ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS POLLUTION CONTROL BOARD
PROCEDURAL HISTORY
Procedural History Prior to Board’s Original May 1, 2008, First Notice Opinion and Order
Filing Public Comments
ORDER
SUBPART A: GENERAL PROVISIONS
1. PART 809
2. SUBPART C: DELIVERY AND ACCEPTANCE
IT IS SO ORDERED.

August 20, 2009

IN THE MATTER OF:

PROPOSED AMENDMENTS TO THE

BOARD’S SPECIAL WASTE

REGULATIONS CONCERNING

USED OIL, 35 ILL. ADM. CODE 739, 808,

Proposed Rule. Second First Notice.

OPINION AND ORDER OF THE BOARD (by A.S. Moore)

For first-notice publication in the

Illinois Register

, the Board today proposes amendments

to its special waste regulations and corresponding amendments to its used oil management

standards.

See

35 Ill. Adm. Code 739, 808, 809. NORA, An Association of Responsible

Recyclers, formerly known as the National Oil Recycling Association (NORA), initiated this

proceeding by filing a rulemaking proposal. On May 1, 2008, the Board adopted for first notice

a proposal amending its special waste regulations.

See

32 Ill. Reg. 8085-8102 (May 30, 2008).

After conducting a third public hearing in this matter at NORA’s request and considering the

entire record, the Board adopts for second first notice the amendments to its special waste and

used oil regulations described below.

The proposed amendments are intended to exempt from the manifesting requirements of

Parts 808 and 809 specific mixtures of used oil and other materials. With regard to those specific

mixtures, the Board proposes to amend the Part 739 tracking requirements to include information

required by a manifest under Parts 808 and 809. Publication of these proposed amendments in

the

Illinois Register

will begin a 45-day public comment period.

See

5 ILCS 100/5-40(b) (2008)

(Illinois Administrative Procedure Act). The Board does not presently intend to hold any

additional hearings.

In the opinion below, the Board first provides the procedural history of this rulemaking.

This history includes a brief summary of the Board’s original May 1, 2008, first-notice opinion

and order, which requested comment on whether to amend the used oil management standards at

Part 739. Next, the Board summarizes a comment from the Illinois Environmental Protection

Agency (Agency or Illinois EPA or IEPA) responding to that request. The Board then addresses

NORA’s September 22, 2008, proposal, which also responds to that request for comment. Next,

the Board reviews post-hearing comments filed by NORA and the Agency, NORA’s response to

the Agency’s comment, and the Agency’s response to NORA’s comment. After discussing the

issues raised in the record of this proceeding, the Board reaches its conclusions on them. The

order following this opinion then sets forth the proposed amendments for a second first-notice

publication in the

Illinois Register

PROCEDURAL HISTORY

Procedural History Prior to Board’s Original May 1, 2008, First Notice Opinion and Order

On December 13, 2005, NORA filed both proposed amendments to the Board’s special

waste regulations and a statement of reasons (Statement) supporting the proposal. Also on

December 13, 2005, NORA filed a motion to waive signature requirements.

See

415 ILCS

5/28(a) (2008); 35 Ill. Adm. Code 102.202(g) (requiring petition signed by at least 200 persons).

In an order dated January 5, 2006, the Board accepted NORA’s proposal for hearing and

granted NORA’s motion to waive signature requirements. In the same order, the Board directed

NORA to address in writing three identified informational deficiencies in the proposed rule and

statement of reasons.

In an order dated April 5, 2006, the hearing officer scheduled the first hearing for May

25, 2006, in Springfield and set a deadline of May 11, 2006, to pre-file testimony for it. The

order set the same deadline for NORA to address the informational deficiencies identified by the

Board’s January 5, 2006, order. The order also scheduled a second hearing for June 29, 2006, in

Chicago.

On May 1, 2006, the Board received the Agency’s comments on NORA’s proposal (PC

1).

On May 10, 2006, Theodore J. Dragovich, manager of the Disposal Alternatives Unit in

the Agency’s Bureau of Land Permit Section, pre-filed testimony for the first hearing on behalf

of the Agency.

On May 11, 2006, NORA orally requested an extension of the May 11, 2006, deadline

for pre-filing testimony and the supplemental statement of reasons requested in the Board's

January 5, 2006, order. Specifically, NORA requested an extension of that deadline to May 16,

2006. In an order dated May 11, 2006, the hearing officer granted the motion and extended to

May 16, 2006, the deadline to file pre-filed testimony and the supplemental statement of reasons.

On May 16, 2006, four persons pre-filed testimony on behalf of NORA: Christopher

Harris, General Counsel to NORA; Victoria Custer, Vice President of Southwest Oil, a director

on NORA’s board, and Chair of NORA’s Illinois Working Group; Mike Lenz, an Environmental

Compliance Specialist for Future Environmental; and Greg Ray, Vice President of Business

Management for Heritage-Crystal Clean, LLC. Also on May 16, 2006, NORA filed its

supplemental statement of reasons and its first

errata

sheet.

The Board held the first hearing as scheduled on May 25, 2006, in Springfield. Mr.

Harris, Ms. Custer, Mr. Lenz, Mr. Ray, and Mr. Dragovich each testified at the first hearing. On

June 5, 2006, the Board received the transcript of the first hearing.

In an order dated June 1, 2006, the hearing officer noted that the Agency sought to

respond to questions raised at the first hearing by preparing those responses for the second

hearing. In that order, the hearing officer directed the Agency to file responses with the Board in

the form of a public comment by June 15, 2006. On June 15, 2006, the Agency filed Additional

Testimony of Theodore J. Dragovich and the testimony of Christopher N. Cahnovsky, Regional

Manager of the Collinsville office of the Agency’s Bureau of Land.

The Board held the second hearing as scheduled on June 29, 2006 in Chicago. Mr.

Dragovich and Mr. Cahnovsky testified on behalf of the Agency. Four persons testified on

behalf of NORA: Catherine A. McCord, Vice President of Environment, Health, and Safety for

Crystal Clean; Dan R. Appelt of Safety-Kleen; Ms. Custer; and Mr. Lenz. On July 14, 2006, the

Board received the transcript of the second hearing (Tr.2).

During the first and second hearings, the hearing officer entered into the record the

following 18 hearing exhibits:

Exhibit 1:

Electronic Code of Federal Regulations 40 C.F.R. 279.1 – 279.82 (Standards for

the Management of Used Oil)

Exhibit 2:

35 Ill. Adm. Code 739.100 – 739.182 (Standards for the Management of Used

Oil)

Exhibit 3:

35 Ill. Adm. Code 808.100 – 808.600 (Special Waste Classifications)

Exhibit 4:

35 Ill. Adm. Code 809.101 – 809.921 (Nonhazardous Special Waste Hauling and

the Uniform Program)

Exhibit 5:

Testimony of Christopher Harris

Exhibit 6:

Testimony of Victoria Custer

Exhibit 7:

Testimony of Mike Lenz

Exhibit 8:

Testimony of Gregory Ray

Exhibit 9:

Supplemental Statement of Reasons and

Errata

Sheet #1

Exhibit 10:

Testimony of Theodore J. Dragovich

Exhibit 11:

Additional Testimony of Theodore J. Dragovich and Christopher N. Cahnovsky

Exhibit 12:

Safety-Kleen Oil Recovery Service/Sales Acknowledgement

Exhibit 13:

Crystal Clean Work Order (dated January 18, 2004)

Exhibit 14:

Future Environmental, Inc. Straight Bill of Lading

Exhibit 15:

Testimony of Catherine McCord on Behalf of NORA

Exhibit 16:

Additional Testimony of Dan Appelt, Safety-Kleen Systems, Inc.

Exhibit 17:

Safety-Kleen Tracking Document (dated May 22, 2006)

Exhibit 18:

Safety-Kleen Tracking Document (dated May 23, 2006)

During the second hearing, the participants agreed to a deadline of August 9, 2006, for

filing post-hearing comments. Tr.2 at 127. On July 18, 2006, the hearing officer issued an order

directing the participants to file post-hearing comments by August 9, 2006. On August 7, 2006,

the Agency filed a motion for extension of time in which to file post-hearing comments. On the

same date, the hearing officer issued an order granting the Agency’s motion and extending the

deadline for filing post-hearing comments to August 16, 2006.

On August 11, 2006, NORA orally moved to extend the deadline for filing post-hearing

comments. On the same date, the hearing officer issued an order granting NORA’s motion and

extending the deadline for filing post-hearing comments to September 1, 2006.

Before the original deadline of August 9, 2006, the Board received post-hearing

comments from the following persons on the dates specified:

PC 2

Shaunti Stalluth, Industrial Water Services (July 28, 2006);

PC 3

Lee J. Plankis; Senior Vice President of Operations, RS Used Oil Services, Inc.

(July 28, 2006);

PC 4

Rick Shipley; National Sales Manager, RS Used Oil Services, Inc. (July 28,

2006);

PC 5

Ronald A. Winkle; President, RS Used Oil Services (July 28, 2006);

PC 6

Dave Brown; President, United Waste Water Services, USI (July 28, 2006);

PC 7

Ronald J. Plankis; Vice President, Consulting Services, Profit Consultants, Ltd.

(July 28, 2006);

PC 8

Ken Petruck; Vice President, Operations, Excel Environmental, Inc. (July 28,

2006);

PC 9

Catherine A. McCord; Vice-President, Environment, Health, and Safety, Crystal

Clean (July 31, 2006);

PC 10

Michael Lenz; Environmental Compliance Specialist, Future Environmental (July

31, 2006

PC 11

Lin Longshore; Senior Vice-President, Environment, Health, and Safety, Safety-

Kleen (July 31, 2006);

PC 12

Jeffrey M. Posick, Waste Alternatives and Consulting, LLC (July 31, 2006);

PC 13

John A. Oxford; Vice President of Compliance, Fuel Processors, Inc. (July 31,

2006);

PC 14

John A. Oxford; Vice President of Compliance, Energy & Material Recovery, Inc.

(July 31, 2006);

PC 15

John A. Oxford; Vice President of Compliance, Industrial Oil, Inc. (July 31,

2006);

PC 16

David Osbourne; Manager of Sales and Customer Service, Consolidated

Recycling Co., Inc. (July 31, 2006);

PC 17

Ken Reif, Valley Environmental Service (July 31, 2006);

PC 18

Gary L. Gunderson; President, Recycle Technologies, Inc. (July 31, 2006);

PC 19

Donald R. Kleine; Owner, Vortex Recycling (July 31, 2006);

PC 20

Garry R. Allen (July 31, 2006);

PC 21

Matthew Usher, Usher Oil Company (July 31, 2006);

PC 22

Richard A. Kalin; Vice President, Noble Oil Services, Inc. (July 31, 2006);

PC 23

Deanne Hartman; President/CEO, Approved Remediation and Recycling of Oil

Waste, Inc. (July 31, 2006);

PC 24

Victoria M. Custer; Vice President, Southwest Oil, Inc. (July 31, 2006);

PC 25

Steve Rundell; President, Solvent Systems International, Inc. (July 31, 2006);

PC 26

W.L. Briggs; President, Oil Re-Refining Company, Inc. (July 31, 2006);

PC 27

Benjamin P. Cowart; President of General Partner, Vortex Energy, L.P. (August

1, 2006);

PC 28

Scott D. Parker; Executive Director, NORA (August 1, 2006);

PC 29

Laura M. Krist; Territory Manager, Jacobus Environmental Services (August 1,

2006);

PC 30

Brett Morton; Senior Environmental Engineer/Product Stewardship, Shell

Lubricants (August 2, 2006);

PC 31

Chris McNeil; Compliance Officer, Aaron Oil Company, Inc. (August 2, 2006);

and

PC 32

John H. Datka; General Manager, Moore Oil Environmental Services, LLC

(August 4, 2006).

On September 1, 2006, the Agency filed its post-hearing comments (PC 33), and NORA

filed its post-hearing brief (PC 34).

In an e-mail on September 6, 2006 (PC 35), the Agency sought to correct two technical

errors in citations to the Federal Register in its post-hearing comments. Responding by e-mail on

September 7, 2006 (PC 36), NORA indicated that it did not object to those corrections but stated

that it wished to respond to arguments that it believed the Agency had made for the first time in

its post-hearing comments. Replying by e-mail, the Agency indicated that it objected to

additional substantive comment (PC 37). In an order dated September 8, 2006, the hearing

officer directed the Agency to file correction of its post-hearing comments by September 21,

2006. On September 18, 2006, the Agency filed corrections to its post hearing comments (PC

38).

Also in the order dated September 8, 2006, the hearing officer allowed any participant to

file a response to the post-hearing comments filed either by the Agency or by NORA on or

before Monday, October 9, 2006. On October 10, 2006, NORA timely filed its response to the

Agency’s post-hearing comments (PC 39), and the Agency timely filed its comments in response

to NORA’s post-hearing brief (PC 40). The Agency’s comments in response elicited two

additional comments specifically addressing the Agency’s arguments: one from Mr. Lenz on

October 11, 2006, (PC 41) and one from Mr. Ray on October 23, 2006 (PC 42).

On November 5, 2007, NORA filed a “Rule Proposal Amendment.” NORA’s filing

included a second

errata

sheet. NORA sought to withdraw its original proposal and to offer in

its place the language contained in the second

errata

sheet. On November 19, 2007, the Agency

filed a motion for extension to December 3, 2007, of the time in which to file a response to the

rule proposal amendment. On December 3, 2007, the Agency filed its response to the rule

proposal amendment.

As required by Section 27(b) of the Act (415 ILCS 5/27(b) (2008)), the Board requested

in a letter dated February 22, 2006, that the Department of Commerce and Economic

Opportunity (DCEO) determine whether it would conduct an economic impact study (EcIS) of

this rulemaking proposal. DCEO did not respond to the Board’s request. At the second hearing,

the hearing officer noted the Board’s request to DCEO for an EcIS and the lack of a response.

Tr.2 at 125-26. Although the hearing officer afforded those present the opportunity to testify

regarding the Board’s request and the lack of a response, no participant offered testimony with

regard to that issue.

See

Tr.2 at 126.

On May 1, 2008, the Board issued its original first notice opinion and order proposing

amendments to the Board’s special waste regulations. The proposed amendments appeared in

the

Illinois Register

on May 30, 2008. 32 Ill. Reg. 8085-8102 (May 30, 2008).

Summary of Board May 1, 2008, First Notice Opinion and Order

In its original first notice opinion and order on May 1, 2008, the Board first proposed

amendments intended to exempt from the manifesting requirements of the Board’s special waste

regulations (35 Ill. Adm. Code 808, 809) used oil that is defined by and managed in accordance

with the Board’s used oil management standards (35 Ill. Adm. Code 739). Proposed

Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code

808, 809, R06-20, slip op. at 1, 56 (May 1, 2008).

Second, the Board proposed amendments intended to exempt from the Board’s special

waste hauling permit requirements (35 Ill. Adm. Code 808, 809) shipments that contain no

special waste other than used oil that is defined by and managed in accordance with the Board’s

used oil management standards (35 Ill. Adm. Code 739). Proposed Amendment of the Board’s

Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code 808, 809, R06-20, slip op.

at 1, 56 (May 1, 2008).

Third, the Board specifically sought from the participants comment on whether to amend

Part 739 to require that used oil tracking documents include information that would allow those

tracking documents to satisfy requirements such as manifests under Parts 808 and 809.

Additionally, in the event that a participant wished to amend Part 739 in this manner, the Board

sought comment in the form of draft regulatory language that might enact such an amendment.

Specifically, the Board sought to determine whether the record in this proceeding may be

developed to supports adoption of a proposal similar to that sought by NORA while addressing

the concerns of the Agency. Proposed Amendment of the Board’s Special Waste Regulations

Concerning Used Oil: 35 Ill. Adm. Code 808, 809, R06-20, slip op. at 1-2, 55-56 (May 1, 2008).

Procedural History Since the Board’s May 1, 2008, Opinion and Order

On June 4, 2008, NORA filed a motion requesting a hearing following first notice.

On June 13, 2008, the Agency filed its comments on the Board’s first notice proposal (PC

44).

In an order dated July 10, 2008, the Board granted NORA’s motion for a hearing

following first notice. In an order dated August 7, 2008, the hearing officer scheduled the third

hearing for October 1, 2008, in Chicago. In the same order, the hearing officer set a deadline of

September 17, 2008 for filing pre-filed testimony.

On September 15, 2008, the Agency filed its pre-filed questions for NORA’s witnesses at

the third hearing. On September 19, 2008, NORA filed a motion to extend to September 22,

2008, the deadline to pre-file testimony for the third hearing. In an order dated September 29,

2008, the hearing officer granted NORA’s motion to extend the deadline as requested. On

September 22, 2008, the Board received pre-filed testimony from Mr. Harris (Harris Test.) on

behalf of NORA and Mr. Lenz on behalf of Future Environmental in support of NORA (Lenz

Test.).

The Board held the third hearing as scheduled on October 1, 2008, in Chicago. Four

persons testified on behalf of NORA: Mr. Harris, Mr. Lenz, Mr. Ray, and Mr. Appelt. During

the third hearing, the hearing officer entered into the record a single exhibit, a draft sample

tracking document (Exh. 19). On October 14, 2008, the Board received the transcript of the third

hearing (Tr.3).

