## 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 ofIntent to Sue Pursuantto §304(b)(2) ofthe Clean AirAct for Failure to Grant or Deny Petition Filed Pursuant to §505(b)(2)

Dear AdministratorJohnson:

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 workingto protect the people and resources ofthe American
Bottom floodplain in Southwestern Illinois.

This letter constitutes formal notice pursuant Clean AirAct 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 "againstthe Administrator where

354 WEST MAIN STREET MADISON, 'W! 53703 608.442:.3585 E!ENDER@MA!NSTREETJUST!CE.COM !'\, 

### l**~** Printed tlll Rccyckd Paperthere is alleged a failure ofthe Administratorto perform any act orduty under this chapter which is not discretionary with the Administrator." 42 U.S.C. § 7604(b)(2).

On February 18, 2004, SierraClub and American Bottom Conservancy (collectively Sierra Club) petitionedthe U.S. EPA Administrator, pursuantto 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 objectto the Proposed Title V Operating Permit for the Onyx Environmental Services' hazardous

waste incinerator (permit number 95090072, site lD number 163121AAP, SIC code 4953) in Sauget, Illinois. Sierra Club provided a copy ofthe petitionto !EPA, the permitting authority, and to the applicant Sierra Club's petitionraised objections to the
Title Vpermit that were, to the extent practical, raised with reasonable specificity during
the public comment period. A copy ofthe petitionis attached hereto as Exhibit A. Copies ofSierra 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 ordeny such petition within 60 days after the petition is filed."
To date, the Administratorhas not responded to Sierra Club's petition. Sierra Club and
American Bottom Conservancyhereby give notice oftheir intent to file a citizen suit
based upon the Administrator's failure to perform a non-discretionary duty, to wit, failing

Notice oflntentto Sue EPA April 27, 2005 Page 2 of4to grant ordeny Sierra Club'spetition within 60 days as required by 42 U.S.C. § 766ld(b)(2).

Pursuant to the requirement of40 C.F.R. § 54.3, the persons giving notice are:

Sierra Cluh Illinois Chapter Office at: 200 N. Michigan Ave, Suite 505 Chicago, IL 60601 (312) 251-1511 (phone) National Headquarters at: 85 Second Street, 2nd Floor San Francisco, CA94105 415-977-5500 (phone) Kathy Andria American Bottom Conservancy 614 N. 7th East St. Louis, IL 62201-1372 (618) 875-9960

The EPA'sregulations 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 ofIntent to Sue EPA April27, 2005 Page 3 of4 Sincerely, BENDERLAW OFFICES

# ~(!~**D:~Bender** Counsel for SierraClub and American Bottom ConservancyBharat Mathur Acting Regional Administrator US EPA Region 5 77 W. Jackson Blvd. Chicago, IL 60604
Governor Rod Blagojevich Office ofthe Governor 207 State House Springfield, IL 62706
Renee Cipriano Director, IEPA 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 6220I
C T Corporation System Agent for Onyx Environmental Services 208 S. LaSalle St. Ste 814 Chicago, IL 60604

Notice ofIntent to Sue EPA April27, 2005 Page 4 of4

# EXHIBITABEFORE THE ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter ofthe Proposed Operating Permitfor
ONYX ENVIRONMENTAL SERVICES to operate A toxic waste incinerator in Sauget, Illinois I.D. No. 163121AAP Application No. 95090072 Proposed by the Illinois Environmental ProtectionAgency

PETITION REQUESTING THAT THE ADMINISTRATOR OBJECT TO ISSUANCE OFTHE PROPOSED TITLE V OPERATING PERMIT FOR THE ONYXTOXIC 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 (847) 872-1707 (phone) (847) 872-1759 baumling.@ao1.com



# 0000-..tPursuant 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 ofthe 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 permitto U.S. EPA onNovember 6, 2003. The petitioning organizations provided comments to the Illinois Environmental Protection Agency onthe draft permit and testified at the public hearing. A copy ofthose comments is attached. This petition is filed within sixty days following the end ofU.S. EPA's 45-day review period as required by CleanAir Act 

### §505(b)(2). The Administrator must grant ordeny this petition within sixty days after it is filed.
Based on the significantenviromnentaljustice 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 actto block) Illinois issuing the state pm1ion ofOnyx's proposed RCRA permit and, at the same time, deny Onyxthe federal portion ofthe proposed RCRA permit. 1 We recognize that this is a significant and unusual request But it is a request based on Onyx's 12-yeartrack 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 oftoxic gases are disproportionately the low-income and minority residents ofthe 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 objectto Onyx's proposed Title V permit and deny Onyxthe RCRA permits it needs to continue operating and threatening the surrounding community. In addition, based on Onyx's ongoing unwillingness and/or inabilityto 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 ONYXPERMITS AND THE PROCESS LEADING UP TO THEIRISSUANCE VIOLATES THE AGENCY'S COMMITMENTS AND OBLIGATIONS TO ADDRESS ENVIRONMENTALJUSTICE ISSUES.
I. Onyx Is Located In an Environmental Justice Area Onyx's toxic waste incineratoris located in Sauget, Illinois. Sauget is apart ofthe Metro East portion ofthe Greater St. Louis metropolitan area. Immediately adjacent to Sauget are the Cities ofEast St. Louis and Cahokia. These surrounding communities are environmentaljustice areas.

1Petitioners 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 ofthe \Vritten or oral comments the agencies received from the public on either draft permit. 

# 000002 2In 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 ofthe 62,892 residents living within three miles ofthe Onyx toxic waste incinerator are minority residents2
• The number ofresidents 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 percentAfrican-American, with a median income of $11,990 and apoverty rate exceeding44percent.
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 environmentaljustice issue. Onyx's toxic waste incineratorreceives and burns hazardous waste from around the world. This waste includes the most dangerous chemicals knownto science and in the process ofhandling and burningthis 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 ofthose releases, are as follows:
• Recognized Carcinogens 214
• Suspected Carcinogens 519
• Suspected Cardiovascular orBlood 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 OrganToxicants 12,150
3. Onyx Has One ofThe Worst Compliance Records In Illinois And It Is Surrounded By Other Facilities ThatAreAlso Unable to Comply With Clean Air Safeguards.
This toxic waste incineratorhas a long history offederal and state prosecutions for violations ofstate and federal laws. In 1990, the state prosecutedthe 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 millionpenalty and another court order. In 1991 US EPA also imposed a fine of$3,380 for the illegal shipment ofhazardous wastes from Bermuda. Earlierthis year, Attorney General LisaMadiganprosecutedthe incinerator for more violations between 1996 and February 1998, including an explosion that rocked the facility and released clouds ofpoisonous gases, hospitalized a worker, and secured a $500,000 penalty. Despitethese 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 ofair pollutionjustin Sauget alone. Currently halfare 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 BLOCKISSUANCE OF ANY OTHER PERMITS ON THE BASIS THAT THIS FACILITY PRESENTS AN UNREASONABLE THREAT OF HARVI AND THAT THREAT IS DISPROPORTIONATELYBORNE BY LOW-INCOME AND MINORITY RESIDENTS.
U.S. EPA (and IEPA) have an unambiguous directive to considerenvironmentaljustice implications intheir 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 establishpermit limits to avoid disparate impacts on low-income and minority communities. FormerAdministrator Whitman underscored U.S. EPA responsibilities in an August 9, 2001memo, "EPA'sCommitment 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 ofEPA's authority to address environmentaljustice issues in its

3 Federal Executive Order 12898: http://www.epa,gov/civilrightsieol2898.htm and !EPA Interim EJ Policy: http://www.epa.state.**il_,l-t~!s:.n**vjronment_illjustice/policy.ht]DI. 

# 000004 4RCRA permitting decisions. (Guzy Memo). The Guzy Memo focuses on RCRA's Omnibus Provision, Section 3005(c)(3), which provides that "[e]achpermit 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 howU.S. EPA's authority to address environmentaljustice 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 abasis to believethat operation of the facility may have a disproportionate impact on a minority or low-income segment ofthe affected community, the Region should, as a matter ofpolicy, 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 ofallegations that operation ofthe facility would have a disproportionately adverse effect onthe health orenvironment oflow-income or minority populations." !d. at 74. Such a close evaluation could. inturn. justify permit conditions or denials based on disproportionately high and adverse human health orenvironmental effects, while "abroad analysis might maskthe effects of the facility on a disparately affected minority orlow-income segment ofthe community." !d. Guzy Memo at I (emphasis added). As described above, there is no dispute thatthe operation ofOnyx'sincinerator, including the transport ofhazardous waste to and from the facility "may have a disproportionate impact on a minority or low-income segment of the affected community [ofMetro East)."
In a situation where a company has a longstanding pattern ofnoncompliance with RCRA safeguards and is threatening humanhealth and the environment, U.S. EPAhas the authority and indeed the duty to close down this facility. This RCRA Omnibusprovision, Guzy offers, has been interpreted by U.S. EPA "to authorize denial ofapermitto a facility ifEPA determines that operation ofthe facility would pose an unacceptable risk to human health and the environment and that there are no additional permitterms 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 orminority communities:

4 There are other additional sources ofauthority for U.S. EPA to consider environmentaljustice 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 5o Cumulative risks due to exposure from pollution sources in additionto the applicant facility;

o Unique exposure pathways (e.g. subsistence fishers,

..,); and

o Sensitive populations (e.g, children with levels oflead in their blood, ,,,). Guzy Memo at 3. Onyx'sincineratoris 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 emitsthe most persistent and toxic chemicals knov.'!l to science. These chemicals, such as dioxin, mercury and lead, do not degrade and accumulate in the humanbody with increased exposure. Compounding Onyx's emissions, both legal and illegal, are the cumulative effects ofmore than a dozen other major sources ofair pollution immediately adjacent to Onyx, including Monsanto, Solutia, and Big River Zinc. Each ofthese facilities emits millions ofpounds of additional airpollution and the collective stewofall ofthese emissions is the airthat residents ofEast St. Louis breathe every day.
In addition to risks posed by hazardous airpollutants, residents ofEast St Louis also are bombarded with dangerous levels offine particle and smog pollution. Based on three years ofmonitoring data, the State has proposed that this entire areabe 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 offine particle and smog-forming pollution. For example, Missouri is pushing to approve the Holcim Cement plantjustacross the Mississippi River from East St. Louis. This largest-in-thenation cementplant would dump over 3 tons ofnitrogen oxides (aprecursorto fine particles and smog pollution)per day into the region's already polluted air. Based on prevailing Southwest winds, much ofthatpollution is heading to East St Louis6 Similarly, Illinoisjustreleased a draft permitfor Peabody to build a giant coal-burning power plant in Washington County 1.8 miles south ofthe Greater St Louis nonattainment area. Peabody's draftpermit would allow 26,000 tons ofcriteria pollutants and 270 pounds oftoxic mercurypollution every year. Again, this location is upwind ofMetro East A little further inthe permittingpipeline is Illinois Power's plans to expand its notoriously dirty Baldwinplant For unclear reasons, !EPAhas to date

6 To its credit, U.S. EPA is proposing to oven·ule MissourFs recommendation that the proposed Holcim site be located outside ofthe 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 adirect impact on air quality in East SL Louis and therefore on the lives ofthe overwhelmingly low-income and minority residents. 

