BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATER OF:

)

PROPOSED AMENDMENTS TO THE

)

BOARD’S SPECIAL WASTE REGULATIONS

)

R06-20

CONCERNING USED OIL

)

(Rulemaking – Land)

35 ILL. ADM. CODE 808, 809

)

)

ADDITIONAL COMMENTS OF NORA

)

NOTICE OF FILING

Office of the Attorney General

Ms.Deirdre K. Hirner

69 West Washington Street, Suite 1800

Executive Director

Chicago, Illinois 60602

Illinois Pollution Control Board

100 Randolph Street

Stephanie Flowers, Esquire

Suite 11-500

Illinois Environmental Protection Agency

Chicago, Illinois 60601

1021 North Grand Avenue East

P. O. Box 19276

Ms. Dorothy Gunn

Springfield, Illinois 62794

Clerk of Illinois Pollution Control

Board

100 Randolph Street Suite 11-500

Chicago, Illinois 60601

Tim Fox, Esquire

Hearing Officer

Illinois Pollution Control Board

100 Randolph Street

Suite 11-500

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution

Control Board, The Additional Comments of NORA, An Association of Responsible Recyclers,

a copy of which is herewith served upon you.

Christopher Harris

December 15, 2008

2001 South Tracy

Bozeman, Montana 59715

Telephone: (406) 586-9902

Electronic Filing - Received, Clerk's Office, December 15, 2008

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO THE

)

BOARD’S SPECIAL WASTE REGULATIONS )

R06-20

CONCERNING USED OIL

)

(Rulemaking – Land)

35 ILL. ADM. CODE 808, 809

SUBMITTED DECEMBER 15, 2008

Following the October 1, 2008 hearing conducted by the Board, NORA, An Association of

Responsible Recyclers (“NORA”) has slightly revised the language for its proposed amendments

to Part 739. This language is intended to improve the drafting and clarify the proposed new

requirements; no substantive changes are submitted. At the Board’s request, NORA is also

submitting proposed amendments to Parts 808 and 809 to clarify the relationship between the

special waste and used oil provisions if NORA’s proposal is adopted. It should be noted that this

language (attached) addresses certain materials

regulated as used oil

for which a manifest is not

necessary. It has already been proposed by the Board that shipments of used oil (as defined by

the federal regulations set forth at 40 CFR Part 279, as adopted by the Board by reference) would

not require a manifest. NORA and the Illinois Environmental Protection Agency (“IEPA”) are

in agreement on the Board’s proposal. Also, in compliance with the Board’s request, NORA’s

suggestions for revisions to the Board Notes are deleted from the proposed amendments.

However, because Board Notes remain crucially important to the correct interpretation of the

regulations, NORA has included its suggestions for Board Note revisions at the end of its

proposed revisions to the regulations.

As explained at the October 1, 2008 hearing, under NORA’s proposal, the manifest would be

replaced by a shipping document (also referred to as shipping paper) containing (1) all

information IEPA has requested (e.g., the quantity and description of the material); (2) the

information required by applicable United States Department of Transportation (“U.S.DOT”)

regulations; and (3) any business information deemed relevant by the transporter and/or

Electronic Filing - Received, Clerk's Office, December 15, 2008

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receiving facility. This approach to shipping paper is prescribed by U.S.DOT and has been the

accepted procedure for more than 20 years throughout the United States. U.S. DOT mandates

the content of the shipping paper while the design of the shipping paper is the responsibility of

the shipper or the transporter. This approach allows business transaction information to be

included in the shipping paper but without any loss of regulatory information or enforceability.

Similarly, under NORA’s proposal, the information that IEPA has stated it wants recorded would

be reflected on the shipping document while the shipper or transporter would design the form to

accommodate its transaction information. An exemplar of such a shipping document was

provided to the Board at the October 1, 2008 hearing.