In an order dated October 15, 2008, the hearing officer set a deadline of December 15,

2008, for filing post-hearing comments and a deadline of January 14, 2009, for filing responses

to those post-hearing comments. On December 15, 2008, the Agency filed its post-hearing

comments (PC 70), and NORA filed its post-hearing comments and proposed regulatory

language (PC 71). On January 14, 2009, the Agency filed its response to NORA’s post-hearing

comments (PC 74, and NORA filed its response to the Agency’s post-hearing comments (PC

75).

Since granting NORA’s request for a third hearing, the Board has received comments

from the following persons on the dates indicated:

PC 45

Lisa Frede, Director of Regulatory Affairs, Chemical Industry Council of Illinois

(September 22, 2008);

PC 46

Mark Denzler, Vice President – Government Affairs, Illinois Manufacturers’

Association (September 26, 2008);

PC 47

Maria E. Leon, President, E.M.C. Oil Corp. (September 26, 2008);

PC 48

Ronald A. Winkle, President, RS Used Oil Services, Inc. (September 26, 2008);

PC 49

Roger L. Wilson, Operations Manager, Holston Environmental Services, Inc.

(September 26, 2008);

PC 50

James J. Noble, President, Noble Oil Services, Inc. (September 26, 2008);

PC 51

Troy Hacker, Corporate Environmental, Health & Safety, Thermo Fluids, Inc.

(September 26, 2008);

PC 52

Chris Ricci, President, Ricky’s Oil Service, Inc. (September 26, 2008);

PC 53

Bill Briggs, President, ORRCO Oil Re-Refining Company (September 26, 2008);

PC 54

Celeste M. Powers, CAE, Executive Director, Independent Lubricant

Manufacturers Association (September 26, 2008);

PC 55

Mark Howard, VP of Sales, Gencor Industries (September 26, 2008);

PC 56

Kenneth B. Petruck, President, Excel Environmental, Inc. (September 26, 2008);

PC 57

Maureen McGovern, President, The Chicago Petroleum Club (September 26,

2008);

PC 58

David E. Carson, CEO, Consolidated Recycling Co., Inc. (September 26, 2008);

PC 59

Lyle Salsbury, General Manager, Usher Oil Company (September 26, 2008);

PC 60

William E. Darling, President, Mosner Energy Alternative, Inc. (September 26,

2008);

PC 61

Roland A. Odenwald, Jr., Vice President, Gateway Petroleum Co., Inc.

(September 26, 2008);

PC 62

Patrick Kotter, Compliance Manager, ESI Environmental (September 26, 2008);

PC 63

John Simon, Curran (September 26, 2008);

PC 64

Ron Smith, Environmental Compliance Manager, Universal Lubricants, LLC

(September 26, 2008);

PC 65

Ken Reif, President, Valley Environmental Services (September 26, 2008);

PC 66

Howard Miller, Sales Consultant, Solvent Systems International, Inc. (September

26, 2008);

PC 67

John W. Van Hoesen, President, Van Hoesen Industries, Inc. d/b/a North Branch

Environmental (September 26, 2008);

PC 68

Keith Dunkelbarger, President, Modal Marketing, Inc. (September 26, 2008);

PC 69

Thomas Rubasky, Director Oil Operations – West Group, Safety-Kleen

(September 30, 2008);

PC 72

Randall J. Boisvert, Environmental Manager, Hanson Heidelberg Cement Group

(December 15, 2008);

PC 73

Mark Whitmore, General Manager, Moore Oil Environmental (December 15,

2008);

PC 76

Gregory Ray, CFO and Vice President of Business Management, Heritage –

Crystal Clean, LLC (January 14, 2009); and

PC 77

Michael Lenz, Environmental Compliance Specialist for Future Environmental

(January 14, 2009).

Filing Public Comments

First-notice publication of these proposed amendments in the

Illinois Register

will start,

for the second time, a period of at least 45 days during which any person may file a public

comment with the Board, regardless of whether the person has already filed a public comment.

See

5 ILCS 100/5-40(b) (2008) (Illinois Administrative Procedure Act). The Board encourages

persons to file public comments on these proposed amendments. The docket number for this

rulemaking, R06-20, should be indicated on the public comment.

Public comments must be filed with the Clerk of the Board. Public comments may be

filed at the following address:

Pollution Control Board

John T. Therriault, Assistant Clerk

James R. Thompson Center

100 W. Randolph Street, Suite 11-500

Chicago, IL 60601

In addition, public comments may be filed electronically through the Board’s Clerk’s Office On-

Line, or COOL, at www.ipcb.state.il.us.

Any questions about electronic filing through COOL

should be directed to the Clerk’s Office at (312) 814-3629.

Please note that all filings with the Clerk of the Board must be served on the hearing

officer and on those persons on the Service List for this rulemaking. Before filing any document

with the Clerk, please check with the hearing officer or the Clerk’s Office to verify the most

recent version of the Service List.

AGENCY’S FIRST NOTICE COMMENT (PC 44)

On June 13, 2008, the Agency filed comments “in response to the Board’s request for

comments on amending the tracking requirements of 35 Ill. Adm. Code 739.” PC 44 at 1;

see

Proposed Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35 Ill.

Adm. Code 808, 809, R06-20, slip op. at 1-2, 55-56 (May 1, 2008). The Agency first states that

it “objects to any change in the language of Part 739 that would make Part 739 less stringent than

the federal regulations.” PC 44 at 1;

see

40 C.F.R. 279. Second, the Agency states that it also

“objects to any change in the manifesting procedures that would allow other non-hazardous

special wastes to be added to used oil with the resulting mixture labeled and tracked as only used

oil.” PC 44 at 1;

see

35 Ill. Adm. Code 739.146, 739.156, 739.165, 739.174 (Tracking).

Third, the Agency argues that special wastes other than used oil must be managed at a

facility permitted under Part 807, while used oil may be may be managed at a non-permitted

used oil facility under Part 739. PC 44 at 2. The Agency states that it “objects to any change in

the language of Part 739 that would allow special waste other than used oil, including a mixture

of used oil and other special waste, the receipt of which is subject to permitting under Part 807[,]

to be managed at an un-permitted facility operating solely under the used oil regulations at Part

739.”

Fourth, the Agency suggests that it doubts any reason offered in support of amending the

used oil tracking requirements. PC 44 at 2, citing 35 Ill. Adm. Code 739. The Agency first

argues that it would be “irrelevant” to do so because mixtures of used oil and other special waste

are subject to regulations other than Part 739. PC 44 at 2. Second, the Agency argues that, if the

intent is to exempt such mixtures from having to obtain a manifest, it cannot be effectuated by

amending Part 739.

., citing 35 Ill. Adm. Code 808, 809. The Agency restates its position that

these mixtures should not be exempt from manifesting. PC 44 at 2. Finally, the Agency argues

that, “[i]f the intent is to exempt all special waste from manifests[,] then that issue must be

addressed in Parts 808 and 809 and not in Part 739.”

The Agency concludes by requesting “that the Board find that no amendments are needed

to Part 739 and no additional amendments are need to Parts 808 and 809.” PC 4 at 2-3. The

Agency states that it “supports the rules proposed by the Board in its First Notice Proposal dated

May 1, 2008 and requests that the Board proceed with adopting the rules.”

. at 3.

NORA’S PROPOSAL

On September 22, 2008, NORA also responded to the Board’s request for comments on

amending the tracking requirements of 35 Ill. Adm. Code 739. Harris Test. at 1;

see

Proposed

Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code

808, 809, R06-20, slip op. at 1-2, 55-56 (May 1, 2008). NORA proposed specific amendments

to Part 739. Harris Test. at 14-17. Also on September 22, 2008, the Board received testimony

on behalf of NORA’s proposal from Mr. Lenz.

See generally

Lenz Test. The Board in the

following subsections summarizes NORA’s proposal and the arguments mustered in support of

it.

Proposed Exemptions

NORA argues that USEPA distinguishes used oil intended for recycling from hazardous

waste because such used oil is a “valuable commodity.” Harris Test. at 3;

see generally

C.F.R. 279. NORA further argues that USEPA regulations seek to encourage market forces that

foster used oil recycling. Harris Test. at 3. NORA characterizes manifests as an integral part of

hazardous waste management but claims that they “were considered unnecessary for properly

regulating used oil.”

see

Tr.3 at 10. NORA stresses that USEPA’s used oil regulations

require tracking, documentation, and reports to regulators. Harris Test. at 3, citing 40 C.F.R.

279. NORA describes these used oil requirements as “necessary, useful, but not unduly

burdensome.” Harris Test. at 3;

see

Tr.3 at 10. NORA argues that requiring manifests for

shipments of used oil is unnecessary, burdensome, and costly.

See

Harris Test. at 4.

At the third hearing, Mr. Harris testified that NORA’s proposal addresses the paperwork

requirements involved in manifests and “does not attempt to rewrite the special waste regulations

or permit regulations or permit requirements or anything of the kind.” Tr.3 at 11. Mr. Harris

emphasized that NORA offers specific exemptions from the manifest requirements and “not

from the balance of the special waste requirements.” Tr.3 at 27, 28. In response to a Board

question, he agreed that the proposed exemption from the manifest requirements was not

conceived as a way to remove used oil and materials regulated as used oil from the category of

special waste.

. at 121-22. He noted that NORA’s proposed tracking document includes

“additional special waste information.”

. He concurred that any special waste handling and

disposal requirements would continue to apply.

. at 122.

NORA notes that the Board’s May 1, 2008, first-notice proposal provided relief from

manifesting and permitting requirements for used oil “defined by and managed in accordance

with Part 739.”

See

In the Matter of: Proposed Amendment of the Board’s Special Waste

Regulations Concerning Used Oil: 35 Ill. Adm. Code 808, 809, R06-20, slip op. at 1, 56 (May 1,

2008); Harris Test. at 4. NORA summarizes a continuing disagreement with the Agency over

the appropriate scope of this relief: “NORA proposes that materials regulated as used oil be

exempt from the manifesting and special waste hauling permit requirements; Illinois EPA wants

to continue to impose the manifest requirement on such materials.” Harris Test. at 5.

In addition to used oil defined by and managed according to Part 739, NORA proposes

that four specific categories of material regulated as used oil should also be exempt from the

special waste manifesting and special waste hauling permit requirements. Harris Test. at 5.

NORA stated that it did not propose to exempt these categories from various special waste

requirements and seeks only a manifest exemption. Tr.3 at 11.

Conditionally Exempt Small Quantity Generator Waste

First, NORA proposes to exempt from these requirements “[u]sed oil generated by a

conditionally exempt small quantity generator [(CESQG)] containing the exempt hazardous

waste from such generator, provided that mixture contains more than fifty percent used oil by

volume or weight.”

. at 5, 14, citing 35 Ill. Adm. Code 739.110(b)(3);

see

Tr.3 at 12.

Although NORA expresses some misgivings about such hazardous waste mixtures, it argues that

this exemption is consistent with federal regulations that Illinois has adopted and that its

members apply. Tr.3 at 12, 13; citing 40 C.F.R. 279;

see

Tr. 3 at 47 (characterizing mixtures as

regulatory and economic issues). NORA suggests that this exemption stems from the

administrative difficulty in applying hazardous waste regulations to a large number of small

generators.

See

Tr.3 at 12-13.

At the third hearing, counsel for the Agency asked why NORA’s proposal set this

threshold at 50 percent.

See

Tr.3 at 30. NORA responded that the Agency was concerned that,

under the original proposal, mixing a small quantity of use oil with other material such as

CESQG waste would allow the mixture to be managed as used oil.

. NORA stated that it

sought to address this concern by requiring that the mixture “have a significant used oil

component if it’s going to be handled under the used oil recycling system.”

. NORA proposed

the 50 percent threshold as a compromise figure addressing that concern.

. at 30-32.

Counsel for the Agency also asked how these mixtures of used oil and CESQG waste

would undergo recycling. Tr.3 at 30. Mr. Ray first indicated that generators do not typically

mix used oil with these materials, which are most often chlorinated hydrocarbons, non-

chlorinated hydrocarbons, and small quantities of paint wastes.

. at 34-35. He argued that

USEPA allows such mixtures “to make it particularly easy for the smallest generators to manage

their waste without giving them incentive to dump things out back behind the shop.”

. Mr.

Ray stated that recyclers manage such mixtures by picking them up with other used oil,

aggregating larger quantities.

. at 35. He argues that this practice effectively dilutes the

CESQG waste, ultimately placing it into the supply of used oil fuel with concentrations below

levels considered safe.

In response to a question from the Board, Mr. Ray agreed that current regulations allow

this management of mixtures obtained from separate generators as long as each load has a

manifest. Tr.3 at 50. Both used oil and mixtures of used oil with other materials require a

manifest and, with a proper manifest, can be managed under the Board’s Part 739 regulations.

see

35 Ill. Adm. Code 739. Mr. Harris suggested that NORA proposes no change to those

used oil management standards but seeks to exempt four specific categories of mixtures “from

the manifest requirements and only the manifest requirements.” Tr.3 at 51.

Characteristic Hazardous Waste

Second, NORA suggests an exemption from these requirements for “[u]sed oil containing

characteristic hazardous waste, with a BTU [British thermal units] per pound content greater than

5000, where the characteristic (

e.g.

, ignitability) has been extinguished, and both the used oil and

the characteristic hazardous waste has been generated and mixed by the same generator.” Harris

Test. at 5, 14, citing 35 Ill. Adm. Code 739.110(b)(2), 739.100(b)(3);

see

Tr,3 at 14. NORA

argues that this proposed exemption is also consistent with current federal regulations. Tr.3 at

14, citing 40 C.F.R. 279.

At the third hearing, counsel for the Agency asked NORA to explain this threshold of

5,000 BTU per pound content. Tr.3 at 56. NORA indicated that it is a level established by

USEPA above which material is considered to have value as fuel.

. NORA also addressed the

enforceability of this threshold. Mr. Harris notes that RCRA and the proposed regulations

require generators to characterize their wastes properly.

. at 58-60;

see

Harris Test. at 15

(proposed Section 739.124). He argues that, in the absence of any information contradicting a

generator’s certification that waste has a BTU content per pound greater than 5,000, recyclers are

entitled to rely on the certification. Tr.3 at 57, 62-63, 112-15. He also stresses recyclers’

familiarity with the generators they serve.

See id

Mr. Ray also addressed these mixtures of used oil and characteristic hazardous waste,

material he states he does not frequently see.

See

Tr.3 at 33. Mr. Ray stressed that such a

mixture had to meet specifications for a variety of contaminants before it can be sold as used oil

fuel.

. at 34. He stated that his firm would test the mixture before shipping it to a third party,

which would then burn it according to its own permits.

. Generally, he argues that, if the

characteristic hazardous waste is diluted as allowed by the federal and state regulations, then it is

burnable material sold according to used oil fuel specification.

. at 33

Fuel

Third, NORA proposes to exempt from these requirements “[m]ixtures of used oil and

fuels, normal components of fuels, or other fuel products.” Harris Test. at 5, citing 35 Ill. Adm.

Code 739.110(d). NORA states that this exemption would typically apply to a mixture with

diesel fuel or a similar fuel product. Tr.3 at 13. NORA indicates that such a mixture “is not a

regular practice” but does occur and can be handled as used oil.

At the third hearing, counsel for the Agency noted that NORA’s proposed language

regarding “normal components of fuels” appears to expand upon the language of Part 739 and

the federal RCRA rule. Tr.3 at 128-29;

see

Harris Test. at 5. Mr. Harris indicated that NORA

intends its language to clarify the application of the proposed manifest exemption. Tr.3 at 129-

30 (considering xylene and natural gas condensate).

Wastewater

Fourth, NORA also recommends an exemption for “[u]sed oil containing nonhazardous

wastewater provided there is a recoverable (

i.e., de minimus

) quantity of used oil.” Harris Test.

at 5, 7, 15, citing 35 Ill. Adm. Code 739.110(f). NORA emphasizes that it proposes only an

exemption from the manifest requirement and not from permit requirements. Tr.3 at 14-15.

NORA states that the material still “would go to a facility which handles wastewater, separates

the used oil out, discharges the wastewater in accordance with a permit and Clean Water Act

requirements, and recovers the used oil.”

see also id

. at 42-45 (Ray testimony on recycling

oil-water mixtures).

At the third hearing, the Agency asked NORA to be more specific about what it meant by

“

de minimus

or recoverable quantities of used oil.” Tr.3 at 85. Mr. Harris responded that such

mixtures are handled by facilities capable of separating the elements of the mixture from one

another, cleaning the water, and then discharging it under the requirements of the federal Clean

Water Act.

. at 86, 98. He further indicated that the recovered used oil, whether in a large or

small quantity, is processed into a re-refined or fuel product.

. Mr. Ray suggested that this

proposed exemption would commonly address “mop water or a low-quality water” and

suggested that it is better managed through the used oil program than if the generator simply

disposed of it.

See id

. at 87-88. He also described an oil/water separator as a typical source of

this type of mixture.