# Q 

# OOOu 6declined to study the effects on PM2.5 and 8-hour ozone levels from building all ofthese new coal-burning powerplants and a cement factory.
b. Unique Exposure Pathways Are Not Unique In East St. Louis. Area residents are subjectto "unique exposure pathways." Guzy Memo at 3. Lakes at both Frank Holten State Parkin Centreville/East St. Louis and at Horseshoe Lake State Park in Granite City have fish consumption advisories because ofhigh levels ofmercury inthe fish. The sediments in Horseshoe Lake have been found to containhigh levels of both lead and cadmium. Many areaminority and low-incomeresidents fish both lakes for a major source ofprotein. Fortwenty years, Onyx has emitted large amounts oflead, cadmium and mercury into the region. The proposedpermit 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 ofan area with high numbers of"sensitive populations" already suffering from elevated levels oflead-poisoning and respiratory ailments, including asthma. Guzy Memo at 3. Sensitive populations include children, seniors, low-income and minority communities. Ofthe 210,234 people who live within five miles ofthe Onyx'sincinerator, 66 percent are minority and 40 percent are elderly or children. As U.S. EPA has said, "[e]xposureto airpollutionmay trigger orcause adverse health effects and may explain whyrespiratory illness, such as asthma and bronchitis, particularly affect low-income communities and communities ofcolor." 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 ofchildhood lead poisoning have declined to near 2%, childhood lead poisoningrates in the City ofSt. Louis have persisted at approximately 25% for the past decade, with rates in some neighborhoods nearing 55%. Research shows that exposureto airborne lead at levels of 1microgram percubic 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/m3inthe air results in 2 ug/dlleadinthe blood, aratio of 1:2. Other studies indicatethe ratio is as high as I:6. Airborne lead poses an nnacceptable risk, particularly to pregnantwomen, their developing babies and to young children whose exposure to airborne lead is involuntary, causes irreversible damage, and cannot be controlledby individual actions and choices. Itmust stop at the stack. Moreover, there are no additional permit conditions that can address therisk posed by Onyx's unwillingness and inabilityto comply withpublic health protections, even ifthe protections were sufficiently strong. Onyx has been given repeated warnings and

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

# 00000? 7opportunities to become a good neighbor. Ithas been slapped with multi-million dollar penalties. Yet, the violations continue and the surroundingresidents (and the workers) continue to pay a very high price while Onyx continues in business. Under these extreme circumstances, U.S. EPAmust deny the permit.
In fact. because U.S. EPAcannot include terms and conditions in Onyx's permitthat will ensure the facility complies withhealth protections and no longer presents a threat to human health and the environment, RCRA 3005(c)(3) mandates U.S. EPA closethis facility. Ifthe facts in this case don'twarrantpermit denial, what would? Ifthe agency fails to shut down this facility, it must explain to the people ofIllinois the threshold that it determines warrants denying apermit and concluding that a company had relinquished its privilege to operate. Onthese facts, we believe itwould be arbitrary and capriciousto 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 inthe operating permit. SeeIn re: Orange RecyclingandEthanol (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 allowthe discharge oremission ofany contaminantinto the environment in any State so as, either alone or in combination with other sources, to cause ortend to cause airpollution in Illinois." 35 Ill. Admin. Code § 201.141. The term "air pollution" is further defined to mean "the presence in the atmosphere ofone or more air contaminants in sufficient quantities and ofsuch characteristics and duration as to be injurious to human, plant, or animal life, to health, orto property, or to unreasonably interfere with the enjoyment of life or property." 35 Ill. Admin. Code§ 201.102. As described elsewhere inthis 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 envirornnentaljusticemandates, such as provisions providing U.S. EPAwithbroad authority to research and disclose the human health effects ofOnyx'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 ofexplicitprovisions inthe CleanAir Act do not preclude the agency from considering environmentaljustice 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, ofenvironmentaljustice issues despite the lack ofform rules).


### III. U.S. EPA HAS NOT COMPLIED WITH ITS LEGAL OBLIGATIONS TO CONSIDERAND RESOLVE THE ENVIRONMENTAL JUSTICE ISSUES IMPLICATED BY ONYX'S PROPOSED PERMITS.



# 000008 8According to the Guzy Memo and the 2001 Whitman Memo there are at least three actions that the agency shouldundertake whenever environmentaljustice issues are raised: (l) investigate and study the threats and impacts on low-income and minority communities at risk from the agency'sproposed 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 permittingrole ensure thatthe state meets the spirit and intent ofEO 12898 as well. In this instance U.S. EPA has failed to take any ofthese three actions.
I. U.S. EPA Has FailedTo CompleteA Health Assessment Before Itorthe State Issued Draft Permits for Public Review.
One ofthe fundamental precepts ofenviromnentaljustice is the obligation onU.S. EPA to provide access to basic information aboutthe 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. Itis a draft. To this day it remains a draft. Itis 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 ofinformation about the levels ofrisk posedto 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 onthe draft permit, particularly when it appears there are major defects inthe risk screeningreport. 1 fthe agency has not finalized its risk screening report, it cannotpropose appropriate emission limits. The agency musttherefore, at a minimum, complete its risk screening, consistent with the comments offered herein, and then revise ordeny the proposedpermit (complete with an opportunity for public comment).
There are otherproblems with the Draft Report. U.S. EPA's conclusion thatthe permit limits for polychlorinated dibenzodioxins and furans (PCDD/F) are protective ofhuman health and the environment is arbitrary and capricious. The draft risk screening report asserts that, based on Onyx'srecent installation ofan activated carbon injection system at Unit 4 and based on trial test bums at units 2 and 3, the risk ofharm from PCDD/Fs is less tban I in I00,000. U.S. EPA then goes onto say thatthis 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'sconclusions are assuming that Onyx is operating its carbon injection systemin aresponsible 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. Onyxhas violated and continues to violate its permit conditions. For example, in Onyx's 1999 and 2000 Total Annual Benzene and Annual Inspection SummaryReports that it submitted to U.S. EPAunder letters dated March 5, 2001 and March4, 2002, respectively, Onyx listed sixty (60) releases ofbenzene. Were these releases considered as part ofU.S. EPA'srisk screen? 

# OOOOOD 9The risk screen must assess the conditions that exist at Onyx

- 

### i.e. repeated and serious violations involving releases ofPCDD/F and multiple other toxins. The Draft Report provisions regarding lead and otherpersistent toxins are extremely confusing and seemingly illogical. Lead is one ofthe most well-tested poisons. We know it is a neurotoxin. We knowthat tiny amounts can strip a child ofhis orher potential, lowertheir 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 20I0.
The United States will not virtually eliminate lead poisoning in Metro East ifU.S. EPA does not prohibit Onyx from emitting lead pollution across the region. Childrenin the Metro East area already have very high blood-lead levels 8 One ofthe primary reasons for such high nU111bers oflead-poisoned children is the very high lead-in-soillevels through East St. Louis9 Engaging inthe most natural hand-to-moufh activities, young children inadvertently ingestthis 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 IOOmg/kg. As U.S. EPA is well aware -leaddoes 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 burdeninMetro East. The RCRA permit must set Onyx's lead limit at zero. Ifit can'tmeet 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 aboutthe assumptions underlying the risk calculations, e.g. is the childrisk factor based on a child that has apropensityto ingest dirt, e.g. apica child? The Draft Report is simply inaccessible in its current form.
The Draft Report fails to discuss the environmentaljustice implications offhe proposed permit limits and there does not appear to have been any environmentaljustice analysis conducted whatsoever. Such analysis must include, among otherthings, the risk exposure facing the residents ofsurrounding 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 thatresidents are already suffering from high levels oflead poisoning, many areas have high levels ofleadcontaminated 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/news0l/01opaI38.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, ResidentialSoil 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 ofEast St. Louis contained high levels oflead.") 

