BOARD MEETING DATE: March 7,2014 AGENDA NO. 27B 

PROPOSAL: 

SYNOPSIS: 

COMMITTEE: 

Execute Contract and Rental Agreement for Rule 1420.1 

Multi-Metals CEMS and Continuous Multi-Metals Ambient 

Air Monitoring Demonstration Programs 

On January 10,2014, the Board deferred the multi-metals 

continuous emission monitoring system (CEMS) provision of 

Amended Rule 1420.1 to the March 7,2014 Board meeting. 

Subject to Board adoption of this provision, this action is to 

execute a contract with Cooper Environmental Services, LLC 

in an amount not to exceed $413,451 from the Rule 1420.1 

Special Revenue Fund for the multi-metals CEMS 

demonstration project. Furthermore, this action is to execute 

a rental agreement to demonstrate a continuous multi-metals 

ambient air monitoring system with Cooper Environmental 

Services, LLC for an amount not to exceed $71,000 from the 

Science and Technology Advancement Budget. 

Stationary Source, February 21,2014; Recommended for 

Approval 

RECOMMENDED ACTIONS: 

1. Establish a Rule 1420.1 Special Revenue Fund; 

2. Recognize upon receipt up to $413,451 from Exide Technologies and Quemetco, 

Inc., into the Rule 1420.1 Special Revenue Fund; 

3. Authorize the Chairman to execute a contract with Cooper Environmental Services, 

L LC to conduct a demonstration program for a multi-metals CEMS in an amount not 

to exceed $413,451 from the Rule 1420.1 Special Revenue Fund; 

4. Transfer $71,000 from the Salaries Account, Salaries and Employee Benefits Major 

Object to the Rents and Leases Equipment Account, Services and Supplies Major 

Object in the FY 2013-14 Science and Technology Advancement Adopted Budget; 

and 

VES 019489 
5. Authorize the Chairman to execute a rental agreement to demonstrate a continuous 

multi-metals ambient air monitoring system with Cooper Environmental Services, 

L LC for an amount not to exceed $71,000 from the Science and Technology 

Advancement Budget. 

Barry R. Wallerstein, D.Env. 

Executive Officer 

MMM:PF:RE:JL:DS 

Background 

On January 10, 2014, the Board approved amendments to Rule 1420.1, but deferred the 

provision that affected facilities must implement a multi-metals CEMS demonstration 

project to the March 7,2014 Board meeting. The additional time allowed staff to work 

with the affected facilities, the manufacturer ofthe multi-metals CEMS, and other 

stakeholders. SCAQMD staff initiated discussions with Cooper Environmental 

Services, LLC (Cooper), the only vendor of multi-metals monitoring technology, 

regarding cost and implementation of a demonstration program. SCAQMD and Cooper 

conducted site visits at both affected facilities, Exide Technologies and Quemetco, Inc., 

to determine the locations on the exhaust stacks to place the CEMS and other 

infrastructure requirements. Staff has also conducted site visits at both facilities to 

determine locations for fence-line continuous ambient air monitoring multi-metals 

monitoring systems. Based on the site visits, Cooper has provided price quotes for the 

multi-metals CEMS and the ambient air monitoring system demonstration programs. 

The Cooper Xact 640 CEMS for stack monitoring and Xact 625 system for ambient air 

monitoring use reel-to-reel filter tape sampling and non-destructive X-ray fluorescence 

(XRF) analysis to monitor metal emissions. In one specific installation, U.S. EPA 

approved the Xact 640 system as an alternative method for monitoring emissions at 

stationary sources. In 2011, U.S. EPA evaluated the Xact 625 continuous ambient 

monitoring system through its Environmental Technology Verification Program, and it 

has been used in numerous research applications. 

Proposal 

Rule 1420.1 Multi-Metals CEMS 

Subject to Board adoption of the Proposed Amended Rule 1420.1 multi-metals CEMS 

demonstration program provision, large lead-acid battery recycling facilities would be 

required to fund and participate in a multi-metals CEMS demonstration program that the 

SCAQMD staff proposes to implement. The Xact 640 CEMS and all necessary 

accessories will be delivered, installed, and maintained by Cooper A single CEMS unit 

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VES 019490 
will be deployed and collect data for up to ten months where it will be used at Exide 

Technologies and Quemetco, Inc., in succession. 

This program will include traditional source tests conducted concurrently to evaluate the 

performance of the multi-metals CEMS technology. The complete demonstration 

program, including up to two months of equipment set-up, testing, decommissioning, 

and transfer from one facility to the other, is estimated to last for a period of twelve 

months. This demonstration program will allow for a better understanding of the 

capabilities ofthis technology in monitoring multi-metals on a continuous basis, and 

will not be used for compliance purposes. SCAQMD staff will oversee the multi-metals 

CEMS demonstration program and will conduct the necessary data retrieval, analysis, 

and concurrent source testing. If Proposed Amended Rule 1420.1 is adopted, the 

funding for this CEMS demonstration program will be provided by Exide and 

Quemetco, with in-kind support from SCAQMD for oversight, testing and data analysis. 

Multi-Metals Ambient Air Monitoring Svstem 

Staff proposes to conduct a demonstration of a continuous multi-metals ambient air 

monitoring system near Exide Technologies and Quemetco, Inc. For this program, the 

Xact 625 system will be deployed at each facility for approximately two months in 

succession. The delivery, installation and training for the multi-metals ambient air 

monitoring system will be conducted by Cooper. SCAQMD staff will operate the 

multi-metals ambient air monitoring system and will conduct the necessary data 

retrieval, analysis and reporting. If the demonstration program is successful, staff will 

return to the Board with a recommendation for deployment on a more permanent basis. 

Benefits to SCAQMD 

The multi-metals CEMS demonstration program at Exide Technologies and Quemetco, 

Inc., will satisfy the provision of Proposed Amended Rule 1420.1. Additional 

compliance tools are needed to monitor emissions from large-lead acid battery recycling 

facilities on a continuous basis. This program is necessary to understand and evaluate 

the capabilities of this technology in monitoring metals emissions on a continuous basis 

from metal emitting facilities. Likewise, the continuous multi-metals ambient air 

monitoring system demonstration program will provide an evaluation ofthe capabilities 

ofthis technology in monitoring ambient air metal concentrations, including metals 

derived from fugitive emissions. 

Sole Source Justification 

For the Amended Rule 1420.1 multi-metals stack CEMS and the ambient air monitoring 

multi-metals systems, section VIII.B.2 ofthe Procurement Policy and Procedure 

identifies four major provisions under which a sole source award may be justified. This 

request for a sole source award to Cooper is made under provision B.2.c.(l): the unique 

experience and capabilities ofthe proposed contractor or contractor team, B.2.c.(2) the 

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VES 019491 
project involves the use of proprietary technology, and B.2.c.(3) the contractor has 

ownership of key assets required for project performance. 

Cooper is the original equipment manufacturer of the Xact 640 stack monitoring multimetals CEMS and Xact 625 ambient air monitoring system, and has obtained U.S. 

patents for this technology. They produce the only commercially available continuous 

metals monitoring instruments for stack or ambient applications. Cooper has extensive 

expertise in the development and continued use of this technology and instrumentation 

to monitor multiple metals on a continuous basis. 

Resource Impacts 

The total cost for the Xact 640 CEMS demonstration program, which will not exceed 

$413,451, will be provided by Exide Technologies and Quemetco, Inc., in accordance 

with Proposed Amended Rule 1420.1. Sufficient funding is available for the total cost 

for the continuous multi-metals ambient monitor demonstration, not to exceed $71,000, 

from cost savings realized in Science and Technology Advancement's Fiscal Year 

2013-14 Salaries account. 

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VES 019492 
United States Environmental Protection Agency: Region 5 

Draft Air Pollution Control Title V Permit to Operate 

Issued to Veolia ES Technical Solutions, L.L.C, 7 Mobile Avenue, Sauget, Illinois 

Permit No. V-IL-1716300103-2014-10; Issued October 2014 

Docket ID No. U.S. EPA-R05-OAR-2014-0280 

Comments of Veolia ES Technical Solutions, L.L.C. 

December 17,2014 

VES 019493 
Table of Contents 

I. Introduction 1 

II. Facts in Support of Veolia's Comments 2 

A. Brief Overview of HWC MACT Development and Iterations 2 

B. Basics of HWC MACT Implementation and Compliance 2 

C. Basics ofthe Title V Operating Permit Program 3 

D. The HWC MACT and Title V Do Not Require Region 5's Proposed 

Feedstream Analysis Procedures or Multi-Metals Continuous 

Monitoring Requirements 4 

HI. Facts in Support of Veolia's Comments 5 

A. Relevant Regulatory and Procedural History Concerning Veolia's 

Title V Permit 5 

1. 1995 through 2003: Initial Title V Application & Test Plans for 

MACT Compliance 5 

2. 2004 through 2005: Sierra Club Suit vs. USEPA & Initial MACT 

Compliance 6" 

3. 2006 through 2007: Sierra Club Sues USEPA Again & USEPA 

Takes Over the Title V 6 

4. 2008: Performance Testing for Metals & Issuance of Veolia's 

Title V Permit 8 

5. 2009 through 2010: Proposed CEMS and Special Waste Analysis 

Procedures 12 

6. 2011 through 2013: NEIC Inspection & No Progress on 

Significant Modification 15 

B. Relevant Regulatory and Procedural History Concerning Veolia's 

RCRA Part B Permit 18 

1. 1997 through 2003: Initial RCRA Part B Permit, Renewal, and 

Risk Assessment 18 

2. 2005 through 2013: Veolia Risk Assessment, Permit Issuance & 

RCRA Permit Appeal 19 

IV. Veolia's Comments 24 

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VES 019494 
A. Region 5 Has Exceeded its Authority to "Assure Compliance" Under 

the Clean Air Act by Requiring Veolia to Implement Supplemental 

Feedstream Analysis Procedures and Install Multi-Metals CEMS 24 

1. Veolia's Existing Feedstream Analysis Procedures Are Sufficient 

and Region 5 Has Exceeded Its Authority by Arbitrarily and 

Capriciously Determining Otherwise 27 

2. The Monitoring Requirements of the HWC MA CT Are Sufficient 27 

3. 40 C.F.R. § 63.1209(g)(2) Does Not Authorize Region 5's Decision 

to Force Veolia to Install Multi-Metals CEMS 29 

4. Section 114 of the CAA Does Not Authorize Region 5 's Permitting 

Decision 32 

5. The Multi-Metals CEMS As Imposed on Veolia Is Not a 

Parametric Monitor 33 

B. Region 5 is Arbitrarily and Capriciously Requiring the Use of an 

Unproven Technology (i.e., a multi-metals CEMS) to Verify a Proven 

and Required Means of Compliance (i.e., the OPLS and FAP) and the 

Agency Has Improperly Modified the Process for Alternative 

Monitoring 34 

C. Region 5 Failed to Analyze or Consider the Efficacy of Multi-Metals 

CEMS and Demonstrated Bias as Evidenced by its Collusion with 

Cooper 38 

D. Region 5 is Unreasonably and Unfairly Requiring Veolia to Install 

Multi-Metals CEMS 45 

1. Veolia Is a Small Source of Mercury Emissions In the St. Louis 

Area 45 

2. Veolia's MACT Metals Emissions Are Below the HWC MACT 

Limits by a Margin of Safety 46 

3. The Requirement of the Xact CEMS Saddles Veolia with 

Unwarranted Cost 46 

4. Region 5's Requirement that Veolia Install the Xact CEMS Places 

Veolia at an Unfair Competitive Disadvantage 48 

5. Region 5 's Draft Permit Condition Requiring the Installation of 

Multi-Metals CEMS Within 365 Days Is Impractical 49 

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VES 019495 
6. USEPA Should Promulgate a National Standard That Attempts to 

Impose Multi-Metal CEMS On All Hazardous Waste Combustors 51 

E. Region 5's Representations Concerning Multi-Metals CEMS 

Technology are Incorrect, Misleading and Unsubstantiated 53 

1. Veolia's Comments on §5.3.1 (Overview of Requirements) 53 

2. Veolia's Comments on §5.3.2, "Multi-Metals CEMS and 

Feedstream Analysis " 56 

3. Veolia's Comments on §5.3.3, "Deficiencies in Veolia's Current 

Emissions Monitoring Procedures " 57 

(i) Region 5 incorrectly views as a deficiency the fact that 

Veolia's October 2013 comprehensive performance tests 

revealed that Veolia's three incineration units have 

significantly different emissions that may not be linear 57 

(ii) Veolia's CPT results demonstrate compliance while 

generating emissions under the worst case operating 

conditions for the particular combination of wastes 

incinerated and combustion conditions at the time ofthe 

test 58 

4. Veolia's Comments on §5.3.4, "Availability of Multi-Metals 

CEMS" 58 

5. Veolia's Comments on §5.3.5, "Performance Specifications for the 

Multi-Metals CEMS" 63 

F. The Proposed Methodology for Measuring Beryllium Shows that 

Region 5's Requirement for the Installation of Multi-Metals CEMS Is 

Arbitrary and Capricious 65 

G. Region 5's Permitting Decision to Use Multi-Metals CEMS is Not 

Supported by Substantial Evidence 66 

1. The Xact 640 Multi-Metals CEMS Has Never Been Tested or 

Installed on Incinerators with Dry Pollution Control Systems such 

as Those at Veolia 66 

2. Veolia Has Offered Unrefuted Evidence that the Xact 640 MultiMetals CEMS Will Not Work and Is Inappropriate to be Used as a 

Temporary Continuous Parametric Monitoring System at Veolia 66 

(i) The Xact 640 as proposed in Veolia's draft Title V Permit 

is not a temporary Continuous Parametric Monitoring 

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VES 019496 
System nor should it be used as evidence of compliance 

with the HWC MACT 67 

(ii) The Xact 640 has not been demonstrated to be reliable for 

measuring the content of stack emissions from a 

commercial hazardous waste incinerator 68 

(iii) The Xact 640 technology fails to obtain a representative 

sample 71 

(iv) The Xact 640 technology has not been calibrated against a 

QAG that represents the process conditions at Veolia 73 

(v) The Xact 640 technology is a historical failure when 

applied to stack emission monitoring at the locations 

identified by USEPA 74 

(vi) Region 5's actions in requiring the installation of Cooper's 

Xact 640 CEMS are unprecedented and should be 

investigated further 75 

H. Region 5 Is Arbitrarily and Capriciously Using Unsubstantiated 

Enforcement Allegations to Deny Veolia a Permit Shield and Support 

Unnecessary Multi-Metals CEMS and Feedstream Analysis 

Requirements 76 

1. The Findings of Violation Issued to Veolia Are Unsubstantiated 76 

(i) The August 24, 2012 FOV 78 

(a) Veolia's Alleged Failure to Provide Information 

Pursuant to the March 2010 Information Requests 79 

(b) Allegation that Veolia Failed to Establish and 

Abide by Appropriate OPLs for Mercury Emissions 85 

(c) Allegation that Veolia Failed to Appropriately 

Analyze Certain Waste Streams 86 

2. Alleged Referrals by the IEPA to the Illinois Attorney General 90 

I. The Administrative Procedures USEPA Is Employing Violate Veolia's 

Due Process Rights 91 

J. Specific Section-by-Section Comments 92 

1. Region 5's Statement of Basis Contains Errors and Inaccuracies 92 

2, Region 5 's Draft Permit Must Be Revised 99 

- v -

VES 019497 
K. Region 5's Statement ofBasis Is Contradictory and Does Not Support 

the Conclusions Contained Therein 110 

L. Region 5's Discussion of Environmental Justice Considerations 

Contains Inaccurate, Misleading, Prejudicial and Conflicting 

Information 113 

M. USEPA's Notice failed to comply with the requirements of § 

71.11(d)(4) 115 

N. Veolia's Specific Incorporation of Other Public Comments 115 

V. Conclusion 116 

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VES 019498 
United States Environmental Protection Agency: Region 5 

DRAFT Air Pollution Control Title V Permit to Operate 

Issued to Veolia ES Technical Solutions, L.L.C, 7 Mobile Avenue, Sauget, Illinois 

Permit No. V-IL-1716300103-2014-10; Issued October 2014 

Docket ID No. U.S. EPA-R05-OAR-2014-0280 

Comments of Veolia ES Technical Solutions, L.L.C. 

I. Introduction 

Veolia ES Technical Solutions, L.L.C. ("Veolia") operates a commercial hazardous waste 

incineration facility in Sauget, Illinois. Veolia's facility is subject to regulation under the Clean 

Air Act ("CAA") and must maintain a valid operating permit to carry on its business. Although 

most facilities like Veolia's are permitted by state agencies with delegated authority under the 

CAA, Veolia is permitted by the USEPA, and more specifically, USEPA Region 5 located in 

Chicago ("Region 5"). As set forth in detail in Part II below, Veolia and Region 5 have had a 

complex and sometimes difficult relationship. Region 5 issued Veolia's first Title V operating 

permit in September of 2008. That initial permit was good for five years. Pursuant to Title V, 

Veolia applied for a renewal to its operating permit in April of 2013. In October of 2014, Region 

5 issued a draft permit to Veolia ("2014 Draft Permit") that is the subject of these comments. 

Veolia needs a valid Title V permit to continue its operations. Thus, Veolia appreciates Region 

5's consideration of Veolia's renewal application and Region 5's issuance of the 2014 Draft 

Permit. However, a renewed permit does not do Veolia any good if it is so onerous—particularly 

when compared to the permit obligations of Veolia's direct competitors in Region 5—as to 

threaten the continued viability of Veolia's current business. 

Under accepted administrative law principles, an agency's permitting decision is arbitrary and 

capricious "if the agency has relied on factors which Congress has not intended it to consider, 

entirely failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. 

Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Luminant 

Generation Co., L.L.C. v. U.S. E.P.A., 675 F.3d 917, 925 (5th Cir. 2012). As set forth in detail in 

Veolia's comments below, Region 5's permitting decision, and the conditions ofthe 2014 Draft 

Permit, are arbitrary and capricious under this standard. 

Region 5 should withdraw, delete, amend, further explain, and otherwise revise the conditions of 

the 2014 Draft Permit and its accompanying supporting documents as set forth below to ensure 

that Veolia ultimately receives a final operating permit that is considered, reasonable, and fair. 

VES 019499 
II. Facts in Support of Veolia's Comments 

A. Brief Overview of HWC MACT Development and Iterations 

Hazardous Waste Combustors ("HWCs") are regulated under § 112 of the Clean Air Act 

("CAA"). HWCs include the following hazardous-waste burning sources: incinerators, cement 

kilns, lightweight aggregate kilns, boilers, process heaters, and hydrochloric acid production 

furnaces. EPA first proposed air-emission rules for hazardous waste incinerators like Veolia in 

1981 under their RCRA authority. See 40 C.F.R. Parts 264 & 265. In 1999, EPA issued the first 

Maximum Achievable Control Technology ("MACT") rule for certain HWCs, including 

hazardous waste incinerators. See 64 Fed. Reg. 52,828 (Sept. 30, 1999). The air emission 

sources under the 1999 HWC MACT are referred to as "Phase I" sources. The 1999 HWC 

MACT set air emission limits for numerous hazardous air pollutants ("HAPs"), including: 

dioxin/furans, mercury, semi-volatile metals ("SVMs"), low-volatility metals ("LVMs"), 

hydrogen chloride and chlorine gas. 

Shortly after USEPA issued the 1999 HWC MACT, industry and environmental groups 

challenged the rules for diverse reasons. On July 24, 2001, the United States Court of Appeals 

for the District of Columbia Circuit vacated the rules. However, before doing so, the Court 

allowed USEPA to promulgate interim standards. On February 13, 2002, the Agency published 

interim standards to regulate air emissions from Phase I HWCs until permanent replacement 

standards could be developed and finalized. See 67 Fed. Reg. 6,792 (Feb. 13, 2002). As part of 

this process, USEPA also entered into a settlement agreement with the challenging parties to 

issue standards for both Phase I and Phase II sources by September of 2005. 

