B DER I 

Bv Certified Mail- Return Receipt Requested 

The Honorable Stephen L. Johnson, Administrator 

United States Environmental Protection Agency 

Ariel Rios Building 

1200 Pe1msylvania Avenue, N.W. 

Washington D.C. 20460 

s 

April 27, 2005 

Re: Notice of Intent to Sue Pursuant to §304(b )(2) of the Clean Air Act for Failure 

to Grant or Deny Petition Filed Pursuant to §505(b)(2) 

Dear Administrator Johnson: 

I represent the Sierra Club, Inc. and the American Bottom Conservancy. The 

Sierra Club is a national organization working to protect the Nation's clean air and clean 

water, and our natural heritage. The Sierra Club has over 700,000 members nationwide, 

including 26,000 members in Illinois. American Bottom Conservancy is a not-for-profit 

conservation organization working to protect the people and resources of the American 

Bottom floodplain in Southwestern Illinois. 

This letter constitutes formal notice pursuant Clean Air Act 304(b)(2), 42 U.S.C. 

§ 7604(b)(2) and 40 C.F.R. Part 54 that Sierra Club and American Bottom 

Conservancy intend to file a citizen suit pursuant to Clean Air Act 304(a)(2), 42 U.S.C. § 

7604(a)(2). The Clean Air Act permits a citizen action "against the Administrator where 

354 WEST MAIN STREET 

MADISON, 'W! 53703 

608.442:.3585 

E!ENDER@MA!NSTREET JUST!CE.COM 

!'\, 

l ~ Printed tlll Rccyckd Paper 
there is alleged a failure of the Administrator to perform any act or duty under this 

chapter which is not discretionary with the Administrator." 42 U.S. C. § 7604(b)(2). 

On February 18, 2004, Sierra Club and American Bottom Conservancy 

(collectively Sierra Club) petitioned the U.S. EPA Administrator, pursuant to Clean Air 

Act§ 505(b)(2), 40 C.F.R. § 70.8(d), and Executive Order 12898, (Federal Actions To 

Address Environmental Justice In Minority and Low-Income Populations), to object to 

the Proposed Title V Operating Permit for the Onyx Environmental Services' hazardous 

waste incinerator (permit number 95090072, site lD number 163121 AAP, SIC code 

4953) in Sauget, Illinois. Sierra Club provided a copy of the petition to !EPA, the 

permitting authority, and to the applicant Sierra Club's petition raised objections to the 

Title V permit that were, to the extent practical, raised with reasonable specificity during 

the public comment period. A copy of the petition is attached hereto as Exhibit A. 

Copies of Sierra Club and American Bottom Conservancy's public comments are 

attachments to the petition. 

According to Clean Air Act Section 505(b)(2), 42 U.S.C. 7661d(b)(2), "[t]he 

Administrator shall grant or deny such petition within 60 days after the petition is filed." 

To date, the Administrator has not responded to Sierra Club's petition. Sierra Club and 

American Bottom Conservancy hereby give notice of their intent to file a citizen suit 

based upon the Administrator's failure to perform a non-discretionary duty, to wit, failing 

Notice oflntent to Sue EPA 

April 27, 2005 

Page 2 of 4 
to grant or deny Sierra Club's petition within 60 days as required by 42 U.S.C. § 

766ld(b)(2). 

Pursuant to the requirement of 40 C.F.R. § 54.3, the persons giving notice are: 

Sierra Cluh 

Illinois Chapter Office at: 

200 N. Michigan Ave, Suite 505 

Chicago, IL 6060 1 

(312) 251-1511 (phone) 

National Headquarters at: 

85 Second Street, 2nd Floor 

San Francisco, CA 94105 

415-977-5500 (phone) 

Kathy Andria 

American Bottom Conservancy 

614 N. 7th 

East St. Louis, IL 62201-13 72 

(618) 875-9960 

The EPA's regulations require this information. However, I request that you 

direct all correspondence to me, as counsel for these organizations. 

See (courtesy) service list, next page: 

Notice of Intent to Sue EPA 

April27, 2005 

Page 3 of 4 

Sincerely, 

BENDER LAW OFFICES 

~(!~ D:~Bender 

Counsel for Sierra Club and 

American Bottom Conservancy 
Bharat Mathur 

Acting Regional Administrator 

US EPA Region 5 

77 W. Jackson Blvd. 

Chicago, IL 60604 

Governor Rod Blagojevich 

Office of the Governor 

207 State House 

Springfield, IL 62706 

Renee Cipriano 

Director, IEP A 

1021 North Grand Avenue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Owner or Managing Agent 

Onyx Environmental Services 

7 Mobile St 

Sauget, IL 6220 I 

C T Corporation System 

Agent for Onyx Environmental Services 

208 S. LaSalle St. Ste 814 

Chicago, IL 60604 

Notice of Intent to Sue EPA 

April27, 2005 

Page 4 of4 
EXHIBIT A 
BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

In the Matter of the Proposed Operating Permit for 

ONYX ENVIRONMENTAL SERVICES to operate 

A toxic waste incinerator in Sauget, Illinois I.D. No. 163121AAP 

Application No. 95090072 

Proposed by the Illinois Environmental Protection Agency 

PETITION REQUESTING THAT THE ADMINISTRATOR OBJECT TO 

ISSUANCE OF THE PROPOSED TITLE V OPERATING PERMIT FOR THE 

ONYX TOXIC WASTE INCINERATOR 

PETITIONERS 

Bruce Nilles 

Sierra Club 

200 N. Michigan Ave, Suite 505 

Chicago, IL 60601 

(312) 251-1511 (phone) 

(312)251-1780 (fax) 

bruce.nilles:Wsierrac1ub.org 

Kathy Andria 

American Bottom Conservancy 

527 Washington Place 

East St. Louis, IL 62205 

(618) 271-9605 (phone) 

(618) 271-9651 (fax) 

abc(Qlprairienet.org 

Date: February 18, 2004 

Kathleen Logan-Smith 

Health and Environmental Justice- St. Louis 

P.O. Box 2035 

St. Louis, MO 63158 

(314) 961-1198 

ck1ogan@sbcglobal.net 

Verena Owen 

Lake County Conservation Alliance 

421 Ravine Drive, 

Winthrop Harbor, IL 60096 

(84 7) 872-1707 (phone) 

(847) 872-1759 

baumling.@ao 1. com 

0000-..t 
Pursuant to Clean Air Act§ 505(b)(2), 40 C.F.R. § 70.8(d), and Executive Order 12898, 

(Federal Actions To Address Environmental Justice In Minority and Low-Income 

Populations), American Bottom Conservancy, Health and Environmental Justice- St. 

Louis, Lake County Conservation Alliance and Sierra Club ("Petitioners") hereby 

petition the Administrator of the United States Environmental Protection Agency ("U.S. 

EPA") to object to the proposed Title V Operating Permit for the Onyx toxic waste 

incinerator in Sauget, Illinois. The Illinois Environmental Protection Agency ("!EPA") 

submitted the proposed permit to U.S. EPA on November 6, 2003. The petitioning 

organizations provided comments to the Illinois Environmental Protection Agency on the 

draft permit and testified at the public hearing. A copy of those comments is attached. 

This petition is filed within sixty days following the end of U.S. EPA's 45-day review 

period as required by Clean Air Act § 505(b )(2). The Administrator must grant or deny 

this petition within sixty days after it is filed. 

Based on the significant enviromnental justice issues raised in this matter, Petitioners also 

request that the Administrator exercise his discretion under the Resource Conservation 

and Recovery Act ("RCRA") to object to (or otherwise act to block) Illinois issuing the 

state pm1ion of Onyx's proposed RCRA permit and, at the same time, deny Onyx the 

federal portion of the proposed RCRA permit. 1 We recognize that this is a significant 

and unusual request But it is a request based on Onyx's 12-year track record of 

explosions and other serious violations that demonstrate gross recklessness, and/or an 

unwillingness and inability to comply with clean air and RCRA safeguards. It is a 

request grounded in the fact that those at greatest risk from Onyx's clouds of toxic gases 

are disproportionately the low-income and minority residents of the East St. Louis area. 

Finally, it is a request targeting U.S. EPA's authority, indeed its obligation, to exercise its 

powers to provide clean air and safe communities for all Americans. In short, Petitioners 

request U.S. EPA object to Onyx's proposed Title V permit and deny Onyx the RCRA 

permits it needs to continue operating and threatening the surrounding community. In 

addition, based on Onyx's ongoing unwillingness and/or inability to comply with basic 

clean air and hazardous waste management requirements Petitioners also urge U.S. EPA 

to bar Onyx from accepting off-site CERCLA (Superfund) waste. 

L THE PROPOSED ONYX PERMITS AND THE PROCESS LEADING 

UP TO THEIR ISSUANCE VIOLATES THE AGENCY'S 

COMMITMENTS AND OBLIGATIONS TO ADDRESS 

ENVIRONMENTAL JUSTICE ISSUES. 

I. Onyx Is Located In an Environmental Justice Area 

Onyx's toxic waste incinerator is located in Sauget, Illinois. Sauget is a part of the Metro 

East portion of the Greater St. Louis metropolitan area. Immediately adjacent to Sauget 

are the Cities of East St. Louis and Cahokia. These surrounding communities are 

environmental justice areas. 

1 Petitioners are forced to address the interrelated Title V and RCRA issues in a single petition because 

neither U.S. EPA nor IEPA has responded to any of the \Vritten or oral comments the agencies received 

from the public on either draft permit. 

000002 2 
In addition, Onyx operations generate significant truck and rail traffic containing 

hazardous wastes through these same low-income and minority communities. According 

to U.S. EPA data, 

• Approximately 68 percent of the 62,892 residents living within three miles of the 

Onyx toxic waste incinerator are minority residents 2 

• The number of residents living below the poverty level range between 24 percent 

in Cahokia and Madison to 48 percent in Brooklyn. In East St. Louis the 

population is 97.7 percent African-American, with a median income of $11,990 

and a poverty rate exceeding 44 percent. 

East St. Louis has been described as the "most distressed small city in America." 

2. Granting Onyx permits to continne to operate its toxic waste 

incinerator is an environmental justice issue. 

Onyx's toxic waste incinerator receives and burns hazardous waste from around the 

world. This waste includes the most dangerous chemicals known to science and in the 

process of handling and burning this waste those dangerous chemicals are released and 

spread over the neighboring communities. 

According to the Environmental Defense Scorecard, Onyx's 2000 Toxic Release 

Inventory for releases into the air (in pounds) around its facility, sorted by health effects 

of those releases, are as follows: 

• Recognized Carcinogens 214 

• Suspected Carcinogens 519 

• Suspected Cardiovascular or Blood Toxicants I ,279 

• Recognized Developmental Toxicants 230 

• Suspected Developmental Toxicants 990 

• Suspected Endocrine Toxicants 167 

• Suspected lmmunotoxicants 312 

• Suspected Kidney Toxicants 768 

• Suspected Gastrointestinal or Liver Toxicants 12,133 

• Suspected Musculoskeletal Toxicants 650 

• Suspected Neurotoxicants 1,575 

• Recognized Reproductive Toxicants 43 

• Suspected Reproductive Toxicants 819 

2 http: /www.epa.gov/cgi-bin[e:etlcRepOii.Cl.d?tool=echo&lDNumber=lLD0986424:24&media tool=r::CHO 

3 
• Suspected Respiratory Toxicants 12,913 

• Suspected Skin or Sense Organ Toxicants 12,150 

3. Onyx Has One of The Worst Compliance Records In Illinois And It Is 

Surrounded By Other Facilities That Are Also Unable to Comply 

With Clean Air Safeguards. 

This toxic waste incinerator has a long history of federal and state prosecutions for 

violations of state and federal laws. In 1990, the state prosecuted the incinerator for 

multiple air and waste law violations and lodged a decree in state court. In 1991, after 

the facility violated its 1990 agreement, the State Attorney General again commenced an 

enforcement action, this time settling for a $3.3 million penalty and another court order. 

In 1991 US EPA also imposed a fine of$3,380 for the illegal shipment of hazardous 

wastes from Bermuda. Earlier this year, Attorney General Lisa Madigan prosecuted the 

incinerator for more violations between 1996 and February 1998, including an explosion 

that rocked the facility and released clouds of poisonous gases, hospitalized a worker, and 

secured a $500,000 penalty. Despite these prior prosecutions there are, according to the 

Illinois Attorney General, two more enforcement cases currently pending 

According to the U.S. EPA ECHO database, there are another six major sources of air 

pollution just in Sauget alone. Currently half are listed as being in significant 

noncompliance with their clean air permits. 

II. U.S. EPA HAS THE AUTHORITY TO OBJECT TO THE PROPOSED 

TITLE V PERMIT AND BLOCK ISSUANCE OF ANY OTHER 

PERMITS ON THE BASIS THAT THIS FACILITY PRESENTS AN 

UNREASONABLE THREAT OF HARVI AND THAT THREAT IS 

DISPROPORTIONATELY BORNE BY LOW-INCOME AND 

MINORITY RESIDENTS. 

U.S. EPA (and IEPA) have an unambiguous directive to consider environmental justice 

implications in their permitting decisions3 In this instance E.O. 12898, the CAA and 

RCRA provide U.S. EPA with broad statutory authority to consider such environmental 

justice issues and establish permit limits to avoid disparate impacts on low-income and 

minority communities. Former Administrator Whitman underscored U.S. EPA 

responsibilities in an August 9, 2001memo, "EPA's Commitment to Environmental 

Justice." 

l. The Resource Conservation & Recovery Act (RCRA) 

On December I, 2000 then-U.S. EPA General Counsel Gary Guzy wrote a memorandum 

outlining the scope of EPA's authority to address environmental justice issues in its 

3 Federal Executive Order 12898: http://www.epa,gov/civilrightsieol2898.htm and !EPA Interim EJ 

Pol icy: http://www .epa. state. il_,l-t~!s:.n vjronment_illj ustice/policy .ht]D I. 

000004 4 
RCRA permitting decisions. (Guzy Memo). The Guzy Memo focuses on RCRA's 

Omnibus Provision, Section 3005(c)(3), which provides that "[e]ach permit issued under 

this section shall contain such terms and conditions as the Administrator (or the State) 

deems necessary to protect human health and the environment." Guzy Memo at 2.4 The 

Guzy Memo describes how U.S. EPA's authority to address environmental justice issues 

in RCRA hazardous waste permits had been directly addressed by the Environmental 

Appeals Board (EAB) in Chemical Waste Management, Inc., 6 E.A.D. 66, 1995 WL 

395962 (1995). 5 As Mr. Guzy stated: 

The Board found "that when the Region has a basis to believe that operation of 

the facility may have a disproportionate impact on a minority or low-income 

segment of the affected community, the Region should, as a matter of policy, 

exercise its discretion to assure early and ongoing opportunities for public 

involvement in the permitting process." Id. at 73. It also found that RCRA 

allows the Agency to "tak[ e) a more refined look at its health and environmental 

impacts assessment in light of allegations that operation of the facility would have 

a disproportionately adverse effect on the health or environment of low-income or 

minority populations." !d. at 74. Such a close evaluation could. in turn. justify 

permit conditions or denials based on disproportionately high and adverse human 

health or environmental effects, while "a broad analysis might mask the effects of 

the facility on a disparately affected minority or low-income segment of the 

community." !d. 

