BEFORE THE ILLINOIS POLLUTION

CONTROL

BOARD

IN

THE MATTER

PROPOSED AMENDMENTS

TO THE

REGULATIONS CONCERNING

USED

OK, 35

ILL. ADM.

CODE 808,809

NOTICE

OF

FLING

Dorothy

Gunn,

Clerk,

Illinois Pollution Control Board

James

R. Thompson Center

100

W. Randolph, Suite 1

1-500

Chicago,

Illinois 60601

Matthew

J.

Dunn

Environmental Bureau Chief

Oflice

of the Attorney General

James

R.

Thompson Center

100

W. Randolph,

1

2" Floor

Chicago, Illinois 6060 1

Claire

A.

Manning

Brown, Hay

&

Stephens,

LLP

700

First Memmtile Bank Building

205 South

Fifth

St.,

P.O.

Box

2459

Springfield, Illinois

62705-245

William Richardson, Chief Legal Counsel

Office of Legal Counsel

Illinois Dept. of Natural Resources

One

Natural Resources Way

Sprin&eld, Illinois

62702-

1271

Tim

Fox,

Hearing Officer

IIiizkois

Pollution Control Board

James

R.

Thompson Center

Chicago,

Illinois 60601

Deirdre

K.

Himer, Executive Director

Illinois ~nvironmentd Regulatory Group

Springfield, Illinois 62703

PLEASE TAKE NOTICE that I have

today

filed with the Office of the Clerk of the

Lllinois Pollution Control Board the COMMENTS

OF

THE ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

IN

RESPONSE

TO

NOM'S POST-HEARING BRIEF,

a copy

of

which is

herewith

served

upon

you.

DATE:

/,

-16

-

06

1 02 1

North Grand

Avenue

East

P.O.

Box

19276

Sprinfleld, Illinois

62794-9276

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY

Assistant Counsel

Division of Legal Counsel

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

* * * * * PC #40 * * * * *

---

BEFORE THE

ILLINOIS POLLUTION

CONTROL

BOARD

IN

THE

MATTER

OF:

PROPOSED AMENDaNTS

TO

BOARD'S SPECIAL WASTE

REGULATIONS CONCERNING

USED

OIL,

35

RO6-20

(Rulemaking

-Land)

COMMENTS

OF THE

ILLINOIS ENVIRQNMENTAL PROTECTION

AGENCY IN

RESPONSE TO NORA'S POST-HEARING BRIEF

NOW

COMES

the

Illinois EnvjronpentaJ

Protection

Agency

("IllinoJs

EFA"),

by

and

through one of its

attorneys,

Stephanie Flowers,

and

respectfully submits the following

Comments

in

response

to

the Post-Hearing Brief filed with the Illinois Pollution Control Board

("Board")

by

the Association

of

ResponsibIe

Recyclers ('WORA")

in

the

on

September

1.

FEDERAL AND STATE REGULATIONS

Throughout its post-hearing brief,

YOU

argues

@at

the,

main purpose of

the

federal

regulations was

to

promote the recycling of used oil. However,

a review

of

50

FR

49213,

November

29,1985,

(Part

One.1,A)

and

57

Fk

41566,

September

10,1992,

(II.Background)

clarifies

the true

goals

of

the

federal

used

oil regulations. These documents indicate that the

goal

of the federd regulations

is

to

provide management standards

for

used

oil and for materials

contaminated

with

used

ail and

that

protection

of

human health and

the

environment

from

the

hazards

of

used

oil is

the

prime conc,q

even

If

it

discourages recycling of this material.

NORA

also

argues that the federal regulations

at 40

CFR

279,

took

used

oil

out

of the

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

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another

fedd

identical-in-substance

rulemakmg, ddes

that

used

ail still maeb

the

definition

of solid waste, but has its

om

management standards

as

a

recyclable material.

See 35

Ill.

Adm.