As pointed out during the hearing, the replacement of the manifest with a shipping document will

dramatically reduce the unnecessary paperwork burden currently imposed on generators and

transporters. Our proposal will also put Illinois businesses on a level playing field with

businesses from adjacent states. NORA’s proposal does

not

affect any substantive requirements,

such as storage, testing and clean-up, that will, of course, remain the obligation of the regulated

community. Indeed, NORA’s proposal enhances the protection of human health and the

environment because it would allow generators and transporters to focus on substantive

compliance rather than duplicative and expensive paperwork. It is worth reiterating that under

the current system, IEPA does not want to receive copies of the manifest; it wants to generators

and transporters to store these manifests for three years just in case the Agency might someday

wish to look at some these manifests. Under NORA’ proposal, the shipping documents would be

retained for at least three years (probably longer because they contain valuable business

information) and the information contained in the shipping documents would be the same as

IEPA says it may need.

As NORA frequently pointed out in its testimony during the October 1, 2008 hearing, NORA’s

proposed amendments constitute a

compromise

that was intended to attract the support of IEPA.

Unfortunately, despite numerous efforts by NORA to engage IEPA is a constructive discussion

on the question of replacing a manifest with a shipping document, the Agency has not indicated

any interest in supporting a compromise proposal to the Board. See, for example, Claire

Manning’s April 2, 2008 letter on behalf of NORA to Stephanie Flowers, IEPA Legal Counsel

Electronic Filing - Received, Clerk's Office, December 15, 2008

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(attached). IEPA provided no substantive response to Ms. Manning’s letter and has not

approached NORA at any time since the October 1, 2008 hearing. Consequently, NORA and its

members would like to remind the Board that our

original

proposal is more logical,

straightforward, and efficient. NORA’s original proposal was to replace the manifest for used oil

(as defined) and all categories of materials regulated as used oil with a shipping document. See

attached. This simpler approach would bring Illinois’ regulations in congruence with the federal

regulations as well as the regulations of the states adjacent to Illinois and virtually all other

states. The disparity between Illinois’ requirements and those of the other states creates

confusion in the regulated community and imposes costly and unnecessary compliance burdens.

Use of a hazardous waste manifest for these shipments misrepresents what the material is to

emergency responders and others in contact with the shipments.

At a time when the current economic crisis is causing severe financial hardship on virtually

every business in the United States, it is the duty of government to reduce or even eliminate

costly and unnecessary requirements. As the Board is aware, all but two states allow the use of

DOT shipping papers for the transportation of used oil destined for recycling and have done so

since the promulgation of the used oil management standards in 1985. The Board will not be

venturing into uncharted territory by adopting NORA’s proposal; rather, the Board will be

bringing Illinois into alignment with the policies of virtually all other states.

Accordingly, NORA’s proposal as presented at the October 1, 2008 hearing merits the Board’s

approval. However, because this proposal constitutes a compromise that apparently was

dismissed by IEPA, NORA also requests that the Board give consideration to the adoption of

NORA’s original (and more logical) proposal to substitute a shipping document for a manifest

with respect to used oil (as defined) as well as all materials regulated as used oil.

Respectfully submitted,

Christopher Harris, General Counsel,

NORA, An Association of Responsible Recyclers

December 15, 2008

Electronic Filing - Received, Clerk's Office, December 15, 2008

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Electronic Filing - Received, Clerk's Office, December 15, 2008

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[additional language set forth in bold type]

Part 739.110 Applicability- hazardous wastes

After 739.110,b,3 add the following language:

4) Used oil and the following post use mixtures are subject to regulation as used oil under

this Part, and are exempt from 35 Ill. Adm. Code 808 and 809:

A)Mixtures of used oil and hazardous waste, both mixed and generated by a conditionally

exempt small quantity generator of hazardous, provided that such mixture contains more

than fifty percent of used oil by either volume or weight.

B) Mixtures of used oil containing BTU-valuable characteristic hazardous wastes, both

mixed and generated by the same generator, and which contain more than fifty percent of

used oil by weight or volume, provided such mixture does not exhibit a characteristic of a

hazardous waste. Any such BTU-valuable wastes or materials shall contain a minimum of

5000 BTUs per pound before mixture with the used oil.

C)Mixtures of used oil and ignitable-only characteristic hazardous wastes, both mixed and

generated by the same generator, and which contain more than fifty percent of used oil by

weight or volume, provided such mixture does not exhibit the characteristic of ignitability.

