 1985 proposed standards and to add new requirements. The

received a substantial number of comments on the specific approaches that the Agency was considering in the

reviewing and analyzing the comments in response to both the 1985 proposed rulemaking and the 1991 Supplem

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

Wastes

Used Oil

Page 5 of 29

of Proposed Rulemaking, the Agency adopted the current rule for controlling the management of used oils that arc

EPA developed an ICR in conjunction with the final used oil management standards Part 279. On December 21, '

approved ICR 1286 for use through 12/31/95. On September 1, 1995, EPA published in the Federal Register (60

a notice announcing that ICR 1286 for the used oil management standards was up for renewal. Because of recen

ICR development requirements, OMB granted a three month extension for ICR 1286. A renewal of ICR 1286 was

on December 8, 1995. It was flawed. This renewal identified, but did not assess, a number of burdens related to

marketers of used oil which were believed to be covered by ICR 1572, or the Specific Units ICR (which addressec

requirements for Part 266). Previously, in an effort to consolidate the requirements for used oil destined for recycli

moved the related regulations from Part 266 to Part 279. Accordingly, the burdens associated with the burner and

requirements, which were mistakenly believed to be covered by ICR 1572, were deleted from the Specific Units

subsequent renewal. With this ICR 1286.5, EPA has revised the previous renewal ICR 1286 to include all burden!

imposed upon the regulated community by the used oil management standards.

EPA received one comment on the September 1, 1995, Federal Register Notice. That comment was submitted

ell

to the RCRA Docket. This comment recommended that EPA provide used oil handlers with "information and skills

people in the field for cleaning-up inadvertent (hopefully) oil spills." The commenter provided no information on tht

or suggestions on how the existing ICR could be improved. Informal discussions with industry subsequent to the

comments on the notice confirmed that there was no interest in commenting on the renewal ICR 1286.

3(c) Effects of Less Frequent Collection

Past Agency experience in collecting information on a biennial basis has been proven to be an adequate frequenc

collection under the hazardous waste management system. This proven collection frequency is therefore warrantc

oil processors and re-refiners as part of the used oil management requirements.

3(d) General Guidelines

This information collection follows all of OMB's General Guidelines regarding Federal data collection.

3(e) Confidentiality

The information being collected under the Part 279 used oil management regulations does not reference trade sel

confidential business information, or any other type of confidential material that would trigger the Privacy Act of 1s

protective statutes.

3(f) Sensitive Questions

The information being collected under the Part 279 used oil management regulations do not concern sexual beha

attitudes, religious beliefs, or other matters usually considered private.

4. THE RESPONDENTS AND THE INFORMATION COLLECTED

4(a) Respondents and SIC Codes

The following is a list of SIC codes associated with used oil generators, transporters and transfer facilities, proces

refiners, burners, and marketers affected by the information requirements covered under this ICR:

- Petroleum refining and related industries

- Motor freight transportation and warehousing

5093

- Oil waste, wholesale

3559

- Cement kilns

3531

- Asphalt plants

4(b) Information Requested

USED OIL TRANSPORTER AND TRANSFER FACILITIES

(a) Reading and Understanding the Regulations

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(i) Data items:

Used oil transporters must read and understand all of the regulations that pertain to the transport of used o

(ii) Respondent activities:

Read and understand applicable regulations.

(b) Notification

Section 279.42 requires used oil transporters and transfer facilities who have not previously complied with the not

requirements of RCRA

9301 0 to obtain an EPA identification number. An EPA identification number can be obtair

completing EPA Form

8700-12 or submitting a letter to EPA requesting an EPA identification number.

(i) Data items:

Transporters must complete and submit to EPA Form

8700- 12 or write and submit a letter requesting an identific;

number. The letter must include the following information:

Transporter company name;

Owner of the transporter company;

Mailing address for the transporter;

Name and telephone number for the transporter point of contact;

Type of transport activity;

Location of all transfer facilities at which used oil is stored; and

Name and telephone number for a contact at each transfer facility.

(ii) Respondent activities:

To provide EPA with the required information, used oil transporters and transfer facilities must perform the

followi~

Complete and submit EPA Form 8700-12 or a letter requesting an identification number, as required by §2.

[Note: As a renewal ICR, burden for this requirement would only fall on new entrants to this business. Any new en

hazardous waste business would be required to notify under Part 262. With the trend toward consolidation, rather

expansion, among industry participants, EPA expects no incremental burden from this requirement.]

(c) Used oil transportation: discharges

In the event of a used oil discharge, section 279.43(c) requires the transporter to take appropriate, immediate acti

protect human health and the environment. Section

279.43(~)(3) requires an air, rail, highway, or water transporte

discharged used oil to give notice, if required by 49 CFR 171.15, to the National Response Center (NRC) and to r

writing, as required by 49 CFR 171.16, to the Department of Transportation. Section

279.43(~)(4) requires a wate

who has discharged used oil to give notice as required by 33 CFR 153.203.

(i) Data items:

Notification to local authorities of the used oil discharge.

(ii) Respondent activities:

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Notify local authorities, as required by §279.43(~)(1)

[Note: The notification requirements of 279.43(c) are subject to 49 CFR Part 171 and 279.43(~)(5) is subject to 33

153. Therefore, these elements are not addressed in this ICR.]

(d) Rebuttable presumption

Pursuant to section 279.44, the used oil transporter must determine whether the total halogen content of used oil

transported or stored at a transfer facility is above or below 1,000 ppm. The transporter must test the used oil or

knowledge of the halogen content of the used oil in light of the materials or processes used. If the used oil contair

than or equal to 1,000 ppm total halogens, it is presumed to be a hazardous waste. The transporter may rebut

thi:

presumption by demonstrating that the used oil does not contain hazardous waste.

(i) Data items:

Data items required by section 279.44 include:

Records of analyses conducted or information used to comply with the requirements; and

If the used oil contains greater than or equal to 1,000 ppm total halogens, a demonstration that the used oi

contain hazardous waste.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

(c), and (d):

Test the used oil, as required by §279,44(b)(l); or

Apply knowledge of the halogen content of the used oil in light of the materials or processes used, as requi

§279.44(b)(2).

If the used oil contains greater than or equal to 1,000 ppm total halogens, rebut the hazardous waste presL

demonstrating that the used oil does not contain hazardous waste, if desired, as provided by §279.44(c).

Maintain records for at least three years of analyses conducted or information used to comply with the reqi

279.44, as required by §279.44(d).

[Note: The section 279.44 determinations are not expected to impose an incremental burden or cost on most use(

transporters because such determinations are already a widely conducted industry practice in response to the rec

40 CFR Part 266, Subpart E. EPA estimates that approximately 12.5 percent of transporters and transfer facilities

their used oil and retain records because of the section 279.44 requirement.

(e) Labeling

Section 279.45(g) requires that labels with the words "used oil" be clearly placed on containers and aboveground

to store oil and on fill pipes used to transfer oil into underground storage tanks at the transfer facility.

(i) Data items:

Apply labeling as necessary.

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[Note: This ICR element does not impose incremental burden because the exact wording of the information to be

provided in the regulations.]

(f)

Tracking

Pursuant to section 279.46, used oil transporters must keep a record of each used oil shipment accepted for trans

each used oil shipment that is delivered to a transporter, burner, processorlre-refiner, or disposal facility. In

additic

transporters must keep a record of each shipment of used oil that is exported to any foreign country.

(i) Data items:

Records of each used oil shipment accepted by a transporter must include the following:

o The name, address, and EPA identification number (if applicable) of the generator, transporter, or pr

refiner who provided the used oil for transport;

o The quantity of used oil accepted;

o The date of acceptance; and

o The signature, dated upon receipt of the used oil, of a representative of the generator, transporter, o

processorlre-refiner who provided the used oil for transport.

Records of each used oil shipment sent to another used oil transporter, or to a used oil burner, processorlr'

disposal facility must include the following:

o The name, address, and EPA identification number (if applicable) of the receiving facility or transpor

o The quantity of used oil delivered;

o The date of delivery; and

o The signature, dated upon receipt of the used oil, of a representative of the receiving facility or trans

Records of each used oil shipment that is exported to a foreign country must include the following:

o The name, address, and EPA identification number (if applicable) of the receiving facility or transpor

o The quantity of used oil delivered; and

o The date of delivery.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

279.46:

Maintain for at least three years a record of each used oil shipment accepted for transport, as required by

and (d);

Maintain for at least three years a record of each used oil shipment delivered to a used oil transporter, burr

processorlre-refiner, or disposal facility, as required by

§279.46(b) and (d); and

Maintain for at least three years a record of each used oil shipment exported to any foreign country,as reqL

§279.46(c) and (d).

USED OIL PROCESSORS AND RE-REFINERS

(a) Reading and Understanding the Regulations

(i) Data items:

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Used oil processors and re-refiners must read and understand all of the regulations that pertain to manage

used oil.

(ii) Respondent activities:

Read and understand the applicable regulations

(b) Notification

Section 279.51 requires used oil processors and re-refiners who have not previously complied with the notificatior

requirements of RCRA

S3010 to obtain an EPA identification number. An EPA identification number can be obtair

completing EPA Form 8700-12 or submitting a letter to EPA requesting an EPA identification number.

(i) Data items:

Processors and re-refiners must complete and submit to EPA Form 8700-12 or write and submit a letter requestin

identification number. The letter must include the following information:

Processor or re-refiner company name;

Owner of the processor or re-refiner company;

Mailing address for the processor or re-refiner;

Name and telephone number for the processor or re-refiner point of contact;

Type of used oil activity;

Location of the processor of re-refiner facility; and

(ii) Respondent activities:

To provide EPA with the required information, processors and re-refiners must perform the following activities:

Complete and submit EPA Form 8700-12 or a letter requesting an identification number, as required by §2'

[Note: The section 279.51 notification requirement is not burdened in this ICR because it is already burdened in tt

Notification ICR, No. 261 .]

(c) Contingency Plan and Emergency Procedures

Pursuant to section 279.52(b), used oil processors and re-refiners must comply with the contingency plan and em

procedure requirements established in the rule, which are similar to those promulgated under 40 CFR Part 265

hazardous waste facilities. Section 279.52(b)(I) requires processors and re-refiners to develop a contingency plat

279.52(b)(3) requires used oil processors and re-refiners to maintain a copy of the contingency plan at the facility.