Code

72

1.1

M(a)(4), which

gtates

that,

"Used

oil that

is

recycled

and

is

also

a kuzurhus

waste

solely

because

it

exhibits

a

hazardow characte~tic

is

nor subject

to

the

requiremenk

of

35

dl. Adm

Code 720

through

728,

bu~

it b

regulated under

35

Ill. Adm.

Code 739,"

NO=

awes

that

the

federal regulations "entitle" all

non-hazardous

wastes

contamhated with some

d

oil

to

be

effkctively exempt

hm

Illinois' special waste

requirements and

only

xegulated

by

Part

739.

However,

the

Illinois EPA interprets the federal

regulations

as

requiring noa-hazaxdous

waste mixed

with

used

oiI

to

meet

the

management

standards

in

Part

739

but not pmpting more stringent

state

regulation

of

these wastes.

See

aIso 57

FR

21528

dated May

20,1992

which

states that,

'*[USEPA] ulso r-gnizes that

several

states

regulate used oil

as

o

hazardom

wmte, and

some

states

regslhte

it

as

a

special

wmte

. . .

A

wed

oil handler must comply with all

state requirements

appliable

to used

oil in hidher

state, in addition to

anyfideral requirements

that apply.

"

See aIso 57

FR

41569 dated

September

10,1992

whicb

states

that,

"The

WSEPA]

hm

deciakd

that these anent regulationr are

protective

bui

not complete or sttcient

to

prutect human health

ond the envirorrment

Pam

potential

rnismanagemmt

of

wed

ails

that are recycled.

*'

Matexid con-4

with

wed oil is

not

"entitlsd"

to

be managed under less stringent

regulation. Under

the

fsdd

program materials

that

were previously

unregulated,

were now

regulated if

contamhated

with

used

oil. Therefore,

in

the

federal prograxll

then

is

an

incentive

not

to mix

nan-hazardous

waste

that

is

unregulated with

used

oil

that

is regulated.

In

contrast,

NORA'S proposal would provide the opposite incentive and would

encourage mixtures

of used

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

* * * * * PC #40 * * * * *

---

ail

and

other special

wastes

to

take

advantage of the

reduced siting, operating and permitting

requirements

of used oil facilities compared to other special

waste

facilities. The Illinois EPA

believes that NORA'S proposal

is

a

2.

EFFECT OF THE EXEMPTION

ON

RECYCLING

In its post-hearing brief,

NORA

argues

that

there is no distinction

between

used oil

as

defmed

at

Section

739.100

and

materials regulated

as

used

oil

at

Section

739.1 10.

However,

USEPA carefully crafted the definition of used oil at 739.100 to include

all

oils that

were

used as

lubricants

md

have

been contaminated as a result of that use.

The

definition also attempted to

discourage adulteration after use. See

57

FR

4 1 574

dated September 10, 1992 which

states

that,

"Used

oils that become adulterated

after

me

should be subject

to

management

standards

that discourage

this

practice.

"

In

contrast

to

the

statement

above, the Illinois EPA believes NORA'S proposal

mmuri~ges the mixing

of other

wastes

into

used oil

by

offfering

a

manifest

exemption for

the

mixture.

But limiting

the

manifest exemption

to

used

oil

as

defined and

managed

in

accordance

with Part

739.100, as

the

Illinois EPA has proposed, encourages

the

generator

to

streams

separate for appropriate management and recycling.

NORA

argues

that,

"the

key

here

is that material regulated under Part 739 is not regulated

as

waste,

but properly recyclable material". However,

the

Illinois EPA believes it is probable

r .

that

other waste

added into the

ussd

oil

mixture

(e.g.

inks,

solvents

and

coolants) will not be

myc1ed, but

will

be burned

with

the

usd

oil or

treatd

in

a waste

water treatment unit. Some of

the

wastes

added

to

used

oil which will be blended for fuel

do

not have fuel value themselves

p-~

and

may contain constituents that are

not

appropriate

to

bum

in

that setting.