USEPA published a revised HWC MACT rule for public comment on April 20, 2004. See 69 

Fed. Reg. 21,198 (Apr. 20, 2004). The Agency published the final "replacement" HWC MACT 

in October of 2005. See 70 Fed. Reg. 59, 402 (Oct. 12, 2005). The 2005 HWC MACT included 

HAP limits for both Phase I and Phase II sources of emissions. In 2005 and 2006, the cementindustry filed petitions to reconsider certain aspects of the rule as applied to cement kilns. The 

granted one of these petitions in March of2006; however, the issue was subsequently resolved 

without further amendment to the rule. All hazardous waste incinerators had to show they were 

in full compliance with the requirements ofthe 2005 HWC MACT by October 14, 2008. 

B. Basics of HWC MACT Implementation and Compliance 

USEPA created the HWC MACT emissions limits for hazardous waste incinerators using the 

"MACT floor" process authorized by § 112(d) ofthe Clean Air Act ("CAA"). The process is 

called the "MACT floor" because it determines a baseline limit of emissions. The MACT limits 

can be more stringent than this limit, but cannot be more lenient—hence the "floor." To 

implement the MACT floor for incinerators, USEPA constructed a database of existing 

incinerators subject to the rule. USEPA then ranked each incinerator based on the results of 

performance tests—i.e., actual sampling of HAPs being emitted from the incinerator's stacks 

during certain test conditions. The Agency then selected the top 12% of performers from the 

database (those with the lowest emissions during tests). From this subset, USEPA then 

calculated the average emission level. USEPA then set this average emission level as the MACT 

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VES 019500 
floor. Thus, the HAPs emission limit for hazardous waste incinerators, including those for 

metals—mercury, LVMs, and SVMs—are based on actual emissions achieved during 

performance testing. See generally 70 Fed. Reg. at 59,419; Office of Air Quality Planning & 

Stnds., EPA, Guidelines for MACT Determinations under §112® Requirements (Feb. 2002) at 

www.epa.gov/ttnatw01/112j/guidance.pdf. 

In addition to playing the central role in creating the emissions limits under the HWC MACT, 

performance tests also are the primary method by which sources verify compliance with the 

standards. Under 40 C.F.R. § 63.1206(b)(2) and § 63.1207, sources are required to conduct 

comprehensive performance tests to "demonstrate compliance with the emission standards ... 

[and] ... establish limits for ... operating parameters." See 40 C.F.R. § 63.1207(b). Veolia and 

other hazardous waste incinerators run comprehensive performance tests ("CPTs") every five 

years to ensure their emissions are under the emissions limits. They also use the test data from 

the CPT to calculate operating parameter limits ("OPLs") that they use to govern the operation of 

the incinerator in the time between tests. Through the CPT process, the OPLs are set at a level 

that ensures that the incinerator will not exceed the emission limits. A "feedrate" limit is one of 

several OPLs because it dictates how much waste can be fed into an incinerator over a given 

time period. For example, Veolia's OPL for mercury for Unit No. 4 is .040 lbs/hour (measured 

over a 12-hour rolling average). Thus, at Unit No. 4, Veolia cannot incinerate waste containing 

more than .040 pounds of mercury in any given 12 hour period. 

To comply with its OPLs, a source must also analyze the waste before it is burned to determine 

its makeup. This process is carried out under 40 C.F.R. § 63.1209(c), which provides: "Prior to 

feeding the material, you must obtain an analysis of each feedstream that is sufficient to 

document compliance with the applicable feedrate limits." 40 C.F.R. § 63.1209(c)(1). The 

analysis process is directed by a source's feedstream analysis plan ("FAP"). See id. 

§63.1209(c)(2). A source's FAP must specify: 

• The parameters that will be used to analyze each waste stream; 

• Whether the analysis will come from sampling or from other information about the waste 

(such as generator knowledge); 

• How the data will be used to ensure compliance with the OPLs; 

• What test methods will be used to analyze the waste; 

• How the samples will be taken; and 

• How often the sampling and analysis will be repeated. 

See id. § 63.1209(c)(2)(i)-(vi). In short, the FAP sets up the protocol for sampling and analyzing 

waste streams so that the incinerator operator knows what the waste contains and therefore can 

make sure to burn the waste in accordance with the OPLs. 

C. Basics of the Title V Operating Permit Program 

Title V of the 1990 Amendments to the Clean Air Act required the establishment of a nationwide 

air emissions operating permit program ("the Title V Program"). See 42 U.S.C. §§ 7661-7661f; 

40 C.F.R. parts 70-71. The Title V Program was created to incorporate all of the CA A 

requirements appliable to an air emissions source into a single document. The original goal of 

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VES 019501 
the Title V program was to have each state develop their own permit program that complied with 

the provisions of 40 C.F.R. part 70. The "Part 70 Rules" set up the requirements for states to 

follow and tasked individual sources with applying to their appropriate state permitting authority 

for a Title V permit to operate. While almost all states run Title V permit programs that are 

approved by the Agency, USEPA maintained the authority to act as the permitting authority in 

certain circumstances. The Agency proposed rules to carry out this permitting function in 1996 

and finalized them in 1999. See 64 Fed. Reg. 8,247 (Feb. 19, 1999). These rules were codified 

in 40 C.F.R. part 71 ("Part 71 Rules") and are analogous to the Part 70 requirements. 

Importantly, the Title V Program was created to collect all of the emission limits, standards, and 

record-keeping, monitoring, and reporting requirements applicable to a source in one permit. 

The Title V Program was not created as a vehicle for imposing additional standards and the 

permitting authority cannot impose new substantive requirements under the guise of monitoring. 

See Sierra Club v. EPA, 536 F.3d 673, 675 (D.C. Cir. 2008). However, this particular part ofthe 

Title V Program—specifically, the question of when is it appropriate for the permitting authority 

to include additional monitoring requirements to "assure compliance"—has been very 

controversial. In fact, the USEPA has been on both sides ofthis issue. The Agency has 

proposed rules and guidance that supported a permitting authority's ability to add substantive 

permitting requirements1 and has vigorously opposed the ability of a permitting authority to 

impose such requirements.2 Only after a suit by the Sierra Club overturned the Agency's 2006 

rule forbidding state permitting authorities from including additional monitoring requirements in 

Title V permits did the Agency adopt its current interpretation that such requirements are 

permissible under 40 C.F.R. § 70.6(c)(1) and § 71.6(c)(1). Yet, even under USEPA's current 

view, a monitoring requirement must be necessary to assure compliance to be valid. See General 

Electric Lighting v. Koncelik, No. 05AP-310 & 323, 2006 WL 832527 (Ohio Ct. App., Mar. 31, 

2006). 

D. The HWC MACT and Title V Do Not Require Region 5's Proposed 

Feedstream Analysis Procedures or Multi-Metals Continuous Monitoring 

Requirements 

As set forth above, the HWC MACT provides the substantive emissions requirements that 

sources like Veolia have to meet, and the Title V Program collects those and all other applicable 

C A A requirements in one enforceable and comprehensive document—the operating permit. 

Veolia received its Title V operating permit from USEPA in 2008 and, as required by the Part 71 

Rules, applied for a renewal ofthis permit in 2013. Region 5 has in this administrative action 

proposed a renewed draft permit for Veolia. In doing so, Region 5 has decided to include two 

additional sources of monitoring that were not included in Veolia's 2008 Title V permit: (1) a 

series of onerous additions to Veolia's Feedstream Analysis Plan ("FAP") and (2) the installation 

of a multi-metals continuous emissions monitoring system ("CEMS"). As detailed in the Parts 

1

 See USEPA, Periodic Monitoring Guidance for Title V Operating Permits Programs (Sept. 15, 1998), vacated by 

Appalachian Power v. EPA, 208 F.3d 1015 (D.C. Cir. 2000). 

2

 See Final Rule Interpreting the Scope of Certain Monitoring Requirements for State and Federal Operating Permit 

Programs, 71 Fed. Reg. 75,422 (Dec. 15, 2006), vacated by Sierra Club v. EPA, 536 F.3d 673, 675 (D.C. Cir. 2008). 

. 4 . 

VES 019502 
that follow, these additional sources of monitoring are not set forth (or even mentioned) in either 

the HWC MACT or the Title V regulations, are not authorized by these standards, and are, in 

fact, wholly unnecessary to assure Veolia's compliance with the CAA and should be removed. 

III. Facts in Support of Veolia's Comments 

As noted above, prior to the HWC MACT Rule, HWC air emissions were primarily regulated 

under rules promulgated under RCRA. Generally, RCRA provides for "cradle-to-grave" 

management of hazardous wastes—from generation to storage to disposal. Because Veolia 

disposes of hazardous waste by incineration, RCRA controls how wastes at the facility are 

stored, analyzed, and fed into the incineration units. Upon incineration, wastes are converted 

into ash, which is regulated under RCRA, or into air emissions, which are regulated by the CAA. 

Because air emissions are generally controlled by monitoring or restricting how much and what 

types of waste are fed into the incinerators, there is overlap between the regulatory schemes. 

Therefore, USEPA promulgated the HWC MACT under the authority of both the CAA and 

RCRA. See 64 Fed. Reg. at 52,991. 

In light of this regulatory background—i.e., the intertwining of the HWC MACT Rule 

requirements and RCRA—it is necessary to first understand Veolia's path through each of these 

regulatory processes over the past several years in order to properly consider and evaluate 

Veolia's comments on the Draft Permit. Thus, a chronology of Veolia's compliance is set forth 

in the sections below. 

A. Relevant Regulatory and Procedural History Concerning Veolia's Title V 

Permit 

1. 1995 through 2003: Initial Title V Application & Test Plans for MACT 

Compliance 

Veolia submitted its original Title V permit application to IEPA on September 7, 1995. Illinois 

Environmental Protection Agency ("IEPA") deemed Veolia's application administratively 

complete the following month, in October of 1995. Nearly eight years later, on June 6, 2003, 

IEPA finally issued a draft Title V permit for public comment. The public comment period on 

this draft permit ended on September 12, 2003, and IEPA sent a revised draft permit to the 

United States Environmental Protection Agency ("USEPA") on November 6, 2003, for review. 

USEPA did not issue any comments on IEPA's revised draft Title V permit. Harris Aff. at VES 

008384. 

In December of 2003, in compliance with the interim HWC MACT Rule, Veolia submitted a 

Comprehensive Performance Test and Continuous Monitoring System Performance Evaluation 

Test Plan ("2003 CPT Plan") to the IEPA and USEPA. The 2003 CPT Plan outlined the 

procedures for conducting Comprehensive Perfonnance Tests ("CPTs") on Veolia's three 

incineration units—Units 2, 3, and 4. In addition to setting forth the CPT parameters for 

compliance with the HWC MACT, the 2003 CPT Plan included Veolia's proposal to use data-inlieu and extrapolation of LVM , SVM, and mercury feedrates to establish its OPLs as expressly 

allowed under 40 C.F.R. § 63.1207(c)(2), for data-in-lieu, and under 40 C.F.R. 

§63.1209(n)(2)(vii) and 40 C.F.R. § 63.1209(l)(l)(v) for LVM/SV M and mercury feedrate 

- 5 -

VES 019503 
extrapolation, respectively. Veolia stated its intention to use data-in-lieu and extrapolation with 

the IEPA and USEPA during meetings held with both agencies on January 22, 2003, and April 

24, 2003, and neither objected. Harris Aff. at VES 008384-008385. 

2. 2004 through 2005: Sierra Club Suit vs. USEPA & Initial MACT 

Compliance 

On February 18, 2004, the Sierra Club petitioned USEPA, 3 pursuant to § 505(b)(2) ofthe CA A 

and 40 C.F.R. § 70.8(d), to make a decision on Veolia's Title V permit application. USEPA did 

not respond to the Sierra Club's petition. 

On June 30, 2004, Veolia placed a Document of Compliance ("2004 DOC") in its Operating 

Record establishing its compliance with the HWC MACT Rule. The 2004 DOC also set forth 

information regarding the use of data-in-lieu and extrapolation to establish the Sauget Facility's 

OPLs. See 2004 DOC at VES 001918-002196. 

The Sierra Club, on August 2, 2005, sued USEPA, once again seeking to force USEPA to make 

a decision on Veolia's Title V permit application. See Sierra Club, et al. v. Johnson, Case No. 

05-C-4425 (N.D. 111. Aug. 2, 2005), VES 004597-004628. 

On September 28, 2005, Veolia submitted a Notification of Compliance with the HWC MACT 

Rule ("2005 NOC") for all three incinerators, utilizing data-in-lieu for previous test results on 

units 2, 3 and 4 and extrapolation to establish OPLs for LVMs, SVMs, and mercury. See 2005 

NOC at VES 002197-002296. At this point, Veolia had not received any comment from either 

USEPA or IEPA regarding its submission ofthe 2003 CPT Plan. Rather, the first time any 

agency communicated with Veolia regarding the substantive portions of the 2003 CPT Plan was 

in April of 2006, as discussed below. 

3. 2006 through 2007: Sierra Club Sues USEPA Again & USEPA Takes 

Over the Title V 

On February 1, 2006, pursuant to a consent decree between USEPA and the Sierra Club 

resolving the Sierra Club's August 2, 2005, lawsuit, USEPA partially granted the Club's petition 

and directed IEPA to reassess certain aspects ofthe draft Title V permit for Veolia that IEPA 

issued in 2003. Further, USEPA directed IEPA to issue a revised permit within 90 days. 

On April 5, 2006, Veolia met with IEPA regarding Veolia's pending Title V permit. At that 

meeting, IEPA stated that Veolia had submitted sufficient information to document MACT 

compliance for incinerator Units 2 and 4. However, IEPA for the first time stated that it 

disagreed with Veolia's use of data-in-lieu to establish limits regarding incineration Unit 3. In 

addition, IEPA insisted that Veolia conduct performance testing on Unit 3 as soon as possible. 

Thus, in May and June of 2006, at significant additional expense due to the short time period 

3

 Pursuant to § 505(b)(2) of the Clean Air Act, a petitioner is required to provide notice to the permittee of 

challenges under the Section. See 42 U.S.C. § 7661d(b)(2). However, the Sierra Club failed to provide Veolia any 

notice of its challenge. 

- 6 -

VES 019504 
allowed for testing by IEPA, Veolia performed MACT compliance testing on Unit 3 

individually. Harris Aff. at VES 008385. This testing demonstrated that the unit met all 

applicable MACT standards, including those for LVMs, SVMs, and mercury. See Veolia's June 

2006 Test Report for Unit 3 at VES 002297-002441. 

IEPA failed to issue a revised Title V permit by the deadline specified in the USEP A/Sierra Club 

consent decree. In July of 2006, the Sierra Club again filed suit against USEPA in the United 

States District Court for the Northern District of Illinois in an attempt to force USEPA to issue a 

revised Title V permit to Veolia. See Sierra Club, et al. v. Johnson, Case No. 06-cv-4000 (N.D. 

111. July 27, 2006). 

USEPA's answer to the Sierra Club's complaint was due on September 29, 2006. Two days 

before the answer was due, on September 27, 2006, USEPA issued its first Finding of Violation 

("FOV") to Veolia. VES 004670-004679. The September 2006 FOV alleged violations of 

RCRA ("Resource Conservation and Recovery Act") and the CAA. Then, on the day the 

Agency's answer was due, September 29, 2006, USEPA notified Veolia by letter that USEPA 

would now be the Agency in charge of issuing Veolia's long-delayed Title V permit. See Mem. 

Op. & Order at 4, ECF No. 29, Sierra Club, et al. v. Johnson, Case No. 06-cv-4000 (N D. 111. 

May 21, 2007), attached as VES 004680-004688. USEPA subsequently attempted to dismiss the 

Sierra Club's claims as moot by arguing that the Agency had taken the action required by the 

C AA (and sought by the Sierra Club) by taking over the permitting action from IEPA. See id. 

However, the Court denied the Agency's motion to dismiss and ordered USEPA to report to the 

Court the date by which it would issue or deny Veolia's Title V permit. Id. at 9. 

On October 23, 2006, Veolia met with USEPA regarding the September 2006 FOV. (The FOV 

did not require Veolia to submit a response or take other specific corrective action, rather it 

provided Veolia with an opportunity to meet with USEPA to discuss the allegations.) At the 

meeting, Veolia provided a significant amount of information specifically disputing the 

allegations contained in the FOV. At the conclusion of the meeting, USEPA personnel 

committed to providing a response to the information provided by Veolia. However, USEPA has 

never provided such a response to Veolia. Harris Aff. at VES 008385. 

After taking over the Title V permitting authority, USEPA required Veolia to submit a new 

application for a Title V permit, including information related to Veolia's compliance with the 

MACT standards. USEPA set September 29, 2007, as the deadline for that application to be 

submitted. Harris Aff. at VES 008385-008386. However, in April of 2007 USEPA notified 

Veolia that it must submit the application by May 2, 2007, effectively shortening the remaining 

application period to one month. Harris Aff. at VES 008385-008386. Nevertheless, Veolia 

timely submitted a new Title V permit application on May 2, 2007. The application was deemed 

administratively complete on June 13, 2007. Harris Aff. at VES 008385-008386. 

Subsequently, USEPA entered into a settlement agreement with the Sierra Club. Then, on June 

18, 2007, the USEPA filed a notice with the Court stating that the Agency had decided to 

undertake a de novo review of Veolia's Title V permit application and would issue or deny the 

- 7 -

VES 019505 
Title V permit on or before November 2, 2008 (i.e., within 18 months of receiving Veolia's 

completed application).4 See Notice Re. Federal Title V permit Proceedings at 2, ECF No. 44, 

Sierra Club, etal. v. Johnson, Case No. 06-cv-4000 (ND. 111. June 18, 2007), attached as VES 

004689-004692. 

4. 2008: Performance Testing for Metals & Issuance of Veolia's Title V 

Permit 

On February 22, 2008, USEPA issued the first of a series of §114 information requests to Veolia 

pertaining to Veolia's compliance with the HWC MACT Rule. See February 2008 Information 

Requests, at VES 002442-002460. Even though Veolia had demonstrated compliance with the 

MACT standards by using data-in-lieu and testing Unit 3 in 2006, the February 2008 Information 

Requests directed Veolia to submit a new CPT Plan in 45 days and conduct CPTs on all three 

incinerators by July 15, 2008 (i.e., perform stack testing for all MACT air pollutants by July 15, 

2008). See Id at VES 002450. The February 2008 Information Requests specifically prohibited 

Veolia from requesting to use data-in-lieu methodology under 40 C.F.R. § 63.1207(c)(2). Id. at 

VES 002450. 

The February 2008 Information Requests also contained USEPA's first comments to Veolia 

concerning the 2003 CPT Plan—over four years after Veolia first submitted the Plan to the 

Agency. (40 C.F.R. §63.1207(e)(1)(A) directs the USEPA to notify an emission source of its 

approval or intent to deny a CPT Plan within 9 months of receiving it.) Upon receipt of the 

February 2008 Information Requests, Veolia entered into negotiations with the Agency regarding 

the infeasibility of developing the CPT plans, obtaining Agency approval, hiring a CPT 

contractor, completing CPTs on all three incinerators, and submitting final reports for the CPTs 

by July 15, 2008. 

On March 3, 2008, USEPA sent a letter to Veolia enclosing a "preliminary" draft Title V permit 

and asking Veolia to submit any informal comments it had on the draft permit by April 15, 2008. 

See Veolia's March 3, 2008 Response at VES 004693-004694. USEPA also stated that it could 

not calculate OPLs (for mercury, LVMs, and SVMs) to include in the draft permit because of 

"flaws" the Agency allegedly identified in the data submitted by Veolia. USEPA further stated 

that these same alleged "flaws" were previously identified by IEPA and that IEPA had shared 

these with Veolia. 