279.52(b)(4) requires that the contingency plan be reviewed and immediately amended, if necessary. If the emerc

coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, 01

environment, outside the facility and if the assessment indicated that evacuation of local areas may be advisable,

immediately notify appropriate local authorities, as required by section

279.52(b)(6)(iv)(A). Section 279.52(b)(6)(iv

requires the emergency coordinator to notify the National Response Center (NRC) or the on-scene coordinator (C

used oil release, fire, or explosion which could threaten human health or the environment. After an emergency sit1

section 279,52(b)(viii)(B) stipulates that the processor or re-refiner cannot resume operations until he notifies EPP

and local authorities that the facility is in compliance with waste compatibility and emergency equipment requirem

Section

279.52(b)(ix) requires a processor or re-refiner to record in the facility operating record and submit to EPP

report of any emergency incident.

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(i) Data items:

The data items required of processors and re-refiners for the above activities include the following:

A contingency plan that includes the following information:

o A description of actions that facility personnel must take to comply with §§279,52(b)(l) and 279.52(t

response to fires, explosions, or any unplanned release of used oil;

o A description of arrangements with local police and fire departments, hospitals, contractors, and Sta

emergency response teams to coordinate emergency services, pursuant to

§279,52(b)(iii);

o A list of names, addresses, and phone numbers of all persons qualified to act as emergency coordir

required by

§279.52(b)(iv);

o An updated list of all emergency equipment at the facility. The list must include a physical descriptio~

piece of equipment, its location, and its capabilities, as required by §279.52(b)(v); and

o An evacuation plan for facility personnel where there is a possibility that evacuation could be neces:

required by §279.52(b)(vi).

A review and amendment, if necessary, of the contingency plan whenever:

o Applicable regulations are revised;

o The plan fails in a emergency;

o The facility makes design, construction, operation, maintenance, or other changes that materially inc

potential for fires, explosions, or releases of used oil, or changes the response necessary in an eme

o The list of emergency coordinators changes; or

o The list of emergency equipment changes.

After a used oil release, fire, or explosion, notification to the NRC or OSC and to local authorities if the em€

coordinator determines that evacuation of local areas may be advisable.

After an emergency situation, notification to EPA and State and local authorities that the facility is in compli

waste compatibility and emergency equipment requirements;

Documentation of the emergency in the operating record; and

A written report of any emergency incident.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

and 40 CFR Part 265 Subpart D:

Develop a contingency plan, as required by §279.52(b)(I) and (2);

Retain a copy of the contingency plan at the facility and submit copies to specified parties, as required by

(3);

Review and amend, if necessary, the contingency plan, as required by §279.52(b)(4);

Notify NRC or the OSC and, if applicable, local authorities as required by §279,52(b)(6)(iv)(A) and (B), of a

fire, or explosion;

After an emergency situation, notify EPA and State and local authorities, as required by §279.52(b)(6)(viii),

facility is in compliance with waste compatibility and emergency equipment requirements; and

Maintain in the facility operating record and submit to EPA a written report of any emergency incident, as rc

§279.52(b)(6)(ix).

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[As a renewal ICR, burden for these requirements would only fall on new entrants to this business. Any new entra

be required to develop contingency and emergency plan procedures. With the trend toward consolidation, rather

expansion, among industry participants, EPA expects no incremental burden from these requirements. However,

estimates that 1

% of used oil processors and re-refiners will experience an emergency, and therefore be subject t

emergency procedural requirements. Furthermore, that same 1

% will be required to revise emergency plans.]

(d) Rebuttable presumption

Pursuant to section 279.53, a used oil processor or re-refiner must determine whether the total halogen content o.

being managed at the facility is above or below 1,000 ppm. The processor or re-refiner must test the used oil or a

knowledge of the halogen content of the used oil in light of the materials or processes used. If the used oil contair

than or equal to

1,000 ppm total halogens, it is presumed to be a hazardous waste. The processor or re-refiner m,

presumption by demonstrating that the used oil does not contain hazardous waste.

(i) Data items:

Data items required by section 279.53 include the following:

Records of analyses conducted or information used to comply with the requirements; and

If the used oil contains greater than or equal to 1,000 ppm total halogens, a demonstration that the used oi

contain hazardous waste.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities:

Test the used oil, as required by 279.53(b)(I); or

Apply knowledge of the halogen content of the used oil in light of the materials or processes used, as requi

§279.53(b)(2).

If the used oil contains greater than or equal to 1,000 ppm total halogens, rebut the hazardous waste assur

demonstrating that the used oil does not contain hazardous waste, if desired, as provided under §279.53(c

[Note: As described in previously approved Used Oil ICRs, the section 279.53 ICR element of testing for halogen

processors and re-refiners is considered to be a "customary and usual business practice" (CBP) and is therefore

(

non-burdensome.]

(e) Used oil management

Pursuant to §279,54(h)(l)(ii), upon closure of a tank system, if a used oil processor or re-refiner demonstrates tha

contaminated soils can be practicably removed or decontaminated as required by

279,54(h)(l)(i), he must close tl

system and perform post-closure care in accordance with section 265.310.

(i) Data items:

A demonstration upon closure of a tank system that not all contaminated soils can be practicably removed

decontaminated.

(ii) Respondent activities:

If necessary, demonstrate that not all contaminated soils can be practicably removed or decontaminated, a

§279.54(h)(l )(ii).

[Note: EPA expects that no aboveground used oil tanks will require post-closure care under section 265.310.1

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(f) Analysis plan

Pursuant to 279.55 used oil processing and re-refining facilities must develop and follow a written analysis plan dc

procedures that will be used to comply with the analysis regulations. This section lists the data items and respond

activities associated with the analysis plan.

(i) Data items:

Processors and re-refiners must develop a written analysis plan for on-specification and off-specification u5

includes the following information:

o For the rebuttable presumption for used oil in section 279.54: Whether sample analyses or other infc

be used to make this determination;

The sampling method used to obtain representative samples;

Methods used to analyze used oil for the parameters specified in section 279.1 1;

The frequency of sampling to be performed, and whether the analysis will be performed on site or off site.

o For the specification fuel analysis (if required under 279.72): Whether used oil will be sampled and 2

prior to or after any processing or re- refining;

The sampling method used to obtain representative samples;

Methods used to analyze used oil for the parameters specified in section 279.1 1;

Whether used oil will be sampled or analyzed prior to or after any processinglre-refining; and

The frequency of sampling to be performed, and whether the analysis will be performed on site or off site.

(ii) Respondent activities:

In order to provide the data items listed above, processors and re-refiners must perform the following activities:

Develop and maintain the analysis plan, as required by s279.55; and

Retain the plan at the facility, as required by s279.55.

(g) Tracking

Pursuant to section 279.56, used oil processorslre-refiners must keep a record of each used oil shipment accepte

processinglre-refining and each shipment that is shipped to a burner, processorlre-refiner, or disposal facility.

(i) Data items:

Records of each used oil shipment accepted for processinglre-refining must include the following:

o The name, address, and EPA identification number (if applicable) of the generator or processorlre-rt

whom the used oil was sent for processing or re-refining;

o The EPA identification number (if applicable) of the transporter who delivered the used oil to the pro1

re-refiner;

o The quantity of used oil accepted; and

o The date of acceptance.

Record of each shipment of used oil that is shipped to a used oil burner, processorlre-refiner, or disposal

include the following:

o The name, address, and EPA identification number (if applicable) of the transporter who delivers the

a burner, processorlre-refiner, or disposal facility;

o The name, address, and EPA identification number (if applicable) of the burner, processorlre-refiner

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facility who will receive the used oil;

o The quantity of used oil shipped; and

o The date of the shipment.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

279.56:

Maintain a record for at least three years of each used oil shipment received for processing or re-refining,

by §279.56(a) and (c); and

Maintain a record for at least three years of each used oil shipment shipped to a burner, processorlre-refint

disposal facility, as required by §279.56(b) and (c).

(h) Operating record and reporting

This section lists the data items and respondent activities associated with the operating record and reporting requ

section 279.57.

(i) Data items:

Processors and re-refiners must keep a written operating record at the facility that includes the following in1

Records and results of used oil analyses performed as specified in 9279.55;

Records and results of used oil analysis rebuttals as specified in 279.53;

Summary reports and details of all incidents that require implementation of the contingency plan as specific

§279.52(c); and

Processors and re-refiners must biennially develop and submit a letter to EPA (Regional Administrator) cor

following information:

o The EPA identification number, name, and address of the processor or re-refiner;

o The calendar year covered by the report;

o The quantities of used oil accepted for processinglre-refining and the manner in which the used oil i$

processed1 re-refined, including the specific processes employed;

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

279.57:

Develop an operating record as required by §279.57(a)(I);

Retain records of results of analyses performed under S279.55.

Retain records of emergency incidents as required by S279.52.

Develop and submit to EPA a biennial report (by March 1 of each even numbered year) concerning used o

during the previous calendar year, as required by

§279.57(b).

[Note: Most section 279.57 requirements are already widely conducted industry practices in response to the used

regulations promulgated in 1985. However, EPA estimates that 20 percent of all processors and re-refiners will

records because of the new section 279.57 and 279.55 requirements. In addition, EPA expects that one percent c

facilities will rebut the hazardous waste presumption and now retain records demonstrating that the used oil is not

hazardous.]

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USED OIL BURNERS WHO BURN OFF-SPECIFICATION USED OIL FOR ENERGY RECOVERY

(a) Reading and Understanding the Regulations

(i) Data items:

Used oil burners must read and understand all of the regulations that pertain to burning used oil.

(ii) Respondent activities:

Read and understand the applicable regulations.

(b) Notification

Section 279.62 requires used oil burners who have not previously complied with the notification requirements of F

to obtain an EPA identification number. An EPA identification number can be obtained by completing EPA Form 8

submitting a letter to EPA requesting an EPA identification number.

(i) Data items:

Used oil burners of off-specification used oil must complete and submit to EPA Form 8700-12 or write and submit

requesting an identification number. The letter must include the following information:

Burner company name;

Owner of the burner company;

Mailing address for the burner;

Name and telephone number for the burner point of contact;

Type of used oil activity; and

Location of the burner facility.

(ii) Respondent activities:

To provide EPA with the required information, used oil burners must perform the following activities:

Complete and submit EPA Form 8700-12 or a letter requesting an EPA identification number, as required t

(a).

[Note: The section 279.62 notification requirement is not burdened in this ICR because it is already burdened in tt

Notification ICR, No. 261 .]

(c) Rebuttable presumption

Pursuant to section 279.63, a used oil burner must determine whether the total halogen content of used oil being

the facility is above or below 1,000 ppm. The burner must determine halogen content by testing the used oil,

appl!

knowledge of the halogen content of the used oil in light of the materials or processes used, or by using informatic

by the

processorlre-refiner. If the used oil contains greater than or equal to 1,000 ppm total halogens, it is presum

hazardous waste. The burner may rebut this presumption by demonstrating that the used oil does not contain haz

waste.