Guzy Memo at I (emphasis added). As described above, there is no dispute that the 

operation of Onyx's incinerator, including the transport of hazardous waste to and from 

the facility "may have a disproportionate impact on a minority or low-income segment of 

the affected community [of Metro East)." 

In a situation where a company has a longstanding pattern of noncompliance with RCRA 

safeguards and is threatening human health and the environment, U.S. EPA has the 

authority and indeed the duty to close down this facility. This RCRA Omnibus provision, 

Guzy offers, has been interpreted by U.S. EPA "to authorize denial of a permit to a 

facility if EPA determines that operation of the facility would pose an unacceptable risk 

to human health and the environment and that there are no additional permit terms or 

conditions that would address such risk." Guzy Memo at 3 (emphasis added). Such 

denial would be appropriate, Guzy opined: 

to address the following health concerns in connection with hazardous waste 

management facilities that may affect low-income communities or minority 

communities: 

4 There are other additional sources of authority for U.S. EPA to consider environmental justice issues in its 

permitting decision, including section 3013 (authority to compel studies to assist with establishing 

appropriate permit limits); and Section 3005(e). 5 ~Y}Y}:Y_,.epa.gov/eab/disk ll /cwmii.pdf 

000005 5 
o Cumulative risks due to exposure from pollution sources in addition to the 

applicant facility; 

o Unique exposure pathways (e.g. subsistence fishers, .. , ); and 

o Sensitive populations (e.g, children with levels of lead in their blood, , , , ). 

Guzy Memo at 3. Onyx's incinerator is located amidst a low-income and minority 

community that is suffering from all three such high-risk scenarios. 

a. Cumulative Risks 

As described above, Onyx emits the most persistent and toxic chemicals knov.'!l to 

science. These chemicals, such as dioxin, mercury and lead, do not degrade and 

accumulate in the human body with increased exposure. Compounding Onyx's 

emissions, both legal and illegal, are the cumulative effects of more than a dozen other 

major sources of air pollution immediately adjacent to Onyx, including Monsanto, 

Solutia, and Big River Zinc. Each of these facilities emits millions of pounds of 

additional air pollution and the collective stew of all of these emissions is the air that 

residents of East St. Louis breathe every day. 

In addition to risks posed by hazardous air pollutants, residents of East St Louis also are 

bombarded with dangerous levels of fine particle and smog pollution. Based on three 

years of monitoring data, the State has proposed that this entire area be designated as 

nonattainment for PM2.5 and 8-hour ozone standards. The existing fine particle and 

smog problem is about to get a lot worse, absent U.S. EPA intervention. 

Illinois and Missouri are moving quickly to permit giant new sources of fine particle and 

smog-forming pollution. For example, Missouri is pushing to approve the Holcim 

Cement plant just across the Mississippi River from East St. Louis. This largest-in-thenation cement plant would dump over 3 tons of nitrogen oxides (a precursor to fine 

particles and smog pollution) per day into the region's already polluted air. Based on 

prevailing Southwest winds, much of that pollution is heading to East St Louis6 

Similarly, Illinois just released a draft permit for Peabody to build a giant coal-burning 

power plant in Washington County 1.8 miles south of the Greater St Louis 

nonattainment area. Peabody's draft permit would allow 26,000 tons of criteria 

pollutants and 270 pounds of toxic mercury pollution every year. Again, this location is 

upwind of Metro East A little further in the permitting pipeline is Illinois Power's plans 

to expand its notoriously dirty Baldwin plant For unclear reasons, !EPA has to date 

6 To its credit, U.S. EPA is proposing to oven·ule MissourFs recommendation that the proposed Holcim site 

be located outside of the new 8-hour ozone nonattainment area. On the Illinois side~ Region 5 has thus far 

remained silent on whether or not it will require that the counties where Peabody and Illinois Power seek to 

add their giant coal-burning power plants- Washington and Randolph- will be designated as 

nonattainment with respect to both the PM2.5 and 8-hour ozone standard. Nonattainment designations and 

the protections such designations provide (such as requiring pollution offsets) will have a direct impact on 

air quality in East SL Louis and therefore on the lives of the overwhelmingly low-income and minority 

residents. 

Q OOOu 6 
declined to study the effects on PM2.5 and 8-hour ozone levels from building all of these 

new coal-burning power plants and a cement factory. 

b. Unique Exposure Pathways Are Not Unique In East St. Louis. 

Area residents are subject to "unique exposure pathways." Guzy Memo at 3. Lakes at 

both Frank Holten State Park in Centreville/East St. Louis and at Horseshoe Lake State 

Park in Granite City have fish consumption advisories because of high levels of mercury 

in the fish. The sediments in Horseshoe Lake have been found to contain high levels of 

both lead and cadmium. Many area minority and low-income residents fish both lakes 

for a major source of protein. For twenty years, Onyx has emitted large amounts oflead, 

cadmium and mercury into the region. The proposed permit allows large amounts of 

additional mercury, lead and cadmium pollution into the neighboring communities and 

waterways. 

c. East St. Louis Is Home To a Large Number of"Sensitive Populations." 

Onyx is located in the midst of an area with high numbers of "sensitive populations" 

already suffering from elevated levels of lead-poisoning and respiratory ailments, 

including asthma. Guzy Memo at 3. Sensitive populations include children, seniors, 

low-income and minority communities. Of the 210,234 people who live within five 

miles of the Onyx's incinerator, 66 percent are minority and 40 percent are elderly or 

children. As U.S. EPA has said, "[e]xposure to air pollution may trigger or cause adverse 

health effects and may explain why respiratory illness, such as asthma and bronchitis, 

particularly affect low-income communities and communities of color." See U.S. EPA 

Region 7, Asthma, Air Quality and Environmental Justice: EPA's Role in Asthma 

Education and Prevention7 

The other particularly sensitive subpopulation are children suffering from lead poisoning 

and/or asthma. Though national rates of childhood lead poisoning have declined to near 

2%, childhood lead poisoning rates in the City of St. Louis have persisted at 

approximately 25% for the past decade, with rates in some neighborhoods nearing 55%. 

Research shows that exposure to airborne lead at levels of 1 microgram per cubic meter 

(ug/m3

) results in a blood lead level of2-6 micrograms per deciliter (ug/dl) in exposed 

populations, underscoring the need to prevent airborne exposures. U.S. EPA has 

concluded that exposure to I ug/m3 in the air results in 2 ug/dllead in the blood, a ratio of 

1 :2. Other studies indicate the ratio is as high as I :6. Airborne lead poses an 

nnacceptable risk, particularly to pregnant women, their developing babies and to young 

children whose exposure to airborne lead is involuntary, causes irreversible damage, and 

cannot be controlled by individual actions and choices. It must stop at the stack. 

Moreover, there are no additional permit conditions that can address the risk posed by 

Onyx's unwillingness and inability to comply with public health protections, even if the 

protections were sufficiently strong. Onyx has been given repeated warnings and 

7 Available at www.epa.gov/regiQQ07illrograms@r.td/air/gualitv/asthma.htm. 

00000? 7 
opportunities to become a good neighbor. It has been slapped with multi-million dollar 

penalties. Yet, the violations continue and the surrounding residents (and the workers) 

continue to pay a very high price while Onyx continues in business. Under these extreme 

circumstances, U.S. EPA must deny the permit. 

In fact. because U.S. EPA cannot include terms and conditions in Onyx's permit that will 

ensure the facility complies with health protections and no longer presents a threat to 

human health and the environment, RCRA 3005(c)(3) mandates U.S. EPA close this 

facility. If the facts in this case don't warrant permit denial, what would? If the agency 

fails to shut down this facility, it must explain to the people of Illinois the threshold that it 

determines warrants denying a permit and concluding that a company had relinquished its 

privilege to operate. On these facts, we believe it would be arbitrary and capricious to 

not deny Onyx its permits. 

2. Clean Air Act 

Petitioners recognize that Title V generally does not impose new substantive emission 

control requirements, but rather requires that all underlying applicable requirements be 

included in the operating permit. See In re: Orange Recycling and Ethanol (Adm'r, 

2001 ). At least one applicable requirement is relevant in this instance. 

In Illinois' SIP is a provision stating that "no person shall cause or threaten or allow the 

discharge or emission of any contaminant into the environment in any State so as, either 

alone or in combination with other sources, to cause or tend to cause air pollution in 

Illinois." 35 Ill. Admin. Code § 201.141. The term "air pollution" is further defined to 

mean "the presence in the atmosphere of one or more air contaminants in sufficient 

quantities and of such characteristics and duration as to be injurious to human, plant, or 

animal life, to health, or to property, or to unreasonably interfere with the enjoyment of 

life or property." 35 Ill. Admin. Code§ 201.102. As described elsewhere in this petition, 

Onyx is seeking permission to discharge such contaminants as mercury, lead, and dioxin 

into the environment at levels that are injurious to human health and the envirornnent. 

There are other CAA authorities providing U.S. EPA with broad authority to fulfill its 

envirornnentaljustice mandates, such as provisions providing U.S. EPA with broad 

authority to research and disclose the human health effects of Onyx's toxic emissions. 

See e.g. 42 U.S.C. § 7403(a)(l). Moreover, as the U.S. EPA Envirornnental Appeals 

Board has made plain, the absence of explicit provisions in the Clean Air Act do not 

preclude the agency from considering environmental justice issues. See e.g. In re Chem. 

Waste Mgmt. Of Ind., 6 E.A.D. 66,76 (EAB 1995) (exercising review, as a matter of 

policy and discretion, of environmental justice issues despite the lack of form rules). 

III. U.S. EPA HAS NOT COMPLIED WITH ITS LEGAL OBLIGATIONS TO 

CONSIDER AND RESOLVE THE ENVIRONMENTAL JUSTICE ISSUES 

IMPLICATED BY ONYX'S PROPOSED PERMITS. 

000008 8 
According to the Guzy Memo and the 2001 Whitman Memo there are at least three 

actions that the agency should undertake whenever environmental justice issues are 

raised: ( l) investigate and study the threats and impacts on low-income and minority 

communities at risk from the agency's proposed action before taking any action; (2) 

provide early and ongoing opportunities for the public to be involved in the decisionmaking process; and (3) in instances where a state has an important permitting role 

ensure that the state meets the spirit and intent of EO 12898 as well. In this instance U.S. 

EPA has failed to take any of these three actions. 

I. U.S. EPA Has Failed To Complete A Health Assessment Before It or the State 

Issued Draft Permits for Public Review. 

One of the fundamental precepts of enviromnental justice is the obligation on U.S. EPA 

to provide access to basic information about the risks a U.S. EPA regulated activity is 

posing to low-income and/or minority community, and before U.S. EPA takes the 

proposed action. U.S. EPA did prepare a "Risk Screening Report (Draft Report)" that 

was attached to the draft RCRA permit and available for public review. The Draft Report 

is labeled "draft #5" and has the word "draft" stamped on every page. It is a draft. To 

this day it remains a draft. 

It is unclear why the agency put forward its Draft Report at the same time it issued a draft 

permit for public comment. The risk screening report is a vital piece of information 

about the levels of risk posed to the community by this facility and the presumably 

appropriate limits that should be in the final permit. The public cannot intelligently 

comment on a draft risk screening report at the same time as comment on the draft 

permit, particularly when it appears there are major defects in the risk screening report. 

1 f the agency has not finalized its risk screening report, it cannot propose appropriate 

emission limits. The agency must therefore, at a minimum, complete its risk screening, 

consistent with the comments offered herein, and then revise or deny the proposed permit 

(complete with an opportunity for public comment). 

There are other problems with the Draft Report. U.S. EPA's conclusion that the permit 

limits for polychlorinated dibenzodioxins and furans (PCDD/F) are protective of human 

health and the environment is arbitrary and capricious. The draft risk screening report 

asserts that, based on Onyx's recent installation of an activated carbon injection system at 

Unit 4 and based on trial test bums at units 2 and 3, the risk of harm from PCDD/Fs is 

less tban I in I 00,000. U.S. EPA then goes on to say that this result may be further 

analyzed in the future but at this time no further reductions are recommended. These 

conclusions are flawed. First, U.S. EPA's conclusions are assuming that Onyx is 

operating its carbon injection system in a responsible manner and complying with all 

applicable rules. As described above, it is arbitrary and capricious to assume Onyx is 

ever in compliance with its regulatory requirements. Onyx has violated and continues to 

violate its permit conditions. For example, in Onyx's 1999 and 2000 Total Annual 

Benzene and Annual Inspection Summary Reports that it submitted to U.S. EPA under 

letters dated March 5, 2001 and March 4, 2002, respectively, Onyx listed sixty (60) 

releases of benzene. Were these releases considered as part of U.S. EPA's risk screen? 

OOOOOD 9 
The risk screen must assess the conditions that exist at Onyx - i.e. repeated and serious 

violations involving releases of PCDD/F and multiple other toxins. 

The Draft Report provisions regarding lead and other persistent toxins are extremely 

confusing and seemingly illogical. Lead is one of the most well-tested poisons. We 

know it is a neurotoxin. We know that tiny amounts can strip a child of his or her 

potential, lower their IQ, and cause a host ofhehavioral problems. U.S. EPA is one of 

the lead federal agencies that committed in 2000 to a national strategy to virtnally 

eliminate childhood lead poisoning within ten years, e.g. hy 20 I 0. 

The United States will not virtually eliminate lead poisoning in Metro East if U.S. EPA 

does not prohibit Onyx from emitting lead pollution across the region. Children in the 

Metro East area already have very high blood-lead levels 8 One of the primary reasons 

for such high nU111bers of lead-poisoned children is the very high lead-in-soillevels 

through East St. Louis9 Engaging in the most natural hand-to-moufh activities, young 

children inadvertently ingest this lead-contaminated soil. Despite the large numbers of 

children already harmed, the Draft Report and draft RCRA permit sets lead levels for fhe 

incinerator at a level that would allow surrounding lead-in-soillevels to increase up to 

I OOmg/kg. As U.S. EPA is well aware -lead does not biodegrade, it does not volatize, it 

simply bnilds up in the soil. Authorizing Onyx to add more lead to already contaminated 

soil is authorizing Onyx to make an existing terrible situation even worse. Onyx, of 

course, has been emitting lead into the air since it began operation in 1980 and helped 

create the overall lead burden in Metro East. The RCRA permit must set Onyx's lead 

limit at zero. If it can't meet this limit, it should not be allowed to continue operating. 