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

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Also

NORA

wgws that "the

Apcy's position is

. . .

inconsistent with

. . .

federal laws

that

allow specific

mixtures to

be managed

as

used oil." However,

although

the mixtures of used

oil and

other

non-hazardous special

waste

are subject

to

the

used

oil management standards

at

Part 739, once the free flowing oil is removed,

the

other waste

is

ao

longer subject

to these

standards. Therefore, the Nimis EPA believes

the

mixtures should

remain

subject

to

the special

waste

rnanifes~ or else

these

other

wastes

will

become

unregulated,

which is what

occurs

in

the

fed& program. Illinois has chosen

to

regulate non-hamdous special

waste

and therefore

the

continued

use

of

a

special waste manifest is necessary

to

adequately track the other

special

waste,

ta

alert bumers thab the

used

oil contains

ather

special

waste,

and

to

provide the record

necessary

to determine

whether

the

other specid waste

was

inappropriately.

Other

non-hazardous special

wastes

should be evaluated separate1

y

to

determine if

they

sh9uld be exempted

hm

hauling permits and manifests, and

should

not be

exempt

merely

became

?he waste was

mixed

with

used

oil. Materials added

to the

used oil

after

generation

&~uld only be exempted

from

the manifest

and hauling requirements if

they

meet

the

criteria

in

Sections

809.2

10,809.21 1,

or Section

858.12 1.

The

pqose of regulating

other

materids

as

used

oil under Section

739.1 10

is

not

to

allow

these

other wastes

to

be classified

as

wed

oil. The purpose is

to

encourage

separation of

used

oil

md

other

wastes

and

to allow

less

fed~ral regulation

of

non-hazardous solid waste once

it

was

separated

born

used

oil.

See 57

FR

41581 dated

September

10,1992

which

states

that,

"PSEPA]

encourages

the spmtion

of

used oils fiom wed

oiUsolid

waste

mixiura

andfrom

used

oil-cuntamirutted matmials

prior to

munagment

of

the

mixture.

Used

oils sepmatedfrnrn

mixtures containing

other solid

wastes

should be recycled

in

accordance with

140

CFR

2791."

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

* * * * * PC #40 * * * * *

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their post-hearing brief, NORA has cited "McCoy's

RCRA

Unraveled"

to

provide

''idhution concerning what mateials

are

subject

to

regulation

as

book includes the following discliiiaeti:

"This

guidance

manual addresses problems

of

a general

nature

related

to

the

federal

RCRA

regulations. Persons evaluating

spec

flc

circumstances

dealing with the RCRA rep

fations should

review

state

and local laws and regulations, which may be more

stringent than federal requirements.

In

addition,

a

quul

fied

professional

should be

enlisted to

address any site-spec$%

circumstancar.

"

As

acknowledged in

the text

of this

book,

'McCoy's

RCRA

Unraveled" is not

to

be

considered regulations themselves, but merely the author's interpretation of the regulations.

Therefore,

the

Illinois EPA believes

this

document and

not be

considered

in

the Board's decision regarding

this

rulemaking.

In

sum,

the

Illinois EPA believ$rs

that by

indirectly

encouraging mixtures of used oil

with

special

waste,

NORA'S proposal would have

a

negative impact

on

the ability

to

recycle each

waste stream

and

that

without

the

tracking of

individual

waste

streams

in mixtures,

the

wastes

may

be

inappropriately handled, managed or

burned.

3.

NEED

TO

LIMIT THE

EXEMPTION

In

its post-hearing brief, NORA argues that it

is

seeking

to

"eliminate

the

burdens

associated

with manifesting of

used

oil."

The Illinois EPA

can

understand that appropriate

paperwork is time consuming. However,

the

Illinois EPA believes that the

use

of

a

manifest is

necm for

wastes

that do

not

meet the definition

of used

oil because

the

used

ail tracking

system

will only identify the

waste

as used oil and will not require the generator

to

have

a

record

of the transportation and disposal of

the

non-hazardous special waste mixed with used oil.

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

* * * * * PC #40 * * * * *

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USDQT shipping papers for non-hazardous materials will provide lit tie additional information.

The used oil tracking system

will

lead

the

transporter, emergency responders and receiving

facilities

to

believe

that

the waste

41

behave Iike

used

oil.