(i) Data items:

Data items required by section 279.63 include:

Records of analyses conducted or information used to comply with the requirements; and

If the used oil contains greater than or equal to 1,000 ppm total halogens, a demonstration that the used oi

contain hazardous waste.

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(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities:

Test the used oil, as required by §279,63(b)(l); or

Apply knowledge of the halogen content of the used oil in light of the materials or processes used, as requi

§279.63(b)(2); or

Use information provided by the processorlre-refiner, as required by §279.63(b)(3).

If the used oil contains greater than or equal to 1,000 ppm total halogens, rebut the hazardous waste assul

demonstrating that the used oil does not contain hazardous waste, if desired, as provided in §279.63(c).

Maintain records for at least three years of analyses conducted or information used to comply with the reqi

section 279.63, as required by §279.63(d).

[Note: The section 279.63 ICR element of rebutting a presumption is considered to be a "customary and usual bu:

practice" (CBP) and is therefore excluded as non-burdensome. However, the requirement of maintaining records

considered an additional ICR element. EPA expects that

1 % of these facilities will begin to keep records as a resi

requirement.]

(d)

Labeling

Section 279.64 requires that the words "used oil" be clearly placed on containers and aboveground tanks used to

and on fill pipes used to transfer oil into underground storage tanks at the transfer facility.

(i) Data items:

Apply labeling as necessary.

[Note: This ICR element does not impose incremental burden because the exact wording of the information to be

provided in the regulations.]

(e) Tracking

Pursuant to section 279.65, used oil burners must keep a record of each used oil shipment accepted for burning.

(i) Data items:

Records for each shipment must include the following:

o The name, address, and EPA identification number (if applicable) of the transporter who delivered tb

to the burner;

o The name, address, and EPA identification number (if applicable) of the generator or processorlre-rt

whom the used oil was sent to the burner;

o The quantity of used oil accepted; and

o The date of acceptance.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities:

Maintain a record for at least three years of each used oil shipment accepted for burning, as required by §;

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(f) Notices

Pursuant to section 279.66, before a burner accepts the first shipment of off-specification used oil fuel from a genc

transporter, or processorlre-refiner, the burner must provide to the generator, transporter, or processorlre-refiner ;

written and signed notice.

(i) Data item:

A one-time written and signed notice certifying that:

o The burner has notified EPA of his or her location and has provided a general description of his or h

management activities; and

o The burner will burn the used oil only in an industrial furnace or boiler identified in $279.61.

(ii) Respondent activities:

In order to provide the data item listed above, respondents must perform the following activities, as required in

sec

279.66:

Provide a one-time notice to each generator, transporter, or processorlrefiner who ships used oil to the bur

required by

§279.66(a);

Maintain the certification for three years after the date the burner last receives a used oil shipment from tha

transporter, or

processorlre-refiner, as required by §279.66(b).

USED OIL FUEL MARKETERS

(a) Reading and Understanding the Regulations

(i) Data items:

Used oil marketers must read and understand the applicable regulations.

(ii) Respondent activities:

Read and understand the appropriate regulations for transporting used oil.

(b) Analysis of on-specification used oil fuel

Pursuant to §279.72(a), used oil marketers that demonstrate that used oil meets the specifications of S279.11 are

to further regulation. These persons may determine that used oil meets the specifications of

s279.11 by performin

or by obtaining analyses or other information.

(i) Data items:

Records of analyses performed, copies of analyses or other information documenting that the used oil fuel

specifications under

s279.11.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities:

Perform used oil analyses or obtain copies of analyses or other information documenting that the used oil f

specifications, as required by

§279.72(a); and

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Retain copies of analyses or other information used to make the determination for three years, as required

(b).

[EPA assumes that all processorslrefiners (249) and one-half of all transporters (192) operate as marketers and

subject to these requirements.]

(c) Notification

Section 279.73 requires used oil marketers who have not previously complied with the notification requirements o

93010 to obtain an EPA identification number. An EPA identification number can be obtained by completing EPA

12 or submitting a letter to EPA requesting an EPA identification number.

(i) Data items:

Marketers must complete and submit to EPA Form 8700-12 or write and submit a letter requesting an idenl

number. The letter must include the following information:

o Marketer company name;

o Owner of the marketing company;

o Mailing address for the marketer;

o Name and telephone number for the marketer point of contact; and

o Type of used oil activity.

(ii) Respondent activities

To provide EPA with the required information, marketers must perform the following activities:

Complete and submit EPA Form 8700-12 or a letter requesting an identification number, as required by 92'

[Note: The section 279.73 notification requirement is not burdened in this ICR because it is already included in the

Notification ICR, No. 261 .]

(d) Tracking

Pursuant to section 279.74, used oil marketers must keep a record of each used on-specification and off-specific2

oil shipment that is shipped to a burner.

(i) Data items:

Records of each shipment of off-specification used oil shipped to a burner must include the following inforn

o The name, address, and EPA identification number (if applicable) of the transporter who delivers the

the burner;

o The name, address, and EPA identification number (if applicable) of the burner who will receive the

o The quantity of used oil shipped; and

o The date of shipment.

Records of each shipment of on-specification used oil shipped to a burner must include the following inforn

o The name and address of the facility receiving the shipment;

o The quantity of used oil fuel delivered;

o The date of the shipment or delivery; and

o A cross-reference to the record of used oil analysis (or other information used to make the determini

the oil meets the specification required under 9279.1 1).

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(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities:

Maintain a record for at least three years of each shipment of off-specification used oil fuel shipped to a bu~

required by §279.74(a) and (c); and

Maintain a record for at least three years of each shipment of on-specification used oil fuel shipped to a bu~

required by §279.74(b) and (c).

[EPA has assumed no incremental burden for this requirement since transporters and processors are already sub

similar record keeping requirements.]

(e) Notices

Pursuant to section 279.75, before a used oil generator, transporter, or processorlre-refiner directs the first shipml

specification used oil fuel to a burner, he must obtain a one-time written and signed notice.

(i) Data item:

A one-time written and signed notice certifying that:

o The burner has notified EPA of its location and has provided a general description of its used oil ma

activities; and

o The burner will burn the off-specification used oil only in an industrial furnace or boiler identified in §.

(ii) Respondent activities:

In order to provide the data item listed above, respondents must perform the following activities:

Obtain a one-time notice from each burner who receives off-specification used oil fuel from the generator, :

by §279.75(a); and

Maintain the certification for three years after the date the last shipment of off-specification used oil is shipr

burner, as required by §279.75(b)

[EPA assumes that all processors/rerefiners (249) and one-half of transporters (192) would operate as marketers

be subject to these requirements, as with

279.72.1

STATE PETITIONS

Pursuant to section 279.82, a State may petition EPA (e.g., as part of its authorization petition submitted to EPA u

S271.5) to allow the use of used oil as a dust suppressant. The State must demonstrate that it has a program in p

prevent the use of used oillhazardous waste mixtures or used oil exhibiting a characteristic other than ignitability

suppressant. In addition, such programs must minimize the impacts of road oiling on the environment.

(i) Data items:

A petition demonstrating the following:

o The State has a program in place to prevent the use of used oillhazardous waste mixtures or used c

a characteristic other than ignitability as a dust suppressant; and

o The program would minimize the impacts of road oiling on the environment.

(ii) Respondent activities:

In order to provide the data items listed above, respondents must perform the following activities, as required by

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Petition EPA (e.g., as part of its authorization petition submitted to EPA under §271.5), as required by §272

[EPA has not received any applications to use used oil as a dust suppressant since the implementation of the rule

Therefore, the element is considered to be non-burdensome.]

5. THE INFORMATION COLLECTED

AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORN

MANAGEMENT

The following subsections discuss how EPA will collect the information, what activities EPA will perform once the

has been received, and how EPA will manage the information it collects. The subsections also include a discussic

the information collection requirements affect small entities.

5(a) Agency Activities

Agency activities associated with the used oil requirements include the review and recordkeeping of RCRA sectio

notification materials submitted by used oil transporters, used oil processors and re-refiners, off-specification usec

burners, and used oil fuel marketers. The Agency will provide these respondents with an EPA identification

numbc

The Agency must also review and keep records of:

Letters submitted on a biennial basis by used oil processors and re-refiners describing their used oil activiti

required by section 279.57(b); and

Petitions submitted by States requesting the use of used oil as a dust suppressant, as required by section :

In addition, after a release, fire, or explosion at a used oil processor or re-refiner, EPA must be notified by the faci

ownerloperator that the facility is in compliance with paragraph (h) of this section before operations are resumed

affected areas of the facility, as required by section 279,52(b)(6)(viii). The Agency will review and keep records of

the incident submitted by the facility ownerloperator, as required by section

279,52(b)(6)(ix).

5(b) Collection Methodology and Management

In collecting and analyzing the information required under the Part 279 requirements, EPA uses state-of-the-art el

equipment such as personal computers and applicable data base software, when appropriate.

5(c) Small Entity Flexibility

Under Part 279, all used oil generators are regulated under one set of minimum management standards. The reg1

exempt one class of generators based on a generation rate. Farmers, who generate an average of 25 gallons or I1

oil from vehicles or machinery used on the farm in a calendar year, are not subject to the used oil generator stand

September 1991 Supplemental Notice, EPA proposed to eliminate the regulatory distinction between small quanti

quantity generators as proposed in the November 1985 proposed rulemaking. The majority of commenters who

r€

the September 1991 Supplemental Notice on this issue supported the proposed elimination of the regulatory distil

generators.

The rule does, however, contain provisions that encourage recycling of used oil by private individuals and small e

Subpart C of the rule exempts from its generator requirements household "do-it-yourselfers." Many individuals

anc

entities also receive regulatory relief through the section 279.20(a)(3) exemption. The section exempts from the P

requirements mixtures of used oil and diesel fuel mixed together by generators for use in their own vehicles. In ad

generators may transport, without an EPA identification number, used oil that is generated at the generator's site

;

collected from household do-it-yourselfers to a used oil collection center if certain conditions are met. Finally, purs

section 279.20(c), service station ownerloperators that collect used oil from do-it-yourselfers and that are in comF

Subpart C may be eligible for an exclusion from the cost recovery authorities of CERCLA section 107(a)(3) and (a

provided by Section 114(c) of CERCLA.