See id

. at 99-101, 103-04. Mr. Ray also summarized NORA’s position on

this specific proposed exemption:

[w]e’re not seeking to have our generators get new permissions that they don’t

already have to mix materials together. . . . We’re saying that the materials that

we pick up, if they are the types of things that exist in state law as used oil, which

in our judgment includes mixtures of oil and water with recoverable used oil, we

should be able to simplify the paperwork associated with that.

. at 105.

Mr. Ray agreed that NORA proposed no change in collection techniques, processing, or

treatment.

. at 106.

Summary of Proposed Exemptions

NORA claims that these four proposed exemptions satisfy specific criteria. Harris Test.

at 5. First, NORA argues that “they are recognized in Part 279 as being regulated as used oil.”

. at 6, citing 40 C.F.R. 279. Second, NORA claims that the materials included in these four

proposed categories will still be subject to the used oil management standards and other

applicable regulations. Harris Test. at 6. Third, NORA argues that these materials “are and will

continue to be properly recycled.”

. Fourth, NORA states that its proposed limits address the

Agency’s concern that exemptions might apply to mixtures containing only a small quantity of

used oil.

. In addition, NORA lists several materials that are not included in its proposed

exemptions and that would continue to require a special waste manifest and hauling permit:

mixtures of used oil and hazardous waste where the mixture exhibits a hazardous

waste [characteristic]; mixtures of used oil and any listed waste; mixtures of used

oil [and] any special waste that does not have a minimum BTU per pound content

of more than 5000; used oil containing over 1000 parts per million of halogenated

solvents (unless the presumption has been successfully rebutted); wastewater that

does not contain recoverable quantities of used oil; and post use mixtures of used

antifreeze and used oil. Harris Test. at 6.

NORA argues that it would be “confusing, inefficient, time-consuming and burdensome”

to manage materials defined as used oil in one manner and materials regulated as used oil in

another. Harris Test. at 7. NORA states that, while some trucks collecting used oil have

separate compartments for the different materials, “most do not.”

. NORA further states that

“[t]hose that do have segregated compartments will not have enough compartments to segregate

each of the ‘regulated as used oil’ categories that would normally be collected in a day’s

collection activities.”

. NORA also argues that such a bifurcated collection system would be

unique to Illinois.

. at 8. In addition, NORA emphasizes the cost of manifesting materials

regulated as used oil. NORA expresses unease that a transporter may conclude that a small

amount of such material does not warrant the burden of segregating, manifesting, and managing

it under the special waste regulations. NORA opines that “the generator is likely either to ‘hide’

such waste in a larger quantity of ‘defined’ used oil or find another method of getting rid of it.”

Harris Test. at 8. NORA argues that these options do nothing to further the Agency’s professed

goals.

Proposed Tracking Document

Although NORA opposes special waste manifest and permit requirements for certain

materials regulated as used oil, it acknowledges the need to track used oil. Harris Test. at 9,

citing 40 C.F.R. 279. NORA states that existing regulations are sufficient to perform this

tracking, but it offers a proposal expanding those regulations and satisfying the Agency’s

objectives. For shipments of materials regulated as used oil and falling under its four proposed

exemptions, NORA proposes what is effectively an enhanced tracking document. Harris Test. at

9, 15-16. NORA states that, “[o]n this tracking document, the transporter can comply with all

U.S. Department of Transportation (USDOT) tracking requirements, all of the customer

(generator) or other business information needed by the transporter, and

all additional relevant

information that would be set forth in a manifest.

”

. at 9 (emphasis in original);

see

Tr.3 at 15-

17, 69, 78-80; Exh. 19 (draft sample tracking document). NORA proposes that a transporter

retain these documents for not less than three years and make them available to the Agency for

inspection.

. at 15, 77. NORA argues that this approach eliminates duplicate paperwork,

promotes efficiency, and “creates a level playing field with generators and transporters in

adjacent states.”

. at 9. NORA further argues that consolidating this information into a single

documents results in “important cost savings.” Tr.3 at 21.

In his testimony at the third hearing, Mr. Appelt stated that Safety-Kleen’s analysis

shows that each manifest costs approximately $18, including acquisition, distribution, separation,

storage, and labor. Tr.3 at 176. He noted that Safety-Kleen conducted this analysis to determine

any advantages of electronic manifesting.

. Mr. Appelt stated that, in the preceding 12

months, his company completed approximately 30,000 manifests for automotive customers and

approximately 2,700 for industrial customers.

. at 187. He concluded that, if the Board

adopted NORA’s proposal, those 30,000 automotive customers would no longer require

manifests.

. at 187, 189.

In response to a Board question at the third hearing, Mr. Harris stated that, since this

document applies only to the four categories of mixtures described above and proposed for a

manifest exemption, the regulations should require that the proposed document describe these

four categories. Tr.3 at 83. In addition, he agreed that the regulations should require that the

document include all of the information now on the manifest from which it seeks the exemption.

. at 84-85;

see

Harris Test. at 16 (proposed Section 739.146(a)(6)). In his testimony at the

third hearing, Mr. Appelt indicated that he did not wish to have the Board prescribe a new

tracking document and would prefer simply to have the Board specify the data it seeks. Tr.3 at

174. He elaborated that “we’d like the regulations to identify what data elements are you

looking for, and then each company would develop its own form to include that.”

. at 175.

NORA’s Response to Agency Objections

Noting that the Agency has expressed various objections to NORA’s position and that the

Board has quoted those objections, NORA seeks to address them. First, NORA cites the view

that its proposal “would allow waste streams that have chemical and physical properties

completely different from used oil to be transported and managed like used oil even when those

practices are not appropriate for that waste stream.” Harris Test. at 9-10, citing Proposed

Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code

808, 809, R06-20, slip op. at 29 (May 1, 2008). NORA argues that its proposal follows USEPA

regulations adopted in 46 other states to regulate mixtures. Harris Test. at 10, citing 40 C.F.R.

279. NORA further argues that USEPA “carefully evaluated what materials were normally

mixed with used oil by generators and which did not interfere with legitimate recycling.” Harris

Test. at 10. NORA claims that it is only materials satisfying this careful evaluation that are

regulated as used oil.

NORA also notes the Agency’s view that an enhanced tracking document would vary

from company to company and that the contents of such a document are not required by

regulation. Harris Test. at 10. NORA responds that its proposal seeks to amend the used oil

tracking regulations specifically to provide that a tracking document encompass all of the

relevant information under both Part 739 and Part 809.

. at 10, 15, 16; citing 35 Ill. Adm.

Code 739, 809. Also, NORA suggests that the Agency is disingenuous in claiming that the

Agency’s position requires no additional paperwork. Harris Test. at 10. NORA acknowledges

that the information required by the current regulations overlaps to some extent but stresses that

those regulations require completion of three separate forms.

NORA discounts the Agency’s view that NORA’s position allows a mixture of “defined”

used oil and material regulated as used oil to be “received by used oil facilities that have less

stringent permitting and siting requirements than special waste facilities.” Harris Test. at 11,

citing Proposed Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35

Ill. Adm. Code 808, 809, R06-20, slip op. at 31 (May 1, 2008). NORA argues that a particular

mixture either is or is not acceptable under the permit of a particular facility. NORA suggests

that facilities will not accept mixtures that they are not capable of processing.

See

Harris Test. at

11. NORA states that if “has never had any intention of circumventing any facility’s permit

requirements.”

NORA addresses the Agency’s view that “many facilities also profit by collecting

generator fees and disposing of the mixtures as low grade used oil fuel.” Harris Test. at 11,

citing Proposed Amendment of the Board’s Special Waste Regulations Concerning Used Oil: 35

Ill. Adm. Code 808, 809, R06-20, slip op. at 32 (May 1, 2008). NORA argues that, if a

transporter lawfully sells such fuel to a buyer with an appropriate burner, then the transaction is

acceptable and does not support the Agency’s view. Harris Test. at 11-12. NORA further argues

that, if the used oil sale is not lawful, then “there is nothing in NORA’s proposal on replacing the

manifest with a tracking document that would make it lawful.”

. at 12. NORA states that, if

the Agency is aware of such unlawful activities, “it has an obligation to proceed with the

appropriate enforcement actions.”

Finally, NORA discounts the Agency’s argument that mixtures of used oil and the

constituents of materials regulated as used oil “could reduce viscosity or BTU content or increase

ash content of emissions from burning the oil.” Harris Test. at 12, citing Proposed Amendment

of the Board’s Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code 808, 809,

R06-20, slip op. at 33 (May 1, 2008). NORA argues that, in the industrial fuel market, both

buyers and sellers know specifications relating to these factors because the price of the used oil

fuel and the transaction itself depend upon that information. Harris Test. at 12. NORA further

argues that buyers and sellers will know this data before a transaction takes place regardless of

whether the mixture requires a manifest.

See id

. Finally, NORA also argues that “ash emission

from burning is less a function of ash content of the fuel than the proper operation of air

pollution control such as baghouses.”

Summary of NORA Proposal

NORA concludes that the Agency’s position results in a bifurcated used oil management

system marked by unnecessary cost and inefficiency without any compensating environmental

benefit. Harris Test. at 12. NORA argues that, under its own proposal, “all of the information

that IEPA asserts that it needs will be available to it on a tracking document that will

simultaneously serve the information needs of IEPA, U.S. DOT, the generator and the

transporter.”

. at 12-13.

Lenz Testimony in Support of NORA Proposal

Through testimony filed by Mr. Lenz, Future Environmental states that it “fully supports

and endorses NORA’s proposed regulatory language.” Lenz Test. at 1. Future Environmental

argues that the proposal appropriately regulates mixtures of used oil and other special wastes

without requiring used oil recyclers to obtain and operate under Part 807 permits.

. at 3;

see

Ill. Adm. Code 807.

Future Environmental acknowledges that the Board’s original first-notice proposal may

encourage out-of-state entities to recycle some quantity of used oil in Illinois because used oil

defined by and managed according to Part 739 would be exempt from special waste manifest and

hauling permit requirements.

. at 3;

see

35 Ill. Adm. Code 739.100. However, Future

Environmental argues that Illinois recyclers “would be at a severe competitive disadvantage” in

recycling mixtures of used oil and other special wastes. Lenz Test. at 3. Future Environmental

claims that, if these mixtures can no longer be managed as used oil, then “all used oil recyclers

will be forced to adopt Part 807 permits because post use mixture of water is virtually in all used

oil.”

. at 3-4. “Out of state competitors would not face the burdens or expense of managing

used oil and other wastes commonly found mixed with used oil, such as water, at facilities

requiring any of the time, energy and expense that Illinois Part 807 permits will require.”

see

35 Ill. Adm. Code 807 (solid waste permits and landfills).

Future Environmental argues that the Board has already considered an Agency proposal

to require used oil facilities to obtain Part 807 permits. Lenz Test. at 3;

see

Amendments to

Permitting for Used Oil Management and Used Oil Transport 35 Ill. Adm. Code 807 and 809,

R99-18, slip op. at 10 (Dec. 16, 1999). Future Environmental claims that the Board dismissed

this proposal in 1999 in part because of “the competitive disadvantage it would impose on in

state recyclers.” Lenz Test. at 5. Future Environmental also claims that the Board’s dismissal

relied upon existing State and federal used oil regulations.

. Future Environmental states that

these regulations have been expanded and strengthened.

AGENCY’S POST-HEARING COMMENTS (PC 70)

In post- hearing comments filed on December 15, 2008, the Agency argues that the

definition of “used oil” is limited to oil that has been contaminated through use. PC 70 at 1;

see

35 Ill. Adm. Code 739.100. The Agency further argues that “[o]ther special wastes that are

added to used oil after it has been generated, that are not themselves used oil, do not become

used oil, but become regulated as used oil because they contain used oil.” PC 70 at 1. The

Agency claims that, because these other special wastes may have different characteristics, they

may require different management after they are separated from used oil.

The Agency notes that NORA has proposed expanding the exemption from special waste

manifesting and permitting requirements to four categories of post-use mixtures of used oil and

other special waste. PC 70 at 2;

see

Harris Test. at 5, 14-15. The Agency argues that “these

other wastes, unless otherwise exempt, must be subject to the manifesting and permitting

requirements of Parts 808 and 809.” PC 70 at 1;

see

35 Ill. Adm. Code 808, 809. The Agency

also argues that facilities treating these other wastes should not be exempt from obtaining site

approval and permits under Part 807. PC 70 at 2;

see

35 Ill. Adm. Code 807. The Agency

claims that its position fosters proper recycling and the proper management of wastes added to

used oil by encouraging separation of waste streams. PC 70 at 2. The Agency suggests that

NORA’s position will result in burning that other waste with used oil or treating it in a

wastewater treatment plant, both of which would thwart recycling.

. The Agency “objects to

NORA’s proposed four broad categories of mixtures being included in the manifest and hauling

permit exemption set forth in the Board’s first notice proposal.”

In the following subsections, the Board summarizes the arguments made by the Agency

in its post-hearing comment.

Proposed Exemptions

The Agency states that NORA may be somewhat confused about the Board’s original

first-notice proposal and the mixtures that proposal would exempt from manifest requirements.

PC 70 at 3. The Agency first argues that used oil defined by and managed in accordance with

Part 739 is exempt “regardless of water content.”

. The Agency also argues that “small

quantity wastes that are exempt from manifesting before mixture with used oil would remain

exempt. . . .”

., citing 35 Ill. Adm. Code 809.210 (General Exemption from Nonhazardous

Special Waste Hauling Permit Requirements). The Agency further argues that USEPA has

clarified that “used oil collected from waste water treatment units would be exempt under the

Board’s first notice proposal.” PC 70 at 3, citing

., Att. A.

Generally, the Agency notes that “[t]here are currently manifest exemptions in place for

both hazardous and non-hazardous special waste.”

Id.

at 3. The Agency claims that, if used oil

as defined by Part 739 is mixed with a waste that is exempt from manifesting, then the mixture

of the two exempt wastes would not require a manifest.

Id.

Conditionally Exempt Small Quantity Generator Hazardous Waste

The Agency states that used oil mixed with conditionally exempt small quantity generator

(CESQG) hazardous waste might be cutting oil or other oils contaminated by use but containing

mostly water and only trace amounts of oil. PC 70 at 3-4. The Agency argues that the mixture

will behave like the CESQG hazardous waste or water and not like oil.

. at 4.

The Agency states that CESQG hazardous waste is now exempt from manifests and that

it would continue to be exempt when mixed with used oil as defined by and managed in

accordance with Part 739. PC 70 at 4, citing 35 Ill. Adm. Code 721.105 (Special Requirements

for Hazardous Waste Generated by Small Quantity Generators). The Agency argues that, if the

CESQG hazardous waste is mixed with waste other than used oil as defined by and managed in

accordance with Part 739, the mixture may need to be manifested and managed at a permitted

special waste facility. PC 70 at 4, citing 35 Ill. Adm. Code 809.

The Agency notes the possibility that an entity that is a small quantity generator of both

hazardous waste and non-hazardous special waste could mix the two wastes and become a large

quantity generator. PC 70 at 4. The Agency argues that “[r]egulations are already in place to

address this issue and the Illinois EPA does not believe it is appropriate to modify the hazardous

waste and special waste determination regulations or large quantity generator status regulations

through a used oil manifest exemption.”

Characteristic Hazardous Waste

The Agency states that used oil mixed with characteristic hazardous waste might be

cutting oil or other oils contaminated by use but containing mostly water and only trace amounts

of oil. PC 70 at 3-4. The Agency argues that the mixture will behave like the characteristic

hazardous waste or water and not like oil. PC 70 at 4-5.

The Agency states that, when characteristic hazardous waste is mixed with used oil as

defined by Part 739, then the mixture is exempt from RCRA and managed under the used oil

standards to the extent that the characteristic is extinguished. PC 70 at 5. The Agency argues

that, because the characteristic hazardous waste requires a manifest before it is mixed, the

mixture remains exempt under RCRA but becomes subject to requirements for manifests,

hauling permits, and facility permits.

., citing 35 Ill. Adm. Code 807, 808, 809.

The Agency responds to NORA’s claim that federal regulations “allow some quantity of

hazardous waste when mixed with used oil to be regulated as used oil.” PC 70 at 5. The Agency

stresses that USEPA allows states to adopt more stringent standards.

. The Agency states that

“[t]he State of Illinois has chosen to implement a special waste program to ensure that these

wastes are managed properly at a permitted facility that is subject to local siting.”

Fuels

The Agency states that unused fuels in used oil include off-specification fuel such as that

removed during aircraft maintenance or fuel contaminated with water. PC 70 at 5. The Agency

claims that unused fuel contained in used oil is not a special waste because it is not intended for

disposal.

. The Agency instead presumes that the unused fuel will be burned, the original

intended use.

. The Agency argues that “[f]uels would not be subject to special waste

manifesting but would be subject to Part 739 when mixed with used oil.”

The Agency claims that NORA’s proposal expands the exemption to cover normal fuel

components. PC 70 at 6. The Agency further claims that these components could have been

used as a solvent and then added at high concentrations to used oil.

. The Agency argues that

such a mixture “may contain used oil as defined in Part 739 but will be mostly water combined

with spent solvent or some other contaminated chemical.”

. The Agency further argues that

such a mixture differs from a normal used oil stream and should be managed only at a permitted

special waste facility.