The proposed permit limits for the other toxins are simply incomprehensible. There is no 

discussion about "safe" levels. There is no discussion about the assumptions underlying 

the risk calculations, e.g. is the child risk factor based on a child that has a propensity to 

ingest dirt, e.g. a pica child? The Draft Report is simply inaccessible in its current form. 

The Draft Report fails to discuss the environmental justice implications of fhe proposed 

permit limits and there does not appear to have been any environmental justice analysis 

conducted whatsoever. Such analysis must include, among other things, the risk 

exposure facing the residents of surrounding communities who are already lead-poisoned, 

those who engage in subsistence fishing in area lakes, rivers and streams, and residents 

who are otherwise sensitive. 

This analysis should include, for example, the obvious finding that residents are already 

suffering from high levels of lead poisoning, many areas have high levels of leadcontaminated soil, lead is a potent and persistent neurotoxin, and therefore Onyx's permit 

8 U.S. EPA Press Release, Aug, 21. 2001. Community Outreach Meeting Focus on Lead Issues. 

http://www .epa. gov/region5/news/news0 l /01 opa I38.htm (a recent screening of 189 East St. Louis school 

children found lead poisoning rates of 12 percent). 9 !EPA Press Release, Oct 28, 2002, Residential Soil Removals Begin at Two East St. Louis Sites, 

http://www.epa.state. iLus/news-releases/2002/2002-185::-east-stlouis.html ("a study ... found the soil in 

many areas of East St. Louis contained high levels of lead.") 

000010 10 
limit for lead emissions must be set at zero. The analysis for mercury is similar. 

Mercury levels burden residents, a significant number of residents rely on subsistence 

fishing and thereby increase mercury body burdens, and reducing airborne mercury 

emissions, especially from incinerators, can dramatically cut mercury levels in fish tissue. 

This success of this approach is confirmed by the recent studies performed in Florida by 

the State Department of Environmental Protection. 10 

2. Despite Petitioners' Environmental Justice Concerns U.S. EPA Did Not 

Assure Early and Ongoing Public Involvement Opportunities. 

Throughout this permitting process U.S. EPA has essentially been absent and failed "to 

assure early and ongoing opportunities for public involvement in the permitting process." 

For example, U.S. EPA failed to make the RCRA permit readily available to the public. 

Petitioner Sierra Club repeatedly requested the agencies to provide an electronic copy or 

to make it available on the web. Sierra Club representatives were told that was not 

possible and instead must obtain a copy from U.S. EPA Region V's headquarters in 

Chicago. There the representative was told to pay 15 cents a page for a 240-page permit, 

a total cost in excess of $35. This is more than the median daily income in East St. Louis. 

The U.S. EPA records Petitioners reviewed were unorganized and missing entire 

documents. For example, there are several references to a 2000 multimedia inspection 

conducted by U.S. EPA. Sierra Club submitted a Freedom oflnformation Act request to 

Region V Air and Radiation Division for Onyx records, including inspection reports. In 

its March 6, 2003 response U.S. EPA withheld three documents: 1) a Draft Inspection 

Report, undated, which is presumably the 2000 multimedia inspection report; 2) an IEP A 

Inspection Report from 1990, and 3) a "Gateway Quarterly Review" from 1995. Does a 

draft inspection report, and two other inspection reports that are thirteen and eight years 

old, respectively, contain "pre-decisional", "deliberative process" or "enforcement 

confidential" information? Are these documents still being used for an ongoing 

enforcement matter? Regardless, the end result is that the public does not have access to 

the information necessary to assess the facility's compliance history. 

3. U.S. EPA Failed To Require IEPA To Consider Environmental Justice 

Concerns Either. 

U.S. EPA's review of State-issued permits is another opportunity for U.S. EPA to address 

environmental justice concerns. Again, the Guzy Memo: 

Where the process for a State-issued permit does not adequately address sensitive 

population risks or other factors in violation of the authorized State program, 

under the regulations EPA could provide comments on these factors (in 

appropriate cases) during the comment period on the State's proposed permit on a 

facility-by-facility basis. 40 CFR § 271.19(a) ..... [l]fthe State is not authorized 

for "omnibus" authority, EPA may superimpose any necessary additional 

10 Study available at http:/ www.dep.state.tlus/secretarv/comm/2003/noy/l ! 06.htm. 

'JOOOii II 
conditions under the "omnibus" authority in the federal portion of the permit. 

These conditions become part of the facility's RCRA permit and are enforceable 

by the United States under RCRA section 3008 and citizens through RCRA 

section 7002. 

Guzy Memo at 4. There is no evidence that U.S. EPA has provided comments or 

otherwise held Illinois responsible for addressing environmental justice concerns in either 

the proposed RCRA permit or the proposed Title V operating permit. In fact, the record, 

except Petitioners comments and much of the public testimony at the public hearing, is 

altogether painfully silent on environmental justice issues. 

The proposed Title V permit contains multiple examples where IEP A has exercised its 

discretionary authority in favor of Onyx, not the breathing public: 

• Condition 7.1.3.c grants Onyx another extension for compliance with Subpart 

EEE requirements 

• Page 44, Condition 7 .I. 7 .I gives IEP A unfettered discretion to grant Onyx a oneyear extension to complete a comprehensive performance test 

• Page 46, Condition 7.1.7.o gives !EPA unfettered discretion to grant Onyx an 

unlimited time extension for submitting the Notification of Compliance 

• Page 46, Condition 7.1.7.p gives !EPA, even if Onyx fails to submit a Notification 

of Compliance, discretion to extend the period for "pretesting or comprehensive 

performance testing" beyond 720 hours. 

In some instances, IEP A has effectively washed its hands of any public involvement 

obligations altogether. On page 32, Condition 7.1.7.d.ii allows Onyx to make the sitespecific and CMS performance evaluation test plans available to the public "by issuing a 

public notice announcing the approval of the test plans and the location where the test 

plans are available for review." Should not IEP A, as the regulating entity, not profitdriven Onyx, have the responsibility to determine the most accessible and convenient 

location to establish a document depository? !EPA's approach also fails to require Onyx 

to make copies available for interested persons to take offsite or provide photocopying 

facilities at a reasonable cost. 

A systematic solution to this problem would be for U.S. EPA to revise its delegation 

agreements and to include in its Performance Partnership Agreements with Illinois 

specific actions that the State must take to avoid more of these same situations. 

IV. THE ADMINISTRATOR MUST OBJECT TO ONYX'S PROPOSED 

TITLE V PERMIT BECAUSE IT FAILS TO COMPLY WITH 

APPLICABLE REQUIREMENTS 

If the U.S. EPA Administrator determines that the proposed Title V permit does not 

comply with the requirements of the Clean Air Act ("CAA'') or 40 C.F .R. Part 70, he 

must object to issuance of the permit. See 40 C.F.R. § 70.8(c)(l) ("The [U.S. EPA] 

Administrator will object to the issuance of any permit determined by the Administrator 

12 
not to be in compliance with applicable requirements or requirements of this part."). The 

permit fails to comply with the applicable requirements in a number of ways: 

I. The Administrator Must Object To Onyx's Proposed Permit Because It Lacks A 

Compliance Schedule To Bring Onyx Into Compliance With All Applicable 

Requirements. 

A fundamental purpose of the Title V permitting program is to ensure that regulated 

entities comply with CAA requirements. The applicant for a Title V permit must disclose 

its compliance status and either certify compliance or enter into an enforceable schedule 

of compliance to remedy violations. 42 U.S.C. § 766lb(b); 40 C.F.R. § 70.5(c)(8-9). 

Under 40 C.F.R. § 70.1 (b) and Clean Air Act§ 504(a), each facility that is subject to 

Title V permitting requirements must obtain a permit that "assures compliance by the 

source witl1 all applicable requirements." Applicable requirements include, among others, 

the requirement to comply with state implementation plan ("SIP") requirements. See 40 

C.F.R. § 70.2. If a facility is in violation of an applicable requirement at the time that it 

receives an operating permit, tile facility's permit must include a compliance schedule. 

See 40 C.F.R. § 70.5(c)(8)(iii)(C). 

The compliance schedule must contain "an entorceable sequence of actions with 

milestones, leading to compliance witll any applicable requirements for which the source 

will be in noncompliance at the time of permit issuance." See 40 C.F.R. § 

70.5(c)(8)(iii)(C). Thus, if a toxic waste incinerator is in violation ofNSR or SIP 

requirements, the plant's operating permit must include an enforceable compliance 

schedule designed to bring the plant into compliance with those requirements. The plant 

is then bound to comply with that schedule or risk becoming the target of an enforcement 

action for violating the terms of its permit. 

In the present permit proceeding, Onyx has failed to certify compliance with all the 

requirements that apply to its facility. In its proposed permit, tile IEP A has not required 

an updated certification, nor does it incorporate any schedule of compliance or other 

remedial measures in the proposed Title V permit. Notwithstanding, because there are at 

least two referrals at the Illinois Department of Justice for clean air violations, the permit 

is required to contain a compliance schedule addressing these violations and the 

Administrator must object because of this deficiency. 

Part of the problem appears to stem from !EPA's simple misunderstanding of Title V 

requirements. During the public hearing the !EPA permit writer was asked about the 

compliance status of Onyx and the status of the enforcement cases pending with the 

Illinois Attorney General. The permit writer's response made it brutally clear that as of 

the date of the public hearing the agency tailed to conduct an evaluation of Onyx's 

compliance history: 

"I honestly don't know what the Attorney General's Office is doing .... " 

00001:5 13 
Mr. Belogorsky, Lead Pennit Writer, Air Bureau. Onyx Hearing Transcript at 181 :4-5 

(attached). 

a. The Administrator Must Object to the Proposed Permit Because As The 

Illinois Attorney General Has Commented- The Proposed Permit Does Not 

Include The Very Measures That Onyx Has Identified As Necessary To 

Prevent The Repeat of The Same Violations That Have Previously Occurred 

IEP A possesses evidence of non-compliance at this facility. The source of this 

information is the agency's referrals to the Illinois Attorney General for prosecution. On 

February 17, 2004 the Illinois Attorney General ("lAG") submitted comments to !EPA 

criticizing its failure to include measures in the proposed permit to assure future 

compliance. A copy of that letter is attached. In that letter, the lAG states: 

The incident reports filed by the current and former operators over the years have 

also identified a number of actions that must be taken to assure that the underlying 

violations will not be repeated in the future. The operators have sought to 

incorporate many of these actions into the applicable permits through applications 

to modify the permit. The proposed permits must be reviewed to assure that all of 

these necessary actions are included as necessary permit conditions. The incident 

reports filed by the current operator identified the following measures as 

necessary to prevent future violations: 

I) To prevent exceedances of the kiln pressure limit and visible emissions, 

the operator must repackage potassium superoxide from oxygen breathing 

apparatus canisters in plastic bags and enclosed fiber drums prior to 

charging. See 7/17/00 Incident Report included in Appendix A. 

2) In response to an October 1, 2001 release oftriethylborane which resulted 

in a fire at the No. 2 Incinerator, the operator detennined that it must 

develop a system for purchasing, inspecting, installing, and maintaining 

hoses and hose bands for use on the injector systems and to install a 

remotely operated fire protection system in the feeder areas. See the 

1 0!1 101 Incident Report and Incident Investigation Report included in 

Appendix A. 

lAG Letter at 2. The lAG letter further points out that Onyx's past violations 

demonstrate that the facility has difficulty handling certain toxic waste without incident. 

A simple compliance schedule to address that ongoing problem would be to explicitly bar 

Onyx from handling those specific wastes. Failure to address each of these compliance 

issues in the proposed permit is unlawful and, on this basis, the Administrator should 

object to this permit. 

In light of the number of violations, the number of years these violations have been 

occurring and continue to occur without resolution, and that there are two additional 

referrals at the Illinois Attorney General's office, there is no factual basis for concluding 

000014 14 
this tacility is operating in compliance with federal and state elean air requirements. 

Illinois' Chief Law Enforcement Official summed it up best: 

As currently written, the permits will not assure that operation of this facility will 

not violate the Environmental Protection Act or regulations promulgated 

thereunder or adopted thereby. These deficiencies must be rectified before a 

determination of whether to issue the permits can be made. 

lAG Letter at 5. Because of these facts the proposed Title V permit, issued by the !EPA 

without a schedule of compliance, is not legally adequate and the Administrator should 

object to the permit. 

b. The Administrator Should Object To The Permit Because There Is Strong 

Evidence That Onyx Undertook Modifications That Triggered Requirements 

Arising Under New Source Review 

The second compliance issue related to Onyx is whether this facility unlawfully avoided 

New Source Review (NSR) and, in turn, the requirement to install modem pollution 

control equipment. If Onyx illegally avoided NSR, the Title V permit shonld in elude an 

enforceable schedule of compliance for NSR to occur, coupled with emission and 

operational standards equivalent to a new facility in this source category. 

The Attorney General's Offlce raised the possibility that Onyx undertook illegal 

modifications in its assessment of prior violations: 

The October I, 2001, Incident raised another significant issue. The fire resulting 

from the triethylborane release spread from the Unit No. 2 Incinerator into the 

Specialty Feeder Building as a result of modifications made by the operator which 

compromised the fire containment capability of the wall between the Incinerator 

and the Specialty Feeder Building. Approval for this alteration through the 

required permit modification process had been neither sought nor obtained. 

Accordingly, the modification was performed in a manner which did not maintain 

the fire containment capability of the wall. The facility must be audited to 

identify all other unpennitted modifications so that they may assessed to 

determine whether other safeguards have been undermined and what corrective 

measures must be employed to eliminate these existing threats to public health 

and safety and the environment. 

AG Letter at 2 (emphasis added). 

Whether Onyx unlawfully avoided NSR is directly relevant to Title V permitting for two 

reasons. First, as described above, ensuring compliance with the requirements 

originating in the Clean Air Act is a fundamental goal of the Title V /CAAPP permitting 

process. In turn, there may be no more important Clean Air Act requirement than 

compliance with New Source Review. 

o o·· !('\ ~l· 0- '""' ~~u .) 15 
NSR is a pre-construction permitting program that serves two important purposes: first, it 

ensures that factories, industrial boilers and power plants comply with air quality 

standards when components are modified or added to these facilities; and, second, NSR 

requires that new plants or existing plauts undergoing a major modification install stateof-the-art control technology. 42 U.S.C. § 7401(a)(l); 42 U.S.C. § 740l(a)(2). The 

program covers two distinct categories: (I) the construction of new industrial facilities, 

and (2) existing facilities that make any modifications that significantly increase pollution 

emissions and are not exempt from regulation. United States v. Ohio Edison Co., 2003 

U.S. Dist. LEXIS 13799, *II (S.D. Ohio, Aug. 7, 2003). !fa facility falls into one of 

these two categories, then the company is required to establish stringent emissions 

controls. 42 U.S.C. § 74ll(a)(l ). If a modification is known to substantially increase the 

amount of emissions from a facility, the facility must obtain pre-construction approval. 

