VES016712-016776.pdf 
Case: l:12-cv-01441-DAP Doc#:l Filed: 06/07/12 lof28 . PagelD#:l 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF OHIO 

Civil Action No. 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

ROSS INCINERATION SERVICES, INC., 

Defendant. 

COMPLAINT 

The United States of America, by the authority of the Attorney General of the United 

States and through the undersigned attorneys, acting at the request of the United States 

Environmental Protection Agency ("EPA"), alleges as follows: 

NATURE OF THE ACTION 

This is a civil action brought under Section 113(b) ofthe Clean Air Act, 42 U.S.C. 

§ 7413(b) ("the CAA"), for injunctive relief and the assessment of civil penalties against 

Defendant Ross Incineration Services, Inc. ("Ross" or "Defendant"). The United States alleges 

that Defendant violated provisions of the National Emission Standards for Hazardous Air 

Pollutants for Hazardous Waste Combustors (the "Hazardous Waste Combustor NESHAP"), 42 

U.S.C. § 7412, codified at 40 C.F.R. Part 63, Subpart EEE. The violations at issue in this action 

occurred at Defendant's hazardous waste incinerator located in Grafton, Ohio (the "Facility"). 

JURISDICTION, VENUE, AND NOTICE 

1. This Court has jurisdiction over the subject matter and over the parties pursuant to 

Section 113(b) ofthe CAA, 42 U.S.C. § 7413(b), and pursuant to 28 U.S.C. §§ 1331, 1345, and 

1355(a). 
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2. Authority to bring this action is vested in the United States Department of Justice, 

pursuant to Sections 113(b), 42 U.S.C. § 7413(b), and pursuant to 28 U.S.C. §§ 516 and 519. 

3. . Venue lies in this District pursuant to Section 113(b) of the CAA, 42 U.S.C. 

§ 7413(b), and 28 U.S.C. §§ 1391(b) and 1395(a) because the alleged violations occurred within 

this district at a facility located in Grafton, Ohio. 

4. Notice of the commencement of this action has been given to the Ohio 

Environmental Protection Agency ("Ohio EPA") in accordance with Section 113(b) of the CAA, 

42 U.S.C. § 7413(b). 

DEFENDANT 

5. Ross is incorporated under the laws of the State of Ohio and does business in the 

State of Ohio. At all times relevant to this Complaint, Ross owned and operated a Hazardous 

Waste Incinerator, as that term is defined in 40 C.F.R. § 63.1201, located at 36790 Giles Road, 

Grafton, Ohio. 

STATUTORY AND REGULATORY BACKGROUND 

Clean Air Act 

6. The Clean Air Act establishes a regulatory scheme to protect and enhance the 

quality of the nation's air resources so as to promote the public health and welfare and the 

productive capacity of its population. 42 U.S.C. § 7401(b)(1). 

NESHAPs 

7. Congress has established a list of hazardous air pollutants ("HAPs"), which 

includes, among others, cadmium, lead, and mercury compounds. 42 U.S.C. § 7412(b)(1). 

Under Section 112(b)(2) ofthe Act, 42 U.S.C. § 7412(b)(2), EPA periodically reviews the list of 

hazardous air pollutants and, where appropriate, revises the list by rule. 
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8. Section 112(c) ofthe Act, 42 U.S.C. § 7412(c), requires the EPA Administrator to 

publish a list of all categories and subcategories of major sources and certain area sources of the 

hazardous air pollutants listed pursuant to 42 U.S.C. § 7412(b). 

9. Section 112(d) ofthe Act, 42 U.S.C. § 7412(d), requires the EPA Administrator to 

promulgate regulations establishing emission standards for each category and subcategory of 

major sources and area sources of HAPs. These emission standards are called the National 

Emission Standards for Hazardous Air Pollutants ("NESHAPs"). 

10. Sections 113(a)(3) and (b) ofthe Act, prohibit violations of any NESHAPs 

regulation. Thus, a violation of a NESHAP regulation is a violation of the Act 

11. The NESHAPs apply to facilities that are "major sources" and "area sources" of 

HAPs. 40 C.F.R. § 63.1200. "Majors sources" are sources or groups of stationary sources 

located within a contiguous area and under common control that emit or have the potential to 

emit ten tons per year or more of any HAP, or twenty-five tons per year or more of any 

combination of HAPs. 42 U.S.C. § 7412(a)(1); 40 C.F.R. § 63.2. An "area source" is any 

stationary source of HAPs that is not a major source. 42 U.S.C. § 7412(a)(2). A "stationary 

source" is any building, structure, facility, or installation that emits or may emit any air pollutant. 

42 U.S.C. § 7412(a)(3) (by reference to 42 U.S.C. § 7411(a)). 

12. Pursuantto Section 112(1) ofthe CAA, 42 U.S.C. § 7412(1), EPA may delegate to 

a State the authority to implement portions of the CAA in that State. 

13. As part ofthe approval process of the Ohio Title V program under Section 502(d) 

of Ihe CAA, 42 U.S.C. § 7661a(d), EPA delegated authority to implement the NESHAPs, 

including those not yet promulgated, to the Ohio EPA. 60 Fed. Reg. 42,045 (Aug. 15,1995); 60 

Fed. Reg. 18,790 (April 13, 1995). 
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14. Pursuant to Section 112(1)(7) ofthe CAA, 42 U.S.C. § 7412(1)(7), EPA retains 

authority to enforce delegated Section 112 programs. 

15. Pursuant to 40 C.F.R. § 63.124(a), EPA retains the authority to implement and 

enforce delegated provisions of the Hazardous Waste Combustor NESHAP. 

Hazardous Waste Combustor NESHAP 

16. Pursuant to Section 112(c) ofthe CAA; 42 U.S.C. § 7412(c), on July 16,1992 (57 

Fed. Reg. 31,576), EPA identified hazardous waste combustors as a category of sources of HAPs 

and promulgated the Hazardous Waste Combustor NESHAP, which is set forth at 40 C.F.R. Part 

63, Subpart EEE. 64 Fed. Reg. 52,828 (Sept. 30,1999). 

17. Hazardous waste combustors emit or have the potential to emit dioxins and 

furans; mercury; lead and cadmium; arsenic, beryllium, chromium; carbon monoxide ("CO") and 

hydrocarbons; hydrogen chloride and chlorine gas; and particulates. 

18. Dioxins and furans, mercury, lead, cadmium, arsenic, beryllium, chromium, CO, 

hydrocarbons, hydrogen chloride, chlorine gas, and particulates have adverse effects on human 

health and the environment. 

19. As revised on February 13,2002, (67 Fed. Reg. 6809), the Hazardous Waste 

Combustor NESHAP includes emission standards for: 

Dioxins and furans 40 C.F.R. § 63.1203(a)(1) 

Mercury 40 C.F.R. § 63.1203(a)(2) 

Lead and Cadmium 40 CFU . § 63.1203(a)(3) 

Arsenic, beryllium and chromium 40 C.F.R. § 63.1203(a)(4) 

Carbon monoxide and hydrocarbons 40 C.F.R. § 63.1203(a)(5) 

Hydrochloric acid and cUorine gas 40 C.F.R. § 63.1203(a)(6); and 

Particulates 40 C.F.R. § 63.1203(a)(7). 

The Hazardous Waste Combustor NESHAP also establishes a destruction and removal efficiency 

("DRE") standard. 40 C.F.R. § 63.1203(c). 
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20. EPA revised the Hazardous Waste Combustor NESHAP on Oct. 12,2005. (70 

Fed. Reg. 59,402). The revisions tightened and superseded various provisions ofthe 2002 

Hazardous Waste Combustor NESHAP. 40 C.F.R. § 63.1219. The revised Hazardous Waste 

Combustor NESHAP is codified as follows: 

The revised Hazardous Waste Combustor NESHAP also establishes a DRE standard. 40 C.F.R. 

§ 63.1219(c). 

21. The requirements of Subpart EEE apply to "all hazardous waste combustors," 40 

C.F.R. § 63.1200, which are defined as a "a hazardous waste incinerator, hazardous waste 

burning cement kiln, hazardous waste burning lightweight aggregate kiln, hazardous waste liquid 

fuel boiler, hazardous waste solid fuel boiler, or hazardous waste hydrochloric acid production 

furnace." 40 C.F.R. § 63.1201. 

22. Pursuant to 40 C.F.R. § 63.1201(a), "hazardous waste incinerator" is a device 

defined as an incinerator under 40 C.F.R. § 260.10 and that burns hazardous waste at any time. 

The term "hazardous waste incinerator" includes all associated firing systems and air pollution 

control devices, as well as the combustion chamber equipment. 

23. 40 C.F.R. § 260.10 defines "incinerator" to include "any enclosed device that: 

(1) Uses controlled flame combustion and neither meets the criteria for classification as a boiler, 

sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace; or (2) Meets the 

definition of infrared incinerator or plasma arc incinerator." 

Dioxins and furans 

Mercury 

Lead and Cadmium 

Arsenic, beryllium and chromium 

Carbon monoxide and hydrocarbons 

Hydrogen chloride and chlorine gas 

Particulates 

40 C.F.R. § 63.1219(a)(1) 

40 C.F.R. § 63.1219(a)(2) 

40 C.F.R.§ 63.1219(a)(3) 

40 C.F.R.§ 63.1219(a)(4) 

40 C.F.R. § 63.1219(a)(5) 

40 C.F.R. § 63.1219(a)(6); and 

40 C.F.R. § 63.1219(a)(7). 
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24. The emission standards and operating requirements in the Hazardous Waste 

Combustor NESHAP "apply at all times except: (i) During periods of start up, shutdown, and 

malfunction; and (ii) When hazardous waste is not in the combustion chamber." 40 C.F.R. § 

63.1206(b)(1). 

Compliance Requirements 

25. In order to demonstrate compliance with the carbon monoxide and hydrocarbons 

emission standard, the Hazardous Waste Combustor NESHAP requires a source to use a 

continuous emission monitor ("CEM"). 40 C.F.R. § 63.1209(a). 

26. In order to demonstrate compliance with the other emission standards and the 

DRE standard, the Hazardous Waste Combustor NESHAP requires a source to establish and 

comply with certain operating parameter limits ("OPLs"). 40 C.F.R. §§ 63.1209(j)-(o); see 40 

C.F.R. § 63.1201 ("Operating requirements means... operating parameter limits .. . that ensure 

compliance with the emission standards."). 

27. A source must use continuous monitoring systems ("CMS") to demonstrate 

compliance with the OPLs. 40 C.F.R. § 63.1209(b). 

28. All CMS shall be in continuous operation except during periods of, among other 

things, "system breakdowns." 40 C.F.R. § 63.10(c)(1). 

Compliance Date 

29. The Hazardous Waste Combustor NESHAP established an initial compliance date 

of September 30,2002, for "existing" sources. 40 C.F.R. § 63.1206(a)(1) (1999). 

30. On December 6,2001, EPA revised the initial compliance date for "existing 

sources" to September 30,2003. (66 Fed. Reg. 63,317). 
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31. On March 5,2004, Ohio EPA extended the compliance date to September 30, 

2004. 

32. Pursuant to 40 C.F.R. § 63.1201(a), "existing source" is defined as any source that 

is not a "new source." Pursuant to 40 C.F.R. §§ 63.1201(a) and 1206(a)(l)(i)(B), "new source" 

is defined for purposes of the Hazardous Waste Combustor NESHAP as any affected source the 

construction of which is commenced after April 19,1996. 

33. By the compliance date, the owner or operator of a hazardous waste combustor 

must comply with the emission standards and must identify, in a document referred to as a 

Documentation of Compliance ("DOC"), the OPLs it has established as required by the 

Hazardous Waste Combustor NESHAP. 

34. Following preparation of the DOC, and after performing a comprehensive 

performance test ("CPT"), the owner or operator of a hazardous waste combustor must confirm, 

in a document referred to as a Notification of Compliance ("NOC"), the adequacy of the OPLs. 

40 C.F.R. § 63.12070). 

35. Under the revised Hazardous Waste Combustor NESHAP, 40 C.F.R. § 63.1219, 

the compliance date was October 14,2008. 40 C.F.R. § 63.1206(a)(i)(ii) (2006). The owner or 

operator must also submit a revised NOC under the revised Hazardous Waste Combustor 

NESHAP. 

3 6. Following preparation of a DOC, the owner or operator of a hazardous waste 

combustor must comply with the OPLs and other requirements set forth in the DOC. 40 C.F.R. § 

63.1211(c)(4). 
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37. Following submittal of aNOC, the owner or operator of a hazardous waste 

combustor must comply with me OPLs and other requirements set forth in the NOC in lieu of 

those in the DOC. 40 C.F.R. §§ 63.1207(j)(l)(ii) and 63.1210(d)(2). 

Enforcement 

38. Section 113(b) ofthe CAA, 42 U.S.C. § 7413(b), authorizes the United States to 

commence a civil action for the assessment of a civil penalty of up to $25,000 per day for each 

violation whenever any person violates any requirement of the CAA. Pursuant to the Federal 

Civil Penalties Inflation Adjustment Act of 1990,28 U.S.C. § 2461 note, as amended by the 

Debt Collection Improvements Act of 1996,31 U.S.C. § 3701 note, the United States may seek 

civil penalties of up to $27,500 per day for each violation occurring on or after January 31,1997. 

Pursuant to EPA's 2004 and 2008 Civil Monetary Penalty Inflation Adjustment Rules, the 

United States may seek civil penalties of up to $32,500 per day for each violation occurring on or 

after March 16,2004, and civil penalties of up to $37,500 per day for each violation occurring on 

or after January 13,2009. 40 C.F.R. Part 19. 

GENERAL ALLEGATIONS 

Hazardous Waste Combustor 

39. At all times relevant to this Complaint, Ross has been a "person" within the 

meaning of Section 302(3) ofthe Act, 42 U.S.C. § 7602(e). 

40. At all times relevant to this Complaint, Ross has owned and operated a Hazardous 

Waste Combustor within the meaning of 40 C.F.R. § 63.1201, located at 36790 Giles Road, 

Grafton, Ohio. 

41. At all times relevant to this Complaint, the Ross facility included an "incinerator" 

within the meaning of 40 C.F.R. § 63.1201(a). 
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42. At all times relevant to this Complaint, Ross burned hazardous waste in the 

incinerator. 

43. At all times relevant to this Complaint, Ross has been, and continues to be, an 

"existing source" within the meaning of 40 C.F.R. § 63.1201(a) and an "existing source" within 

the meaning of 40 C.F.R. § 63.2. 

44. At all times relevant to this Complaint, Ross has been, and continues to be, an 

"area source" of HAPs as defined in Section 112(a)(2) ofthe Act, 42 U.S.C. § 7412(a)(2) and 40 

C.F.R. § 63.2. 

Operating Parameter Limits 

45. In order to comply with the DRE and emission standards set forth at 40 C.F.R. 

Part 63, Subpart EEE, Ross must comply with its specified OPLs. 40 C.F.R. §§ 63.1209 (j)-(o). 

46. Ross' DOC, established on or before September 30,2004 ("2004 DOC"), 

identified the OPLs necessary to comply with the emission and DRE standards at 40 C.F.R. 

§ 63.1203. The OPLs in the 2004 DOC became effective on September 30,2004, and remained 

in effect until August 3,2006. 

47. Based on CPT results from February and May 2006, Ross submitted a NOC dated 

August 4,2006, ("2006 NOC") to confirm the adequacy ofthe OPLs required by 40 C.F.R. §§ 

63.1209(j)-(o). Defendant established these OPLs to comply with the emission and DRE 

standards at 40 C.F.R. § 63.1203. The OPLs identified in the 2006 NOC became effective on 

August 4,2006 and remained in effect until October 12,2008. 

48. Ross submitted a new NOC dated October 13,2008 ("2008 NOC") to confirm the 

adequacy ofthe OPLs required by 40 C.F.R. §§ 63.1209(j)-(o). Defendant established these 
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OPLs to comply with the emission and DRE standards at 40 C.F.R. § 63.1219. The OPLs 

identified in the 2008 NOC became effective on October 13,2008 and remain in effect. 

FIRST CLAIM FOR RELIEF 

Dioxin/Furan Emissions Standard 

49. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

50. Subsection 63.1203(a)(l)(i) ofthe Hazardous Waste Combustor NESHAP and 

Subsection 63.1219(a)(l)(i) of the revised Hazardous Waste Combustor NESHAP prohibit an 

owner or operator of a hazardous waste incinerator from discharging or causing to be discharged 

into the atmosphere emissions of dioxin/furan in excess of 0.20 nanogram toxic equivalent per 

dry standard cubic meter (ng TEQ/dscm) corrected to 7 percent oxygen. Notwithstanding the • 

provision in subsection (i), subsection 63.1203(a)(l)(ii) permits an owner or operator of a 

hazardous waste incinerator to discharge up to 0.40 ng TEQ/dscm corrected to 7 percent oxygen, 

provided that the combustion gas temperature at the inlet to the initial particulate matter control 

device is 400°F or lower based on the average ofthe test run average temperatures, For purposes 

of compliance, operation of a wet particulate control device is presumed to meet the 400°F or 

lower requirement. 

51. Ross uses a wet air pollution control system. Consequently, Ross was subject to 

the 0.40 ng TEQ/dcsm dioxin/furan emission standard in 40 C.F.R. § 63.1203(a)(l)(ii) prior to 

October 13,2008, and is currently subject to the 40 ng TEQ/dcsm dioxin/furan emission 

standard in 40 C.F.R. § 63.1219(a)(l)(ii). 

52. Between February 6 and 9, 2006, and on May 9,2006, Ross conducted a CPT. 

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53. Results from Ross' 2006 CPT indicate that on one or more days between 

February 6,2006, and May 9,2006, Ross exceeded the applicable dioxin/furan emissions limit of 

0.40 ng TEQ/dscm corrected to 7 percent oxygen. 

54. Thus, on one or more days between February 8 and May 9,2006, Ross discharged 

into the atmosphere combustion gases that contained dioxins/furans in excess of 

0.40 ng TEQ/dscm corrected to 7 percent oxygen in violation of 40 C.F.R. § 63.1203(a)(l)(ii). 

. 55. On October 11 and 12,2011, Ross conducted a CPT. 

56. Ross submitted the preliminary results from the October 2011 CPT to EPA on 

December 6,2011. The results indicate that Ross exceeded the applicable dioxin/furan 

emissions limit of 0.40 ng TEQ/dscm corrected to 7 percent oxygen during the October 2011 

CPT. 

57. On December 6,2011, Ross ceased burning hazardous waste as required by 40 

C.F.R. § 63.1207(l)(l)(i). 

58. Thus, on one or more days between October 11 and December 6,2011, Ross 

discharged into the atmosphere combustion gases that contained dioxms/fufans in excess of 

0.40 ng TEQ/dscm corrected to 7 percent oxygen in violation of 40 C.F.R. § 63.1219(a)(l)(ii). 

59. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

SECOND CLAIM FOR RELIEF 

Carbon Monoxide Emission Standard 

60. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 
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61. 40 C.F.R. § 63.1203(a)(5) prohibits an owner of a hazardous waste incinerator 

from discharging or causing to be discharged into the atmosphere emissions of CO in excess of 

100 parts per million by volume (ppmV), over an hourly rolling average (monitored continuously 

with a CEM), dry basis and corrected to 7 percent oxygen. Ross was subject to this regulation 

between September 30,2004, and October 13,2008. 