The Agency argues that USEPA “has already explained that even petroleum based wastes

are not used oil if they were not used as a lubricant.” PC 70 at 6, citing PC 70, Att. 2 (“The

Agency continues to view spent petroleum-based solvents as wastes separate and distinct from

used oil, because the source of contamination in used petroleum-based solvents is difficult to

determine.”). The Agency claims that use as a solvent may generate contaminants that are not

normally associated with used oil.

. at 6. The Agency also questions NORA’s proposed

exemption by stating that the proposal does not define the term “normal component of fuel.”

Id.

Wastewater

The Agency takes the position that wastewater “mixed with used oil through use or

unintentional contamination during collection or storage by the generator is subject to Part 739

and should be allowed a special waste manifesting exemption.” PC 70 at 6. The Agency

nonetheless believes that such mixtures would result only from a limited number of

circumstances: “[o]ne is cutting fluids that contain a lot of water, the second is used oil that

contains waster due to storage contamination, and the third is recovery of used oil spills.”

. at

6-7.

The Agency argues that NORA’s proposal exempting mixtures containing

de minimus

amounts of used oil fails to “identify the amount of oil that must be in the waste water to allow

the waste stream to be manifest exempt.” PC 70 at 7. The Agency notes NORA’s testimony that

the “recoverable amount of oil is different for different receiving facilities.”

., citing Tr.3 at

85-87 (Harris and Ray testimony). The Agency argues that this requires a generator to know a

receiving facility’s abilities in order to determine whether an exemption applies to a particular

mixture. PC 70 at 7. The Agency also argues that NORA’s proposal does not require the

wastewater to be present as a result of the use of the oil.

. The Agency claims that “the source

of the wastewater is limitless and the receiving facility would have no idea of what chemical

constituents would be in the waste water.”

Post-Use Mixtures Generally

The Agency argues that NORA’s proposal may encourage the mismanagement of waste

because its language “fails to exclude other waste from the exemption if added to the recyclable

oil for the sole purpose of disposing of the other waste.” PC 70 at 7. Specifically, the Agency

claims that the proposal will cause the other wastes either to “be discharged through a

wastewater treatment system or burned with used oil,” regardless of whether those are the

appropriate disposal.

., citing Tr.3 at 32-33, 41-42. The Agency states that NORA’s proposal

does not further the Agency’s goals of discouraging mixing other wastes with used oil and

encouraging the separate recycling of different waste streams. PC 70 at 7-8.

The Agency claims that USEPA does not encourage mixture of used oil with other

wastes. PC 70 at 8. The Agency further claims that “USEPA has also developed guidance that

clearly encourages used oil generators to keep their used oil separate from other wastes.”

;

see

., Atts. 3, 4. The Agency also argues that Part 739 requires used oil tanks, containers, and fill

pipes to be marked “used oil” in order “to prevent the accidental dumping of other wastes into

the used oil.”

. at 8. The Agency claims that, because mixing used oil with other wastes is

disfavored, those mixtures “should not be encouraged by providing a manifest exemption as an

incentive to mix these wastes.”

The Agency argues that mixing used oil with other special waste may alter the

characteristics of the used oil. PC 70 at 8. The Agency states the position that, before each

instance of mixing another waste stream with used oil, “the generator should determine if each

waste stream is subject to manifesting.”

. The Agency claims that, “[i]f any of the waste

streams are subject to manifesting before mixing, the resulting mixture is subject to

manifesting.”

. The Agency further claims that “[i]f mixing the waste streams together

changes the characteristics of the waste, the mixing activity is treatment and the generator must

re-evaluate the resulting waste stream and manage it in accordance with the applicable

regulations.”

The Agency argues that, under the Board’s first-notice proposal, wastes that are not

defined as used oil and not otherwise exempt from manifesting would not become exempt from

manifesting if they are intentionally added to used oil after the used oil is generated. PC 70 at 9.

The Agency states that it remains opposed to the exemption of such mixtures from manifesting

and hauling permits.

. Suggesting that NORA’s proposal would exempt an unreasonable

number of such mixtures, the Agency claims that “the current available manifest exemptions and

the manifest exemption for used oil included in the Board’s first notice proposal, the Illinois EPA

believes that most used oil and appropriate used oil mixtures will be exempt from manifests if

the language in the Board’s first notice proposal is adopted.”

Costs of Manifest Exemption

The Agency notes that NORA has proposed to amend “the Part 739 tracking

requirements to include all the information the Illinois EPA or Board deems necessary to track

the shipments to the used oil recycler and to require the tracking and recordkeeping for the

generators, transporters, and receiving facilities.” PC 70 at 10. The Agency characterizes this

proposed document as a “free form manifest that would contain all of the information and be

subject to all of the recordkeeping requirements of a manifest, without the prescribed form of a

uniform hazardous waste manifest.”

. Although the Agency notes NORA’s intent to eliminate

duplicative paperwork from the used oil management system, the Agency expresses the belief

that NORA’s proposal “would actually create additional paperwork and burdensome testing for

the generators of used oil.” PC 70 at 10.

The Agency argues that used oil generators could avail themselves of a manifest

exemption only after determining the water percentage, BTU value, and amount of recoverable

oil in mixtures. PC 70 at 10. The Agency also argues that generators would be required to

maintain records of this testing in order to provide support for these determinations.

. The

Agency also claims that NORA’s proposal necessitates specific testing methods for determining

water and BTU content, without which “it will be difficult for the Illinois EPA to determine

compliance with the manifest exemptions.”

. The Agency discounts Mr. Lenz’s testimony

that a generator could obtain some of this information from a Material Safety Data Sheet

(MSDS). PC 70 at 10, citing Tr.2 at 63. The Agency states that the MSDS only identifies the

contents of a product before its use. PC 70 at 10. The Agency further states that none of the

information on an MSDS is required by law to be reported there.

., citing 29 C.F.R.

1910.1200(g). The Agency adds that “there is no governing body that routinely polices the

accuracy of MSDS.” PC 70 at 10.

The Agency also argues that NORA’s proposal would require generators to maintain

copies of NORA’s proposed manifest document. PC 70 at 11. The Agency claims that, “in the

Board’s first notice proposal, generators that were eligible for the used oil manifest exemption

would only be subject to the current used oil tracking requirements which do not require

generators to keep records.”

see

35 Ill. Adm. Code Subpart C (Standards for Used Oil

Generators). In addition, the Agency also notes that only used oil transporters, transfer facilities

and marketers testified on behalf of NORA’s proposal at the hearing on October 1, 2008. PC 70

at 11. The Agency suggests that other participants in the market for used oil may not support

NORA’s proposed changes.

The Agency notes NORA’s estimate that preparing, storing, and processing each

manifest cost $18. PC 70 at 11, citing Tr.3 at 176. The Agency argues that the additional

informational and recordkeeping requirements imposed by NORA’s proposal would reduce the

proposal’s cost savings to less than $18 per manifest. PC 70 at 11.

Summary of Agency’s Post-Hearing Comment

The Agency states that it “objects to any other wastes besides used oil as defined in and

managed in accordance with Part 739 being included in the manifest and hauling permit

exemptions set forth in the Board’s first notice proposal, objects to amending the tracking

requirements of Part 739, and recommends that the Board adopt the language in its first notice

proposal.” PC 70 at 12.

NORA’S POST-HEARING COMMENTS (PC 71)

In its post-hearing comment filed on December 15, 2008, NORA states that, since the

hearing on October 1, 2008, it has revised its proposal to amend Part 739 in order to clarify it but

has not made any substantive changes. PC 71 at 1. NORA also submits “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.”

NORA emphasizes that, for materials specified in its proposal, it seeks to replace a

special waste manifest with a shipping document containing all information requested by the

Agency, all information required by applicable USDOT regulations, and “any business

information deemed relevant by the transporter and/or receiving facility.” PC 71 at 1-2. NORA

further emphasizes that the Agency “does not want to receive copies of the manifest.”

see

Harris Test. at 4. NORA states that, under its proposal, the Agency effectively determines the

substantive content of the shipping paper while the “transporter would design the form to

accommodate its transaction information.”

. at 2. NORA argues that USDOT has for more

than 20 years followed a similar practice, which “allows business transaction information to be

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

. NORA further states that it provided an example of such a document to the Board at the third

hearing.

;

see

Exh. 19.

NORA argues that its 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.” PC 71 at 2 (emphasis in original). NORA claims, however, that its proposal “will

dramatically reduce the unnecessary paperwork burden currently imposed on generators and

transporters.”

NORA claims that it proposed amendments to Part 739 with the intention of reaching a

compromise with the Agency.

See

PC 71 at 2. NORA further claims, however, that “the

Agency has not indicated any interest in supporting a compromise proposal to the Board.”

Specifically, NORA states that the Agency has not responded to NORA’s counsel “and has not

approached NORA at any time since the October 1, 2008 hearing.”

NORA notes that it originally proposed “to replace the manifest for used oil (as defined)

and all categories of materials regulated as used oil with a shipping document.”

. at 3. NORA

argues that its “

original

proposal is more logical, straightforward, and efficient.”

. (emphasis

in original). NORA further argues that its original proposal is consistent with regulations

adopted in virtually every other state.

. NORA concludes by claiming that the proposal it

presented for the third hearing as a potential compromise with the Agency “merits the Board’s

approval.”

. Nonetheless, NORA suggests that, because the Agency has apparently dismissed

this specific proposal and has generally shown no interest in reaching a compromise, the Board

should consider adopting NORA’s original proposal.

. at 2-3.

AGENCY’S RESPONSE TO NORA’S POST-HEARING COMMENTS (PC 74)

On January 14, 2009, the Agency filed its response to NORA’s post-hearing comments.

In the following subsections, the Board summarizes the arguments made in the Agency’s

response.

Responses to NORA’s General Comments

The Agency first responds to NORA’s claim that the Agency has not responded to

NORA’s counsel and has not approached NORA since the third hearing on October 1, 2008. PC

74 at 1;

see

PC 71 at 2. The Agency states that, on April 23, 2008, it responded in writing to an

April 2, 2008 letter from NORA’s counsel. PC 74 at 1; citing

. at Attachment 1 (April 23,

2008 letter). The Agency further states that, while NORA and the Agency have not approached

or contacted one another since the third hearing, neither participant was required to do so.

Second, the Agency responds to NORA’s claim that the Agency does not wish to receive

copies of manifests and to NORA’s claim that “the use of a hazardous waste manifest for

shipments of non-hazardous material misrepresents the material to those who come in contact

with the shipments.” PC 74 at 1-2;

see

PC 71 at 2, 3. The Agency states that the Act provides

that “generators are not required to submit copies of non-hazardous special waste manifests to

the Illinois EPA.” PC 74 at 2, citing 415 ILCS 5/22.01 (2008). The Agency further states that

the Act requires manifests for shipments of non-hazardous special waste to be identical to

manifests required for shipments of hazardous waste. PC 74 at 2, citing 415 ILCS 5/22.01

(2008).

Third, the Agency responds to NORA’s claim that Illinois’ regulations should be more

consistent with the regulations adopted by USEPA and other states. PC 74 at 2;

see

PC 71 at 3.

The Agency argues that “Illinois is allowed to and has chosen to regulate special waste in a more

stringent manner than the federal government.” PC 74 at 2. The Agency suggests that, if NORA

wishes to repeal special waste regulations as they apply to used oil, then NORA should not

couch that proposal as a manifest exemption.

See id.

Fourth, the Agency responds to NORA’s claim that its proposed shipping paper would

encompass information required by the Agency, information required by USDOT, and business

information useful to the transporter. PC 74 at 2;

see

PC 71 at 1-2. The Agency claims that a

special waste manifest includes the information required both by the Agency and USDOT. PC

74 at 2. The Agency argues that it is only the business information that requires NORA to

propose an enhanced shipping paper.

. The Agency further argues that NORA’s proposed

shipping paper and a special waste manifest show “very little difference.”

. at 2-3;

see

Exh.

19. The Agency claims that “[m]uch of the additional information included on NORA’s form

may fit on the uniform non-hazardous waste manifest.” PC 74 at 3.

Fifth, the Agency responds to NORA’s claim that “its proposal does not affect any

substantive requirements and that its proposal would be protective of human health and the

environment because generators and transporters would not have to focus on duplicative and

expensive paperwork.” PC 74 at 3;

see

PC 71 at 2. The Agency argues that, because there is

little difference between a special waste manifest and NORA’s proposed shipping paper, the two

documents require “the same paperwork.” PC 74 at 3. The Agency further argues that NORA’s

proposal would actually increase the amount of paperwork for the used oil industry because

generators would have to document that mixtures contain 50% used oil by volume, or 5,000 btu,

or recoverable quantities of used oil.

. The Agency claims that NORA’s proposal does not

intend to reduce paperwork but actually seeks to relax special waste regulations.

. The

Agency characterizes this as “a substantive request.”

Sixth, the Agency responds to NORA’s claim that its proposal is a compromise. PC 74 at

see

PC 71 at 2-3. The Agency stresses that it “has supported a manifest and hauling permit

exemption for used as oil as defined in Part 739.” PC 74 at 4. The Agency argues that, if a

shipment of used oil contains other special waste, then a manifest prepared by the generator of

the mixture is necessary “to alert the transporter and receiving facility that other special waste

has been mixed with the used oil.”

. The Agency states that it “cannot support a manifest

exemption for mixtures of used oil and other special waste that should be received only at a

properly permitted special waste facility.”

Response to NORA’s Proposed Language

The Agency notes that NORA proposes an exemption providing that “[u]sed oil and the

following post use mixtures are subject to regulations as used oil under this Part, and are exempt

from 35 Ill. Adm. Code 808 and 809.” PC 74 at 4;

see

Harris Test. at 14. The Agency claims

that this language “would exempt used oil and material subject to regulation under Part 739 from

the definition of special waste and the special waste management requirements including the

reporting requirements.” PC 74 at 4. The Agency argues that USEPA characterizes these

reporting requirements as “essential.”

. at 4-5 (citing USEPA Web site). The Agency also

claims that such an exemption would require a new reporting system in order to meet the

requirements of Part 739.157(b), which is now met through the reporting requirements of Part

809.

. at 5, citing 35 Ill. Adm. Code 739.157(b). Claiming that this proposed language “goes

beyond the original manifest exemption,” the Agency argues “that used oil and other wastes

subject to regulation under Part 739 should remain special wastes subject to the reporting

requirements and should not be exempt from Parts 808 and 809.” PC 74 at 5.

The Agency also expresses doubt about NORA’s proposed exemption for

de minimus

recoverable amounts of used oil in wastewater. PC 74 at 5. The Agency states that “[t]he

amount of oil that would be considered recoverable varies from facility to facility depending on

the types of processes and efficiency of each component of the treatment system.”

., citing

Tr.3 at 85-87, 164. The Agency states that generators may send used oil mixtures to different

treatment facilities “depending on characteristics of the oil mixture and price of treatment.” PC

74 at 5. The Agency further states that these facilities may include not only used oil treatment

units but also “wastewater treatment units that use chemical and biological methods to treat the

water to meet discharge standards.”

. The Agency expressed the view that, “since the

generator may not know the end facility that receives the used oil and wastewater mixture, the

generator would not be able to determine if the wastewater had recoverable amounts if used oil

and therefore the generator could not determine if the waste was exempt from manifesting

requirements under the manifest exemption proposed by NORA.”

. at 5-6.

The Agency expressed additional reservations with NORA’s proposal. First, the Agency

notes that NORA does not define the terms “description” and “classification” in its proposed

tracking requirements. PC 74 at 6;

see

Harris Test. at 15, 16. Second, the Agency states that

NORA proposes language “requiring the use of a Part 809 special waste manifest for hazardous

waste when hazardous waste is subject to the uniform hazardous waste manifest requirements.”

PC 74 at 6;

see

Harris Test. at 16. Third, the Agency also notes that NORA’s proposal refers to

“an ASTM specification but does not fully identify or incorporate a specific ASTM

specification.” PC 74 at 6;

see

Harris Test. at 16.

Concluding, the Agency “recommends that the Board proceed to adopt its first notice

proposal.” PC 74 at 6.

NORA’S RESPONSE TO AGENCY’S POST-HEARING COMMENTS (PC 75)

On January 14, 2009, NORA filed its response to the Agency’s post-hearing comments

filed on December 15, 2008. NORA argues that the Agency has misread its proposal, the

professed intent of which is “to substitute a tracking document (usually referred to as a shipping

paper or bill of lading) for the hazardous waste manifest that is currently required for the

shipment of used oil and materials regulated as used oil.” PC 75 at 1. NORA further argues that

the Agency has transformed its proposal “into a devious attempt to subvert existing hazardous

waste regulations and foster sham recycling.”

In the following subsections, the Board summarizes the arguments made in NORA’s

response.

NORA notes the Agency’s statement that “[t]here are two main reasons for this decision

[to oppose NORA’s proposal]: to encourage proper recycling and to insure proper management

of wastes that are added to used oil. The Illinois EPA believes it is likely that other waste added

into the used oil will not be recycled but will be burned with the used oil or treated in a

wastewater treatment unit.” PC 75 at 2, citing PC 70 at 2. NORA first responds by arguing that

its proposal only replaces the manifest with a tracking document containing all of the

information that the Agency claims to need to conduct proper oversight. PC 75 at 2. NORA

further argues that its proposal does nothing to change methods for managing and recycling used

oil.