5(d) Collection Schedule

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Part 279 places few information collection requirements on used oil handlers. Section 279.57(b) requires that use1

processors and re-refiners submit a biennial letter (by March 1 of each even numbered year) to EPA describing th

activities. In the event that a release, fire, or explosion occurs, the ownerloperator must inform EPA and appropri~

and local authorities that the facility is in compliance with paragraph (h) of the section before operations are resun

15 days after the incident, the ownerloperator must submit a written report on the incident to EPA, as required by

279,52(b)(6)(ix).

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION

The following results section is segregated into seven major parts, beginning with section 6(a) and ending with se

The first four sections include estimates of: respondent burdens, respondent costs, Agency burden and cost, and

respondent universe and the total burden and costs. The last three sections identify the total burden hours and co

reasons for changes in burden, and a burden statement. Within section

6(b) "Estimating Respondent Costs," therc

detailed used oil respondent categories: transporters and transport facilities, processorslre-refiners, burners who I

specification used oil, and fuel marketers. Note that some totals in the exhibits and the text may not add due to ro

6(a) Estimating Respondent Burden

This revision of the renewal ICR 1286 calculates and presents the incremental burden on used oil handlers as a rl

Recycled Used Oil Management Standards (40 CFR Part 279) rule promulgated in September, 1992. The increml

burden in this ICR is in addition to that accounted for under the Notification ICR, No. 261, as noted throughout thi:

Exhibits 1 though 4 present EPA's estimated respondent burden and costs associated with the information collect

requirements covered in this ICR. All exhibits display both the number of hours required to conduct each informati

collection activity and the cost associated with that activity.

EPA consulted with fewer than nine respondents from

regulated community to obtain burden hour and labor and materials cost estimates for each type of facility.

6(b) Estimating Respondent Costs

Based on the information provided by the regulated community, the average hourly labor cost (hourly wage plus c

and fringe benefits) was determined for used oil transporters and transfer facilities, processorslre-refiners, burner:

specification used oil, and marketers. For transporters, it is estimated to be $34.35 for managerial staff, $25.55

fo~

staff, and $17.18 for clerical staff. For processors, it is estimated to be $34.35 for managerial staff, $27.05 for tect

and $17.98 for clerical staff. For burners, it is estimated to be $38.83 for managerial staff, $29.75 for technical

sta

$13.50 for clerical staff. Finally, for marketers it is estimated to be $34.35 for managerial staff, $26.66 for technica

$17.18 for clerical staff.

Capitallstart-up costs and operations and maintenance (O&M) costs were not among the items directly surveyed 1

revision of the renewal ICR 1286. EPA believes that only new transporters, processors/re-refiners, burners, and

n

would incur capitallstart-up costs due to these regulations. With the trend toward consolidation, rather than expan

industry participants, EPA expects no incremental costs from these requirements. O&M costs for items such as fil

photocopying and postage are incorporated into the recordkeeping requirement estimates which are located at

thc

each used oil respondent section.

USED OIL TRANSPORTER AND TRANSFER FACILITY REQUIREMENTS

Exhibit 1 presents annual burden and cost estimates for used oil transporters and transfer facilities. Included in th

are burden and cost estimates for the following:

Reading and understanding the regulations;

Determination of halogen content;

Tracking used oil shipments delivered and accepted;

Recordkeeping for halogen content and tracking requirements

EPA estimates that there are approximately 383 independent used oil transporters and transfer facilities currently

operation.' The bottom line burden to each transporter and transfer facility is 884 hours per year, with an annual c

approximately $20,543. This results in a total annual burden for all transporters and transfer facilities of 161,729 h

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total cost of $5,093,575.

(a) Reading and understanding the regulations

All 383 used oil transporters read the regulations each year. EPA estimates that the total annual burden for a usel

transporter to read the regulations is four hours, at an annual cost of $107. The annual burden for all transporters

requirement is 1,341 hours, at a cost of $40,994.

(b)

Halogen testing of used oil

Of the 383 used oil transporters and transfer facilities, EPA estimates that one-eighth, or 48 did not already test ti-

content of the used oil. This estimate is based on a National Oil Recyclers Association survey. The requirement

impose an incremental burden or cost on most used oil transporters because such determinations are already a \n

conducted industry practice in response to the used oil fuel specification established in 1985.

A transporter typically makes halogen content determinations 4,633 times per year at a materials cost of $5.36 pe

estimates the total annual materials cost per transporter to be $24,827 and for the 48 transporters to be $1,191,6!

annual burden hours per transporter is 463 hours, at a cost of $1 1,839. This translates to an annual burden of 22,

at a cost of $568,272 for the 48 transporters and transfer facilities. The combined cost (labor plus materials) is

$1:

(c) Tracking used oil shipments and deliveries

Every transporter and transfer facility keeps records of used oil shipments delivered to processors or other custon

estimates that 530 shipments are delivered each year by a typical transporter. EPA believes that while many of th

requirements

(e.g., name and address of recipient, quantity shipped, date) are part of customary business practicl

incremental burden results from the regulations. The incremental tracking requirement associated with these ship

results in an annual respondent burden of 42 hours per year, with an annual cost of $848. The annual burden for,

transporters and transfer facilities is 16,163 hours, at a cost of $324,669.

Furthermore, all 383 transporters and transfer facilities keep records of each shipment of used oil accepted at

eac

EPA estimates that 4,000 shipments are accepted each year by a typical transporter. The incremental tracking rec

for shipments accepted results in an annual respondent burden of 319 hours per year, at an annual cost of $6,39(

Therefore, the annual burden for all transporters and transfer facilities is 121,986 hours at $2,450,331.

(d) Maintaining records

Every transporter and transfer facility must maintain the records of their halogen testing and tracking activities for

years. This recordkeeping requirement imposes a respondent burden of 57 hours annually at a cost of $1,351. Th

burden for all transporters and transfer facilities due to the recordkeeping burden is 21,703 hours, at a cost of $51

Exhibit 1

Estimated Transporter and Transfer Facility Burden and Cost

Hours and Costs per Respondent

Total Hours and

Co!

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Page 22 of 29

"?'"

information 1

O.OO1l 14.6411 27.5611

42.20 $847.7011

$o.ooi

38311 16,163.0811 $

(delivered)

FFFFFFFUFF

information

(accepted)

r1mFFFFmpFF

specified

piTlmpiG37q00/158997/127023118842011$20.5428911$24.826.941)38311161.729081b

USED OIL PROCESSORS AND RE-REFINERS

Exhibit 2 presents annual burden and cost estimates for used oil processorslre-refiners. Included in this exhibit arl

and cost estimates for the following:

Reading and understanding the regulations;

Contingency plan and emergency procedures;

Analysis plan;

Tracking used oil shipments delivered and accepted;

Operating record and reporting; and

Recordkeeping for contingency planlemergency procedures, analysis plan, and tracking requirements.

EPA estimates that there are between 21 1 and 286 used oil

processorslre-refiners currently in ~peration.~

For the

of these burden and cost estimates, EPA chose the midpoint of this range (249) as its estimate for the number of

processorslre-refiners. The total estimated annual burden for a processorlre-refiner is 530 hours, with an annual c

$1 1,866. This results in a total annual burden for all used oil processorslre-refiners of 131,950 hours, at a

cost of $2,416,412.

(a) Reading and understanding the regulations

Each of the 249 used oil processorslre-refiners is required to read the regulations. EPA estimates the annual burc

used oil

processorlre-refiner to be 14 hours, at an annual

cost of $414. This equates to an annual burden imposed upon all

processorslre-refiners of 3,362 hours, at a cost

$103,055.

(b) Contingency plan and emergency procedures

EPA believes that only new processorslre-refiners need to develop contingency and emergency plans. With the tr

consolidation, rather than expansion, among industry participants, EPA expects no incremental burden from this r

However, all 249 processors and re-refiners will revise the contingency plan once annually. Additionally, EPA

esti

percent of used oil processorslre-refiners will experience an emergency each year. Therefore, a total of two proce

refiners would be subject to emergency procedural requirements and subsequent revisions of emergency plans.

The annual burden for a

processorlre-refiner to revise a contingency plan is seven hours, at a cost of $188. For al

processorlre-refiners, the contingency plan requirement imposes a burden of 1,619 hours at a cost of $46,930. It i

that the emergency plan revision process and procedural requirements subject each processorlre-refiner to a bur(

hours, at an annual cost $619 . These requirements affect two facilities each year, so the annual burden for all prc

refiners is 45 hours at a cost of $1,238.

(c) Analysis plan

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EPA believes that only new processors/re-refiners need to develop analysis plans. With the trend toward consolid

than expansion, among industry participants, EPA expects no incremental burden from this requirement. Howeve

processors/re-refiners are affected by information collection requirements related to maintaining the written analy:

total analysis plan burden for each processorlre- refiner is six hours, at a cost of $154. The annual burden for all

processors/re-refiners is 1,413 hours, at $38,254.

(d) Tracking used oil shipments and deliveries

All 249 processors/re-refiners must keep records of each shipment of used oil delivered to customers. EPA estim:

530 shipments are delivered to a typical processor each year. EPA believes that many of the tracking requiremen

name and address of recipient, quantity shipped, date) are customary business practice. Some incremental

burde

result from the regulations, however. The incremental tracking requirement associated with these shipments resul

annual respondent burden of 48 hours per year, with an annual cost of $987.

The annual burden for all processor

due to this requirement is 11,828 hours and costs $245,769.

Furthermore, all

processors/re-refiners keep records of each shipment of used oil accepted at each facility. An avl

4,000 shipments are accepted each year per facility. The incremental tracking requirement associated with these

results in an annual respondent burden of 359 hours, with an annual cost of $7,449. The annual burden for all pro

refiners due to this requirement is 89,267 hours, at a cost of $1,856,861.

(e) Operating Record and Reporting

Each of the 249 processors/re-refiners submits a report biennially that contains company specific information. EP,

that this requirement imposes an annual burden of five hours, with an annual cost of $120 per facility. Therefore, t

burden for the biennial reporting requirement for all processor and re-refiners is 1,251 hours at $29,980.

(f) Maintaining records

Every processorlre-refiner must maintain records of the contingency and emergency procedures, analysis plan, a

activities for up to three years. EPA estimates that 80 percent of

processors/re-refiners retain records as part of th

operating practices in response to the burning regulations promulgated in 1985 (see note on page 4-13). The

bur(

imposed upon the remaining 20 percent, or 50 processors/re-refiners is 3,532 hours annually, at a cost of $96,32!