# 000010 10limit for lead emissions mustbe set at zero. The analysis for mercury is similar. Mercury levels burden residents, a significant number ofresidents rely on subsistence fishing and thereby increase mercury bodyburdens, and reducing airborne mercury emissions, especially from incinerators, can dramatically cut mercury levels in fish tissue. This success ofthis approach is confirmedby the recent studies performed in Floridaby the State Department ofEnvironmental Protection. 10
2. Despite Petitioners' Environmental Justice Concerns U.S. EPA Did Not Assure Early and Ongoing Public Involvement Opportunities. Throughoutthis permittingprocess U.S. EPA has essentiallybeen absent and failed "to assure early and ongoing opportunities for public involvement inthe permitting process." For example, U.S. EPA failed to make the RCRA permit readily available to the public. Petitioner Sierra Club repeatedly requestedthe 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 apage for a 240-pagepermit, a total cost in excess of$35. This is more than the median daily income in East St. Louis. The U.S. EPA records Petitionersreviewed 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 Actrequest to Region V Air and Radiation Division for Onyx records, including inspectionreports. In its March 6, 2003 response U.S. EPA withheld three documents: 1) a Draft Inspection Report, undated, which is presumablythe 2000 multimediainspection report; 2) an IEPA Inspection Report from 1990, and 3) a "Gateway Quarterly Review" from 1995. Does a draft inspection report, and two otherinspectionreports that are thirteen and eightyears 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 thatthe 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 ofState-issuedpermits is another opportunity for U.S. EPAto address environmentaljustice concerns. Again, the Guzy Memo:
Where the process for a State-issuedpermit does not adequately address sensitive population risks or other factors in violation ofthe authorized Stateprogram, underthe regulations EPAcouldprovide comments on these factors (in appropriate cases) during the commentperiod onthe State'sproposed 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 IIconditions under the "omnibus" authority inthe federal portion ofthe permit. These conditions become part ofthe 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 environmentaljustice concerns in either the proposed RCRA permit or the proposed Title V operating permit. In fact, the record, except Petitioners comments and much ofthe public testimony at the publichearing, is altogether painfully silent on environmentaljustice issues.
The proposed Title V permit contains multiple examples where IEPA has exercised its discretionary authority in favor ofOnyx, not the breathing public:

• Condition 7.1.3.c grants Onyx another extension for compliancewith Subpart EEE requirements • Page 44, Condition 7

### .I.7.I gives IEPA unfettered discretion to grant Onyx a oneyear extensionto complete a comprehensive performancetest • Page 46, Condition 7.1.7.o gives !EPA unfettered discretion to grant Onyx an unlimited time extension for submittingthe Notification ofCompliance • Page 46, Condition 7.1.7.p gives !EPA, even ifOnyx fails to submit a Notification ofCompliance, discretion to extend the period for "pretesting orcomprehensive performance testing" beyond 720 hours.
In some instances, IEPA has effectively washed its hands ofanypublic involvement obligations altogether. Onpage 32, Condition 7.1.7.d.ii allows Onyx to make the sitespecific and CMS performance evaluationtest plans available to the public "by issuing a public notice announcing the approval ofthe test plans and the location where the test plans are available for review." Should not IEPA, as the regulating entity, not profitdriven Onyx, have the responsibility to determine the most accessible and convenient location to establish a document depository? !EPA'sapproach also fails to require Onyx to make copies available for interested persons to take offsite orprovide photocopying facilities at areasonable cost. A systematic solutionto 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 musttake to avoid more ofthese same situations.


### IV. THE ADMINISTRATORMUST OBJECT TO ONYX'S PROPOSED TITLE V PERMIT BECAUSE IT FAILS TO COMPLY WITH APPLICABLE REQUIREMENTS
Ifthe U.S. EPA Administrator determines that the proposedTitle V permit does not comply with the requirements ofthe CleanAir Act ("CAA'') or40 C.F.R. Part 70, he must object to issuance ofthe permit. See 40 C.F.R. 

### § 70.8(c)(l) ("The [U.S. EPA] Administrator will objectto the issuance ofany permit determined by the Administrator

12not to be in compliance with applicable requirements orrequirements ofthis part."). The permit fails to comply withthe applicable requirements in a number ofways: I. The AdministratorMust ObjectTo Onyx's Proposed PermitBecause ItLacks A Compliance Schedule To Bring Onyx Into Compliance With All Applicable Requirements.
A fundamental purpose ofthe Title V permittingprogram is to ensure that regulated entities comply with CAArequirements. The applicant for a Title V permitmust disclose its compliance status and either certify compliance or enter into an enforceable schedule ofcompliance to remedy violations. 42 U.S.C. §766lb(b); 40 C.F.R. §70.5(c)(8-9). Under40 C.F.R. § 70.1 (b) and Clean Air Act§ 504(a), eachfacility that is subjectto Title Vpermitting requirements must obtain apermitthat "assures compliance by the source witl1 all applicable requirements." Applicable requirements include, among others, the requirement to comply with state implementationplan ("SIP") requirements. See 40 C.F.R. § 70.2. Ifa facility is in violation ofan applicable requirement at the time that it receives an operatingpermit, tile facility's permitmust include a compliance schedule. See 40 C.F.R. § 70.5(c)(8)(iii)(C). The compliance schedule must contain "anentorceable sequence ofactions with milestones, leading to compliance witll any applicable requirements for which the source will be in noncompliance at the time ofpermit issuance." See40 C.F.R. § 70.5(c)(8)(iii)(C). Thus, ifa toxic waste incinerator is in violation ofNSRor SIP requirements, the plant's operatingpermitmust 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 orrisk becoming the target ofan enforcement action for violating the terms ofits permit.
In the presentpermitproceeding, Onyx has failed to certify compliance with all the requirements that apply to its facility. In its proposedpermit, tile IEPA has not required an updated certification, nor does it incorporate any schedule ofcompliance orother remedial measures inthe proposedTitle Vpermit. Notwithstanding, because there are at least two referrals at the Illinois Department ofJustice for clean air violations, the permit is required to contain a compliance schedule addressing these violations and the Administrator must object because ofthis deficiency.
Part ofthe problem appears to stem from !EPA's simple misunderstanding ofTitle V requirements. Duringthepublic hearing the !EPApermit writer was asked about the compliance status ofOnyx and the status ofthe enforcement cases pending with the Illinois Attorney General. The permit writer's response made it brutally clearthat as of the date ofthe public hearing the agency tailed to conduct an evaluation ofOnyx's compliance history:
"Ihonestlydon't know what theAttorney General's Office is doing

.... "



# 00001:5 13Mr. Belogorsky, Lead PennitWriter, Air Bureau. Onyx Hearing Transcript at 181 :4-5 (attached).

a. The AdministratorMust 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 ofThe Same Violations That Have Previously Occurred
IEPA possesses evidence ofnon-compliance at this facility. The source ofthis information is the agency's referrals to the Illinois Attorney General for prosecution. On February 17, 2004the Illinois Attorney General ("lAG") submitted commentsto !EPA criticizing its failure to include measures inthe proposedpermitto assure future compliance. A copy ofthat letter is attached. Inthat letter, the lAG states: The incident reports filed by the current and former operators overthe years have also identified a number ofactions thatmustbe taken to assure that the underlying violations will not be repeated inthe future. The operators have soughtto incorporate many ofthese actions into the applicable permitsthrough applications to modify the permit. The proposedpermits must be reviewed to assure that all of these necessary actions are included as necessary permit conditions. The incident reports filed bythe current operator identified the following measures as necessary to preventfuture violations: I) To prevent exceedances ofthe kiln pressure limit and visible emissions, the operator mustrepackage potassium superoxide from oxygenbreathing 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 whichresulted in a fire at the No. 2 Incinerator, the operator detenninedthat itmust develop a system for purchasing, inspecting, installing, and maintaining hoses and hose bands for use onthe 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'spast violations demonstrate that the facility has difficulty handling certaintoxic waste without incident. A simple compliance schedule to address that ongoing problem would be to explicitlybar Onyx from handling those specific wastes. Failure to address each ofthese compliance issues in the proposed permit is unlawful and, on this basis, the Administrator should object to this permit.
In light ofthe number ofviolations, the number ofyears these violationshave 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 14this tacility is operating in compliance with federal and state elean air requirements. Illinois' ChiefLaw Enforcement Official summed it up best:
As currently written, the permits will not assure that operation ofthis facility will not violate the Environmental Protection Act orregulations promulgated thereunder or adopted thereby. These deficiencies must be rectified before a determination ofwhether to issue the permits can be made.
lAG Letter at 5. Because ofthese facts the proposedTitle V permit, issued by the !EPA without a schedule ofcompliance, 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 UnderNew Source Review
The second compliance issuerelated to Onyx is whether this facility unlawfully avoided New Source Review (NSR) and, inturn, the requirement to install modempollution control equipment. IfOnyx illegally avoided NSR, the Title V permit shonld inelude an enforceable schedule ofcompliance for NSRto occur, coupled with emission and operational standards equivalentto a new facility in this source category. The Attorney General's Offlce raised the possibility that Onyx undertook illegal modifications in its assessment ofprior violations:
The October I, 2001, Incidentraised another significant issue. The fire resulting from the triethylboranerelease spreadfrom the Unit No. 2 Incineratorinto the Specialty Feeder Building as aresult ofmodifications made by the operator which compromisedthe fire containment capability ofthe wall betweenthe Incinerator and the Specialty Feeder Building. Approval for this alterationthrough the required permitmodificationprocess had beenneither sought nor obtained. Accordingly, the modification was performed in a mannerwhich did not maintain the fire containmentcapability ofthe wall. The facility must beaudited to identify all otherunpennitted modifications so that they may assessed to determine whether other safeguards have been undermined and what corrective measures mustbe employedto eliminate these existingthreats to public health and safety and the environment. AG Letter at 2 (emphasis added).
Whether Onyx unlawfully avoided NSRis directly relevant to Title V permitting for two reasons. First, as described above, ensuring compliance with the requirements originating in the Clean AirActis a fundamental goal ofthe Title V/CAAPPpermitting process. In turn, there maybe no more important Clean Air Actrequirement than compliance withNew Source Review.



