BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk of the
Illinois Pollution Control Board the RESPONSE TO RULE PROPOSAL AMENDMENT, a
copy
ofwhich is herewith served upon you.
R06-20
(Rulemaking
-Land)
William Richardson, Chief Legal Counsel
Office of Legal Counsel
Illinois Dept. of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
)
)
)
)
)
)
Tim Fox, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center.
100
W. Randolph St.
Suite 11-500
Chicago, Illinois 6060I
Deirdre
K.
Hirner, Executive Director
Illinois Environmental Regulatory Group .
3150 Roland Avenue
Springfield, Illinois 62703
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:~~s}-~
Assistant Counsel
Division of Legal Counsel
NOTICE OF FILING
DATE:
/;)...-3-
07
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
IN THE MATTER OF:
PROPOSED AMENDMENTS TO THE
BOARD'S SPECIAL WASTE
REGULATIONS CONCERNING
USED OIL,
35 ILL. ADM. CODE 808, 809
Dorothy Gunn, Clerk,
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph, Suite 11-500
Chicago, Illinois 6060 I
(ELECTRONIC FILING)
Claire
A.
Manning
Brown, Hay
&
Stephens, LLP
700 First Mercantile Bank Building
205 South Fifth St., P.O. Box 2459
Springfield, Illinois 62705-2459
Matthew J. Dunn
Environmental Bureau Chief
Office
of the Attorney General
Environmental Bureau North
69 West Washington Street, Suitel800
Chicago, Illinois 60602
Electronic Filing: Received, Clerk's Office, December 3, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED AMENDMENTS TO THE
BOARD'S SPECIAL WASTE
REGULATIONS CONCERNING
USED OIL,
35 ILL. ADM. CODE 808, 809
)
)
)
)
)
)
R06-20
(Rulemaking
-Land)
RESPONSE TO RULE PROPOSAL AMENDMENT
NOW COMES the Illinois Environmental Protection Agency ("Illinois EPA"), by and
through one of its attorneys, Stephanie Flowers, and pursuant to 35
Ill.
Adm. Code 101.500(d)
and in response to the Rule Proposal Amendment filed with the Illinois Pollution Control Board
("Board") by the Association
ofResponsible Recyclers (''NORA'')in the above-entitled matter
on November 5, 2007, states as follows:
1.
Tbe Rule Proposal Amendment miscbaracterizes tbe current regulations.
NORA states that this new proposal is intended to "eliminate duplicative
and
unnecessary
paperwork.,,1 The Illinois EPA believes this is a mischaracterization of the current regulations.
Currently there is no requirement for duplicative paperwork. Presently,
if a transporter carries
any special waste, including used oil, they need only one special waste manifest for each
load
received from each generator. 2 The Illinois EPA's alternate exemption language) would modify
the current regulations
and
eliminate the requirement of a special waste manifest for used oil.
The Illinois EPA feels secure in allowing this exemption because even though used oil drops out
of the requirement for manifesting under 35 Ill. Adm. Code 809 ("Part 809") it is still subject to
the used oil tracking regulations at
35
Ill.
Adm. Code 739 ("Part 739"). The Part 739 tracking
I
See Rule Proposal Amendment at page I.
2 Even though used oil is subject to both the Part 739 tracking requirements and the Part 809 manifest requirements,
a special waste manifest satisfies the requirements
of both
Parts so there are not two different documents to fill out.
3 See Testimony of Theodore J. Dragovich filed in R06-20 on May 10, 2006.
Electronic Filing: Received, Clerk's Office, December 3, 2007
requirements do not require a manifest and do not require as much detail but are sufficient for a
homogeneous product such
as used oil. However, the lllinois EPA'salternate language does not
allow and the Illinois EPA cannot support any proposal that would allow other special waste
4
to
be exempt from the manifesting requirements of Part 809 because then there would be no
regulatory requirement to track the special waste. There is no second regulatory framework to
pick up other special waste tracking as there is for used oil in Part 739.