Id.

Second, NORA argues that USEPA has concluded that burning used oil for energy

recovery is a “legitimate form of recycling under Part 739.”

., citing PC 70, Att. 3 (USEPA

materials attached to Agency post-hearing comments). Third, NORA claims that the high cost of

wastewater treatment provides a strong disincentive to mix other materials into loads of

wastewater. PC 75 at 2. NORA further argues that, even if a mixture of used oil and wastewater

undergoes wastewater treatment, that treatment still allows for proper recycling of the non-water

materials.

. at 2-3. Fourth, NORA claims that the Agency has presented no evidence “that

there is or has been any abuse of burning [used oil] for energy recovery or wastewater treatment,

thereby precluding ‘proper recycling or proper management.’”

. at 3. Finally, NORA argues

that the Agency “has completely failed to demonstrate that substituting a tracking document for a

manifest would lead to any improper recycling or management.”

. (emphasis in original).

NORA also notes the Agency’s statement that “[t]he Board’s proposed language in the

first notice exempts all used oil as defined in and managed in accordance with Part 739

regardless of water content.” PC 75 at 3, citing PC 70 at 3. NORA first responds by concurring

“enthusiastically” and agreeing that the Agency’s position applies both to mixtures resulting

from use and from post-use mixtures. PC 75 at 3. NORA states that it defers to the Agency’s

position and “withdraws the component of its proposal that would require an oil/water mixture

contain a minimum of 50 percent used oil in order to be eligible for the manifest exemption.”

Second, NORA claims that the Agency, based on its comment on this issue, appears to believe

that it is not necessary to manifest this category of materials.

. Third, NORA argues that this

comment negates “contradictory” statements in the Agency’s post-hearing comment.

., citing

PC 70 at 7, 10.

NORA also notes the Agency’s statement that “it is Illinois EPA’s position that small

quantity generators that are exempt from manifesting before mixture with used oil would remain

exempt under the Board first notice proposal. . . .” PC 75 at 3, citing PC 70 at 3. NORA first

responds by concurring “enthusiastically” with this position. PC 75 at 3. Second, NORA claims

that the Agency, based on its comment on this issue, appears to believe that it is not necessary to

manifest this category of materials.

NORA also notes the Agency’s statement that “Illinois EPA points out the USEPA

acknowledged that individual states may impose more stringent standards than the federal

requirements.” PC 75 at 4, citing PC 70 at 4. NORA first responds by stating that the Agency

refers to authority that it has never questioned. PC 75 at 4. NORA argues that Illinois’ more

stringent approach is more burdensome without providing greater environmental protection.

Second, NORA argues that Illinois’ more stringent requirements place the state’s generator and

transporters at a competitive disadvantage to generator and transporters in other states.

Third, NORA argues that its proposal is consistent with used oil regulations adopted in 47 other

states.

. Fourth, NORA argues that the Board in 1999 agreed with NORA’s position that

additional used oil regulation was unnecessary and excessively stringent.

see

In the Matter

of: Amendments to Permitting for Used Oil Management and Used Oil Transport 35 Ill. Adm.

Code 807 and 809, R99-18.

NORA also notes the Agency’s statement that “the latest proposed language by NORA

expands the exemption beyond fuels to include normal components of fuel. Fuel components

include the same chemicals that are used as fuel additives, in small amounts, but could be placed

in the used oil in high concentrations and could have been used as a solvent before they were

mixed with used oil.” PC 75 at 4, citing PC 70 at 6. NORA first responds that the Agency

provides no example or other support for its apparent view “that NORA’s proposed language

would amend Illinois’ hazardous waste regulations to create a new giant loophole whereby

generators could dump hazardous waste (spent solvents) into their used oil.” PC 75 at 4.

Second, NORA offers to amend its proposal by replacing “‘fuels or normal components of fuels’

with ‘fuels or other fuel products’ which would track existing regulatory language and

presumably resolve IEPA’s concern.”

NORA also notes the Agency’s statement that “NORA’s proposed exemption does not

require the wastewater to be in the used oil as a result of the use of the used oil. Therefore the

source of the wastewater is limitless and the receiving facility would have no idea of what the

chemical constituents would be in the wastewater.” PC 75 at 4, citing PC 70 at 7. NORA first

responds that the time at which water and oil are combined does not affect recyclability of the

combination and does not affect the ability of generators or transporters to describe it accurately.

PC 75 at 5. Second, NORA dismisses the Agency’s view that sources of wastewater are

limitless.

. NORA again notes that the high cost of treating wastewater provides a strong

disincentive to mix used oil with water.

. Third, NORA suggests that facilities receiving

wastewater will require a great deal of information from their customers in order to comply with

the requirements of Clean Water Act regulations and their permits.

. Fourth, NORA dismisses

as “pure nonsense” the Agency’s argument that “substituting a tracking document for a manifest

will create incentives for dumping chemicals into oily wastewater and slipping the load into an

unsuspecting treatment facility.”

. NORA argues that its proposed tracking document would

contain all of the information now provided on a manifest.

. Finally, NORA argues that the

Agency’s point is moot, as the Agency has concluded that “[t]he Board’s proposed language in

the first notice [opinion and order] exempts all used oil as defined in and managed in accordance

with Part 739 regardless of water content.”

NORA also notes the Agency’s statements that “it is not Illinois EPA’s desire or the

intent of the used oil regulations to encourage the mixing of other wastes with the used oil, but to

recycle each waste separately” and that the “Illinois EPA believes the mixing of used oil with

other special waste should not be encouraged by providing a manifest exemption as an incentive

to mix these wastes.” PC 75 at 5, citing PC 70 at 7. NORA first responds that both state and

federal regulations “allow such mixing under certain circumstances.” PC 75 at 5. NORA further

stresses that, when such mixing interferes with recycling, its members “will charge the

generators more money to handle these materials.”

. Second, NORA argues that “nothing in

the current manifest system nor NORA’s proposal will affect generators’ practices with respect

to mixing.”

. at 6. Third, NORA states that, “if IEPA wants to engage in constructive

discussions with generators, transporters and processors about policies designed to ‘recycle each

waste separately’ NORA would welcome such an opportunity following the completion of the

present rulemaking.”

. NORA argues, however, that the current system and its own proposal

have no impact on this goal.

NORA also notes the Agency’s statement that “a DOT document does not have to be a

separate piece of paper in addition to a manifest.” PC 75 at 6, citing PC 70 at 9. NORA

responds that, “if DOT did require a separate piece of paper[,] NORA would not be offering its

proposal.” PC 75 at 6 (emphasis in original). NORA states that it proposes only to combine

necessary business information with the information sought by DOT and the Agency.

NORA argues that “[t]he combination of these three categories of information cannot be

accomplished on a manifest.”

Finally, NORA notes the Agency’s statement that “the generators . . . were not

represented and may not be aware of the changes NORA’s proposal would require of them if

adopted.” PC 75 at 6, citing PC 70 at 11. NORA first responds that its proposal “does not

require any changes. PC 75 at 6 (emphasis in original). NORA states that, if the Board adopts

its proposal, generators remain free to use a manifest.

. NORA also argues that “numerous

generators (including generators represented by trade associations), transporters and processors

submitted comments in support of NORA’s proposal.”

DISCUSSION

The Board is proceeding to a second first notice with NORA’s amended proposal with

changes discussed below. Specifically, the Board today proposes first-notice amendments

designed to exempt from manifesting requirements of Parts 808 and 809 the following: (1) used

oil, defined by and managed in accordance with Part 739; (2) mixtures of used oil and hazardous

waste, both mixed and generated by a conditionally exempt small quantity generator (CESQG),

provided that mixture contains more than fifty percent used oil by volume or weight; (3) used oil

containing characteristic hazardous waste, with a BTU per pound content greater than 5000,

where the characteristic (

e.g.

, ignitability) has been extinguished, and both the used oil and the

characteristic hazardous waste has been generated and mixed by the same generator, and which

contain more than 50 percent of used oil by weight or volume; (4) mixtures of used oil and fuels

or other fuel products; and (5) used oil contaminated by or mixed with nonhazardous wastewater,

both generated by the same generator and where the mixture results from use or unintentional

contamination.

In the following sections of the opinion, the Board first provides a brief discussion of the

scope of NORA’s proposal. Then the Board will discuss the specific amendments proposed by

NORA to exempt used oil as defined by and managed in accordance with Part 739, and four

additional categories of “materials regulated as used oil.” Then the Board will discuss the

changes proposed by NORA to the Part 739 tracking requirements. After making findings on

NORA’s proposal, the Board will discuss the actual language changes to Parts 739, 808 and 809.

The Board then makes findings with regard to the technical feasibility and economic

reasonableness of its proposal.

Scope of NORA’s Proposal

On May 1, 2008, the Board adopted its original first-notice amendments in this

proceeding that exempted used oil that is defined by and managed in accordance with Part 739

from requirements of Parts 808 and 809 relating to manifesting and waste hauling permits. In

addition, the Board specifically sought comments from the participants on whether to amend Part

739 to require used oil tracking documents to include information that would satisfy other

informational requirements such as manifests under Parts 808 and 809. On September 22, 2008,

NORA responded to the Board’s request for comments by proposing specific amendments to

Part 739. Harris Test. at 1 and 14-17;

see

In the Matter of: Proposed Amendment of the Board’s

Special Waste Regulations Concerning Used Oil: 35 Ill. Adm. Code 808, 809, R06-20, slip op.

at 1-2, 55-56 (May 1, 2008). These amendments extend the relief provided by the Board’s May

1, 2008, first-notice proposal from manifesting and permitting requirements for used oil “defined

by and managed in accordance with Part 739” to include specific “materials regulated as used

oil.”

See

In the Matter of: Proposed Amendment of the Board’s Special Waste Regulations

Concerning Used Oil: 35 Ill. Adm. Code 808, 809, R06-20, slip op. at 1, 56 (May 1, 2008);

Harris Test. at 4-5.

NORA proposes to exempt four specific categories of material “regulated as used oil”

from the special waste manifesting and permitting requirements. Harris Test. at 5. These

categories include: used oil generated by a conditionally exempt small quantity generator

(CESQG) containing the exempt hazardous waste from such generator, provided that mixture

contains more than fifty percent used oil by volume or weight ; used oil containing characteristic

hazardous waste, with a BTU per pound content greater than 5000, where the characteristic (

e.g.

ignitability) has been extinguished, and both the used oil and the characteristic hazardous waste

has been generated and mixed by the same generator; mixtures of used oil and fuels, normal

components of fuels, or other fuel products; and used oil containing nonhazardous wastewater

provided there is a recoverable quantity of used oil. Harris Test. at 5, 7, 14, 15; citing 35 Ill.

Adm. Code 739.110(b)(2), (b)(3), (d), (f). At the third hearing on October 1, 2008, NORA stated

that it did not propose to exempt these categories from various special waste requirements, but

seeks only a manifest exemption. Tr.3 at 11.

While NORA maintains that existing regulations under Part 739 are sufficient for

tracking used oil in lieu of manifesting, NORA proposes enhanced tracking requirements for

shipments of materials regulated as used oil and falling under its four proposed exemptions.

Harris Test. at 9, 15-16. NORA states that the enhanced tracking addresses all USDOT tracking

requirements, all of the customer (generator) or other business information needed by the

transporter, and all additional relevant information that would be set forth in a manifest.

. at 9.

NORA reiterates that under the proposed amendments, the special waste manifest would be

replaced by a shipping document containing all necessary information for used oil and material

regulated as used oil under Part 739.

As noted earlier, the Agency objects to NORA’s proposal to extend the relief from

manifesting and permitting requirements to the proposed four categories of used oil mixtures.

The Agency asserts that “only used oil as defined by and managed in accordance with Part 739

and not materials subject to regulation as used oil by Part 739 should be exempt from the

requirements of Parts 808 and 809 regarding manifests, hauling permits and facility permits

requiring local siting under 35 Ill. Adm. Code 807.” PC 70 at 2. The Agency argues that

limiting the exemptions from Parts 808 and 809 to used oil as defined by and managed in

accordance with Part 739 would encourage proper recycling and insure proper management of

waste added to used oil.

Id.

NORA responds by stating “the Agency’s comments and testimony

constitute a very substantial misreading of NORA’s simple proposal to substitute a tracking

document (usually referred to as a shipping paper or bill of lading) for the hazardous waste

manifest that is currently required for the shipment of used oil and material regulated as used

oil.” PC 75 at 1. NORA maintains that its proposal has one basic purpose, i.e. to reduce the

unnecessary paper work burden imposed by the manifest system. NORA contends that its

proposal is intended to simply combine the information required by the USDOT and the

hazardous waste manifest with the business information needed by the generator, transporter, and

/or the receiving facility.

Id.

Other than being exempted from the manifest requirements, NORA

states that the proposed used oil mixtures would be subject to all other applicable provisions of

Parts 808 and 809. Tr. 3 at 11-12, 122.

The Board’s intent for seeking comments on whether to amend used oil tracking

requirements under Part 739 was for the limited purpose of streamlining the informational

requirements and reducing paperwork. While the Agency has raised a number of concerns

regarding NORA’s proposal, most of those concerns pertain to the handling and management of

mixtures of used oil and certain materials regulated as used oil under the special waste

regulations in Parts 808 and 809. Since the Board is only considering a narrow exemption from

manifest requirements and not a general exemption from Parts 808 and 809, used oil mixtures

would still be subject to all applicable requirements of those parts other than manifesting if the

Board adopts NORA’s amended proposal. As noted by NORA, the only change being proposed

is the replacement of the manifest required under Parts 808 and 809 with a tracking document

with all necessary information for certain used oil and used oil mixtures regulated under Part

739. In light of this, the Board will consider the merits of NORA’s proposal within the limited

scope of exempting used oil and used oil mixtures solely from the manifest requirements of Parts

808 and 809.

Used Oil Defined and Managed in Accordance with Part 739

On May 1, 2008, the Board proposed for first notice an exemption for used oil defined by

and managed in accordance with Part 739 from manifesting and permitting requirements of Parts

808 and 809. In today’s proposal, the Board will retain the used oil exemption proposed in the

Board’s first First Notice with a minor change. Instead of exempting used oil defined by and

managed in accordance with Part 739 from manifesting and permitting requirements of Parts 808

and 809, the Board proposes to exempt used oil defined by and managed in accordance with Part

739 from only the manifesting requirements of Parts 808 and 809. While the Board finds that the

record in this rulemaking continues to support the exemption proposed in the Board’s order of

May 1, 2008, in this second first notice, the Board limits the proposed exemption to only

manifesting requirements in order to be consistent with NORA’s amended proposal, which seeks

only limited exemption for used oil mixtures from only manifesting requirements.

Conditionally Exempt Small Quantity Generator Hazardous Waste

NORA proposes to exempt from manifest requirements mixtures of used oil and

hazardous waste, both mixed and generated by a CESQG, provided that the mixture contains

more than fifty percent used oil by volume or weight. Harris Test. at 5, 14; PC 71. NORA

notes that exemption is based on the USEPA regulations under 40 CFR 279 and the Board’s

rules at 35 Ill. Adm. Code 739.110(b)(3). Tr. 3 at 12. NORA states that the manifest exemption

for mixtures of used oil and CESQG waste is intended to facilitate the management of such

waste.

Id.

at 13.

The Agency states that used oil mixed with CESQG hazardous waste might be cutting oil

or other oils contaminated by use but containing mostly water and only trace amounts of oil. PC

70 at 3-4. The Agency argues that the mixture will behave like the CESQG hazardous waste or

water and not like oil.

. at 4. The Agency states that CESQG hazardous waste is now exempt

from manifests pursuant to 35 Ill. Adm. Code 721.105 and that it would continue to be exempt

when mixed with used oil as defined by and managed in accordance with Part 739 under the

proposed first notice manifest exemption. PC 70 at 4, citing 35 Ill. Adm. Code 721.105 (Special

Requirements for Hazardous Waste Generated by Small Quantity Generators). However, the

Agency argues that, if the CESQG hazardous waste is mixed with waste other than used oil as

defined by and managed in accordance with Part 739, the mixture may need to be manifested and

managed at a permitted special waste facility. PC 70 at 4, citing 35 Ill. Adm. Code 809. The

Agency notes the possibility that an entity that is a small quantity generator of both hazardous

waste and non-hazardous special waste could mix the two wastes and become a large quantity

generator. PC 70 at 4. The Agency argues that “[r]egulations are already in place to address this

issue and the Illinois EPA does not believe it is appropriate to modify the hazardous waste and

special waste determination regulations or large quantity generator status regulations through a

used oil manifest exemption.”