# oo·· !('\**~l·**

## 0- 

# '""'**~~u** 

# .) 15NSR is a pre-constructionpermitting program that serves two importantpurposes: first, it ensures that factories, industrial boilers andpowerplants comply with air quality standards when components are modified or added to these facilities; and, second, NSR requires that newplants orexistingplauts undergoing a major modificationinstall stateof-the-art control technology. 42 U.S.C. § 7401(a)(l); 42 U.S.C. § 740l(a)(2). The program coverstwo distinct categories: (I) the construction ofnew 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). !fafacility falls into one of these two categories, then the company is required to establish stringent emissions controls. 42 U.S.C. § 74ll(a)(l). Ifa modification is known to substantially increase the amount ofemissions from a facility, the facility must obtainpre-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 "auyphysical change in, orchange inthe method ofoperation of, a stationary source whichincreasesthe amount ofany air pollutant emittedby such source orwhichresults in the emission ofauy 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 "auyphysical change oroperations change to an existing facility which results in au increase in the emissionrate to the atmosphere ofany pollutantto which a standard applies"). A determination that New Source Reviewhas been triggered by site modifications would require the source to complywithnew source requirements and apply state-of-the-art pollution controls, which are muchmore stringent than emission limitsproposed without a permit. 42 U.S.C. 

### § 74ll(a)(l); see also Ohio Edison, 2003 U.S. Dist. LEXIS 13799, *56.
There is a secondreason why NSRis directly relevant to the Title V permitting process. The IEPA developed the proposedpermit containing emission and operational standards explicitly and seemingly without question based on the applicant's representations that it is not subjectto new source standards. If, however, Onyx were subjectto New Source Review, then entirely different emission and operational standards would apply than those included by IEPA in the proposedpermit. Simply, in the absence ofdetermining if NSRapplies, IEPA 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, !EPAmust determine whetherNSRapplies. Because !EPAfailed to do this, the proposedpermitis defective and the U.S. EPA Administrator must object.
2. The Administrator Should ObjectTo the Proposed PermitBecause It Was Based OnAn Eight-Year Old Application That Had Never Been Updated. Onyx's application was overeightyears old when !EPAissued the draft Title V permit. To the best ofourknowledge !EPAnever required an updated application, including a newcompliance 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> 16IEPA to rely on an outdatedpermit application. Onthis basis, the Administrator should object to this proposed permit.
3. The Administrator Must Object to the Proposed Permit Because ItContains Conditions That Are Not Practically Enforceable Onyx'sproposed Title V permit contains numerous conditions which are notpractically enforceable. This is a violation ofU.S. EPA policy regarding practical enforceability and, consequently, the Administrator must object to the permit. For a permit condition to be enforceable, the permit mustleave no doubt as to exactly whatthe 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 permitis enforceable as a practical matter (orpracticallyenforceable) 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. Itis also important that permitconditions be unambiguous and do not contain language which may intentionally orunintentionally prevent enforcement.
!d. Although some ofthe language identifiedbelow (i.e., "reasonable" or "significant") may be quoting directly from the Act or regulations, this is not sufficienttojustifythe !EPA's use ofthis language verbatim in the permit and overcome the practical enforceability problem. Itis the responsibility ofthe Agency to interpret and implement the Act and regulations. One obligation underthis responsibility involves translating language from the Act orregulations 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 ofthe intent to incinerate [dioxin-listed hazardous waste]". When must such notification occur? In what format? How is the public supposedto monitor compliance with this requirement? Page 41- Condition 7.1.7.g is a newprovision that requires Onyxto operate the incinerator during the performance test under "normal conditions (or conditionsthat will result in higher emissions)". There is a similarprovision in the two following subsections. This strange provisionhas two obvious flaws- shouldthe performancetest be under "normal conditions" or "conditionsthat result in higher emissions"? Itcan'tbe both. Moreover, "higher emissions" ofwhich pollutants? Page 46- Condition 7.1.7.p requires Onyx to "cease hazardous waste burning immediately" ifit fails to "postmark aNotification ofCompliance." This mustbe a simple, but important, drafting error.

17Page 84, Condition 7.1.9.a.ii uses the tenn "you" rather than "Permittee" the term that is used everywhere else. This is probablyjusta simple, but confusing, drafting enor. In this same section there is areference to "owners and operators oflightweight aggregate kilns" and "cementkilns." Presumably these provisions don'thave anything to do with Onyx, ratherjusthighlight !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 Objectto the Proposed Permit Because ItContains A Permit Shield ThatBroadly Insulates ItFrom Ongoing andRecent Violations.
The Administrator has to object to the proposedpermit because it contains apermit shield that is overly broad. Condition 8.1 is abroadpermit shieldthat 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 occunedprior or continues after the submission ofan application. For example, the Illinois Attorney General is cunently prosecuting two separate enforcement matters against Onyx.
5. The AdministratorMust Objectto the Proposed PermitBecause ItFails 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 containthe following requirements with respect to monitoring: (A) All monitoring and analysis procedures ortest methods required under applicable monitoring and testing requirements, including part 64 ofthis chapter and any otherprocedures and methods that may be promulgatedpmsuantto sections 114(a)(3) or 504(b) ofthe Act.

... (B) Where the applicable requirement does not require periodic testing or instrumental ornoninstrumentalmonitoring (which may consist of recordkeeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time periodthat are representative ofthe 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 ofthe 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 aparticulate matter CEMS to demonstrate compliance

...." However, the next clause provides that the requirement to "install, calibrate, maintain, and operatethe PM CEMS is not required until such time that the USEPApromulgates all performance specifications and operational requirements applicable to PM CEMS." Without the 

# 000013 18obligation to install and operate the PM CEMS there is no otherPM 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 ItDoes NotContain A StatementofBasis.
A statement ofbasis is required by 40 CFR 70.7(a)(5) and Section 39.5(8)(b) ofthe Illinois Environmental Policy Act. An SOB must set forth the legal and factual basis for the draft permit conditions. Itmust contain information about applicability determinations and a discussion ofsuch ifthey are complex, monitoring selected, operational flexibility, streamliningrationale, basis for exemptions from requirements, and the inclusion ofany otherfactual information and reference ofall 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 ofhowthe actual limitation orrequirement applies to this facility, which makes it impossibleto determine whether it is complying with the condition. There are a number ofsuchproblems, identified in Petitioners' comments and those ofthe Illinois Attorney General. For example, Condition 5.2.6, shouldhave been rewritten to reflect that the facility is subject to 351AC 244.142.
7. The Administrator Must ObjectTo the Proposed Permit Because ItDoes Not Require PromptReporting ofViolations Promptreporting is required pursuantto 40 C.F.R. 

### §70.6(a)(3)(iii)(B) and ILCS 39.5(7)(ii): Prompt reporting ofdeviations from permitrequirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective measures taken.
Thereporting 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 objectto the proposedpermit.
8. The Administrator Must Object To the Proposed Permit Because ItFails 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 objectto this permit.



# 00001H !9

### STATE OF ILLINOIS ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY

IN THE MATTER OF:
Proposed issuance ofa Clean Air Act Permit ) Program Permit and Renewal ofa 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 ofthe Sierra Club. The SierraClub is a national organization working to protectthe Nation's clean air and clean water, and our natural heritage. The SierraClub has over 700.000 members nationwide, including 26,000 members in Illinois. Onyx Environmental Services (Onyx) owns and operates a toxic waste incineratorin Sauget, Illinois that receives and burns hazardous waste from around the world. This waste includes the most dangerous chemicalsknownto science. During the pasttwo decades as ithas handled, stored, and burnedthis waste the incineratorhas experienced multiple explosions thathave hospitalized workers and released clouds ofpoisonous gases over nearby residents. The incinerator also has one ofthe very worst compliance histories in Illinois. Onyx is now seeking its RCRA and Title V operating permits.
On the basis ofthe public health risks presentedby Onyx's incinerator and its atrocious compliance history, the SierraCluburges the Illinois Environmental ProtectionAgency (!EPA) to deny Onyx the permits it needs to continue operating its toxic waste incinerator in Sauget, Illinois. I. Metro EastIs Suffering From Some ofTheNation'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 ofarsenic, dioxin, lead and other highly toxic air pollutants. Most ofthese pollutants don'tdegrade, and instead continue to accumulate in residents' bodies, wildlife and soil. The results are cancer, premature death, and other acute healthproblems. If IEPA and US EPA grant the proposedpermitthe agencies would be authorizing Onyx to dump another whopping fifty tons ofthe most dangerous air pollutants overMetro East each year.


# 0000:20Onyx'spollution also sets backthe 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 ofsmog-forming pollution. Last summer, parts ofSt. Louis recorded code orange orcode red smog warnings onat least 35 days. Smog pollution causes a host ofbreathingproblems, including more frequent and more severe asthmaattacks. Based on this smog pollution mostofthe St. Louis metro counties received an 

### "F" grade from the American Lung Association in its 2003 State ofthe Air Repmi. 

### II. Contrary to Agency StaffStatements Made Atthe Public Hearing, IEPA has a Mandatory Duty to Evaluate Onyx's ComplianceHistory, including that ofits Officers and Employees.
On July 22, 2003 IEPA and US EPA held ajointhearing on the proposed RCRA and Title V operating permits. Citingthe facility's atrocious compliance record members of the public urgedboth agencies to deny Onyx its permits and to shut the facility down. In particular, Sierra Club and others urged IEPAto deny Onyx's its permitbecause its unwillingness and inabilityto comply withpublichealthprotections presented a clear and present danger to the residents in the surrounding communities. In response IEPA staff repeatedly demonstrated their misunderstanding ofIllinois law by asserting that a facility's compliance history is irrelevant in their decision about whether ornot 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 otherpermitto a waste storage site,

... waste disposal site, waste transfer station,

...,waste incinerator, or any other waste-transportation operation, the Agency shall conduct an evaluation ofthe prospective owner's oroperator'sprior experience in waste management operations.
415 ILCS 5/39(i) (emphasis added). Onyx's incineratoris, interalia, a "waste incinerator" and IEPA is considering whether ornot to issue both a RCRA permit and a Title V permit, both ofwhich are coveredbythis provision.
IEPA staffare apparently tmaware ofthis directive. During the public hearing agency staffrepeatedly informed the public they had no authority to consider a facility's compliance history as part ofthe agency's decision about whether ornot to grant a permit:[the

## 1issue of denying thepermitapplication on its technical merits and enforcement is on a separate [sic

## 1tract.
... Imean, you could[sic

## 1site violations

### 0000~~1 2of thepermitanddo enforcementagainst that, butyou can'tdeny thepermit [basedonafacility's compliance history}.
Mr. Dragovich, IEPA, Permit Unit Manager, Lands Division. Hearing Transcript, 183:1- 9.
It is brutally clear that IEPA has as ofthe date ofthe public hearing failed to conduct an evaluation ofOnyx's compliance history as required by state law:
"Ihonestlydon't know what theAttorney General's Office is doing

.... "
Mr. Belogorsky, Lead Permit Writer, Air Bureau (responding to a question about the Onyx enforcement case that IEPA has referred to the Illinois Attorney General's office) Hearing Transcript: 181:4-5.
State law appears clear onthis issue. !EPAmust evaluate Onyx's compliancehistory in accord with state law. We urge !EPAto move quicklyto conduct such an evaluation and provide the public with anopportunityto review and respond to the evaluation.