62. 40 C.F.R. § 63.1219(a)(5) prohibits an owner or operator of a hazardous waste 

incinerator from discharging or causing to be discharged into the atmosphere emissions of CO in 

excess of 100 ppmV, over an hourly rolling average (monitored continuously with a CEM), dry 

basis and corrected to 7 percent oxygen. Ross has been subject to this regulation, which remains 

unchanged, on and after October 14,2008. See 40 C.F.R. 63.1206(a)(l)(ii)(A). 

63. On one or more days after February 6,2006, Ross exceeded its CO emission 

standard of 100 ppmV corrected to 7 percent oxygen. 

64. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

THIRD CLAIM FOR RELIEF 

OPL Exceedance: Minimum Rotary Kiln Temperature OPL 

65. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

66. As required by 40 C.F.R. §§ 63.12090(1) and (k)(2), the owner or operator of a 

hazardous waste combustor must establish and maintain a mmimum combustion chamber 

temperature OPL for each combustion chamber in order to comply with the DRE standard and 

the dioxin/furan emission standard. Ross has established this OPL separately for the rotary kiln 

and the main chamber. 

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67. Between September 30,2004, and August 3,2006, the applicable Mimmum 

Rotary Kiln Temperature was 1500°F as a 1-hour rolling average. On and after August 4,2006, 

the applicable Minimum Rotary Kiln Temperature OPL was 1522°F as a 1-hour rolling average. 

68. On one or more days after February 6,2006, Ross operated the incinerator in a 

manner such that temperature inside the rotary kiln fell below Ihe applicable Minimum Rotary 

Kiln Temperature OPL. 

69. By failing to maintain the rotary kiln temperature at the prescribed level, Ross has 

violated 40 C.F.R. §§ 63.12090X1) and (k)(2). 

70. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

FOURTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Main Chamber Temperature OPL 

71. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

72. As required by 40 C.F.R. §§ 63.12090)0) and (k)(2), the owner or operator of a 

hazardous waste combustor must establish and maintain a minimum combustion chamber 

temperature OPL for each combustion chamber in order to comply with the DRE standard and 

the dioxin/furan emission standard. Ross has established this OPL separately for the rotary kiln 

and the main chamber. 

73. Between September 30,2004, and August 3,2006, the applicable Minimum Main 

Chamber Temperature OPL was 1700°F as a 1-hour rolling average. On and after August 4, 

2006, the applicable Minimum Main Chamber Temperature was 1829°F as a 1-hour rolling 

average. 

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74. On one or more days after February 6,2006, Ross operated the incinerator in a 

manner such that temperature inside the main chamber fell below the applicable Minimum Main 

Chamber Temperature OPL. 

75. By failing to maintain the main chamber temperature at the prescribed level, Ross 

has violated 40 C.F.R. §§ 63.1209(j)(l) and (k)(2). 

76. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

FIFTH CLAIM FOR RELIEF 

OPL Exceedance: Maximum Flue Gas Flow Rate OPL 

77. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

78. As required by 40 C.F.R. §§ 63.1209(j)(2), 00(3), (m)(2), (n)(5), and (o)(2), the 

owner or operator of a hazardous waste combustor must establish and maintain a maximum flue 

gas flow rate OPL in order to comply with the dioxin/furan, PM, semi-volatile metals (combined 

emissions of cadmium and lead), low volatile metals (combined emissions of arsenic, beryllium, 

and chromium), and hydrogen chloride and chlorine gas emission standard and the DRE standard, 

79. Between September 30,2004, and August 3, 2006, the applicable Maximum Flue 

Gas Flow Rate OPL was 50,400 actual cubic feet per minute (acfm) as a 1-hour rolling average. 

On and after August 4,2006, the applicable Maximum Flue Gas Flow Rate OPL was 

52,300 acfm as a 1-hour rolling average. 

80. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to exceed the Maximum Flue Gas Flow Rate OPL. 

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By failing to maintain the flue gas flow rate at the prescribed level, Ross has violated 40 C.F.R. 

§§ 63.12090X2), (k)(3), (m)(2), (n)(5), and (o)(2). 

81. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

SIXTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Rotary Kiln Lance 

Atomizing Air Pressure OPL 

82. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

83. As required by 40 C.F.R. § 63.12090)(4), the owner or operator of a hazardous 

waste combustor must establish operating parameters and limits to ensure that good operation of 

each hazardous waste firing system is maintained in order to comply with the DRE standard. 

Ross established separate OPLs for the rotary kiln and the main chamber. 

84. On and after September 30,2004, the applicable Minimum Rotary Kiln Lance 

Atomizing Air Pressure OPL was 30 inches of water column on an instantaneous basis. 

85. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner that the atomizing air pressure inside the rotary kiln lance fell below the Minimum 

Rotary Kiln Lance Atomizing Air Pressure OPL. 

86. By failing to mamtain the atomizing air pressure in the rotary kiln lance at the 

prescribed level, Ross has violated 40 C.F.R. §§ 63.12090)(4). 

87. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set. 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 3 8 per day for each violation. 

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SEVENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Main Chamber Burner 

Atomizing Air Pressure OPL 

88. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

89. As required by 40 C.F.R. § 63.1209(j)(4), the owner or operator of a hazardous 

waste combustor must establish operating parameters and limits to ensure that good operation of 

each hazardous waste firing system is maintained in order to comply with the DRE standard. 

Ross established separate OPLs for the rotary kiln and the main chamber. 

90. On and after September 30,2004, the applicable Minimum Main Chamber Burner 

Atomizing Air Pressure was 28 inches of water column on an instantaneous basis. 

91. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner that the atomizing air pressure inside the main chamber fell burner below the Minimum 

Main Chamber Burner Atomizing Air Pressure OPL. 

92. By failing to maintain the atomizing air pressure in the main chamber burner at 

the prescribed level, Ross has violated 40 C.F.R. §§ 63.1209Q)(4). 

93. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

EIGHTH CLAIM FOR RELIEF 

OPL Exceedance: Maximum Total Mercury Feed Rate OPL 

94. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

95. As required by 40 C.F.R. § 63.1209(1)(1), the owner or operator of a hazardous 

waste combustor must establish and maintain a maximum total mercury feed rate in order to 

comply with the mercury emission standard. 

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96. Since August 4,2006, fhe applicable Maximum Total Mercury Feed Rate OPL 

was 0.0135 lbs/hr as a 12-hour rolling average. 

97. On one or more days after August 4,2006, Ross operated the incinerator in such a 

manner as to exceed the Maximum Total Mercury Feed Rate OPL. 

98. By failing to maintain the total mercury feed rate at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(f)(1). 

99. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

NINTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum RFS Pressure Drop OPL 

100. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

101. Pursuant to 40 C.F.R.§ 63.1209(m)(l)(i)(A), sources equipped with high energy 

wet scrubbers must establish and maintain a minimum pressure drop for the high energy wet 

scrubber in order to comply with the PM emission standard. 

102. Ross' incinerator is equipped with a Radial Flow Scrubber ("RFS"), which is a 

high energy wet scrubber. 

103. Since September 30,2004, the applicable Minimum RFS Pressure Drop OPL was 

17 inches of water column as a 1-hour rolling average. 

104. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the Minimum RFS Pressure Drop OPL. 

105. By failing to maintain the RFS pressure drop at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(m)(l)(i)(A). 

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106. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

TENTH CLAIM FOR RELIEF 

OPL Exceedance: Maximum Closed Loop Specific Gravity OPL 

107. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

108. Pursuant to 40 C.F.R. § 63.1209(m)(l)(i)(B), sources equipped with wet 

scrubbers must ensure that the concentration of solids in the scrubber liquid does not exceed its 

concentration during the CPT in order to comply with the PM emission standard. To fulfill this 

requirement, a source may establish either a maximum solids content OPL or a minimum 

blowdown rate and either a minimum scrubber tank volume or liquid level. 

109. Ross chose to limit solids content of the scrubber liquid by establishing a 

Maximum Closed Loop Specific Gravity OPL. 

110. Between September 30,2004, and August 3,2006, the Maximum Closed Loop 

Specific Gravity OPL was 1.12 as a 12-hour rolling average. On and after August 4,2006, the 

Maximum Closed Loop Specific Gravity OPL was 1.11 as a 12-hour rolling average. 

111. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to exceed the Maximum Closed Loop Specific Gravity OPL. 

112. By failing to maintain the solids content of fhe scrubber liquid at the prescribed 

level, Ross has violated 40 C.F.R. § 63.1209(m)(l)(i)(B). 

113. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

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ELEVENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum RFS Liquid to Gas Ratio OPL 

114. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

115. Pursuant to 40 C.F.R. § 63.1209(m)(l)(i)(C), sources equipped with high energy 

wet scrubbers must establish and maintain either a rninimum liquid to gas ratio or a minimum 

scrubber water flow rate and maximum flue gas flow rate in order to comply with the PM 

emission standard. 

116. Ross' incinerator is equipped with a RFS, which is a high energy wet scrubber. 

117. Between September 30,2004, and August 3,2006, the RFS Liquid to Gas Ratio 

OPL was 17.3 gallons per thousand cubic feet (gallons/kcf). On and after August 4,2006, the 

Minimum RFS Liquid to Gas Ratio OPL was 17.0 gallons/kcf. 

118. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the Minimum RFS Liquid to Gas Ratio OPL. 

119. By failing to maintain the RFS liquid to gas ratio at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(m)(l)(i)(C)) and, thereby, failed to demonstrate compliance with 

the PM emission standard. 

120. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

TWELFTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum GLC Pressure Drop OPL 

121. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

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122. Pursuant to 40 C.F.R. § 63.1209(o)(3)(ii), sources equipped with low energy wet 

scrubbers must establish and maintain a minimum pressure drop across the wet scrubber based 

on the manufacturer's specifications in order to comply with the PM emission standard. 

123. Ross' incinerator is equipped with a Gas Liquid Contactor ("GLC"), which is a 

low energy wet scrubber. 

124. Since September 30,2004, the Minimum GLC Pressure Drop OPL was 0.75 

inches of water column as a 1 -hour rolling average. 

125. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the Minimum GLC Pressure Drop OPL. 

126. By failing to maintain the GLC pressure drop at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(o)(3)(ii). 

127. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), Ihe violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

THIRTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum GLC 

Liquid Feed Pressure/Nozzle Pressure OPL 

128. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

129. Pursuant to 40 C.F.R. § 63.1209(o)(3)(iii), sources equipped with low energy wet 

scrubbers must establish and maintain a minimum liquid feed pressure OPL to the wet scrubber 

based on the manufacturer's specifications in order to comply with the hydrogen chloride and 

chlorine gas emission standard. 

130. Ross' incinerator is equipped with a GLC, which is a low energy wet scrubber. 

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131. Between September 30,2004, and August 3,2006, the applicable Minimum GLC 

Liquid Feed Pressure/Nozzle Pressure OPL was 3.625 inches of water column as a 1-hour rolling 

average. On and after August 4,2006, the applicable Minimum GLC Liquid Feed 

Pressure/Nozzle Pressure OPL was 13.15 inches of water column as a 1-hour rolling average. 

132. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the Minimum GLC Liquid Feed Pressure/Nozzle Pressure OPL. 

133. By failing to maintain the GLC liquid feed pressure/nozzle pressure at the 

prescribed level, Ross has violated 40 C.F.R. § 63.1209(o)(3)(iii). 

134. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

FOURTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum GLC Outlet pH 

135. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

136. Pursuant to 40 C.F.R § 63.1209(o)(3)(iv), sources equipped with wet scrubbers 

must establish and maintain a Minimum GLC Outlet pH OPL in order to comply with the 

hydrogen chloride and chlorine gas emission standard. 

137. Ross' incinerator is equipped with a GLC, which is a wet scrubber. 

138. Since September 30,2004, the Minimum GLC Outlet pH OPL has been 6 as a 

1-hour rolling average. 

139. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the Minimum GLC Outlet pH OPL. 

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140. By failing to maintain the GLC outlet pH at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(o)(3)(iv). 

141. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

FIFTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum GLC Liquid to Gas Ratio OPL 

142. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

143. Pursuant to 40 C.F.R. § 63.1209(o)(3)(v), sources equipped with wet scrubbers 

must establish and maintain either a minimum liquid to gas ratio OPL or a rninimum scrubber 

water flow rate OPL and maximum flue gas flow rate OPL in order to comply with the hydrogen 

chloride and chlorine gas emission standard. 

144. Ross' incinerator is equipped with a GLC, which is a wet scrubber. 

145. Between September 30,2004, and August 3,2006, the Minimum GLC Liquid to 

Gas Ratio OPL was 45.3 gallons/kcf as a 1-hour rolling average. On and after August 4,2006, 

the Minimum GLC Liquid to Gas Ratio OPL was 49.8 gallons/kcf. 

146. On one or more days after February 6,2006, Ross operated the incinerator in such 

a manner as to fall below the apphcable Minimum GLC Liquid to Gas Ratio OPL. 

147. By failing to maintain the GLC liquid to gas ratio at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(o)(3)(v). 

148. As provided in Section 113(b) of the Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

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SIXTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Quench Inlet Header Flow Rate OPL 

149. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

150. Pursuant to 40 C.F.R. § 63.1209(g)(2), the Administrator may specify additional 

or alternative OPLs in order to document compliance with emission standards. 

151. In order to demonstrate compliance with the dioxin/furan emission standard, the 

Ohio EPA required Ross to establish a Minimum Quench Inlet Header Flow Rate OPL. 

152. On and after August 4,2006, the applicable Minimum Quench Inlet Header Flow 

Rate OPL was 544 gallons per minute as a 1-hour rolling average. 

153. On one or more days after August 4,2006, Ross operated the incinerator in such a 

manner as to fall below the Minimum Quench Inlet Header Flow Rate OPL. 

154. By failing to maintain the quench inlet header flow rate at the prescribed level, 

Ross has violated 40 C.F.R. § 63.1209(g)(2). 

155. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 3 8 per day for each violation. 

SEVENTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Wet ESP #1 Power OPL 

156. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

157. Pursuant to 40 C.F.R. § 63.1209(g)(2), the Aelministrator may specify additional 

or alternative OPLs in order to document compliance with emission standards. 

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158. On August 4,2005, Ohio EPA approved Ross' CPT plan and included an 

additional requirement to establish a minimum power OPL for each Wet Electrostatic 

Precipitator ("Wet ESP"). 

159. On and after August 4, 2006, the Minimum Wet ESP #1 Power OPL was 

0.5 kilovolt-ampere (kVa) as a 1-hour rolling average. 

160. On one or more days after August 4,2006, Ross operated the incinerator in such a 

manner as to fall below the Minimum Wet ESP #1 Power OPL. 

161. By failing to maintain the Wet ESP #1 power at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(g)(2). 

162. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

EIGHTEENTH CLAIM FOR RELIEF 

OPL Exceedance: Minimum Wet ESP #2 Power OPL 

163. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

164. Pursuant to 40 C.F.R § 63.1209(g)(2), the Administrator may specify additional 

or alternative OPLs in order to document compliance with emission standards. 

165. On August 4,2005, Ohio EPA approved Ross' CPT plan and included an 

additional requirement to establish a minimum power OPL for each Wet ESP. 

166. On and after August 4,2006, the Minimum Wet ESP #2 Power OPL was 12 kVa 

as a 1-hour rolling average. 

167. On one or more days after August 4,2006, Ross operated the incinerator in such a 

manner as to fall below the Minimum Wet ESP #2 Power OPL. 

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168. By failing to maintain the Wet ESP #2 power at the prescribed level, Ross has 

violated 40 C.F.R. § 63.1209(g)(2). 

169. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

NINETEENTH CLAIM FOR RELIEF 

Recordkeeping Violations 

170. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 

171. ' Pursuant to 40 C.F.R § 63.1211, a source must retain, among other things 

"information required to document and maintain comphance with the regulations of Subpart EEE, 

including data recorded by continuous monitormg systems (CMS), and copies of all notifications, 

reports, plans, and other documents submitted to the Administrator." 

172. In accordance with 40 C.F.R § 63.1211, the following recording keeping 

requirements in the General NESHAP apply to Ross: 

40 C.F.R. § 63.10(b)(2)(vii) provides that an owner or operator shall maintain all required 

measurements needed to demonstrate compliance with a relevant standard. 

40 C.F.R. § 63.10(c)(1) provides that an owner or operator required to install a CMS shall 

maintain records of all required CMS measurements. 

40 C.F.R § 63.10(c)(8) provides that an owner or operator required to install a CMS shall 

maintain records of the specific identification of each time period of parameter 

monitoring exceedances that occur during periods other than startups, shutdowns, and 

malfunctions. 

173. In accordance with 40 C.F.R. § 63.10(b)(1), Ross must maintain files of all 

infonnation (including all reports and notifications) required by the Hazardous Waste Combustor 

NESHAP in a form suitable and readily available for inspection and review. The files shall be 

retained for at least five years. 

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174. 40 C.F.R. § 63.1206(c)(5)(ii) requires Ross to specify the following in its CPT 

plan and NOC: the method that Ross will use to control combustion system leaks; the monitoring 

and recording frequency of the pressure monitor; and how the monitoring approach will be 

integrated into the automatic waste feed cutoff ("AWFCO") system. 

175. To comply with 40 C.F.R. § 63.1206(c)(5)(i), Ross chose to control combustion 

system leaks by maintaining the maximum combustion zone pressure lower than ambient 

pressure as set forth in 40 C.F.R. § 63.1206(c)(5)(i)(B). 

176. 40 C.F.R. § 63.1209(p) requires an owner or operator to monitor the pressure 

instantaneously. 

177. In the 2003 CPT plan and the NOCs, Ross established comphance with the Main 

Chamber Pressure and Kiln Pressure limits in terms of six consecutive 1-second exceedances. 

178. In February 2005, Ross modified the threshold for activation ofthe AWFCO 

system from six consecutive 1-second measurements above a maximum pressure of 0.0 inches of 

water column to ten consecutive 1-second measurements above a maximum of-0.05 inches of 

water column. 

179. Ross does not record CMS monitoring results at 1-second intervals for the Main 

Chamber Pressure and Kiln Pressure limits. 

180. By failing to maintain records of the Main Chamber Pressure and Kiln Pressure 

limits at 1-second intervals, Ross has violated 40 C.F.R. § 63.1211 and the associated provisions 

ofthe General NESHAP. 

181. As provided in Section 113(b) ofthe Act, 42 U.S.C. § 7413(b), the violations set 

forth in this claim subject Ross to injunctive relief and a civil penalty of up to the statutory 

maximum amounts set forth in Paragraph 38 per day for each violation. 

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PRAYE R FOR RELIEF 

WHEREFORE, Plaintiff United States respectfully requests that this Court: 

1. Issue an injunction requiring Ross to remedy its past and current noncompliance 

with the CAA and the implementing regulations under those statutes, and to comply 

prospectively with all applicable requirements; 

2. Assess civil penalties against Ross for up to the amounts provided in the CAA for 

each day of violation; 

3. Award the United States its costs and disbursements in this action; and 

4. Grant such relief as this Court deems just and proper. 

Respectfully submitted, 

THE UNITED STATES OF AMERICA 

KMACIA S. MORENO 

Assistant Attorney General 

Environment and Natural Resources Division 

U.S. Department of Justice 

SUMONA N. MAJUmBaR 

Trial Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611 

Washington, DC 20044-7611 

Telephone: (202) 514-3581 

Facsimile: (202)616-6584 

Sumona.Majumdar@usdoj .gov 

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STEVEN M. DETTELBACH 

United States Attorney 

Northern District of Ohio 

STEVEN J. PAFFILAS (0037376) 

Assistant United States Attorney 

Northern District of Ohio 

801 W. Superior Avenue, Suite 400 

Cleveland, OH 44113 

Telephone: (216)622-3698 

Facsimile: (216) 522-4928 

Steven.Paffilas@usdoj.gov 

OF COUNSEL: 

CHARLES MIKALIAN 

EATON WEILER 

Associate Regional Counsel 

U.S. Environmental Protection Agency, Region 5 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF OHIO 

THE UNITED STATES OF AMERICA 

Plaintiff, 

v. 