Exhibit 2

Estimated ProcessorIRe-refiner Burden and Cost

Hours and Costs per Respondent

Total Hours and

Cot

Activity

I~abor ~osff~our~$34.351/$27.0511~

IIIIIIIIIIIIIIIIIII

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,"d

(delivered)

information

o,oo~~ 14.64112.861

47.50" $987.0211 $o.oo~l

24911 I I ,827.81 11

~~~~~~~T~~~~~~~~~

Report

specified

records

l~otal

1pmpE6pq~1$11,865.961~$0~~

USED OIL BURNERS WHO BURN OFF-SPECIFICATION USED OIL

Exhibit

presents annual burden and cost estimates for used oil burners (e.g., cement kilns and utility boilers) wh

specification used oil for energy recovery. Included in this exhibit are burden and cost estimates for the following

requirements:

Reading and understanding the regulations;

Tracking of used oil shipments accepted;

Providing notice that of EPA approval to the marketer of used oil; and

Maintaining records of tracking and notice requirements;

EPA estimates that there are approximately

100

used oil burners that burn off-specification used oil for energy rec

bottom line burden for each burner is estimated to be

16.5

hours, at an annual cost of

$503.

This translates into a

burden for all burners of

1,473

hours, at a cost of

$50,345.

(a) Reading and understanding the regulations

All

100

used oil burners are required to read the regulations. EPA estimates that the total annual burden for a burl

hours, at an annual cost of

$387.

The burden for all burners is

1,300

hours, at a cost of

$38,675.

(b)

Tracking of off-specification used oil shipments accepted

Every burner keeps records of each off-specification used oil shipment accepted at its facility. An average of

are accepted each year. The tracking requirement results in a burner burden of

1.7

hours per year, with an annua

$49.

The annual tracking requirement burden for all burners is

173

hours, at a cost of

$4,886.

(c) Notify marketers that the facility is EPA approved to accept off-specification used oil fuel

All

100

used oil burners notify each generator, transporter, and processorlre-refiner that ships off-specification ust

facility that it is approved for that purpose. EPA estimates that the notices requirement causes a respondent burdt

minutes per year, with an annual cost of

$4.

The annual notices requirement for all burners is

hours, at a cost (

(d) Maintaining records

All burners must maintain the records of the tracking and notice activities for up to three years. EPA estimates tha

recordkeeping requirement results in a burden for each burner

1.7

hours annually at a cost of

$64.

The annual

recordkeeping requirement for all burners is

166

hours at

$6,396.

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Exhibit 3

Estimated Burner Burden and Cost

Page 25 of 29

Hours and Costs per Respondent

l~abor CosVHour 1-$388311=1

l~otal

[

USED OIL FUEL MARKETERS

Exhibit 4 presents annual burden and cost estimates for used oil marketers all of whom are assumed to be either

or transporters. Since most regulations affecting marketers are already captured by the burden on transporters an

processors, only additional burdens are considered. Included in this exhibit are burden and cost estimates for the

requirements:

Determining that used oil meets the specification; and

Obtaining notice of EPA approval of the off-specification used oil burner

EPA estimates that there are 192 used oil transporter- marketers, and 249 processor-marketers. These estimates

arrived at by assuming that half of the transporters are marketers and that all of the

processorslre-refiners are ma

EPA estimates the total annual burden for each used oil marketer to be 160 hours, at an annual cost of $3,629.

an annual burden for all 441 used oil marketers of 68,333 hours, at a cost of $1,563,500.

(a) Determining that used oil is on-specification (processors)

Processors that are marketers must have an analysis plan outlining when, how, and by whom the used oil will be

specification. This requirement imposes

a burden of 155 hours per facility, with an annual cost of $3,462. The anr

for all 249 processor-marketers is 38,583 hours and $861,945.

(b) Determining that used oil is on- specification (transporters)

Every transporter that is a marketer also obtains copies of analyses documenting that the used oil fuel meets the

specifications, or it performs the analysis itself. EPA estimates that this determination requirement results in the si

and economic burden per transporter as the processors. The annual burden for the 192 transporter- marketers

requirement is 29,750 hours and $664,632.

(c) Obtaining notice of EPA approval of off- specification used oil burners (processors)

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All

249

processor-marketers must obtain a notice which verifies that the burner facility to which they deliver the of

specification used oil is EPA approved for that purpose. The requirement that used oil marketers must obtain a nc

imposes a burden for each marketer of five hours per year, at an annual cost of

$84.

The annual burden associatt

notices requirement for processor-marketers is

1 ,I 80

hours, at a cost of

$20,848.

(d) Obtaining notice of EPA approval of off- specification used oil burners (transporters)

The

192

transporter-marketers must also obtain an EPA ceFtification from the burner to which they deliver their ofl

specification used oil. EPA estimates that this requirement imposes the same burden for each transporter-market1

processor- marketer. For all transporter-marketers, the annual burden associated with notices is

910

hours, at a c

$16,076.

Exhibit 4

Estimated Marketer Burden and Cost

6(c) Estimating Agency Burden and Cost

Marketers

EPA estimates annual Agency burden hours and costs associated with all of the requirements covered in this ICR

5. EPA believes that the Regional Offices will be involved in these activities. EPA estimates an average Regional

$40.14

for managerial staff,

$28.16

for technical staff, and

$1 7.12

for clerical staff, factoring in overhead costs.

these estimates, EPA used Federal Pay Schedule salary figures to estimate annual compensation of Regional

st:

purposes of this ICR, EPA assigned staff the following government service levels and annual salaries:

I~~~~~~~~

Collection

Manager Technical Clerical HoursNear

-I/$343511m$17.1811

CostIHour

FFFFFFFFFr

from burner

(processors)

FFFFFFFFFr

from burner

(transporters)

[~otal

//\~\8)1\159.89/~)$3,62908)1$0.001)441/1~68.332.95(~ 

Hours and Costs per Respondent

Total Hours and

Coz

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Managerial staff GS-13, Step 1 $52,176

Technical staff GS-11, Step 1 $36,609

Clerical staff GS-6, Step 1 $22,258

To derive hourly estimates, EPA divided annual compensation estimates by 2,080, which is the number of hours i

Federal work-year. EPA then multiplied hourly rates by the standard government overhead factor of 1.6.

Exhibit 5 presents annual burden and cost estimates for the Agency. Included in this exhibit are burden and cost

the following:

Receiving notification of accidents;

Maintaining records of reported accidents;

EPA estimates that there are approximately

2 accidents reported every year. The bottom line burden for each acc

hours with an annual cost of $37. For all the accidents in a year, the burden is 2.8 hours, with a cost of $75.

(a) Receiving notice of accidents

EPA estimates that the annual burden for receiving and processing a notification imposes a burden of a half hour

accident, with a cost of

$1 5. To receive and process notifications of both accidents, it takes the agency one hour f

$31.

(b) Maintaining records of reported accidents

To review and maintain records of an accident, it takes the agency a total of 0.9 hours per year and costs $22. To

records of both accident in a year it imposes a burden of

1.8 hours and cost $44.

Exhibit 5

Estimated EPA Burden and Cost

6(d) Estimating the Respondent Universe and the Total Burden and Costs

Hours and Costs per Respondent

Exhibits 6 presents the aggregate annual burden and costs associated with Part 279 used oil management inforrr

collection requirements. The annual burden for all transporters and transfer facilities, processorlre-refiners, burnel

marketers, and the Agency is approximately 363,485 hours, with an annual cost of $9,123,907.

Total Hours and Co

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rirm~]im~ip~~[

Collection

Manager Technical Clerical Hoursmear CosWear

Activity

Respondents

HoursNear

accidents from

records of

accidents

l~otal

I~~~0801/~~$374011~[ 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

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Wastes

Used Oil

Page 28 of 29

6(e) Bottom Line Burden Hours and Cost Table

Exhibit 6

Estimated Burden and Cost for all Respondents Regulated by Part

279

6(f)

Reasons For Change in Burden

All Respondents

Information Collection Activity

Used Oil Transporters and

Transfer Facilities

[used Oil ProcessorslRe-refiners

Burners of Off-Specification Used

Oil for Energy Recovery

Used Oil Marketers

EPA

Total

In this revision of the renewal Used Oil ICR (ICR

1286),

EPA executed a variety of changes. Each estimate for us

burdens and costs identified in the

1996

renewal of the Used Oil ICR was updated. Also, new estimates for a nurr

burdens related to burners and marketers of used oil were obtained. These burdens were mistakenly removed fro

Specific Units ICR (ICR

1572)

1993

and are now being accounted for in this renewal of the Used Oil ICR. The

requirements for tracking used oil shipments, on-specification used oil determinations, and notices for off-specific:

oil were also mistakenly removed from the Specific Units ICR and are now being accounted for in this ICR.

The estimate of the number of off-specification used oil burner facilities decreased from

1,155

100.

This decrea

respondent size occurred because

1 ,I 55

represents the number of off-specification burner notifiers, not the numb

burners of off-specification used oil. Many notifiers do not actually burn off-specification used oil due to the air em

limitations defined in their State permits. The new facilities number,

100

is an estimate of the total number of activ

kilns that burn hazardous waste and an estimate from the utility industry of the number of utilities that burn

off-sp~

used oil.

Hours and Costs per Respondent

New estimates were needed for all the respondents regulated by Part

279

with regard to the tracking requirement

Therefore, the addition of these estimates increased the overall burden and cost for this revised renewal ICR. Adc

the marketer requirements for on-specification used oil determinations and obtaining notices of certification from t

to whom off-specification used oil was sent, represented new estimates which added to the cumulative burden an

Total Hours and Co!

The updated estimates presented in this document were generated by sampling the used oil industry. These estin

the current burdens and costs imposed on the regulated used oil community. In no cases was the same question

more than nine people.

6(g) Burden Statement

pGzqReSpOndent~pq~~

HoursNear

CosWear

Entities HoursNear

~~$20~~~

~~~~~~

~16.49/1$5034511piqr

For used oil transporters and transfer facilities, the burden related to reading the regulations is four hours each ye

number of hours required to perform halogen tests on an annual basis is

463.

The total tracking burden for both sl

delivered and accepted is

361

hours. Also, filing and maintaining records requires

hours per year. This results

884

hours per respondent per year.

159.69

1 .40

For used oil processorslre-refiners, reading the regulations requires

hours per year, while the contingency and

plan requirements impose a burden of

hours. The analysis plan represents a burden of six hours, and the total

burden for both shipments delivered and accepted is

407

hours. The biennial report takes five hours per year to ci

submit, and recordkeeping requires

hours per respondent. All these burdens together total to

530

hours per re:

per year.