Ohio Edison, 2003 U.S. Dist. LEXIS 13799, *II; see, e.g .. 42 U.S.C. § 7475. 

Congress has defined a modification as "auy physical change in, or change in the method 

of operation of, a stationary source which increases the amount of any air pollutant 

emitted by such source or which results in the emission of auy air pollutant not 

previously emitted." 42 U.S.C. § 74ll(a)(4); see also 40 C.P.R.§ 60.14(a) (U.S. EPA 

defining a modification as "auy physical change or operations change to an existing 

facility which results in au increase in the emission rate to the atmosphere of any 

pollutant to which a standard applies"). A determination that New Source Review has 

been triggered by site modifications would require the source to comply with new source 

requirements and apply state-of-the-art pollution controls, which are much more stringent 

than emission limits proposed without a permit. 42 U.S.C. § 74ll(a)(l); see also Ohio 

Edison, 2003 U.S. Dist. LEXIS 13799, *56. 

There is a second reason why NSR is directly relevant to the Title V permitting process. 

The IEP A developed the proposed permit containing emission and operational standards 

explicitly and seemingly without question based on the applicant's representations that it 

is not subject to new source standards. If, however, Onyx were subject to New Source 

Review, then entirely different emission and operational standards would apply than 

those included by IEP A in the proposed permit. Simply, in the absence of determining if 

NSR applies, IEP A cannot know which emission and operational standards apply to 

Onyx. In sum, as a prerequisite to setting the emission aud operational standards in a 

Title V pennit, !EPA must determine whether NSR applies. Because !EPA failed to do 

this, the proposed permit is defective and the U.S. EPA Administrator must object. 

2. The Administrator Should Object To the Proposed Permit Because It Was 

Based On An Eight-Y ear Old Application That Had Never Been Updated. 

Onyx's application was over eight years old when !EPA issued the draft Title V permit. 

To the best of our knowledge !EPA never required an updated application, including a 

new compliance certification submission. Onyx must be required to update its 

application to include auy new information, such as new equipment aud other 

information that is highly relevant to issuing a meaningful permit It is umeasonable for 

OOOOlr> 16 
IEP A to rely on an outdated permit application. On this basis, the Administrator should 

object to this proposed permit. 

3. The Administrator Must Object to the Proposed Permit Because It Contains 

Conditions That Are Not Practically Enforceable 

Onyx's proposed Title V permit contains numerous conditions which are not practically 

enforceable. This is a violation of U.S. EPA policy regarding practical enforceability 

and, consequently, the Administrator must object to the permit. For a permit condition to 

be enforceable, the permit must leave no doubt as to exactly what the facility must do to 

comply with the condition. U.S. EPA Region 9 Title V Permit Review Guidelines, Sept. 

9 1999, p. III-46. 

A permit is enforceable as a practical matter (or practically enforceable) if 

permit conditions establish a clear legal obligation for the source [and] 

allow compliance to be verified. Providing the source with clear 

information goes beyond identifying the applicable requirement. It is also 

important that permit conditions be unambiguous and do not contain 

language which may intentionally or unintentionally prevent enforcement. 

!d. Although some of the language identified below (i.e., "reasonable" or "significant") 

may be quoting directly from the Act or regulations, this is not sufficient to justify the 

!EPA's use of this language verbatim in the permit and overcome the practical 

enforceability problem. It is the responsibility of the Agency to interpret and implement 

the Act and regulations. One obligation under this responsibility involves translating 

language from the Act or regulations that would not be practically enforceable in a permit 

to language to be included in a pem1it that clearly and specifically identifies what a 

facility must do. 

Following are specific examples: 

Page 28- Condition 7.1.6.b.ii requires Onyx to "notify !EPA of the intent to incinerate 

[dioxin-listed hazardous waste]". When must such notification occur? In what format? 

How is the public supposed to monitor compliance with this requirement? 

Page 41- Condition 7.1.7.g is a new provision that requires Onyx to operate the 

incinerator during the performance test under "normal conditions (or conditions that will 

result in higher emissions)". There is a similar provision in the two following 

subsections. This strange provision has two obvious flaws- should the performance test 

be under "normal conditions" or "conditions that result in higher emissions"? It can't be 

both. Moreover, "higher emissions" of which pollutants? 

Page 46- Condition 7.1.7.p requires Onyx to "cease hazardous waste burning 

immediately" if it fails to "postmark a Notification of Compliance." This must be a 

simple, but important, drafting error. 

17 
Page 84, Condition 7.1.9.a.ii uses the tenn "you" rather than "Permittee" the term that is 

used everywhere else. This is probably just a simple, but confusing, drafting enor. In 

this same section there is a reference to "owners and operators of lightweight aggregate 

kilns" and "cement kilns." Presumably these provisions don't have anything to do with 

Onyx, rather just highlight !EPA's failme to tailor the applicable statutory and regulatory 

requirements to this facility. 

Finally. Condition 7.1.5 does not define the following tenns: "container," "containerized 

solids" or "manufactmer's specifications." These terms need to be defined. 

4. The Administrator Must Object to the Proposed Permit Because It Contains A 

Permit Shield That Broadly Insulates It From Ongoing and Recent Violations. 

The Administrator has to object to the proposed permit because it contains a permit shield 

that is overly broad. Condition 8.1 is a broad permit shield that is unwananted and 

threatens to undermine the Illinois Attorney General's pending enforcement cases against 

Onyx. A Title V permit shield is not available for noncompliance that occuned prior or 

continues after the submission of an application. For example, the Illinois Attorney 

General is cunently prosecuting two separate enforcement matters against Onyx. 

5. The Administrator Must Object to the Proposed Permit Because It Fails to 

Include Conditions that Meet the Legal Requirements for Monitoring. 

The necessary monitoring is strictly regulated by 40 C.F.R. § 70.6(a)(3)(i): 

Each permit shall contain the following requirements with respect to 

monitoring: (A) All monitoring and analysis procedures or test methods 

required under applicable monitoring and testing requirements, including 

part 64 of this chapter and any other procedures and methods that may be 

promulgated pmsuant to sections 114(a)(3) or 504(b) of the Act. ... (B) 

Where the applicable requirement does not require periodic testing or 

instrumental or noninstrumentalmonitoring (which may consist of 

recordkeeping designed to serve as monitoring), periodic monitoring 

sufficient to yield reliable data from the relevant time period that are 

representative of the source's compliance with the permit .... 

40 C.F.R. § 70.6(c)(l) states that "All part 70 permits shall contain ... testing, 

monitoring, reporting, and recordkeeping requirements sufficient to assme compliance 

with the terms and conditions of the permit." CAA § 504 and 40 C.F.R. § 70.6(a)(3) 

require that permits indicate the frequency at which testing shall take place. 

Page 56, Condition 7.1.8.b.ii. provides that Onyx must install, calibrate, maintain, and 

operate a particulate matter CEMS to demonstrate compliance .... " However, the next 

clause provides that the requirement to "install, calibrate, maintain, and operate the PM 

CEMS is not required until such time that the USEP A promulgates all performance 

specifications and operational requirements applicable to PM CEMS." Without the 

000013 18 
obligation to install and operate the PM CEMS there is no other PM monitoring and 

compliance method established in the proposed permit. Consequently the proposed 

pennit fails to include "requirements sufficient to assure compliance" and therefore the 

Adminstrator should object to this provision as well. 

6. The Administrator Must Object To the Proposed Permit Because It Does 

Not Contain A Statement of Basis. 

A statement of basis is required by 40 CFR 70.7(a)(5) and Section 39.5(8)(b) of the 

Illinois Environmental Policy Act. An SOB must set forth the legal and factual basis for 

the draft permit conditions. It must contain information about applicability 

determinations and a discussion of such if they are complex, monitoring selected, 

operational flexibility, streamlining rationale, basis for exemptions from requirements, 

and the inclusion of any other factual information and reference of all supporting material 

relied upon in the permitting process. Especially in this case, where the applicability 

determinations are difficult and unclear. There is no clear explanation of how the actual 

limitation or requirement applies to this facility, which makes it impossible to determine 

whether it is complying with the condition. There are a number of such problems, 

identified in Petitioners' comments and those of the Illinois Attorney General. For 

example, Condition 5.2.6, should have been rewritten to reflect that the facility is subject 

to 351AC 244.142. 

7. The Administrator Must Object To the Proposed Permit Because It Does Not 

Require Prompt Reporting of Violations 

Prompt reporting is required pursuant to 40 C.F.R. § 70.6(a)(3)(iii)(B) and ILCS 

39.5(7)(ii): 

Prompt reporting of deviations from permit requirements, including those 

attributable to upset conditions as defined in the permit, the probable cause of 

such deviations, and any corrective measures taken. 

The reporting requirements in Condition 7.7.10 do not require the source to report 

deviations promptly. Instead, Onyx is granted up to 30 days to file a report with !EPA. 

This is unlawful and another basis for the Administrator to object to the proposed permit. 

8. The Administrator Must Object To the Proposed Permit Because It Fails To 

Establish Annual Mercury and Lead Limits. 

This permit is WTitten so poorly it appears there are no annual limits on mercury and lead 

emissions. This is unlawful and is grounds for the Administrator to object to this permit. 

00001H 

!9 
STATE OF ILLINOIS 

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY 

IN THE MATTER OF: 

Proposed issuance of a Clean Air Act Permit ) 

Program Permit and Renewal of a Resource ) 

Conservation and Recovery Act Permit for Onyx ) 

Environmental Services in Sauget IL ) 

COMMENTS OF THE SIERRA CLUB 

The following comments regarding the above-captioned matter are submitted on behalf 

of the Sierra Club. The Sierra Club is a national organization working to protect the 

Nation's clean air and clean water, and our natural heritage. The Sierra Club has over 

700.000 members nationwide, including 26,000 members in Illinois. 

Onyx Environmental Services (Onyx) owns and operates a toxic waste incinerator in 

Sauget, Illinois that receives and burns hazardous waste from around the world. This 

waste includes the most dangerous chemicals known to science. During the past two 

decades as it has handled, stored, and burned this waste the incinerator has experienced 

multiple explosions that have hospitalized workers and released clouds of poisonous 

gases over nearby residents. The incinerator also has one of the very worst compliance 

histories in Illinois. Onyx is now seeking its RCRA and Title V operating permits. 

On the basis of the public health risks presented by Onyx's incinerator and its atrocious 

compliance history, the Sierra Club urges the Illinois Environmental Protection Agency 

(!EPA) to deny Onyx the permits it needs to continue operating its toxic waste incinerator 

in Sauget, Illinois. 

I. Metro East Is Suffering From Some of The Nation's Worst Air Quality 

and Onyx Is Making the Problem Worse. 

Even when it is not having explosions, the incinerator is consistently releasing large 

amounts of arsenic, dioxin, lead and other highly toxic air pollutants. Most of these 

pollutants don't degrade, and instead continue to accumulate in residents' bodies, wildlife 

and soil. The results are cancer, premature death, and other acute health problems. If 

IEP A and US EPA grant the proposed permit the agencies would be authorizing Onyx to 

dump another whopping fifty tons of the most dangerous air pollutants over Metro East 

each year. 

0000:20 
Onyx's pollution also sets back the region's efforts to fix the smog pollution that is 

plaguing the entire St. Louis metro area. The proposed air permit allows Onyx to dump 

into the air annually over 140 tons of smog-forming pollution. Last summer, parts of St. 

Louis recorded code orange or code red smog warnings on at least 35 days. Smog 

pollution causes a host of breathing problems, including more frequent and more severe 

asthma attacks. Based on this smog pollution most of the St. Louis metro counties 

received an "F" grade from the American Lung Association in its 2003 State of the Air 

Repmi. 

II. Contrary to Agency Staff Statements Made At the Public Hearing, IEP A 

has a Mandatory Duty to Evaluate Onyx's Compliance History, including 

that of its Officers and Employees. 

On July 22, 2003 IEP A and US EPA held a joint hearing on the proposed RCRA and 

Title V operating permits. Citing the facility's atrocious compliance record members of 

the public urged both agencies to deny Onyx its permits and to shut the facility down. In 

particular, Sierra Club and others urged IEPA to deny Onyx's its permit because its 

unwillingness and inability to comply with public health protections presented a clear and 

present danger to the residents in the surrounding communities. In response IEP A staff 

repeatedly demonstrated their misunderstanding of Illinois law by asserting that a 

facility's compliance history is irrelevant in their decision about whether or not to grant 

Onyx its permits. 

A. IEPA Has Failed To Comply With The Statutory Requirement 

To Consider Onyx's Compliance History. 

The Illinois Environmental Protection Act states that: 

[b ]efore issuing any RCRA permit or any other permit to a waste storage site, ... 

waste disposal site, waste transfer station, ... , waste incinerator, or any other 

waste-transportation operation, the Agency shall conduct an evaluation of the 

prospective owner's or operator's prior experience in waste management 

operations. 

415 ILCS 5/39(i) (emphasis added). Onyx's incinerator is, inter alia, a "waste 

incinerator" and IEP A is considering whether or not to issue both a RCRA permit and a 

Title V permit, both of which are covered by this provision. 

IEP A staff are apparently tmaware of this directive. During the public hearing agency 

staff repeatedly informed the public they had no authority to consider a facility's 

compliance history as part of the agency's decision about whether or not to grant a 

permit: 

[the 1 issue of denying the permit application on its technical merits and 

enforcement is on a separate [sic 1 tract. . .. I mean, you could [sic 1 site violations 

0000~~1 2 
of the permit and do enforcement against that, but you can't deny the permit 

[based on a facility's compliance history}. 

Mr. Dragovich, IEP A, Permit Unit Manager, Lands Division. Hearing Transcript, 183:1-

9. 

It is brutally clear that IEP A has as of the date of the public hearing failed to conduct an 

evaluation of Onyx's compliance history as required by state law: 

"I honestly don't know what the Attorney General's Office is doing .... " 

Mr. Belogorsky, Lead Permit Writer, Air Bureau (responding to a question about the 

Onyx enforcement case that IEP A has referred to the Illinois Attorney General's office) 

Hearing Transcript: 181:4-5. 

State law appears clear on this issue. !EPA must evaluate Onyx's compliance history in 

accord with state law. We urge !EPA to move quickly to conduct such an evaluation and 

provide the public with an opportunity to review and respond to the evaluation. 

B. IEPA's Evaluation Must Consider Onyx Environmental Services' 

Nationwide Pattern Of Violating Public Health Laws. 