NORA responds by concurring “enthusiastically” with the Agency’s position that

manifesting is not necessary for a mixture of used oil and CESQG waste. PC 75 at 3. However,

NORA maintains that it may be prudent to require tracking of such mixtures as proposed by

NORA. Since the Board has already found at first notice that the record supports the exemption

of used oil defined by and managed in accordance with Part 739 from manifest and permit

requirements of Parts 808 and 809, the Board agrees with the Agency that mixture of such used

oil and CESQG waste is also exempt from manifesting pursuant to Section 721.105. Further,

since NORA is proposing to exempt mixtures of only used oil and CESQG waste, the Board

believes that some of concerns raised by the Agency regarding mixtures of CESQG waste with

wastes other than used oil are not pertinent. Also, the Board notes that any concerns regarding

the mixing of nonexempt wastes with used oil and CESQG waste are addressed by the tracking

requirements of Part 739. Since mixtures of used oil and CESQG wastes are regulated under

Part 739, such mixtures will be subject to the proposed enhanced tracking requirements under

that Part. Additionally, the Board notes that the limitation proposed by NORA that the mixture

contain more than fifty percent used oil by either volume or weight addresses the Agency’s

concerns that the mixture will behave as CESQG characteristic waste and not like oil.

In light of the above, the Board finds that mixtures of used oil as defined by and managed

in accordance with Part 739 and hazardous waste, both generated and mixed by a CESQG,

would be exempt from manifest requirements under the provisions of Section 721.105 and the

proposed used oil exemption discussed above. However, the Board finds that the addition of the

specific exemption as proposed by NORA adds to the clarity of the rules and also subjects

mixtures of used oil and CESQG waste to the proposed enhanced tracking requirements.

Therefore, the Board proposes to exempt mixtures of used oil (as defined by and managed in

accordance with Part 739) and CESQG waste from the manifest requirements of Parts 808 and

809.

Characteristic Hazardous Waste

NORA proposes to exempt used oil containing characteristic hazardous waste, with a

BTU per pound content greater than 5000, where the characteristic (

e.g.

, ignitability) has been

extinguished, and both the used oil and the characteristic hazardous waste have been generated

and mixed by the same generator, and which contain more than 50 percent of used oil by weight

or volume. Harris Test. at 5, 14, citing 35 Ill. Adm. Code 739.110(b)(2), 739.100(b)(3). NORA

notes that the threshold of 5,000 BTU per pound content is a level established by USEPA, above

which material is considered to have value as fuel. Tr.3 at 56. NORA argues that this proposed

exemption is also consistent with current federal regulations. Tr.3 at 14, citing 40 C.F.R. 279.

The Agency states that used oil mixed with characteristic hazardous waste might be

cutting oil or other oils contaminated by use but containing mostly water and only trace amounts

of oil. PC 70 at 3-4. The Agency argues that the mixture will behave like the characteristic

hazardous waste or water and not like oil. PC 70 at 4-5. Further, the Agency states that, when

characteristic hazardous waste is mixed with used oil as defined by Part 739, then the mixture is

exempt from RCRA and managed under the used oil standards to the extent that the

characteristic is extinguished. PC 70 at 5. The Agency argues that, because the characteristic

hazardous waste requires a manifest before it is mixed, the mixture remains exempt under RCRA

but becomes subject to requirements for manifests, hauling permits, and facility permits.

citing 35 Ill. Adm. Code 807, 808, 809.

The Board notes that the used oil regulations under Part 739 allow mixtures of used oil

and a characteristic hazardous waste to be regulated under Part 739, if the resultant mixture does

not exhibit any characteristics of hazardous waste identified under Subpart C of 35 Ill. Adm

Code 721. See 35 Ill. Adm Code 739.110(b)(2)(B). NORA’s proposed exemption tracks the

language of Section 739.110(b)(2)(B), but adds further limitations for exemption from

manifesting. First, NORA limits the exemption to mixing of characteristic hazardous waste with

a heating value of at least 5000 Btu per pound. Second, NORA requires that both used oil and

the characteristic hazardous waste must be generated and mixed by the same generator. Third,

NORA requires the mixture to contain more than 50 percent of used oil by weight or volume.

Finally, NORA’s proposal is not seeking exemption from any applicable provisions under Parts

807, 808 or 809 other than manifest requirements. Further, the information required under the

manifest provisions of Parts 808 and 809 would be set forth under the proposed enhanced

tracking requirements of Part 739.

The Board believes that the proposed exemption of mixtures of used oil and characteristic

hazardous waste allows the management of such mixtures without significant changes from the

manner in which they are being managed under the existing regulations, while providing

adequate safeguards against any mismanagement of such mixtures. Therefore, the Board

proposes to exempt used oil containing characteristic hazardous waste, with a BTU per pound

content greater than 5000, where the characteristic (

e.g.

, ignitability) has been extinguished, and

both the used oil and the characteristic hazardous waste have been generated and mixed by the

same generator for first notice as long as the mixture contains more than 50 percent of used oil

by weight or volume.

Fuels

NORA proposes to exempt from manifest requirements mixtures of used oil and fuels,

normal components of fuels, or other fuel products. Harris Test. at 5, citing 35 Ill. Adm. Code

739.110(d). NORA states that this exemption would typically apply to a mixture of used oil with

diesel fuel or a similar fuel product. Tr.3 at 13. NORA indicates that such a mixture “is not a

regular practice” but does occur and can be handled as used oil.

The Agency states that unused fuels in used oil include off-specification fuel such as that

removed during aircraft maintenance or fuel contaminated with water. PC 70 at 5. The Agency

claims that unused fuel contained in used oil is not a special waste because the unused fuel is not

intended for disposal.

. The Agency instead presumes that the unused fuel will be burned, the

original intended use.

. The Agency argues that “[f]uels would not be subject to special waste

manifesting but would be subject to Part 739 when mixed with used oil.”

. However, the

Agency claims that NORA’s proposal expands the exemption to cover normal fuel components,

which could have been used as a solvent and then added at high concentrations to used oil. PC

70 at 6. The Agency argues that such a mixture differs from a normal used oil stream and should

be managed only at a permitted special waste facility.

NORA responded to the Agency’s concerns by modifying the proposed exemption to

apply only to “fuel or other fuel products” instead of “fuel or normal components of fuels”. PC

75 at 4. NORA claims that the proposed modification tracks the existing language under Part

739. The Board notes that, with the change proposed by NORA, the exemption is limited to

mixtures of used oil and fuels or fuel products. Since fuels are not subject to manifesting and

because the Board is proposing to exempt used oil defined by and managed in accordance with

Part 739 from manifest requirements, the Board finds that the mixtures of used oil and fuel or

fuel products regulated under Part 739 are exempt from manifest requirements. However, the

Board finds that the addition of the specific exemption as proposed by NORA adds to the clarity

of the rules and also subjects mixtures of used oil and fuel products to the proposed enhanced

tracking requirements under Part 739. Therefore, the Board proposes to exempt mixtures of used

oil, as defined by and managed in accordance with Part 739, and fuels or other fuel products

from the manifest requirements of Parts 808 and 809.

Wastewater

NORA proposes to exempt used oil contaminated by or mixed with nonhazardous

wastewater, both generated by the same generator and which contains more than a

de minimus

(recoverable) quantity of used oil from manifest requirements. Harris Test. at 5, 7, 15, citing 35

Ill. Adm. Code 739.110(f). NORA states that the mixture would still be sent to a facility which

handles wastewater, separates the used oil out, discharges the wastewater in accordance with a

permit and Clean Water Act requirements, and recovers the used oil. Tr. 3 at 14-15;

see also id

at 42-45 (Ray testimony on recycling oil-water mixtures).

As noted earlier, the Agency takes the position that wastewater “mixed with used oil

through use or unintentional contamination during collection or storage by the generator is

subject to Part 739 and should be allowed a special waste manifesting exemption.” PC 70 at 6.

The Agency nonetheless believes that such mixtures would result only from a limited number of

circumstances: “[o]ne is cutting fluids that contain a lot of water, the second is used oil that

contains waste due to storage contamination, and the third is recovery of used oil spills.”

. at

6-7.

NORA first responds by concurring “enthusiastically” to the Agency’s position that the

exemption adopted by the Board for first notice applies to used oil as defined by and managed in

accordance with Part 739 regardless of the water content. PC 75 at 3. Further, NORA asserts

that the Agency’s position applies both to mixtures resulting from use and from post-use

mixtures.

Id.

NORA states that it defers to the Agency’s position and “withdraws the

component of its proposal that would require an oil/water mixture contain a minimum of 50

percent used oil in order to be eligible for the manifest exemption.”

. Second, NORA claims

that the Agency, based on its comment on this issue, appears to believe that it is not necessary to

manifest this category of materials.

. Third, NORA argues that this comment negates

“contradictory” statements in the Agency’s post-hearing comment.

., citing PC 70 at 7, 10.

The Board notes that the Agency’s comments specifically support an exemption of

wastewater that is mixed with used oil through “use or unintentional contamination during

collection or storage by the generator”. PC 70 at 6. However, the Agency objects to extending

the exemption to include intentional mixing of wastewater with used oil. The Agency argues that

NORA’s proposal exempting mixtures containing

de minimus

amounts of used oil fails to

“identify the amount of oil that must be in the wastewater to allow the waste stream to be

manifest exempt.” PC 70 at 7. The Agency notes NORA’s testimony that the “recoverable

amount of oil is different for different receiving facilities.”

., citing Tr.3 at 85-87 (Harris and

Ray testimony). The Agency argues that this requires a generator to know a receiving facility’s

abilities in order to determine whether an exemption applies to a particular mixture. PC 70 at 7.

The Agency also argues that NORA’s proposal does not require the wastewater to be present as a

result of the use of the oil.

. The Agency claims that “the source of the wastewater is limitless

and the receiving facility would have no idea of what chemical constituents would be in the

waste water.”

. The Agency contends that NORA’s proposal may encourage mismanagement

of other waste by allowing such wastes to be added to used oil for management as used oil.

NORA first responds that the time at which water and oil are combined does not affect

recyclability of the combination and does not affect the ability of generators or transporters to

describe it accurately. PC 75 at 5. Regarding intentional mixing, NORA notes that the high cost

of treating wastewater provides a strong disincentive to mix used oil with water.

Additionally, NORA maintains that facilities receiving wastewater will require a great deal of

information from their customers in order to comply with the requirements of Clean Water Act

regulations and their permits.

. Finally, NORA argues that the proposed tracking document

addresses any concerns regarding exemption from manifest requirements creating incentives for

dumping chemicals into oily wastewater, since the tracking document would contain all of the

information now provided on a manifest.

The Board agrees with the Agency that the exemption for used oil defined by and

managed in accordance with Part 739 from manifesting requirements does not place any limits

on the water content of the used oil. The Board agrees with the Agency that wastewater mixed

with used oil through use or unintentional contamination during collection or storage by the

generator is subject to Part 739 and should be allowed a special waste manifesting exemption.

However, the Board shares the Agency’s concerns regarding an exemption for wastewater that

may be intentionally mixed with used oil. In this regard, the Board notes NORA’s suggestion

that such intentional mixtures would not be common and that they do not make financial sense

for generators.

See

PC 75 at 5. Accordingly, the Board finds that the record supports a manifest

exemption limited to wastewater mixed with used oil through use or unintentional

contamination. Therefore, the Board proposes to exempt used oil as defined by and managed in

accordance with Part 739 contaminated by or mixed with nonhazardous wastewater, where the

used oil and the nonhazardous wastewater are generated by the same generator, and where the

mixture results from use or unintentional contamination from the manifest requirements of Parts

808 and 809.

Enhanced Tracking Requirements

NORA proposes what is effectively an enhanced tracking document for shipments of

materials regulated as used oil and falling under its four proposed exemptions. Harris Test. at 9,

15-16. NORA states that a transporter can use the tracking document to comply with all USDOT

tracking requirements, all of the customer (generator) or other business information needed by

the transporter, and all additional relevant information that would be set forth in a manifest.

at 9;

see

Tr.3 at 15-17, 69, 78-80; Exh. 19 (draft sample tracking document). NORA proposes

that a transporter retain these documents for not less than three years and make them available to

the Agency for inspection. Tr.3 at 15, 77. NORA argues that this approach eliminates duplicate

paperwork, promotes efficiency, and “creates a level playing field with generators and

transporters in adjacent states.”

. at 9. NORA further argues that consolidating this

information into a single document results in significant cost savings. Tr.3 at 21.

Further, NORA states that, since this document applies only to the four categories of

mixtures described above and proposed for a manifest exemption, the regulations should require

that the proposed document describe these four categories and include all of the information now

on the manifest from which it seeks the exemption.

. at 83-85;

see

Harris Test. at 16 (proposed

Section 739.146(a)(6)). In his testimony at the third hearing, Mr. Appelt clarified that he did not

wish to have the Board prescribe a new tracking document and would prefer simply to have the

Board specify the data it seeks. Tr.3 at 174. He elaborated that “we’d like the regulations to

identify what data elements are you looking for, and then each company would develop its own

form to include that.”

. at 175. Mr. Appelt stated that Safety-Kleen’s analysis shows that each

manifest costs approximately $18, including acquisition, distribution, separation, storage, and

labor. Tr.3 at 176. He noted that Safety-Kleen completed approximately 30,000 manifests for

automotive customers and approximately 2,700 for industrial customers during a 12 month

period.

. at 187.

The Agency objects to amending the tracking requirements of Part 739, and recommends

that the Board exempt only used oil as defined in and managed in accordance with Part 739 from

manifest and hauling permit requirements. PC 70 at 12. The Agency claims that a special waste

manifest includes the information required both by the Agency and USDOT. PC 74 at 2. The

Agency argues that the proposed tracking document is very similar to a special waste manifest,

except for the business information.

. at 2-3;

see

Exh. 19. The Agency contends that the

additional information included on NORA’s form may fit on the uniform non-hazardous waste

manifest. PC 74 at 3. The Agency further argues that NORA’s proposal would actually increase

the amount of paperwork for the used oil industry because generators would have to document

that mixtures contain 50 percent used oil by volume, or 5,000 btu, or recoverable quantities of

used oil.

The Board notes that since the proposed exemptions from manifest requirements are

based on ensuring that all necessary information would still be available to the Agency and the

entities involved in the handling and management of used oil and used oil mixtures, the Board

believes that it is appropriate to amend the Part 739 tracking requirements to include the

additional information set forth in a manifest under Parts 808 and 809. While the Board agrees

with the Agency that the proposed tracking document is similar to the manifest, the Board notes

that the proposed tracking document allows a company to reduce paperwork by including all

necessary regulatory information and business information in a single document. Further, as

noted by Mr. Appelt, the use of the proposed tracking document will also result in significant

cost savings for used oil recyclers.

Finally, the Board agrees with NORA that only the additional information that would be

required in the tracking document must be specified in the rules. The actual tracking forms

would be developed by the individual used oil recycling companies to meet the regulatory

informational requirements. Therefore, the Board proposes amendments to the used oil tracking

provisions under Part 739 to require additional information for certain used oil mixtures in lieu

of manifests required under Parts 808 and 809.

Summary of Proposed Amendments to Parts 739, 808 & 809

The Board proposes to amend Section 808.121 to provide two additional exceptions to

the requirement that “[n[]o person shall deliver special waste to a transporter unless the waste is

accompanied by a manifest as specified in Section 808.122. . . .” 35 Ill. Adm. Code 808.121(b).

The Board proposes one exception for used oil that is defined by and managed in accordance

with Part 739. The Board proposes a second exception for four specified mixtures of used oil

and other materials, provided that the generator complies with the informational requirements of

Section 739.146(a) and Section 809.501(b). The Board also proposes to amend Section 809.501,

which addresses matters including manifests and forms, to reflect the addition of these

exceptions. Finally, the Board proposes to amend the tracking provisions of Part 739 to provide

that the used oil tracking document for a shipment of one of the four mixtures of used oil and

other materials must also include specified information drawn from the special waste manifest.

Technical Feasibility and Economic Reasonableness

In the course of these proceedings, the Agency introduced testimony that used oil

facilities purchased 524,824 manifests from it during a two and one-half year period at a rate of

210,330 manifests annually. The Agency estimated that facilities purchased 168,650 manifests

for the transportation of used oil in that two and one-half year period at a rate of 67,460

manifests annually. The Agency did not include a growth factor in those figures. It concluded

that the number of shipments of used oil that would be exempt from manifesting is

approximately 67,460 but could be more than 210,330 shipments per year. The exemptions

proposed today by the Board for second first-notice publication would eliminate the filing of

manifests by used oil facilities and result in some savings to regulated entities. However, the

Board notes that while the proposed amendments eliminate the filing of manifests by used oil

facilities, such facilities would be still required provide the information required on the manifest

but in a used oil tracking document.

NORA also offered testimony regarding the costs of manifesting shipments of used oil.

Mr. Lenz testified that, for Future Environmental, purchasing manifests costs $600 per day of

operation and involves the cost of additional time on the part of its field and office personnel.

Also, Mr. Ray testified that, even as one of the smaller used oil collectors in the State,

manifesting annually costs Heritage Crystal Clean $100,000. Nothing in the record suggests that

the manifesting costs for other used oil entities differ significantly from these figures. At the

third hearing, Mr. Appelt stated that Safety-Kleen’s analysis shows that each manifest costs

approximately $18, including acquisition, distribution, separation, storage, and labor. He noted

that over recent 12-month period his company completed approximately 30,000 manifests for

automotive customers and approximately 2,700 for industrial customers. Mr. Appelt concluded

that, if the Board adopted NORA’s proposal, those 30,000 automotive customers would no

longer require manifest.