~$3.629.0811$0.0011~~

~$37.4011$000(1~r

1,590.30$36.5413811$24.825.941173211m

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

Wastes

Used Oil

Page 29 of 29

For burners of off-specification used oil, reading the regulations imposes a burden of 13 hours each year. The bur

tracking the off-specification used oil to be burned for energy recovery is 1.7 hours, and it takes six minutes to not

marketers that the facility is EPA approved for that purpose. Adding that recordkeeping requires 1.7 hours each

comes to 16.5 hours per year.

For used oil marketers, the burden related to performing demonstrations or obtaining proof that used oil is

on-spel

requires 155 hours for both processor- and transporter-marketers. Obtaining certification from EPA approved burr

five hours each year. The total burden for a marketer averages 160 per year.

For EPA, the burden of receiving notices of accidents is one hour per year, and the burden of reviewing and main

accident records is 1.8 hours per year. These total to 2.8 hours per year for the Agency.

Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and ar

suggested methods for minimizing respondent burden, including the use of automated collection techniques to:

Director

OPPE Regulatory lnformation Division

U.S. Environmental Protection Agency

(21 37)

401

M Street

S.W., Washington, D.C. 20460

and to:

Office of lnformation and Regulatory Affairs

Office of Management and Budget

725 17th Street

NW, Washington,

D.C. 20503

Attention: Desk Officer for EPA

Include the EPA ICR number and OMB control number in any correspondence.

l~n

independent facility is one not affiliated with a processinglre-refining facilities. Number of facilities taken from

and Economic lmpact of 1992 Used Oil Management Standards," Office of Solid Waste, August 4, 1992.

2Number of facilities taken from the "Cost and Economic Impact of 1992 Used Oil Management Standards," Officc

Waste, August

1992.

EPA Home I Privacy and Secur~ty Not~ce I Contact Us

This page was generated on Tuesday, October 10, 2006

View the graphical

verslon of this page at:

http

flwyy-epa govlepaoswerlhazwastelu~o~llsuppo~.htm

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

ATTACHMENT C

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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

BEFORE THE ILLINOIS POLLUT1 ON 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 I%lUXUD

TESTIMONY OF CHRISTOPHER HARRIS

with Dorothy Gml, 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

(2 17) 544-849 1

(217)241-3111

(,fax)

Cmannin~~,bhslaw.com

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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

rule 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 1 1-500

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- 127 1

OFFICE OF THE ILLINOIS ATTORNEY GENERAL

Matthew

J. Dunn

188 W. Randolph St., 20" Floor

Chicago, Illinois 6060 1

ILLINOIS ENVIRONMENTAL REGULATORY GROUP

Deirdre

K. Hirner

Executive Director

1 50 Roland Avenue

Springfield, Illinois 62703

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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-FITJED TESTIMONY OF CHRISTOPHER HARRIS

My 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. Therefore, 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

members provide recycling services

throughout

the entire United States including Illinois. 111 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 Environmental 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, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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

also

H.R.

Rep. No 1415,

9fith

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

96Ih

Cong., 2d Sess. 1 (1980).

Because the

U.S. 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 of used oil. For example, if there are

several alternative controls 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 in Illinois pursuant to this Board's

identical-in-substance

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, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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;

35 I1l.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 U.S. Department of

Transportation hazardous material requirements that include identification and classification,

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

used oil have to comply with DOT requirements governing placarding, record-keeping,

insurance, and reporting spill incidents. 40 CFR

279.43(b).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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

"[alll of this information

[required by the

traclung 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.

Given 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 tracking 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 of any used oil shipment can be answered by the required documents.

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

transferred to another.

may

be subsequently stored at a

transfer

facility before being sent to a processor.

In

contrast, hazardous waste is typically sent from the generator directly to the TSD facility.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

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

239 and 35 I11.Adm. Code Part 739. The traclung 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

279t

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,

/s/Christopher Harris

Christopher Harris

General Counsel

NORA,

An Association of Responsible Recyclers

BROWN, HAY 

STEPHENS, LLP 

Claire

A.

Manning, Esq.

Registration No. 3 124724

205 S. Fifth Street, Suite 700

P.O. Box 2459

Springfield,

IL 62705-2459

(2 17) 544-8491

(217) 241-31 11 (fax)

Cmanning(dbl~slaw.con~

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

ATTACHMENT D

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

Table

1

Detailed Requirements

for Industrial

Burner Fuels From Used Lubricating Oils

Viscosity

100 "C mm2/sec

D445

PROPERTIES

Flash Point, OC

(OF), 

min.

D93

38(100)

55(130)

60(140),

(

Method:

minimum

maximum

Water

SedimentB,

"01. max.

D95

D473

2.0

3.0

(

3.0

(

3.0

(

Pour Point, OC

("I;),

max.

D97

-6(21)

(

~1~l.r~';

---

RF04

RFOSL

---

<5.0

Dens~ty, Kglrn'

15°C

CHEMICAL:

Ash,

mass, rnax.

Sulphur,

mass

5 .O

8.9

N

Extracted pli, min.

PERFORMANCE:

-Healing

Value,

Mjlkg

Dl298

9.0

14.9

Report

N A

D482

Dl29

----I

D4980

15.0

50.0

N A

0.7

Report

4.0

D240

0.8

Report

4.0

40.0 (130,000)

0.8

Report

4.0

Repol?

Report

4.0

41.5

35,000)

41.5 (135,000)

43.0 (140,000)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

ATTACHMENT E

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

ILLINOIS POLLUTION CONTROL BOARD

December 16, 1999

THE MAITER OF:

)

AMENDMENTS TO PERMITTING FOR

)

R99- 1 8

USED OIL MANAGEMENT

AND USED OIL

)

(Rulemaking

Land)

TRANSPORT 35

ILL. ADM. CODE 807 AND

)

809

Proposed Rule. Dismissal Order.

OPINION AND ORDER OF THE BOARD (by

N. J. Melas):

The Board opened this docket as a result of activity in a predecessor regulatory docket. On

November 2, 1998, in docket R98-29, the Illinois Environmental Protection Agency (Agency) filed a

"Motion to Sever the Docket and Proposed Amendments to Parts 809 and 807" (Mot. sever). In the

motion to sever, the Agency requested that the Board separate the Agency's proposed rules on used oil

management and used oil transportation

fiom the rules on hazardous waste transportation. In addition,

the Agency proposed rules for used oil management and used oil transportation. The Board granted the

motion to sever and created this docket to address the Agency's proposed rules on used oil

management and used oil transportation. See

Nonhazardous Special Waste Hauling and the

Uniform Program: 35

Ill. Adm. Code 809 (Pursuant to P.A. 90-219) (December 17, 1998), R98-29,

slip op. at 1.

On January 21, 1999, the Board adopted its first notice opinion and order in this matter.

See

Amendments to Permitting for Used Oil Management and Used Oil Transport: 35 111. Adm.

Code 807 And 809 (January 21,

1999), R99-18. This proposal was published in the Illinois Register

on February 16, 1999. 23

Ill. Reg. 7, pp. 2483,2489.

The Board's responsibility in this matter arises

fiom the Illinois Environmental Protection Act

(Act). 41

5 ILCS 511 (1 998)

seq.

The Board is charged therein to "determine, define, and

implement the environmental control standards applicable in the State of Illinois." 415 ILCS

5/5(b)

(1998).

After a comprehensive review of the record, the Board finds that the record does not support

adoption of this proposal. The Board received 21 written public comments and six exhibits

in addition

to testimony

at three public hearings While additional State regulation of used oil management and

transportation is technically feasible, it is not economically reasonable when taking into account

extensive existing federal and State regulatory system. The proposal is dismissed and docket R99- 18 is

hereby closed. The Board will, however, address certain typographical errors and amend the definition

of 'on-site' in Part 809 in a

future rulemaking. The typographical errors are nonsubstantive, and the

change in the definition of 'on-site' is unrelated

to the Agency's used oil proposal.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

PROCEDURAL HlSTORY

The Board initially held two public hearings in this matter before Board Hearing Officer Joel

Stemstein and Board Member Nicholas

J. Melas. Anand Rao, a member of the Board's technical unit,

also attended the hearings. The first hearing was held on February 25, 1999, in Chicago. The Agency,

represented by Assistant Counsel Kimberly A. Geving, presented witnesses Daniel Merriman and

Theodore

J. Dragovich. The second hearing was held on March 1, 1999, in Springfield, where Geving,

Dragovich, and

Merrirnan were again present on behalf of the Agency. In addition, Jennifer L. Marsh

testified on behalf of the Chemical Industry Council of Illinois

(CICI) and Douglas Rutherford appeared

on behalf of Illinois Power.

On December 22, 1998, the Board requested that the Department of Commerce and

Community Affairs

(DCCA) conduct an economic impact study (ECiS) for docket R99-18 pursuant to

Public Act 90-489, effective January 1, 1998. The Board asked DCCA to respond to the request

within ten days, but DCCA did not respond. As a result the Board relies on a July 26, 1998 DCCA

letter

notifjiing the Board that DCCA lacked the technical and financial resources to conduct an ECiS

for any rule pending before the Board for the remainder of fiscal year 1999. At the February 25, 1999

hearing the Board reserved time to entertain any comments regarding

DCCA's decision to not conduct

an ECiS for docket R99-18. No comments were received.

During the public comment period following the publication of the first-notice opinion and order,

the National Oil Recyclers Association (NORA) raised several questions with respect to the Agency's

proposed rules. At the end of its May

7, 1999 comments NORA requested that the Board convene

another hearing. PC 11 at 6. The Board granted the request for the additional hearing, and it was held

on August 23, 1999, in Chicago before Hearing

Oficer Sternstein. Rao also attended the August 23

hearing, but Board Member Marili

McFawn attended in place of Board Member Melas. At the August

23 hearing, Geving, Dragovich, Merriman, Lawrence

W. Eastep, and Leslie D. Morrow testified for the

Agency. Christopher Harris testified on behalf of NORA. In addition, several of

NORA'S Illinois

members were present and some of them asked questions of the Agency representatives.

A list of the public comments and the exhibits that the Board received during the instant

rulemaking process are at Attachment 1 and Attachment 2, respectively.

REGUJATORYISTATUTORY FRAMEWORK

On November 19, 1986, the United States Environmental Protection Agency (USEPA)

decided not to list used oil as a hazardous waste because the resulting stigma might have caused

generators to dispose rather than recycle used oil. 51 Fed. Reg. 41,900 (Nov. 19, 1986).

USEPA's

decision to not list used oil as a hazardous waste was challenged and ultimately upheld by the District of

Columbia Circuit Court. The Court stated that

USEPA examined nine other federal regulatory

programs and found that the "existing network of regulations" were pervasive enough to "control any

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

plausible scenario of used oil mismanagement" such that listing was not necessary. National Resources

Defense Council v.