All other post use mixtures of used oil and hazardous wastes are regulated by 35 Ill. Adm.

Code 702, 703, and 720 through 728.

Part 739.110 Applicability- other materials

After 739.110,c,3 add the following language:

4) Used oil and the following post use mixtures are regulated under this Part, and are

exempt from 35 Ill. Adm. Code 808 and 809:

A)Mixtures of BTU-valuable nonhazardous wastes and used oil, both generated by the

same generator, and which more than fifty percent of used oil by weight or volume. Any

such BTU-valuable wastes must contain a minimum of 5000 BTU per pound before

mixture with the used oil.

B)Nonhazardous waste water contaminated by or mixed with used oil, both generated by

the same generator and which contain more than a de minimis (recoverable) quantity of

used oil.

Part 739.124 Off-Site Shipments

Electronic Filing - Received, Clerk's Office, December 15, 2008

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In the first paragraph remove the last part of the last sentence that reads:

“and an Illinois special waste identification number pursuant to 35 Ill. Adm. Code 809.”

and replace it with the following:

Whenever a Part 809 special waste manifest is not required, the generator must record the

quantity, classification and description of the non used oil materials for each shipment and

provide such information to the transporter at the time of acceptance by the transporter.

The generator shall keep all such records on file for a minimum of three years.

Part 739.142,a Notification

Delete the following language from the last sentence:

“identification number”

And replace it with the following:

hauling permit (if applicable)

Part 793.142,b,2 Notification

Delete the following language:

“has not received an Illinois special waste identification number”

And replace it with:

is required to obtain an Illinois special waste hauling permit

Part 739.143,a,1 Used Oil Transportation

Delete the following language from the END of the last sentence:

“identification number”

And replace with:

hauling permit (if applicable)

Part 739.146,a,6 Tracking - Acceptance

Add the following as a new section 6:

If the transporter has accepted any used oil mixed with special or hazardous waste that is

not regulated as used oil, or accepts any other non used oil special or hazardous waste for

recycling along with the used oil without the use of a Part 809 special waste manifest, the

transporter shall provide to the agency if requested, the quantity, classification and

description of the non used oil streams in the mixture. The transporter shall have

procedures in place that will ensure that emergency personnel in the event of an accident,

are immediately provided with information concerning any non-used oil materials in the

shipment that could alter the handling characteristics of the used oil. This information

must also be recorded on the used oil shipping document.

Part 739.146,b,2

Add the following language after “and Illinois special waste identification number”:

(if applicable)

Part 739.146,b,6 Tracking – Deliveries

Electronic Filing - Received, Clerk's Office, December 15, 2008

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Add the following as a new section 6:

The transporter shall have procedures in place to assure that the receiving facility will be

promptly notified of all relevant information concerning any non-used oil materials in the

shipment that could adversely affect the management or characteristics of the used oil. The

transporter shall also notify the receiving facility of any other special waste streams in the

used oil would likely cause the used oil to fail the oil EPA used specifications in 40 CFR

Part 279 or the applicable ASTM performance specifications, unless such used oil is sold or

transferred as an EPA off specification or non-ASTM certified used oil.

Part 739.156,a,3 and b,3 Tracking – Processors

Delete the following language:

“identification number”

And replace with:

hauling permit number (if applicable)

Part 739.156,b,4

Add the following language after “special waste identification number”:

(if applicable)

Part 739.158 Processor Off-Site Shipments of Used Oil

Delete the following language from the last sentence of the first paragraph:

“ identification number”

And replace with:

hauling permit (if applicable)

Part 739.165,a,3 Off specification Burners Tracking

Delete the following language in the LAST part of the sentence:

“identification number”

And replace with:

hauling permit (if applicable)

Part 739.174,a,3 Marketers - Tracking

Delete the following language in the LAST part of the sentence:

“identification number”

And replace with:

hauling permit number (if applicable)

Electronic Filing - Received, Clerk's Office, December 15, 2008

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NORA’s Suggestions for Amending Board Notes

Delete the Board Note that immediately follows Section 739.124.