NOW

argues

that "manifesting requirements

. , .

are a waste

of

time,

paper, and

money.

Moreover,

they

are redundant with federaily

required

tracking documents."

As

stated above,

proper paperwork is always

time

consuming.

Hawevm,

there should be

no

double tracking

because

a mixture

of used oil and

other

special waste

does

not have

to

be documented twice.

The Part

809

manifest will also

satisfy the

Part

739

tracking

requirement.

The

Illinois EPA

does

not

believe that

the

federally required USDOT shipping papers provide enough information for

tracking of non-hazardous special waste. However,

by

their own testimony,

NORA

also do not solely rely

on

the

USDOT shipping paper for their

own.

records.

NOM

argues

that "company tracking

documents were

put

in

evidence in this proceeding

and

bear

sinilar,

if not

identical, resemblance

to

hois

manifesting

documents."

Although

this

statement

may

be

truthful,

these

business records

are

not required

by

Part

739

and not all

industry businesses will keep

such

thorough records unless it is required.

The

business records

submittad

in

evidence

go

beyond

the

minimum regulatory requirements

for

Part 739

used

ail

twlcing. Therefore,

the

IUinok

EPA

believes

that

ifNORA members

keep

manifest-like records

for their business, it should not be burdensome

for

the company

to

fjll

out a

Part

809

maslifest.

Since NOM's argument is not

sound,

the Illinois EPA believes

that

there

is

another reason for

NORA'S

pursuit of

a

manifest exemption for

mixtures.

The Illinois EPA believes

the

rd

reason

for NORA'S pursuit of

a

manifest exemption for

mixtures

of used

oil and other special waste is

so

that

the

other

special

waste that

usually

must

go to a

permitted

and

sited special

waste

facility

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

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may

be hidden in the used oil and sent to an unpermitted, unsited used oil facility to be

NORA argues that

'7he

Illinois approach to used oil

. . .

is

inequitable"

and

that "the

Uhois situation

is

unusual

in

that

it

designates used

oil

as a

special

waste."

However, this

is

not

accurate.

Illinois

is

not

the

only

state

that designates used oil as a special waste and is not

the

only

state

that

uses a

manifest fbr mixtures of used oil and other special

waste.

Used oil

regulations vary

fiom

state

to

state

and while

some

states

only

require compliance with the

federal regulations, others

require

hauling permits, manifests, and other tracking papers for

mixtures of used oil and other non-hazardous special

waste.

Furthermore, it is the understanding

of the Illinois EPA that the exemption of used oil from

the

dehition of special waste

is

not

issue before the Board.

NORA

also

argues that

the

Illinois EPA proposal is inconsistent with the encouragement

of recycling and

states,

"the

Agency's

position virtually negates the intended positive impact of

NORA'S proposal."

This

statement is also inaccurate. The special

waste

regulations have been

in

place for

years

and, throughout this

time,

facilities have been recycling used oil and used oil

mixtures

in

Illinois. Furthennore, currently both outsf-state and

in-state

used oil trafisportas

must

use

manifests

and obtain

a

hauling permit

to

transport special

waste,

including used oil,

in

Illinois. The Illinois EPA proposal will allow haulers of used oil not containing

other

special

waste

to be

exempt

from

the

hauling permit and manifest requirement

and

therefore will

encourage

the out-of-state competitors to recycle used

oil

at

Illinois facilities. If

this

is

not

the

positive impact intended,

the

IIlinois EP A must question the

hue

intent of NORA'S proposal.

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

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4.

INCENTIVE FOR MIXING AND

THE

DEMISE OF

THE

PROGRGM

The

Illinois

EPA

believes that should NORA'S

proposal be adopted

by

the Board, the

11Linois EPA will lose regulatory control over non-hazardous specid waste and the special

waste

regulations

at

Part

808

and Part

809

will

be

effectively eliminated. NORA'S proposal will alIow

all non-hazardous special

waste mixtures to

be relabeled 'used

oil' and be managed soIel

y

under

the Part

739

regulations because the proposal does

not

specify

a

dmum

quantity

of

used

oil

that needs

to

be added

to the

waste mixture.

before

the

'&xture may be

relabeled

'used

oil'.