The Board thus finds that NORA’s amended proposal with the changes discussed above

is economically reasonable. Also, as the record does not demonstrate than an exemption from

filing a special waste manifest for shipments of used as oil and used oil mixtures discussed above

presents any technical issues. Thus, the Board also finds that the NORA’s proposal along with

the changes discussed above is technically feasible. Accordingly, the Board adopts for second

first-notice NORA’s proposal with the changes discussed above.

CONCLUSION

The Board proposes for second first-notice publication in the

Illinois Register

language

that would exempt from the manifesting requirements of Parts 808 and 809 (35 Ill. Adm. Code

808, 809): (1) used oil, defined by and managed in accordance with Part 739; (2) mixtures of

used oil and hazardous waste, both mixed and generated by a conditionally exempt small

quantity generator (CESQG), provided that mixture contains more than fifty percent used oil by

volume or weight; (3) used oil containing characteristic hazardous waste, with a BTU per pound

content greater than 5000, where the characteristic (

e.g.

, ignitability) has been extinguished, and

both the used oil and the characteristic hazardous waste has been generated and mixed by the

same generator, and which contain more than 50 percent of used oil by weight or volume; (4)

mixtures of used oil and fuels or other fuel products; and (5) used oil contaminated by or mixed

with nonhazardous wastewater, both generated by the same generator and where the mixture

results from use or unintentional contamination.

ORDER

The Board directs the Clerk to cause a second first-notice publication of the following

proposed amendments to the Board’s regulations in the

Illinois Register

. Proposed additions are

underlined, and proposed deletions appear stricken.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER c: HAZARDOUS WASTE OPERATING REQUIREMENTS

PART 739

STANDARDS FOR THE MANAGEMENT OF USED OIL

SUBPART A: DEFINITIONS

Section

739.100

Definitions

SUBPART B: APPLICABILITY

Used Oil Specifications

SUBPART C: STANDARDS FOR USED OIL GENERATORS

Hazardous Waste Mixing

739.122

Used Oil Storage

739.123

On-Site Burning in Space Heaters

739.124

Off-Site Shipments

SUBPART D: STANDARDS FOR USED OIL COLLECTION CENTERS AND

AGGREGATION POINTS

Section

739.130

Do-It-Yourselfer Used Oil Collection Centers

739.131

Used Oil Collection Centers

739.132

Used Oil Aggregate Points Owned by the Generator

SUBPART E: STANDARDS FOR USED OIL TRANSPORTER AND

Restrictions on Transporters that Are Not Also Processors

739.142

Notification

739.143

Used Oil Transportation

739.144

Rebuttable Presumption for Used Oil

739.145

Used Oil Storage at Transfer Facilities

739.146

Tracking

739.147

Management of Residues

SUBPART F: STANDARDS FOR USED OIL PROCESSORS

General Facility Standards

739.153

Rebuttable Presumption for Used Oil

Operating Record and Reporting

739.158

Off-Site Shipments of Used Oil

739.159

Management of Residues

SUBPART G: STANDARDS FOR USED OIL BURNERS THAT BURN OFF-

SPECIFICATION USED OIL FOR ENERGY RECOVERY

Restriction on Burning

739.162

Notification

739.163

Rebuttable Presumption for Used Oil

Management of Residues

SUBPART H: STANDARDS FOR USED OIL FUEL MARKETERS

On-Specification Used Oil Fuel

SUBPART I: DISPOSAL OF USED OIL

Use As a Dust Suppressant

AUTHORITY: Implementing Sections 7.2 and 22.4 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/7.2, 22.4, and 27].

SOURCE: Adopted in R93-4 at 17 Ill. Reg. 20954, effective November 22, 1993; amended in

R93-16 at 18 Ill. Reg. 6931, effective April 26, 1994; amended in R94-17 at 18 Ill. Reg. 17616,

effective November 23, 1994; amended in R95-6 at 19 Ill. Reg. 10036, effective June 27, 1995;

amended in R96-10/R97-3/R97-5 at 22 Ill. Reg. 767, effective December 16, 1997; amended in

R98-21/R99-2/R99-7 at 23 Ill. Reg. 2274, effective January 19, 1999; amended in R04-16 at 28

Ill. Reg. 10706, effective July 19, 2004; amended in R06-5/R06-6/R06-7 at 30 Ill. Reg. 4094,

effective February 23, 2006; amended in R06-16/R06-17/R06-18 at 31 Ill. Reg. 1413, effective

December 20, 2006; amended in R07-5/R07-14 at 32 Ill. Reg. 13047, effective July 14, 2008;

amended in R06-20 at 33 Ill. Reg. _____, effective ________.

SUBPART E: STANDARDS FOR USED OIL TRANSPORTER AND

TRANSFER FACILITIES

Section 739.146 Tracking

Acceptance. A used oil transporter must keep a record of each used oil shipment

accepted for transport. Records for each shipment must include the following:

The name and address of the generator, transporter, or processor that

provided the used oil for transport;

The USEPA identification number and Illinois special waste identification

number (if applicable) of the generator, transporter, or processor that

provided the used oil for transport;

The quantity of used oil accepted;

The date of acceptance; and

The signature.

Except as provided in subsection (a)(5)(B) of this Section, the

signature, dated upon receipt of the used oil, of a representative of

the generator, transporter, or processor or re-refiner that provided the

used oil for transport.

An intermediate rail transporter is not required to sign the record of

acceptance.

If the transporter has accepted any shipment of mixtures of used oil and

materials identified in 35 Ill. Adm. Code 808.121(b)(6), the transporter must

also keep a record including the following:

A)_

Information stating when and where the special waste was generated;

The classification and quantity of the special waste delivered to the

transporter;

Any special handling instructions pertinent to emergency personnel

in the event of an accident; and

A generator’s certification as follows: “I hereby declare that the

contents of this consignment are fully and accurately described above

by the proper shipping name, and are classified, packaged, marked

and labeled/placarded, and are in all respects in proper condition for

transport according to applicable international and national

governmental regulations. If export shipment and I am the Primary

Exporter, I certify that the contents of this consignment conform to

the terms of the attached EPA Acknowledgement of Consent. I

certify that the waste minimization statement identified in 40 CFR

262.27(a) (if I am a large quantity generator) or (b) (if I am a small

quantity generator) is true.”

Deliveries. A used oil transporter must keep a record of each shipment of used oil

that is delivered to another used oil transporter, or to a used oil burner, processor, or

disposal facility. Records of each delivery must include the following:

The name and address of the receiving facility or transporter;

The USEPA identification number and Illinois special waste identification

number of the receiving facility or transporter;

The quantity of used oil delivered;

The date of delivery;

The signature.

Except as provided in subsection (b)(5)(B) of this Section, the

signature, dated upon receipt of the used oil, of a representative of

the receiving facility or transporter.

An intermediate rail transporter is not required to sign the record of

acceptance.

Exports of used oil. A used oil transporter must maintain the records described in

subsections (b)(1) through (b)(4) of this Section for each shipment of used oil

exported to any foreign country.

Record retention. The records described in subsections (a), (b), and (c) of this

Section must be maintained for at least three years.

(Source: Amended at 33 Ill. Reg._____, effective _________)

SUBPART F: STANDARDS FOR USED OIL PROCESSORS

Section 739.156 Tracking

Acceptance. A used oil processor must keep a record of each used oil shipment

accepted for processing. These records may take the form of a log, invoice,

manifest, bill of lading or other shipping documents. Records for each shipment

must include the following information:

The name and address of the transporter that delivered the used oil to the

processor;

The name and address of the generator or processor from whom the used oil

was sent for processing;

The USEPA identification number and Illinois special waste identification

number of the transporter that delivered the used oil to the processor;

The USEPA identification number and Illinois special waste identification

number (if applicable) of the generator or processor from whom the used oil

was sent for processing;

The quantity of used oil accepted; and

The date of acceptance.

If the transporter has accepted any shipment of mixtures of used oil and

materials identified in 35 Ill. Adm. Code 808.121(b)(6), the transporter must

also keep a record including the following:

Information stating when and where the special waste was generated;

The classification and quantity of the special waste delivered to the

transporter;

Any special handling instructions pertinent to emergency personnel

in the event of an accident; and

A generator’s certification as follows: “I hereby declare that the

contents of this consignment are fully and accurately described above

by the proper shipping name, and are classified, packaged, marked

and labeled/placarded, and are in all respects in proper condition for

transport according to applicable international and national

governmental regulations. If export shipment and I am the Primary

Exporter, I certify that the contents of this consignment conform to

the terms of the attached EPA Acknowledgement of Consent. I

certify that the waste minimization statement identified in 40 CFR

262.27(a) (if I am a large quantity generator) or (b) (if I am a small

quantity generator) is true.”

Deliveries. A used oil processor must keep a record of each shipment of used oil

that is delivered to another used oil burner, processor, or disposal facility. These

records may take the form of a log, invoice, manifest, bill of lading or other shipping

documents. Records of each delivery must include the following information:

The name and address of the transporter that delivers the used oil to the

burner, processor, or disposal facility;

The name and address of the burner, processor, or disposal facility that will

receive the used oil;

The USEPA identification number and Illinois special waste identification

number of the transporter that delivers the used oil to the burner, processor or

disposal facility;

The USEPA identification number and Illinois special waste identification

number of the burner, processor, or disposal facility that will receive the used

oil;

The quantity of used oil shipped;

The date of shipment.

If the transporter has accepted any shipment of mixtures of used oil and

materials identified in 35 Ill. Adm. Code 808.121(b)(6), the transporter must

also keep a record including the following:

Information stating when and where the special waste was generated;

The classification and quantity of the special waste delivered to the

transporter;

Any special handling instructions pertinent to emergency personnel

in the event of an accident; and

A generator’s certification as follows: “I hereby declare that the

contents of this consignment are fully and accurately described above

by the proper shipping name, and are classified, packaged, marked

and labeled/placarded, and are in all respects in proper condition for

transport according to applicable international and national

governmental regulations. If export shipment and I am the Primary

Exporter, I certify that the contents of this consignment conform to

the terms of the attached EPA Acknowledgement of Consent. I

certify that the waste minimization statement identified in 40 CFR

262.27(a) (if I am a large quantity generator) or (b) (if I am a small

quantity generator) is true.”

Record retention. The records described in subsections (a) and (b) of this Section

must be maintained for at least three years.

(Source: Amended at 33 Ill. Reg._____, effective __________)

SUBPART G: STANDARDS FOR USED OIL BURNERS THAT BURN OFF-

SPECIFICATION USED OIL FOR ENERGY RECOVERY

Section 739.165 Tracking

Acceptance. A used oil burner must keep a record of each used oil shipment

accepted for burning. These records may take the form of a log, invoice, manifest,

bill of lading, or other shipping documents. Records for each shipment must include

the following information:

The name and address of the transporter that delivered the used oil to the

burner;

The name and address of the generator or processor from whom the used oil

was sent to the burner;

The USEPA identification number and Illinois special waste identification

number of the transporter that delivered the used oil to the burner;

The USEPA identification number and Illinois special waste identification

number of the generator or processor from whom the used oil was sent to the

burner;

The quantity of used oil accepted; and

The date of acceptance.

If the transporter has accepted any shipment of mixtures of used oil and

materials identified in 35 Ill. Adm. Code 808.121(b)(5) or (b)(6), the

transporter must also keep a record including the following:

Information stating when and where the special waste was generated;

The classification and quantity of the special waste delivered to the

transporter;

Any special handling instructions pertinent to emergency personnel

in the event of an accident; and

A generator’s certification as follows: “I hereby declare that the

contents of this consignment are fully and accurately described above

by the proper shipping name, and are classified, packaged, marked

and labeled/placarded, and are in all respects in proper condition for

transport according to applicable international and national

governmental regulations. If export shipment and I am the Primary

Exporter, I certify that the contents of this consignment conform to

the terms of the attached EPA Acknowledgement of Consent. I

certify that the waste minimization statement identified in 40 CFR

262.27(a) (if I am a large quantity generator) or (b) (if I am a small

quantity generator) is true.”

Record retention. The records described in subsection (a) of this Section must be

maintained for at least three years.

(Source: Amended at 33 Ill. Reg._____, effective __________)

SUBPART H: STANDARDS FOR USED OIL FUEL MARKETERS

Section 739.174 Tracking

Off-specification used oil delivery. Any used oil fuel marketer that directs a

shipment of off-specification used oil to a burner must keep a record of each

shipment of used oil to a used oil burner. These records may take the form of a log,

invoice, manifest, bill of lading or other shipping documents. Records for each

shipment must include the following information:

The name and address of the transporter that delivers the used oil to the

burner;

The name and address of the burner that will receive the used oil;

The USEPA identification number and Illinois special waste identification

number of the transporter that delivers the used oil to the burner;

The USEPA identification number and Illinois special waste identification

number of the burner;

The quantity of used oil shipped; and

The date of shipment.

If the transporter has accepted any shipment of mixtures of used oil and

materials identified in 35 Ill. Adm. Code 808.121(b)(5) or (b)(6), the

transporter must also keep a record including the following:

Information stating when and where the special waste was generated;

The classification and quantity of the special waste delivered to the

transporter;

Any special handling instructions pertinent to emergency personnel in

the event of an accident; and

A generator’s certification as follows: “I hereby declare that the

contents of this consignment are fully and accurately described above

by the proper shipping name, and are classified, packaged, marked

and labeled/placarded, and are in all respects in proper condition for

transport according to applicable international and national

governmental regulations. If export shipment and I am the Primary

Exporter, I certify that the contents of this consignment conform to

the terms of the attached EPA Acknowledgement of Consent. I

certify that the waste minimization statement identified in 40 CFR

262.27(a) (if I am a large quantity generator) or (b) (if I am a small

quantity generator) is true.”

On-specification used oil delivery. A generator, transporter, processor or re-refiner,

or burner that first claims that used oil that is to be burned for energy recovery meets

the fuel specifications under Section 739.111 must keep a record of each shipment

of used oil to the facility to which it delivers the used oil. Records for each

shipment must include the following information:

The name and address of the facility receiving the shipment;

The quantity of used oil fuel delivered;

The date of shipment or delivery; and

A cross-reference to the record of used oil analysis or other information used

to make the determination that the oil meets the specification as required

under Section 739.172(a).

Record retention. The records described in subsections (a) and (b) of this Section

must be maintained for at least three years.

(Source: Amended at 33 Ill. Reg._____, effective __________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 808

SPECIAL WASTE CLASSIFICATIONS

SUBPART A: GENERAL PROVISIONS

Section

808.100

Purpose, Scope and Applicability

Incorporations by Reference

808.121

Generator Obligations

808.122

Manifests

808.123

Small Quantity Generators

SUBPART B: CLASSES OF SPECIAL WASTE

Section

808.240

Special Waste Classes

808.241

Default Classification of Special Wastes

808.242

Special Handling Waste

808.243

Wastes Categorized by Source

808.244

Wastes Categorized by Characteristics

808.245

Classification of Wastes

SUBPART C: CRITERIA AND DATA REQUIREMENTS

Degree of Hazard Determination by Computer

808.302

Data Base and Bioassay Procedures

SUBPART D: REQUEST FOR WASTE CLASSIFICATION

Application for Waste Classification

808.410

Physical and Chemical Analysis

808.411

Significant Trace Constituents

808.412

Common Names

808.413

Wastestream Description

808.420

Quality Assurance Plan

808.430

Degree of Hazard Data

808.431

Toxicological Testing

SUBPART E: REVIEW OF CLASSIFICATION REQUESTS

Section

808.501

Order of Requesting Information

808.502

Completeness

808.503

Standard for Classification

SUBPART F: WASTESTREAM CLASSIFICATION DETERMINATIONS

Section

808.520

Time for Agency Action

808.521

Conditions of Wastestream Classification

808.522

Final Agency Action

SUBPART G: MODIFICATION, APPEAL AND ENFORCEMENT

Section

808.541

Request for Modification

808.542

Appeal

808.543

Effect of Classification

SUBPART H: CATEGORICAL AND CHARACTERISTIC WASTES

Assignment Of Special Waste To Classes

808.APPENDIX B

Toxicity Hazard

AUTHORITY: Implementing Sections 21, 22, 22.01 and 22.9, and authorized by Section 27 of

the Environmental Protection Act [415 ILCS 5/21, 22, 22.01, 22.9, 27].

SOURCE: Adopted in R89-13A at 14 Ill. Reg. 14043, effective August 15, 1990; amended in

R98-29 at 23 Ill. Reg. 6875, effective July 1, 1999; amended in R06-20 at 33 Ill. Reg. ____,

effective _______.

SUBPART A: GENERAL PROVISIONS

Section 808.121 Generator Obligations

Each person who generates waste shall determine whether the waste is a special

waste.

BOARD NOTE: 35 Ill. Adm. Code 722 requires the person to also determine if

the waste is a hazardous waste.

No person shall deliver special waste to a transporter unless the waste is

accompanied by a manifest as specified in Section 808.122, and the transporter

has a special waste hauling permit issued pursuant to 35 Ill. Adm. Code 809. The

following are exceptions to this prohibition:

The person is subject to the small quantity generator exemption of Section

808.123.

The transporter and waste are subject to a transporter exemption under 35

Ill. Adm. Code 809.211.

The Agency has determined pursuant to this Part that the waste is not a

special waste.