### B. IEPA's Evaluation Must Consider Onyx Environmental Services' Nationwide Pattern OfViolating Public Health Laws.
State law requires !EPAto evaluate Onyx's prior experience in waste managementbefore issuing a RCRA or any otherpermit. 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 ofan evaluation as to theirprior experience in waste management. A simple search ofUS EPA'sEnforcement and Compliance History Online turns up thirteen large facilities, including the Sauget incinerator, ownedby Onyx Environmental Services1 More than half(eight) have had violations in the pasttwo years, two are listed as having "Current SignificantViolations," and three have been subjectto an enforcement action in the past two years. With such a seemingly widespreadpattern of non-compliance at its facilities across the United States, !EPA'sevaluation ofOnyx's compliance history must include an assessment ofits 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. 

### ThePrior Ownership ofOnyx 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 bejointly owned with Chemical Waste Management. 

# 0000:22 3Despite the name change ofthe incinerator from Trade Waste Incineratorto Onyx and the shift in ownership from Chemical Waste Management to Onyx NorthAmerica, at least several ofthe same high-ranking employees, such as Doug Harris, General Manager, appear to have remained the same. Certainly the pollutionproblems have not abated. Moreover, the problems may, in part, stem from the fact that isjustinherently impossible to safely burn much ofthe types ofhazardous waste Onyxreceives. Consequently, IEPA should not ignore the incinerator's complianceproblemsbefore the incinerator changed its name. Rather, the inability oftwo different ovvners, overtwo 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 notjustthe corporation's compliance history, but also that ofthe corporation's officers and employees.
II. IEPA Should Exercise Its Discretion and Deny Onyx Its RCRA and Title V Permits Based On the Company's and Employee/Officer's Repeated Violations ofState and Federal Laws and Evidence ofGross Negligenceand Incompetence. Based onthe existing evidence, IEPA should exercise its authority to deny Onyx a RCRA permit or any otherpermit The Illinois Environmental Protection Act provides:
The agency may deny such apennit ifthe prospective owner oroperator or any employee or officer ofthe prospective officerhas ahistory of: (1) repeated violations offederal, State, orlocal laws, regulations, standards, orordinances in the operation ofwaste management facilities or sites; or (2) conviction in this or another State ofany crime which is a felony under the laws ofthis State, or conviction ofa felony in a federal court; or (3) proofofgross carelessness or incompetence inhandling, storing, processing, transporting or disposing ofwaste. 415 JLCS 5/39(i)(emphasis added). Onyxhas 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 ofOnyx and its employees and officers engaging in "gross carelessness" and "incompetence" inthe handling, storage, processing,transporting and disposing ofwaste. A. Onyx has Repeatedly Violated Federal and State Laws Regulating Its Hazardous Waste Incinerator. Appendix A ofthese comments details the violations offederal and state lawthat we have been able to document based on a review ofincomplete IEPA and US EPA files. A total of 135 separate violations. A search ofUS EPA'sECHO 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 offederal and state prosecutions against this facility for violations ofstate 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 4decree 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 ofhazardous wastes from Bermuda. Earlierthis year, Attorney General LisaMadiganprosecuted 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 believesthere has been additional violations offederal and state waste laws since. Finally, as discussed above, the Onyx Environmental Services Corporation operates at least twelve other facilities in the United States, overhalfare identifiedby US EPA as having SignificantNonCompliance problems. Forthese reasons IEPA must deny this permit.
B. There is Ample ProofofOnyx's "Gross Carelessness" and "Incompetence" in the Handling, Storing, Processing, Transporting and DisposingofWaste. Many ofthe violations detailed in Appendix A demonstrate "gross carelessness" and "incompetence" in the handling, storing and disposing ofwaste. Forexample, between 1999 and 2002, there were at least ten surge (explosion) events resulting inthe release of clouds ofpoisonous gases. When the same problem occurs multiple times it is strong evidence ofgross carelessness. Moreover, the inability ofthe facility to comply with its permit conditions repeatedly overthepasttwo decades, including the pasttwo years of Significant Non-Compliance, highlights either "gross carelessness" or "incompetence." On eitherbasis. this facility should be shutdown.
In short, !EPAis required to assess the compliance history prior to granting Onyx either a RCRA orTitle V permit. After completing such anevaluation the agency then has the discretion based on the pattern and type ofcompliance problems, to deny suchpermits. Ifthe facts in this case don'twarrant permit denial, what would? Ifthe agency fails to shut downthis facility, it must explainto the people ofIllinois the threshold that it determines warrants denying a permit and concluding that a companyhadrelinquished its privilege to operate inthis state. Onthese facts, we believe it wouldbe arbitrary and capricious to not deny Onyx apermit.

III. IEPA MustAlso Deny Onyx's Permits Because ofthe Overwhelmingly Disproportionate Impacts Its Pollution Has On the SurroundingLowIncome 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 ifthe permits are issued on low-income and minority populations. Such environmentaljustice concerns were recently elevated at IEPA with Director Cipriano issuing anEnvironmental Justice policy. This directive establishes as one ofits top purposes "to ensure that communities 

# 000024 5are not disproportionately impacted by degradation ofthe environmentor receive a less than equitable share ofenvironmental protection and benefits."
Director Cipriano's directive continues:
When concern is expressed or identified regarding potential environmental impacts in anenvironmentaljustice area, the Illinois EPAwill look at the informationprovided and other available informationto assess whetherthere are potential significant adverse environmental impacts. Ifthere are any such potential adverse impacts, the Illinois EPA will eitherrequest 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 orentities. An appropriate response will be made based onthese assessments3
We urge !EPA to implement this directive. Based onthe information inthese 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 ofpoisonous gases into the surrounding community. These clouds ofgases are, ofcourse, having significant and disproportionate environmental health impacts on minority and poorresidents who live nearinthe nearby neighborhoods.
As detailed in our US EPA comments, RCRA affords the USEPA and the state with broad authorities to compel apermit applicantto conductanalyses and providethe agency withthe informationit needs to protect stateresidents. Moreover, RCRA provides the agency with the authority to conclude that it impossibleto impose permit conditions on Onyx that will protect the residents from additional pollution- such as increased exposure to lead contamination.
In short, IEPA must deny Onyxthe permits itis seeking to continue operatingthis unsafe and highly dangerous facility. The risks are simply too great.

3 http://www.epa,state.il.us/environmental-justice!policv.html

### 0000~2~) 6

### APPENDIX A Incomplete History ofViolations4 July, 1980: The incinerator commenced operation. July 12, 1982: US EPA inspector writes in an internal memorandumthat"! contacted Illinois Environmental Protection Agency (!EPA) and learned that [the incinerator] has quite a few problems, such as very poorwaste storage and handling practices, numerous unreported spills, and otherhousekeeping problems. For these reason please contact [IEPA] 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 maintaintemperature 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 ofunpermitted hydrochloric acid cloud. (source: 1990 consent decree). 

### 1991 January 25: release ofgases directly into the environment. (source: Attorney General press release). February 5: release ofgases 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 71992 Between September and Octoberfacility personnel falsified 173 records attesting to the contents ofthe waste containersthey were burning: (source: !EPArecord). February 20: monitors failed to operate for approximately 7 days (source: IEPA record). May 19: malfunction and release ofgases (source: company reports). May 20: malfunction and release ofgases (source: company reports). May 22: malfunction caused release ofgases (source: companyreport). May 31: gases released (source: company report). June l: malfunction causedrelease ofgases (source: companyreport). June 4: malfunction caused release ofgases (source: company report). June 7: malfunction during burning ofhazardous waste (source: company report). June 8: failure to maintain necessary temperature to burn waste optimally (source: companyreport). June 9: failure to maintain necessary temperature to burn waste optimally (source: company report). June 12: malfunction causedrelease ofgases (source: companyreport). June 13: failure to maintain necessary temperature to burn waste optimally (source: companyreport). June 17: malfunction causedrelease ofgases (source: company report). June 22: malfunction caused three releases ofgases (source: companyreport). July 1: cloud ofhydrogen chloride released above emission limits (source: !EPArecord). July 2: cloud ofhydrogen chloridereleased above emission limits (source: IEPArecord). July 5: failed to maintain temperatures necessary to burn waste optimally (source: !EPA record). July 5: malfunction caused release ofgases (source: IEPA record). July 8: improper handling ofwaste results in employee sprayedby hazardous liquid (source: !EPArecord). July 11: failed to maintain necessary temperatures to burn waste optimally (source: IEPA record). July 13: cloud ofhydrogen chloride violates permit limit (source: !EPArecord). 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: IEPArecord). July 31: waste exploded releasing gases (source: IEPArecord). August 2: waste exploded releasing gases (source: IEPA record). August 25: cloud ofhydrogen chloride released above emission limits (source: !EPA record). August 27: malfunction causedrelease ofgases (source: IEPArecord). August 29: malfunction caused release ofgases (source: IEPA record). 