On March 10, 2008, Veolia submitted a formal written response to the February 2008 

Information Requests. See Veolia's March 10, 2008 Response at VES 004695-004706. In its 

response, Veolia agreed to conduct the testing requested by USEPA but stated that it could not 

do so by July 15, 2008. Veolia further supported this assertion by attaching an affidavit from 

Craig Doolittle of ENSR Corporation (Veolia's stack-testing contractor) that provided that it was 

infeasible to plan and perform testing that would normally take a year or more, in less than five 

months. 

4

 Since Veolia's application was deemed complete by USEPA in June of 2007, Veolia has paid Title V permit fees 

to both IEPA and USEPA annually. 

- 8 -

VES 019506 
On March 11, 2008, Veolia responded to USEPA's March 3, 2008, letter regarding the alleged 

"flaws" in Veolia's data. Veolia stated that IEPA had never advised Veolia of any "flaws" either 

during meetings held between Veolia and IEPA in April of 2006 or at any other time. Veolia 

further stated that it continued to believe in the accuracy and integrity of the data provided in 

support of its Title V application. See Veolia's March 11, 2008 Letter at VES 004708-004709. 

In a meeting with USEPA on March 13, 2008, Veolia presented its concerns regarding the 

extremely short time period that it was given to complete the performance testing required by the 

February 2008 Information Requests. At the meeting, USEPA acknowledged that the schedule 

included in the February 2008 Infonnation Requests was unrealistic in light of the time needed to 

plan, prepare, and perform the CPTs. Harris Aff. at VES 008386. Veolia agreed to propose an 

alternative, more practical, schedule and submit it to the USEPA. Veolia's proposed schedule 

stated that the CPTs would be completed between August of2008 and April of 2009. See 

Veolia's March 21, 2008 email (transmitting Veolia's proposed CPT schedules) at VES 004710-

004720. However, USEPA rejected the proposed schedule. 

After further discussion and investigation by USEPA, Agency personnel decided that they did in 

fact have valid test data to develop OPLs for all three incinerators for the MACT emission 

standards for particulate matter ("PM"), HCL/C12, dioxins/furans, and DRE but wanted Veolia to 

conduct performance tests to develop OPLs for mercury, LVMs, and SVMs. In other words, 

USEPA limited the stack testing to just metals regulated under the HWC MACT Rule. This 

metals data would then be used by USEPA to issue a revised Title V permit. Veolia again 

expressed concern regarding the performance of this testing on three incinerators in a very 

compressed time period. 

In an April 25, 2008, telephone conference call, Veolia was informed by USEPA that, in order to 

address the need to demonstrate compliance with the HWC MACT, Veolia had to choose either 

to complete the MACT metals testing as directed by the USEPA, pursuant to the Agency's very 

tight time frame, or alternatively to choose one of four options addressing MACT metals for 

inclusion in the Title V permit. The four options presented to Veolia were: 1) cease incinerating 

any wastes containing MACT metals; 2) install CEMS for mercury; 3) accept OPLs developed 

by USEPA (USEPA Land to assist USEPA Air); or 4) settle previously discussed compliance 

concerns with issue resolution incorporated into the Title V permit.5 After negotiations, 

Veolia—although knowing that conducting performance testing within this expedited time 

period would be challenging and result in increased costs and, more importantly, increased risk 

of calculation error as a result of reduced QA/QC review time—chose, with the agreement of 

USEPA, to conduct the metals performance testing instead of one of the four alternatives 

presented by the Agency. Veolia agreed to expedite the delivery of the metals performance test 

plans and USEPA agreed to review the test plans in two weeks. In phone conferences held on 

May 12 and 14, 2008, the parties discussed details of the testing and USEPA agreed to 

memorialize the agreement by issuing revised information requests such that Veolia would only 

be required to perform emission testing for mercury, LVMs, and SVMs ("MACT metals"). 

Harris Aff. at VES 008386. 

5

 The issue resolution proposal related to the allegations of the September 2006 FOV. 

- 9 -

VES 019507 
Pursuant to this agreement, USEPA issued a revised §114 information request on June 5, 2008 

(the same day USEPA issued Veolia's draft Title V permit). See June 2008 Information 

Requests at VES 004721-004733. The June 2008 Information Requests required Veolia to, 

among other things: commence performance testing for LVMs, SVMs, and mercury by no later 

than August 15, 2008; submit the results of this testing in a Notification of Compliance ("NOC") 

by September 26, 2008; and submit an application for significant modification to its Title V 

permit (to include the OPLs for LVMs, SVMs, and mercury developed by the metals testing in 

the Title V permit) by September 26, 2008. (On or about June 11, 2008, USEPA and the Sierra 

Club settled the July 2006 lawsuit with a consent decree that required USEPA to issue a formal 

permit decision on Veolia's Title V permit by September 12, 2008—thus, Veolia knew that a 

Title V permit would be issued in September without OPLs for metals and that it would be 

required to submit an application for significant modification to add the OPLs for metals later.) 

On June 12, 2008, USEPA issued a Finding of Violation to Veolia ("June 2008 FOV"). June 

2008 FOV at VES 004734-004739. The FOV alleged that Veolia had exceeded its feedrate 

limits. The Agency also inaccurately alleged that Veolia had failed to request approval ofthe 

extrapolation method included in the 2003 CPT plan. The Agency asserted that Veolia had 

exceeded its feedrate limits because Veolia had operated pursuant to the extrapolated OPLs. 

However, the FOV did not provide any detail concerning when and how the OPL violations may 

have occurred or how Veolia had failed to garner the appropriate approval of its extrapolation 

methodology. Further, the June 2008 FOV did not require Veolia to take any corrective actions 

or to submit a written response. 

A public hearing was held concerning the draft Title V permit on July 8, 2008. Several 

prominent public figures from across the Southern Illinois region attended the hearing and spoke 

in support of Veolia's facility. See generally June 2008 Public Hearing Transcript at VES 

004740-004811. 

Veolia was required to submit a performance test plan for USEPA approval prior to performing 

the metals testing memorialized in the June 2008 Information Requests. The February and June 

2008 Information Requests specifically prohibited Veolia from requesting to use data-in-lieu; 

however, the requests did allow Veolia to request to use an extrapolation methodology to 

calculate the feedrates for LVMs, SVMs, and mercury. See February 2008 Information Requests 

at VES 002450-002457; June 2008 Information Requests at VES 002481. 

Before including an extrapolation method in its metals test plan, Veolia discussed extrapolation 

methods with Mr. Charles Hall, a USEPA Region 5 environmental engineer. As a result of these 

discussions, Mr. Hall provided Veolia with an extrapolation protocol that USEPA had previously 

approved for use by Lubrizol Corporation (a corporation also regulated by Region 5) ("Lubrizol 

Extrapolation Methodology"). Harris Aff. at VES 008387. Veolia incorporated the approved 

Lubrizol Extrapolation Methodology into the metals test plan that Veolia submitted to USEPA in 

accordance with the June 2008 Information Requests. See Metals Performance Test Plans at 

VES 002487-002707. 

- 10-

VES 019508 
USEPA approved the general parameters of the metals test plan in a letter sent to Veolia dated 

August 8, 2008. See USEPA's Aug. 8, 2008 Letter at VES 002709-002712. However, in 

response to Veolia's proposal to use the extrapolation method that USEPA Region 5 had 

previously approved for use by Lubrizol, the Agency stated that it neither "approved nor 

disapproved" of Veolia's metals feedrate extrapolation. See id. at VES 002712. USEPA agreed 

that, until such time as USEPA did approve metal extrapolation, Veolia could operate at a 

feedrate no greater than the feedrate used during the actual stack testing. Veolia continues to 

operate at a feedrate no greater than feedrates established during CPT testing. 

Veolia proceeded to perform the stack testing for mercury, SVMs, and LVMs in August and 

September of 2008. USEPA Region 5 personnel were present at each test—except the final run6 

on unit 4, which was observed by IEPA personnel. The final results of the metals tests showed 

that all three incineration units were in full compliance with the MACT standards for mercury, 

SVMs, and LVMs. 

On September 12, 2008, USEPA formally issued a Title V permit to Veolia (Permit No. V-IL1716300103-08-01). Veolia's 2008 Title V permit at VES 007297-007507. Veolia's final Title 

V permit did not contain OPLs for mercury, SVMs, and LVMs. 

On September 16, 2008, at Veolia's request, USEPA issued another revised §114 information 

request extending Veolia's deadline to submit the test data, NOC, and its application for 

significant modification to October 10, 2008. See September 2008 Information Requests at VES 

002713-002726. The extension provided Veolia with additional time to add information 

collected during the September portion of the metals testing. 

On October 8, 2008, the Sierra Club filed a stipulation dismissing with prejudice the lawsuit that 

it had filed against USEPA in July of 2006. The basis of the dismissal was that all requirements 

of the settlement agreement between the Sierra Club and the USEPA had been fulfilled—i.e., 

USEPA had issued a Title V permit to Veolia. 

On October 10, 2008, pursuant to the February, June, and September 2008 Information Requests, 

Veolia submitted a NOC, the test reports for incinerators 2, 3, and 4, and an application for 

significant modification to Veolia's Title V permit. See Veolia's Oct. 10, 2008 Submission at 

VES 002727-003877.) In its application for significant modification, Veolia, as required by the 

Agency, submitted revised OPLs for mercury, SVMs, and LVMs. See September 2008 

Information Requests at VES 002714-002726. 

In addition, pursuant to the USEPA's February, June, and September 2008 revised Information 

Requests, Veolia also requested permission to use extrapolation methods to calculate feedrates 

for LVMs, SVMs, and mercury. See Feb. 2008 Information Requests at VES 002442-002459; 

June 2008 Information Requests at VES 004728; Sept. 2008 Information Requests VES 002721. 

As detailed in its application, Veolia used the Lubrizol Extrapolation Methodology supplied by 

USEPA Region 5 and lowered the extrapolated metal feedrates based on historical data as 

6

 Each metals performance test conducted on one of Veolia's incineration units consisted of three runs. 

- 11 -

VES 019509 
defined in 40 C.F.R. § 63.1209(n)(2)(ii)(B)(2). See Veolia's Oct. 2008 Application for 

Significant Modification at VES 000743-000917. 

On October 14, 2008, just four days after Veolia submitted the NOC, the test reports from the 

August and September metals testing, and its application for significant modification, Veolia 

placed in its operating record a new DOC ("2008 DOC") to establish its compliance with the 

final HWC MACT Rule.7 Importantly, Veolia's 2008 DOC contained OPLs for LVMs, SVMs, 

and mercury that are not based on extrapolation methodology. See Veolia's 2008 DOC at VES 

003879-004123. Veolia began operating under these OPLs on October 14, 2008, in full 

compliance with the HWC MACT standards. 

Also on October 14, 2008, Veolia submitted a new CPT plan for units 2, 3, and 4. This plan set 

forth the testing protocols for PM, HCL/C12, and dioxins/furans as required by the HWC MACT 

Rule. Veolia was not required to include MACT metals in this CPT plan. 

5. 2009 through 2010: Proposed CEMS and Special Waste Analysis 

Procedures 

After discussions with USEPA in late 2008, Veolia submitted a revised application for 

significant modification to USEPA on or about January 6, 2009. This revision lowered (i.e., 

made the OPLs more restrictive) the feedrates for LVM , SVM, and mercury based on a revised 

calculation for the moisture content of the solid waste that was fed to the incinerator during the 

August and September 2008 metals testing. Veolia included in the revised application the 

Lubrizol Extrapolation Methodology USEPA had provided to Veolia in 2008. 

On February 3, 2009, Veolia received another USEPA §114 Information Request dated January 

29, 2009 ("January 2009 Information Requests"). See January 2009 Information Requests at 

VES 004814-004824. The January 2009 Information Requests directed Veolia to install 

Continuous Emission Monitoring Systems ("CEMS") for mercury on the three hazardous waste 

incinerators located at the Sauget facility within 30 days of Veolia's receipt of the requests. The 

requests also required Veolia to install, evaluate, and certify the mercury CEMS in accordance 

with an inapplicable Performance Specification (Performance Specification 12) within 30 days 

after commencing operation of the CEMS. See January 2009 Information Requests at VES 

004820. The requests also required Veolia to implement "Special Waste Analysis Procedures" 

that would significantly modify the facility's existing waste analysis protocols under its Waste 

Analysis Plan ("WAP") (required under RCRA) and Feedstream Analysis Plan ("FAP") 

(required under the CAA). 8 Among other things, the January 2009 Information Requests 

required Veolia to analyze all incoming waste for mercury, LVMs, and SVMs within 24 hours of 

receipt and required more extensive analysis of batches and blends of waste received at the 

facility. See January 2009 Information Requests at VES 004822. 

7

 Veolia was required to comply with the final HWC MACT on or before October 14, 2008. See 40 C.F.R. §§ 

63.1200-63.1221. 

8

 The Special Waste Procedures were Region 5's first attempt at what has now become the enhanced monitoring 

technique included in the 2014 Draft Permit currently at issue. 

- 12-

VES 019510 
Upon reviewing the January 2009 Information Requests and determining that it would need 

additional time to fully evaluate the CEMS and the additional analysis requirements, Veolia 

sought a 60-day extension of time to respond. However, USEPA's assistant regional counsel 

Sabrina Argentieri denied Veolia's request with no further explanation. Veolia responded to 

USEPA within the required 30-day timeframe. Veolia's 35-page written response, dated March 

4, 2009, ("March 2009 Response") set forth in great detail Veolia's MACT compliance history, 

Veolia's compliance with the Title V permit program, Veolia's compliance with the RCRA Part 

B permit program, and specifically responded to each numbered paragraph in Appendices B and 

C of the January 2009 Information Requests. See Veolia's March 2009 Response at VES 

001880-001917. 

Veolia's March 2009 Response also raised numerous legal, procedural, and technical concerns 

regarding the provisions of the January 2009 Information Requests. The vast majority of 

Veolia's concerns were substantive scientific and engineering questions regarding the reliability 

and accuracy of mercury CEMS. Harris Aff. at VES 008387-008388. 

On May 13, 2009, Veolia representatives flew to Chicago to meet with USEPA personnel. The 

majority of the meeting addressed the technical issues surrounding the installation of mercury 

CEMS on Veolia's hazardous waste incinerators. USEPA conceded that 30 days had been an 

insufficient period of time to install the CEMS contemplated by the January 2009 Information 

Requests. Moreover, the Agency acknowledged that the National Institute of Standards and 

Technology ("NIST") had yet to come up with a traceable calibration standard that could verify 

the accuracy of data produced by the proposed mercury CEMS. USEPA also conceded that it 

had referenced the wrong Performance Specification—Draft PS 12—in its information requests 

and that, to its knowledge, no mercury CEMS had yet been installed and successfully operated at 

a commercial hazardous waste combustion facility in the United States. Despite these errors and 

admissions, USEPA indicated that it was not going to withdraw the January 2009 Information 

Requests and that it intended to use the data collected by the CEMS for compliance with the 

HWC MACT and possible enforcement. However, the Agency did indicate that it wished to 

continue the dialogue with Veolia and ended the meeting by stating that Agency personnel would 

contact Veolia for further discussions—with the eventual goal being some sort of settlement 

regarding compliance. To date, USEPA has not provided a written response to Veolia's 

questions or concerns. Harris Aff. at VES 008387-008388. 

On or about May 29, 2009, Veolia received another §114 Information Request from USEPA 

("May 2009 Information Requests"). See May 2009 Information Requests at VES 004825-

004832. The May 2009 Information Requests sought data on Veolia's 1-minute average 

mercury feedrates and 12-hour rolling average mercury feedrates, as well as extensive technical 

information related to the laboratory analysis Veolia performed on samples taken during the 

2008 stack testing. Veolia submitted the required infonnation in a response dated July 6, 2009, 

and supplemented its response by correspondence dated July 28, 2009. See Veolia's July 6, 2009 

Response at VES 004833-004841 and Veolia's July 28, 2009 Response at 005547-005548. 

USEPA did not respond to Veolia's submissions. Harris Aff. at VES 008388. 

On November 3, 2009, during a conference call with Veolia, USEPA requested that Veolia 

resubmit its application for significant modification of Veolia's Title V permit with even more 

restrictive OPLs for LVMs, SVMs, and mercury. In the discussions, USEPA and Veolia agreed 

- 13-

VES 019511 
that Veolia could use the Lubrizol Extrapolation Methodology it had previously used (and that 

USEPA had provided in 2008), but that Veolia would limit the extrapolation to a maximum of a 

low multiple ofthe performance test feedrates or 75% of the MACT Emission Standard, 

whichever was less. Harris Aff. at VES 008387. 

In December of 2009, Veolia conducted a CPT on units 2, 3, and 4 pursuant to the CPT Plan for 

P M, HCL/C12, and dioxins/furans that Veolia had submitted on October 14, 2008 and USEPA 

had approved on November 25, 2009. This testing did not include MACT metals. 

On February 25, 2010, Veolia submitted its third revised application for significant modification 

of the Title V permit. This February 2010 significant modification application included OPLs 

based on a revised extrapolation methodology that was discussed during the November 3, 2009, 

conference call. However, consistent with USEPA's wishes, Veolia further limited the OPLs to 

a maximum of three times the amount of LVMs, SVMs, and mercury actually fed into the 

incinerator during the performance testing. (In light of Veolia's February 2010 revised 

application, USEPA later requested that Veolia withdraw the October 10, 2008, and January 6, 

2009, applications for significant modification. Veolia obliged USEPA via correspondence 

dated May 12, 2010.) See Veolia's May 12, 2010 Letter at VES 000940-000941. 

The Agency's next contact with Veolia was the delivery, without prior notification or 

explanation, of yet another information request under §114, dated March 10, 2010 ("March 2010 

Information Requests"). March 2010 Information Requests at VES 006357-006368. 

The March 2010 Information Requests consisted of a slightly revised version of USEPA's 

flawed January 2009 Information Requests with a few material changes to the relevant requests. 

In the March 2010 Information Requests, USEPA attempted to fix the deficiencies that plagued 

the January 2009 version by impermissibly shifting the burden to Veolia to create technical 

standards to verify the data generated by the mercury CEMS. 

Veolia responded to the March 2010 Information Requests on March 25, 2010. See Veolia's 

March 25, 2010 Response at VES 006346-006468. In addition to numerous general objections, 

Veolia objected to the Information Requests on the grounds that (a) they were unconstitutional as 

they placed Veolia in a position of incurring penalties for noncompliance without any 

opportunity for administrative or judicial review; (b) they represented an attempt by the Agency 

to unlawfully modify Veolia's Title V permit; (c) they represented an attempt by the Agency to 

deprive Veolia of its due process rights by circumventing Veolia's appeal of its RCRA Part B 

Permit; and (d) they were arbitrary and capricious and lacked a rational basis because they 

ignored Veolia's demonstrated compliance with the HWC MACT Rule. However, despite these 

objections, Veolia again offered to meet with the Agency in an attempt to work out a 

compromise. 

On April 28, 2010, Veolia sent a team of decision makers to meet with USEPA at USEPA's 

Raleigh, North Carolina Research Triangle Park facility. At these meetings, the Agency was 

unable to identify any location where mercury CEMS technology had ever been successfully 

utilized in the United States on a commercial hazardous waste incinerator. Veolia expressed its 

belief, based upon Veolia's experience in operating its commercial hazardous waste incinerators, 

that the high moisture, high temperature environment found in the incinerators and the wide 

- 14-

VES 019512 
variations of mercury found in the feed combined to make the Veolia incinerators the most 

challenging environment in which anyone had ever proposed to operate a mercury CEMS. 