ROSS INCINERATION SERVICES, INC. 

Defendant. 

No, 12-cv-01441 

Hon. Dan Aaron Polster 

CONSENT DECREE 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 2 of 36. PagelD #: 158 

TABLE OF CONTENTS 

I. JURISDICTION AND VENUE . 2 -

II. APPLICABILITY -2 -

III. DEFINITIONS - 3 -

IV. CIVIL PENALTY - 6 -

V. CONTROL SYSTEM IMPROVEMENTS - 6 -

VI. POWER QUALITY IMPROVEMENTS -9 -

VII. DATA RECORDING MODIFICATIONS -12 -

VIII. INVESTIGATION, CORRECTIVE ACTION AND REPORTING -13-

IX. PERMITS • -13 -

X REPORTING REQUIREMENTS -13 -

XI. STIPULATED PENALTIES -15 -

Xtl. FORCE MAJEURE - 18 -

XLIL DISPUTE RESOLUTION - 20 -

XIV. INFORMATION COLLECTION AND RETENTION - 22 -

XV. EFFECT OF SETTLEMENT/RESERVATON OF RIGHTS - 24 -

XVI. COSTS -25-

XVII. NOTICES - 26 -

XVIII. EFFECTIVE DATE - 27 -

XLX. RETENTION OF JURISDICTION - 27 -

XX. MODIFICATION - 27 -

XXI. TERMINATION -28-

XXII. PUBLIC PARTICIPATION - 29 -

i 

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XXIII. SIGNATORIES/SERVICE - 29 

XXrV. INTEGRATION -29 

ii 

VES016742 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 4 of 36. PagelD #: 160 

WHEREAS, Plaintiff United States of America, on behalf of the United States 

Environmental Protection Agency ("EPA"), filed a complaint in this action on June 7,2012, 

alleging that Defendant Ross Incineration Services, Inc. ("Defendant" or "Ross"), violated, and 

continues to violate, various provisions of the National Emission Standards for Hazardous Air 

Pollutants from Hazardous Waste Combustors ("Hazardous Waste Combustor NESHAP"), 

42 U.S.C. § 7412, codified at 40 C.F.R. Part 63, Subpart EEE, at its hazardous waste incinerator 

located in Grafton, Ohio (the "Facility"). 

The alleged violations mclude violations of: the dioxin/furan emission standard and the 

carbon monoxide ("CO") emission standard set forth in the Hazardous Waste Combustor 

NESHAP; violations of numerous operating parameter limits ("OPLs") necessary to comply with 

the Destruction and Removal Efficiency ("DRE") and emission standards set forth in the 

Hazardous Waste Combustor NESHAP; and violations of the recordkeeping provisions ofthe 

Hazardous Waste Combustor NESHAP. 

Defendant denies any liability to the United States arising out ofthe transactions or 

occurrences alleged in the Complaint and alleges the overwhelming majority of the alleged 

violations constitute "malfunctions" as that term is defined by 40 C.F.R. § 63.2. 

The Parties recognize, and the Court by entering this Consent Decree finds, that: (1) this 

Consent Decree has been negotiated by the Parties in good faith in settlement ofthis action; 

(2) entry of this Consent Decree will avoid litigation between the Parties; and (3) this Consent 

Decree is fair, reasonable, and in the public interest. 

NOW, THEREFORE, before the taking of any testimony, without the adjudication or 

admission of any issue of fact or law except as provided in Section I (Jurisdiction and Venue) of 

VES016743 
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this Consent Decree, and with the consent ofthe Parties, IT IS HEREBY ADJUDGED, 

ORDERED, AND DECREED as follows: 

I. JURISDICTION AND VENUE 

1. This Court has jurisdiction over the subject matter ofthis action, pursuant to 

28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) ofthe Clean Air Act ("CAA" or "Acf), 

42 U.S.C. § 7413(b), and over the Parties. Venue lies in this district pursuant to Section 113(b) 

ofthe CAA, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and 1395(a) because the violations 

alleged in the Complaint are alleged to have occurred in, and Defendant conducts business in, 

this judicial district. For purposes of this Consent Decree, or any action to interpret, enforce or 

resolve differences regarding this Decree, the Parties consent to the Court's jurisdiction over this 

Consent Decree and any such action and consent to venue in this judicial district. 

2. For purposes of this Consent Decree, Defendant agrees that the Complaint states a 

claim upon which relief may be granted pursuant to Section 113(b) of the Act, 42 U.S.C. 

§ 7413(b). 

II. APPLICABILITY 

3. The obligations of this Consent Decree apply to and are binding upon the United 

States, and upon Defendant and any successors, assigns, or other entities or persons otherwise 

bonnd by law. 

4. No transfer of ownership or operation of the Facility, whether in compliance with 

the procedures of this Paragraph or otherwise, shall relieve Defendant of its obligation to ensure 

that the terms of the Consent Decree are implemented. Unless this Consent Decree has 

terminated, at least 30 Days prior to such transfer, Defendant shall provide a copy of this 

Consent Decree to the proposed transferee and shall simultaneously provide written notice ofthe 

- 2 -

VES016744 
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prospective transfer, together with a copy of the proposed written agreement, to EPA Region 5, 

the United States Attorney for the Northern District of Ohio, and the United States Department 

of Justice, in accordance with Section XVJJ (Notices) of this Consent Decree. Any attempt to 

transfer ownership or operation ofthe Facility without complying with this Paragraph constitutes 

a violation of this Consent Decree. 

5. Defendant shall provide a copy ofthis Consent Decree to all officers, employees, 

and agents whose duties might reasonably include instituting any provision of this Consent 

Decree, as well as to any contractor retained to perform work, required under this Consent Decree. 

Defendant shall condition any such contract upon performance of the work in conformity with 

the terms ofthis Consent Decree. 

6. In any action to enforce this Consent Decree, Defendant shall not raise as a 

defense the failure by any of its officers, directors, employees, agents, or contractors to take any 

actions necessary to comply with the provisions of this Consent Decree. 

7. Purpose: It is the express purpose ofthe Parties in entering this Consent Decree to 

further the objectives ofthe Act, as enunciated in Section 101 ofthe Act, 42 U.S.C. § 7401 etseq. 

All plans, reports, construction, maintenance, and other obligations of this Consent Decree are 

intended to prevent or minimize (duration and magnitude) future emission standard and OPL 

exceedances to the extent feasible. 

HI. DEFINITIONS 

8. Terms used in this Consent Decree that are defined in the Act or in regulations 

promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such 

regulations, unless otherwise provided in this Consent Decree. Whenever the terms set forth 

helow are used in this Consent Decree, the following definitions shall apply: 

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A. "Complaint" shall mean the complaint filed by the United States in this 

action; 

B. "Consent Decree" or "Decree" shall mean this Decree and all appendices 

attached hereto; 

C. "Date of Entry" or "Entry of the Consent Decree" shall mean the date that 

this Consent Decree is entered as a judgment by the Clerk of fhe Court for the United States 

District Court for the Northern District of Ohio after being signed by a United States District 

Judge; 

D. "Date of Lodging" shall mean the date the United States lodges a copy of 

this signed Consent Decree with the Court, prior to noticing this Decree in the Federal Register; 

E. "Day" shall mean a calendar day unless expressly stated to be a business 

day. In computing any period of time under this Consent Decree, where the last day would fall 

oa a Saturday, Sunday, or federal holiday, the period shall run until the close of business ofthe 

next business day; 

F. "Defendant" or "Ross" shall mean Ross Incineration Services, Inc.; 

G. "EPA" shall mean the United States Environmental Protection Agency 

and any of its successor departments or agencies; 

H. "Effective Date" shall have the definition provided in Section XVIII 

(Effective Date) of this Consent Decree; 

I. "ESV Opening" shall mean any opening of the emergency safety vent 

while hazardous waste is burning in Defendant's Facility; 

J. "Facility" shall mean Defendant's hazardous waste incinerator located in 

Grafton, Ohio; 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 8 of 36. PagelD #: 164 

K. "Ohio EPA" shall mean the Ohio Environmental Protection Agency and 

any of its successor departments or agencies; 

L. "OPL(s)" shall mean the operating parameter limit(s) at the Facihty that 

Defendant, EPA, or Ohio EPA has established or will establish pursuant to the Hazardous Waste 

Combustor NESHAP; 

M. "Malfunction" shall mean any sudden, infrequent, and not reasonably 

preventable failure of air pollution control and monitoring equipment, process equipment, or a 

process to operate in a normal or usual manner which causes, or has the potential to cause, the 

emission limitations in an applicable standard to be exceeded. Failures that are caused in part by 

poor maintenance or careless operation are not malfunctions; 

N. "Paragraph" shall mean a portion of this Consent Decree identified by an 

Arabic numeral; 

O. 'Tarries" shall mean the United States and Defendant; 

P. "Section" shall mean a portion of this Decree identified by a Roman 

numeral; 

Q. "State" shall mean the State of Ohio; 

R. "Title V Permit" shall mean the pennit issued to Defendant by Ohio EPA 

pursuant to Subchapter V ofthe CAA, 42 U.S.C. §§ 7661-7661e; 

S. "United States" shall mean the United States of America, acting on behalf 

of EPA; and 

T. "WFCO" shall mean the waste feed cutoff process employed by 

Defendant to stop the addition of hazardous waste to Defendant's Facility following an OPL 

and/or emission standard exceedance or other operational issue. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 9 of 36. PagelD #: 165 

IV. CIVIL PENALTY 

9. Within 30 Days after the Effective Date of this Consent Decree, Defendant shall 

pay the sum of $400,000 as a civil penalty. 

10. Defendant shall pay the civil penalty due by FedWire Electronic Funds Transfer 

("EFT") to the U.S. Department of Justice in accordance with written instnictions to be provided 

to Defendant, following entry of the Consent Decree, by the Financial Litigation Unit ofthe U.S. 

Attorney's Office for the Northern District of Ohio, 801 W. Superior Avenue, Suite 400, 

Cleveland, OH 44113, phone: (216) 622-3600. At the time of payment, Defendant shall send a 

copy ofthe EFT authorization form and the EFT transaction record, together with a transmittal 

letter, which shall state that the payment is for the civil penalty owed pursuant to the Consent 

Decree in United States of America v. Ross Incineration Services. Inc.. and shall reference the 

civil action number and DOJ case number 90-5-2-1-10042, to the United States in accordance 

with Section XVII (Notices); by email to acctsreceivable.CINWD@epa.gov; and by mail to: 

EPA Cincinnati Finance Office 

26 Martin Luther King Drive 

Cincinnati, Ohio 45268 

11. Defendant shall not deduct any penalties paid under this Decree pursuant to this 

Section or Section XI (Stipulated Penalties) in calculating its federal income tax. 

V. CONTROL SYSTEM IMPROVEMENTS 

12. Not later than 240 Days after the Effective Date of the Consent Decree, Ross shall 

have completed construction and commenced operation of a new control system that reflects the 

following: 

A. The goals of the new control system shall include, among other things, 

reducing emission standard and OPL exceedances, increasing reliability, improving efficiency 

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VES016748 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 10 of 36. PagelD #: 166 

and monitoring of operations, reducing interruptions and distractions for kiln control room 

operators, and reducing the number of nuisance or non-critical alarms. 

B. Improvements to Distributed Control System. Ross will design, purchase, 

install and begin operation of a new distributed control system which reflects the following 

elements: 

i. Installation of two new redundant Rockwell controllers and migration 

of all existing control logic (the programming) to these new 

controllers. Migration of all existing logic shall occur within 240 days 

of the Effective Date of the Consent Decree; 

ii. Installation of new Rockwell input/output ("I/O") devices to replace 

the existing Honeywell I/O devices; 

iii. Installation of three new operator workstations with new graphics and 

alarm screens; 

iv. Implementation of a new Data Historian with redundant data 

collection nodes. The Data Historian System shall be used to record 

and store process data as set forth in Section VII below; 

v. During the installation of the new distributive control system, 

implementation of an off-line virtual controller environment to allow 

logic modifications, testing, and training without disturbing system 

operations; 

vi. Removal of all Honeywell controllers, I/O devices, and operator 

workstations; 

vii. Development of new alarm summary screens; 

viii. Elimination and rationalization of obsolete programming; and 

ix. Modifications to control logic to support changes in control strategy. 

C. Ross will design, purchase, install and begin operation of a new control 

room that includes the following elements: 

i. Two operator workstations, each with multiple monitors; 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 11 of 36. PagelD #: 167 

ii. Multi-purpose overhead monitors to display video of various process 

locations (feed conveyors, combustion chambers, lances, etc.) or alarm 

summary information; 

iii. Windows to overlook the process area south ofthe incinerator; and 

iv. Environmental controls to maintain a distraction-free environment for 

the operators. 

13. Instrumentation Modifications: Not later than 60 Days after the Effective Date of 

the Consent Decree, Ross shall have implemented the following modifications to the incineration 

equipment and instrumentation at the Facility with the goal of preventing and minimizing 

(duration and magnitude) future OPL and/or CO emission limit exceedances: 

A. Change the automatic WFCO set point for the Kiln Lance Atomizing Air 

Pressure OPL to 110% ofthe OPL value; 

B. Modify the interlock strategy for the total quench flow measurement as 

follows: 

Current Interlock Modified Interlock 

Emergency water operates and waste 

feed, auxiliary fuel, and combustion 

fans stop if total quench flow goes 

below low-low flow alarm or quench 

flow measurement is bad value for 

greater than 5 seconds while the 

quench outlet temperature is greater 

than low temperature alarm. 

Emergency water operates and waste 

feed, auxiliary fuel, and combustion 

fans stop if total quench flow goes 

below low-low flow alarm or quench 

flow measurement is bad value, as 

well as quench nozzle pressure below 

low-low pressure alarm, for greater 

than 5 seconds each while the quench 

outlet temperature is greater than low 

temperature alarm. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 12 of 36. PagelD #: 168 

14. Within 90 Days of completing all activities under this Section, Defendant shall 

seek to modify its Title V Permit to incorporate any necessary changes to its Title V Pennit 

resulting from the above-described Control System Improvements. 

15. Reporting Requirements. Defendant shall submit the following reports to EPA 

with respect to activities required uhder Section V (Control System Improvements): 

A. Construction Completion Report. Within 30 Days of completing all 

activities required under this Section, Defendant shall submit a Construction Completion Report 

to EPA. In the Construction Completion Report, Defendant shall: 

i. Certify to EPA whether Defendant completed all activities required 

under this Section in accordance with the requirements thereof; and 

ii. Describe any issues or problems identified in performance of the 

requirements under this Section and the resolution of those issues or 

problems. 

B. Performance Report. Within 30 Days after 12 months have elapsed since 

beginning operation of the improved control system, Defendant shall submit a Performance 

Report to EPA. In the Performance Report, Defendant shall: 

i. Describe any issues or problems identified in performance of the 

specified improvements; 

ii. Describe deviations and the rationale therefore from the specified 

improvements, including changes to control system settings, alarms, 

and control strategies; and 

iii. Describe all measures taken to prevent and minimize exceedances of 

emission standards and OPLs caused by events during the performance 

report period. 

VI. POWER QUALITY IMPROVEMENTS 

16. Not later than 240 Days after the Effective Date of the Consent Decree, Ross shall 

complete the implementation ofthe following changes to its facility power distributive systems: 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 13 of 36. PagelD #: 169 

A. Install a Rockwell ProDysc Extended Runtime voltage sag corrector (or 

engineering equivalent) to feed the primary side ofthe 15kVA transformer in fhe Electrical 

Building Motor Control Center B and remove or relocate non-critical circuits on the Electrical 

Building Motor Control Center B distribution panel; 

B. Move Air Pollution Control Return Pump Drive 120V control power to 

the conditioned power panel in Electrical Building Motor Control Center B, set drive parameters 

for optimal ride-through, and install 24VDC power supply to feed the drive control cards on 

terminals 35 and 36; 

C. Move Electrical Building Remote I/O Rack RIO-01 power feed to the 

conditioned power panel in Electrical Building Motor Control Center B; ' 

D. Install a coil lock relay in the motor starter for the Main Chamber 

Combustion Air Fan; 

E. Move ID Fan Drive 120V control power to the conditioned power panel in 

Electrical Building Motor Control Center B and set drive parameters for optimal ride-through; 

F. Install a Rockwell Mini-DySC voltage sag corrector (or engineering 

equivalent) to protect processor power to Distributed Control System components in the 

metering building; 

G. Maintain existing Uninterruptible Power Source in the Closed Loop 

Control Building; 

H. Move Flow Meter Panel control power to existing Uninterruptible Power 

Source in the Closed Loop Control Building; 

I. Install a Rockwell ProDysc Extended Runtime voltage sag corrector (or 

engineering equivalent) to feed the primary side of the 15kVA transformer in the Closed Loop 

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Motor Control Center A and remove or relocate non-critical circuits on the Closed Loop Motor 

Control Center A distribution panel; 

J. Move Variable Frequency Drive Building Remote I/O Rack RIO-02 

power feed to the conditioned power panel in Closed Loop Motor Control Center A and maintain 

existing Uninterruptible Power Source in the I/O panel; 

K. Move Coohng Tower Pump Drive 120V control power to the conditioned 

power panel in Closed Loop Motor Control Center A, set drive parameters for optimal ridethrough, and install 24VDC power supply to feed the drive control cards on terminals 35 and 36; 

L. Move Clarifier Pump Drive 120V control power to the conditioned power 

panel in Closed Loop Motor Control Center A, set drive parameters for optimal ride-through, and 

install 24VDC power supply to feed the drive control cards on terminals 35 and 36; and 

M. Install Bonitron SAG UPD ride-through devices (or engineering 

equivalent) on the DC bus ofthe variable frequency drives for the ID Fan, Air Pollution Control 

Return Pumps, Cooling Tower Pumps, and Clarifier Pumps (ten protected drives total). 

17. Reporting Requirements. Defendant shall submit the following reports to EPA 

with respect to activities required under Section VI (Power Quality Improvements): 

A. Construction Completion Report. Within 30 Days of completing all 

activities required under this Section, Defendant shall submit a Construction Completion Report 

to EPA. In the Construction Completion Report, Defendant shall: 

i. Certify to EPA whether Defendant completed all activities required 

under this Section in accordance with the requirements thereof; and 

ii. Describe any issues or problems identified in performance ofthe 

requirements under this Section and the resolution of those issues or 

problems. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 15 of 36. PagelD #: 171 

B. Performance Report. Within 30 Days after 12 months have elapsed 

since implementation ofthe power quality improvements, Defendant shall submit a Performance 

Report to EPA. In the Performance Report, Defendant shall: 

i. Describe any issues or problems identified in performance ofthe 

specified improvements; 

ii. Describe deviations and the rationale therefore from the specified 

improvements; and 

iii. Describe all measures taken to prevent and minimize exceedances of 

emission standards and OPLs caused by events during the performance 

report period. 

VIL DATA RECORDING MODIFICATIONS 

18. Not later than 180 days from the Effective Date of the Consent Decree, Defendant 

shall implement changes to its data acquisition system to allow the monitoring, recording and 

reporting of 1-second data points for each combustion chamber used by Defendant to detennine 

compliance with 40 C.F.R. § 63.1209(p) (maximum combustion chamber pressure). 