# nooo·)'i

'v tv 4 8August 30: cloud ofhydrogen chloride released above emission limits (source: !EPA record). August 31: malfunction caused release ofgases (source: !EPArecord). September 22: inspectors find containers leaking waste in storage building (source: !EPA record). September 23: malfunctioncaused release ofgases (source: !EPArecord). September 23: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). September 24: waste explodedreleasing gases (source: IEPA record). September 26: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). October 26: failed to maintaintemperature necessary to burn waste optimally (source: !EPArecord). October 28: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). October 29: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record). October 30: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record). October 30: malfunctioncausedrelease ofgases (source: !EPArecord). November 8: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record). November 12: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). November 14: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). November 20: waste exploded and released gases (source: company report). November 30: violated CO permit limits while burning toluene diisocyanate (source: IEPA record). December 3: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record). December 3: violated CO permit limit (source: !EPArecord). December 3: malfunctioncausedrelease ofgases (source: IEPA record). December 9: failed to maintaintemperature necessaryto burn waste optimally (source: IEPA record). December I0: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). December 16: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). December 22: two pallets holding pesticide waste caught fire in storage area (source: IEPA record). December 24: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). December 30: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record).


# 000028 91993 January 5: failed to maintaintemperature necessary to burn waste optimally (source: IEPA record). January 6: failed to maintain temperature necessary to bumwaste optimally (source: IEPA record). January 17: malfunction causedrelease ofgases (source: !EPArecord). January 22: malfunction caused release ofgases (source: !EPArecord). January 22: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). January 28: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). January 28: waste exploded and released gases (source: companyreport). February I: failed to maintain temperature necessary to burn waste optimally (source: IEPA record). February 27: emissions violated sootpermitlimit (source: !EPArecord). February 28: emissions violated soot permit limit (source: !EPArecord). March I: failed to maintain temperature necessary to burn waste optimally (source: !EPA record). March 14: emissions violated sootpermit limit (source: company report). March 17: emissions violated soot permit limit (source: company report). March 18: release ofgases directly into the environment- cause unknown (source: !EPA record). March 29: emissions violated sootpermit limit (source: company record). April 7: failed to maintain temperature necessary to burn waste optimally (source: company report). April 11: failed to maintaintemperature necessary to burn waste optimally (source: company report). Apri125: emissions violated sootpermit limit (source: company report). April 28: emissions violated sootpermit limit (source: companyreport). May 4: emissions violated sootpermitlimit (source: companyreport). May 16: emissions violated sootpermitlimit (source: companyreport). May I9: emissions violated sootpermitlimit (source: company report). May 27: violated CO permitlimit. (source: companyreport). June 3: malfunction causedrelease ofgases (source: IEPArecord). 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 maintaintemperature 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: companyreport). August I: emissions violated soot limit (source: companyreport). 

# 00002D 10August 3: failed to maintain temperature necessary to bumwaste optimally (source: company report). August 14: failed to maintain temperature necessary to bumwaste optimally (source: company report). August 15: failed to maintain temperature necessary to burn waste optimally (source: company report). September 9: violated hydrochloric acid pennitlimit (source: companyreport). September I0: violated CO permit limit (source: company report). September 29: violated sootpermit limit (source: companyreport). October 18: failed to maintain temperature necessary to burn waste optimally (source: company report). October 18: violated soot permit limit (source: companyreport). October 26: waste exploded and released soot emissions (source: company report). November 27: waste exploded and released gases (source: company report). December 5: malfunction causedrelease ofgases (source: company report). December9: violated sootpermit limit (source: companyreport). 

### 1996 March 29: During mishandling ofa hazardous waste an employee's "saranex suit caught fire

.... He was then transported to a local hospital for treatment ofburns to his arms and face." Subsequentlythere were three separate explosions, eachreleasing gases directly into the environment (source: company report). September 27: waste exploded and released a cloud ofgases. (source: company report). October 21: released hazardous air pollution, including mercaptan. (source: AG consent decree). 

### 1997 February 3: waste exploded and released a cloud ofgases (source: company report). April 4: waste exploded and released a cloud ofgases. (source: company report). April 8: waste exploded and released a cloud ofgases. (source: company report). May 17: waste exploded and released a cloud ofgases. (source: AG consent decree). 

### 1998 January 16: waste exploded and released a cloud ofgases (source: Attorney General consent decree). February 12: waste exploded and released a cloud ofgases (source: company report). February 13: waste exploded and released a cloud ofgases. (source: companyreport). February 21: waste exploded and released a cloud ofgases. (source: company report). 

### 1999 January 9: waste exploded and released a cloud ofgases (source: IEPA inspection report) March 4: waste exploded aud caused a "significantrelease" ofgases. (source: IEPA inspection report). August 10: waste exploded and released a cloud ofgases (source: company report). August 20: waste exploded andreleased a cloud ofgases (source: company report). August 29: waste exploded and released a cloud ofgases (source: company report).


# •JOOO:JO IISeptember 6: waste exploded and released a cloud ofgases (source: company report). 

### 2000 July 2: waste exploded and released a cloud ofgases (source: !EPAinspection report). July 3: waste exploded and released a cloud ofgases (source: IEPA inspection report). July 6: waste exploded and released a cloud ofgases (source: IEPA inspection report). 

### 2001 October 1: waste exploded and released a cloud ofgases (92 pounds oftriethyl borane) (source: company report). 

### 2002 !EPA inspection report lists 22 ongoing oroutstanding violations. (source: IEPA inspectionreport).
History ofEnforcement Actions 1990

-- State settles with incinerator for violations ofair 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 ofclean air and hazardous waste laws. (source: IEPA press release)
US EPA imposes $3,380 fine for illegal shipment ofhazardous waste from Bermuda (source: USEPA 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 ofthe 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 ofweeks. And,justtoday, 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 otherjobs 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 ofemissions, so very many tons ofpollutants 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 ofthe intention ofCongress 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 ofthis 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 IEPA 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 ofcompliance, resulting in increased and unpermitted emissions oftoxic chemicals.
2. It 

### sits in the middle ofan urban core ofmore than two million people, the closest of whom are low income and minority and are being disproportionately affected-truly a case ofenvironmental injustice.
3. The area is nonattainment for both the 8-hour ozone standard and particulates. This permit allows 4 7tons ofvolatile organic material and 4 7tons ofparticulates.
4. The area waters are already contaminatedwith mercury and the Illinois Dept. ofPublic Health has issued fish advisories on the lakes at Frank Holten and Horseshoe Lake state parks, where many area folks fish for theirmain source ofprotein. Mercury emission limits from this plant should be reduced to zero. 5. The facility sits in a concentrated area ofmany major sources ofair pollution, several of which are also in noncompliance, such as Big River Zinc, which wasjustcited for violations ofNew Source Review. There is both acumulative impact on the environment and on public health and the potential for a synergistic impact ofvarious chemicals combining in the airshed.
6. There are high rates oflung and heart disease and cancer in the region. Asthma rates are up to I0 times the national average and are very high among children.
7. Onyx has a history ofaccidents and explosions and injured workers. (We also hear reports ofsuspicious midnight shipments, unreported fugitive emissions and explosions, although we have no way ofdocumenting or verifying those reports. We ask the agencies to investigate.)
8. The facility has a history ofproblems 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-ifthey do not close the plant. There is no indication IEPA takes the continuedproblems at the facility into consideration, at either the inspection and enforcement level, orin the permit itself. Given its resources, perhaps IEPA is unable to deal with Onyx in an authoritative manner. We do not really know how many tons the facility actually emits ofdioxins, 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. Ifthis 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 ofan urban population. 

### This hazardous waste incinerator should never havebeen allowed to continue to operateinnoncompliance for so long. Therefore, it should be closed.
Reasons the permit should notbe issued
10. The compliance certification ofthe application is not signed by a responsible official, rendering the application incomplete and therefore invalid. The draft permit was issued in violation ofSection 70 rules that require a signature. The public has the right to know ifa source that is about to receive a CAAPP permit is in violation ofany legal requirement. That right was violated.
11. The application is eight years old. IEPA 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. lEPA erred in granting Onyx a draft permit that is based on an 8-year-old application.
12. IEPA does not issue an adequate statement ofbasis and does not comply with the requirements ofpart 70. 40 CFR 70.7(a)(5) requires that "[t]hepermitting 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 ofbasis should include, but is not limited to, a description ofthefacility, a discussion ofany 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 ofbasis 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 ofthe 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, ifsuch 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 ofthe Title V program is to clarify which air quality requirements apply. A permit must include which regulations apply to a particular source; it cannotbe 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. Ifthe 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 ofBasis should provide sufficient information for the reader to understand OEPA's conclusion about the applicability ofthe source to a specific rule. "
13. We are uncertain ifwe have acopy ofthe 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 thatthe 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 landfilljustnorth ofEast St. Louis, built in wetlands in the I00-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 

### Vpermit is confusing, i.e., ifit is notissued, it cannot be enforced by EPA and thepublic. (Nothing was said to indicate that the existing operatingpermits allowfor enforcementby the state.) Butwe were also told at the hearing that we were not allowedto address conditions and limits ofthe existingpermits becausethey are being consolidated under the oneTitleV permit. Whencan we address conditions and limits? Not for five years when the Title V is up for renewal? Thatis totally unacceptable. Newcontrol technologies couldbe discoveredinthattime and newresearch provide alarming wamings about existing emission allowances.
The existing operating permits are the applicable requirements for the newTitle V permit and as suchcitizens havetheright and responsibility to discuss them. We objectto being discouraged from doing so by the Agency. In fact, the role ofthe public was diminished several times during this permittingprocess: we wereunable to fully reviewthe permit application becauseofmissing informationthat we did notreceive in spite ofseveral FOIA requests; andthepermit contains conditionsthatreferto documents, e.g., manufacturer's specifications that were notpart ofthe public record.
Docun1ents that were applicable requirements, like the missing operatingpermit, could notbe located and we are concernedthat they were not incorporated.
16. NewMACT standards for HAPs are scheduledto go into effectnextyear. Ifyou do not close this facility immediately, this permit should be delayed until that time.
Comments and Questions onTranscript ofPublic Hearing

p. 10-11 Records should also be availableto thepublic.
"The company must also perform aninvestigation into all waste management activities, past and present, to determine ifthese activities have impactedthe environment, (eitherthe land or groundwater)." No reference is made to deposition to surface waterfrom air emissions. Atmospheric deposition, especially mercury, mustbe included.