Veolia believed that the technology was likely to fail and would succeed, if ever, only after the 

mercury CEMS endured many failures and Veolia incurred much time and expense attempting to 

force the technology to successfully operate. The Agency did not disagree and offered no 

evidence to the contrary. As a result of the discussions, the Agency offered to entertain 

alternative methods to obtain the relevant emissions information. See Veolia's May 25, 2010 

Letter at VES 006469-006471; Harris Aff. at VES 008388. 

In response to USEPA's invitation to offer alternative methods as part of the ongoing discussions 

between the parties, on May 25, 2010, Veolia offered, in relevant part, to install additional 

technology in the form of activated carbon injection systems on incinerators 2 and 3, provided 

that all approvals were in place, to further reduce emissions. See Veolia's May 25, 2010 Letter 

at VES 006469-006471. (Activated carbon injection systems are an effective means of reducing 

the emissions of mercury and other materials from incinerators.) Veolia further proposed that it 

would provide the Agency with additional data by scheduling and performing mercury emission 

testing in accordance with the USEPA approved 2008 performance test plans. This testing 

would document whether incinerator units 2, 3 and 4 met all applicable mercury MACT 

Standards. Despite its offer to entertain alternatives to the March 2010 Information Requests, the 

Agency never provided an analysis or otherwise responded to the merits of Veolia's proposal. 

Harris Aff. at VES 008388. 

Rather, on June 7, 2010, the Agency sent Veolia its sixth information request under §114 in 28 

months ("June 2010 Information Requests"). June 2010 Information Requests at VES 007572-

007579. The June 2010 Information Requests sought data on Veolia's 1-minute average for all 

metal feedrates, 12-hour rolling average for all metal feedrates, and extensive technical 

information related to analysis performed on samples conducted on all materials fed into Units 2, 

3 and 4 from January 1, 2005 to the date of the June 2010 Information Requests. It also 

requested information on process upsets, malfunctions, or shutdowns for various 

timeframes. Veolia submitted the required information in responses dated June 23, 2010, July 7, 

2010, July 15, 2010, and July 23, 2010. See Veolia's Response to June 2010 Information 

requests at VES 007508-7517. USEPA did not respond to Veolia's submissions. Harris Aff. at 

VES 008389. 

6. 2011 through 2013: NEIC Inspection & No Progress on Significant 

Modification 

On December 5, 2011, Veolia was notified by the USEPA National Enforcement Investigation 

Center ("NEIC") that NEIC inspectors would be conducting a multimedia compliance inspection 

at Veolia's Sauget facility beginning the next day—on December 6, 2011. See NEIC's Dec. 5, 

2011 Notice Letter, at VES 006472-006477. From December 6, 2011 until December 15, 2011, 

the NEIC conducted a multi-media compliance inspection at Veolia's facility. The NEIC 

inspectors were also accompanied by USEPA Region 5 personnel Shannon Downey, Sarah 

Marshall, and Jamie Paulin during portions ofthe visit. NEIC inspectors also requested 

additional information from Veolia throughout calendar year 2012. 

- 15-

VES 019513 
On February 27, 2012, USEPA contacted Veolia to set up a conference call concerning Veolia's 

application for significant modification of Veolia's Title V permit. Despite the requirements of 

40 C.F.R. § 71.7(a)(2), which requires the Agency to respond within 18 months, more than two 

years had passed since Veolia submitted its February 2010 application for significant 

modification. A conference call was held between Veolia and USEPA on March 8, 2012. 

During the call, USEPA informed Veolia that the Agency was going to deny Veolia's application 

for significant modification because of the extrapolation methodology that Veolia used—the 

Lubrizol Extrapolation Methodology that USEPA had provided to Veolia in 2008. Veolia and 

USEPA then discussed a schedule by which either Veolia would submit additional information, 

or the Agency would begin actions to formally deny the modification application. 

Veolia responded to USEPA by email on March 27, 2012. In that correspondence, Veolia 

reiterated that it wanted to work with the Agency, but believed that the request by the USEPA to 

again revise the application—for the fourth time—was unreasonable, particularly in light of the 

fact that Veolia prepared the February 2010 submission in accordance with the agreement 

reached with USEPA during November of2009. 

Subsequently, at the Agency's request, Veolia submitted even more technical information to 

USEPA in June 2012, in support of the application for significant modification. See Veolia's 

June 2012 Submission at VES 008284-008287. 

On August 27, 2012, Veolia received a Finding of Violation dated August 24, 2012 ("August 

2012 FOV") from the Air and Radiation Branch of Region 5. August 2012 FOV at VES 

001356-001365. The August 2012 FOV alleged violations based on the March 2010 Information 

Requests (which restated much of the January 2009 Information Requests) that related to failure 

to install mercury CEMS, Veolia's OPLs, and the NEIC inspection that had taken place in 

December of 2011. Portions of the FOV were based on the final inspection report issued by the 

NEIC; however, USEPA did not provide the report to Veolia. 

On September 5, 2012, Veolia submitted its CPT plan to perform stack testing on all three 

incinerators per the HWC MACT Rule. This submission included planned testing for all 

hazardous air pollutants regulated under the HWC MACT, including metals (i.e., mercury, 

LVMs, and SVMs) to take place in August and September of 2013. 

Pursuant to the direction ofthe August 2012 FOV, Veolia scheduled a meeting with USEPA to 

address the FOVs allegations. This meeting was scheduled for September 18, 2012, in USEPA's 

Chicago office. On September 17, 2012, the day before the scheduled meeting on the August 

2012 FOV, USEPA Bureau of Land sent Veolia a Notice of Violation, dated September 13, 

2012. September 2012 NOV at VES 006478-006481. The September 2012 NOV contained a 

subset ofthe same allegations contained with the August 2012 FOV. Harris Aff. at VES 008390. 

Veolia representatives met with USEPA on September 18, 2012, in Chicago to discuss both the 

August 2012 FOV and the September 2012 NOV. During the meeting, Veolia informed USEPA 

that it could not properly respond to the violations alleged in the FOV and the NOV without 

receiving a copy of the NEIC Report, which, at the time ofthe meeting, Veolia had requested but 

had not received. In addition, based on the information set forth in the FOV and the NOV, 

Veolia stated that the NEIC Report appeared to contain errors. Region 5 Assistant Regional 

- 16-

VES 019514 
Counsel Sabrina Argentieri requested that Veolia set forth in writing the allegations that Veolia 

believed to be erroneous, to the extent Veolia could do so without having the benefit of having 

reviewed the NEIC Report. Harris Aff. at VES 008390. On September 26, 2012, Veolia 

provided Ms. Argentieri with the requested written analysis. Veolia Sept. 26, 2012 Analysis at 

VES 006482. 

In addition to discussing the FOV and the NOV, Veolia expressed concerns about installing 

multi-metals CEMS when none of its competitors was forced to do so. In response, Region 5's 

Nathan Frank, Chief of the Air Enforcement Section Branch, dismissed Veolia's concern by 

stating: Someone has to be first." Warchol Aff. at VES 008382. 

Veolia finally received a copy of the NEIC report on September 28, 2012. The NEIC Report 

provided context—and further explanation—for USEPA's allegations. Veolia confirmed that the 

NEIC report contained errors. After having reviewed the NEIC Report, Veolia provided a 

written response to the allegations via letter dated October 12, 2012. See Veolia's Oct. 12, 2012 

Response at VES 006483-006502. 

Veolia next received an email from George Czerniak, Region 5's Chief of Air Enforcement & 

Compliance Assurance, on November 29, 2012, informing Veolia that USEPA was about to 

issue a notice of intent to deny Veolia's application for significant modification of the Title V 

permit. USEPA Nov. 29, 2012 email at VES 001679-001680. The email also stated that 

USEPA intended to formally reopen Veolia's Title V permit to include more stringent OPLs for 

mercury, supplemental FAP requirements (i.e., the special waste analysis procedure first 

proposed in the January 2009 Information Requests) and require the installation of multi-metals 

CEMS. 

One ofthe attachments to USEPA's November 29, 2012, email was a "Fact Sheet" which 

contained numerous inaccurate and derogatory remarks concerning Veolia, including that the 

Veolia facility was "controversial" and needed "tougher" feedrates. USEPA Nov. Fact Sheet at 

VES 001844-001846. On November 30, 2013, Doug Harris contacted Genevieve DaMico of 

Region 5 USEPA and requested that the above statements be removed from the final Fact Sheet 

or corrected. Harris Aff. at VES 008390-008391. However, even though Ms. DaMico agreed to 

remove those comments, Region 5 nevertheless included the draft November Fact Sheet 

containing the derogatory statements as part of the administrative record available to the public 

during the subsequent permit reopening proceeding. Email attaching draft November Fact Sheet 

at VES 001679-001846, 001844-001846. 

By letter dated December 13, 2012, Veolia responded to George Czerniak's November 29, 2012, 

email. Veolia Dec. 13, 2012 email at VES 001850-001853. Veolia explained that it was 

withdrawing its application for significant modification because the process had taken four years, 

had not achieved its objective of establishing OPLs for Veolia's existing Title V permit, and was 

no longer necessary because Veolia's application to renew the Title V permit will be due on 

April 12, 2013. In addition, Veolia informed USEPA that it would be performing stack testing 

on all three incinerators per the HWC MACT Rule (including testing for MACT metals) in 

August and September of 2013. 

- 17-

VES 019515 
On December 19, 2012, David Ogulei of USEPA sent an email to Doug Harris providing Veolia 

with an "update" on USEPA's plans concerning Veolia's Title V permit. USEPA Dec. 19, 2012 

email at VES 001857. The email stated that USEPA intended to reopen the permit to include 

feedrate limits derived from Veolia's 2008 metals testing and that USEPA intended to provide 

formal notice of the reopening in early 2013. 

Finally, on or about January 10, 2013, Veolia received a copy of USEPA's "Notice of Proposed 

Modification of Veolia's Title V permit" ("Notice of Reopening"), a copy of the Agency's 

Statement ofBasis for reopening Veolia's permit, a copy of the draft reopened Title V permit, 

and a copy ofthe USEPA fact sheet entitled "U.S. EPA Proposes to Reopen Title V Air Permit" 

("Jan. 2013 Fact Sheet"). See generally VES 000002-000173. The 2013 Reopening Proposal 

contained four main changes from Veolia's 2008 Title V permit: 1) it required the installation 

and operation of multi-metals CEMS on Unit 3 for a 12 month period; 2) it included OPLs 

(feedrate limits) for mercury, LVMs, and SVMs; 3) it included supplemental feedstream analysis 

procedures for mercury, LVMs, and SVMs; and 4) it prohibited Veolia from accepting beryllium 

containing waste for incineration.9 Further details concerning USEPA's attempt at reopening 

Veolia's 2008 Title V permit are provided in Section C of this Part. 

B. Relevant Regulatory and Procedural History Concerning Veolia's RCRA 

Part B Permit 

1. 1997 through 2003: Initial RCRA Part B Permit, Renewal, and Risk 

Assessment 

Veolia received its initial RCRA Part B permit on March 31, 1988. See 1988 RCRA Permit at 

VES 006711-006858. This initial permit expired on May 5, 1998. Consequently, on November 

6, 1997, Veolia submitted an application to IEPA to renew its existing RCRA Part B permit. 

IEPA deemed Veolia's application administratively complete on April 17, 1998. Approximately 

five years later, IEPA finally issued a draft RCRA Part B permit for public comment. In 2003, 

USEPA conducted a RCRA risk screen10 as part of its review of the draft Veolia permit. Upon 

completion of the risk screen, USEPA advised Veolia that Veolia's emissions did not pose any 

risks, and additional risk-assessment was not required. See VES 006940. 

A public meeting regarding the Part B Permit was held on July 22, 2003. At that meeting, a 

public commenter suggested that mercury emissions from Veolia may pose a risk to the fisheries 

in area lakes that residents allegedly use as a food source.11 After the public meeting, USEPA 

revised the risk screen. This revised version of the risk screening was developed in response to 

9

 Veolia only accepts non-NESHAP beryllium containing waste. 

1 0

 The purposes of screening level risk assessments are to: 1) estimate the likelihood that a particular risk exists, 2) 

identify the need for site-specific data collection efforts, or 3) to focus site-specific risk assessments where 

warranted. See Office of Solid Waste & Emergency Response, USEPA, The Role of Screening-Level Risk 

Assessments (June 2001), attached at VES 006507-006514. 

1 1

 This statement is included in the transcribed comments from the July 22, 2003 public meeting. See July 22, 2003 

Public Meeting Transcript at VES 004472-004593. 

- 18-

VES 019516 
the 2003 public meeting and, unlike the earlier risk screening which was conducted prior to the 

public meeting, this time USEPA identified increased risk. 

Veolia submitted its comments on the draft permit on September 17, 2003. Veolia's 2003 Cmts. 

at VES 006859-006866. 

2. 2005 through 2013: Veolia Risk Assessment, Permit Issuance & RCRA 

Permit Appeal 

In light of USEPA's contradictory risk screenings—the first identifying no risk and the second 

identifying some risk—Veolia contracted with Franklin Engineering Group (Franklin 

Engineering) in 2004 to perform a second, independent, risk assessment regarding metals 

emissions. Franklin Engineering utilized USEPA's Human Health Risk Assessment Protocol 

("HHRAP") for Hazardous Waste Combustion Facilities12 to determine that Veolia's low level 

of metals emissions did not pose a risk to the water bodies in Frank Holten State Park. VES 

019310-019488. In November of2005, Veolia submitted the results of this risk assessment to 

USEPA. USEPA indicated to Veolia that it would review and comment on the results of the risk 

assessment conducted by Franklin Engineering within four to six weeks; however, USEPA never 

responded to Veolia's submission. Harris Aff. at VES 008385. 

Rather, USEPA performed yet another risk screening in May 2007. May 2007 Risk Screen at 

VES 007616-007713. The May 2007 risk screening concluded no additional limits were 

necessary for dioxins, cadmium, lead, chromium, beryllium and arsenic. Id. at VES 007640. 

The screening found only emissions of mercury from the Veolia facility at the HWC MACT 

emissions standard would result in potential exposure to methyl mercury above USEPA's risk 

management guidelines. Therefore, the screening recommended that total annual stack 

emissions of mercury from the Veolia facility be limited to protect human health. 

With regard to finding increased risk due to potential methyl mercury exposure, however, the 

Agency only reached this conclusion by ignoring evidence and making many assumptions, 

including that subsistence fishing is conducted at lakes in Frank Holten State Park (a state park 

and golf course located approximately three miles to the East of the Sauget Facility); that the 

lakes are closed systems when, in fact, they are connected to the Mississippi River through 

various canals and ditches which allow fish to travel between the lakes and the River; that fish 

are native to the lakes when many of the fish most likely to be consumed are stocked; and that 

the trophic level for the fish is 4 which is too conservative and inconsistent with existing 

evidence. See generally VES 006940; DWO at VES 007606-008087. In November 2007, 

USEPA provided an addendum to the May 2007 Risk Screening which explained how USEPA 

calculated the conversion of expected emissions of inorganic mercury from the Veolia 

incinerator stacks to methyl mercury for purposes of assessing potential human health risks, but 

failed to change any of the unsupported assumptions or the resulting inaccurate conclusions 

contained in the May 2007 Risk Screening. See USEPA Addendum at VES 007714-007760. 

1 2

 Franklin Engineering utilized the 1998 Peer Review Draft version ofthe HHRAP (EPA530-D-98-001) during the 

initial stages of fhe risk assessment and then finalized its evaluation using the Final HHRAP (EPA520-R-05-006), 

which USEPA published in September of 2005. 

- 19-

VES 019517 
On July 24, 2008, over ten years after Veolia submitted its original application for renewal of its 

RCRA Part B Permit, IEPA issued a second draft permit for public comment ("2008 Draft 

RCRA Permit"). The 2008 Draft RCRA permit contained many modifications from the draft 

issued by IEPA in 2003, including stringent requirements regarding mercury. The permit 

established a "Mercury Annual Feed Rate Limit" for Veolia that stated "[t]he Permittee shall not 

feed more than a total of 3.63 kilograms (kg) of mercury per year to any combination of the three 

incineration units." See 2008 Draft RCRA Permit at VES 006549. The permit also included 

requirements that Veolia analyze all incoming waste for mercury within 24 hours of receipt and 

required more extensive mercury analysis of batches and blends of waste received at the facility. 

Id. at VES 006549-006553. (These later requirements are nearly identical to the ones included in 

the January 2009 Information Requests, the 2013 Reopening Proposal, and the 2014 Draft Title 

V permit.) 

Veolia submitted its comments on the 2008 Draft RCRA Permit on September 12, 2008. Veolia 

Sept. 2008 Cmts. at VES 006867-006893. Veolia stated that the new requirements for mercury 

analysis, recordkeeping and feedrates were "overly onerous, appear punitive, have no regulatory 

or safety basis and are not consistent with the requirements of the other Region 5 hazardous 

waste incinerator permits." See Id. at VES 006867-006893. Specifically, Veolia noted that the 

mercury feedrate limit of 3.63 kg/year failed to take into account any removal efficiencies and 

ignored the results of the risk assessment performed by Franklin Engineering in 2005. Veolia 

also commented that sampling all waste coming into the facility for mercury within 24 hours was 

impractical and potentially unsafe. Veolia also added that the increased batch and blend 

sampling was unnecessary because, if implemented, it would require Veolia to analyze certain 

wastes a minimum of three times before they could be incinerated. 

The 2008 Draft RCRA Permit also set forth a method for calculating the concentration of 

mercury that Veolia must use in determining its feedrate. Under the method—if Veolia analyzed 

a waste and could not detect mercury (because the concentration was lower than the instrument 

could measure)—then Veolia was required to assume that the waste contained mercury at a 

concentration of Vz of the reporting limit. 1 3 In other words, Veolia would be required to assume 

that all of its incoming waste contained some mercury (in this case up to Vz ofthe reporting limit 

of the chosen mercury analyzer). Veolia explained in its comments that if it were required to 

assume Vz the reporting limit every time it was required to perform an analysis of waste, then it 

would nearly exceed the annual feedrate limit for mercury without ever having actually detected 

mercury in a single sample during the entire year of incinerator operations. Veolia further 

related that this requirement would artificially inflate the amount of mercury that it was handling 

at the facility. Veolia's Sept. 2008 Cmts. at VES 006880-006882. (Note: In the 2014 Draft 

Permit, if the applicable metal is not detected at or above the reporting limit for the metal, the 

metal concentration shall be equal to the reporting limit.) 

1 3

 The term "reporting limit" generally means the lowest concentration at which an analyte can be accurately 

detected in a sample. However, for purposes of Veolia's comments, "reporting limit" and "detection limit" will be 

used interchangeably. 

-20-

VES 019518 
On December 2, 2009,12 years after Veolia submitted its application for renewal of its RCRA 

Part B Permit, IEPA issued a final RCRA Part B permit to Veolia ("2009 Final RCRA permit"). 

See 2009 Final RCRA Permit at VES 006711-006858. The final permit contained essentially the 

same requirements as the 2008 Draft RCRA Permit; specifically, it included all ofthe stringent 

mercury analysis requirements that Veolia had commented on in September of 2008. 

On January 5, 2010, Veolia appealed the 2009 Final RCRA Permit in its entirety by filing a 

petition for review with the Illinois Pollution Control Board. Veolia RCRA Appeal at VES 

006697-006706. Veolia's appeal is still pending before the Board. 

In an effort to settle the RCRA permit appeal, on August 5, 2011, Veolia submitted a "Sampling 

and Analysis Plan" to IEPA and USEPA proposing a fish and water study of lakes located in 

Frank Holten State Park that were the focus of the 2003 Risk Screen (and Veolia's follow-up 

Risk Assessment in 2005). The Sampling and Analysis Plan proposed to collect a sufficient 

amount of actual quality data regarding the water and fish in the lakes in order to determine the 

efficacy ofthe risk studies. Veolia made this proposal in order to provide an analysis based on 

actual data as opposed to the assumed data USEPA used in its May 2007 Risk Screen. By letter 

dated September 19, 2011, IEPA provided comments on the Sampling and Analysis Plan. See 

IEPA's Letter at VES 007168-007174. IEPA's September 19th Letter questioned how some of 

the data would be used to reevaluate the risk assessments but did agree that the sampling could 

be used to evaluate (and determine) a key assumption of both studies—the assumed trophic level 

of certain fish (i.e., their position in the food chain) and the resulting bioaccumulation factor 

("BAF") assigned to those fish. (BAF is a measure that indicates uptake and retention of certain 

compounds by organisms.) 