19. Within 45 Days of the Effective Date of the Consent Decree, Defendant shall 

implement changes necessary to allow the monitoring, recording, and reporting of the pumpable 

arid total (i.e., pumpable and nonpumpable) hazardous waste feed rate for each combustion 

chamber of the incinerator, exclusive of the auxiliary fuel feed rate. The auxiliary fuel feed shall 

be monitored, recorded, and reported separately. 

20. Data Recording Modifications Completion Report. Within 30 Days of 

completing all activities required under this Section, Defendant shall submit a Data Recording 

Modifications Completion Report to EPA. In the Construction Completion Report, Defendant 

shall certify to EPA whether Defendant completed all activities required under this Section. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 16 of 36. PagelD #: 172 

VIII. INVESTIGATION. CORRECTIVE ACTION AND REPORTING 

21. Defendant shall provide a copy of all quarterly, semiannual and annual air reports 

required to be submitted to the Ohio EPA, to the EPA by email to Charles Hall 

(Hall .Charles@,epa.gov-) within seven (7) Days of submitting the reports to the Ohio EPA. These 

include, but are not limited to, reports concerning malfunctions and non-malfunctions as those 

terms are described in Paragraph 8.M 

22. Nothing in this Consent Decree shall excuse Defendant from complying with the 

investigation, corrective action and reporting provisions ofthe Hazardous Waste Combustor 

NESHAP, including, but not limited to, 40 C.F.R. §§ 63.1206(c)(2)(v)(A)(3), 63.1206(c)(3)(v) 

and63.1206(c)(3)(vi). 

IX. PERMITS 

23. Permits. Where any compliance obligation under this Consent Decree requires 

Defendant to obtain a federal, state, or local permit or approval, Defendant shall submit timely 

and complete applications and take all other actions necessary to obtain all such permits or 

approvals. Defendant may seek relief under the provisions of Section XII (Force Majeure) for 

any delay in the performance of any such obligation resulting from a failure to obtain, or a delay 

in obtaining, any permit or approval required to fulfill such obligation, if Defendant has 

submitted timely and complete applications and has taken all other actions necessary to obtain all 

such permits or approvals. 

X. REPORTING REQUIREMENTS 

24. In addition to other reports required by this Consent Decree, Defendant shall by 

January 31 of each year submit a report for the preceding calendar year that shall include a 

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description of any noncompliance with the requirements of this Consent Decree and an 

explanation of the violation's likely cause and ofthe remedial steps taken, or to be taken, to 

prevent or minimize such violation. If Defendant cannot fully explain the cause of a violation at 

the time the report is due, Defendant shall so state in the report. Defendant shall investigate the 

cause of the violation and shall then submit an amendment to the report, including a full 

explanation of the cause of the violation, within 30 Days of the Day Defendant becomes aware 

of the cause ofthe violation. Nothing in this Paragraph or the following Paragraph relieves 

Defendant of its obligation to provide the notice required by Section XII (Force Majeure). 

25. Whenever any noncompliance ofthis Consent Decree or any other event affecting 

Defendant's performance under this Decree, or the performance of its Facility, may pose an 

immediate threat to the public health or welfare or the environment, Defendant shall notify EPA 

orally or by electronic or facsimile transmission as soon as possible, but no later than 24 hours 

after Defendant first knew of the violation or event. This procedure is in addition to the 

requirements set forth in the preceding Paragraph. 

26. All reports shall be submitted to the persons designated in Section XVII (Notices). 

27. Each report submitted by Defendant under this Section shall be signed by an 

official of the submitting party and include the following certification: 

I certify under penalty of law that this document and all 

attachments were prepared under my direction or supervision in 

accordance with a system designed to assure that qualified 

personnel properly gather and evaluate the information submitted. 

Based on my inquiry of the person or persons who manage the 

system, or those persons directly responsible for gathering fhe 

information, the information submitted is, to the best of my 

knowledge and belief, true, accurate, and complete. I am aware 

that there are significant penalties for submitting false information, 

including the possibility of fine and imprisonment for knowing 

violations. 

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This certification requirement does not apply to emergency or similar notifications where 

compliance would be impractical. 

28. The reporting requirements ofthis Consent Decree do not relieve Defendant of 

any reporting obligations required by the Act or implementing regulations, or by any other 

federal, state, or local law, regulation, permit, or other requirement. 

29. Any information provided pursuant to this Consent Decree may be used by the 

United States in any proceeding to enforce the provisions of this Consent Decree and as 

otherwise permitted by law. 

XI. STIPULATED PENALTIES 

30. Defendant shall be liable for stipulated penalties to the United States for 

violations ofthis Consent Decree as specified below, unless excused under Section XII (Force 

Majeure). A violation includes failing to perform any obligation required by the terms of this 

Decree, including any workplan or schedule, according to all applicable requirements ofthis 

Consent Decree and within the specified time schedules established by this Decree. 

31. Late Payment of Civil Penalty: If Defendant fails to timely pay the civil penalty 

to the United States Department of Justice, as required to be paid under Section IV (Civil 

Penalty), Defendant shall pay a stipulated penalty of $1,000 per Day for each Day that the 

payment is late. 

32. Compliance Milestones: The following stipulated penalties shall accrue per 

violation per Day for failure to timely complete the tasks or requirements of Paragraphs 12 

(Control System Improvements), 13 (Instrumentation Modifications), 16 (Power Quality 

Improvement Plan), 18 and 19 (Data Recording Modifications): 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 19 of 36. PagelD #: 175 

Penalty Per Violation Per Day Period of Noncompliance 

$500 1st through 14th Day 

$1000 15th through 30th Day 

$2,500 31st Day and beyond 

33. Reporting Requirements. The following stipulated penalties shall accrue per 

violation per Day for each violation of the reporting requirements of Section X (Reporting 

Requirements) and the reporting requirements of Paragraphs 15,17,20, and 21 ofthis Consent 

Decree: 

Penalty Per Violation Per Day Period of Noncomphance 

$500 1st through 14th Day 

$1,000 15th through 30th Day 

$2,000 31st Day and beyond 

34. Stipulated penalties under this Section shall begin to accrue on the Day after 

performance is due or on the Day a violation occurs, whichever is applicable, and shall continue 

to accrue until performance is satisfactorily completed or until the violation ceases. Stipulated 

penalties shall accrue simultaneously for separate violations of this Consent Decree. 

3 5. Defendant shall pay any stipulated penalty within 3 0 Days of receiving a written 

demand from the United States. 

36. Stipulated penalties shall continue to accrue as provided in Paragraphs 34 and 52 

during any Dispute Resolution but need not be paid until the following: 

A. If the dispute is resolved by agreement or by a decision of EPA that is not 

appealed to the Court, Defendant shall pay accrued penalties determined to be owing, together 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 20 of 36. PagelD #: 176 

with interest at the rate specified at 28 U.S.C. § 1961, to the United States within 30 Days of the 

Effective Date of the agreement or the receipt of EPA's decision or order. 

B. If the dispute is appealed to the Court and the United States prevails in 

whole or in part, Defendant shall pay all accrued penalties determined by the Court to be owing, 

together with interest at the rate specified at 28 U.S.C. § 1961, within 60 Days of receiving the 

Court's decision or order, except as provided in subparagraph C, below. 

C. If any Party appeals the District Court's decision, Defendant shall pay all 

accrued penalties determined to be owing, together with interest at the rate specified at 28 U.S.C. 

§ 1961, within 15 Days of receiving the final appellate court decision. 

37. Defendant shall pay stipulated penalties owing to the United States in the manner 

set forth and with the confirmation notices required by Paragraph 10, except that the transmittal 

letter shall state that the payment is for stipulated penalties and shall state for which violations) 

the penalties are being paid. 

38. If Defendant fails to pay stipulated penalties according to the terms ofthis 

Consent Decree, Defendant shall be liable for interest on such penalties, as provided for in 

28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this Paragraph shall 

be construed to limit the United States from seeking any remedy otherwise provided by law for 

Defendant's failure to pay any stipulated penalties. 

39. Subject to the provisions of Section XV (Effect of Settlement/Reservation of 

Rights), the stipulated penalties provided for in this Consent Decree shall be in addition to any 

other rights, remedies, or sanctions available to the United States for Defendant's violation of 

this Consent Decree or applicable law. Where a violation ofthis Consent Decree is also a 

violation of Section 112 ofthe Act, 42 U.S.C. § 7412, or the Hazardous Waste Combustor 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 21 of 36. PagelD #: 177 

NESHAP, 40 C.F.R. Part 63, Subpart EEE, Defendant shall be allowed a credit, for any 

stipulated penalties paid, against any statutory penalties imposed for such violation. 

XII. FORCE MAJEURE 

40. "Force majeure," for purposes of this Consent Decree, is defined as any event 

arising from causes beyond the control of Defendant, of any entity controlled by Defendant, or of 

Defendant's contractors, that delays or prevents the performance of any obligation under this 

Consent Decree despite Defendant's best efforts to fulfill the obligation. The requirement that 

Defendant exercise "best efforts to fulfill fhe obligation" includes using best efforts to anticipate 

any potential force majeure event and best efforts to address the effects of any such event as it is 

occurring and after it has occurred to prevent or minimize any resulting delay to the greatest 

extent possible. "Force Majeure" does not include Defendant's financial inability to perform any 

obligation under this Consent Decree. 

41. If any event occurs or has occurred that may delay the performance of any 

obligation under this Consent Decree, whether or not caused by a force majeure event, Defendant 

shall provide notice orally or by electronic or facsimile transmission to EPA, within 72 hours of 

when Defendant first knew that the event might cause a delay. Within seven Days thereafter, 

Defendant shall provide in writing to EPA an explanation and description ofthe reasons for the 

delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or 

minimize the delay; a schedule for implementation of any measures to be taken to prevent or 

mitigate the delay or the effect of the delay; Defendant's rationale for attributing such delay to a 

force majeure event if it intends to assert such a claim; and a statement as to whether, in the 

opinion of Defendant, such event may cause or contribute to an endangerment to public health, 

welfare or the environment. Defendant shall include with any notice all available documentation 

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supporting the claim that the delay was attributable to a force majeure. Failure to comply with 

the above requirements shall preclude Defendant from asserting any claim of force majeure for 

that event for the period of time of such failure to comply, and for any additional delay caused by 

such failure. Defendant shall be deemed to know of any circumstance of which Defendant, any 

entity controlled by Defendant, or Defendant's contractors knew or should have known. 

42. If EPA agrees that the delay or anticipated delay is attributable to a force majeure 

event, the time for performance of the obligations under this Consent Decree that are affected by 

the force majeure event will be extended by EPA for such time as is necessary to complete those 

obligations. An extension ofthe time for performance of the obligations affected by the force 

majeure event shall not, of itself, extend the time for perfonnance of any other obligation. EPA 

will notify Defendant in writing of the length ofthe extension, if any, for performance of the 

obligations affected by the force majeure event. 

43. If EPA does not agree that the delay or anticipated delay has been or will be 

caused by a force majeure event, EPA will notify Defendant in writing of its decision. 

44. If Defendant elects to invoke fhe dispute resolution procedures set forth in Section 

XIII (Dispute Resolution), it shall do so no later than 15 Days after receipt of EPA's notice. In 

any such proceeding, Defendant shall have the burden of demonstrating by a preponderance of 

the evidence that the delay or anticipated delay has been or will be caused by a force majeure 

event, that the duration of the delay or the extension sought was or will be warranted under the 

circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and 

that Defendant complied with the requirements of Paragraphs 40 and 41 above. If Defendant 

carries this burden, the delay at issue shall be deemed not to be a violation by Defendant of the 

affected obligation of this Consent Decree identified to EPA and the Court. 

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XIII. DISPUTE RESOLUTION 

45. Unless otherwise expressly provided for in this Consent Decree, the dispute 

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising 

under or with respect to this Consent Decree. Defendant's failure to seek resolution of a dispute 

under this Section shall preclude Defendant from raising any such issue as a defense to an action 

by the United States to enforce any obligation of Defendant arising under this Decree. 

46. Informal Dispute Resolution. Any dispute subject to Dispute Resolution under 

this Consent Decree shall first be the subject of informal negotiations. The dispute shall be 

considered to have arisen when Defendant sends the United States a written Notice of Dispute. 

Such Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not exceed 20 Days from the date the dispute arises, unless that period is modified by 

written agreement. If the Parties cannot resolve a dispute by informal negotiations, then the 

position advanced by the United States shall be considered binding unless, within 30 Days after 

the conclusion of the informal negotiation period, Defendant invokes formal dispute resolution 

procedures as set forth below. 

47. Formal Dispute Resolution. Defendant shall invoke formal dispute resolution 

procedures, within the time period provided in the preceding Paragraph, by serving on the United 

States a written notice that it is invoking formal dispute resolution and serving a Statement of 

Position regarding the matter in dispute within 10 days thereafter. The Statement of Position 

shall include, but need not be limited to, any factual data, analysis, or opinion supporting 

Defendant's position and any supporting documentation relied upon by Defendant. 

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48. The United States shall serve its Statement of Position within 30 Days of receipt 

of Defendant's Statement of Position. The United States' Statement of Position shall include, 

but need not be limited to, any factual data, analysis, or opinion supporting that position and any 

supporting documentation relied upon by the United States. The United States' Statement of 

Position shall be binding on Defendant, unless Defendant files a motion for judicial review of the 

dispute in accordance with the following Paragraph. 

49. Defendant may seek judicial review of the dispute by filing with the Court and 

serving on the United States, in accordance with Section XVII (Notices), a motion requesting 

judicial resolution of the dispute. The motion must be filed within 30 Days of receipt ofthe 

United States' Statement of Position pursuant to the preceding Paragraph. The motion shall 

contain a written statement of Defendant's position on the matter in dispute, including any 

supporting factual data, analysis, opinion, or documentation, and shall set forth the relief 

requested and any schedule within which the dispute must be resolved for orderly 

implementation of the Consent Decree. 

50. The United States shall respond to Defendant's motion within the time period 

allowed by the Local Rules of this Court. Defendant may file a reply memorandum, to the extent 

permitted by the Local Rules. 

51. Standard of Review. Except as otherwise provided in this Consent Decree, in any 

other dispute brought under Paragraph 47, Defendant shall bear the burden of demonstrating that 

its position complies with this Consent Decree and that it is entitled to relief under the applicable 

principles of law by a preponderance of the evidence. 

52. The invocation of dispute resolution procedures under this Section shall not, by 

itself, extend, postpone, or affect in any way any obligation of Defendant under this Consent 

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Decree, unless and until final resolution ofthe dispute so provides. Stipulated penalties with 

respect to the disputed matter shall continue to accrue from the first Day of noncompliance until 

30 Days after the invocation of formal dispute resolution under Paragraph 47, but payment shall 

be stayed pending resolution of the dispute as provided in Paragraph 36. If Defendant does not 

prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in 

Section XI (Stipulated Penalties). 

XTV. INFORMATION COLLECTION AND RETENTION 

53. The United States and its representatives, including attorneys, contractors, and 

consultants, shall have the right of entry into the Facility, at all reasonable times, upon 

presentation of credentials, to: 

A. Monitor the progress of activities required under this Consent Decree; 

B. Verify any data or information submitted to the United States in 

accordance with the terms ofthis Consent Decree; 

C. Obtain samples and, upon request, splits of any samples taken by 

Defendant or its representatives, contractors, or consultants; 

D. Obtain documentary evidence, including photographs and similar data; 

and 

E. Assess Defendant's compliance with this Consent Decree. 

54. Until five years after the termination of this Consent Decree, Defendant shall 

retain, and shall instruct its contractors and agents to preserve, all non-identical copies of all 

documents, records, or ofher information (including documents, records, or other information in 

electronic form) in its or its contractors' or agents' possession or control, or that come into its or 

its contractors' or agents' possession or control, and that relate in any manner to Defendant's 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 26 of 36. PagelD #: 182 

performance of its obligations under this Consent Decree. This information-retention 

requirement shall apply regardless of any contrary corporate or institutional policies or 

procedures. At any time during this information-retention period, upon request by the United 

States, Defendant shall provide copies of any documents, records, or ofher information required 

to be maintained under this Paragraph. 

55. At the conclusion ofthe information-retention period provided in the preceding 

Paragraph, Defendant shall notify the United States at least 90 Days prior to the destruction of 

any documents, records, or other information subject to the requirements ofthe preceding 

Paragraph and, upon request by the United States, Defendant shall deliver any such documents, 

records, or other information to EPA. In the event the United States requests said documents, 

records or information, Defendant may assert that certain documents, records, or other 

mformation is privileged under the attorney-client privilege or any other privilege recognized by 

federal law. If Defendant asserts such a privilege, it shall provide the following: 

A. The title of the document, record, or information; 

B. The date of the document, record, or information; 

C. The name and title of each author ofthe document, record, or infonnation; 

D. The name and title of each addressee and recipient; 

E. A general description of the document, record, or information; and 

F. The privilege asserted by Defendant. 

However, no documents, records, or other information required to be generated by this Consent 

Decree shall be withheld on grounds of privilege. 

56. Except as otherwise provided by this Consent Decree, Defendant may assert that 

mformation required to be provided under this Section is protected as Confidential Business 

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Information ("CBI") under 40 C.F.R. Part 2. As to any information that Defendant seeks to 

protect as CBI, Defendant shall follow, the procedures set forth in 40 C.F.R. Part 2. 

57. This Consent Decree in no way limits or affects any right of entry and inspection, 

or any right to obtain information, held by the United States pursuant to apphcable federal laws, 

regulations, or permits, nor does it limit or affect any duty or obligation of Defendant to maintain 

documents, records, or other information imposed by applicable federal or state laws, regulations, 

or permits. 

XV. EFFECT OF SETTLEMENT/RESERVATON OF RIGHTS 

58. This Consent Decree resolves the civil claims of the United States for the 

violations alleged in the Complaint filed in this action through the Date of Lodging. 

59. The United States reserves all legal and equitable remedies available to enforce 

the provisions of this Consent Decree, except as expressly stated in Paragraph 58. This Consent 

Decree shall not be construed to limit the rights of the United States to obtain penalties or 

injunctive relief under the Act or implementing regulations, or under other federal laws, 

regulations, or permit conditions, except as expressly specified in Paragraph 58. 

60. In any subsequent administrative or judicial proceeding initiated by the United 

States for injunctive relief, civil penalties, other appropriate relief relating to the Facility, 

Defendant shall not assert, and may not maintain, any defense or claim based upon the principles 

of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or 

other defenses based upon any contention that the claims raised by the United States in the 

subsequent proceeding were or should have been brought in fhe instant case, except with respect 

to claims that have been specifically resolved pursuant to Paragraph 58 ofthis Section. 

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VES016766 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 28 of 36. PagelD #: 184 

61. This Consent Decree is not a permit, or a modification of any permit, under any 

federal, state, or local laws or regulations. Defendant is responsible for achieving and 

maintaining complete compliance with all apphcable federal, state, and local laws, regulations, 

and permits; and Defendant's compliance with this Consent Decree shall be no defense to any 

action commenced pursuant to any such laws, regulations, or permits, except as set forth herein., 

The United States does not, by its consent to the entry of this Consent Decree, warrant or aver in 

any manner that Defendant's compliance with any aspect of this Consent Decree will result in 

compliance with provisions of the Act, 42 U.S.C. § 7401 et seq., or with any other provisions of 

federal, state, or local laws, regulations, or permits. 

62. This Consent Decree does not limit or affect the rights of Defendant or ofthe 

United States against any third parties, not party to this Consent Decree, nor does it limit the 

rights of third parties, not party to this Consent Decree, against Defendant, except as otherwise 

provided by law. 