State law requires !EPA to evaluate Onyx's prior experience in waste management before 

issuing a RCRA or any other permit. 415 ILCS 5/39(i). Onyx has multiple facilities 

around the United States where it is engaged in waste management activities. Onyx's 

compliance history at these other facilities is relevant and a necessary part of an 

evaluation as to their prior experience in waste management. 

A simple search of US EPA's Enforcement and Compliance History Online turns up 

thirteen large facilities, including the Sauget incinerator, owned by Onyx Environmental 

Services1 More than half(eight) have had violations in the past two years, two are listed 

as having "Current Significant Violations," and three have been subject to an 

enforcement action in the past two years. With such a seemingly widespread pattern of 

non-compliance at its facilities across the United States, !EPA's evaluation of Onyx's 

compliance history must include an assessment of its compliance nationwide. If!EPA's 

evaluation does indicate corporation-wide compliance problems and demonstrate a 

disregard for public health laws, this would serves as an additional basis for denying 

these permits. 

C. The Prior Ownership of Onyx Appears to Be Irrelevant In 

Considering Onyx's Compliance History. 

1 Using .\VW\v.epa.gov/echo, we typed in "Onyx EnvironmentaF' and it listed thirteen facilities, including 

one that appears to be jointly owned with Chemical Waste Management. 

0000:22 3 
Despite the name change of the incinerator from Trade Waste Incinerator to Onyx and the 

shift in ownership from Chemical Waste Management to Onyx North America, at least 

several of the same high-ranking employees, such as Doug Harris, General Manager, 

appear to have remained the same. Certainly the pollution problems have not abated. 

Moreover, the problems may, in part, stem from the fact that is just inherently impossible 

to safely burn much of the types of hazardous waste Onyx receives. Consequently, IEP A 

should not ignore the incinerator's compliance problems before the incinerator changed 

its name. Rather, the inability of two different ovvners, over two decades, to safely 

operate this incinerator may provide the most compelling reason why this facility must be 

shut dov.n. Finally, state law requires IEPA to consider not just the corporation's 

compliance history, but also that of the corporation's officers and employees. 

II. IEP A Should Exercise Its Discretion and Deny Onyx Its RCRA and Title V 

Permits Based On the Company's and Employee/Officer's Repeated 

Violations of State and Federal Laws and Evidence of Gross Negligence and 

Incompetence. 

Based on the existing evidence, IEP A should exercise its authority to deny Onyx a RCRA 

permit or any other permit The Illinois Environmental Protection Act provides: 

The agency may deny such a pennit if the prospective owner or operator or any 

employee or officer of the prospective officer has a history of: ( 1) repeated 

violations of federal, State, or local laws, regulations, standards, or ordinances in 

the operation of waste management facilities or sites; or (2) conviction in this or 

another State of any crime which is a felony under the laws of this State, or 

conviction of a felony in a federal court; or (3) proof of gross carelessness or 

incompetence in handling, storing, processing, transporting or disposing of waste. 

415 JLCS 5/39(i)(emphasis added). Onyx has repeatedly violated federal and state air 

and waste laws in operating this incinerator. In addition, the multiple explosions, 

hospitalized workers and repeated violations are all strong evidence of Onyx and its 

employees and officers engaging in "gross carelessness" and "incompetence" in the 

handling, storage, processing, transporting and disposing of waste. 

A. Onyx has Repeatedly Violated Federal and State Laws 

Regulating Its Hazardous Waste Incinerator. 

Appendix A of these comments details the violations of federal and state law that we 

have been able to document based on a review of incomplete IEP A and US EPA files. A 

total of 135 separate violations. A search of US EPA's ECHO database indicates the 

facility is cunently in Significant Non-Compliance and has been such for at least eight 

quarters, e.g. since October 2001. 2 There is a long history of federal and state 

prosecutions against this facility for violations of state and federal laws. In 1990, the 

state prosecuted the incinerator for multiple air and waste law violations and lodged a 

2 www.epa.!.rov/echo 

00002:3 4 
decree in state court. lu 1991, after the facility violated its 1990 agreement, the State 

Attorney General again commenced an enforcement action, this time settling for a $3.3 

million penalty and another court order. In 1991 US EPA also imposed a modest fine of 

$3,380 for the illegal shipment of hazardous wastes from Bermuda. Earlier this year, 

Attorney General Lisa Madigan prosecuted the incinerator for serious violations between 

1996 and February 1998, including an explosion that rocked the facility and hospitalized 

a worker, and secured a $500,000 penalty. With additional violations awaiting 

prosecution at the Attorney General's office, IEPA obviously believes there has been 

additional violations of federal and state waste laws since. Finally, as discussed above, 

the Onyx Environmental Services Corporation operates at least twelve other facilities in 

the United States, over half are identified by US EPA as having Significant NonCompliance problems. For these reasons IEPA must deny this permit. 

B. There is Ample Proof of Onyx's "Gross Carelessness" 

and "Incompetence" in the Handling, Storing, 

Processing, Transporting and Disposing of Waste. 

Many of the violations detailed in Appendix A demonstrate "gross carelessness" and 

"incompetence" in the handling, storing and disposing of waste. For example, between 

1999 and 2002, there were at least ten surge (explosion) events resulting in the release of 

clouds of poisonous gases. When the same problem occurs multiple times it is strong 

evidence of gross carelessness. Moreover, the inability of the facility to comply with its 

permit conditions repeatedly over the past two decades, including the past two years of 

Significant Non-Compliance, highlights either "gross carelessness" or "incompetence." 

On either basis. this facility should be shutdown. 

In short, !EPA is required to assess the compliance history prior to granting Onyx either a 

RCRA or Title V permit. After completing such an evaluation the agency then has the 

discretion based on the pattern and type of compliance problems, to deny such permits. 

If the facts in this case don't warrant permit denial, what would? If the agency fails to 

shut down this facility, it must explain to the people of Illinois the threshold that it 

determines warrants denying a permit and concluding that a company had relinquished its 

privilege to operate in this state. On these facts, we believe it would be arbitrary and 

capricious to not deny Onyx a permit. 

III. IEP A Must Also Deny Onyx's Permits Because of the Overwhelmingly 

Disproportionate Impacts Its Pollution Has On the Surrounding LowIncome and Minority Residents. 

As detailed in the attached US EPA comments, RCRA affords the agency broad latitude 

to consider disproportionate impacts that Onyx will continue to have if the permits are 

issued on low-income and minority populations. Such environmental justice concerns 

were recently elevated at IEP A with Director Cipriano issuing an Environmental Justice 

policy. This directive establishes as one of its top purposes "to ensure that communities 

000024 5 
are not disproportionately impacted by degradation of the environment or receive a less 

than equitable share of environmental protection and benefits." 

Director Cipriano's directive continues: 

When concern is expressed or identified regarding potential environmental 

impacts in an environmental justice area, the Illinois EPA will look at the 

information provided and other available information to assess whether there are 

potential significant adverse environmental impacts. Ifthere are any such 

potential adverse impacts, the Illinois EPA will either request an assessment or 

assess these impacts using the information and tools reasonably available, and 

within the time constraints allowed by applicable state and federal law. The 

Illinois EPA will make such assessments available to the public and other affected 

persons or entities. An appropriate response will be made based on these 

assessments3 

We urge !EPA to implement this directive. Based on the information in these comments, 

including the attached US EPA comments, there is ample evidence that there are 

significant and disproportionate environmental health impacts associated with granting 

Onyx's request for air and waste permits. Almost every time Onyx violates its permit 

and has an "upset" it releases clouds of poisonous gases into the surrounding community. 

These clouds of gases are, of course, having significant and disproportionate 

environmental health impacts on minority and poor residents who live near in the nearby 

neighborhoods. 

As detailed in our US EPA comments, RCRA affords the US EPA and the state with 

broad authorities to compel a permit applicant to conduct analyses and provide the 

agency with the information it needs to protect state residents. Moreover, RCRA 

provides the agency with the authority to conclude that it impossible to impose permit 

conditions on Onyx that will protect the residents from additional pollution- such as 

increased exposure to lead contamination. 

In short, IEP A must deny Onyx the permits it is seeking to continue operating this unsafe 

and highly dangerous facility. The risks are simply too great. 

3 http://www .epa,state. i l. us/ en vironmental-j ustice!policv .html 

0000~2~) 6 
APPENDIX A 

Incomplete History of Violations4 

July, 1980: The incinerator commenced operation. 

July 12, 1982: US EPA inspector writes in an internal memorandum that"! contacted 

Illinois Environmental Protection Agency (!EPA) and learned that [the incinerator] has 

quite a few problems, such as very poor waste storage and handling practices, numerous 

unreported spills, and other housekeeping problems. For these reason please contact 

[IEP A] before approving the continued operation of [this incinerator]. (Attachment l) 

1988 

January 21-25: monitors for hydrocarbons broken and not recording pollution levels. 

(source 1990 consent decree) 

August 16-17: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

June 1-2: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

June 4: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

June 26: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

July 20: failed to maintain temperature at levels necessary to burn waste optimally. 

(source: 1990 consent decree). 

October 6: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

October 9: incinerating more waste than the permit authorizes. (source: 1990 consent 

decree). 

1989 

January 19: failed to maintain temperature at levels necessary to burn waste optimally. 

(source: 1990 consent decree). 

January 21: failed to maintain temperature at levels necessary to burn waste optimally. 

(source: 1990 consent decree). 

April 17: more waste added after release of unpermitted hydrochloric acid cloud. 

(source: 1990 consent decree). 

1991 

January 25: release of gases directly into the environment. (source: Attorney General 

press release). 

February 5: release of gases directly into the environment. (source: Attorney General 

press release). 

4 There appear to be at least an additional three violations in 2001 and 15 violations in 2000, but are still 

awaiting additional documentation from Illinois EPA. 

000026 7 
1992 

Between September and October facility personnel falsified 173 records attesting to the 

contents of the waste containers they were burning: (source: !EPA record). 

February 20: monitors failed to operate for approximately 7 days (source: IEPA record). 

May 19: malfunction and release of gases (source: company reports). 

May 20: malfunction and release of gases (source: company reports). 

May 22: malfunction caused release of gases (source: company report). 

May 31: gases released (source: company report). 

June l: malfunction caused release of gases (source: company report). 

June 4: malfunction caused release of gases (source: company report). 

June 7: malfunction during burning of hazardous waste (source: company report). 

June 8: failure to maintain necessary temperature to burn waste optimally (source: 

company report). 

June 9: failure to maintain necessary temperature to burn waste optimally (source: 

company report). 

June 12: malfunction caused release of gases (source: company report). 

June 13: failure to maintain necessary temperature to burn waste optimally (source: 

company report). 

June 17: malfunction caused release of gases (source: company report). 

June 22: malfunction caused three releases of gases (source: company report). 

July 1: cloud of hydrogen chloride released above emission limits (source: !EPA record). 

July 2: cloud of hydrogen chloride released above emission limits (source: IEPA record). 

July 5: failed to maintain temperatures necessary to burn waste optimally (source: !EPA 

record). 

July 5: malfunction caused release of gases (source: IEP A record). 

July 8: improper handling of waste results in employee sprayed by hazardous liquid 

(source: !EPA record). 

July 11: failed to maintain necessary temperatures to burn waste optimally (source: IEPA 

record). 

July 13: cloud of hydrogen chloride violates permit limit (source: !EPA record). 

July 14: failed to maintain temperatures necessary to burn waste optimally (source: !EPA 

record). 

July 24: failed to maintain temperature necessary to burn waste optimally (source: IEPA 

record). 

July 29: failed to maintain temperature necessary to burn waste optimally (source: IEPA 

record). 

July 30: failed to maintain temperature necessary to burn waste optimally (source: IEPA 

record). 

July 31: violated carbon monoxide permit limit (source: IEPA record). 

July 31: waste exploded releasing gases (source: IEPA record). 

August 2: waste exploded releasing gases (source: IEPA record). 

August 25: cloud of hydrogen chloride released above emission limits (source: !EPA 

record). 

August 27: malfunction caused release of gases (source: IEPA record). 

August 29: malfunction caused release of gases (source: IEPA record). 

nooo·)'i 'v tv 4 

8 
August 30: cloud of hydrogen chloride released above emission limits (source: !EPA 

record). 

August 31: malfunction caused release of gases (source: !EPA record). 

September 22: inspectors find containers leaking waste in storage building (source: !EPA 

record). 

September 23: malfunction caused release of gases (source: !EPA record). 

September 23: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

September 24: waste exploded releasing gases (source: IEPA record). 

September 26: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

October 26: failed to maintain temperature necessary to burn waste optimally (source: 

!EPA record). 

October 28: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

October 29: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

October 30: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

October 30: malfunction caused release of gases (source: !EPA record). 

November 8: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

November 12: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

November 14: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

November 20: waste exploded and released gases (source: company report). 

November 30: violated CO permit limits while burning toluene diisocyanate (source: 

IEP A record). 

December 3: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

December 3: violated CO permit limit (source: !EPA record). 

December 3: malfunction caused release of gases (source: IEP A record). 

December 9: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

December I 0: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

December 16: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

December 22: two pallets holding pesticide waste caught fire in storage area (source: 

IEP A record). 

December 24: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

December 30: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

000028 9 
1993 

January 5: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

January 6: failed to maintain temperature necessary to bum waste optimally (source: 

IEP A record). 

January 17: malfunction caused release of gases (source: !EPA record). 

January 22: malfunction caused release of gases (source: !EPA record). 

January 22: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

January 28: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

January 28: waste exploded and released gases (source: company report). 

February I: failed to maintain temperature necessary to burn waste optimally (source: 

IEP A record). 

February 27: emissions violated soot permit limit (source: !EPA record). 

February 28: emissions violated soot permit limit (source: !EPA record). 

March I: failed to maintain temperature necessary to burn waste optimally (source: !EPA 

record). 

March 14: emissions violated soot permit limit (source: company report). 

March 17: emissions violated soot permit limit (source: company report). 

March 18: release of gases directly into the environment- cause unknown (source: !EPA 

record). 

March 29: emissions violated soot permit limit (source: company record). 

April 7: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

April 11: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

Apri125: emissions violated soot permit limit (source: company report). 

April 28: emissions violated soot permit limit (source: company report). 

May 4: emissions violated soot permit limit (source: company report). 

May 16: emissions violated soot permit limit (source: company report). 

May I 9: emissions violated soot permit limit (source: company report). 

May 27: violated CO permit limit. (source: company report). 

June 3: malfunction caused release of gases (source: IEP A record). 

July 1: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

July 2: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

July 22: emissions violated soot permit limit (source: company report). 

July 25: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

July 26: emissions violated soot permit limit (source: company report). 

July 29: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

August I: emissions violated soot limit (source: company report). 

00002D 

10 
August 3: failed to maintain temperature necessary to bum waste optimally (source: 

company report). 

August 14: failed to maintain temperature necessary to bum waste optimally (source: 

company report). 