In addition, IEPA also responded to Veolia's submissions regarding settlement of the various 

challenged permit conditions via letter dated September 22, 2011. IEPA indicated that the 

permit could be changed to clarify some of the disputed requirements, including but not limited 

to the requirement that all waste must be sampled within 24 hours of receipt for the presence of 

mercury since "Veolia must never rush to sample a waste where it would cause a safety issue." 

IEPA's Sept. 22, 2011 Letter at VES 007175-007177, 007176. 

On October 4, 2011, Veolia met with personnel from IEPA, the Illinois Attorney General's 

Office, and USEPA in Springfield, Illinois, to discuss IEPA's comments on the Sampling and 

Analysis Plan. Although the meeting was set up to discuss IEPA's comments, it was clear to 

Veolia that USEPA had provided the majority of the comments and analysis of the Plan. 

Moreover, USEPA personnel led the technical discussion ofthe meeting concerning the risk 

studies and their role in supporting the Agency's actions under the HWC MACT Rule. At the 

conclusion of the meeting, USEPA also, for the first time, verbally shared with Veolia the federal 

Agency's calculated mercury removal efficiencies for the three incineration units. This 

information allowed Veolia to calculate the numerical OPLs (feedrates) for mercury that the 

Agency believed Veolia should be operating under. (Recall that Veolia had repeatedly requested 

that USEPA share their calculations and OPLs with Veolia during the Title V permitting process 

in 2008.) Harris Aff. at VES 008389. 

-21 -

VES 019519 
Subsequently, Region 5 continued its pursuit of multi-metals CEMS and enhanced waste 

analysis under their CAA enforcement and permitting authority. Thus, as this federal permitting 

process has continued, the IEPA, the Illinois Attorney General's Office and Veolia have more or 

less been required to maintain a holding pattern with regard to the RCRA permit and the appeal. 

As addressed immediately below, USEPA's efforts to reopen Veolia's Title V Permit in 2013 

consolidated the disputed RCRA issues in the Title V process. 

C. USEPA's Attempt to Reopen Veolia's Title V Permit in 2013 and the 

Convergence of All Disputed Issues in the Current Permit Action 

As related above, Veolia has been continually hamstrung in its permitting efforts. In the early 

years IEPA simply delayed making permitting decisions. Following the series of Sierra Club 

lawsuits, USEPA was determined to demonstrate activity while simultaneously avoiding taking 

final agency action. Adding insult to injury, both the IEPA and USEPA delayed and ultimately 

mishandled the issuance of Veolia's RCRA permit. These tortured, years-long processes finally 

culminated in the reopening that USEPA undertook in January of 2013. 

On January 8, 2013, USEPA proposed to reopen Veolia's Title V permit to include revised 

OPLs, installation of multi-metals CEMS, and enhanced FAP requirements. The permit 

reopening effort essentially combined all of the contentious issues concerning Veolia's CA A 

compliance and RCRA permit into a single administrative process. USEPA took this action even 

though Veolia's then current Title V permit was set to expire only nine months later—on 

October 12, 2013—and Veolia's permit renewal application was due only three months later— 

on April 12, 2013. Despite USEPA's illogical timing of attempting to reopen a five-year permit 

with nine months ofthe permit remaining, Veolia spent considerable time and resources 

preparing a lengthy set of comments to the new permit requirements. Region 5 conducted a 

public hearing with virtually no one from the community attending. On March 29, 2013, Veolia 

submitted its comments, which pointed out the numerous technical flaws, inaccuracies, and 

misrepresentations in Region 5's proposal. Veolia's 2013 comments at VES 008972-009070. 

Subsequently, the Agency took no action whatsoever on the proposed reopening. Veolia did not 

hear from USEPA and therefore proceeded with its obligations under Title V and the HWC 

MACT. 

On April 8, 2013, Veolia submitted its application for renewal of its Title V operating permit. 

The Agency deemed Veolia's application to be "administratively complete" via letter dated 

September 11,2013. USEPA Sept. 11, 2013 Approval Letter at VES 010012-010013. 

Approximately four months before USEPA had proposed to "reopen" Veolia's Title V permit, 

Veolia was required to submit its test plans for its next round of CPTs to be performed pursuant 

to the MACT standard. On September 5, 2012, Veolia had submitted its CPT test plans. Via 

letter dated September 27, 2013, USEPA finally approved Veolia's test plans and Veolia 

commenced the CPTs in September of 2013. VES 019294-019295. 

During October in 2013, Veolia conducted a complete set of CPTs on incineration units 2, 3, and 

4. USEPA and IEPA representatives attended the tests and observed the preparation of the 

spiked waste to be fed into the incinerators and the procedures used to pull accurate samples 

-22-

VES 019520 
from Veolia's stack emissions. Veolia completed its CPTs in October of 2013 and the test 

results showed that all three units performed well and met all emissions standards. Under the 

HWC MACT rule, Veolia had to submit final test reports concerning the CPTs to USEPA by 

January 28, 2014. 

However before Veolia could submit its reports, on December 12, 2013, Veolia received a §114 

request from Region 5 seeking a significant amount of raw data concerning Veolia's metal feed 

rates for a 3 year period. See Dec. 2013 Info. Requests at VES 019297-019306. Despite having 

to work through the holidays to compile the information—and taking time away from finishing 

the CPT reports—Veolia responded within the very short (14 day) deadline requested by the 

Agency. By letter dated December 26, 2013, Veolia sent its response to Region 5's latest 114 

request. Veolia's Response to Dec. 2013 Info. Requests at VES 019271-019282. 

Also during December of 2013, Veolia was contacted by representatives of the U.S. Department 

of Justice ("DOJ"). DOJ informed counsel for Veolia that it wished to enter into a tolling 

agreement with Veolia to toll the statutes of limitations on two ofthe previous FOVs issued to 

Veolia dated August 24, 2012 and September 13, 2012.14 Veolia executed a tolling agreement 

with DOJ concerning the two FOVs on January 3, 2014. The agreement tolled the statute of 

limitations periods for the FOVs until April 30, 2014 and was later extended to September 30, 

2014. (Subsequently, the DOJ contacted Veolia after the period had expired and communicated 

that they would not be pursuing any claims against Veolia based on the FOVs. See Voicemail 

from DOJ at VES 016105.) 

On January 28, 2014, Veolia submitted its CPT reports showing that all three incinerators passed 

all test parameters and were in full compliance with the HWC MACT standards. See VES 

012326-012453. 

On March 13, 2014, over a year after Region 5 proposed to reopen Veolia's Title V permit, 

Veolia finally learned that Region 5 had abandoned the reopening in favor of pursuing the same 

conditions in Veolia's permit renewal process. Region 5 did not convey this information to 

Veolia directly. Rather, Veolia learned that the reopening was, in effect, "dead" when the 

Agency emailed a listserv aimed at developing a plan for public participation in Veolia's permit 

renewal process. See Region 5 March 13, 2014 email at VES 010889. 

Veolia next heard from Region 5 concerning its Title V permit on September 16, 2014, when the 

Agency sent Veolia a preliminary version of the new draft Title V. See VES 010159-010410. 

Region 5 agreed to meet with Veolia by September 30, 2014. See id. Veolia met with Region 5 

representatives on September 30, 2014 in Chicago. VES 019296. At the meeting, Veolia voiced 

its concerns regarding the requirements included in the preliminary draft to install not one, but 

three, multimetals CEMS at the facility. However, despite disagreement over the CEMS's 

related-issues, both sides believed some middle ground could be had on other issues and left the 

meeting with a commitment to continue discussions. 

u

 The September 13, 2012 FOV was actually a "Notice of Violation"; however, it contained nearly identical 

allegations to the August 24, 2012 FOV. 

-23-

VES 019521 
On October 9, 2014, Veolia engaged in telephone discussions with Region 5 regarding working 

towards an agreement on the conditions of the permit. Region 5 agreed to continue discussing 

the issue internally and represented to Veolia that it would contact Veolia prior to actually 

issuing the draft permit for public comment pursuant to 40 C.F.R. § 71.11(a)(5). Five days later, 

USEPA contacted Veolia and stated that the Agency would be issuing the draft permit aswritten, without further discussions towards an agreement. The same day, October, 14, 2014, 

Region 5 issued the draft Title V permit for public comment. 

As Veolia predicted in its comments submitted in March of 2013, Region 5's reopening process 

turned out to be a colossal waste of time and resources for both Veolia and the government. That 

fact was totally lost on Region 5 as evidenced by their justification for abandoning the reopening 

(which was included in the Statement ofBasis for the 2014 Draft Permit): 

Due to the complexity of the comments received, EPA did not finalize the 

proposed modifications prior to the expiration of the 2008 permit. At the same 

time, Veolia informed EPA that it was planning to conduct another round of CPTs 

in October 2013. Because of that fact and because Veolia's 2008 permit was due 

for renewal, EPA decided that, rather than finalizing the proposed reopening, it 

would be most effective to include the OPLs and additional monitoring 

requirements in the renewal permit that is the subject of this permitting action. 

Statement ofBasis at 27. 1 5 For Veolia, saying "I told you so" is a pyrrhic victory because 

Region 5 still forced Veolia to spend hundreds of thousands of dollars on responding to a permit 

action that went nowhere and accomplished nothing. This result would be surprising if it hadn't 

happened to Veolia so many times before during the permitting history outlined above. 

IV. Veolia's Comments 

A. Region 5 Has Exceeded its Authority to "Assure Compliance" Under the 

Clean Air Act by Requiring Veolia to Implement Supplemental Feedstream 

Analysis Procedures and Install Multi-Metals CEMS 

Region 5 has arbitrarily and capriciously exceeded its authority to "assure compliance" under the 

C AA by imposing unnecessary permit conditions on Veolia that require the implementation of 

supplemental FAP procedures and the installation of multi-metals CEMS. Section 504 ofthe 

C AA sets forth the authority for the inclusion of monitoring requirements in Title V permits. See 

42 U.S.C. §§ 7661c(a), (c). Specifically, Section 504, subsections (a) and (c), state: 

1 5

 Region 5 inaccurately portrays its failure to finalize the proposed reopening. Veolia's permit expired on October 

12, 2013, however USEPA notified Veolia in June of 2012 that the CPT was required to be initiated by September 5, 

2013. Although Veolia disagreed with this date because the five year requirement for CPT testing would have put 

the testing due by September 5, 2014, Veolia submitted CPT plans to USEPA on September 5, 2012. This is well 

before the permit expired on October 12, 2013. Thus, Region 5's claim that it abandoned tiie reopening because is 

learned of Veolia's plans to perform CPT testing is completely false. 

-24-

VES 019522 
(a) Conditions 

Each permit issued under this subchapter shall include enforceable emission 

limitations and standards, a schedule of compliance, a requirement that the 

permittee submit to the permitting authority, no less often than every 6 months, 

the results of any required monitoring, and such other conditions as are necessary 

to assure compliance with applicable requirements ofthis chapter, including 

the requirements of the applicable implementation plan. 

(c) Inspection, entry, monitoring, certification, and reporting 

Each permit issued under this subchapter shall set forth inspection, entry, 

monitoring, compliance certification, and reporting requirements to assure 

compliance with the permit terms and conditions. Such monitoring and 

reporting requirements shall conform to any applicable regulation under 

subsection (b) ofthis section. 

Id. By using the phrase "assure compliance" in these two subsections, Congress provided the 

Agency with authority to: 1) impose permit conditions that ensure that an emissions source 

complies with the CAA; and 2) impose monitoring requirements that ensure that an emissions 

source abides by the permit conditions established by the Agency. However, the express text of 

Section 504 also provides limits to these two areas of authority for USEPA. 

Under Subsection (a), Congress chose to qualify the phrase "assure compliance" with the 

adjective "necessary." See § 7661c(a). The adjective "necessary" means something that "cannot 

be dispensed with; essential; indispensable; as, water is necessary to life." WEBSTER'S NE W 

UNIVERSAL UNABRIDGED DICTIONARY 1200 (2d ed. 1983). Thus, Subsection (a) limits USEPA 

to requiring only those permit conditions that are essential to ensuring that a source maintains 

compliance with the Clean Air Act. 

The monitoring text included in the Section 504 and the Part 71 Rules has given rise to three 

principle situations where the Agency includes monitoring schemes into Title V permits. 

1. Under 40 C.F.R. § 71.6(a)(3)(i)(A), the Agency must ensure that the monitoring 

requirements provided by the substantive emissions rules make it into the Title V 

permit—e.g., Region 5 must ensure that the monitoring provisions of the HWC MACT, 

OPLs, certain CEMS, FAP, etc., are placed in Veolia's Title V permit. 

2. Under 40 C.F.R. § 71.6(a)(3)(i)(B), if the substantive emission rule does not contain any 

periodic testing or monitoring requirements, then the Agency has an obligation to add 

monitoring or testing requirements sufficient to assure compliance. 

3. If the substantive emissions rule contains some periodic testing and monitoring, but the 

Agency determines that the periodic testing and monitoring provided by the underlying 

substantive rule is inadequate, the Agency may add monitoring or testing requirements 

sufficient to assure compliance. See 40 C.F.R. § 71.6(c)(1). 

-25-

VES 019523 
The third scenario has been the subject of much litigation as it allows the Agency the most 

discretion and provides the opportunity for the most abuse. As noted by Region 5 in the 

Statement ofBasis, the D.C. Circuit supported state and local Title V permitting authorities' 

ability to supplement inadequate monitoring requirements in Sierra Club v. EPA, 536 F.3d 673 

(D.C. Cir. 2008). While Sierra Club did interpret 40 C.F.R. § 70.6(c)(1) as providing permitting 

authorities with the power to supplement monitoring requirements, it only did so in the context 

of a finding that the underlying testing and monitoring requirements were "inadequate." Sierra 

Club, 536 F.3d at 680. The Sierra Club Court, however, was silent on what is "inadequate" and 

the case did not discuss or even mention this issue. 

What constitutes an "inadequate" monitoring requirement is not entirely clear and is a "contextspecific determination"—a point driven home by the Environmental Appeals Board case cited by 

Region 5 in the Statement ofBasis. See In re CITGO Refining & Chemicals Co., No. VI-2007-

01, 2009 WL 7513859, 5 (EAB May 28, 2009). However, what is clear is that the monitoring 

requirements provided by the MACT rules and under USEPA's Compliance Assurance 

Monitoring ("CAM") rule are "sufficient to assure compliance with permit terms and conditions, 

thus meeting the requirements of 40 C.F.R. § 70.6(c)(1)." Id. In fact, USEPA has long 

recognized that MACT Standards promulgated pursuant to Section 112, including the HWC 

MACT, contain sufficient monitoring provisions to assure continuous compliance. The 

Preamble to the CA M rule, for instance, states: 

With respect to emissions units subject to new hazardous air 

pollutant standards under amended section 112 ofthe Act, EPA 

will include appropriate monitoring requirements as part of those 

new hazardous air pollutant standards. .. . This approach is 

consistent with EPA's statement in the July 21, 1992 preamble to 

40 CFR part 70 that all future rulemakings will have no gap in 

their monitoring provisions (see 57 FR 32278). 

62 Fed. Reg. 54,900, 54918 (Oct. 22, 1997). USEPA has also acknowledged that the HWC 

MACT includes "improved monitoring requirements." 71 Fed. Reg. 75422, 75426 (Dec. 15, 

2006); see also HWC MACT Fact Sheet re Title V Operating Permits 

http://www.epa.gov/epawaste/hazard/tsd/td/combust/toolkit/titlevfs.pdf. 

Here, Region 5 proposes to: 1) add onerous supplemental feedstream analysis procedures, and 2) 

require the installation of a multi-metals CEMs. Region 5 states that these modifications are 

"necessary" to assure Veolia's compliance with Title V and the HWC MACT because the 

monitoring provided by the HWC MACT is insufficient. See Statement ofBasis at 47 & 54. 

However, these proposals are NOT necessary to assuring Veolia's compliance with either Title V 

or the HWC MACT and the periodic monitoring requirements of HWC MACT are not 

inadequate or insufficient such that Region 5 may impose these proposals. 

-26-

VES 019524 
1. Veolia's Existing Feedstream Analysis Procedures Are Sufficient and 

Region 5 Has Exceeded Its Authority by Arbitrarily and Capriciously 

Determining Otherwise 

The conditions in Veolia's current FAP are identical in every respect to the provisions of 40 

C.F.R. § 63.1209(c) ofthe HWC MACT. However, Region 5's supplemental feedstream 

analysis procedures that are included in the 2014 Draft Permit go far beyond what is set forth in 

the HWC MACT. In doing so, the Agency has also gone far beyond its authority to assure 

compliance as set forth in Title V. As set forth above, Section 504 of Title V creates a two-tier 

scheme that provides USEPA the power to 1) impose permit conditions that ensure compliance 

with the CAA and 2) impose monitoring provisions that ensure that a source complies with the 

permit conditions. Through the promulgation of the HWC MACT, USEPA has already 

expressly established what feedstream analysis procedures are required to assure compliance 

with the CAA. 

Specifically, in Section 63.1209(c)(1) USEPA instructs that "prior to feeding the material, you 

must obtain an analysis of each feedstream that is sufficient to document compliance with the 

applicable feedrate limits provided by this section." 40 C.F.R. § 63.1209(c)(1). Then, in 

Subsection 63.1209(c)(2) through subsection (4), USEPA sets forth the requirements that must 

followed to ensure that the requirements of (1) are met. Id. §§ 63.1209(c)(2)-(4). Thus, in 

drafting Section 63.1209(c), USEPA already expressly determined how Veolia and every other 

incinerator must analyze feedstreams in order to document compliance with the "applicable 

feedrate limits" that are developed under the HWC MACT rule. These provisions appear 

verbatim in Veolia's FAP and Veolia has complied with these requirements in full. As Region 5 

itself has concluded, "Veolia's FAP literally has all of the elements that 40 C.F.R. Section 

63.1209(c)(2)(i) through (vi) require." See Charles Hall Memo, at VES 0001293. USEPA's 

supplemental requirements are therefore not essential or necessary to ensure compliance with the 

CAA—the essential terms are already set forth in the HWC MACT and included in Veolia's 

current FAP. 

Thus, Region 5 must remove the supplemental FAP requirements from the 2014 Draft Permit. 

2. The Monitoring Requirements of the HWC MACT Are Sufficient 

The essential testing and monitoring requirements of the HWC MACT are CPTs (which not only 

indicate a source's compliance with emission limits, but also are used to create the limits in the 

first place), OPLs, and a source's FAP. USEPA chose to include these methods in the HWC 

MACT because they are proven measures and produce reliable and timely information. The rule 

also relies on certain types of continuous emissions monitoring systems ("CEMS"). As the 

acronym implies, CEMS, when calibrated correctly, provide real-time sampling and analysis of a 

facility's emissions. The HWC MACT requires that sources use certain types of CEMS to 

monitor emissions. Specifically, hazardous waste incinerators are required to use either a carbon 

monoxide or hydrocarbon CEMS and an oxygen CEMS. See 40 C.F.R. § 63.1209(a). Further, 

the rule requires an incinerator to install, calibrate, maintain, and continuously operate all CEMS 

in compliance with the exact technical requirements called "performance specifications" set forth 

in the appendix to 40 C.F.R. Part 63, Subpart EEE. In addition to the aforementioned CEMS, the 

HWC MACT also provides that incinerators (and other HWCs) must install, calibrate, maintain 

- 27-

VES 019525 
and operate a particulate matter ("PM") CEMS to measure fine particle emissions. See 40 C.F.R. 