### p. 12 "The Illinois EPA has the authority to inspectthe facility at anytimewithout advance notice." Unfortunately, they do nothavetheresources to do so.


### p. 17 We are extremely concerned aboutthe disposal ofthe sludge. In additionto contamination ofthe land and groundwater, are there notfugitive emissions associated withthe process? That is not addressed in the permit.



### 5 

# 000036p.20-23 The risk assessment is notfacility-specific; it needs to be. Italso does not address cumulative and synergistic effects. Sincethe 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 shouldrecommend further reductions. Overpredictingrisk last year orthis year may be totally unacceptable this year orthe 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 ofrecords, the results ofthe modeling would be flawed.
Lead emissions were not addressed. There are high lead levels inthe soils in East St. Louis and high levels ofleadin the children ofbothEast St. Louis and St. Louis. Lead emissions should be drasticallyreduced.
We were told we would be supplied with the results ofthe 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 compliancetool for monitoring and verifying compliance ofthe source." The pem1it is unreadable and undecipherable and therefore unenforceable by the public. p.34-Total permitted emissions include 47 tons ofVOM, 66 tons ofsulfur dioxide; 47 tons of particulate matter; 97 tons ofNOx and 52 tons ofHAPs. These numbers are excessive. What are the HAPs? Howmuch mercury is permitted? Forty-seven tons ofparticulates is an absurd amount to be allowed in an area already nonattainment for particulates, especially in this area where one out ofevery five children has asthma. p.52 -Wetrust that Mr. Belogorsky's commentthat because there are medical waste incinerators in the area, it is acceptable for Onyx to emit dioxins is not the attitude ofeither the Agency or EPA. Such aremark is racist and disrespectful and shows a complete lack ofunderstanding of environmental injustice. Ifthat is the case, Mr. Belogorsky should notbeallowed to make decisions as apermit 'ATiter since he clearlybelieves that ifa commtmity has one incinerator, it deserves another. He shouldbe severelyreprimanded for his statement and his permits closely scrutinized. For the record, citizens workingtogether with medical experts closed down a medical waste incineratorin North St. Louis.
The citizens in this area know very well how many otherfacilities 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 controlit. And,when a company snch as Onyxcannot operatein compliance, to close it. Onyxhas basically been in significant noncompliance since 1991, with dozens ofongoingviolations. It

### is timeto deny its operatingpermitand close the plant.
p. 88 JEPA compliance enforcement people formally request that the facility do a stacktest 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 excessivelyfor four years or more and then do repairs or adjustmentsjustbefore testing. That is not protective ofpublic health.
More inspections should be unannounced.


### Comments on DraftPermit
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 clearpicture ofwhat a source must do to comply. To be enforceable as a practical matter, a condition must (I) provide a clear explanation ofhow 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 IEPA consider changing the format ofits CAAPP permits to listing the required MRR with eachpermit condition.
3.I.I While weunderstand that IEPA considers ash handling, handling ofspent dry scrubber solids and limeunloading 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 shouldhave triggeredNew Source Review? If not, why have they not beenupdated? Ifthere were modifications made at the plant that

7 

# 000038

### triggered NSRreview, Onyx must install modem control technology. IEPA must request full disclosure ofany and all modifications before itissues the permit.
5.2.2 In order to be protective ofhuman health and because PM 2.5 standards are not yet in force, the opacity levels shouldbe lowered.
5.2.3 The "requiredpractices" must be spelled out; otherwise, they are not practicably enforceable.
5.2.4 A risk management plan is ofhigh interest to the public. The permit must state under what circumstances Onyx would have to apply for one and howthe public would be informed ofsuch a plan. A certification statement that this source is in compliance would not be credible, given its history for falsification ofdocuments and noncompliance. This certification statement must come with a certification oftmthfulness that clearly spells out the legal consequences ofwillfully 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." Ifthere is no definition in the regulations, !EPA must define those terms permitby permit. Is promptly anhour, 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 ofa company historically in significant noncompliance for long periods and which has been accused offalsifYing documents.
7.1.3 Has the Permittee applied for an extension oftime to comply with the interim standards? Ifso, it should not be granted. Ifthe Permittee applies for an extension before the September 30 deadline, we request that the request be denied and the public be informed

8 

# 00003Bofthe request.
7.1.4 Has the Permittee applied for a significant modification to the CAAPP permit? Ifso, it should not be granted. Ifthe Permittee applies for one before the September 30 deadline, we ask that the request be denied and the public be informed ofthe request. Under what circumstances would the agency grant such an extension?
We do not have the technical knowledge tojudge operatingrequirements and workpractices 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 ofcomprehensive performancetest-Givenits record ofnoncompliance and tillsification ofrecords, the permittee should not be allowed to request that previous emissions test data serve as documentation ofconformance. Frequency oftesting-the IEPA should not grant a time extension.
The permittee should notbe allowed any time extension for any condition in the permit.
There are several conditions in this permit where IEPA left the applicability ofa rule open. This creates confusion. The OEPA letter offers guidance and OEPAhas since agreed to reformat its Title V permits. The regulatory language is clearin that a Statement ofBasismustinclude a discussion ofdecision-making that went into the development ofthe Title V permit and to provide the permitting authority, the public, and the U.S.EPA a record ofthe applicability and technical issues surrounding issuance ofapermit.
We are concerned about the mere existence ofan "emergency cap" and feel that emergency situations can only arise infrequently and the facility must showpreventive maintenance and engage in personnel training to prevent emergency situations. Such activities shouldbe logged and reported.
We are concerned that the permit contains undefinedterms and conditions that do not have a reference ofauthority, thereby hampering our ability to be meaningful participants in the permittingprocess We believe the monitoringrequirement inthe draft CAAPP permitto be insufficient to show compliance with emission limits. We are unable to tell which ofthe monitoring requirements currently apply, which will apply under whatcircnmstances inthe future orwhen 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, "cutand pasted" from regulations, according to Mr. Belogorsky. They do not reflect the true operation and limits ofthis facility. Therefore, the public cannotbe assured that the monitoring is adequate.
7.1.13 

### Compliance cannot be "assumed" further. This condition is an example ofwhat 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 couldresult in abuse ofthe shield and needed repairs or replacement delayed or avoided. Workers couldbe 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 ofdeviations 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 canmanipulate fuel to achieve desired test results. Not necessarily representative ofstandard operatingprocedure.
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 itselfin compliance with all permit conditions, notjust those that are the basis ofthis certification, as written in 

### 9.8. The certification must include adescription ofthe monitoring, recordkeeping and reporting requirements and test methods used to determine compliance.
9.10.2 Add emergencyprovision v. The company must immediately notif:V the public ofany 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 orreissuance ofpermit.
9.12.2 Not protective enough. Dioxin and mercury standards needto be lower.
9.12.4 What is "areasonable time?" Needs to be defined.


### I0 Attachment certification is not signed by a responsible official.
EnvironmentalJustice Issues: 

### According to the application, this facility has the potential to emit more than 1,000pounds of mercury. One teaspoon is enough to contaminate a lake. Many area residents rely on fish from area lakes for their main source ofprotein. To permit that is truly enviromnentally unjust. Most ofthe residents who live within three miles ofthis plant are minority and low income. We ask for a determination by U.S.EPA. Illinoisjustestablished an Enviromnental Justice policy; ifit is to be taken seriously, it should be used in this instance. A map ofTRI 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 Careirogers 214 Suspected Carcinogens 519 Suspected Cardiovascu1 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 Gastro1rtest1na1 or L lVer Toxicants 12.133 Suspected t1uscul oske1 etal 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 dirt1est/worst 10% of all count1es 10 the US in terms of the number of people living in areas where cancer risk from hazardous a10 po11utants 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 

# 000042by 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 direct1 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 goa1 set by the Clean A1r .Act.


### 210,234 people live within five miles ofthe 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 ofthe plant, the belowpoverty levels range from 24 per cent in Cahokia and Madison to 48 per cent in Brooklyn. East St. Louis,just south ofthe plant, has a below-poverty level of35 per cent.

We request a risk analysis and environmentaljustice determination to 

### examine the health impacts ofthe 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, noncompliantfacility to remain open.