USEPA, 25 F.3d 1063, 1071, 1072 @.C. Cir. 1994).'

The genesis of USEPA's current used oil regulations is found in Section of 3014 of the

Resource Conservation and Recovery Act (RCRA), which requires

USEPA to promulgate regulations

concerning the management of used oil. 42

U.S.C

6927.

Used Oil Regulations at 40 C.F.R.

6

279 and 35 Ill. Adm. Code 739

In 1992, USEPA adopted used oil management standards for owners and operators of used oil

facilities which are codified at 40 C.F.R.

279. Illinois adopted 40 C.F.R.

279 through the identical

in substance rulemaking process under Sections 7.2 and 22 of the Act. 415

ILCS 517.2. 5/22 (1998).

The rules were codified as a new Part 739 of the Illinois Administrative Code in 1993. 35

Ill. Adm.

Code 739; see

In re RCRA Update, USEPA Regulations (711192

12/31/92) (September 23, 1993),

R93-4.

In the past, facilities receiving used oil fiom off-site locations were subject to solid waste

permitting requirements at Part 807 of the Board's rules and used oil transporters were subject to

special waste hauling permit requirements in Part 809. 35

Ill. Adm. Code 807, 809; PC 20 at 6. After

the adoption of Part 739 of the Board's rules, used oil management facilities became exempt

fiom

permitting requirements at Part 807 of the Board's rules. PC 20 at 6. Currently, Section 807.105(a) of

the

Board's rules exempts "[plersons and facilities regulated pursuant to 35 Ill. Adm. Code 700 through

749." 35 Ill. Adm. Code 807.105(a). The placement of the revised used oil management standards at

Part 739 did not affect used oil transportation, and used oil transporters are still subject to regulation

under Part 809 of the Board's rules.

Used oil that is to be recycled is not regulated as a hazardous waste under RCRA provided that

it is not contaminated with other hazardous wastes. Because it has value both as a recyclable substance

and

an energy source (and is therefore less likely to be discarded), used oil is subject to less rigorous

standards and is not considered by defmition to be a RCRA hazardous waste. Disposed used oil is

managed as a hazardous waste if it otherwise meets the definition of hazardous waste under RCRA.

The Part 279

Part 739 requirements set forth management standards applicable to collection

centers, aggregation points, transporters, transfer facilities, processors, burners, marketers, and

generators of used oil. 40 C.F.R.

279.20

et seq.

;

35 Ill. Adm. Code 739.120

et seq.

The used oil regulations include a rebuttable presumption that a batch of used oil is a hazardous

waste if it contains more than 1,000 ppm total halogens. 40 C.F.R.

279.10(b)(ii); 35 Ill. Adm. Code

739.1

lO(b)(l)(B). The burden of proof is on the holder of the oil that a listed exception to the

For a detailed discussion of the federal regulations governing the plausible mismanagement of used oil,

see 57 Fed. Reg. 21,524 (May 20, 1992).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

presumption applies. Hazardous Waste Treatment Council v. USEPA, 86 1 F.2d 277, 289 (D.C. Cir.

1988), cert. denied, 490 U.S. 1106 (1989).

If a listed exception to the used oil rules does not apply, management of the used oil must be

from 'cradle to grave.' The rules are comprehensive in nature and are divided into four regulatory

stages: generation, storage, transportation, and recycling or disposal.

40 C.F.R.

279.20 et seq.; 35

Ill. Adm. Code 739.120 et seq.

USEPA identification number is required of transporters, processors, burners of off-

specification2 used oil, and marketers so that states or

USEPA may track the movement of used oil

from one handler to the next. 40 C.F.R.

279.42(a), 279.51,279.62,279.73; 35 Ill. Adm. Code

739.142(a), 739.151, 739.162,739.173.

For three years, marketers of used oil are required to maintain copies of analyses showing that

their used oil is either on-spec or off-spec. 40 C.F.R.

fjfj

279.72,279.74; 35 Ill. Adm. Code 739.172,

739.174. Transporters and processors must maintain records of their used oil for a period of three

years as well. 40 C.F.R.

279.46(d), 279.56(c

);

35 Ill. Adm. Code 739.146(d), 739.156(c).

Used oil must be stored in containers, above-ground storage tanks, underground storage tanks,

or any storage unit subject to interim or permitted status under the hazardous waste rules. 40 C.F.R.

279.22; 35 Ill. Adm. Code 739.122. Above-ground storage tanks, containers used for used oil, and fill

pipes to underground storage tanks must be labeled "Used Oil". 40 C.F.R.

fjfj

279.22(c), 279.45(g),

279. 54(f); 35 Ill. Adm. Code 739.122(c), 739.145(g), 739.154(f).

Generators, processors, refiners, transporters, transfer facilities, burners, collection centers,

aggregation points, and marketers all have a duty under 40 C.F.R.

279 and 40 C.F.R.

280 to clean

up used oil if a release is

fiom an underground storage tank. Similar State requirements are at 35 Ill.

Adm. Code 739.122.

Standards for used oil processors and marketers track the requirements for an owner or

operator of a RCRA interim status hazardous waste treatment, storage, and disposal facility. 40 C.F.R.

270.10,279.52; 35 Ill. Adm. Code 739.152. For example, processors are required to maintain

emergency preparedness and prevention plans

develop a contingency plan, and develop closure and

waste analysis plans. 40 C.F.R.

279.52(a), 279.52(b), 279.54(h), 279.55; 35 Ill. Adm. Code

739.1

52(a), 739.152(b), 739.154(h), and 739.155. Finally, like interim status facilities, used oil

facilities must maintain all operating records. 40 C.F.R.

279.57; 35 Ill. Adm. Code 739.157.

Used oil to be burned as a he1 must first be tested to determine if it is on specification (on-spec) or

off-specification (off-spec). Oil that is on-spec has minimal levels or no trace of arsenic, cadmium,

chromium, lead, and total halogens. On-spec oil also has a high flash point. Burners of on-spec used

oil are exempt from the Part 279

Part 739 requirements. 40 C.F.R.

279.1 1; 35 Ill. Adm. Code

739.1 11.

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Additional Regulatory Programs for Used Oil

Federal Clean Water Act (CWA), amendments required

USEPA to develop and adopt

regulations designed to prevent pollution of the navigable waters of the United States. 33 U.S.C.

1251. These regulations are found at 40 C.F.R.

112 and are referred to as the Spill Prevention

Control and Countermeasure (SPCC) regulations. See also 35

Ill. Adm. Code 739.122. The Oil

Pollution Act of 1990 (OPA), strengthened the provisions for oil spill control. 33 U.S.C.

2701

seq.

The OPA applies to on-shore and off-shore non-transportation facilities that manage oil. Used oil

handlers may also be subject to CWA stormwater regulations at 40 C.F.R.

122.26.

If used oil meets the statutory definition of hazardous material, it is subject to the Hazardous

Materials Transportation Act (49 C.F.R.

171 -1 80) and is regulated by the United States

Department of Transportation

(USDOT). See also 35 Ill. Adm. Code 739.143. Used oil transporters

USDOT hazardous materials must comply with all applicable USDOT regulations for identification

and classification, packaging marking, labeling, and shipping. 49 C.F.R.

106-199.

Authority for cleanup of past releases of used oil is under the federal Comprehensive

Environmental Response, Compensation, and Liability Act

(CERCLA)~ and RCRA corrective action

requirements.4 State and federal emergency response notifications are required for reportable quantities

of released hazardous substances. Section

103(a) of CERCLA and

40 C.F.R.

302

et seq.

instruct facility owners to report hazardous substance releases to national and State emergency response

centers and local emergency planning

corn mission^.^

Used oil which contains polychlorinated biphenyls (PCBs) (40 C.F.R.

761; 35 Ill. Adm.

Code 739.1

10(i)) and used oil stored in underground storage tanks are also regulated (40 C.F.R.

280; 35 111. Adm. Code 73 1).

Many facilities handle both used oil and hazardous substances that are regulated under RCRA.

At those facilities, RCRA permits may address the management of used oil. CICI pointed out that one

of its member companies which manages used oil already operates under a State-issued RCRA Part

permit. CICI questioned the environmental benefit of requiring a RCRA-permitted facility to obtain

another permit for its used oil activities. Tr. 2 at 7-10; PC I;

Exh. 2. The Agency recognized this

concern and submitted an amendment to its proposal in which RCRA Part

B permitted facilities handling

used oil were not subject to a used oil permitting requirement. Tr. 2 at 11-15; PC 12 at 6.

42 U.S.C.

9601

et seq.

CERCLA's petroleum exclusion does not apply if the used oil is mixed

with hazardous substances. 42 U.S.C.

9601 (14).

To enforce the corrective action requirements of RCRA, USEPA must demonstrate that the facility is

subject to interim status regulations. 40 C.F.R.

270.10. This threshold can easily be met by a

presumption that used oil is mixed with a hazardous waste.

Constituents in the used oil that are not hazardous waste under RCRA may be designated hazardous

substances under CERCLA. CERCLA substances are subject to the immediate notification

requirements at 40 C.F.R.

302.6.

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THE AGENCY PROPOSAL

Used Oil Management

The Agency proposes that the following facilities be subject to the Part 807 permitting

requirements: used oil transfer facilities, used oil processors, certain used oil fuel marketers, used oil

burners of off-specification used oil, and petroleum refining facilities.

PC 20 at 6.

Facilities not subject to Part 807 permitting requirements include small-volume facilities (those

handling used oil in shipments of

55 gallons or less), namely: used oil aggregation points and used oil

collection centers. In addition, used oil generators who deliver used oil to the small volume facilities are

exempt fiom

Part 807.

Id.

Used Oil Transportation

The Agency proposes that transporters who haul

only 

used oil (but no other hazardous or

nonhazardous special waste) be exempt fiom Part 809 permitting requirements if those transporters

deliver used oil to a nonpermitted used oil aggregation point or a used oil collection center

(i.e., facilities

exempt fiom Part 807). Other transporters would be subject to Part 809 permits. Mot. sever at 4.

The Permit Application

In general, a used oil facility would have to provide the following information to the Agency in a

permit application: facility design, location, a closure plan, operating procedures

(ie., waste screening

and analysis), waste acceptance procedures, inspection schedules, maintenance procedures, and

emergency response procedures. Exh. 3 at Dragovich 14.