§ 63.1209(a)(l)(iii). However, for P M CEMS, the rule makes a notable exception: 

[Compliance with the requirements in this section to install, calibrate, maintain 

and operate the P M CEMS is not required until such time that the Agency 

promulgates all performance specifications and operational requirements 

applicable to P M CEMS. 

Id. (emphasis supplied). To date, EPA has yet to fulfill these requirements, hence Veolia and 

other incinerators are not required to install P M CEMS under the rule. Thus, pursuant to the 

express language of the HWC MACT, Veolia operates CEMS to measure, among other 

constituents, oxygen and carbon monoxide in its emissions. 

The 2014 Draft Permit issued to Veolia, however, requires Veolia to install, calibrate, maintain 

and operate a multi-metals CEMS. 2014 Draft Permit at 34. This condition was imposed 

notwithstanding the fact that the HWC MACT does not require, or even mention, multi-metals 

CEMS as an acceptable form of monitoring. 

USEPA drafted the HWC MACT carefully to ensure that sources implemented only CEMS that 

were technically ready to produce accurate results. This is evidenced by the delayed 

implementation scheme regarding P M CEMS that was written-into the text ofthe regulations at 

Section 63.1209(a)( 1 )(iii). USEPA recognized that sources could not rely on PM CEMS to 

produce reliable data until the Agency had vetted the monitors, drafted performance 

specifications, and promulgated operational requirements. Moreover, USEPA has proceeded 

with caution concerning a number of other CEMS that have been discussed as candidates for 

compliance purposes under the HWC MACT rule, including mercury CEMS, hydrochloric acid 

CEMS, chlorine gas CEMS, and multimetals CEMS. See 64 Fed. Reg. at 52,930. In each 

instance the Agency stopped short of promulgating requirements for these CEMS because the 

monitors either did not function correctly in the field or could not meet performance 

specifications that USEPA drafted. See id. However, the Agency did decide to provide sources 

with the ability to petition the Agency to use a specific CEMS for these HAPs under 40 C.F.R. § 

63.1209(a)(5). Using this provision, a source such as Veolia could petition USEPA to use a 

CEMS in lieu of complying with OPLs for a given standard. Thus, if a source were so inclined, 

it has the ability and incentive to make a CEMS work in exchange for the elimination of OPLs 

for whatever HAP the CEMS monitors. 

USEPA's decisions as set forth in the text ofthe HWC MACT regarding the implementation of 

CEMS are logical and based on when technology is ready and available. More importantly, the 

HWC MACT also provides emissions sources with the power and the incentive to push CEMS 

monitoring and forgo compliance with OPLs when the technology is feasible and available. In 

contrast to the measured approach of the HWC MACT, Region 5 has arbitrarily and capriciously 

imposed an experimental multimetals CEMS on Veolia by administrative fiat. Not only is a 

multimetals CEMS not required by the HWC MACT, Region 5's insistence on pushing this 

unproven technology on Veolia is counter to how such monitoring technology has been handled 

under the HWC MACT since the rule's creation. 

-28-

VES 019526 
As evidenced by the thorough and careful approach noted above, the HWC MACT's monitoring 

requirements are not inadequate or insufficient; however, Region 5's rationale for forcing an 

unproven multi-metals CEMS on Veolia is inadequate and unreasonable. 

3. 40 C. F. R. § 63.1209(g) (2) Does Not Authorize Region 5 's Decision to 

Force Veolia to Install Multi-Metals CEMS 

Region 5 cites 40 C.F.R. § 63.1209(g)(2) as one of its principle means of legal authority in 

support of requiring Veolia to install a multi-metals CEMS. However, 40 C.F.R. § 63.1209(g)(2) 

only addresses operating parameters, not CEMS as used in Veolia's Title V. Further, the 

"alternative approaches to establish limits on operating parameters" language does not support 

the argument that the CEMS establishes limits on operating parameters, since no limits are 

established by the CEMS. While Veolia may need to explain the cause of a deviation and any 

actions it may voluntarily choose to take in response, Veolia is required to comply with the FAP 

as set forth in its draft Title V permit during the period that the CEMS is operating. The CEMS 

does not establish alternative limits in the FAP nor does it have any present effect on any ofthe 

other operating parameters set forth in Veolia's Title V permit. A relationship between the 

parameter to be measured via parametric monitoring and the surrogate being measured must be 

established before USEPA can apply parametric monitoring to a source. In this instance, there is 

no such relationship. In fact, Region 5 is improperly using the multi-metals CEMS to establish 

such a relationship. 

The inapplicability of § 63.1209(g) to the CEMS requirement contained within the 2014 Draft 

Permit is borne out in the first part of § 63.1209(g) which restricts this section to "[alternative 

monitoring requirements other than continuous emissions monitoring systems (CEMS)." 

Section 63.1209(g) is clearly intended to allow the Administrator to impose additional nonCEMS operating requirements on the facility if it is determined that they are needed. There is no 

mention of CEMs in this paragraph. This paragraph specifically mentions "additional or 

alternative operating parameters" and "alternative approaches to establish limits on operating 

parameters." Further, § 63.1209(g)(2) allows the Administrator to impose additional operating 

parameters (even gives the example of opacity for PM), but does not give the Administrator the 

authority to require a facility to install and operate a multi-metal CEMs. 1 6 

If the regulatory language is not sufficient to make this point, one only needs to look at the 

Federal Register preamble to the Final HWC MACT rule, the Federal Register preamble to the 

proposed HWC MACT rule, the Technical Support Document, and the Response to Comment 

Document- none of which provide authority for requiring CEMS. 

In HWC MACT proposed rule, 69 Fed. Reg. 21,198 (April 20, 2004), Section 63.1209(g)(2) is 

mentioned 3 times all on the same page: 

1 6

 This determination is also required to be on a case-by-case basis and cannot be based on a policy to require all 

HWCs to install CEMS (which can only be done through a properly noticed rulemaking). 

-29-

VES 019527 
Finally, we note that, in the interim until we determine whether to promulgate a 

maximum pH limit to control mercury emissions, site-specific or other 

information may lead the delegated regulatory authority to conclude under 

§63.1209(g)(2) that a limit on the maximum pH of wet scrubber liquid may be 

warranted to ensure compliance with the mercury emission standard. 

The current regulations require you to establish site-specific operating parameter 

limits to ensure performance of electrostatic precipitators, ionizing wet scrubbers, 

and fabric filters. See § 63.1209(m)(l)(iv).282 Regulatory officials review and 

approve those operating parameter limits and may require additional or alternative 

limits under § 63.1209(g)(2). 

[Footnote 282.] Please note that § 63.1209(m)(l)(iv) inadvertently indicates that 

the requirement to establish site-specific operating limits applies to control 

devices other than ionizing wet scrubbers, baghouses, and electrostatic 

precipitators. We should have revised that paragraph to require site-specific 

operating parameter limits for those control devices when we revised paragraph 

(m)(l) to delete the operating parameter limits for those devices. The delegated 

regulatory authority can use § 63.1209(g)(2) to require you to establish sitespecific operating parameter limits for those control devices prior to the effective 

date of the final rule based on today's proposed rule. 

69 Fed. Reg. at 21,346 (emphasis added). The only mention of § 63.1209(g)(2) in the final 

HWC MACT rule, 70 Fed. Reg. 59,402 (Oct. 12, 2005), is as follows. 

Finally, all sources—those with either wet or dry gas—should precondition the sampling 

train for one hour prior to beginning the test to satisfy the filter's affinity for hydrogen 

chloride. The permitting authority will ensure that sources precondition the sample train 

(under authority of § 63.1209(g)(2)) when they review and approve the performance test 

plan. 

70 Fed. Reg. at 59,429 (emphasis added). USEPA mentions the use of § 63.1209(g)(2) four 

times in the Technical Support Document for the 2005 rule (Volume 4, page numbers at the end 

of each quote). 

Nevertheless, a 10-minute averaging period, or perhaps instantaneous limits, may 

be more appropriate for some parameters at some sites. The Agency, under 

§63.1209(g)(2), can specify additional or alternative requirements (including 

shorter averaging periods) on a case-by case basis if they are necessary to better 

assure compliance with the emission standards. (2-14) 

Liquid injection nozzle pressure ~ In some scrubbers designed for P M control, 

nozzles are used and relied upon to atomize the scrubbing liquid. For these 

systems, a limit on minimum nozzle pressure may be required to ensure adequate 

-30-

VES 019528 
liquid atomization, as determined by permitting officials on a site-specific basis 

under the provisions of §63.1209(g)(2). It is recommended that compliance be 

based on a 1-hour rolling average time period, and that the limit be set based on 

manufacturer or equipment designer specifications. (4-14) 

However, there is concern that carbon monoxide or hydrocarbon monitoring may 

not be adequate to ensure that good combustion practice will be maintained and 

that emissions standards will be met for all batch feed operations. Because oxygen 

depletion can occur very rapidly due to batch overcharging, when CO or HC 

begin to approach the standard it may be too late to apply corrective action. To 

address this concern, regulatory officials can impose additional operating 

parameter limits that may affect batch feeding operations for a specific site either 

using discretionary authority provided by §63.1209(g)(2) or through an 

enforcement action. (8-3) 

After the MACT compliance date, permitting officials will likely become aware 

of inefficient or unstable batch feeding operations, since a source is required to 

submit a report to the Agency if it exceeds any of its operating parameter limits 

(such as the CO or HC standard) more than 10 times in a 60 day period. It is 

anticipated that permitting officials will take the opportunity to review batch feed 

operations and, if it is determined that batch feed operations do contribute to the 

frequency of exceedances, will use the authority under §63.1209(g)(2) to establish 

batch feed operating parameter limits. (8-4) 

Finally, there is only one mention of the use of §63.1209(g)(2) in the Response to Comment 

Documents (Volume 3, page 249-250): 

At the same time, we are not prohibiting the selection of a maximum pH limit on 

scrubber liquor, if made by the permit writer on a site-specific basis, under 

Section 63.1209(g)(2), and determined from factors such as: (1) proximity of 

projected emissions to the MACT standard; (2) relative degree of wet scrubber 

mercury control achieved and feedrate of mercury; (3) previous compliance 

history; and (4) scrubber design and operational practices. 

A ll of the references in the regulations, preambles, technical support document, and response to 

comments document are interpreting § 63.1209(g)(2) to require additional or modified operating 

parameters. There is no mention of using this section to require installing or operating a CEMS. 

Thus, § 63.1209(g)(2) fails to provide Region 5 the authority to require a facility to install and 

operate a multi-metals CEMs. 

The fact is, the HWC MACT allows Veolia, not the Region 5, to petition whether to use a CEMS 

in lieu of complying with the corresponding OPLs. See 40 C.F.R. § 63.1209(a)(5). This 

arrangement, contained in one part of § 63.1209, belies any suggestion that another part of 

-31 -

VES 019529 
§63.1209, including § 63.1209(g)(2), allows Region 5 to require Veolia to install a multi-metals 

CEMS. 1 7 

4. Section 114 of the CAA Does Not Authorize Region 5's Permitting 

Decision 

Section 114(a)(1) of the CAA is a general provision relating to the authority ofthe USEPA to 

request information necessary for developing plans and standards, "determining whether any 

person is in violation of any such standard or any requirement of such a plan," and "carrying out 

any provision of this chapter." 42 U.S.C. § 7414(a)(1). Region 5 admits that requiring Veolia to 

install a multi-metals CEMS is not for the purposes stated in Section 114(a) but is instead 

necessary "to assess whether the identified parameters and operating parameter levels are 

adequate to assure compliance with emissions limits set forth in the HWC MACT. " Statement of 

Basis at 53. In other words, the stated purpose of the multi-metals CEMS is not to determine 

whether Veolia is in violation ofthe HWC MACT emissions limits, but to assess whether the 

established OPLs are sufficient. Region 5 does not explain why requiring Veolia to install a 

multi-metals CEMS is necessary for the purpose of "carrying out" any provision of the CA A or 

even cite to a provision of the Act being carried out. 

The permit provision of the CAA, § 504(a), also does not require Veolia to install a multi-metals 

CEMS. See 42 U.S.C. § 7661c(a). As stated above, the HWC MACT sets the conditions, 

including the OPLs, that are "necessary" to assure compliance with the applicable emissions 

limits. In fact, 42 U.S.C. § 7661c(b) explicitly states that "continuous emissions monitoring 

need not be required if alternative methods are available that provide sufficiently reliable and 

timely information for determining compliance." 

Importantly, USEPA has previously rejected requiring CEMS in order to "assure compliance" 

pursuant to § 114(a) and § 504(a) ofthe CAA. On October 22, 1997, USEPA issued the 

Compliance Assurance Monitoring (or "CAM") rule establishing enhanced monitoring and 

compliance certification requirements for certain major stationary sources at 40 C.F.R. Part 64. 

62 Fed. Reg. 54,900 (Oct. 22, 1997). As USEPA explained in the Federal Register Preamble to 

the CA M rule: 

1 7

 EPA Region 5's focus on CEMS may be a result of a misunderstanding ofthe methodology that USEPA has 

established for determining compliance with emissions limits. The Statement ofBasis at 63 cites pages 2-5 and 

Figure 1 of AP-42 for the "hierarchy" that Veolia must follow when calculating emissions. See AP 42 at 

http://www.epa.gov/ttn/chief/ap42/c00s00.pdf. The Statement ofBasis misquotes the information in the document 

by holding CEMS results to be superior to results of an applicable performance test. Since the emissions limits are 

based on levels achievable and demonstrable pursuant to the relevant perfonnance test, setting CEMS results 

superior to perfonnance test results is inappropriate. See Portland Cement Association v. Ruckelshaus, 486 F.2d 

375, 396 (D.C. Cir. 1973), cert, denied, 417 U.S. 921 (1974) ("a significant difference between techniques used by 

the agency in arriving at standards, and requirements presently prescribed for determining compliance with 

standards, raises serious questions about the validity ofthe standard."). In addition, the Statement ofBasis sets up a 

situation where Veolia must use CEMS data if available to determine whether it is complying with the relevant 

emissions levels, but allows "EPA, the public, or other regulatory agencies" to use "credible evidence" under the 

Credible Evidence Rule of 62 Fed. Reg. 8314 (Feb. 24, 1997) to challenge Veolia's compliance with the HWC 

MACT. Not only is this not fair, it is inconsistent with the explicit language ofthe Credible Evidence Rule. 

-32-

VES 019530 
There are two basic approaches to assuring that control measures 

taken by the owner or operator to achieve compliance are properly 

operated and maintained so that the owner or operator continues to 

achieve compliance with applicable requirements. One method is 

to establish monitoring as a method for directly determining 

continuous compliance with applicable requirements. The Agency 

has adopted this approach in some rulemakings and, as discussed 

below, is committed to following this approach whenever 

appropriate in future rulemakings. Another approach is to 

establish monitoring for the purpose of: (1) Documenting 

continued operation ofthe control measures within ranges of 

specified indicators of performance (such as emissions, control 

device parameters and process parameters) that are designed to 

provide a reasonable assurance of compliance with applicable 

requirements; (2) indicating any excursions from these ranges; and 

(3) responding to the data so that excursions are corrected. The 

Part 64 published today adopts this second approach as an 

appropriate approach to enhancing monitoring in the context of 

Title V permitting for significant emission units that use control 

devices to achieve compliance with emission limits. 

62 Fed. Reg. at 54,902. In adopting the CA M rule, USEPA expressly rejected the earlier 

proposed but never finalized Enhanced Monitoring Rule, 58 Fed. Reg. 54,648 (Oct. 22, 1993), 

which had a perceived bias of requiring CEMS as the only appropriate method for assuring 

continuous compliance. See 62 Fed. Reg. at 54923 ("Section 64.3(d) .. . clarifies that the rule 

does not mandate the use of CEMS in situations where such monitoring is not already required.") 

Thus, neither § 114 or §504 provides Region 5 with authority to impose multi-metals CEMS on 

Veolia. 

5. The Multi-Metals CEMS As Imposed on Veolia Is Not a Parametric 

Monitor 

Region 5 includes the following in the Statement ofBasis: 

Therefore, 40 C.F.R. § 63.1209(g)(2) and 42 U.S.C. § 7414(a) provide the 

authority to require installation and temporary use of a multi-metals Continuous 

Parameter Monitoring System (CPMS) to assess whether the identified 

parameters and operating parameter levels are adequate to assure compliance with 

the emission limits set forth in the FTWC MACT. Under these authorities, a 

CPMS using CEMS technology can be used to indicate performance and not 

necessarily as a direct measure of emissions. EPA has previously employed this 

approach in the context of the Portland Cement MACT rulemaking in which EPA 

required affected sources to install PM CEMS but to operate each PM CEMS as a 

CPMS ... Therefore, throughout this document and Veolia's permit, EPA is using 

the term multi-metals CEMS to reflect the use of the CEMS as a CPMS. 

-33-

VES 019531 
Statement ofBasis at 54. Parametric monitoring is premised on the idea of measuring or 

collecting data on one variable for the purposes of determining a value associated with a second 

variable. This is the "parametric relationship." To have meaning, there must be an established 

correlation between the variables. In the emissions monitoring context, a CEMS is sometimes 

used to measure a "surrogate" pollutant for the pollutant of concern. For example, a Carbon 

Monoxide ("CO") CEMS is sometimes used to determine whether a source is complying with its 

Volatile Organic Compound ("VOC") limit. The CO CEMS measures CO concentrations which 

change with the amount of VOCs being emitted. See USEPA, Technology Transfer Network, 

Continuous Monitoring Systems at http://cfbub.epa.gov/oameb/mkb/Basic_Information.cfm. 

By correlating the amount of CO with the VOC emissions, the source can determine whether it is 

complying with its limit without actually measuring VOCs directly. 

The Portland Cement MACT ("PC MACT") uses a PM CEMS in much the same way. USEPA 

decided that P M CEMS could not be included in the PC MACT because the CEMS could not 

meetthe requirements of Performance Specification 11. See 78 Fed. Reg. 10,006, 10,019 (Feb. 

12, 2013). However, the Agency still required sources to use PM CEMS to measure relative 

increases and decreases in P M concentration. In other words, the rule does not require the 

CEMS to measure the actual output of PM, but does utilize the P M CEMS to determine if a 

source is putting out more or less PM at any given time. See id. ("This relationship is notably 

coarser in terms of understanding the precise PM concentration in the stack, but the instrument's 

sensitivity to changing PM concentration in the stack ... does not deteriorate and may still be 

employed to qualitatively monitor P M emissions.") (emphasis added). 

The PC MACT scheme, therefore, is totally different than Region 5's proposal that Veolia use a 

multi-metals CEMS to arrive at discrete numerical readings to determine whether the OPLs for 

mercury, LVMs, and SVMs are valid. The PC MACT works off of the traditional premise of 

parametric monitoring—a known correlation between variables. In Veolia's instance, there is no 

known correlation. However, even if the PC MACT did support Region 5's position regarding 

the use of a multi-metals CEMS by Veolia, which Veolia disputes, Region 5 misses a crucial 

distinction between the PC MACT process and the Veolia permit process: the requirement to 

use a CEMS as CPMS under the PC MACT was promulgated pursuant to a MACT rulemaking 

process under Section 112 of the CAA, not as part of a permit decision regarding a particular 

facility. Region 5 cannot simply call the multi-metals CEMS something it is not (a CPMS) in 

order to legalize its implementation. Moreover, because Region 5 lacks any legal authority for 

its decision to impose supplemental FAP requirements and a multi-metals CEMS on Veolia, 

those conditions must be deleted from the 2014 Draft Permit. 