The issue, therefore, is not that the Illinois EPA requires duplicative and unnecessary
paperwork, but that
NORA's members do not benefit from the Illinois EPA's alternate
exemption language because they do not carry only used oil but also other special waste and
therefore would still be required to carry a manifest.
2.
The Rule Proposal Amendment does not address the Illinois EPA concerns.
NORA accurately states the liIinois EPA'sconcern when it says, "Illinois EPA will not
be in a position to effectively regulate special waste that'sbeing inappropriately managed as
used oil since tracking under Part 739 is not as extensive as manifesting under Part 809".5
However,
NORA'snewly proposed language does not lessen this concern.
NORA's recently subruitted language still draws mixtures
ofused oil and special waste
into the exemption by using the phrase "used oil regulated under Part 739". Used oil that is
mixed with other special waste after generation is subject to both the used oil regulations and the
more stringent special waste regulations. Therefore, mixtures are technically "regulated under
Part 739" and this is why the illinois EPA cannot support this language. The Illinois EPA,
cannot allow mixtures
6
of other special waste with used oil to be regulated only as used oil. As
4 The term "other special waste" as used in this document does not include types of special waste specifically
exempted from manifesting and hauling permits pursuant to Board regulations
or the Act.
5 See Rule Proposal Amendment at page 2.
6 The tenn "mixtures" as used in this document means the intentional mixing of used oil after generation with other
special waste and does not mean mixtures resulting from the original use of the oil
Electronic Filing: Received, Clerk's Office, December 3, 2007
Illinois EPA has previously stated, this would encourage the mixing of other waste into the used
oil by the generator and transporter because
of the exemption from manifesting and hauling.
Mixtures would also be encouraged by the used oil receiving facility because they could receive
the special waste mixed into the used oil without
fIrst obtaining a Part 807 permit or local-siting
approval as no documents would exist to identify the waste received as anything but used oil.
Thus, the Illinois EPA has proposed alternative language? that limits the manifest
exemptlon to used oil as defIned in Part 739 leaving mixtures of used oil and other special waste
subject to the manifest requirements
of Part 809.
3.
The'RuleProposal Amendment does not provide sufficient tracking
requirements.
NORA states, "The proposed language puts the burden on a used oil recycler to identify
the waste stream,
just as it would do with manifesting ..."sHowever, the Illinois EPA asserts
this is not true. The newest proposed language
by NORA states,
"...provided that the tracking documents which are utilized pursuant to
35 Ill. Adm. Code Part 739 contain information relevant and necessary to
identify and track the material
as used oil regulated under that Part".9
This language requires no more than that the material be tracked
as used oil regulated under Part
739. This is true even when other special wastes are combined with minimal amounts
ofused
oil. As stated before, mixtures
of other special waste and used oil are regulated under both Part
739 and Part 809. Therefore, for a transporter to record that the mixture is regulated by Part 739
would not
be incorrect but would be misleading as it fails to identify the other special waste in
the mixture. And since Part 739 does not require the generator
to keep copies of shipping
records indicating where the other special waste was sent for storage, treatment, recycling
or
7 See Testimony of Theodore J. Dragovich filed in R06-20 on May 10, 2006.
8 See Rule Proposal Amendment at page 3.
9 See Rule Proposal Amendment at page 5 (Exhibit A).
- -----------
Electronic Filing: Received, Clerk's Office, December 3, 2007
disposal and since the receiving facility would not be notified that the waste contained anything
other than used oil, the identification
of the other special waste in the mixture would be lost.
There would not be any information conveyed to the transporter, storer,
or processor that would
make them aware that the other special waste requires management standards different from used
oil. Hence,
NORA's proposed language results in no existing records of the other special wastes
added to
used oil, making it easy to hide the presence of these wastes at used oil facilities that are
not sited or permitted to accept wastes other that used oil.
4.
The
Rule
Proposal Amendment is duplicative of arguments already raised.
