loseph M. Kellmeyer



## TH O M P 50 N P 314.552.6166 

# ra C O B U R N l.LP F 314.552.7166 jkeHmeyer@thompsoncoburn.corn
June 10, 2013
VIA CERTIFIED MAIL United States Environmental Protection Agency Genevieve Damico Region 5 77 W. Jackson Boulevard (A-18J) Chicago, Illinois 60604-3509
Re: USEPA's Proposed Reopening of Air Pollution Control Title V Permit Dear Genevieve: I appreciate you and other members of the United States Environmental Protection Agency ("USEPA" or "Agency") meeting with my client, Veolia ES Technical Solutions, L.L.C. ("Veolia") on June 5, 2013 ("Meeting"). During the Meeting, Veolia and USEPA discussed the ramifications should Veolia appeal the Agency's reopening of Veolia's Air Pollution Control Title V Permit or any terms or conditions related thereto (collectively "Conditions") to the Environmental Appeals Board ("EAB") and the EAB denied the petition or granted review of the petition and subsequently issued an order on the merits relating thereto. Veolia expressed the view that the EAB's decision becomes final Agency action and the Conditions must be implemented even if Veolia appealed the EAB action to the Seventh Circuit, absent additional relief from the EAB or the Seventh Circuit which would delay the implementation of such Conditions during the pendency of the appeal to the Seventh Circuit. In response, USEPA expressed the view that requiring Veolia to implement such Conditions during the pendency of an appeal to the Seventh Circuit was neither USEPA's intent nor was implementation of such Conditions required by the law. For the sake of clarity, Veolia was relying primarily upon 40 C.F.R. § 71.11 and various other authorities in forming its belief that additional relief would be needed following an EAB decision in order to avoid Veolia being required to implement the Conditions during the pendency of an appeal to the Seventh Circuit. Veolia is prepared to defer to USEPA's opinion as expressed during the Meeting — specifically, should Veolia appeal the Agency's reopening of Veolia's Air Pollution Control Title V Permit or Conditions to the EAB and the EAB deny the petition or grant review of the petition and subsequently issue an order on the merits relating thereto, the law does not require Veolia to implement such Conditions during the pendency of an appeal of the EAB action to the Seventh Circuit. In deferring to USEPA's opinion, Veolia simply wishes to ensure its rights are protected. In this regard, I would like to discuss tJSEPA's analysis further with you or your counsel. In any case, given USEPA's desire as expressed during the Meeting — to avoid Veolia implementing Conditions prior to the completion of Seventh Circuit judicial review, if such

Thompson Coburn LLP 

### I Attorneys at Law 

### I One US Bank Plaza 

### I St. Louis, Missouri 63101 P 314.552.6000 1 F 314.552.7000 1 www.thompsoncoburn.com 5749109June 10, 2013

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review is desired, I believe the two parties can work together — if necessary, through an implementation schedule or otherwise — to avoid the unintended outcome of Veolia being required to implement the Conditions prior to the completion of Seventh Circuit review. Please have someone from your office give me a call to discuss further at your convenience. Very truly yours, Thompson Coburn LLP



### By 

# ~

~ J se M. Kellmeyer JMK/leb

cc: George Czerniak, USEPA, Region 5 Doug Harris

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