B. Region 5 is Arbitrarily and Capriciously Requiring the Use of an Unproven 

Technology (i.e., a multi-metals CEMS) to Verify a Proven and Required 

Means of Compliance (i.e., the OPLS and FAP) and the Agency Has 

Improperly Modified the Process for Alternative Monitoring 

The regulations recognize OPLs and a feedstream analysis plan ("FAP") as the primary means to 

verify compliance with the HWC MACT. In the proposed permit, USEPA requires the use of a 

unproven technology (i.e. a multi-metals CEMS) to verify a required means of compliance (the 

OPLS and FAP). 

-34-

VES 019532 
A ll commercial hazardous waste incinerators in Region 5, including Veolia, demonstrate 

compliance with HWC MACT through FAPs, OPLs, and stack testing. None of the commercial 

hazardous waste incinerators in Region 5 have multi-metals CEMS. Roberson Aff. at VES 

008292. USEPA acknowledged that no commercial hazardous waste incinerators have installed 

CEMS to measure HAP metals by stating "[s]omeone has to be first" when Veolia questioned 

the feasibility of applying the CEMS technology to a hazardous waste incinerator and the 

competitive impact such technology would have on Veolia if Veolia was the only entity in the 

industry forced to install such experimental technology. Warchol Aff. at VES 008382. 

Under the HWC MACT rule, hazardous waste incinerators such as Veolia must conduct 

comprehensive performance tests (40 C.F.R. § 63.1207(b)) to establish OPLs, must characterize 

the feedstream prior to feeding the material into the incinerator and document the amount of 

mercury, semi-volatile metals (lead and cadmium) and low-volatile metals (arsenic, beryllium, 

chromium) in each feedstream (40 C.F.R. § 63.1209(c)). Pursuant to the HWC MACT, Veolia is 

given the choice either to document compliance with the OPLs or petition USEPA to install and 

operate a CEMS to directly measure emissions. Veolia has chosen to document compliance with 

the OPLs. Section 63.1209(c) requires that a subject facility must have a FAP "that is sufficient 

to document compliance with the applicable feed rate limits." The plan must be submitted to 

USEPA on request. Veolia has documented its compliance consistent with the regulations. In 

fact, as USEPA stated in its June 18, 2012 memorandum, "Veolia's FAP literally has all of the 

elements that 40 C.F.R. §63.1209(c)(2)(i) through (vi) require." Charles Hall July 18 Memo at 

VES 001291-001294; VES 001293; Statement ofBasis at 47. 

The HWC MACT rule does not mandate the use of CEMS to document compliance with the 

HWC MACT limits for mercury, low volatile metals, semi volatile metals or chlorine. In the 

past, USEPA has alleged that the reason CEMS were not required in past permits was, in part, 

due to EPA's determination that performance specifications for mercury or multi-metals CEMS 

were not yet available when USEPA finalized the HWC MACT rule. See VES 000159. To date, 

nothing has changed—USEPA still has not promulgated performance specifications or ongoing 

quality assurance or quality control procedures for multi-metals CEMS. In place of 

promulgated, tested, and valid performance specifications, Region 5 is now attempting to 

substantiate the multi-metals CEMS with Other Test Method ("OTM") 16 and OTM 20. 

Statement ofBasis 61. This approach and these methods are flawed in several respects. 

With regard to this approach, Region 5 states—without support or any citation whatsoever—that 

"EPA's historical practice indicates, OTM specifications and procedures can be used for 

compliance purposes with the approval of the permitting authority." Statement ofBasis 62. 

Region 5's vague and unsupported reference to "historical practice" shows the arbitrary and 

capricious nature ofthe Agency decisionmaking in this instance. Moreover, Region 5's 

approach is in direct conflict with the "historical practice" that the Agency displayed when 

promulgating the HWC MACT rule. Specifically, with regard to the implementation of PM 

CEMS in the HWC MACT, the Agency promulgated a requirement for PM CEMS but also 

delayed implementation of the requirement "until such time that the Agency promulgates all 

performance specifications and operational requirements applicable to PM CEMS." 40 C.F.R. § 

63.1209(a)(l)(iii) (emphasis supplied). Promulgation of standards is a form of notice and 

comment rulemaking where impacted parties and the general public can weigh in with comments 

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VES 019533 
that bolster, challenge, and otherwise test the standards that Region 5 is seeking to implement. 

Making vague references to "historical practice" and posting OTMs on a website are a far cry 

from this process. See Statement ofBasis at 61. Thus, contrary to the measured way that PM 

CEMS have been ushered into the HWC MACT scheme, the Agency is trying to arbitrarily and 

capriciously force multi-metals CEMS on Veolia without properly vetted, tested, and 

promulgated perfonnance specifications and operational parameters. 

As discussed elsewhere in more detail in these comments, the OTM specifications are also 

dramatically flawed and biased. They were developed by the sole marketer of the multi-metals 

CEMS technology at a facility—the former Eli Lilly incinerator—and under conditions that do 

not compare to the conditions encountered at commercial hazardous waste incinerators. Further, 

even if the OTM specifications were valid or applicable to the Veolia units, Region 5 has not 

provided sufficient operational parameters for Veolia to fully implement the multi-metals CEMS. 

Veolia must still grapple with sample-train issues (i.e., how to connect the multi-metals CEMS to 

Veolia's units to ensure a representative sample arrives at the monitor) and what quality 

assurance/quality control and calibration measures to use. Region 5 states that it is allowed to 

"impose continuous monitoring requirements under the Title V without a promulgated 

performance specification, provided that we include appropriate QA and QC procedures within 

the permit." Statement ofBasis 62. Region 5 does not have that authority, but even if it did, it 

has failed its own test by not including appropriate QA and QC measures in the permit. In short, 

it is impossible to determine whether the multi-metals CEMS operates correctly. Roberson Aff. 

at VES 008290-008302. 

Nevertheless, Region 5 justifies its attempt to force Veolia to install a multi-metals CEMS by 

stating: 

[T]he record for EPA's proposed action on Veolia's Title V permit renewal 

application supports the conclusion that the monitoring already performed by 

Veolia does not provide sufficient data for EPA to determine that the metal 

feedrate OPLs proposed by Veolia are stringent enough to assure compliance with 

the HWC MACT metals emissions limits regardless of the mix of wastes being 

incinerated or the combustion conditions, given the heterogeneity of the waste 

that Veolia incinerates and EPA's observations on Veolia's operation practices. 

Multi-metals CEMS would provide the data that EPA needs to verify the 

stringency of the metal feedrate OPLs proposed by Veolia. 

Statement ofBasis at 57. However, Region 5's Statement ofBasis falls short of establishing that 

multi-metals CEMS will provide accurate data. Further, Region 5 refuses to allow Veolia to 

utilize the multi-metals CEMS technology in lieu of its emission monitoring requirements. 

Rather the draft permit instructs Veolia: 

During the 12-month period, Veolia will continue to monitor feedrates 

using the procedures in its FAP and the additional feedstream analysis 

procedures proposed in the Title V permit. In addition, during the 12-

month period during which it operates the multi-metal CEMS, Veolia will 

be required to comply with the feedrate limits for mercury, LV M and 

SVM. 

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VES 019534 
Statement ofBasis at 55. Region 5's actions are inconsistent with the regulations and its logic is 

flawed. Region 5 is requiring a method (multi-metals CEMS technology) not approved in the 

regulations (absent a petition and additional proof provided by Veolia) to verify a method (OPLs 

and the FAP) approved by the regulations to demonstrate compliance. Region 5's analysis 

makes OPLs and the FAP irrelevant and unnecessary. 

The only reasonable explanation for Region 5's demand that Veolia use both a multi-metal 

CEMS and OPLs/FAP is that Region 5 lacks sufficient knowledge about, or confidence in, the 

multi-metals CEMS to allow its use for compliance purposes (notwithstanding the 

representations made in the Statement ofBasis). As already discussed, Region 5's lack of 

knowledge of the technology is reflected in Region 5's unprecedented reliance on the financially 

interested Pall and Cooper to explain the technology and respond to Veolia's objections. See 

VES 001368-001371. Further, Region 5's lack of confidence would explain, at least in part, why 

USEPA has never required any commercial hazardous waste incinerator to install a multi-metals 

CEMS to address an issue that Region 5 alleges exists at all incinerators—whether the FAP and 

OPLs are sufficient to assure continuous compliance with the HWC MACT. 

Veolia is the only commercial hazardous waste incinerator in the country that has a USEPA 

region as its permitting authority. Region 5 is using this unique opportunity to attempt to address 

what it (wrongly) believes are problems with the way the HWC MACT requires sources to show 

compliance—i.e., CPTs and the creation of OPLs and a FAP. Region 5 is not evaluating 

Veolia's renewed permit so much as it is using Veolia (at Veolia's expense) to exploit what it 

sees as issues with the HWC MACT Rule. This is unlawful, unfair, and arbitrary and capricious 

as applied to Veolia. Region 5 is also acting in an arbitrary and capricious manner by selecting 

Veolia to pay for an experimental CEMS to benefit Region 5 so that the Agency can obtain more 

information about the technology and determine whether multi-metals CEMS technology can 

operate and accurately provide multi-metals analysis when used in commercial hazardous waste 

incinerators. This is likewise unfair as applied to Veolia. Region 5 cannot unlawfully make 

Veolia it's "guinea pig" with regard to the multi-metals CEMS just because it has the 

opportunity to do so. 

Region 5's lack of faith in the CEMS and the Agency's unfairness when dealing with Veolia is 

further exposed by Region 5's inexplicable actions with regard to a recent Consent Decree 

entered into between Region 5 and Ross Incineration Services, Inc. ("Ross"). The Consent 

Decree arose out of USEPA's allegations that Ross violated several provisions of the HWC 

MACT, including exceeding their OPLs for mercury. See United States of America vs. Ross 

Incineration Servs., Inc, Case No. l:12-cv-01441-DAP, U.S. Dist. Court N.D. Ohio (June 7, 

2012) at VES 016712-016776. In its complaint, the United States alleges that on multiple 

occasions since August 4, 2006, Ross violated its Maximum Total Mercury Feedrate OPL. 

Compl. at fflf 94-99 at VES 016727-016728. 

Despite this allegation, which accuses Ross of actually feeding more mercury than its permit 

allowed, Region 5 entered into a Consent Decree with Ross on October 24, 2014, that makes not 

even the slightest reference to a multi-metals CEMS or any other form of CEMS. The Consent 

Decree catalogs a significant amount of operational and capital improvements that Ross must 

make, including certain monitoring upgrades, but inexplicably does not require Ross to 

implement a CEMS for MACT metals compliance. If USEPA truly believes that a multi-metals 

CEMS can produce accurate results in a commercial incineration environment, then they either 

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VES 019535 
overlooked the opportunity to employ the technology at Ross or they are not being honest about 

their motives with regard to Veolia. 

Finally, under 40 C.F.R. § 63.7(f), if a facility petitions to use a CEMS as an alternative test 

method, the petitioner must prove that the CEMS technology will work in the application. 

However, in this case, Region 5 is arbitrarily and capriciously mandating that Veolia utilize a 

multi-metals CEMS with no proof that it will work. If Veolia had petitioned the Agency to use 

the technology and offered no proof that it would work, the Agency would have summarily and 

correctly rejected the request. 

Moreover, Region 5 is effectively acting as the petitioner vouching for the effective operation 

and accuracy of the new and untested multi-metals CEMS technology as an alternative test 

method under 40 C.F.R. § 63.7(f). However, USEPA does not have the authority to impose this 

alternative test method on Veolia. Rather, the regulation provides that: 

The owner or operator of an affected source required to do performance testing by 

a relevant standard may use an alternative test method from that specified in the 

standard. 

40 C.F.R. § 63.7(f)(2) (emphasis added). USEPA is not an "owner or operator" that can request 

an alternative method under the regulation. Section 63.7(f) does not allow USEPA to 

unilaterally require Veolia to use an alternative test method such as the multi-metals CEMS, but 

even if it did, that requirement would be impermissible because the multi-metals CEMS has not 

been validated as an acceptable source of data. 

Region 5 is required to accurately set forth the legal and factual bases for permit conditions, 

however, it failed to do so in the Statement ofBasis. Veolia should not be made to bear the risk 

of failure of the multi-metals CEMS technology when Veolia has demonstrated and will continue 

to demonstrate compliance with the HWC MACT by the prescribed methods—OPLs, FAP and 

CPT testing. Veolia has not petitioned to use the multi-metals CEMS technology as an 

alternative to traditional methods of demonstrating compliance. The monitoring firms that stand 

to gain financially from the sale of the multi-metals CEMS should incur the expense necessary to 

demonstrate to USEPA and industry that CEMS technology is robust and accurate. Similarly, 

USEPA should independently review the technology and implement it through rulemaking if it is 

a technology that USEPA wishes to mandate the hazardous waste incineration industry to use. 

The CEMS requirement should be removed from the 2014 Draft Permit. 

C. Region 5 Failed to Analyze or Consider the Efficacy of Multi-Metals CEMS 

and Demonstrated Bias as Evidenced by its Collusion with Cooper 

Despite being made aware ofthe potential for bias by Veolia, the administrative record shows 

that Region 5 has abandoned its role of independently evaluating the multi-metals CEMS 

technology in the 2014 Draft Permit. 

At the time that Region 5 attempted to reopen Veolia's Title V permit in 2013, Veolia submitted 

evidence that demonstrated Region 5 failed to independently consider whether a multi-metals 

CEMS could be implemented at Veolia. Rather, the Agency simply accepted the representations 

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VES 019536 
of Pall Corporation ("Pall"), a company who was at that time the sole marketer ofthe multimetals CEMS technology and clearly had a financial interest in selling the technology. Veolia 

commented at length about the danger of bias when such a company communicates with USEPA 

about whether the technology would work in any given commercial hazardous waste incinerator 

environment. As the permitting authority, Region 5 should independently study and evaluate 

whether the technology can successfully operate in the environment and not simply accept the 

word of a company with a financial interest in selling the technology. Unfortunately, Region 5 

has once again in the draft Title V allowed bias in favor of the technology to occur by relying 

upon the unsubstantiated statements of Cooper Environmental Services LLC ("Cooper"), the 

developer and current manufacturer of the multi-metals CEMS technology who has a financial 

interest in selling the technology. 

CEMS technology was discussed at length between the parties when Veolia met with Region 5 

on September 18, 2012 in Chicago to discuss, among other issues, the August 2012 FOV. As 

part of these discussions, Region 5 stated that it wanted Veolia to install a CEMS to monitor 

Veolia's metals emissions. Veolia stated that Veolia already demonstrated compliance with 

emissions standards using the methods set forth in the HWC MACT—through Veolia's OPLs, 

FAP, and CPTs. These methods were approved by the Agency in Veolia's Title V permit and 

are the same methods used by every other commercial hazardous waste incinerator in Region 5. 

Further, Veolia told USEPA that multi-metals CEMS technology could not operate effectively in 

Veolia's incinerators due to high temperatures and high variable moisture content—up to 40%— 

in Veolia's stacks. Warchol Aff. at VES 008382. 

Region 5 responded by alleging, as set forth in its Statement ofBasis at 60, that the Eli Lilly 

facility in Indiana successfully utilized the technology in the form of an Xact multi-metals 

CEMS. Veolia replied that the incinerator at the former Eli Lilly location, which is now owned 

and operated by Evonik, was not a commercial hazardous waste incinerator since it only 

accepted a homogenous feedstream. Evonik Aff. at VES 007596 Further, Evonik removed the 

CEMS from service permanently in August, 2011 due to problems with the sampling train and 

software and firmware problems. Sarah Marshall October 4, 2012 email at VES 001470. 

Evonik found the CEMS was costly in terms of time and maintenance and never relied on it for 

official monitoring purposes under the site's Title V permit. Evonik Aff. at VES 007596-

007597. Veolia further explained that no commercial hazardous waste incinerator in the United 

States used multi-metals CEMS to monitor stack emissions and the technology simply could not 

successfully operate in the harsh conditions produced by Veolia's incinerators. Warchol Aff. at 

VES 008382. 

However, USEPA never evaluated Veolia's concerns. Rather, at that time, USEPA turned over 

the evaluation of multi-metals CEMS to commercial vendors with specific financial interests in 

the technology—Pall and Cooper. Cooper developed the Xact multi-metals CEMS technology 

and Pall was the primary marketer ofthe Xact. At the time USEPA turned to Pall and Cooper, 

those companies stood to gain if USEPA required Veolia to install and operate a multi-metals 

CEMS. Cooper allowed Pall to take the lead in the discussions with the Agency. Pall has since 

abandoned the technology. 

On September 19, 2012, the day after Veolia's meeting with USEPA and prior to Pall 

abandoning the technology, Warchol Aff. at VES 008383, Douglas Barth, Pall's Business 

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VES 019537 
Development Manager, wrote Jeff Ryan at USEPA—apparently in response to an earlier 

communication that USEPA failed to make a part of the administrative record—the following 

email: 

It looks like this effort will take some time and tact. I will be happy to 

guide you and R5 [Region 5] through the maze of information to build a 

scientifically defensible case for our XRF CEMS and on HWI [Hazardous 

Waste Incinerator]. 

XRF looks like the education starting point for this effort. Hg CEMS are 

AF and Multi-Metals are XRF, those Hg CEMS references set no 

precedence here that section of the slate is clean. 

As for Eli Lilly Co. Rick Lambert is the correct contact. Rick funded the 

research starting in 1996 with Army to R&D the first EPA certified M M 

CEMS. He owned and operated the system for 6 years. I will forward his 

contact information to you. 

I will save the rest of my responses for our talk. 

D. Barth Sept. 19, 2012 email at VES 001371.18 As the quoted correspondence makes 

clear, USEPA abdicated its regulatory responsibility to independently evaluate the 

science and technology issues raised by Veolia and presented by the multi-metals CEMS. 

The Agency deferred to Pall—a party with which the Agency had no contractual 

relationship and a party with a vested interest in having the Agency require Veolia to 

install multi-metals CEMS—to guide the Agency "through the maze of information to 

build a scientifically defensible case" for USEPA to require Pall's CEMS be installed at 

Veolia as part ofthe reopening process. Barth and Pall knew Pall could benefit 

financially for performing what would otherwise be USEPA's regulatory function if Pall 

supported USEPA's decision to require Veolia to purchase Pall's CEMS, regardless of 

whether it actually worked. Pall had no incentive to scrutinize whether the CEMS would 

produce reliable data when applied to Veolia's incinerators. 

1 8

 While the Agency included emails in the administrative record for the 2013 attempt to reopen Veolia's title V 

permit that demonstrate the Agency abdicated its role to evaluate the multi-metals CEMS technology, USEPA has 

inexplicably failed to include many of these same emails in the administrative record for the 2014 Draft Permit. 

Veolia therefore has included these documents in the current administrative record. Further, Veolia requests that 

USEPA disclose and add to the administrative record all communications pertaining to the Xact CEMS and identify 

and describe all financial or employment interests any USEPA or other governmental employees may have at any 

time in the Xact CEMS or any company that is associated with the Xact CEMS. Additionally, the emails between 

USEPA and Pall show evidence of attachments that may or may not have been delivered and may not have been 

made a part ofthe administrative record. See VES 001373-001378. To the extent USEPA has such attachments or 

other documents from Pall or Cooper, USEPA should make such information part of the administrative record in 

this matter. If USEPA fails to do so, Veolia believes such failure, without further explanation, demonstrates a strong 

showing of bad faith and improper behavior. Veolia reserves the right to further investigate the evidentiary basis for 

USEPA's decision in front of an appropriate tribunal through written discovery and, if necessary, evidence 

depositions. See Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981). Further, if USEPA supplements the record, 

Veolia requests the public comment period be reopened following such additions. 