63. This Consent Decree shall not be construed to create rights in, or grant any cause 

of action to, any third party not party to this Consent Decree. 

XVI. COSTS 

64. The Parties shall bear their own costs ofthis action as well as the costs of Dispute 

Resolution, including attorneys' fees. Notwithstanding the above, the United States shall be 

entitled to costs (including attorneys' fees) against Defendant incurred in any other action 

necessary to collect: (a) any portion of the civil penalty; or (b) any stipulated penalties due that 

were not paid by Defendant. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 29 of 36. PagelD #: 185 

xvn. NOTICES 

65. Unless otherwise specified herein, whenever notifications, submissions, or 

communications are required by this Consent Decree, they shall be made in writing and 

addressed as follows: 

To the United States: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

Box 7611 Ben Franklin Station 

Washington, D.C. 20044-7611 

Re: DOJ No. 90-5-2-1-10042 

and 

Eaton Weiler 

Associate Regional Counsel 

U.S. Environmental Protection Agency 

Regions (C-14J) 

77 W. Jackson Blvd. 

Chicago, IL 60604-3590 

To EPA: 

Sara Breneman 

Chief, Air Enforcement and Compliance Assurance Branch 

U.S. Environmental Protection Agency 

Region 5 

77 W. Jackson Blvd., AE-17J 

Chicago, IL 60604-3590 

To Ross Incineration Services. Inc.: 

Richard D. Panza, Esq. 

Matthew W. Nakon, Esq. 

Wickens, Herzer, Panza, Cook & Batista Co. 

35765 Chester Road 

Avon, OH 44011-1262 

and 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 30 of 36. PagelD #: 186 

Mr. James N. Larson 

Ms. Patricia R. Lawson 

Ross Incineration Services, Inc. 

36790 Giles Road 

Grafton, OH 44044-9752 

66. Any Party may, by written notice to the other Parties, change its designated notice 

recipient or notice address provided above. 

67. Notices submitted pursuant to this Section shall be deemed submitted upon 

mailing, unless otherwise provided in this Consent Decree or by mutual agreement ofthe Parties 

in writing. 

XVJJL EFFECTIVE DATE 

68. The Effective Date ofthis Consent Decree shall be the date upon which this 

Consent Decree is entered by the, Court or a motion to enter the Consent Decree is granted, 

whichever occurs first, as recorded on the Court's docket. 

XIX. RETENTION OF JURISDICTION 

69. The Court shall retain jurisdiction over this case until termination ofthis Consent 

Decree, for the purpose of resolving disputes arising under this Decree or entering orders 

modifying this Decree, pursuant to Sections XIII (Dispute Resolution) and XX (Modification), or 

effectuating or enforcing compliance with the terms ofthis Decree. 

XX. MODIFICATION 

70. The terms ofthis Consent Decree, including any attached appendices, may be 

modified only by a subsequent written agreement signed by both Parties. Where the 

modification constitutes a material change to this Consent Decree, it shall be effective only upon 

approval by the Court. 

-27-

VES016769 
Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 31 of 36. PagelD #: 187 

71. Any disputes concerning modification of this Consent Decree shall be resolved 

pursuant to Section XIII (Dispute Resolution), provided, however, that, instead of the burden of 

proof provided by Paragraph 51, the Party seeking the modification bears the burden of 

demonstrating that it is entitled to the requested modification in accordance with Federal Rule of 

Civil Procedure 60(b). 

XXI. TERMINATION 

72. After Defendant has completed the requirements of Sections V (Control System 

Improvements) and VI (Power Quality Improvements) ofthis Consent Decree, and has complied 

with all other requirements of this Consent Decree, and has paid the civil penalty and any 

accrued stipulated penalties as required by this Consent Decree, Defendant may serve upon the 

United States a Request for Termination, stating that Defendant has satisfied those requirements, 

together with all necessary supporting documentation. 

73. Within 60 Days of receipt by the United States of Defendant's Request for 

Termination, the Parties shall confer informally concerning the Request and any disagreement 

that the Parties may have as to whether Defendant has satisfactorily complied with the 

requirements for termination ofthis Consent Decree. If the United States agrees that the Consent 

Decree may be terminated, the Parties shall submit, for the Court's approval, a joint stipulation 

terminating the Decree. 

74. If the United States does not agree that the Decree may be terminated, Defendant 

may invoke Dispute Resolution under Section XIII (Dispute Resolution). However, Defendant 

shall not seek dispute resolution of any dispute regarding termination, under Paragraph 47 of 

Section XIII (Dispute Resolution), until 60 Days after service of its Request for Termination. 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 32 of 36. PagelD #: 188 

XXII. PUBLIC PARTICIPATION 

75. This Consent Decree shall be lodged with the Court for a period of not less than 

30 days for public notice and comment in accordance with 28 C.F.R.§ 50.7. The United States 

reserves the right to withdraw or withhold its consent if the comments regarding the Consent 

Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, 

improper, or inadequate. Defendant consents to entry ofthis Consent Decree without further 

notice and agrees not to withdraw from or oppose entry of this Consent Decree by the Court or to 

challenge any provision of the Decree, unless the United States has notified Defendant in writing 

that it no longer supports entry of the Decree. 

XXm. SIGNATORJJES/SERVTCE 

76. Each undersigned representative of Defendant and the Acting Assistant Attorney 

General for the Environment and Natural Resources Division of the Department of Justice or his 

designee certifies that he or she is fully authorized to enter into the terms and conditions ofthis 

Consent Decree and to execute and legally bind the Party he or she represents to this document. 

77. This Consent Decree may be signed in counterparts, and its validity shall not be 

challenged on that basis. Defendant agrees to accept service of process by mail with respect to 

all matters arising under or relating to this Consent Decree and to waive the formal service 

requirements set forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any 

applicable Local Rules of this Court including, but not limited to, service of a summons. 

XXIV. INTEGRATION 

78. This Consent Decree constitutes the final, complete, and exclusive agreement and 

understanding among the Parties with respect to the settlement embodied in the Decree and 

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supersedes all prior agreements and understandings, whether oral or written, concerning the 

settlement embodied herein. Other than deliverables that are subsequently submitted and 

approved pursuant to this Decree, no other document, nor any representation, inducement, 

agreement, understanding, or promise, constitutes any part ofthis Decree or the settlement it 

represents, nor shall it be used in construing the terms of this Decree 

IT IS SO ORDERED 

Dated and entered this day of , 2014 

United States District Judge 

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Case: l:12-cv-01441-DAP Doc #: 27-1 Filed: 10/28/14 34 of 36. PagelD #: 190 

Consent Decree in United States v. Ross Incineration Services, Inc, 

No. 12-CV-01441 

Consented and agreed to by: 

ON BEHALF OF THE UNITED STATES: 

^ Date: /0'22-fo'<t 

THOMAS A. MARIANI V ~ 

Deputy Section Chief / 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

_SWCfONA N. MAJUMDAR 

Trial Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

301 Howard Street 

Suite 1050 

San Francisco, GA 94105 

Tel: (415) 744-6473 

Fax:(415)744-647.6 

SiiTnona-Maiumdartaiusdoi .gov 

STEVEN M . DETTELBACH 

United States Attorney 

STEVEN J. PAFFILAS 

Assistant United States Attorney 

Northern District of Ohio 

801 W. Superior Avenue* Suite 400 

Cleveland, OH 44112 

Tel: (216) 622-3698 

Fax: (216)522-4926 

Steven.Paffilas(S),usdoi.gov 

-31 -
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Consent Decree in United States v. Ross Incineration Services, Inc. 

No. i2-cv-01441 

ON BEHALF OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY: 

SUSAN HEDMAN 

Regional Administrator 

U.S. Environmental Protection Agency 

Region 5 

77 "West Jackson Boulevard 

Chicago, Illinois 60604-3507 

Tel: (312) 886-3000 

ROBERT KAPLAN V 

Regional Counsel 

U.S. Environmental Protection Agency 

Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604-3507 

Tel: (312) 886-1499 

Date 

j^r<^/-/ 4 - /^M^- — Date: A?/ ( C / 1 ^ 1 

IOBERT KAPLAN (/ 

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Consent Decree in United States v. Ross Incineration Services, Inc. 

No. 12-cv-01441 

ON BEHALF OF DEFENDANT ROSS INCINERATION SERVICES, INC.: 

Attorney 

Wickens, Herzer, Panza, Cook & Batista Co. 

35765 Chester Road 

Avon, OH 44011 

Tel: (440) 695-8055 

Fax: (440) 695-8098 

RPanza@WickensLaw.com 

President 

Ross Incineration Services, Inc. 

36790 Giles Road 

Grafton, OH 44044-9752 

-33-
65250 Federal Register/Vol. 79, No. 212/Monday, November 3, 2014/Notices 

DEPARTMENT OF JUSTICE 

Notice Lodging of Proposed Consent 

Decree Under the Clean Air Act 

On October 28, 2014, the Department 

of Justice lodged a proposed consent 

decree with the United States District 

Court for the Northern District of Ohio 

in the lawsuit entitled United States v. 

Ross Incineration Services, Inc., Civil 

Action No. 12-01441. 

The United States filed this lawsuit 

under the Clean Air Act. The United 

States' complaint seeks injunctive relief 

and civil penalties for violations of 

various provisions of the National 

Emission Standards for Hazardous Air 

Pollutants from Hazardous Waste 

Combustors at defendant's hazardous 

waste incinerator in Grafton, Ohio. The 

consent decree requires the defendant to 

perform injunctive relief and pay a civil 

penalty of $400,000. 

The publication of this notice opens 

a period for public comment on the 

proposed consent decree. Comments 

should be addressed to the Assistant 

Attorney General, Environment and 

Natural Resources Division, and should 

refer to United States v. Boss 

Incineration Services, Inc., D.J. Ref. No. 

90-5-2-1-10042. All comments must be 

submitted no later than thirty (30) days 

after the publication date ofthis notice. 

Comments may be submitted either by 

email or by mail: 

7b submit 

comments: Send them to: 

pubcomment-ees.enrd@ 

usdoj.gov. 

By mail Assistant Attorney General, 

U.S. DOJ—ENRD, P.O. Box 

7611, Washington, DC 

20044-7611. 

During the public comment period, 

the proposed consent decree may be 

examined and downloaded at this 

Justice Department Web site: http:// 

www. usdoj.gov/enrd/Consent_ 

Decrees.html. We will provide a paper 

copy of the proposed consent decree 

upon written request and payment of 

reproduction costs. Please mail your 

request and payment to: 

Consent Decree Library, U.S. DOJENRD.P.O. Box 7611, Washington, 

DC 20044-7611. 

Please enclose a check or money order 

for $8.25 (25 cents per page 

reproduction cost) payable to the United 

States Treasury. 

Maureen Katz, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FRDoc. 2014-26001 Filed 10-31-14; 8:45 am] 

BILLING CODE 44KM5-P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; Annual 

Refiling Survey 

ACTION: Notice. 

SUMMARY: The Department of Labor 

(DOL) is submitting the Bureau of Labor 

Statistics (BLS) sponsored information 

collection request (ICR) revision titled, 

"Annual Refiling Survey," to the Office 

of Management and Budget (OMB) for 

review and approval for use in 

accordance with the Paperwork 

Reduction Act (PRAJ of 1995 (44 U.S.C. 

3501 et seq.). 

DATES; Submit comments on or before 

December 3, 2014, 

ADDRESSES: A copy of this ICR with 

applicable supporting documentation; 

including a description of the likely 

respondents, proposed frequency of 

response, and estimated total burden 

may be obtained free of charge from the 

RegInfo.gov Web site at http:// 

www.reginfo.gov/pubIic/do/ 

PRAViewICR?ref_nbr=201409-1220-002 

(this link will only become active on the 

day following publication ofthis notice) 

or by contacting Michel Smyth by 

telephone at 202-693-1129 (this is not 

a toll-free number) or sending an email 

to DOL_PRA_PUBIIC@dol.gov. 

Submit comments about this request 

to the Office of Information and 

Regulatory Affairs, Attn: OMB Desk 

Officer for DOL-BLS, Office of 

Management and Budget, Room 10235, 

725 17th Street NW., Washington, DC 

20503, Fax: 202-395-6881 (this is not a 

toll-free number), email: OIRA_ 

submission@omb.eop.gov. Commenters 

are encouraged, but not required, to 

send a courtesy copy of any comments 

to the U.S. Department of Labor— 

OASAM, Office of the Chief Information 

Officer, Attn: Departmental Information 

Compliance Management Program, 

Room N1301, 200 Constitution Avenue 

NW„ Washington, DC 20210, email: 

DOL_PRA_PUBUC@dol.gov. 

FOR FURTHER INFORMATION CONTACT: 

Contact Michel Smyth by telephone at 

202-693-4129 (this is not a toll-free 

number) or by email at DOL_PRA_ 

PUBUC@dol.gov. 

Authority: 44 U.S.C. 3507(a)(1)(D). 

SUPPLEMENTARY INFORMATION: This ICR 

seeks OMB approval for revisions to the 

Annual Refiling Survey (ARS). The ARS 

is used in conjunction with the BLS 

Quarterly Census of Employment and 

Wages (QCEW) program. The primary 

purpose ofthe ARS is to verify or to 

correct the North American Industry 

Classification System (NAICS) code 

assigned to establishments as well as to 

obtain accurate mailing and physical 

location addresses of establishments. As 

a result, changes in the industrial and 

geographical compositions of the 

economy are captured in a timely 

manner and reflected in BLS statistical 

programs. The QCEW program provides 

data necessary to administer State 

Unemployment Insurance systems. 

QCEW data accurately reflect the extent 

of coverage of the State UI laws and are 

used for determining UI total and 

taxable wages rates and for other 

purposes. Federal, State, and local 

government officials as well as private 

researchers depend on accurate 

geographical and industrial coding 

based on the 2012 North American 

Industry Classification System Manual. 

This ICR has been classified as a 

revision because of changes to the scope 

and frequency of the ARS and because 

of minor revisions to the notification 

letters and collection instruments. The 

DOL, in coordination with the OMB, 

curtailed the QCEW program through a 

permanent budget reduction of $4.8 

million in FY 2014. As a part of the 

effort to develop a reduction strategy 

with minimal impact on data quality, 

the ARS is being reduced in scope and 

is changing approach. 

An analysis considered how 

frequently establishments changed their 

industry, location, and ownership. The 

analysis looked at these changes over 

three ARS cycles covering nine years, 

and it showed there were industries 

with low rates of change. Thus, certain 

NAICS industries exist that traditionally 

have low volatility based on factors 

such as infrastructure, intellectual 

property, or advanced degrees that make 

them unlikely candidates for 

transitioning from one industry to 

another. Rather than surveying onethird of businesses in these low-change 

industries every year, the QCEW 

program will survey one-sixth of these 

businesses each year, putting them on a 

six-year cycle. The six-year cycle 

preserves the ability to identify trends 

in these slow-changing industries, while 

reducing workload, postage, and other 
VES016777-016795.pdf 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

December 9, 2014 

Mr. George Czerniak 

Director, Air and Radiation Division (A-18J) 

EPA Region 5 

77 West Jackson Boulevard, 18th Floor 

Chicago, IL 60604 

Re: Viability of the Xact® Multi-metal CEMS as a tractable instrument for the collection of 

metals data related to HWC MACT compliance standards. 

Dear Mr. Czerniak: 

Brief Biographical Sketches of the Authors 

William C. Anderson holds a doctorate in Analytical Chemistry from the University of 

Tennessee. He has worked for TestAmerica Laboratories and its predecessor companies at 

the Knoxville, TN location for 31 years. His professional title as a chemical consultant is Senior 

Analytical Project Manager for Hazardous Waste Incineration projects. His specialty is the 

chemistry and analytical testing of source emissions and the related quality assurance. He has 

been involved with many incinerator test programs in the field and at the laboratory, and has 

written several papers in this field. He worked for Eli Lilly and Company on site at their 

incinerator when the Xact® CEMS was being used for compliance data collections during 

Comprehensive Performance Testing campaigns. 

Chris E. McBride holds a Bachelor of Science in Chemical Engineering from Rose-Hulman 

Institute of Technology. He is a consultant and principal with Focus Environmental, Inc. He 

began his professional career with the U.S. Army Chemical Weapons Demilitarization program 

and has spent the last 24 years in the design, performance optimization, and compliance 

testing of multiple types of Hazardous Waste Incineration and Thermal Treatment systems. 

His specialty is the design and management of source emissions testing programs for 

combustion systems. He has been involved with more than 100 combustion testing programs, 

and has written a number of papers in this field. He managed the Eli Lilly and Company test 

program for the Tippecanoe rotary kiln incinerator in 2005, and again in 2010 when the Xact® 

CEMS was being used for compliance data collections during the Comprehensive Performance 

Test. 

Please find below our comments regarding the viability ofthe Xact® multi-metal continuous 

emissions monitoring system (CEMS) proposed for use by EPA on the Veolia's Sauget, Illinois 

hazardous waste incinerators. Our position is that the Xact® CEMS performance under 

conditions representative of actual stack gas conditions in a commercial incinerator 

environment is not sufficiently accurate or precise. Emissions measurement demonstrations 

performed using the artificial "controlled" Xact® matrix do not represent actual emissions 

situations leading to an artificially high appearance of accuracy and precision. The Xact® 

CEMS actually fails to match the results obtained with EPA reference methods when direct 

Page 1 of 19 

5815 Middlebrook Pike Knoxville, TN 37921 tel 865.291.3000 fax 865.584.4315 www.testamericainc.coin 

VES016777 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

comparisons of the two are made. We believe that particulate and vapor transport 

considerations have not been adequately considered and addressed while these issues 

probably cause significant bias and residual carryover effects from previous sampling. We 

conclude that the Xact® CEMS should not be a required Title V permit item due to data 

reliability factors. In addition, we conclude EPA's stated basis for requiring 12 months of 

metals emissions data collection using the Xact® CEMS for correlation with incinerator unit 

documented metals feed rates is unwarranted. The objective of the data collection will not be 

met, that being to demonstrate the adequacy of the feedstream analyses and control system 

calculated feed rates to actual metals emissions via CEMS data and waste feed rate/analysis. 

Data generated will provide no meaningful scientific or compliance information. At the 

technology's current state, the Xact® CEMS measured metals emissions data are qualitative, at 

best, and are not usable for continuous emissions compliance demonstration for a commercial 

hazardous waste incinerator. 

Issues with the Xact® Method 301 Validation Testing 

EPA's Statement of Basis states that the Xact® CEMS was validated by Method 301 at the Eli 

Lilly and Company Tippecanoe Laboratories (Lilly) rotary kiln incinerator. The validation 

methodology used a slipstream ofthe actual stack gas which was fortified with spiked metals at 

known concentrations and subsequently sampled by the Xact® CEMS1. The data derived from 

this validation process were evaluated for precision and accuracy. A Quantitative Aerosol 

Generator (QAG) was used to generate the validation standard aerosols. The QAG is a 

Method 301 validated device which operates by nebulizing an aqueous solution into a gas 

stream at a controlled rate. The aerosol stream was sampled numerous times to assimilate 

supporting data for the Method 301 validation of the Xact CEMS. Using National Institutes of 

Standards and Technology (NIST) traceable metals salts in the QAG, the favorable Xact® 

CEMS apparent performance results were obtained. 

However, the Xact® CEMS Method 301 validation using the QAG fails to mimic the actual 

conditions in a hazardous waste incinerator stack gas. The specific materials used as 

standards are inappropriate chemically because they are not comparable to the actual 

chemistry and physical state of the compounds required to be measured in the stack gas. 