Part 739.131 Used Oil Collection Centers

Add to the end of the existing Board Note:

if post use mixture takes place. See Board Notes under Part 739.110, Applicability, for post

use mixtures that are exempt from Part 809 manifesting requirements.

Part 739.132 Used Oil Aggregate Points Owned by the Generator

Add to the end of the Existing Board Note:

if post use mixture takes place. See Board Notes under Part 739.110, Applicability, for post

use mixtures that are exempt from Part 809 manifesting requirements.

Part 739.140,a,4 Applicability for Standards For Used Oil Transporter And Transfer Facilities

Add to the end of the Existing Board Note:

if post use mixture takes place. See Board Notes under Part 739.110, Applicability, for post

use mixtures that are exempt from Part 809 manifesting requirements.

Electronic Filing - Received, Clerk's Office, December 15, 2008

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(additional language set forth in bold type)

Part 808.121 Generator Obligations

After 808.121,b,4 add the following language:

5) The generator is not required to complete a manifest for used oil and certain

mixtures of used oil and special wastes as set forth in 35 Ill. Adm. Code

739.110,b and c, if the used oil and or mixtures are managed in compliance

6) A transporter is not required to have a special waste hauling permit to

transport a shipment that contains no special waste other than used oil or is a

mixture of used oil and certain special wastes as set forth in 35 Ill. Adm.

Code 739.110,b and c, if the used oil and or mixtures are managed in

accordance with 35 Ill. Adm. Code 739 and the transporter has registered

with the Agency as a used oil transporter.

Part 809.211,l

L) Any person who hauls only used oil and certain mixtures of used oil and

special wastes as set forth in 35 Ill. Adm. Code 739.110,b and c, if the used oil

and or mixtures are managed in compliance with 35 Ill. Adm. Code 739 and

the transporter has registered with the agency as a used oil transporter.

Part 809.301 Add at the end:

The generator or transporter is not required to complete a manifest for used oil

and certain special waste mixtures as set forth in 35 Ill. Adm. Code 739.110,b

and c, if the used oil and or mixtures are managed in compliance with 35 Ill.

Adm. Code 739. A transporter is not required to have a special waste hauling

permit to transport a load that contains no special waste other than used oil or is

a mixture of used oil and certain special wastes as set forth in 35 Ill. Adm. Code

739.110,b and c, if the used oil and or mixtures are managed in compliance with

35 Ill. Adm. Code 739 and the transporter has registered with the agency as a

used oil transporter.

Electronic Filing - Received, Clerk's Office, December 15, 2008

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Part 809.302,a Add at the end:

The generator or transporter is not required to complete a manifest for used

oil and certain special waste mixtures as set forth in 35 Ill. Adm. Code 739.110,b

and c, if the used oil and or mixtures are managed in compliance with 35 Ill.

Adm. Code 739. A transporter is not required to have a special waste hauling

permit to transport a load that contains no special waste other than used oil or is

a mixture of used oil and certain special wastes as set forth in 35 Ill. Adm. Code

739.110,b and c, if the used oil and or mixtures are managed in compliance with

35 Ill. Adm. Code 739 and the transporter has registered with the agency as a

used oil transporter.

Part 809.501,a Add at the end:

The generator or transporter is not required to complete a manifest for used

oil and certain special waste mixtures as set forth in 35 Ill. Adm. Code 739.110,b

and c if the used oil and or mixtures are managed in compliance with 35 Ill.

Adm. Code 739. A transporter is not required to have a special waste hauling

permit to transport a load that contains no special waste other than used oil or is

a mixture of used oil and certain special wastes as set forth in 35 Ill. Adm. Code

739.110,b and c, if the used oil and or mixtures are managed in compliance with

35 Ill. Adm. Code 739 and the transporter has registered with the agency as a

used oil transporter.

Electronic Filing - Received, Clerk's Office, December 15, 2008

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