### Thank you for your consideration ofourremarks.
Sincerely, J( atf.y __A,j,ia 

### President

12 

# 1)0004313

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

IN THE MATTER OF: Proposed issuance ofa 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 ofthe Sierra Club. The SierraClub 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. Duringthe pasttwo decades as it has handled, stored, and burned this waste the incineratorhas experienced multiple explosions that have hospitalized workers and released clouds ofpoisonous gases over nearby residents. The incinerator also has one ofthe very worst compliance histories in Illinois. According to US EPA's Online ComplianceDatabase the incinerator has bee in SignificantNoncompliance for the past eight quarters. Onyx is now seeking its RCRA and Title V operatingpermits.
On the basis ofthe public healthrisks presented by Onyx'sincinerator and its atrocious compliance history, the SierraClub urges the U.S. Environmental ProtectionAgency (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 ofthe proposed RCRA permit and the proposed Clean AirTitle V operatingpermit for the same reasons. Finally, we ask that US EPAprohibit Onyx from accepting off-site CERCLA (Superfund) waste. I. U.S. EPA Must DenyThis PermitBecause Its Repeated And Ongoing Violations PresentAn Unacceptable Risk To Human Health and the Environment And No Additional Permit Terms OrConditions Can Correct Repeated Violations.
As described in the comments we submitted simultaneouslyto the Illinois EPA (Attachment 1 ), this facility has a terrible compliance record for overtwo decades. Its 

# 00004!:>violations have included explosions that have hospitalized workers and sent clouds of poisonous gases overMetro East The facility has been subjectto 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 andindeedthe duty to close down this facility. On December 1, 2000 then-US EPA General Counsel Gary Guzy wrote a memorandum outlining the scope ofEPA's authority to address environmentaljustice 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 ofa pem1it to a facility ifEPA determines that operation of the facility would pose anunacceptableriskto human health and the environment and that there are no additional permitterms orconditions that would address suchrisk." 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 oflead in theirblood,

...). 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 ofair pollution immediately adjacent to Onyx and its neighbors, including Monsanto, Solutia, Big River Zinc, to namejustthree. Based on U.S. EPA's TRI data, the cumulative risk to nearby residents from all ofthese sources is enormous. Nearby residents rely heavily on fishing as a protein source at the nearby Frank Holten State Park, an areathat has a history ofPCB and othercontamination problems. And, as described elsewhere in these comments there is a lead-poisoning epidemic an1ong the children (and many adults) ofMetro East. Onyx'spollution includes many bio-accumulative and highly-persistent toxins that will exacerbate all ofthese existing problems. Moreover, there are no additional permit conditions that can address the risk posedby Onyx's unwillingness and inabilityto comply with public health protections, even ifthe protections were sufficiently strong. Onyx has been given repeated warning and opportunities to become a good neighbor. It has been slapped with multi-million

1There are other additional sources ofauthority for US EPA to consider environmentaljustice 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 2penalties. Yet, the violations continue and the surrounding residents (and the workers) continue to pay a very high price while Onyx continues in business. Underthese extreme circumstances, US EPA must deny the permit.
In fact, because US EPA cannot include terms and conditions in Onyx'spermitthat will ensure the facility complies with health protections and no longerpresents a threat to human health and the environment, RCRA 3005(c)(3) mandates US EPA close this facility. Ifthe facts inthis case don't warrant permit denial, what would? Ifthe agency fails to shut down this facility, it must explain to the people ofIllinois the threshold that it determines warrants denying a permit and concluding that a companyhad relinquished its privilege to operate inthis state. On these facts, we believe it would be arbitrary and capricious to not deny Onyx apermit.



### 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 apoor, minority area that is already suffering from high levels ofpollutionfrom multiple sources ofair pollution, one would have expected US EPAto have conducted an analysis ofthe health problems plaguing the area before granting apermit and proposing permit limits to ensure that suchlimits 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 oflead poisoning, many areas have high levels ofleadcontaminated 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 incineratoris a quintessential environmentaljustice area, comprised overwhelming ofpoor and/or minority residents. According to US EPA data, there are 62,892 residents living within three miles ofthe 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 exceed44 percent. The Sierra Club did not locate any analysis indicating that US EPA considered the environmentaljustice implications ofgranting Onyx its necessary air and waste permits. This is despite Onyx being one ofahandful ofthe 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, ofcourse, it is located in an area abutting East St. Louis, an overwhelming minority city that has been described as the "mostdistressed small city in America."

2 .http:, 'w\-vw.epa.gov/c.d-bin/get1cReport.cgi?tool=echo&lDNumber-=ILD0986424f"4&media tool=ECHO 

# 000047 3US EPA (and IEPA) have an unambiguous directive to considerenvironmentaljustice implications in their permitting decisions3 In this instance RCRA provides US EPA with additional statutory authority to consider such environmentaljusticeissues and establish permit limits to avoid disparate impacts on low-income and minority communities. The Guzy Memo describes howUS EPA's authority to address environmentaljustice 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 "thatwhen the Region has a basis to believethat operation of the facility may have a disproportionate impact on a minority or low-income segment ofthe affected community, the Region should, as a matter ofpolicy, exercise its discretion to assure early and ongoing opportunities for public involvement in the permittingprocess." Id. at 73. Italso found that RCRA allows the Agency to "tak[ e) a more refined look at its health and environmental impacts assessment in light ofallegations that operation ofthe facility would have a disproportionately adverse effect on the health orenvironment oflow-income or minority populations." Id. at 74. Such a close evaluation could, inturn, justify permit conditions or denials based on disproportionately high and adverse human health orenvironmental effects, while "abroad analysis might mask the effects of the facility on a disparately affected minority or low-income segment ofthe community." Id. Guzy Memo at I (emphasis added). As described above, there is no dispute that the operation ofOnyx's incinerator, including the transport ofhazardous waste to and fro from the facility "mayhave a disproportionate impact on a minority orlow-income segment ofthe affected community [ofMetro East)."



### a. Despite the Obvious Environmental Justice Concerns US EPA (and IEPA) Did NotAssure Early and Ongoing Public Involvement Opportunities. Despite Onyx being located in an areawith large numbers ofminority and/orpoor residents, US EPA has failed "to assure early and ongoing opportunities for public involvement in the permittingprocess." Most obvious, US EPA failed to make the RCRA permitreadily available to the public. Sierra Clubrepeatedly requested the agencies to provide an electronic copy orto make it available onthe 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 4The US EPA records we couldreview 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 ofInformation Actrequest to Region V Air and RadiationDivision for Onyx records, including inspectionreports. In its March 6, 2003 response US EPA withheld three documents: l) a Draft Inspection Report, undated, which is presumably the 2000 multimediainspectionreport; 2) an IEPA Inspection Report from 1990, and 3) a "Gateway Quarterly Review" from 1995. What on earthis 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 enforcementmatter7 Such Nixonian strategies breeds mistrust ofthe agency. Moreover, it ensures the public does not have access to all ofthe information necessary to assess the facility's compliance history.


### b. US EPA Failed To Require IEPA ConsiderEnvironmental Justice Concerns Either.
US EPA'sreview ofState-issued permits is another opportunity for US EPAto address environmentaljustice concerns. Again, the Guzy Memo: Where the process for a State-issuedpermit does not adequately address sensitive populationrisks orother factors in violation ofthe authorized State program, under the regulations EPA couldprovide comments onthese factors (in appropriate cases) during the commentperiod on the State's proposed permiton a facility-by-facility basis. 40 CFR §271.19(a). Where the State itselfis authorized for RCRA "omnibus" authority and does not address factors identified in EPA comments as necessary to protecthuman health and theenvironment, EPA may seek to enforce the authorized State program requirement. 40 CFR § 271.19(e) Alternatively, ifthe State is not authorized for "omnibus" authority, EPA may superimpose any necessary additional conditions under the "omnibus" authority inthe federal portion ofthe permit. These conditions becomepart ofthe facility's RCRA permit and are enforceable bythe United Statesunder RCRA section 3008 and citizensthrough RCRA section 7002. Guzy Memo at 4. There is no evidence that US EPA has provided comments or otherwise held Illinois responsible for addressing environmentaljustice concerns in either the RCRA permit orthe 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 cannotbe expected to review and comment on a draftpermitthat is based on a draft risk screening report. The risk screening report is a vital piece ofinformation about the levels ofrisk 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 sthe same time as comment onthe draftpermit, particularly when it appears there are major defects inthe risk screening report. Ifthe 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 otherproblems with the Draft Report. US EPA's conclusion that the permit limits for polychlorinated dibenzodioxins and fnrans (PCDD/F) are protective ofhuman health and the environment is arbitrary and capricious. The draft risk screeningreport asserts that based on Onyx'srecent installation ofan activated carbon injection system at Unit 4 and based on trial test bnrns at units 2 and 3 thatthe risk ofharm from PCDD/Fs is less than 1in I00,000. US EPAthen goes onto say that this result maybe further analyzed in the futnre but atthis 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 aresponsible 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. Onyxhas 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 ofbenzene. Were these releases considered as part ofUS EPA'srisk screen? The risk screen must assess the conditions that exist at Onyx- 

### i.e. repeated and serious violations involving releases ofPCDD/F and multiple other toxins.
The Draft Report provisionsregarding lead and otherpersistent toxins are extremely confusing and seemingly illogical. Lead is one ofthe most well-testedpoisons. We know it is a neurotoxin. We knowthattiny amounts can strip a child ofits potential, lower its IQ, and cause a host ofbehavioral problems. US EPA is one ofthe lead federal agencies that committed in 2000 to a national strategy to virtually eliminate childhood lead poisoning within ten years, 

### e.g. by 20I0.
We will not virtually eliminate lead poisoning in Metro East ifUS EPA does not prohibit Onyx from emitting lead across the region. Children in the Metro East area already have very high blood-lead levels5 One ofthe primaryreasons for suchhigh numbers ofleadpoisoned children is the very high lead-in-soil levels through East St. Louis6 Engaging in the most natural hand-to-mouth activities young children inadvertentlyingest this leadcontaminated soil. Despitethe large numbers ofchildren 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 IOOmg/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 poisoningrates of 12 percent). 6 1EPA Press Release, Oct 28, 2002, ResidentialSoilRemovals Begin at Two EastSt. LouisSites. h!Jp://vvww**.~a.s~ate.iLus/ne\vs-releases/2002/2002-185-east-stlouis.html** ("a study

... found the soil in many areas ofEast St. Louis contained high levels oflead.") 

# 00005U 6and economic cost ofleadpoisoning 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, ofcourse, has been emitting lead into the air since it began operation in 1980 and helped createthe overall lead burden in Metro East. The RCRApermitmust set Onyx's lead limit at zero. !fitcan't meet this limitit should not be allowed to continue operating.
The proposedpermit limits for the othertoxins 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 childrisk factor based on a child that has apropensity to ingest dirt, e.g. apica 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 environmentaljustice implications ofthe proposed permit limits and there does not appear to have been any environmentaljustice analysis conducted whatsoever. Such analysis must include, among otherthings, the risk exposure facing the residents ofEast St. Louis who engage in subsistence-type fishing in area waterbodies.

7 

# 000051