Cooper Environmental Services chose soluble metal nitrates [such as chromium nitrate, 

Cr(N03)3] to prepare the QAG aerosol solutions. Such easily dissolved metal compounds 

generate a matrix that lends itself favorably to the generation of the QAG aerosol. However, 

the aerosol generated using these easily dissolved metal nitrate salts in no way chemically 

compares to the hard-fired, resilient metal oxides compounds [such as chromium oxide, Cr 2 03 ] 

that normally exit combustion systems. Combustion temperatures and oxidative conditions 

produce metal emissions, typically oxides, which are very stable and generally insoluble in 

water without the aid of harsh chemical digestion. These tenacious chemical properties pose a 

formidable challenge to a QAG standard design which should use chemicals that are the same 

as the actual exhaust gas matrix chemical species. 

To prove the Xact® CEMS captures a representative sample and provides an accurate 

analytical result, the QAG generated matrix and the chemical species that are sampled should 

be compositionally the same as an actual stack gas. It is irrelevant that the X-ray fluorescence 

(XRF) technology alone can purportedly accurately detect metal concentrations on the 

proprietary reactive filter tape regardless of the matrix. The issue is not the analysis 

Page 2 of 19 

5815 Middlebrook Pike Knoxville, TN 37921 tel 865.291.3000 fax 865.584.4315 www.testamericainc.com 

VES016778 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

technology, but the sample collection. The problem occurs because the chemical material 

used in the combustion gas simulation sampling (QAG) and their associated transport 

mechanisms are not consistent with those of the matrix actually found in stack gas. To prove 

that the entire Xact® CEMS process is reliable, its capability of accurately extracting and 

transporting samples from an actual stack gas matrix to the analyzer must be demonstrated. 

Metals solution aerosols injected into a slipstream of stack gas are not sufficiently 

representative to make this demonstration. The metal nitrates introduced to the Xact® CEMS 

probe interface are simply not comparable to the material actually contained in stack gas 

emitted from a hazardous waste incinerator system. Until the actual matrix and chemical 

species can be matched by the QAG, and standardization implemented with actual chemical 

forms and the associated resulting particle sizes encountered by hazardous waste incinerator 

units, the tractability of the entire application should be questioned. 

Xact® CEMS versus Method 29 Sample Collection 

Method 29 is EPA's reference method for measuring multi-metals emissions. Any assessment 

as to the precision and accuracy of the Xact® CEMS must be via direct comparison to Method 

29. Such assessment of the Xact® CEMS requires understanding the operating principles of 

Method 29 and how those principles compare to and are or are not addressed by the Xact® 

CEMS operation and design. 

The XACT8 CEMS operates on a repeating 15-minute cycle time. For approximately 12 

minutes of each cycle, a sample of stack gas is extracted via a heated sampling probe and 

drawn through a filter element. The filter element is a proprietary, chemically infused material 

designed to capture metals. The filter element is mounted on a reel similar to tape. After 

sampling, the filter media is advanced on the reel to move the sample to the XRF analyzer and 

expose fresh filter media for the next sampling cycle. The filter media advancement and XRF 

analysis takes approximately 3 minutes. The cycle then repeats. During the sampling portion 

of the cycle, the stack gas is sampled at a fixed rate. The sampled volume and temperature 

are measured and corrected to standard temperature. The Xact® software uses a fixed value 

for stack gas moisture to correct to dry volume. Stack gas oxygen data from a separate 

analyzer are used to correct the measured values to 7% oxygen. 

Method 29 is a manual method. The "sampling train" consists of a heated sampling probe; 

pitot tubes for measuring stack gas differential pressure/flow; a heated quartz glass filter 

element; a series of interconnected, reagent filled, glassware impingers in an ice bath; and a 

silica gel impinger all connected to a sampling control meter box. The sampling control meter 

box includes a vacuum pump; a dry gas meter; various thermocouple monitoring inputs; 

sample probe and filter element heat controls; a manometer; and sampling vacuum controls. 

The stack is sampled isokinetically (explained later in this letter) by drawing stack gas through 

the heated sample probe, the heated glass filter element, and sparging (bubbling) through the 

reagents in the impingers. Stack gas flow rate, sampled gas flow rate, temperatures (stack 

gas, probe, filter, and dry gas meter inlet and outlet), and vacuum are continuously measured 

and adjusted as necessary to maintain isokinetics. Particulate forms of metals are deposited 

on the sampling probe internals and filter element. The impingers include two containing 

acidified peroxide in series to capture vapor forms of metals. When configured to sample for 

mercury, two additional impingers containing acidified permanganate are configured in series 

after the acidified peroxide impingers to capture any mercury that may pass through the 

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acidified peroxide impingers. The sampling train recovery generates six samples fractions: (1) 

filter element, (2) nitric acid rinse ofthe sampling probe and filter holder, (3) acidified peroxide 

impinger contents and rinses, (4) initially empty impinger contents and rinses, (5) acidified 

permanganate impinger contents and rinses, and (6) hydrochloric acid rinses of the acidified 

permanganate impingers. When analyzed, Fractions 1 and 2 are usually combined as a single 

sample for analysis; the other four fractions are analyzed separately. Fractions 1/2 and 3 are 

analyzed for multi-metals including mercury. Fractions 4, 5, and 6 are analyzed only for 

mercury. Sampled volume is calculated from dry gas meter flow measurements and 

temperatures. Stack gas moisture is calculated from the weight gain ofthe impingers including 

the silica gel impinger. Stack gas oxygen and carbon dioxide are measured separately and 

used to calculate stack gas molecular weight. Sampling rate isokinetics are determined from 

the ratio of calculated velocity atthe sample probe tip to the calculated stack gas flow rate and 

must be within +10% (sampled velocity 90-110% of the stack flow rate) for a valid sample. 

Based on our experience with Method 29, the majority of the non-mercury metals capture is 

exhibited in the filter/probe rinse (combined Fractions 1 and 2) analysis which is representative 

of particulate-bound forms of the metals. The lesser amount of vaporous forms of the nonmercury metals that pass through the filter are reacted and captured in the acidified peroxide 

impingers (Fraction 3). Our experience with mercury in nearly all cases is the filter/probe rinse 

fraction (combined Fractions 1 and 2) is non-detect, which indicates mercury is either in vapor 

form or a chemical form that readily volatilizes from the heated probe and filter surfaces and is 

captured in the impingers. More specifically, the majority of the mercury is captured in the 

acidified permanganate impingers that follow the acidified peroxide impingers and is 

subsequently exhibited in Fractions 5 and 6. Chemically, this indicates the form of mercury in 

the emissions is either elemental or a compound species that requires the more aggressive 

oxidative media of the permanganate to be captured and retained. (Note: Faction 4, the initial 

empty impinger, is placed in series between the acidified peroxide and acidified permanganate 

impingers to capture any back flow of liquid from the acidified permanganate impingers to the 

acidified peroxide impingers that can occur during leak checking ofthe sampling train. Fraction 

4 can be analyzed separately for mercury or in some cases may be combined with Fraction 5 

for analysis.) 

In summary, our experience is the data from Method 29 used on hazardous waste incinerator 

units tells us that rion-mercury metals are mostly emitted in particle form while mercury is 

emitted in vapor form or a particle size that is so small as to behave as a vapor. As such, the 

non-mercury metals are mostly exhibited in the portions ofthe Method 29 sampling train 

designed for particle capture, and the mercury is mostly exhibited in the portions designed to 

react and condense vapor forms. The Xact® CEMS utilizes a reactive filter media (tape) to 

capture metals, particle and vapor forms including mercury. The "reactive" part ofthe Xact® 

CEMS filter media is infused with a proprietary chemical or chemical mixture designed primarily 

to react with and capture mercury. 

Method 29 is EPA's reference method for measuring multi-metals emissions. The HWC MACT 

metals emissions standards were developed and promulgated based on historical Method 29 

data. Method 29 is the sampling method required by the HWC MACT rule to demonstrate 

metals emissions compliance. Since Method 29 was used to develop the data used to set the 

HWC MACT emissions standards, Method 29 is the only method suitable for the demonstration 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

of compliance unless or until EPA promulgates an alternative method that achieves equivalent 

results. We conclude based on our experience that the Xact® CEMS is not and cannot 

consistently produce comparable results with the precision and accuracy of Method 29. The 

Xact® CEMS fails to match the results obtained with EPA reference methods when direct 

comparisons are made and these data are understood. 

Matrix and Transport Problems 

Significant matrix and transport problems are exposed when direct comparisons of emissions 

measured by the Xact® CEMS are correlated to an EPA reference method such as Method 29. 

Correlation testing of the Xact® CEMS to Method 29 was performed at the Tooele Army Depot 

(TEAD) incinerator in 2001 and 2002.2 We reviewed the report from the 2001/2002 testing 

performed at TEAD. This testing was performed under conditions where stack gas simulated 

and native concentrations of metals are above the detection limits of the respective 

methodologies. Emissions sampling using the Xact® CEMS was performed and compared 

against results obtained using concurrently operated paired Method 29 sampling trains. 

"Paired" testing is defined to be two of the same sampling methods operated concurrently to 

provide comparable data for precision and accuracy assessment. 

A series of 13 test runs were performed. The simulated metals emissions were created and 

controlled by metering metals solutions directly into a stack gas using the QAG. The metals 

added to a gas stream were arsenic (As), barium (Ba), cadmium (Cd), chromium (Cr), mercury 

(Hg), nickel (Ni), antimony (Sb), and zinc (Zn). Lead (Pb), another metal evaluated during 

testing, was not spiked as quantifiable native concentrations are generally present in the TEAD 

incinerator emissions under normal operating conditions. Sampling results of the paired 

Method 29 trains were compared to each other as a measure ofthe reference method's 

precision and accuracy. The Xact® CEMS sampling results were compared to the average 

Method 29 results to assess the relative accuracy of the Xact® CEMS. Since a single Xact® 

CEMS was operated, no "paired" testing data for direct precision and accuracy assessments of 

the Xact® CEMS were generated. 

The test report indicates that the TEAD incinerator emissions were measured for five of the six 

hazardous waste combustor (HWC) regulated metals emissions: arsenic (As), cadmium (Cd), 

chromium (Cr), lead (Pb), and mercury (Hg). The Xact® CEMS is not capable ofthe detection 

of beryllium (Be), so no data can be presented for beryllium forthe Xact CEMS. The average 

percent differences between the paired Method 29 trains over 13 test runs for As, Cd, Cr, Pb, 

and Hg were 4, 4, 8, 6, and 2 percent, respectively3. This range of relative differences is 2-8 

percent, well below the 15% precision and accuracy cited for Method 294. The relative 

accuracy of theXact®CEMS as measured against the average ofthe paired Method 29 

measurements for 11 ofthe 13 test runs (Runs 3-13) for As, Cd, Cr, Pb, and Hg, were +55, -

10, -19, +45 and -78 percent, respectively5. Test Runs 1 and 2 were discarded due to 

problems with a faulty incinerator bypass valve. The data for cadmium and chromium were 

deemed acceptable being under the 20 percent criteria ofthe draft Performance Specification 

10 (PS-10). The high difference between the two methods during Runs 9,10, and 11 pushed 

the relative accuracy to 45 percent for lead. If these three runs are also excluded, the relative 

accuracy decreases to 22 percent for lead, which is still outside the PS-10 criteria. XRF 

spectral interference is noted in the test report for the high bias for arsenic, specifically that 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

relatively high lead concentrations can interfere with arsenic measurements, although the 

reverse is not true.6 

During the TEAD incinerator testing, mercury presented particular problems for the Xact® 

CEMS. As discussed in the test report, the Xact® CEMS to Method 29 mercury ratios varied 

from run to run. At the beginning of each test day, the Xact® CEMS reported low mercury 

concentrations relative to Method 29. As the day progressed, the Xact® CEMS concentration 

would gradually increase until it approximated Method 29 reported concentrations. As noted in 

the report: 

"The pattern suggests that the transport line from the stack to the Xacf CEMS 

needed to be heated to a higher temperature to improve transmission efficiency. 

The use of a heat-traced transport line should improve Hg transmission 

efficiency. Interestingly, more than 98 percent ofthe Hg measured by Method 

29 passed through the filter and was collected in the back half ofthe sample 

train indicating that the vast majority ofthe Hg was in the vapor phase."7 

The observation that mercury appears to be in a vapor form that can pass through the Method 

29 filter element and is captured in the impingers is consistent with our hazardous waste 

incinerator testing experience as previously noted. Not consistent with our hazardous waste 

incinerator testing experience using Method 29 is that mercury is being retained in the Xact® 

CEMS sampling probe, and that a higher probe temperature is needed to ensure mercury 

transport to the reactive filter tape media. Non-mercury (Non-Hg) metals are exhibited 

substantially more in the Method 29 probe rinse and filter fractions (Fractions 1 and 2) than the 

impinger fractions (Fraction 3). This observation would indicate that the non-mercury metals 

are largely emitted in particulate form which is consistent with our Method 29 experience. 

Conversely, our hazardous waste incinerator experience indicates that positive results for 

mercury on the Method 29 probe rinse and filter fractions are rare, indicating that mercury is 

emitted almost exclusively as a vapor or a chemical form or particle size mimicking a vapor. 

Specifically, mercury tends to be captured and detected more in the acidified permanganate 

and hydrochloric acid rinse fractions (Fractions 5 and 6) than the preceding acidified peroxide 

fraction. This phenomenon seems to indicate mercury is being emitted in elemental form or at 

least a chemical vapor form that requires the stronger chemical oxidizing action of the 

permanganate to first oxidize and then dissolve mercury. 

The Xact® CEMS fails to match the results obtained with EPA reference methods when direct 

comparisons are made. During the TEAD testing, the Xact® CEMS' results for non-mercury 

metals deviated significantly from the results obtained using Method 29. The TEAD testing 

also shows the Xact® CEMS' filter media is wholly inadequate for the capture and retention of 

mercury as emitted from a hazardous waste incinerator. The testing approach to truly validate 

the Xact® CEMS would be to perform head-to-head concurrent testing of paired Xact CEMS 

and paired Method 29 sampling trains. Such testing either has never been performed, or if it 

has, the data have not been made publicly available. 

The Xact® CEMS inventor notes that the technology has undergone a number of Relative 

Accuracy Test Audits (RATAs).8 From our review of the methodology employed for these 

evaluations, it appears to us that the method is more akin to a calibration error (CE) test. 

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THE LEADER IN ENVIRONMENTAL TESTING 

JFOCUS 

Focus Environmental, Inc. 

Under the EPA air regulations, annual RATAs are required to be performed on compliance 

CEMS such as those for carbon monoxide (CO), sulfur dioxide (S02), nitrogen oxides (NOx), 

etc. The RATA is performed using a reference method (RM) operated concurrently. For the 

typical CEMS, the RATA is required to be done by operating a temporary, equivalent CEMS 

instrument concurrently with the installed CEMS instrument followed by comparison of the 

relative responses of the two instruments. The RATA includes performing a series of twelve 

21-minute runs of which at least 9 ofthe 12 runs must pass within variances defined by the 

applicable performance specification. The RATA is typically performed by a qualified, 

independent testing company using an instrument they bring to the site and connect in parallel 

with the installed instrument. PS-10 at Section 7.4 states: 

"As of 3/22/95 there is no approved alternative RM (for example, a second 

metals CEMS, calibrated absolutely according to the alternate procedure to be 

specified in an appendix to this performance specification to be added when an 

absolute system calibration procedure becomes available and is approved) to 

Method 29." 

Section 7.3 of PS-10 defines the number of tests necessary forthe RATA: 

"Obtain a minimum of three pairs of CEMS and RM measurements for each 

metal required and at each level required (see Section 7.1). If more than nine 

pairs of measurements are obtained, then up to three pairs of measurements 

may be rejected so long as the total number of measurement pairs used to 

determine the RA is greater than or equal to nine. However, all data, including 

the rejected data, must be reported." 

Without a reference method such as another multi-metal CEMS, a normal CEMS RATA cannot 

be performed on the Xact® CEMS. The only current reference method noted is Method 29. 

Method 29 was not used to perform the cited RATAs of the Xact® CEMS. 

The "RATA" methodology employed by the Xact® CEMS inventor involves using the QAG to 

dynamically spike a series of reference aerosol concentrations and comparing the Xact® CEMS 

results to the documented concentrations; the Xact® CEMS RATA is not a direct comparison of 

the relative responses of equivalent instruments. What is termed as a RATA forthe Xact® 

CEMS is what would be termed a CE test. A CE test is where a CEMS is challenged using a 

known concentration gas, a gas other than any ofthe normal daily calibration span gases, and 

comparing the variance of the instrument results to the known concentration of the challenge 

gas. To claim that the Xact® CEMS technology has undergone RATA testing requires a 

redefinition of the methodology as outlined in the EPA air regulations. As such, the published 

data for the Xact® CEMS having undergone a RATA as claimed are simply not accurate. 

More Recent Test Results 

The Xact® CEMS was more recently tested on two coal-fired power systems.9 The Xact® 

CEMS' results obtained from these tests compared more favorably with concurrent 

measurements using EPA reference methods. However when these data are understood, the 

seemingly better performance of the Xact® CEMS appears to be application specific and is not 

comparable to the emissions situation for a hazardous waste incinerator. 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

The data presented in one coal-fired unit case are for metals challenges using the QAG to 

generate metals aerosols in a slipstream of the coal-fired effluent at three different 

concentration levels. The data presented had correlation R2 values of >0.99 for As, Cd, Cr, Hg, 

and Pb. As before, this test is simply examining the Xact® performance on the sampled 

artificial matrix of spiked materials and not a direct representation of the metals species and 

particle and/or vapor forms from the combustion process. The sampling was performed 

between the electrostatic precipitator (ESP) and wet scrubber where the moisture level in the 

sampled gas is low. The coal-fired unit operation included use of activated carbon and 

Enhanced Mercury Oxidation® (EMO®) technology for mercury control. 

In the second coal-fired unit case, the Xact® CEMS mercury measurements were directly 

compared to concurrently performed measurements using Method 30B over a period of 

approximately three weeks. Method 30B is a sorbent trap method exclusively for measuring 

mercury emissions. The coal-fired unit tested was equipped with an ESP for particulate 

control; no mention is made of activated carbon or EMO® technology use. The data presented 

show a correlation of the Xact® CEMS and Method 30B with an R2 of >0.99 for a total of 12 

measurements. Our hazardous waste incinerator testing experience is that mercury emissions 

measured via Method 29 and Method 30B are comparable and consistent. The Xact® CEMS 

and Method 30B data tend to indicate a marked improvement of the Xact® CEMS to measure 

mercury emissions. 

The TEAD incinerator test data clearly show a substantial low bias for mercury versus Method 

29. Although these later coal-fired unit test data showed a marked improvement in the ability to 

accurately measure mercury emissions, we believe the data when understood are misleading. 

The particulate emissions from a typical hazardous waste incinerator equipped with emissions 

controls are >99 percent less than one micrometer (submicron) in dynamic particle size. 

Conversely, the particulate emissions from a coal-fired power plant equipped with an ESP will 

include particulate matter sizes above and below one micron size and a substantially higher 

total particulate emission concentration than the controlled emissions from a hazardous waste 

incinerator. The significance of these differences is observed in mercury and particle behavior, 

and the presence of potentially active carbonaceous material. 