August 15: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

September 9: violated hydrochloric acid pennit limit (source: company report). 

September I 0: violated CO permit limit (source: company report). 

September 29: violated soot permit limit (source: company report). 

October 18: failed to maintain temperature necessary to burn waste optimally (source: 

company report). 

October 18: violated soot permit limit (source: company report). 

October 26: waste exploded and released soot emissions (source: company report). 

November 27: waste exploded and released gases (source: company report). 

December 5: malfunction caused release of gases (source: company report). 

December 9: violated soot permit limit (source: company report). 

1996 

March 29: During mishandling of a hazardous waste an employee's "saranex suit caught 

fire .... He was then transported to a local hospital for treatment of burns to his arms and 

face." Subsequently there were three separate explosions, each releasing gases directly 

into the environment (source: company report). 

September 27: waste exploded and released a cloud of gases. (source: company report). 

October 21: released hazardous air pollution, including mercaptan. (source: AG consent 

decree). 

1997 

February 3: waste exploded and released a cloud of gases (source: company report). 

April 4: waste exploded and released a cloud of gases. (source: company report). 

April 8: waste exploded and released a cloud of gases. (source: company report). 

May 17: waste exploded and released a cloud of gases. (source: AG consent decree). 

1998 

January 16: waste exploded and released a cloud of gases (source: Attorney General 

consent decree). 

February 12: waste exploded and released a cloud of gases (source: company report). 

February 13: waste exploded and released a cloud of gases. (source: company report). 

February 21: waste exploded and released a cloud of gases. (source: company report). 

1999 

January 9: waste exploded and released a cloud of gases (source: IEPA inspection report) 

March 4: waste exploded aud caused a "significant release" of gases. (source: IEPA 

inspection report). 

August 10: waste exploded and released a cloud of gases (source: company report). 

August 20: waste exploded and released a cloud of gases (source: company report). 

August 29: waste exploded and released a cloud of gases (source: company report). 

•JOOO:JO II 
September 6: waste exploded and released a cloud of gases (source: company report). 

2000 

July 2: waste exploded and released a cloud of gases (source: !EPA inspection report). 

July 3: waste exploded and released a cloud of gases (source: IEP A inspection report). 

July 6: waste exploded and released a cloud of gases (source: IEP A inspection report). 

2001 

October 1: waste exploded and released a cloud of gases (92 pounds of triethyl borane) 

(source: company report). 

2002 

!EPA inspection report lists 22 ongoing or outstanding violations. (source: IEPA 

inspection report). 

History of Enforcement Actions 

1990 -- State settles with incinerator for violations of air and hazardous waste laws. 

(source: USEPA 2/7/1992 letter) 

1991: After incinerator violates 1990 agreement state again brings enforcement actions. 

this time settling for $3.3 million against the incinerator for violations of clean air and 

hazardous waste laws. (source: IEPA press release) 

US EPA imposes $3,380 fine for illegal shipment of hazardous waste from Bermuda 

(source: USEP A press release). 

2003: State slaps incinerator with $500,000 fine for violations between 1996 and 

February 21, 1998. 

2003: Enforcement action is pending at Illinois Attomey General's Office. 

000031 12 
American Bottom Conservancy 

527 Washington Place, East St. Louis, IL 62205 

Phone (618) 271-9605, Fax (618) 271-9651 

abc@prairienet.org 

September II, 2003 

Charles Matoesian 

Illinois EPA Hearing Officer 

1021 North Grand Ave. East 

P.O. Box 19276 

Springfield, IL 62794-9276 

Re: Onyx Environmental Services Title V Permit 

Dear Mr. Matoesian: 

American Bottom Conservancy is a not-for-profit conservation organization working to protect 

the people and resources of the American Bottom floodplain in Southwestern Illinois. 

We want to thank you for extending the public comment period for this permit. Unfortunately, 

we still do not believe we have had sufficient time to prepare adequate comment for this permit 

that the Agency has had since 1995. Since the hearing for the Onyx permit was held, this 

region has had two additional major Title V permits-for Dynegy power plants in both Wood 

River and Baldwin, which were addressed at a single public hearing, and whose comments are 

due in a couple of weeks. And, just today, we received yet another, Ethyl Petroleum, located 

very near the Onyx plant in Sauget. It is not fair to citizens, who are not technically trained 

and who work at other jobs and have families to care for, to have to review so many 

complicated permits and prepare so many comments on such major sources in so short a time. 

This is even truer for an area like the Metro East, which has so many sources of emissions, so 

very many tons of pollutants and such very poor air quality. The problem is made even worse 

when citizens are not provided access to the complete record, as in this case. The process 

makes a mockery of the intention of Congress for Title V to assure public participation in a 

permit that is enforceable by citizens. 

At the hearing, Robert Bernoteit, CAAPP Unit Manager, explained that the Agency had 

committed in writing to U.S. EPA to issue its remaining CAAPP permits by the end of this 

year, which is presumably why we are being flooded with permits all at once. But, the public 

and the environment should not have to suffer merely because IEP A did not have sufficient 

resources to issue draft permits sooner. In addition, since the rules for hazardous waste 

incinerators are changing next year, it would seem not appropriate to address this permit now. 

Nevertheless, we will. We ask simply that this facility be permanently closed. 

00003~~ 
Reasons the Onyx facility should be closed 

1. The facility and its owners (which we pointed out at the hearing are not really new) 

have such a long and poor record of compliance, resulting in increased and unpermitted 

emissions of toxic chemicals. 

2. It sits in the middle of an urban core of more than two million people, the closest of 

whom are low income and minority and are being disproportionately affected-truly a case 

of environmental injustice. 

3. The area is nonattainment for both the 8-hour ozone standard and particulates. This 

permit allows 4 7 tons of volatile organic material and 4 7 tons of particulates. 

4. The area waters are already contaminated with mercury and the Illinois Dept. of Public 

Health has issued fish advisories on the lakes at Frank Holten and Horseshoe Lake state 

parks, where many area folks fish for their main source of protein. Mercury emission 

limits from this plant should be reduced to zero. 

5. The facility sits in a concentrated area of many major sources of air pollution, several of 

which are also in noncompliance, such as Big River Zinc, which was just cited for 

violations of New Source Review. There is both a cumulative impact on the environment 

and on public health and the potential for a synergistic impact of various chemicals 

combining in the airshed. 

6. There are high rates oflung and heart disease and cancer in the region. Asthma rates are 

up to I 0 times the national average and are very high among children. 

7. Onyx has a history of accidents and explosions and injured workers. (We also hear 

reports of suspicious midnight shipments, unreported fugitive emissions and explosions, 

although we have no way of documenting or verifying those reports. We ask the 

agencies to investigate.) 

8. The facility has a history of problems with record-keeping and reliable reporting. In order 

to assure accurate records, the agencies need to include enhanced monitoring and 

reporting requirements in the permit-if they do not close the plant. There is no indication 

IEP A takes the continued problems at the facility into consideration, at either the 

inspection and enforcement level, or in the permit itself. Given its resources, perhaps 

IEP A is unable to deal with Onyx in an authoritative manner. We do not really know 

how many tons the facility actually emits of dioxins, furans, metals, hazardous and 

organic pollutants. We only know what they say they emit. 

9. Perhaps there is not adequate funding in the Agency budget to ensure compliance with 

the permit, to conduct unannounced inspections and to properly monitor operations. 

2 

000033 
The Title V program is supposed to fund itself. If this is not the case, the Agency 

needs to acknowledge this and address the issue with the state legislature. 

A hazardous waste incinerator should never have been allowed to locate in the midst of an 

urban population. This hazardous waste incinerator should never have been allowed to 

continue to operate in noncompliance for so long. Therefore, it should be closed. 

Reasons the permit should not be issued 

10. The compliance certification of the application is not signed by a responsible official, 

rendering the application incomplete and therefore invalid. The draft permit was issued 

in violation of Section 70 rules that require a signature. The public has the right to know 

if a source that is about to receive a CAAPP permit is in violation of any legal 

requirement. That right was violated. 

11. The application is eight years old. IEP A was required to have Onyx re-submit an updated 

application. The Agency required all the coal plants to update their applications; 

therefore, this facility should also be required to update its CAAPP application. lEP A 

erred in granting Onyx a draft permit that is based on an 8-year-old application. 

12. IEPA does not issue an adequate statement of basis and does not comply with the 

requirements of part 70. 40 CFR 70.7(a)(5) requires that "[t]he permitting authority 

shall provide a statement that sets forth the legal and factual basis for the draft permit 

conditions (including references to the applicable statutory or regulatory provisions). 

The permitting authority shall send this statement to EPA and to any other person who 

requests it.'' Accordingly, a statement of basis should include, but is not limited to, a 

description of thefacility, a discussion of any operational flexibility that will be utilized 

at the facility, the basis for applying the permit shield, any federal regulatory 

applicability determinations, and the rationale for the monitoring methods selected. 

The rationale for selected monitoring method must be clear and documented in the 

permit record. Project summaries or "introductions" do not set forth the legal and 

factual basis for the draft permit conditions. Without a statement of basis the public is 

unable to understand and comment on the Agency's decisions, nullifying the intent of 

Congress for Title V. 

The permit is so poorly written that it cannot be understood by the public and is 

therefore not practicably enforceable by the public. We are very concerned about the 

compliance record of the facility and want to be able to understand what they have to 

do to be in compliance in the future. To be practieably enforceable, a permit condition 

must give a clear explanation how an actual emission limit applies to a facility and 

make it possible to determine whether the facility is in compliance. As it is currently 

written, that is impossible. 

3 

000034 
A boast was made at the hearing that the permit has been reduced to 165 pages. If this 

feat was accomplished through "streamlining," IEPA must show a rationale for 

streamlining, otherwise the public does not understand and is not assured that all 

applicable requirements are still in the permit. 

Mr. Belogorsky, the permit writer, said he cuts and pastes from federal regulations. 

But in trying to follow the permit, a citizen could get whiplash from trying to follow all 

the references to other documents. The permit appears to have been virtually lifted 

from a general guide with very few site-specific conditions written in. Paragraph after 

paragraph, page after page says, in essence, if such and such conditions apply under 

such and such section under the Clean Air Act or some other reference, then this or that 

condition applies. A primary goal of the Title V program is to clarify which air 

quality requirements apply. A permit must include which regulations apply to a 

particular source; it cannot be written like a Chinese menu, choosing one regulation 

from Column A and two from Column B. Permit reviewers familiar with these 

citations surely understand what they mean; ordinary folks do not. It is totally unfair 

for citizens to have to decipher such convoluted writing and determine whether or not a 

condition applies to the particular facility. It certainly cannot be done in the time 

allotted for this public comment. 

If the agency does not know whether the rule applies, it must say so in the Statement of 

Basis. If IEPA knows which rule applies and which one does not, it must state it 

clearly. 

From a letter to Robert Hadanbosi, dated December 20, 2001, ( "OEPA letter") Region 

5 says: "At a minimum, the Statement of Basis should provide sufficient information 

for the reader to understand OEPA's conclusion about the applicability of the source to 

a specific rule. " 

13. We are uncertain if we have a copy of the current RCRA draft permit or whether it is a 

previous one. It is not dated. And it is not provided on the website. Therefore, we are 

unable to comment. We believe that the provisions in the RCRA permit should be in this 

CAAPP permit. A Title V permit must have ALL applicable regulations incorporated 

into one document. 

Waste from the facility is being sent to Milam Landfill, a landfill just north of East St. 

Louis, built in wetlands in the I 00-year floodplain without a liner. We ask EPA to look 

into what is happening to the waste sent to Falling Star in St. Louis and to Michigan. Is 

any hazardous sludge being spread on farm fields? Perhaps that was addressed in the 

RCRA permit which we were unable to review. 

14. We have not been provided the documents requested from U.S.EPA at the public hearing 

and are therefore unable to comment on them. 

4 

000035 
15. The explanation offered at the hearing as to why it is necessary to issue the Title V permit 

is confusing, i.e., if it is not issued, it cannot be enforced by EPA and the public. 

(Nothing was said to indicate that the existing operating permits allow for enforcement by 

the state.) But we were also told at the hearing that we were not allowed to address 

conditions and limits of the existing permits because they are being consolidated under 

the one Title V permit. When can we address conditions and limits? Not for five years 

when the Title V is up for renewal? That is totally unacceptable. New control 

technologies could be discovered in that time and new research provide alarming 

wamings about existing emission allowances. 

The existing operating permits are the applicable requirements for the new Title V permit 

and as such citizens have the right and responsibility to discuss them. We object to being 

discouraged from doing so by the Agency. In fact, the role of the public was diminished 

several times during this permitting process: we were unable to fully review the permit 

application because of missing information that we did not receive in spite of several 

FOIA requests; and the permit contains conditions that refer to documents, e.g., 

manufacturer's specifications that were not part of the public record. 

Docun1ents that were applicable requirements, like the missing operating permit, could 

not be located and we are concerned that they were not incorporated. 

16. New MACT standards for HAPs are scheduled to go into effect next year. If you do not 

close this facility immediately, this permit should be delayed until that time. 

Comments and Questions on Transcript of Public Hearing 

p. 10-11 

Records should also be available to the public. 

"The company must also perform an investigation into all waste management activities, past and 

present, to determine if these activities have impacted the environment, (either the land or 

groundwater)." No reference is made to deposition to surface water from air emissions. 

Atmospheric deposition, especially mercury, must be included. 

p. 12 

"The Illinois EPA has the authority to inspect the facility at any time without advance notice." 

Unfortunately, they do not have the resources to do so. 

p. 17 

We are extremely concerned about the disposal of the sludge. In addition to contamination of the 

land and groundwater, are there not fugitive emissions associated with the process? That is not 

addressed in the permit. 

5 

000036 
p.20-23 

The risk assessment is not facility-specific; it needs to be. It also does not address cumulative 

and synergistic effects. Since the permit was written, studies indicate mercury more injurious to 

health and development than previously thought; mercury emissions should be eliminated. When 

(if') dioxin limits are established, will those limits be applied immediately? The permit limits 

for both dioxins and furans are too high. EPA should recommend further reductions. Overpredicting risk last year or this year may be totally unacceptable this year or the next. There must 

not be lag time in enforcing the new limits. The public must be protected. 

We are concerned that the risk assessment model was based on actual emission data provided by 

the facility. Given the assumption that many (most?) facilities under-report, and that this 

particular facility has been cited for falsification of records, the results of the modeling would be 

flawed. 

Lead emissions were not addressed. There are high lead levels in the soils in East St. Louis and 

high levels oflead in the children of both East St. Louis and St. Louis. Lead emissions should be 

drastically reduced. 

We were told we would be supplied with the results of the risk assessment. We have not 

received it. We are also confused as to whether it is a general risk assessment or site-specific. 