From the first response
of the Illinois EPA to NORA's proposal, the Illinois EPA has
made clear that the exemption cannot apply to materials "regulated under Part 739".10 This is
because most materials contaminated with used oil come under the regulation
ofPart 739. These
materials are often also regulated under the stricter standards
ofthe special waste regulations and
other regulations. Materials that should be regulated under stricter standards cannot
be allowed
out
of these standards simply because they contain used oil because this would encourage the
contamination
of these materials with used oil.
The Illinois EPA proffered language
11
that gave a manifest exemption to "used oil as
defined by and managed in accordance with Part 739" to limit the exemption to recycled used oil
only. This language kept used oil mixed with other special waste and used oil intended for
disposal still requiring manifests and hauling permits. NORA adopted this language in Errata
Sheet
#1 but changed the phrase "used oil as defmed by and managed in accordance with Part
739" to "material subject to regulation pursuant to Part
739".12 The change is because NORA
understands the broader scope
of its language in relation to the lllinois EPA's. Since NORA's
10
See Comments of the Illinois Environmental Protection Agency filed in R06-20 on May 1, 2006.
II
See Testimony of Theodore J. Dragovich filed in R06-20 on May'10,2006.
J2 See Exhibit A of Supplemental Statement of Reasons and Errata Sheet #1 filed in R06-20 on May 16, 2006.
~- ~-----------~----I
Electronic Filing: Received, Clerk's Office, December 3, 2007
members transport used oil mixed with special waste they want a release from manifesting these
loads also. And while
NORA'smembers may make a good faith effort to track the other special
waste, their proposed exemption would leave no regulations in place that would require them to
do so. As the Illinois EPA has already explained
l3
NORA's exemption would create a
significant loophole for bad actors and others to circumvent the special waste rules including the
requirements of permitting and siting of special waste facilities.
In its current proposal, titled Errata Sheet #2, NORA continues
to use the same language
"regulated under Part 739" that seeks
to broaden the exemption to mixtures and to which the
Illinois EPA has repeatedly stated its objections.
WHEREFORE, for the above and foregoing reasons, the Illinois EPA respectfully
requests that the Board deny NORA'smotion
to file its Rule Proposal Amendment.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Steph;u;;e;;wers
BY:~~?~
Assistant Counsel
Division of Legal Counsel
DATE:
/J-
5
-07
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
13 See page 8 ofPost-Hearing Comments of the minois Environmental Protection Agency filed
in
R06-20 on
September 1,2006 and page 8 of Comments of the Illinois Environmental Protection Agency filed in R06-20 on
October
10, 2006.
Electronic Filing: Received, Clerk's Office, December 3, 2007
STATE OF ILLINOIS
)
)
COUNTYOFSANGAMON
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached RESPONSE TO RULE
PROPOSAL AMENDMENT upon the persons to whom they are directed, by placing a copy
of
each in an envelope addressed to:
Dorothy Gunn, Clerk,
Illinois Pollution Control Board
James
R. Thompson Center
100 W. Randolph; Suite 11-500
Chicago, Illinois 60601
(ELECTRONIC FILING)
Matthew
J. Dunn
Environmental Bureau
Chief
Office of the Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
. Chicago, Illinois 60602
Claire
A. Manning
Brown, Hay
&
Stephens, LLP
700 First Mercantile Bank Building
205 South Fifth St., P.O. Box 2459
Springfield, TIlinois 62705-2459
William Richardson,
Chief Legal Counsel
Office
of Legal Counsel
Illinois Dept.
of Natural Resources
One Natural Resources
Way
Springfield, Illinois 62702-1271
Tim Fox, Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center
100
W. Randolph St.
Suite 11-500
Chicago, Illinois 60601
Deirdre'K. Himer, Executive Director
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
and mailing it by First Class Mail from Springfield, TIlinois
onDecember 3, 2007, with sufficient
postage affixed.
SUBSC~ED
ANQ
SWORN ;I'OBEFORE ME
This
~
day of
De
(e
)y\.PQ \
,2007.
---.1A~.
Notary Public
13
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Electronic Filing: Received, Clerk's Office, December 3, 2007