As we have noted relative to our experience with Method 29 on hazardous waste incinerators, 

mercury tends to be emitted in forms that mimic vapor behavior. We believe the better and 

more consistent performance of the Xact® CEMS in the coal-fired units test is related to nature 

ofthe particulate emissions from these units. The adsorption of mercury vapor on particles 

studied using soot particles generated by incineration of sewage sludge found that very little 

mercury absorbs at high temperature, and therefore most mercury still behaves as a vapor 

even in the presence of particulate matter.10 Activated carbon is routinely used for mercury 

emissions control. The coal-fired power plant emissions no doubt include significant amounts 

of carbon which could behave similarly to activated carbon. We conclude the better 

performance of the Xact® CEMS in measuring mercury emissions from a coal-fired power plant 

is unique and limited, most likely due to the presence of substantially more and larger size, 

potentially reactive (carbonaceous) particulate matter in the exhaust gas stream. Specifically, 

the affinity for mercury to adhere to carbon particles that are easily captured by the Xact® 

CEMS reactive filter media is the primary reason for the better performance when tested on the 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

coal-fired units. These types of carbonaceous particles are absent from the typical hazardous 

waste incinerator's emissions and the performance of the Xact® is therefore substantially 

poorer. We believe more testing is necessary to prove the Xact® CEMS can accurately 

measure mercury in a combustion gas stream with nearly all submicron particulate matter and 

mercury behaves almost exclusively as a vapor. 

The major issues impacting the measurement of mercury emissions are all related to the 

sample transport system: 

1. Mercury more often than not is a vapor or a form that mimics a vapor behavior 

2. Mercury does not generally adhere to particulate matter in the combustion gas 

3. The form of the particulate, such as the presence of potentially active carbonaceous 

material, can impact mercury's behavior in the stack gas. 

While increasing the Xact® CEMS probe and transport line temperature as suggested in the 

report from the TEAD testing may improve the transfer of mercury vapor from the stack gas to 

the reactive filter tape media, capturing and then retaining mercury on the reactive filter tape 

media, from vapor forms of mercury or forms that chemically mimic vapor forms of mercury, is 

exceedingly questionable. The later coal-fired unit data seemingly show the carbonaceous 

nature of particle matter favorably impacts mercury capture and analysis using the Xact® 

CEMS. Method 29 data suggest that mercury is emitted from a hazardous waste incinerator is 

largely in vapor form or a chemical form mimicking a vapor. Therefore, we have significant 

doubts about the ability of the Xact®CEMS to accurately measure mercury emissions from a 

well-controlled hazardous waste incinerator. Our specific concerns about the particulate/nonmercury metals portion ofthe Xact®CEMS sample transport are presented in the next section. 

Documented Difficulties with PM Monitoring (Hence Metals Monitoring) 

There have been reported various issues associated with using particulate matter (PM) CEMS 

that relate to particulate emissions measurement accuracy. Some issues have been welldocumented and presented as case studies related to particulate emissions monitoring 

common across all applications. The issues cause challenges to both the accuracy and 

representativeness of particulate emissions data. Stack gas metal emissions, most especially 

non-mercury metals, are commonly correlated with particulate emissions since non-mercury 

metals are typically emitted as metal oxides that form particulate matter in the stack gas. 

Therefore, the same problems that are associated with the use of CEMS for particulate matter 

measurements would likewise apply to a CEMS used for multi-metal monitoring. 

The problem of particulate matter representative sampling is associated with particulate 

transport through a sampling/monitoring system's connecting lines. During the particulate 

transport, the sampling relies on pneumatic conveyance that sometimes involves horizontal 

pathways. Connecting lines have been shown to exhibit deposition of particulate matter via 

inertia) impaction at bends and turns. Additionally, particulate matter often stratifies during 

transport. With continued deposition within the system, residual carryover effects from 

previous sampling can be acquired and exhibited by particulate matter re-entrainment and 

subsequent false positives. Like a PM CEMS, the Xact® CEMS sample extraction system no 

doubt is impacted by these same particulate transport issues. 

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The reference method for measuring multi-metal emissions is Method 29. When Method 29 

sampling is performed, the recovery includes rinsing the sampling probe with nitric acid and 

recovering the rinses for inclusion in the analysis. As noted earlier, the Method 29 sampling 

probe and filter fractions are where the predominance of the non-mercury metals are displayed. 

We conclude that because the sample analyzed by the Xact® CEMS does not include any 

particulate potentially adhering to the sampling probe and connecting lines, the Xact® CEMS 

sample results are inaccurate. Additionally, the increase of buildup of particulate in the same 

areas could result in residual carryover effects from previous sampling and false positive 

results for metals from particulate matter re-entrainment. Therefore, the Xact® CEMS 

measurements cannot consistently compare to Method 29 and cannot be used as an accurate 

measure of compliance. 

The Xact® CEMS fails to match the results obtained with EPA reference methods when direct 

comparisons are made and these data are understood. The solely filter-based sampling 

methodology and subsequent emissions results of the Xact® CEMS simply cannot consistently 

match analyses obtained using the Method 29 for non-mercury metals and mercury. The Xact® 

CEMS cannot consistently measure the mostly particulate forms of non-mercury metals that 

may adhere to the sampling probe, and which could randomly break loose causing false 

positives. The data further indicate Xact® CEMS sampling technology cannot consistently and 

comparably measure mercury emissions in situations like hazardous waste incinerator 

emissions where the mercury is not likely bound to particulate matter. 

Super-isokinetic Default Sampling Leads to False Positives 

Method 29 emissions sampling for compliance is performed isokinetically. "Isokinetically" 

means the velocity of the sampled gas at the inlet or tip of the sampling probe is the same as 

the velocity ofthe gas traveling up or through the stack or duct. The allowable velocity 

variance per the EPA for manual sampling methods is +10% isokinetic. The reasons for 

sampling in this manner are particle flow phenomenon in a gas (fluid). If the gas were to be 

sampled super-isokinetically (faster than the stack gas velocity), smaller particles in the slower 

moving stack gas that would otherwise aerodynamically not be drawn to the sampling probe, 

are drawn into the probe (enriched), while larger particles bypass the probe (depleted), with the 

resulting sample of particulate most likely biased high with a deficiency of course particulate. 

Conversely, if the gas were to be sampled sub-isokinetically (slower than the stack gas 

velocity), currents and eddies will occur at the edges of the sampling tip potentially forcing 

smaller particles in the faster moving stack gas away from the sampling tip (depleted), while 

larger particles are drawn to the probe (enriched), with the resulting sample of particulate most 

likely biased low with an excess of course particulate. 

Sampling performed using an isokinetic sampling method such as Method 29 requires the 

stack flow to be steady-state with minimal variation so that preliminary stack flow rate, 

moisture, and gas molecular weight determinations can be made (Methods 2-4). These 

determinations are used to select an appropriately sized nozzle and determine the sampling 

rate necessary to ensure a ±10% isokinetic sampling rate. Additionally, isokinetic sampling is 

performed via traverses of the stack with nominally equal volumes of gas sampled at each 

point representative of equal size cross-sectional area of the stack. Stack gas velocity is 

determined via differential pressure measurements (velocity head and static pressure) using 

pitot tubes. This part of the sampling is to account for natural currents and eddies, or possible 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

flow stratification, that could impact particle transport in the stack gas. The Xact® CEMS 

sample probe is installed at a fixed position and samples the gas at a fixed volumetric rate; no 

consideration or adjustment is made with regard to actual stack flow conditions or isokinetics. 

While such measurement is acceptable for measuring the emissions concentration of a gas not 

impacted by particulate matter, e.g., carbon monoxide (CO), any measurement of a particle 

bound constituent will be predictably inaccurate. 

The operational design of the Xact® CEMS is to sample the stack gas under "super-isokinetic" 

conditions. That is, the Xact® CEMS by design extracts a potentially high biased sample from 

the stack gas and operates continually in a mode that is not representative of isokinetically 

measured emissions. Under these conditions a metals emissions result evaluated by the Xact® 

CEMS is not comparable to compliance stack gas metals concentrations measured using 

Method 29. Isokinetic velocities vary under stack flow conditions and are not fixed. Also, 

isokinetic velocities are not constant at all points of a cross section ofthe stack as already 

explained. When performing Method 29 sampling, the operator continually monitors and 

makes sampling adjustments to maintain isokinetics. The Xact® CEMS is set up on the superisokinetic operating condition in an attempt to avoid a low bias, non-representative reputation. 

However, the high bias design default can generate false high data readings in conditions 

where emissions compliance is being assessed. These falsely high readings along with the 

problems associated with the transmission lines including the potential false positive results for 

particulate re-entrainment causes a facility and EPA to have no ability to assess the accuracy 

ofthe data being acquired by the Xact® CEMS relative to compliance short of direct, concurrent 

measurements using Method 29. The Xact® CEMS data can therefore only be used as a 

qualitative indicator of compliant operation and not as an accurate indicator of actual 

emissions, and not to judge the appropriateness ofthe Feedstream Analysis Plan procedures. 

Other Assessments of Xact® CEMS Performance 

Yanca, et. al. (2006) evaluated both the Xact® CEMS and the QAG using a modified EPA 

Method 301 on Lilly's rotary kiln hazardous waste incinerator by comparing measured and 

reference aerosol concentrations. The authors found that both the Xact® CEMS and the QAG 

met the Method 301 validation criteria with precision and accuracy of nominally five (5) percent 

over a wide range of concentrations.11 This validation is accurate for the operating conditions 

and the flue gas conditions at the Lilly's rotary kiln hazardous waste incinerator. However, this 

has not been verified at any other facility.12 

Deployment and implementation of the Xact® CEMS on any combustion process is unitspecific. We disagree with the following statement of Yanca, et. al. regarding the Xact® CEMS: 

"The methods and the instruments used to perform the methods were 

developed to provide more precise, accurate, and frequent measurement 

capabilities than are offered by Method 29."13 

Method 29 is the EPA reference method for measuring multi-metal emissions. Use of Method 

29 for compliance determinations is also not unit-specific. An acceptable validation of any 

installed Xact® CEMS must therefore be appropriately performed on a unit-specific basis, and 

via direct and concurrent testing using Method 29. 

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THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

EPA's Statement of Basis 

In Veolia's Draft Title V permit Statement of Basis, EPA sets forth the desire to perform 

emissions monitoring for a minimum of 12 continuous months using the Xact® CEMS. We 

believe the 12-month timeframe is arbitrary and without substantive basis, and will not achieve 

the stated objectives. The following paragraphs examine specific portions of the Draft Title V 

Statement of Basis. 

On page 47 of 79, EPA states that Veolia's Feedstream Analysis Plan (FAP) was reviewed and 

determined to be: 

".. .not sufficient to detennine waste streams comply with the feed rate limits or 

assure compliance with emissions limits for metals. ... Veoila currently depends 

on information in the corporate database for "similar" waste streams without real 

knowledge of what metals are in the wastes it incinerates. Further, the 

database frequently contains information that is inconsistent with data provided 

by the waste generators". 

On pages 50-52 of 79, EPA cites a number of specific instances of differences in metals 

analysis data. EPA's statements about those findings presuppose that the inconsistencies are 

sufficient in and of themselves to potentially lead to exceedances of the metals feed rate limits. 

In fact, the noted differences in metals concentrations in and of themselves are likely 

insignificant. Metals feed rate limits are mass feed rate limits. Only when metals 

concentrations are translated into mass feed rates can conclusions about any significant 

differences in errant documentation be drawn. For example, the difference between the 

potential feed rate of a metal in a 300 Ib drum of waste at 10 versus 100 mg/kg is ten-fold. The 

difference in potential mass feed rate from the drum is therefore also ten-fold, 0.003 versus 

0.03 Ib (1.4 versus 14 grams). If the permitted mass feed rate limit of the metal is several 

pounds per hour, the impact ofthe difference from one drum fed per hour (0.03 Ib/hr or 14 g/hr 

@ 100 mg/kg) or even a hundred drums per hour (~3 Ib/hr or !1,400 g/hr @ 100 mg/kg) may be 

insignificant relative to the metal's total pennitted feed rate limit. Therefore, EPA's comments 

about discrepancies in documented metals concentrations are without basis in their limited 

context. Only in the broader context of unit operations and waste feed rates can such 

assessments as to the significance of any documented differences in metals concentration 

documentation be made. Absent associated waste feed rate documentation, EPA's assertion 

is without merit with regard to actual metals feed rates and subsequent emissions compliance. 

On pages 52-53 of 79, EPA states: 

"Veolia conducted comprehensive perfonnance tests (CPTs) at each ofthe 

incinerators in October 2013. The results of those CPTs demonstrated, among 

other things, that the emissions from the three units were significantly different, 

despite the fact that Veolia had incinerated similar wastes during the tests. This 

illustrates that a simple linear calculation may not be appropriate for estimating 

metal stack concentrations from the emission units. As discussed at section 

5.3.3, below, EPA has identified several possible reasons forthe differing 

emissions at the three units. Further, EPA does not know with which metals 

Page 12 of 19 

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VES016788 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

chlorine or other anions preferentially react in the gas stream and which metal 

chlorides are more easily captured in Veolia's air pollution control equipment," 

CPTs are conducted at worst-case operating conditions to establish operating parameter limits 

(OPLs) that ensure compliance with the emission standards during subsequent, less rigorous 

operations. Three or more test runs constitutes a test condition. For metals emissions control, 

the CPT is conducted at conditions as specified by 63.1209(n)(2)-(5). These conditions include 

using waste feeds augmented via metals spiking, concurrent with maximum ash and chlorine 

feed rates, and operation of particulate matter and hydrochloric acid (HCI) control devices at 

conditions least favorable for emissions control. The objective is to maintain unit operations as 

nearly steady-state as possible for the duration of each test run and as consistent as possible 

from run to run during a single test condition. The resulting emissions represent the variability 

of operation at the target, worst-case conditions. Most OPLs are established based on the 

average ofthe average value demonstrated during each test run, the exceptions being waste 

feed rates and the indicator of combustion gas velocity which are established as the average of 

the maximum hourly rolling average value demonstrated during each test run. By rule, most 

final OPLs are established as hourly rolling average values. Ash, metals, and chlorine feed 

rate limits are established as 12-hour rolling average values. 

The HWC MACT rules allow for linear extrapolation of the demonstrated metals feed rates to 

establish the final metals feed rate limits. Upward extrapolation of metals feed rates can be 

done with confidence of not exceeding allowable emissions precisely because metals 

emissions control is not linear.14,15 During normal operations, the unit is operated well within 

the OPLs established during testing, and rarely if ever operated at the extent of any specific 

OPL. Additionally, because OPLs are established from testing performed at more rigorous 

conditions than normal operations, and the OPLs include averaging periods, emissions 

compliance is ensured by the fact that the potential to exceed any emissions standard, 

including metals, is made exceedingly remote. By design, the HWC MACT rule established 

procedures for setting OPLs naturally compensate for potential occasional errors associated 

with documenting metals feed rates. 

Due to the design and operational problems discussed when the Xact® CEMS is used in a 

commercial hazardous waste incinerator environment, the Xact® CEMS is of no significant 

value from the perspectives of determining any direct correlations with documented metals 

feed rates. Nor, will operation of the Xact® CEMS ever show any potential excursions of any 

metals emissions limits. Any data generated will be purely of a qualitative nature, not 

quantitative. 

Xact® CEMS Implementation 

We are only aware of a single instance where the Xact® CEMS was deployed and operated for 

any extended period, that being on the Eli Lilly and Company Tippecanoe Laboratories (Lilly) 

rotary kiln incinerator. [Note: The facility and unit are now owned and operated by Evonik 

Corporation (Evonik)]. The operation of the installed Xact® CEMS was certified following unit 

specific specifications developed jointly between Lilly and the inventor, Cooper Environmental 

Services, and ultimately approved by EPA. EPA approved use of the Xact® CEMS to 

demonstrate the equivalent or better assurance of compliance with the HWC MACT standards 

Page 13 of 19 

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VES016789 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

consistent with the approved alternative monitoring petition (AMP). The AMP also approved 

use of other CEMS for PM and HCI. 

Under the conditions ofthe approved AMP, the incinerator could operate while documenting 

their compliance with the applicable emissions standards solely via CEMS, also referred to as 

"CEMS mode". When operating in "CEMS mode" all ofthe PM, HCI, and metals related OPLs 

including ash, chlorine, and metals feed rates and emissions control device limits were waived. 

If for some reason the PM, HCI, and metals CEMS was out of service, operation of the 

incinerator would revert back to compliance with the CPT-established OPLs, inclusive of ash, 

chlorine, metals feed rates and emissions control device limits also referred to as "parametric 

mode". 

The relief or advantage to Lilly to operate in "CEMS mode" came from the perspective of the 

long-term cost and hazards avoidance (economics and safety) associated with the sampling 

and analysis of containerized high potency and miscellaneous phannaceutical, research, and 

manufacturing wastes. More succinctly, containerized solid and liquid wastes could be fed in 

any combination within the total waste feed rate limits established forthe unit, without any 

analysis or documentation of the materials fed with regard to ash, chlorine, or metals contents 

or feed rates. Reverting to operation under "parametric mode" would trigger compliance via 

OPLs including implementation ofthe Feedstream Analysis Plan. For liquid wastes, 

"parametric mode" operation included sampling, analysis, and treatment on a batch tank basis. 

For solid wastes, "parametric mode" operation included accessing the extensive database of 

more than 3,000 waste profiles to document compliance. 

Lilly/Evonik maintained and periodically operated the Xact® CEMS, and the PM and HCI 

CEMS, from circa 2004 to 2011. The 2010 CPT was conducted demonstrating PM, HCI, and 

metals emissions compliance using CEMS; no corresponding sampling analysis using standard 

EPA methods for these emissions was performed. Sampling and analysis using Method 5 

(PWI) and Method 26A (HCI/CI2) was not performed. Sampling and analysis was performed 

using Method 29, however the scope was limited to assessing the emissions of beryllium; no 

Method 29 sampling and analysis for arsenic, cadmium, lead and chromium was performed. 

Because the Method 29 sampling train was not configured for mercury emissions sampling, 

mercury emissions sampling and analysis using Method 29 was also not performed. As such, 

no concurrent emissions data were generated for any of the CEMS utilized. Therefore, no data 

for direct and documented emissions comparisons of CEMS performance relative to the 

standard EPA methods were generated during the 2010 CPT. 

Shortly after the 2010 CPT, Evonik ceased use ofthe PM, HCI, and Xact® CEMS. 1 7 Of 

additional note is the generally low metals content of the Lilly/Evonik waste streams. 

Operationally, the deployment of the Xact® CEMS on the Lilly/Evonik rotary kiln was not so 

much as to demonstrate metals emissions compliance, but rather to demonstrate the absence 

of metals in the emissions. The return to Lilly/Evonik in operating the Xact® and other CEMS 

was the avoidance of the hazards and costs associated with the sampling and analysis of the 

containerized wastes. 

Page 14 of 19 

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VES016790 
TestAmerica FOCUS 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

Economics of Xact CEMS Deployment and Implementation 

The Xact® CEMS instrument is not an off-the-shelf instalment. Approximately six months is 

required from the time a purchase order is issued to build an Xact® CEMS instrument. 

Additional time is required to develop the site-specific sampling train and the software interface 

between the instrument and the facility's control systems. The software development process 

will likely take several months after the instrument is installed.18 

The estimated cost of each Xact® CEMS instrument is approximately $250,000; three are 

required for Veolia, one for each hazardous waste incinerator unit. The estimated cost to then 

install and operate the monitoring system (install the sample loop on the stack, construct the 

climate-controlled housing forthe instrument, and connection to electrical and other utilities) 

would likely be an additional $250,000 per unit. The annual cost of the filter media is estimated 

at $50,000 per unit. We estimate the other annual operating costs for ongoing calibrations, 

quarterly auditing, and the annual relative accuracy test audit (RATA) (testing against Method 

29) would likely be at least $100,000 per unit. A minimum of one full-time engineer or 

engineering technician will be required to track and maintain compliant instrument operation. 