The waste consists of municipal water or wastewater treatment plant

sludge regulated under a sludge management plan approved by the

Agency pursuant to 35 Ill. Adm. Code 309.208.

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

defined by and managed in accordance with 35 Ill. Adm. Code 739.

The generator is not required to complete a manifest for the following

materials, provided that the generator complies with the informational

requirements of 35 Ill. Adm. Code 739.146(a) and 35 Ill. Adm. Code

809.501(b):

(A)

Mixtures of used oil as defined by and managed in accordance

with 35 Ill. Adm. Code 739 and hazardous waste, both generated

and mixed by conditionally exempt small quantity generator of

hazardous waste, provided that such mixture contains more than

fifty percent used oil by either volume or weight;

(B)

Mixtures of used oil as defined by and managed in accordance

with 35 Ill. Adm. Code 739 and characteristic hazardous waste,

with a Btu per pound content greater then 5,000, where:

the characteristic has been extinguished;

ii)

both the used oil and the characteristic hazardous waste

have been generated and mixed by the same generator; and

iii)

the mixture contains more than fifty percent used oil by

either volume or weight.

Mixtures of used oil as defined by and managed in accordance

with 35 Ill. Adm. Code 739 and fuel or other fuel products; and

Used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 contaminated by or mixed with nonhazardous

wastewater, where the used oil and the nonhazardous wastewater

are generated by the same generator, and where the mixture results

from use or unintentional contamination.

No person shall cause, threaten or allow the treatment, storage or disposal of

special waste in Illinois except:

At a facility permitted or otherwise authorized to manage the special

waste pursuant to 35 Ill. Adm. Code 703 or 807

[415 ILCS 5/21(d) and

(e)] (Sections 21(d) and (e) of the Act); or

At a facility owned and operated by such person and subject to the on-site

disposal exemption of Section 21(d) of the Act

[415 ILCS 5/21(d)]

(Section 21(d) of the Act).

d) No person shall deliver special waste to a transporter or a permitted facility without a

supplemental wastestream permit.

No person shall deliver to a transporter or permitted facility special waste with a

wastestream identification number unless the waste conforms with the

wastestream description in the wastestream classification determination.

(Source: Amended at 33 Ill. Reg. ____, effective ________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER i: SOLID WASTE AND SPECIAL WASTE HAULING

PART 809

NONHAZARDOUS SPECIAL WASTE HAULING AND THE UNIFORM PROGRAM

SUBPART A: GENERAL PROVISIONS

Section

809.101

Authority, Policy and Purposes

Incorporations by Reference

809.105

Public Records

SUBPART B: NONHAZARDOUS SPECIAL WASTE HAULING PERMITS

Section

809.201

Nonhazardous Special Waste Hauling Permits-General

809.202

Applications for Nonhazardous Special Waste Hauling Permit-Contents

809.203

Applications for Nonhazardous Special Waste Hauling Permit-Signatures and

Authorization

809.204

Applications for Nonhazardous Special Waste Hauling Permit-Filing and Final

Action by the Agency

809.205

Nonhazardous Special Waste Hauling Permit Conditions

809.206

Nonhazardous Special Waste Hauling Permit Revision

809.207

Transfer of Nonhazardous Special Waste Hauling Permits

809.208

Nonhazardous Special Waste Hauling Permit Revocation

809.209

Permit No Defense

809.210

General Exemption from Nonhazardous Special Waste Hauling Permit

Requirements

809.211

Exemptions for Nonhazardous Special Waste Transporters

809.212

Duration of Nonhazardous Special Waste Hauling Permits

SUBPART C: DELIVERY AND ACCEPTANCE

Section

809.301

Requirements for Delivery of Nonhazardous Special Waste to Transporters

809.302

Requirements for Acceptance of Nonhazardous Special or Hazardous Waste from

Transporters

SUBPART D: PERMIT AVAILABILITY AND SYMBOLS

Nonhazardous Special Waste Symbols

SUBPART E: MANIFESTS, RECORDS AND REPORTING

Section

809.501

Manifests, Records, Access to Records, Reporting Requirements and Forms

SUBPART F: DURATION OF PERMITS AND TANK NUMBERS

Section

809.601

Duration of Special Waste Hauler Permits and Tank Numbers (Repealed)

SUBPART G: EMERGENCY CONTINGENCIES FOR SPILLS

Section

809.701

General Provision

SUBPART H: EFFECTIVE DATES

Exceptions (Repealed)

SUBPART I: HAZARDOUS (INFECTIOUS) HOSPITAL WASTE

Section

809.901

Definitions (Repealed)

809.902

Disposal Methods (Repealed)

809.903

Rendering Innocuous by Sterilization (Repealed)

809.904

Rendering Innocuous by Incineration (Repealed)

809.905

Recordkeeping Requirements for Generators (Repealed)

809.906

Defense to Enforcement Action (Repealed)

SUBPART J: UNIFORM PROGRAM

Section

809.910

Uniform State Hazardous Waste Transportation Registration and Permit Program

809.911

Application for a Uniform Permit

809.912

Application for Uniform Registration

809.913

Payment of Processing and Audit Fees

809.914

Payment of Apportioned Mile Fees

809.915

Submittal of Fees

809.916

Previously Permitted Transporters

809.917

Uniform Registration and Uniform Permit Conditions

809.918

Uniform Registration and Uniform Permit Revision

809.919

Transfer of Uniform Registration and Uniform Permits

809.920

Audits and Uniform Registration and Uniform Permit Revocation

809.921

Permit No Defense

809.APPENDIX A

Old Rule Numbers Referenced (Repealed)

AUTHORITY: Implementing Sections 5, 10, 13, 21, 22, 22.01, and 22.2 and authorized by

Section 27 of the Environmental Protection Act [415 ILCS 5/5, 10, 13, 21, 22, 22.01, and 22.2

and 27] (see P.A. 90-219).

SOURCE: Adopted in R76-10, 33 PCB 131, at 3 Ill. Reg. 13, p. 155, effective March 31, 1979;

emergency amendment in R76-10, 39 PCB 175, at 4 Ill. Reg. 34, p. 214, effective August 7,

1980, for a maximum of 150 days; emergency amendment in R80-19, 40 PCB 159, at 5 Ill. Reg.

270, effective January 1, 1981, for a maximum of 150 days; amended in R77-12(B), 41 PCB

369, at 5 Ill. Reg. 6384, effective May 28, 1981; amended in R80-19, 41 PCB 459, at 5 Ill. Reg.

6378, effective May 31, 1981; codified in R81-9, 53 PCB 269, at 7 Ill. Reg. 13640, effective

September 30, 1983; recodified in R84-5, 58 PCB 267, from Subchapter h to Subchapter i at 8

Ill. Reg. 13198; amended in R89-13A at 14 Ill. Reg. 14076, effective August 15, 1990; amended

in R91-18 at 16 Ill. Reg. 130, effective January 1, 1992; amended in R95-11 at 20 Ill. Reg. 5635,

effective March 27, 1996; amended in R98-29 at 23 Ill. Reg. 6842, effective July 1, 1999;

amended in R00-18 at 24 Ill. Reg. 14747, effective September 25, 2000; amended in R06-20 at

33 Ill. Reg. _____, effective _______.

SUBPART C: DELIVERY AND ACCEPTANCE

Section 809.301 Requirements for Delivery of Nonhazardous Special Waste to

Transporters

No person may deliver any special waste generated within Illinois or for disposal, storage or

treatment within Illinois unless that person concurrently delivers a manifest completed in

accordance with Subpart E of this Part to a special waste transporter who holds a current

nonhazardous special waste hauling permit or Uniform Program Registration and Permit issued

by the Agency under Subpart B or C of this Part. The following are exceptions to this

requirement:

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

that is defined by and managed in accordance with 35 Ill. Adm. Code 739.

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

following materials, provided that the generator complies with the informational

requirements of 35 Ill. Adm. Code 739.146(a) and 35 Ill. Adm. Code 809.501(b):

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and hazardous waste, both generated and mixed by

conditionally exempt small quantity generator of hazardous waste,

provided that such mixture contains more than fifty percent used oil by

either volume or weight;

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and characteristic hazardous waste, with a Btu per pound

content greater then 5,000, where:

the characteristic has been extinguished;

ii)

where both the used oil and the characteristic hazardous waste

have been generated and mixed by the same generator; and

iii)

where the mixture contains more than fifty percent used oil by

either volume or weight.

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and fuel or other fuel products; and

Used oil as defined by and managed in accordance with 35 Ill. Adm. Code

739 contaminated by or mixed with nonhazardous wastewater, where the

used oil and the nonhazardous wastewater are generated by the same

generator, and where the mixture results from use or unintentional

contamination.

(Source: Amended at 33 Ill. Reg. _____, effective _________)

Section 809.302 Requirements for Acceptance of Nonhazardous Special or Hazardous

Waste from Transporters

a) No person may accept any special waste for disposal, storage or treatment within Illinois

from a special waste transporter unless the special waste transporter has a valid

nonhazardous special waste hauling permit or Uniform Program Registration and

Permit issued by the Agency under Subpart B or J of this Part and concurrently

presents to the receiver of the special waste, or the receiver's agent, a completed,

signed manifest as required by Subpart E of this Part, which manifest designates the

receiver's facility as the destination for the special waste. The following are

exceptions to this requirement:

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

that is defined by and managed in accordance with 35 Ill. Adm. Code 739.

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

following materials, provided that the generator or transporter complies with the

informational requirements of 35 Ill. Adm. Code 739.146(a) and 35 Ill. Adm.

Code 809.501(b):

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and hazardous waste, both generated and mixed by

conditionally exempt small quantity generator of hazardous waste,

provided that such mixture contains more than fifty percent used oil by

either volume or weight;

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and characteristic hazardous waste, with a Btu per pound

content greater then 5,000, where:

the characteristic has been extinguished;

ii)

where both the used oil and the characteristic hazardous waste

have been generated and mixed by the same generator; and

iii)

where the mixture contains more than fifty percent used oil by

either volume or weight;

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and fuel or other fuel products; and

Used oil as defined by and managed in accordance with 35 Ill. Adm. Code

739 contaminated by or mixed with nonhazardous wastewater, where the

used oil and the nonhazardous wastewater are generated by the same

generator, and where the mixture results from use or unintentional

contamination.

No person may deliver special waste in Illinois for disposal, storage or treatment

unless the person who accepts the special waste has a current, valid operating

permit issued by the Agency and the necessary supplemental permits required by

35 Ill. Adm. Code 807, as well as all other applicable permits as required by the

Act and Board regulations.

(Source: Amended at 33 Ill. Reg. _____, effective ________)

SUBPART E: MANIFESTS, RECORDS AND REPORTING

Section 809.501 Manifests, Records, Access to Records, Reporting Requirements and

Forms

Any person who delivers special waste to a permitted nonhazardous special or hazardous

waste transporter shall complete a uniform hazardous waste manifest to accompany the special

waste from delivery to the destination of the special waste. The manifest form will be provided

or prescribed by the Agency. The following are exceptions to this requirement:

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

that is defined by and managed in accordance with 35 Ill. Adm. Code 739.

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

following materials, provided that the generator or transporter complies with the

informational requirements of 35 Ill. Adm. Code 739.146(a) and 35 Ill. Adm.

Code 809.501(b):

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and hazardous waste, both generated and mixed by

conditionally exempt small quantity generator of hazardous waste,

provided that such mixture contains more than fifty percent used oil by

either volume or weight;

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and characteristic hazardous waste, with a Btu per pound

content greater then 5,000, where:

the characteristic has been extinguished;

ii)

where both the used oil and the characteristic hazardous waste

have been generated and mixed by the same generator, and;

iii)

where the mixture contains more than fifty percent used oil by

either volume or weight.

Mixtures of used oil as defined by and managed in accordance with 35 Ill.

Adm. Code 739 and fuel or other fuel products; and

Used oil as defined by and managed in accordance with 35 Ill. Adm. Code

739 contaminated by or mixed with nonhazardous wastewater, where the

used oil and the nonhazardous wastewater are generated by the same

generator, and where the mixture results from use or unintentional

contamination.

The transporter shall include in the manifest the following:

The name of the generator of the special waste and generator number;

Information stating when and where the special waste was generated;

The name of the person from whom delivery is accepted and the name of

the site from which delivered;

The name and permit number of the transporter;

The date of delivery; and

The classification and quantity of the special waste delivered to the

transporter.

Manifest copies to be sent to the Agency:

Every person who delivers RCRA hazardous waste or polychlorinated

biphenyl (PCB) wastes to a transporter shall submit a copy of the Illinois

manifest to the Agency within two days after the shipment. Every person

who accepts RCRA hazardous waste or PCB waste from a transporter

shall submit a copy of the Illinois manifest to the Agency within 30 days

after receipt.

A person who delivers RCRA hazardous waste or PCB wastes to a

transporter on another state's manifest, such as where the destination state

requires use of its manifest, does not have to submit manifest copies to the

Agency.

A person who delivers non-RCRA hazardous wastes or non-PCB wastes

to a transporter does not have to send a copy of the manifest to the

Agency. A person who accepts non-RCRA hazardous waste or non-PCB

wastes from a transporter does not have to send a copy of the manifest to

the Agency.

The manifest will consist of at least four parts, in contrasting colors, such that an

entry or signature on one part will be directly reproduced upon all underlying

parts. The top part of the manifest shall be signed by the person who delivers

special waste to a special waste transporter, acknowledging the delivery. The top

part of the manifest shall also be signed by the special waste transporter,

acknowledging receipt of the special waste. The person who delivers special

waste to a special waste transporter shall retain the designated parts of the

manifest as a record. The remaining parts of the manifest shall accompany the

special waste shipment. At the destination, the manifest shall be signed by the

person who accepts special waste from a special waste transporter,

acknowledging receipt of the special waste.

A permitted site that receives special waste for disposal, storage or treatment of

special waste must be designated on the manifest as the final destination point.

Any subsequent delivery of the special waste or any portion or product thereof to

a special waste transporter shall be conducted under a manifest initiated by the

permitted disposal, storage or treatment site.

In all cases, the special waste transporter shall deliver the designated parts of the

complete, signed manifest to the person who accepts delivery of special waste

from the transporter. The special waste transporter shall retain the designated part

of the complete, signed manifest as a record of delivery to a permitted disposal,

storage or treatment site. In addition, at the end of each month, or longer if

approved by the Agency, the owner and the operator of the permitted disposal,

storage or treatment site who accepts special waste from a special waste

transporter shall send the designated part of the completed manifest to the person

who delivered the special waste to the special waste transporter.

Every generator who delivers special waste to a special waste transporter, every

person who accepts special waste from a special waste transporter and every

special waste transporter shall retain their respective parts of the special waste

manifest as a record of all special waste transactions. These parts shall be

retained for three years and will be made available at reasonable times for

inspection and photocopying by the Agency.

BOARD NOTE: The manifest requirements of 35 Ill. Adm. Code 722, 724 and

725 relative to RCRA hazardous wastes are not affected by this subsection.

Generators and receiving facilities subject to those Parts shall continue to supply

designated copies of all manifests to the Agency.

Every generator who delivers nonhazardous special waste via a transporter to a

facility located outside Illinois shall file a report, on forms prescribed or provided

by the Agency, summarizing all such activity during the preceding calendar year.

Such reports shall, at a minimum, include the information specified in subsection

(i) of this Section and should be received by the Agency no later than February 1.

Every annual report required to be filed with the Agency by a generator for waste

going out of state pursuant to subsection (h) of this Section shall include the

following:

The IEPA identification number, name and address of the generator;

The period (calendar year) covered by the report;

The IEPA identification number, name and address for each off-site

treatment, storage or disposal facility to which waste was shipped during

the period;

The name and IEPA special waste hauling number of each transporter

used during the period for shipments to a treatment, storage or disposal

facility;

A description and the total quantity of each nonhazardous special waste

shipped out of state, listed by IEPA identification number of each

receiving site;

The method of treatment, storage or disposal for each nonhazardous

special waste; and

A certification signed by the generator or the generator's authorized

representative.

Every in-State facility that accepts nonhazardous special waste from a

nonhazardous special waste transporter shall file a report, on forms prescribed or

provided by the Agency, summarizing all such activity during the preceding

calendar year. Such reports should, at a minimum, include the information

specified in subsection (k) of this Section and be received by the Agency no later

than February 1. This subsection is applicable to all nonhazardous special wastes

that are delivered to a nonhazardous special waste transporter on or after January

1, 1991.

Every annual report required to be filed with the Agency by a person accepting

nonhazardous special waste from a nonhazardous special waste transporter

pursuant to subsection (j) of this Section shall include the following information:

The IEPA identification number, name and address of the facility;

The period (calendar year) covered by the report;

The IEPA identification number, name and address of each nonhazardous

special waste generator from which the facility received a nonhazardous

special waste during the period;

A description and the total quantity of each nonhazardous special waste

the facility received from off-site during the period. This information

shall be listed by IEPA identification number of each generator;

The method of treatment, storage or disposal for each nonhazardous

special waste; and

A certification signed by the owner or operator of the facility or the

owner’s or operator's authorized representative.

(Source: Amended at 33 Ill. Reg. ______, effective _________)

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on August 20, 2009, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board