AAm

the

mixture

is

relabeled

in

kackhg

documrnts as

only

'used oil', the

mixture

may

be

received

by used

oil

facilities

that

have

Iess

stringent

permitting

and

siting requirements than

special

waste

facilities.

The Illinois

EPA

believes that the

less

stringent

permitting, siting, and

recordkeeping requirements for used oil facilitiw will be an incentive for facilities

to

combine

used

oil with o&er specid

and

relabel the

mixture as

'used

oil'.

In

its post-hearing brief,

NORA

refers

to other waste

subject

to

regulation under

Part

739

as

Wed

oiI like substances".

NORA proposes

that the

Illinois EPA should not be concerned with

used oil like substances

as

long

as they

are baing managed

by used

oil handlers.

NORA

implies

that the

waste will always have valuable amounts of recyclable oil

and

therefore will be managed

properly, However, although

this

may be

true

for high grade

used

oil products, the Illinois EPA

knows

that

mauy

fdties

also

profit

by

collecting generator fees and dipsing

of

the mixtures

as

low grade

used

oil fuel.

The

Illinois EPA believes

that

many of these facilities

will

abuse

the

used

oil manifest exemption

to receive

special waste that must normally

be

managed

at a

facility

&at

bas

siting and has been

mttd

to

manage special

waste.

The

Illinois EPA

has

already

had

experience with such practices in this industry.

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

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NORA

describes,

in

its post-hearing

brief, its members' commitment

to

guiding

principles.

Although the Illinois EPA commends NORA for its

good

business practices, these

guiding

principles are

not followed

by

all companies

in

the

industry and

are

not

enforceable by

the Illinois EPA in its duty

to

protect human health and the environment. Therefore the Hhis

EPA believes that should NORA'S

proposd be adopted

by

the

Board, abuse of the exem'ptbn

will occur. Enforcement against

facilities

that

accept

waste containing small

amounts

of

used

oil

would

be

dificdt, since under NORA'S proposal there

is

no

minimum amount of

useJ

oil

specified

that

must

be added to the

waste

mixture before it

may

be relabeled

as

used

oil.

As

indicated

in

previous testimony,

used

oil handlers also manage

waste

such as

plastic

pellets, carbon filter media, adactants, water based paint,

water

based

ink,

emulsion solutions,

grd&aterIoil

mixme,

cleaaing

cotilpdimd, sludge, wash water, super abrasive,

sand,

tank

sludge, water based coolants, and barge bilge

water.

These

wastes

should not receive

a

manifest

exemption and

the

receiving facility should

not

be exempt from permits and siting because

a

few

drops

of ail were added

to

these wastes

after

generation.

NORA

has not proposed

any

way

to

distinguish when the

waste

is

used

oil that will be recycled and when

the

waste

will be mainly

non-hazardous

special waste containing small

amounts

of used oil,

except

will be managed

by

a

used oil handler.

NORA argues that

the

"Agency's position

is

contrary

to

the

stattisijuo"

and that

"NOIUI's language does not change the

way

the used oil industry

does

business, nor

does

it seek

to

change

what

is

or

is

not entitled

to

be

treated as wed

oil

pursuant

to

current regulations."

However, the special

waste

manifesting

and

hauling regulations

already

exist and

already

apply

to wed

oil. The Illinois EPA is not seeking

a

new category of

waste

or new interpretation of Part

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

* * * * * PC #40 * * * * *

---

waste

manifest exemption in Part

809

to

used

oil

as

defined and managed in accordance with

Part

739.1

00.

This

does

not

mean

U

the

used

oil mixtures that

NORA

said are currently being

picked

up for

recycling

would no longer be recycled. It

only

means that

these

mixtures would

still

have

to

be transported

der

a

manifest.