The estimated annual cost of this person including salary and fringe benefits is likely over 

$200,000. We therefore estimate the cost for Veolia to install and then begin to operate the 

Xact® CEMS on three incineration systems for one year is nominally $2.2 million. This 

estimate does not include the initial calibration and debugging of the sample transport system 

on each unit (unit-specific operation of the sample probe and sample loop under varying stack 

gas conditions and associated software interface with the instrument). EPA's PS-10 is not 

adequate. Therefore like Lilly, Veolia must spend additional time and resources to develop the 

unit-specific performance specification protocols necessary to confirm each installed Xact 

CEMS' accuracy, precision, and bias. Other additional internal and external costs will also be 

incurred by Veolia associated with incinerator control and operations interface. 

For comparison, our estimate for the average CPT program for a single incinerator conducted 

every five years is approximately $250,000. Our estimate for the average dioxin confirmatory 

performance test (CfPT) program for a single incinerator conducted at the mid-point between 

every CPT is approximately $100,000. These estimates include stack gas and waste feed 

sampling, spiking, sample analysis, and reporting. Therefore, the recurring five-year cost of 

performance testing is nominally $350,000 per unit and approaching $1 million for three units. 

These estimates do not include other additional internal and external costs incurred by the 

system owner/operator in specifically preparing for testing. 

We therefore estimate the cost of installing and operating Xact® CEMS on three incinerator 

units for one year is at least triple the cost of two test cycles spread over 10 years. We have 

no basis for estimating Veolia's annual operating costs of the Feedstream Analysis Plan 

implementation. EPA does not include in the Draft Title V permit relief from any existing 

compliance requirements to offset the costs of deploying and implementing the Xact® CEMS on 

the Sauget incinerators. 

Conclusions 

Based on our review ofthe publicly available data, and our personal testing experience, we 

offer the following technical and compliance related conclusions with regard to use ofthe Xact® 

CEMS on the Veolia incinerators: 

Page 15 of 19 

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VES016791 
TestAmerica 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

• The Xact® CEMS validation process is deficient with regard to representativeness of the 

chemical species and physical forms present in a hazardous waste incinerator stack 

gas. Validation using QAG generated aerosols with nitrate salts is not an accurate 

representation of actual performance in hazardous waste incinerator applications. 

• When the data are understood, no testing to data show a direct correlation of the Xact® 

CEMS with the EPA reference Method 29 on a well-controlled hazardous waste 

incinerator. Concurrently generated data under conditions where metals are at 

measureable levels in the stack gas such that precision, accuracy, and bias relative to 

the reference methods can be assessed simply does not exist or has not been made 

publicly available. In most cases, the XACT® CEMS fails when directly compared to the 

reference method, Method 29. 

• The Xact® CEMS bias for measuring mercury emissions as impacted by particulate 

concentration and composition is not resolved. In sampling situations where the total 

particulate concentrations are very low and the particles much smaller (submicron) and 

lacking in carbonaceous content such that mercury behaves more as vapor, 

performance against the reference method is poor. This environment exists in Veolia's 

stacks and the Xact® CEMS will therefore fail to provide accurate mercury emissions 

data. 

• The Xact® CEMS bias relative to particle transport is a factor that needs to be resolved. 

The potential for residual carryover effects from previous sampling and potential false 

positives from the sampling system exist. 

• Operating the Xact® CEMS at super isokinetic conditions to compensate for potential 

low bias results has the potential to overstate emissions and presents compliance 

monitoring issues. 

• Any actual emissions data collected using the Xact® CEMS must be qualified as 

qualitative. The issues presented herein significantly undermine the accuracy ofthe 

data generated for any form of analysis as to the adequacy of the Feedstream Analysis 

Plan or other compliance and/or enforcement. 

• Existing system OPLs established as prescribed by the HWC MACT rules, particularly 

metals feed rate limits, are overtly conservative and by design are forgiving of 

occasional errors made in documenting metals feed rates. 

• EPA's stated purpose of requiring use of Xact® CEMS, that being to verify the feed rate 

limits and the feedstream analysis procedures in the Title V permit renewal are 

sufficient to assure continuous compliance with the HWC MACT emissions limits, is 

unwarranted. Any data collected can only be qualified as qualitative and not 

quantitative. As such, no meaningful or reliable correlations with otherwise documented 

metals feed rates can be generated. 

Page 16 of 19 

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VES016792 
TestAmerica 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

• Because the Xact® CEMS sampling is being required to be done concurrent with the 

waste feed metals documentation already performed, the requirement to operate the 

system for 12 months appears to be a thinly veiled EPA-mandated extended field test of 

the Xact® CEMS funded by Veolia and not associated with any substantive concern or 

evidence of possible exceedances of metals emissions standards. 

• The complexity and aggregation of waste types, combined with the averaging and 

agglomerating effects ofthe treatment unit operations (multiple feed charges of various 

containerized wastes or continuous feeding of blended liquid wastes), cause any 

analysis using the Xact® CEMS as direct link to any specific waste item fed or 

Feedstream Analysis Plan generated data to be impossible. EPA's stated basis for 

requirement to use the Xact® CEMS is not supported. 

• EPA has not expressly via rules, either in 40 CFR 63 Subpart EEE (HWC MACT) or 

other similar regulations, provided for immediate and direct relief from OPLs or other 

monitoring procedures when CEMS are deployed and implemented for continuous 

compliance demonstration. Only through the arduous and lengthy alternative 

monitoring petition process has EPA ever granted such exemptions. Yet in the case of 

Veolia, EPA is allowing the Xact® CEMS to take precedence over the Feedstream 

Analysis Plan by requiring Veolia to take specific operational steps in response to any 

deviation ofthe CEMS, even when Veolia is operating in full compliance with the 

Feedstream Analysis Plan. 

The Xact® CEMS fails to match the results obtained with EPA reference methods when direct 

comparisons are made and these data are understood. Therefore at the technology's current 

state, the Xact® CEMS measured metals emissions data are qualitative, at best, and are not 

usable or reliable for continuous emissions compliance demonstration for a commercial 

hazardous waste incinerator. 

Please contact us to discuss the specifics of our comments or any questions you may have. 

William C. Anderson, PhD 

Senior Analytical Project Manager 

TestAmerica, Inc. 

Chris E. McBride, PE 

Consultant/Principal 

Focus Environmental, Inc. 

Page 17 of 19 

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VES016793 
TestAmerica 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

1

 Review of Monitoring Experience with Xacf Multi-Metal Continuous Emissions Monitor, 

Paper #29; Krag Petterson, Cooper Environmental Services, LLC, Beaverton OR; 33rd 

International Conference on Thermal Treatment Technologies & Hazardous Waste 

Combustors, October 13-15, 2014, Baltimore, MD 

2

 X-Ray Fluorescence-Based Multi-Metal Continuous Emission Monitor. U.S Army Corp of 

Engineers, Engineer Research and Development Center; K. James Hay, Veera M. Boddu, 

Bruce E. Johnsen, and John A. Cooper; March 2005. 

3

 Reference 2, Table 12. 

4

 Reference 1, end notes 13-15 re-cited below: 

Rigo, H.G.; Chandler, A.J.; Journal of Air and Waste Management Association, 1999, 49, 399-

411. 

American Society of Mechanical Engineers, Research Committee on Industrial and Municipal 

Waste. Reference Method Accuracy and Precison (remap); Phase I, Precision of Manual 

Stack Emission Measurements; Report No. CRTD-60; American Society of Mechanical 

Engineers International; Washington, DC 1991. 

U.S. Environmental Protection Agency. Evaluation of Two Methods for the Measurement of 

Mercury Emissions in Exhaust Gases from a Municipal Waste Combustor, EPA 450/4-92-013. 

U.S. Government Printing Office; Washington, DC, 1991. 

5

 Reference 2, Table 10. 

6

 Reference 2, page 31. 

7

 Reference 2, page 33. 

8

 Reference 1, page 4. 

9

 Reference 1. 

1 0

 Adsorption of Mercury Vapor on Particles; Yoshio Otani, Kanazawa University; 

Environmental Science and Technology; July 1986; 20(7):735-8. 

1 1

 Validation of Three New Methods for Determination of Metal Emissions Using a Modified 

Environmental Protection Agency Method 301, ISSN 1047-3289 Journal of the Air & Waste 

Management. Association, 56:1733-1742 (2006); Catherine A. Yanca, Douglas C. Barth, Krag 

A. Petterson, Michael P. Nakanishi, and John A. Cooper, Cooper Environmental Services, LLC, 

Portland, OR; Bruce E. Johnsen, SAIF Co., Portland, OR; Richard H. Lambert, Engineering 

Tech Center, Eli Lilly and Co., Indianapolis, IN; Daniel G. Bivins, U.S. Environmental Protection 

Agency, Research Triangle Park, NC. 

1 2

 Docket ID No. EPA-R05-OAR-2012-0649. Letter to George Czerniak, Chief Air Enforcement 

and Compliance Assurance Branch, USEPA from Melvin Keener, Executive Director, Coalition 

for Responsible Waste Incineration (CRWI), dated April 1, 2013. 

1 3

 Reference 10. 

1 4

 USEPA, Technical Implementation Document for EPA's Boiler and Industrial Furnace 

Regulations. EPA 530-R-92-011 (PB 92-154947), March 1992; Section 10.5. 

1 5

 USEPA, Technical Support Document for HWC MACT Standards. Volume IV: Compliance 

with the HWC MACT Standards, September 2005, Section 6.3. 

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VES016794 
TestAmerica 

THE LEADER IN ENVIRONMENTAL TESTING Focus Environmental, Inc. 

1 6

 Letter to Eli Lilly and Company, Inc. from George T. Czerniak, Chief Air Enforcement and 

Compliance Assurance Branch, USEPA, dated February 27,2004. 

1 7

 Reference 1. 

1 8

 Reference 11. 

Page 19 of 19 

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VES016795 
VES016796-016809.pdf 
Review of Monitoring Experience with the Xact® MultiMetal Continuous Emissions Monitor 

Paper # 29 

Presented at the 

33rd International Conference on Thermal Treatment Technologies & Hazardous Waste 

Combustors 

October 13-15,2014 

Baltimore, MD 

Krag Petterson 

Cooper Environmental Services, LLC, Beaverton, OR 

ABSTRACT 

The Xact 640 is a multi-metals Continuous Emissions Monitor (CEM) based on X-ray 

fluorescence and reactive filter tape technology. The Xact was certified as a compliance CEM as 

part of an alternative monitoring plan at a hazardous waste incinerator.1,2 As part of the 

certification process the Xact underwent a Method 3013 procedure to validate its accuracy and 

precision. This presentation will review the test results from this Method 301 validation as well 

as the results from subsequent annual relative accuracy testing during the six years it was used as 

a compliance instrument. Ia addition, the presentation will review the results from several other 

tests involving the Xact, including multi-metals testing on a coal fired source as well as mercury 

measurements on several coal fired power plants. Finally, the presentation will also outline 

testing that will occur during an upcoming demonstration project sponsored by the South Coast 

Air Quality Monitoring District on two secondary lead smelters. 

BACKGROUND 

Under the Clean Air Act amendments of 1990 the United States Environmental Protection 

Agency (US EPA) has the authority to regulate hazardous metal emissions from sources using a 

Maximum Achievable Control Technology (MACT) approach. Several source categories 

currently have regulated emission levels for metals including coal fired power plants,4 hazardous 

waste incinerators,3 medical waste incinerators6 and Portland cement plants.7 Often these 

sources are regulated using or at least allowing particulate matter (PM) as a surrogate for metals 

emissions (e.g. coal fired power plants, Portland cement plants). In other cases actual metal 

measurements of metal emissions are required but not on a continuous basis. In these cases 

performance testmg of control equipment may be performed periodically using Method 29s 

1 

VES016796 
along with representative monitoring of the waste stream during normal operation (e.g. 

Hazardous Waste Incinerators). 

The US EPA has, however, indicated that it may, for certain sources, prefer to see continuous 

metals monitoring using a multi-metals CEMS. For example, in 1996 when the original 

hazardous waste incinerator MACT rule was proposed it contained an option to perform metals 

monitoring with a multi-metals CEMS,9 however, the option was later withdrawn since no there 

were no commercially available multi-metals CEMS at the time. More recently, in 2013, the US 

EPA unsuccessfully attempted to require the use of a multi-metals CEMS as part of air permit for 

a specific hazardous waste incineration facility.10 EPA also requested comment on the use of 

lead (Pb) CEMS as part ofthe proposed secondary lead smelter MACT1 1 and is likely to 

continue to explore the use of multi-metals CEMS on several sources regulated for metals 

including hazardous waste incinerators and medical waste incinerators as the MACT rules for 

these source categories come up for review. 

The Xact is a multi-metals continuous emissions monitor based on X-Ray Fluorescence (XRF) 

developed by Cooper Environmental Services, LLC (CES). The instrument operates by 

withdrawing a large sample of stack effluent from the source and transporting it to the 

instrument. A subsample ofthis main flow is then drawn through a reactive filter tape mounted 

on a reel-to-reel type tape drive. The filter tape captures both vapor phase and particulate phase 

metals. Following sampling, the deposit is automatically advanced into the analysis area where 

it is analyzed using XRF to determine the mass of each metal while the next sample is collected. 

The stack concentration (ug/dscm) is determined by dividing the XRF determined mass (fig) by 

the total sample flow through the tape (dscm). The Xact is able to measure concentrations of 

nearly all ofthe metals on the US EPA's hst of hazardous air pollutants including antimony (Sb), 

arsenic (As), cadmium (Cd), chromium (Cr), cobalt (Co), lead (Pb), manganese (Mn), mercury 

(Hg), nickel (Ni), and selenium (Se). 

EXPERIMENTAL 

The work described in this document spans several years and several different apphcations ofthe 

Xact to various sources including: 

1) Method 301 validation ofthe Xact CEMS 

2) Operation of the instrument for approximately six years on a gas fired hazardous waste 

incinerator 

3) Brief study evaluating the feasibility of measuring metals with the Xact on a coal fired 

source 

4) Two studies evaluating the accuracy of mercury measurement with the Xact on coal fired 

power plants. 

With the exception of work done measuring mercury on coal fired power plants the accuracy of 

the Xact was evaluated using a dynamic spiking procedure in which fhe instrument was 

challenged with known concentrations ofthe elements of interest. These procedures utilize the 

Quantitative Aerosol Generator (QAG) which has itself under gone evaluation and Method 301 

testing.12 The QAG operates by nebulizing a solution containing a National Institute of Standards 

VES016797 
and Technology (NIST) traceable concentration of metals (d) at a measured rate (R) into a 

measured flow (F). The concentration ofthe resulting aerosol (Ca) is given by equation 1. 

Ca = "T" Equation 1. 

The aerosol is spiked into a subsample of stack gas being drawn into the instrument. By spiking 

actual stack gas, the potential effect of different interfering components present in the stack 

effluent is evaluated. The QAG was utilized instead of Method 29 because ofthe precision and 

accuracy of Method 29 are around 15%13"

13

 and are not sufficient to evaluate the precision and 

accuracy of the Xact. 

Method 301 Validation of the Xact 

The Method 301 validation of fhe Xact was performed on a gas fired hazardous waste incinerator 

at Eli Lilly's Tippecanoe Laboratories in West Lafayette, Indiana. The incinerator burned waste 

associated with Lilly's drug production and was equipped with bag house and a wet scrubber. 

During the test, QAG aerosol containing five regulated metals including arsenic (As), cadmium 

(Cd), chromium (Cr), lead (Pb) and mercury (Hg) were spiked into a subsample of stack gas. 

Each metal was spiked at three different nominal concentration levels (20,40 and 110 ug/dscm). 

The Xact then sampled the spiked stack gas and the Xact reported results were evaluated for 

precision, accuracy and linearity. 

Operation ofthe Xact Over Several Years 

The Xact was certified as a compliance metals monitoring instrument at the Eli Lilly incinerator 

based in part on its Method 301 validation.2 The Xact then operated at that facility for a period of 

approximately six years during which time it had to continuously meet several performance 

criteria.16,17 Each required test is listed below along with a brief description and its required 

testing frequency is in parentheses. 

1) Upscale Calibration Drift Check (Daily) 

During the upscale calibration drift check the XRF portion of the Xact is challenged with 

sohd sample containing several key metals measured by the instrument for comphance 

purposes. The standard consists of a rod with a bit of material at the end that is injected into 

the analysis area once per day. The concentration ofthis standard is determined immediately 

following cahbration and then subsequent checks of the Xact verify the stability ofthe XRF 

system after that. The reported concentration for each ofthe metals on the daily calibration 

drift standard need to be within 15% ofthe reference concentration each day for the 

instrument to remain in compliance. 

2) Zero Drift Check (Daily) 

VES016798 
Tlie zero drift check involved challenging the Xact's XRF analyzer with a blank section of 

tape once per day. The difference between the value ofthe zero standard and the CEMS 

reported concentration must be less than 20% of the apphcable emission limit. 

3) Flow Check (Daily) 

During the flow check, the reading from the Xact's sample flow meter is checked against a 

second quality assurance (QA) flow meter. The difference between the sample flow meter 

and the QA flow meter needed to be less than 20% ofthe full scale value ofthe meter. 

4) XRF Audit (Quarterly) 

The XRF audit evaluates the accuracy ofthe XRF analyzer portion ofthe Xact. During the 

audit the XRF analyzer is challenged with a series of thin film standards. These standards 

are produced by vapor deposition onto a filter and are commercially available from 

Micromatter Co. 1 8 The standards are gravimetrically traceable to NIST standards and have 

been recommend for use by the US EPA in calibrating XRF equipment used to measure 

ambient air filter samples.19 The difference between the reference concentration ofthe 

standard and the concentration reported by the Xact must be less than 10% ofthe reference 

concentration for the instrument data to be used for compliance purposes. 

5) Flow Audit (Quarterly) 

The flow audit evaluates the accuracy ofthe Xact's flow system. The readings from both the 

sample and dilution flow meters are compared to an independent NIST traceable reference 

flow meter. The error between the Xact flow meter and the reference flow meter need to be 

less than 10% ofthe reference flow. 

6) Relative Accuracy Test Audit (Annually) 

Finally, the Xact was challenged with a dynamically spiked a reference aerosol at three 

different concentration levels on at least an annual basis. The reference aerosol during each 

test was generated using the QAG and spiked into the Xact's sample flow system as near as 

possible to the probe tip. The Xact reported concentration was then plotted against the 

reference aerosol concentration and a linear least squares regression fit was performed on the 

data. The slope of this best fit line needed to be between 0.80 and 1.20, the correlation 

coefficient needed to be greater than 0.90 and intercept needed to be less than 20% of the 

emission limit for the instrument to pass its relative accuracy test. 

Evaluation ofthe Xact Multi-Metals CEMS on a Coal Fired Source 

As part of an EPA sponsored small business innovative research (SBIR) grant the accuracy of 

the Xact multi-metals CEMS was evaluated on a pilot scale coal fired source. Testing was 

performed at fhe US EPA's Multi Pollutant Control Research Facility (MPCRF) located in 

Research Triangle Park, North Carolina. The MPCRF is able to fire pulverized coal, distillate 

oil, and or natural gas at 4 million Btu/hr. The facility is equipped with wet and dry flue gas 

cleaning systems and closely simulates full scale emissions sources. During the study with the 

Xact the facihty burned bituminous coal and utilized an ESP and wet scrubber controls. The 

VES016799