P. 31 "This permit is considered the primary compliance tool for monitoring and verifying 

compliance of the source." The pem1it is unreadable and undecipherable and therefore 

unenforceable by the public. 

p.34-Total permitted emissions include 47 tons ofVOM, 66 tons of sulfur dioxide; 47 tons of 

particulate matter; 97 tons ofNOx and 52 tons of HAPs. These numbers are excessive. What 

are the HAPs? How much mercury is permitted? Forty-seven tons of particulates is an absurd 

amount to be allowed in an area already nonattainment for particulates, especially in this area 

where one out of every five children has asthma. 

p.52 -We trust that Mr. Belogorsky's comment that because there are medical waste incinerators 

in the area, it is acceptable for Onyx to emit dioxins is not the attitude of either the Agency or 

EPA. Such a remark is racist and disrespectful and shows a complete lack of understanding of 

environmental injustice. If that is the case, Mr. Belogorsky should not be allowed to make 

decisions as a permit 'ATiter since he clearly believes that if a commtmity has one incinerator, it 

deserves another. He should be severely reprimanded for his statement and his permits closely 

scrutinized. For the record, citizens working together with medical experts closed down a 

medical waste incinerator in North St. Louis. 

The citizens in this area know very well how many other facilities in the area are emitting 

pollutants; there are 17 major sources in Sauget alone. There are many more across the 

river in St. Louis and in adjacent Madison County. That is no excnse to permit excess 

6 

000037 
pollution; it is a reason to control it. And, when a company snch as Onyx cannot operate in 

compliance, to close it. Onyx has basically been in significant noncompliance since 1991, 

with dozens of ongoing violations. It is time to deny its operating permit and close the 

plant. 

p. 88 JEP A compliance enforcement people formally request that the facility do a stack test once 

every five years to assure that the air pollution control equipment is functioning properly and 

meets the standards. 

This is clearly not often enough and allows the company to pollute excessively for four years or 

more and then do repairs or adjustments just before testing. That is not protective of public 

health. 

More inspections should be unannounced. 

Comments on Draft Permit 

IEPA's approach to separate the applicable regulations quoted in conditions from the appropriate 

testing, monitoring, record-keeping, and reporting to assure compliance makes this permit 

difficult to understand. Title V permits are meant to enable the public, the EPA, and the source 

to have a clear picture of what a source must do to comply. To be enforceable as a practical 

matter, a condition must 

(I) provide a clear explanation of how the actual limitation or requirement applies to the 

facility; and 

(2) make it possible to determine whether the facility is complying with the condition. 

We request that IEP A consider changing the format of its CAAPP permits to listing the 

required MRR with each permit condition. 

3. I. I While we understand that IEP A considers ash handling, handling of spent dry scrubber 

solids and lime unloading and proportioning to be insignificant activities. we do not. 

What are the applicable requirements?. 

3.2.2 There is no reference to PM2.5. 

3.3. I Five years is too long to wait for a company with Onyx' record. 

4.0 Why are there units without emission control equipment? 

The combustors and incineration units were constructed nearly 20 years ago. Have there 

not been modifications made to them that should have triggered New Source Review? If 

not, why have they not been updated? If there were modifications made at the plant that 

7 

000038 
triggered NSR review, Onyx must install modem control technology. IEP A must request 

full disclosure of any and all modifications before it issues the permit. 

5.2.2 In order to be protective of human health and because PM 2.5 standards are not yet in 

force, the opacity levels should be lowered. 

5.2.3 The "required practices" must be spelled out; otherwise, they are not practicably 

enforceable. 

5 .2.4 A risk management plan is of high interest to the public. The permit must state under 

what circumstances Onyx would have to apply for one and how the public would be 

informed of such a plan. A certification statement that this source is in compliance would 

not be credible, given its history for falsification of documents and noncompliance. This 

certification statement must come with a certification of tmthfulness that clearly spells 

out the legal consequences of willfully false statements. 

5.2.6 Is the source required to have an episode action plan? Permit should indicate whether or 

not. 

5.4 Source should have operational and production limitations and work practice 

requirements. 

5.5.1 Permitted emissions should be federally enforceable. 

5.5.2 Why are source-wide emission limitations for HAPs not set? 

5.5.3 Why are there no source-wide emission limitations? 

5.6.2 Because this permit is enforceable by citizens, records and logs should also be readily 

accessible for inspection and copying by citizens. 

5.7 !EPA regulations do not define "promptly." If there is no definition in the regulations, 

!EPA must define those terms permit by permit. Is promptly an hour, a day, two days? 

What is the outer time limit? In what manner-phone, fax, mail, radio, town crier-will 

deviations be reported. It must be specified. 

5.9.1 Compliance should not be based on the recordkeeping and reporting requirements of a 

company historically in significant noncompliance for long periods and which has been 

accused of falsifYing documents. 

7.1.3 Has the Permittee applied for an extension of time to comply with the interim standards? 

If so, it should not be granted. If the Permittee applies for an extension before the 

September 30 deadline, we request that the request be denied and the public be informed 

8 

00003B 
of the request. 

7.1.4 Has the Permittee applied for a significant modification to the CAAPP permit? If so, it 

should not be granted. If the Permittee applies for one before the September 30 deadline, 

we ask that the request be denied and the public be informed of the request. Under what 

circumstances would the agency grant such an extension? 

We do not have the technical knowledge to judge operating requirements and work practices 

under 7.1.5 and ask that U.S.EPA take notice. There are no definitions of"container" or 

"containerized solids" or "manufacturer's specifications." These terms need to be defined. We 

also ask that the emission limits be carefully checked. For instance, particulate emissions were 

established, we believe, before a particulate monitor was installed in East St. Louis at Tudor. 

Given that monitor regularly registers exceedances, would not the PM emissions allowed now 

cause significant deterioration? 

Data in lieu of comprehensive performance test-Given its record of noncompliance and 

tillsification of records, the permittee should not be allowed to request that previous emissions 

test data serve as documentation of conformance. 

Frequency of testing-the IEP A should not grant a time extension. 

The permittee should not be allowed any time extension for any condition in the permit. 

There are several conditions in this permit where IEP A left the applicability of a rule open. 

This creates confusion. The OEP A letter offers guidance and OEPA has since agreed to reformat 

its Title V permits. The regulatory language is clear in that a Statement of Basis must include a 

discussion of decision-making that went into the development of the Title V permit and to 

provide the permitting authority, the public, and the U.S.EPA a record of the applicability and 

technical issues surrounding issuance of a permit. 

We are concerned about the mere existence of an "emergency cap" and feel that emergency 

situations can only arise infrequently and the facility must show preventive maintenance and 

engage in personnel training to prevent emergency situations. Such activities should be logged 

and reported. 

We are concerned that the permit contains undefined terms and conditions that do not have a 

reference of authority, thereby hampering our ability to be meaningful participants in the 

permitting process 

We believe the monitoring requirement in the draft CAAPP permit to be insufficient to show 

compliance with emission limits. We are unable to tell which of the monitoring requirements 

currently apply, which will apply under what circnmstances in the future or when the source is 

allowed to base the limits not on performance test but on"manufacturer's specification" or how 

we would be able to find out what those are. 

9 

000040 
The monitoring requirements are not specific--indeed, "cut and pasted" from regulations, 

according to Mr. Belogorsky. They do not reflect the true operation and limits of this facility. 

Therefore, the public cannot be assured that the monitoring is adequate. 

7 .1.13 Compliance cannot be "assumed" further. This condition is an example of what is 

considered '"credible evidence-buster" language and that is illegal. Sources may 

include, and the public may rely on, all credible evidence to show compliance. 

7.6 Fugitive emission units should also include doors and windows, which, we understand 

are often opened during events, releasing toxins and exposing the public, as well as 

workers. 

Affected leaking equipment should not be shielded. Given Onyx' record, shielding such 

equipment could result in abuse of the shield and needed repairs or replacement delayed 

or avoided. Workers could be subjected to dangerous and unhealthful exposures. 

7.6.12 Control efficiencies should be higher. 

7.10 Every CAAPP permit is subject to 40 CFR70.6(a)(3)(iii)(B) and ILCS 39.5(7)(ii) which 

require: 

Prompt reporting of deviations from permit requirements, including those 

attributable to upset conditions as defined in the permit, the probable cause of 

such deviations, and any corrective measures taken.(emphasis added). The 

reporting requirements as written do not require the source to report deviations 

promptly. Appropriate language must be added to this condition. 

8.0 No permit shields should be allowed. 

8.4.2e Seven days' notice is too little. 

Should trigger new testing to prove it. 

8.5 Testing Procedures-whose standard test methods? What are they? 

8.6.2c Company can manipulate fuel to achieve desired test results. Not necessarily 

representative of standard operating procedure. 

9.2.1 Timely manner needs to be spelled out. 

9.2.3 We agree with this condition and expect the Agency to enforce it vigorously. 

9.3.c Citizens or their consultants should be allowed to inspect. 

10 
d (i) What is "reasonable?" 

9.8 The Compliance Certification must require the source to certify itself in compliance 

with all permit conditions, not just those that are the basis of this certification, as 

written in 9.8. The certification must include a description of the monitoring, recordkeeping and reporting requirements and test methods used to determine compliance. 

9.1 0.2 Add emergency provision v. The company must immediately notif:V the public of any 

emergency in which emission levels released could threaten public health or exacerbate 

existing health conditions in sensitive populations. 

9.12 There must be public involvement in any modification, reopening or reissuance of permit. 

9.12.2 Not protective enough. Dioxin and mercury standards need to be lower. 

9.12.4 What is "a reasonable time?" Needs to be defined. 

I 0 Attachment certification is not signed by a responsible official. 

Environmental Justice Issues: 

According to the application, this facility has the potential to emit more than 1,000 pounds of 

mercury. One teaspoon is enough to contaminate a lake. Many area residents rely on fish 

from area lakes for their main source of protein. To permit that is truly enviromnentally 

unjust. Most of the residents who live within three miles of this plant are minority and low 

income. We ask for a determination by U.S.EPA. Illinois just established an Enviromnental 

Justice policy; if it is to be taken seriously, it should be used in this instance. A map of TRI 

sources indicates this area is unduly burdened. 

The following is from EO's Scorecard \0ebsite 

Onyx 2000 TRI Pollution Releases Sorted by Health Effect* Air Releases(Pounds from TRJ 

sources) Recognized Ca rei rogers 214 Suspected Carcinogens 519 Suspected Ca rdi ovascu 1 an or 

Blood Toxicants 1.279 Recognized Developmental Toxicants 230 Suspected Developmental Toxicants 

990 Suspected Endocrine Toxicants 167 Suspected lmmunotoxicants 312 Suspected Kidney Tox1cants 

768 Suspected Gastro1rtest1na 1 or L lVer Toxicants 12.133 Suspected t1uscul oske 1 eta l Toxicants 

650 Suspected Neurotoxicants 1.575 Recognized Reproductive Toxicants 43 Suspected Reproductive 

Tox1cants 819 Suspected Respiratony Toxicants 12.913 Suspected Sk10 or Sense Organ Toxicants 

12.150 

Based on EPA· s most cunrent data. St. C1 air county ranked among the di rt1 est/worst 10% of 

all count1es 10 the US in terms of the number of people living in areas where cancer risk 

from hazardous a10 po 11 utants exceeds 1 1 n 10. 000. 

In ST. CLMR County. 256.082 people face a cancer risk more than 100 times the goal set 

II 

000042 
by the Clean Air Act. 

In rerghbonng Madison County 258.941 people face a cancer risk more than 100 times the 

goal set by the Clean A1r Act. 

In the Clty of St. Louis. which lies direct 1 y across the rlVer from Onyx. this county 

ranked among the dirtiest/worst 10% of all counties in the US in terms of the 

number of people living in areas where cancer risk from hazardous air pollutants 

exceeds 1 in 10,000. 348.189 people in ST. LOUIS (CITY) County face a cancer risk 

more than 100 times the goa 1 set by the Clean A1 r .Act. 

210,234 people live within five miles of the Onyx facility. 66 percent are minority. 

Nearly 40 percent are elderly or children, populations more sensitive to air pollution 

and its impacts on their health. While we do not have the income levels for St. Louis at 

this time, for the eight Illinois communities within five miles of the plant, the belowpoverty levels range from 24 per cent in Cahokia and Madison to 48 per cent in 

Brooklyn. East St. Louis, just south of the plant, has a below-poverty level of 35 per 

cent. 

We request a risk analysis and environmental justice determination to examine the health 

impacts of the facility to the community. In fact, the entire area needs to be examined 

because the impacts are unduly burdensome and totally unjust and unfair. 

This area is a classic case of environmental injustice. One agency official at the 

hearing talked about the need to be fair to industry. We believe it is time for 

the agency to be fair to citizens and their families and to not allow a 

polluting, noncompliant facility to remain open. 

Thank you for your consideration of our remarks. 

Sincerely, 

J( atf.y __A,j,ia 

President 

12 

1)00043 
13 
UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

IN THE MATTER OF: 

Proposed issuance of a Resource Conservation ) 

And Recovery Act Permit for Onyx ) 

Environmental Services in Sauget, Illinois ) 

COMMENTS OF THE SIERRA CLUB 

The following comments regarding the above-captioned matter are submitted on behalf 

of the Sierra Club. The Sierra Club is a national organization working to protect the 

Nation's clean air and clean water, and our natural heritage. The Sierra Club has over 

700,000 members nationwide, including 26,000 members in Illinois. 

Onyx Environmental Services (Onyx) O\vns and operates a toxic waste incinerator in 

Sauget, Illinois that receives and burns hazardous waste from around the world. This 

waste includes the most dangerous chemicals known to science. During the past two 

decades as it has handled, stored, and burned this waste the incinerator has experienced 

multiple explosions that have hospitalized workers and released clouds of poisonous 

gases over nearby residents. The incinerator also has one of the very worst compliance 

histories in Illinois. According to US EPA's Online Compliance Database the incinerator 

has bee in Significant Noncompliance for the past eight quarters. Onyx is now seeking 

its RCRA and Title V operating permits. 

On the basis of the public health risks presented by Onyx's incinerator and its atrocious 

compliance history, the Sierra Club urges the U.S. Environmental Protection Agency (US 

EPA) to deny Onyx the permits it needs to continue operating its toxic waste incinerator. 

We also urge US EPA to object to Illinois issuing the state portion of the proposed RCRA 

permit and the proposed Clean Air Title V operating permit for the same reasons. 

Finally, we ask that US EPA prohibit Onyx from accepting off-site CERCLA 

(Superfund) waste. 

I. U.S. EPA Must Deny This Permit Because Its Repeated And Ongoing 

Violations Present An Unacceptable Risk To Human Health and the 

Environment And No Additional Permit Terms Or Conditions Can Correct 

Repeated Violations. 