In

addition, the Ulinois EPA

'

s

proposed wording

would not change

the

regulatory

status

of

wash

cmtly

exempt

hm

regulations.

NORA has argued

that

'ho

real evidence was

presented

regarding any danger with the

cm

program" and the "Agency

has

the

ability

to enforce

against any

of

those companies who

are not complying with Part

739."

The

Illinois EPA believes

NORA

has mischardzed

the

Illinois EPA" concerns

as

a

failure

to

enforce existing special

waste

regulations. However,

tke

Illinois EPA's real concern

is

that

the

memption

as

proposed

by

NORA

is

not

adequate to

insure

that important information about the

waste

is

conveyed

to

the receiving

facility,

waste

handlers,

emergency responders

and

ttre

Illinois EPA. According

to

NORA'S proposal the addition of

smdI

amounts

of

wed

oil

to other

waste would allow

the other

waste

to go

without

a

manifest or

any

identification

to

an

unsited,

unpermitted

facility

that

is

only

registered

to accept

used

oil.

The Illinois EPA believes this is

inconsistent

with

the

cradle-to-grave tracking of special

waste

required

in

the

current

special waste regulations. The Illinois EPA

is

concerned

that

since there

is

no

minimum amount of

used

oil

that

rnwt

bo

dded

to

a waste

to make

it

subject

to Part 73 9,

NORA'S proposed exemption would

result

in

abuse of the manifest system and

also

of the local

siting approval

requirements

in

Section

39.2

of

the

Illinois

Environmental Protection

and

of

the

permitbng requirements

in

Section

21 (d) of the Act.

The

Illinois EPA quests

that

the

Board

hd

that

Section

739.1 10 does not

allow a

person

to

avoid

the

solid

waste

permit requirements of Section 2

1

(dl of the Act and the local

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

* * * * * PC #40 * * * * *

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siting requirements

of

Section 39.2

of

the

Act

by

intentionally contaminating

used oil.

The

Illinois EPA also requests that the Board, for the reasons

stated above,

adopt the

alternate

language

as

provided by the Illinois EPA

in

its

comments

and testimony

to

the

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTlON

AGENCY

By:

~6hanie

Flowers

3-

Assistant Counsel

Division of Legal

Counsel

DATED:

/h

0 -

fl

b

102 1

North Grand

Avenue

East

P.O. Box

19276

Springfield, lllinois

62794-9276

(2 17) 782-5 544

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* * * * * PC #40 * * * * *

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C0rn'l-Y

OF

PROOF

OF

SERVICE

I,

the undersigned,

on

oath state that

I

have

served

the attacbed COMMENTS

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

TN

RESPONSE

TO

NORG'S

POST-HEARING BR?EF

upon

the persons

to

whom

they

are

directed, by

placing

a

copy

of

each

in

an

envelope

addressed

to:

Dorothy

Gum,

Clerk,

Illinois Pollution Control Board

James

R.

Thompson Center

I00

W.

Randolph,

Suite 11-500

Chicago, IIIinois

Matthew J. Dunn

Environmental Bureau Chief

Ofice of

the

Attorney General

James

R.

Thompson

Center

100

W.

Randolph,

1

2" Floor

Chicago, Illinois

60601

Claire

A.

Manning

Brown, Hay

&

Stephens,

LLP

700

First Mercantile Bank Building

205

South Fifth

St.,

P.O. Box

2459

Springfield, Itlinois

William Richardson, Chief Legal Counsel

Office of Legal CowwI

Illinois Dept.

of

Natural Resources

One

Natural ~emurc& Way

Springfxeld, Illinois

62702-

1 27 1

Tim

Fox, Hearing Officer

Illinois Pollution Control Board

James

R

Thompson Center

1

00

W.

Randolph

St.

Suite

1 1-500

Chicago, IUinois 60601

Deirdre K.

her, Executive Director

Illinois Environmental Regulatory

Group

3

1

50 Roland Avenue

SpringField,

Illinois

62703

and mailing it by First Class Mail

from

Springfield, Illinois

on

October

/&006,

with

sufficient postage

eed.

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

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