In a June 18, 1999 hearing

officer order, the Board requested that the Agency submit (for the

record) a draft permit application form. The Agency did not create a new application form for used oil

facilities. Instead, the Agency plans to use a series of up to five existing application forms that it

currently uses for permitting nonhazardous solid waste treatment and storage facilities except garbage

transfer stations. Exh. 3 at Dragovich 13-14, exhibit

1. The Agency's rationale for using the existing

permits was that "most of these facilities do more than just (manage) the used oil, and so it would be

better just to use the standard application." Tr.3 at 177-178.

Miscellaneous

The Agency and the Board are proposing some other minor changes to Part 809 of the Board's

rules. The Agency is proposing a change in the definition of "on-site" at Section 809.103 that will

eliminate a discrepancy between the State and federal definitions. See PC 21. After docket R98-29

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 10, 2006

* * * * * PC #39 * * * * *

closed, the Joint Committee on Administrative Rules (JCAR) submitted a list of typographical errors in

Part 809

fkom that previous docket. As a result, the Board is proposing to correct those errors which

are technical and nonsubstantive

in nature. The Board will address these miscellaneous changes to Part

809 (which are unrelated to the Agency's used oil permitting proposal herein) in a

future rulemaking.

DISCUSSION

During this proceeding, the Agency has attempted to demonstrate the need for the adoption of

its proposal. It has testified that the dumping of used oil is a prevalent problem across the nation and

provided examples on releases of used oil in Illinois during the 1990s. Tr.3 at

13,34-35; Exh. 3 at

Dragovich 13, Dragovich attachment 3. The Agency also provided details about the migration of

dumped used oil in the environment, toxic substances commonly found

in used oil, and the harm that

such toxic substances can cause to plants, animals, and humans. Tr.3 at

18-19,23-26; Exh. 3 at

Eastep 3 and Morrow 3-7.

In deciding whether or not to adopt the Agency's proposal the Board

considers certain factors, including those listed at Section 27 of the Act.

4 15 ILCS 5/27(a).

Section 27(a) of the Act requires the Board:

In promulgating regulations under this Act, the Board shall take into account the existing

physical conditions, the character of the area involved, including the character of the

surrounding land uses, zoning classifications, the nature of the existing air quality, or

receiving body of water, as the case may

be, and the technical feasibility and economic

reasonableness of measuring or reducing the particular

type 

of pollution [emphasis

added].

Id.

Economic Reasonableness

The Illinois Supreme Court has affirmed the Board's authority to adopt

rules and has

determined the manner in which the Board may consider evidence concerning technical feasibility and

economic reasonableness. Granite City v.

IPCB, 155 Ill. 2d 149, 613 N.E.2d 719 (1993). In Granite

Clty,

the court stated that the authority granted under Section 27 of the Act is a "general grant of very

broad authority and encompasses that which is necessary to achieve the broad purposes of the Act."

Granite City, 115

Ill. 2d 149, 175, 613 N.E.2d 719, 734. The court went on to state:

Section

27(a) does not impose specific evidentiary requirements on the Board, thereby

limiting its authority to promulgate only regulations that it has determined to

technically feasible and economically reasonable. Rather, Section 27(a) requires only

that the Board consider or take into account the factors set forth therein. The Board

must then use its technical expertise and judgment in balancing any hardship that the

regulations may cause to dischargers against its statutorily mandated purpose and

function of protecting our environment and public health. Granite City, 11 5 Ill. 2d at

175-176, 613

N.E.2d at 734-735.

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Technical feasibility is not at issue in this proposed rulemaking. Therefore the Board

focuses on economic reasonableness and other relevant issues.

Although there is no filing fee associated with the Agency's proposed used oil permit, NORA,

its members, and the Illinois Environmental Regulatory Group

(ERG) claim that permitting requirements

will be costly and will put used oil facilities at a competitive disadvantage.

The Agency claims that the cost of completing a permit application package varies depending

on a facility being previously permitted and depending on consultants' fees. Tr.3 175. NORA

"regards the entire permitting process, particularly the engineering studies and the permit negotiations

with IEPA, to be a costly and time consuming process". PC 19 at 4.

The Agency claims that a well-run used oil facility operating pursuant to

Illinois' Part 739

standards that is currently competitive with virgin oil producers should not have to make any expensive

changes to its operation once the Agency issues the permit. A well-

run facility will remain competitive

with virgin oil facilities

after Board promulgation of the Agency's proposed standards. Tr.3 at 14; PC

12 at

11; PC 20 at 15,22-23; Exh. 3 at Dragovich 11. Mike Lenz (a NORA member with a used oil

business in Peoria) disputes this and points to his complex 1995 proposed

draft permit &om the

Agency. See

Exh. 5; Exh. 6. NORA claims that its other members could also face expensive changes

to their operations in order to comply with Agency permits. Furthermore, NORA claims that appealing

disputed permit conditions to the Board could also be expensive. PC 19 at 5.

NORA, its members, and

ERG claim that if the permitting process forces facilities to increase

the price that they charge for used oil, burners may switch back to using virgin oil. If permitting costs

force facilities to pass costs to generators, these generators (both large generators and do-it-yourselfers)

may illegally dump used oil.

Tr.1 at 19; Tr.3 at 35, 38, 120-121, 130; PC 2; PC 6; PC 13; PC 18 at

3; PC 19 at 3.

NORA states that used oil recyclers must periodically store their product due to seasonal

demand. NORA claims that

requiring the lessors to get permits will drive up costs and create a

shortage of places to store used oil. Tr.3 at 41, 146; Exh. 4 at 5; PC 19 at 3. NORA suggested that

this scenario will place Illinois recyclers at a competitive disadvantage compared to recyclers in other

states. Tr.3 at 93, 97. Although the Agency is concerned with competitive disadvantage "to a point", it

is not the Agency's primary concern. Tr.3 at 95. The Agency also had a response to

NORA'S alleged

competitive disadvantage scenario: in the event the permitting process creates a shortage of Illinois

storage sites, used oil recyclers could simply take their product to other states

a common practice in

the industry. PC 20 at 16.

Inspections

The Agency states that if it is allowed to permit used oil facilities, it will be able to regularly

inspect those with permits. Under the current Part 279

Part 739 scheme, the Agency only inspects

used oil facilities when a complaint has been lodged.

Exh. 3 at Dragovich 2. The Agency also claims

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that it is difficult "to administer a very limited amount of resources over a large area or responsibility."

Tr.3 at 59. NORA disagrees with the Agency regarding the need for permits in order to allow for

Agency inspections. NORA recommends that, if the Agency is concerned about used oil facilities, then

the Agency should schedule regular periodic inspections without resorting to a permitting requirement.

Tr.3 at 33, 140; PC 19 at 1-2.

Existing Federal and State Regulatory Scheme

NORA,

NORA'S members, and ERG are generally opposed to the Agency's used oil

permitting proposal because they claim the Part 739 State requirements and the federal requirements

are extensive and that

hrther regulation is unnecessary. Tr.3 at 30-32; PC 2; PC 6; PC 13; PC 17 at

2, 5; PC 19 at

1; Exh. 4 at 3-4.

The Agency claims that many used oil management facilities that accept large quantities of used

oil have had environmental problems as a result of factors including "poor design, operation,

maintenance, and waste analysis". Exh. 1 at

5. The Agency points to at least

former used oil

management sites in Illinois that are either abandoned, currently in remediation pursuant to a State order,

or are being cleaned voluntarily. Tr.3 at 20;

Exh. 3 at Dragovich 4, Dragovich attachment 1. The

Agency also cites used oil sites that operated until the 1980s or 1990s (including one still in operation)

where the Agency had been involved in remedial projects. Tr.3 at 16; Exh. 3 at Eastep 5-7, Eastep

exhibits

1-8.

NORA and Lenz claim that many of the problems that the Agency cited were at refining

facilities that closed more than ten years ago and never operated under Illinois' Part 739 used oil

management standards. Furthermore, Lenz alleges that environmental problems which occurred prior to

the 1980s were the reason that the Agency was engaged in remediation at facilities which were still

operation during the 1980s and 1990s. The problems that the Agency cited would now be addressed

by Part 739 or by other federal and State regulatory programs. Thus, these problems do not support

the adoption of a permitting scheme. PC 18 at 2; PC 19 at 2.

The Agency responds that the improved practices in the used oil

industry during the 1980s and

early 1990s were

as a result of the Illinois Part 807 permitting requirements which, at that time, applied

to used oil facilities. The Agency states that permits provide specific

direction to facility operators on

how to comply with regulations, and the permit review process allows the Agency to evaluate how the

facility is complying with used oil standards. Exh. 3 at Dragovich

2,6. However, the Agency admits

that it permitted "probably less than 20" used oil facilities when

Part 807 applied to those facilities. Tr. 1

at 19.

CONCLUSION

By promulgating the Agency's used oil permitting proposal, the Board would require certain

used oil management facilities to engage in a potentially expensive permitting process. The Agency was

able to respond to some of

NORA'S competitive disadvantage arguments, but some of the arguments

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withstand the Agency's counterarguments. For example, while interstate transport may be feasible for a

used oil recycler near the State line, it may not be feasible for a recycler in the middle of the State.

As for the Agency's testimony about resource limitations, if the Agency has concerns about

conditions at a used oil facility, the Agency should inspect that facility regardless of whether a complaint

has been lodged or not. Although regular periodic inspections may occur pursuant to a permit, a permit

is not a necessary precursor for such inspections.

The Board agrees that protecting the public

fiom the hazards of spilled used oil is necessary but

fmds that the existing federal and State laws and rules governing the used oil industry are quite extensive

and are

sufficiently protective, at this time, absent a permitting scheme. These existing laws and rules

have improved the management of used oil and have led to advances in safety as well. The Board takes

note of

USEPA's decision not to list used oil as a hazardous waste because several other federal

programs already address used oil. See

supra

pp. 2-3. During the rulemaking process, the Agency

reiterated that its permitting proposal did not involve proposing new standards. Instead, the Agency

stated that permitting would increase compliance with existing regulations by used oil facilities in Illinois.

Tr.3 at

63,90-91; PC 20 at 5, 10. The Board finds that the record does not support the Agency's

position.

The Board appreciates that the Agency, public participants, and Board staff have expended a

considerable amount of time and resources on this proceeding. However, the record does not support

adoption of the Agency's proposal at this time.

The instant proposal is hereby dismissed and docket R99-18 is closed.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the

appeal of

fmal Board orders to the Illinois Appellate Court within 35 days of service of this order.

Illinois Supreme Court Rule 335 establishes such filing requirements. See 172

Ill. 2d R. 335; see also

Ill. Adrn. Code 10 1.246, Motions for Reconsideration.

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control Board, hereby certifj that the above

opinion and order was adopted on the 16th day of December 1999, by a vote of 6-0.

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

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