As described in the comments we submitted simultaneously to the Illinois EPA 

(Attachment 1 ), this facility has a terrible compliance record for over two decades. Its 

00004!:> 
violations have included explosions that have hospitalized workers and sent clouds of 

poisonous gases over Metro East The facility has been subject to court orders and multimillion dollar fines. Yet, according to US EPA's database, the violations continue. 

Under these extreme circumstances, US EPA has the authority and indeed the duty to 

close down this facility. On December 1, 2000 then-US EPA General Counsel Gary 

Guzy wrote a memorandum outlining the scope of EPA's authority to address 

environmental justice issues in its RCRA permitting decisions. (Guzy Memo) 

(Attachment 2). 

The Guzy Memo focuses on RCRA Section3005(c)(3) which provides that "[e]ach 

permit issued under this section shall contain such terms and conditions as the 

Administrator (or the State) deems necessary to protect human health and the 

environment" Guzy Memo at 2. 1 This provision, Guzy offers, has been interpreted by 

US EPA "to authorize denial of a pem1it to a facility if EPA determines that operation of 

the facility would pose an unacceptable risk to human health and the environment and 

that there are no additional permit terms or conditions that would address such risk." 

Guzy Memo at 3 (emphasis added). Such denial would be appropriated, Guzy opined: 

where appropriate to address the following health concerns in connection with 

hazardous waste management facilities that may affect low-income communities 

or minority communities: 

a. Cumulative risks due to exposure from pollution sources in addition to the 

applicant facility; 

b. Unique exposure pathways (e.g. subsistence fishers, ... ); and 

c. Sensitive populations (e.g. children with levels of lead in their blood, ... ). 

Guzy Memo at 3. As U.S. EPA is well aware, Onyx's incinerator is located in amidst a 

community that is suffering from all three such high-risk scenarios. There are more than 

a dozen other major sources of air pollution immediately adjacent to Onyx and its 

neighbors, including Monsanto, Solutia, Big River Zinc, to name just three. Based on 

U.S. EPA's TRI data, the cumulative risk to nearby residents from all of these sources is 

enormous. Nearby residents rely heavily on fishing as a protein source at the nearby 

Frank Holten State Park, an area that has a history of PCB and other contamination 

problems. And, as described elsewhere in these comments there is a lead-poisoning 

epidemic an1ong the children (and many adults) of Metro East. Onyx's pollution includes 

many bio-accumulative and highly-persistent toxins that will exacerbate all of these 

existing problems. 

Moreover, there are no additional permit conditions that can address the risk posed by 

Onyx's unwillingness and inability to comply with public health protections, even if the 

protections were sufficiently strong. Onyx has been given repeated warning and 

opportunities to become a good neighbor. It has been slapped with multi-million 

1 There are other additional sources of authority for US EPA to consider environmental justice issues in its 

permitting decision include section 3013 (authority to compel studies to assist with establishing appropriate 

permit limits): and Section 3005(e). 

1)00041i 2 
penalties. Yet, the violations continue and the surrounding residents (and the workers) 

continue to pay a very high price while Onyx continues in business. Under these extreme 

circumstances, US EPA must deny the permit. 

In fact, because US EPA cannot include terms and conditions in Onyx's permit that will 

ensure the facility complies with health protections and no longer presents a threat to 

human health and the environment, RCRA 3005(c)(3) mandates US EPA close this 

facility. If the facts in this case don't warrant permit denial, what would? If the agency 

fails to shut down this facility, it must explain to the people of Illinois the threshold that it 

determines warrants denying a permit and concluding that a company had relinquished its 

privilege to operate in this state. On these facts, we believe it would be arbitrary and 

capricious to not deny Onyx a permit. 

II. The Disproportionate Impact That Onyx's Pollution Has On Low-Income 

and Minority Residents Is Another Compelling Reason For Denying Onyx's 

Permit. 

In a poor, minority area that is already suffering from high levels of pollution from 

multiple sources of air pollution, one would have expected US EPA to have conducted an 

analysis of the health problems plaguing the area before granting a permit and proposing 

permit limits to ensure that such limits will not allow Onyx to make matter worse. This 

analysis should include, for example, the obvious finding that resideuts are already 

suffering from high levels of lead poisoning, many areas have high levels of leadcontaminated soil, lead is a potent and persistent neurotoxin, and therefore Onyx's permit 

limit for lead is set at zero. 

The entire area around Onyx's incinerator is a quintessential environmental justice area, 

comprised overwhelming of poor and/or minority residents. According to US EPA data, 

there are 62,892 residents living within three miles of the incinerator, more than 68 

percent are minority residents2 Within East St. Louis, the adjacent City, the population 

in 2000 was 97.7 percent African-American, the median income was $11,990 and the 

poverty rate exceed 44 percent. 

The Sierra Club did not locate any analysis indicating that US EPA considered the 

environmental justice implications of granting Onyx its necessary air and waste permits. 

This is despite Onyx being one of a handful of the most dangerous hazardous waste 

incinerators in the United States. Onyx receives and handles waste that includes many of 

the most deadly chemicals known to science. And, of course, it is located in an area 

abutting East St. Louis, an overwhelming minority city that has been described as the 

"most distressed small city in America." 

2 .http:, 'w\-vw.epa.gov/c.d-bin/get1cReport.cgi?tool=echo&lDNumber-=ILD0986424f"4&media tool= ECHO 

00004 7 3 
US EPA (and IEPA) have an unambiguous directive to consider environmental justice 

implications in their permitting decisions3 In this instance RCRA provides US EPA with 

additional statutory authority to consider such environmental justice issues and establish 

permit limits to avoid disparate impacts on low-income and minority communities. The 

Guzy Memo describes how US EPA's authority to address environmental justice issues 

in RCRA hazardous waste permits had been directly addressed by the Environmental 

Appeals Board (EAB) in Chemical Waste Management, Inc., 6 E.A.D. 66, 1995 WL 

395962 (1995)4 As Mr. Guzy stated: 

The Board found "that when the Region has a basis to believe that operation of 

the facility may have a disproportionate impact on a minority or low-income 

segment of the affected community, the Region should, as a matter of policy, 

exercise its discretion to assure early and ongoing opportunities for public 

involvement in the permitting process." Id. at 73. It also found that RCRA 

allows the Agency to "tak[ e) a more refined look at its health and environmental 

impacts assessment in light of allegations that operation of the facility would have 

a disproportionately adverse effect on the health or environment of low-income or 

minority populations." Id. at 74. Such a close evaluation could, in turn, justify 

permit conditions or denials based on disproportionately high and adverse human 

health or environmental effects, while "a broad analysis might mask the effects of 

the facility on a disparately affected minority or low-income segment of the 

community." Id. 

Guzy Memo at I (emphasis added). As described above, there is no dispute that the 

operation of Onyx's incinerator, including the transport of hazardous waste to and fro 

from the facility "may have a disproportionate impact on a minority or low-income 

segment of the affected community [of Metro East)." 

a. Despite the Obvious Environmental Justice Concerns US EPA 

(and IEPA) Did Not Assure Early and Ongoing Public 

Involvement Opportunities. 

Despite Onyx being located in an area with large numbers of minority and/or poor 

residents, US EPA has failed "to assure early and ongoing opportunities for public 

involvement in the permitting process." Most obvious, US EPA failed to make the 

RCRA permit readily available to the public. Sierra Club repeatedly requested the 

agencies to provide an electronic copy or to make it available on the web. We were told 

that was not possible and we would have to get a copy from US EPA Region V 

headquarters in Chicago. There we were told to pay 15 cents a copy for a 240 page 

permit, a total cost in excess of$35. This is more than the median daily income in East 

St. Louis. 

3 Federal Executive Order 12898: http://www.epa.gov/civilrightsieol2898.htm and IEPA Interim EJ 

Policy: 1::!.!!:Q://www.epa.state.il.us/environmental-iustice/po1icy.html. 4 www.epa.gov/eab/diskll/cwmii.pdf 

000048 4 
The US EPA records we could review were unorganized and missing entire documents. 

For example, there are several references to a 2000 multimedia inspection conducted by 

US EPA. Sierra Club submitted a Freedom of Information Act request to Region V Air 

and Radiation Division for Onyx records, including inspection reports. In its March 6, 

2003 response US EPA withheld three documents: l) a Draft Inspection Report, undated, 

which is presumably the 2000 multimedia inspection report; 2) an IEP A Inspection 

Report from 1990, and 3) a "Gateway Quarterly Review" from 1995. What on earth is 

US EPA hiding from the public? How could a draft inspection report, and two other 

inspection reports that are thirteen and eight years old, respectively, contain "predecisional", "deliberative process" and "enforcement confidential" information? Are 

these documents still being used for an ongoing enforcement matter7 Such Nixonian 

strategies breeds mistrust of the agency. Moreover, it ensures the public does not have 

access to all of the information necessary to assess the facility's compliance history. 

b. US EPA Failed To Require IEPA Consider Environmental 

Justice Concerns Either. 

US EPA's review of State-issued permits is another opportunity for US EPA to address 

environmental justice concerns. Again, the Guzy Memo: 

Where the process for a State-issued permit does not adequately address sensitive 

population risks or other factors in violation of the authorized State program, 

under the regulations EPA could provide comments on these factors (in 

appropriate cases) during the comment period on the State's proposed permit on a 

facility-by-facility basis. 40 CFR § 271.19(a). Where the State itself is 

authorized for RCRA "omnibus" authority and does not address factors identified 

in EPA comments as necessary to protect human health and the environment, 

EPA may seek to enforce the authorized State program requirement. 40 CFR § 

271.19(e) Alternatively, if the State is not authorized for "omnibus" authority, 

EPA may superimpose any necessary additional conditions under the "omnibus" 

authority in the federal portion of the permit. These conditions become part of the 

facility's RCRA permit and are enforceable by the United States under RCRA 

section 3008 and citizens through RCRA section 7002. 

Guzy Memo at 4. There is no evidence that US EPA has provided comments or 

otherwise held Illinois responsible for addressing environmental justice concerns in either 

the RCRA permit or the Title V operating permit. 

III. US EPA's "Draft" Risk Screening Report Is Defective 

The Risk Screening Report (Draft Report) attached to the draft RCRA permit is labeled 

"draft #5" and has the word "draft" stamped on every page. The public cannot be 

expected to review and comment on a draft permit that is based on a draft risk screening 

report. The risk screening report is a vital piece of information about the levels of risk 

posed to the community by this facility and the appropriate limits that should be in the 

final permit. The public cannot intelligently comment on a draft risk screening report at 

00004B s 
the same time as comment on the draft permit, particularly when it appears there are 

major defects in the risk screening report. If the agency has not finalized its risk 

screening report it cannot propose appropriate limits for public comments. The agency 

must therefore complete its risk screening, consistent with the comments offered herein. 

and then re-issue the draft permit (complete with an opportunity for public comment). 

There are other problems with the Draft Report. US EPA's conclusion that the permit 

limits for polychlorinated dibenzodioxins and fnrans (PCDD/F) are protective of human 

health and the environment is arbitrary and capricious. The draft risk screening report 

asserts that based on Onyx's recent installation of an activated carbon injection system at 

Unit 4 and based on trial test bnrns at units 2 and 3 that the risk of harm from PCDD/Fs is 

less than 1 in I 00,000. US EPA then goes on to say that this result may be further 

analyzed in the futnre but at this time no further reductions are recommended. These 

conclusions are flawed. First, US EPA's conclusions are assuming that Onyx is 

operating its carbon injection system in a responsible manner and complying with all 

applicable mles. As described above, it is arbitrary and capricious to assume Onyx is 

ever in compliance with its regulatory requirements. Onyx has violated and continues to 

violate its permit conditions. In addition, in Onyx's 1999 and 2000 Total Annual 

Benzene and Annual Inspection Summary Reports that it submitted to US EPA under 

letters dated March 5, 2001 and March 4, 2002, respectively, Onyx listed sixty (60) 

releases of benzene. Were these releases considered as part of US EPA's risk screen? 

The risk screen must assess the conditions that exist at Onyx- i.e. repeated and serious 

violations involving releases of PCDD/F and multiple other toxins. 

The Draft Report provisions regarding lead and other persistent toxins are extremely 

confusing and seemingly illogical. Lead is one of the most well-tested poisons. We 

know it is a neurotoxin. We know that tiny amounts can strip a child of its potential, 

lower its IQ, and cause a host of behavioral problems. US EPA is one of the lead federal 

agencies that committed in 2000 to a national strategy to virtually eliminate childhood 

lead poisoning within ten years, e.g. by 20 I 0. 

We will not virtually eliminate lead poisoning in Metro East if US EPA does not prohibit 

Onyx from emitting lead across the region. Children in the Metro East area already have 

very high blood-lead levels 5 One of the primary reasons for such high numbers ofleadpoisoned children is the very high lead-in-soil levels through East St. Louis 6 Engaging 

in the most natural hand-to-mouth activities young children inadvertently ingest this leadcontaminated soil. Despite the large numbers of children already harmed, the Draft 

Report and RCRA permit sets lead levels for the incinerator at a level that would allow 

surrounding lead-in-soillevels to increase up to I OOmg/kg. As US EPA is well awarelead does not biodegrade, it does not volatize, it simply builds up in the soil. The social 

5 US EPA Press Release, Aug, 21,2001, Community Oun·each Meeting Focus on Lead Issues, 

h1m://www.epa.gov/region5/news/news0l/01opal38.htm (a recent screening of 189 East St. Louis school 

children found lead poisoning rates of 12 percent). 6 1EPA Press Release, Oct 28, 2002, Residential Soil Removals Begin at Two East St. Louis Sites. 

h!Jp://vvww .~a.s~ate.iLus/ne\vs-releases/2002/2002-185-east-stlouis.html ("a study ... found the soil in 

many areas of East St. Louis contained high levels of lead.") 

00005U 6 
and economic cost oflead poisoning on families and society is enormous. Therefore, 

allowing Onyx to add more lead to already contaminated soil is authorizing Onyx to 

make an existing terrible situation even worse. Onyx, of course, has been emitting lead 

into the air since it began operation in 1980 and helped create the overall lead burden in 

Metro East. The RCRA permit must set Onyx's lead limit at zero. !fit can't meet this 

limit it should not be allowed to continue operating. 

The proposed permit limits for the other toxins are wholly confusing. There is no 

discussion about safe levels. There is no discussion about the assumptions underlying the 

risk calculations, e.g. is the child risk factor based on a child that has a propensity to 

ingest dirt, e.g. a pica child? We urge US EPA to rewrite the Draft Report in plain 

English and for a non-engineering audience. 

The Draft Report fails to discuss the environmental justice implications of the proposed 

permit limits and there does not appear to have been any environmental justice analysis 

conducted whatsoever. Such analysis must include, among other things, the risk 

exposure facing the residents of East St. Louis who engage in subsistence-type fishing in 

area waterbodies. 

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