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VES 019538 
Jeff Ryan, on behalf of USEPA, demonstrated the extent of USEPA's failure to adequately and 

independently analyze or consider the efficacy of multi-metals CEMS technology in Veolia's 

incinerators when he wrote to Barth on September 2012 and requested that Pall answer the two 

difficult questions Veolia raised at the September 18, 2012 meeting: 

Short story is I want to confirm/refute status of system at Lily and need to 

know whether you can operated @40% moisture. These are their 

[Veolia's] 2 majors points as why not. The Hg is a totally separate issue, 

and one we are well prepared for. 

J. Ryan Sept. 20, 2012 email at VES 001370. Interestingly, USEPA's email reflects a level of 

comfort (perhaps equally misguided) with a mercury CEMS ("one we are well prepared for") 

that it apparently lacks with regard to the multi-metals CEMS. This makes USEPA's 

abandonment of its role to independently analyze the multi-metals technology—a technology 

that USEPA apparently is not well prepared for but nevertheless demands Veolia install—all that 

more appalling. 

Pall replied to Ryan's inquiry the same day by stating: 

Yes, we can operate in 40% moisture. 

D. Barth Sept. 20, 2012 email at VES 001370. 

On the basis of Pall's reply, the Statement ofBasis for the 2013 reopening of the permit 

provided: 

Eli Lilly's stack gases at the Tippecanoe facility averaged approximately 8 

percent moisture content and 140 degree F° while the multi-metals CEMS 

was being operated. However, Pall Corporation has assured EPA that trial 

tests on its CEMS demonstrate that the unit can operate reliably at 

moisture contents above 40 percent. 

2013 Statement ofBasis at 24 (VES 000162). However, Pall has never inspected Veolia's 

incinerators. Warchol Aff. at VES 008382. 

In the Statement ofBasis for the 2014 Draft Permit, USEPA has once again repeated this mantra 

albeit attributing the assurance to Cooper: 

Eli Lilly's stack gases at the Tippecanoe facility averaged approximately 8 

percent moisture content and 140 degree F° while the multi-metals CEMS 

was being operated. However, Cooper Environmental Services has 

assured EPA that trial tests on its CEMS demonstrate that the unit can 

operate reliably at moisture contents above 40 percent. 

2014 Statement ofBasis at 60 n.58. 

The only information contained within the administrative record of the draft Title V that supports 

USEPA's statement that the CEMS can operate in Veolia's 40% moisture environment are a 

June 26, 2013 email from Cooper (VES 016100) in which Cooper states without further support, 

"[l]et me emphasize that it should be clear from this material previously sent that the Xact multi41 -

VES 019539 
metals CEMS has demonstrated its applicability under a wide range of conditions including the 

conditions expected at the Sauget Veolia HWI; i.e. both wet and dry conditions and temperatures 

exceeding 350F" and a July 17, 2013 email fromKrag Petterson at Cooper (VES 015660-

015663), which states in relevant part "[t]he Xact has been tested in facilities with stack 

temperatures ranging from 100 to 450 degrees Fahrenheit and ranging in moisture content up to 

20%." However, the administrative record does not contain the results of any demonstrations or 

tests where the Xact CEMS has successfully operated in these conditions. 

On September 26, 2012, Pall sent an email providing additional information to Jeff Ryan 

regarding multi-metals CEMS that shows both Pall's lack of objectivity and the Agency's 

abdication of its regulatory role: 

Jeff, 

Per your request for building a case why the Xact 640 Multi-Metals 

CEMS cannot be rejected from monitoring a HWI. 

D. Barth Sept. 26, 2012 email at VES 001368. 

During the pendency ofthe comment period on the proposed reopening, Pall—the entity that 

USEPA relied upon for the technical information concerning the multi-metals CEMS set forth in 

the Statement of Basis for the 2013 permit reopening—abandoned the multi-metals CEMS 

technology, stopped offering the Xact CEMS for sale, and abandoned the multi-metals CEMS 

business. Warchol Aff. at VES 008383. 

After Pall abandoned the technology it once championed, USEPA, rather than internally 

reviewing the technology, next turned to Cooper to obtain answers to fundamental technical 

questions that Veolia raised pertaining to the Xact CEMS. On May 21, 2013, USEPA's 

Measurement Technology Group reached out to Cooper and requested Cooper respond to a 

number of Veolia's comments in the proposed permit reopening including that it was misleading 

for USEPA to state in its Statement ofBasis on the reopening that "[m]ulti-metals CEMS are 

commercially available and have been demonstrated to be reliable for measuring mercury and 

other metal emissions from hazardous waste combustors."19 USEPA ended the email by asking 

Cooper's permission to ask him further questions pertaining to the Xact. Dan Bivens May 21, 

2013 email at VES 016087. 

Throughout 2013, USEPA continued to ask Cooper to provide USEPA with what USEPA's 

response should be on additional fundamental points Veolia raised: the use and availability ofthe 

Xact CEMS (Dan Bivens May 21, 2013 email at VES 016087); how long it would take to order 

and install an Xact CEMS (id); OTM 16 and 20 (Dan Bivens May 23, 2013 email at VES 

015839); the Quantitative Aerosol Generator ("QAG") calibration method (id.); whether the 

MATS rule referenced multi-metals CEMS (Dan Bivens May 23, 2013 email at VES 015711-

015713); and the basic operational technology of the Xact CEMS (Kim Garnett May 23, 2013 

email at VES 012314-012315). See also Krag Petterson July 17, 2013 email at VES 015660-

015663, which addresses several of these issues. 

USEPA has retained this false statement in its Statement ofBasis for the draft 2014 permit at p.59. 

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VES 019540 
Cooper frequently failed to provide a substantive response to USEPA's inquiries concerning the 

legitimate points that Veolia raised. Rather, Cooper would delay responding (John Cooper May 

23, 2013 email at VES 015839); admit that Veolia's comments concerning the Xact 640 not 

being employed elsewhere were true, but provide excuses (Andrea Geiger July 10, 2013 email at 

VES 016102; John Cooper May 29, 2013 email at VES 010411); allege a lack of knowledge 

(id.); or provide non-responsive answers and reference or repeat information from dated 

materials that only relate generally to the Xact CEMS (John Cooper May 28, 2013 email at VES 

010776; John Cooper June 14, 2013 email at VES 010573; John Cooper June 26, 2013 email at 

VES 016100). USEPA failed to evaluate the legitimacy of such responses but rather simply 

included such responses in the administrative record without further analysis. In fact, the 

administrative record is devoid of any critical analyses by USEPA of the Xact CEMS technology 

or the responses Cooper offered. Based upon what is contained in the record, USEPA's 

Measurement Technology Group has little actual knowledge of the technology it is requiring 

Veolia adopt as part ofthe 2014 Draft Permit. 

Incredibly, no one that advocates the installation of the multi-metals CEMS, including Cooper, 

has any knowledge as to whether it is viable at Veolia. In a July 10, 2013 email, Cooper's 

Director of Sales and Marketing states, "I think my main concern is that there simply aren't that 

many stack units in existence, despite the fact that we have proven the technology works." 

Andrea Geiger July 10, 2013 email at VES 010898. The statement in the email that there "aren't 

that many stack units in existence" is an exaggeration—in fact, there are none. David Ogulei, 

Region 5's permit writer, admitted during an October 21, 2014, meeting with Veolia, no multimetals CEMS exists on any commercial hazardous waste incinerator in the world. Warchol Aff. 

at VES 019308. Further, the only reference Krag Petterson of Cooper offered to Veolia for the 

use of the Xact 640 technology was the failed experiment at Eli Lilly over four years ago. 

Warchol Aff. at VES 019309. Cooper's Director of Sales provides the reason that the Xact 

CEMS is not used on any commercial hazardous waste incinerators: "[t]here are a few 

differences (between stack units and ambient units), and certainly the environmental conditions 

for a stack unit are much harsher than for an ambient unit, but the overall technology is exactly 

the same." Andrea Geiger July 10, 2013 email at VES 010898. However, the harsh 

environmental conditions present in Veolia's stacks are precisely why the Xact CEMS is not 

placed in such stacks. A freshwater fish has the same overall makeup as a saltwater fish, but 

would die in saltwater. Environmental conditions matter for the viability of the multi-metals 

CEMS. 

USEPA needs to critically review the Xact 640 and the attendant sampling train. The difference 

between the Xact 640 and the Xact 625 ambient air monitor, which does not require a sampling 

train, are staggering. The Xact 640 multi-metal CEMS used for stack emission monitoring 

requires a sample train to bring the emission sample into the CEMS, while an Xact 625 multimetals CEMS, which is in use as a fence line technology, simply collects ambient air directly. 

This distinction is important because as discussed by Michael Fuchs, Robert Baxter, Chris 

McBride, William Anderson, and the Coalition for Responsible Waste Incineration ("CRWI"), 

whose comments are offered separately, the Xact 640 sample collection methodology and other 

issues such as the multi-metals collecting and releasing from the probe and umbilical will cause 

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VES 019541 
the multi-metals CEMS to be inaccurate. See infra. Figure 1.4. It is not at all clear that a 

sample transport system for a multi-metals CEMS, as applied to Veolia's stacks, could be 

uniquely developed and designed to actually make the CEMS functional. In addition, fence line 

monitoring samples ambient air and is not designed to operate in the harsh high temperature, 

high variable moisture, and constantly changing environment which exists in Veolia's stacks. 

USEPA was created for the purpose of protecting human health and the environment by writing 

and enforcing regulations based on laws passed by Congress. However, in this matter, it has 

relinquished its obligation to protect human health and the environment to third party profit 

seekers who are strangers to commercial hazardous waste incinerators. The Agency has ignored 

the statements of Veolia, the experts in the operation of its incinerators. Rather, USEPA 

requested Pall and Cooper to make a "case" to support requiring Veolia to purchase and install 

their product. Needless to say, Cooper ignored the sampling train problems and the hardware 

and software failures that caused past system failures in more welcoming environments than the 

environment at Veolia. See Sarah Marshall October 4, 2012 email at VES 001470. Pall and 

Cooper responded by telling USEPA what the Agency wanted to hear—an unsubstantiated and 

self-serving conclusion to the effect that the Xact multi-metals CEMS will work to monitor stack 

emissions from a commercial hazardous waste incinerator.21 

During a meeting with counsel for USEPA on September 30, 2014, USEPA's counsel candidly 

admitted that she was unaware of any other occasion when Region 5 required a regulated entity 

to acquire a particular CEMS from a particular manufacturer as Region 5 requests Veolia do in 

its draft permit. See Warchol Aff; Statement ofBasis p. 54. In requiring Veolia to purchase the 

Xact CEMS, the Agency blindly accepted Pall and Cooper's conclusions and ignored the fact 

that Pall ultimately abandoned the technology and Cooper acknowledged the technology is 

untested in the harsh conditions present in Veolia's stacks. The Agency abdicated its regulatory 

obligation to determine whether the technology will effectively protect human health and the 

environment. The Agency had predetermined that the Xact CEMS was going to be required at 

Veolia and transferred the obligation to justify this predetermined answer to Pall and Cooper— 

strangers to Veolia's incinerators with a financial incentive to exaggerate the capabilities ofthe 

CEMS technology. On this basis alone, USEPA's decision is clearly arbitrary and capricious 

and the CEMS requirement should be removed. 

2 0

 Veolia generally offers the joint comments of William C. Anderson, Ph.D., Senior Analytical Project Manager, 

TestAmerica, Inc. and Chris E. McBride, P.E., Focus Environmental, Inc. VES 016777-016795; Robert W. Baxter, 

B3Systems, Inc. VES 016997-017002; Emma York, Evonik Manager, Environmental, Safety, Health and Security, 

VES 007596-007597; Ralph L. Roberson, President, RMB Consulting & Research Inc, VES 008290-008380; 

Michael Fuchs, Project manager in the Measurements Group in URS Corporation's Austin, Texas Office, VES 

007598-7605 and VES 019283-019293; Doug Harris, General manager at Veolia ES Technical Solutions, L.L.C, 

VES 008384-008391; Dennis J. Warchol, Veolia Manager of Environmental, Health and Safety, VES 008381-

008383 and VES 019308-019309; and Delana Owen, Franklin Engineering, VES 007606-007615, (collectively 

"Veolia's Experts") in opposition to the Draft Permit for the reasons stated in each of the comments and further 

referenced herein. 

2 1

 Although Cooper ignored the problems of the Xact CEMS when touting the product to USEPA, Cooper 

recognizes the risks the Xact CEMS's problems pose when his profits are at risk—the product warranty associated 

with the Xact multi-metals CEMS expressly limits Cooper's liability to the purchase price of the Xact. VES 016556-

016557. 

-44-

VES 019542 
D. Region 5 is Unreasonably and Unfairly Requiring Veolia to Install MultiMetals CEMS. 

1. Veolia Is a Small Source of Mercury Emissions In the St. Louis Area 

As evidenced by the permitting and enforcement history set forth above, Region 5's primary 

concern since this process began has been Veolia's mercury emissions.22 However, Veolia's 

yearly mercury emissions are magnitudes lower than other major sources of mercury emissions 

in the St. Louis area. As the table below shows, Veolia's estimated Toxic Release Inventory 

("TRI") emissions for reporting year 2013 were a mere 3.1 pounds of mercury. See Veolia 2013 

Form R at VES 019265-019270. 

Facility State TRI Mercury 

Emissions for 2013 

Reporting Year* 

Method of Calculation Approx. Distance 

& Direction from 

Veolia's Sauget 

Facility 

Labadie Power 

Station 

MO 823.2 lbs/yr published emission factor 36.6 miles west 

Rush Island Power 

Station 

MO 402.5 lbs/yr published emission factor 32.6 miles south 

US Steel - Granite 

City 

IL 223.41 lbs/yr published emission factor 7.5 miles north 

Sioux Power Plant MO 194.9 lbs/yr published emission factor 

19.3 miles 

southwest 

Baldwin Power 

Station 

IL 82.7 lbs/yr 

site-specific emission 

factor 

32.6 miles 

southeast 

Meramec Power 

Plant 

MO 68.7 lbs/yr published emissions factor 

15.9 miles 

southwest 

Mississippi Lime 

Concrete Plant MO 54.16 lbs/yr published emissions factor 45.0 miles south 

Wood River Power 

Station 

IL 41.3 lbs/yr 

site-specific emission 

factor 

18.4 miles north 

Prairie State 

Energy Campus 

IL 40.0 lbs/yr 

site-specific emission 

factor 

35.9 miles 

southeast 

Wood River 

Refinery 

IL 20.0 lbs/yr published emissions factor 17.7 miles north 

Veolia Incinerator IL 3.1 lbs/yr 

site-specific emissions 

monitoring 

0 miles 

•Values are from each facility's 2013 reporting year Form R, arwww.epa.gov/enivro/facts/triform_r_search.html. 

2 2

 This is evidenced by the fact that Region 5's 2013 reopening proposal included greater feedrate limits (i.e., more 

lenient limits) for LVMs and SVMs than those limits Veolia had established through performance testing. See 

Region 5 proposed Title V permit VES 000002-000135 (Jan. 2013). 

-45-

VES 019543 
This pales in comparison to the hundreds of pounds of mercury emitted by sources within a 45 

mile radius of the Veolia facility. Specifically, Veolia is literally surrounded by coal-fired 

utilities that emit hundreds of pounds of mercury on a yearly basis. To the west, the Labadie 

power station emits a whopping 823 pounds of mercury a year. To the south, Rush Island power 

station emits over 400 pounds. To the southeast, Baldwin power station and Prairie State Energy 

(which are only 11 miles apart) combine to emit over a 100 pounds of mercury per year, and, just 

7.5 miles to the north of the Veolia facility, US Steel in Granite City releases over 220 pounds of 

mercury into the atmosphere per year. In relative terms, Veolia's mercury emissions are only a 

tiny portion of the total mercury emissions of the greater St. Louis area. Thus, in relative terms, 

the Agency's continued haranguing of Veolia is misplaced. 

2. Veolia's MACT Metals Emissions Are Below the HWC MACT Limits by a 

Margin of Safety 

Throughout this tortured permitting history, Region 5 has alleged, without ever producing 

evidence (to Veolia or to a neutral third party, such as in an enforcement proceeding), that Veolia 

has been out of compliance with the mercury emission limitations of the HWC MACT. See 

Statement ofBasis at 27-28. Yet, Veolia has maintained compliance with the HWC MACT, has 

kept its emissions below the limits by a margin of safety, and has provided, over the years, 

voluminous data and information to Region 5 documenting Veolia's HWC MACT compliance. 

The HWC MACT, like all MACT rules, is designed to provide emissions limits that provide an 

"ample margin of safety" to protect the public health. See 42 U.S.C. § 7412(d)(4). In other 

words, the limits are set at levels that are low enough to ensure that, even if a source is emitting 

at the limit, the public will be protected. Veolia's emissions are consistently well below the 

applicable standards, particularly for mercury. For example, Veolia's actual mercury feedrate 

(i.e., how much material is actually fed into the incinerator) is, on average, less than V% of 

Veolia's permitted feedrate limit for mercury. (Voluminous emissions data submitted to 

USEPA Region 5 by Veolia over the last five years pursuant to § 114 requests supports this 

assertion.) Thus, by emitting below an already-protective standard, Veolia is providing another 

margin of safety to the public and the environment. 

Further, Veolia does not use extrapolation to establish any of its feedrates for mercury, LVM , 

and SVM, even though it is allowed to do so under the HWC MACT. See 40 C.F.R. 

§§63.1209(l)(l)(v) & 63.1209(n)(2)(vii). Extrapolation allows incinerators to achieve higher 

feedrates for these metals based on calculations made from the facility's CPTs. Veolia does not 

extrapolated metal feedrates from its CPTs—meaning that Veolia's feedrate limits are based on 

the actual test results achieved during the CPT. This practice builds in another layer of safety 

regarding Veolia's compliance with the emissions limits. 

3. The Requirement of the Xact CEMS Saddles Veolia with Unwarranted 

Cost 

USEPA makes it clear that the only multi-metals CEMS technology it considers to be 

commercially available is the technology that the Xact multi-metals CEMS utilizes. Statement 

ofBasis at 54 n.16. By requiring Veolia to exclusively use the Xact CEMS, USEPA 

relinquished its independent status by advocating on behalf of Xact and reduced the incentive for 

-46-

VES 019544 
technical advancement while also prejudicing Veolia's rights as a consumer. If the Veolia 

permit were modified as proposed, in theory Cooper could charge Veolia any price it wishes for 

the Xact multi-metals CEMS. Roberson VES 008290-008302. 

Further, the administrative record reflects that, while Cooper really has no idea what the precise 

cost will be to Veolia, the cost will be substantial. On September 16, 2013, Cooper's Project 

Manager sent an email to USEPA stating: 

[Fjirst costs for purchase/mstallation/certificatiori/training of a M M CEMS are 

anticipated to be approximately $365,000-$400,000*. The instrument runs about 

$260,000 of that cost. Annual costs will likely be about $25,000.** 

* Factors such as transport length, remote control/polling options, sampling 

interval (i.e. shorter sampling intervals require more tape), and installation 

complexities will have an impact on the overall initial budget for M M CEMS. 

**Annual costs depend largely on sampling interval. For a 30 minute sampling 

interval, filter tape costs run about $19,500/year. 15-minute sampling intervals 

double that amount annually. In addition, we recommend that companies budget 

for an annual X-ray tube replacement and re-calibration (appx. $5-6K). Annual 

labor generally requires one technician approximately 8-10 hours per month for 

tape changes and general operation and maintenance tasks. 

Andrea Geiger Sept. 16, 2013 email at VES 015664. On March 24, 2014, Region 5 placed a 

memorandum in its file detailing a phone call with Cooper which states in relevant part: 

Each unit's purchase cost is about $250K. Approx. $900k ballpark total for 3 

units including installation and testing but can't say for sure. Would need to visit 

the facility and do an appraisal of what is needed. 

David Ogulei March 24, 2014 Phone Call Record at VES 010644. Two days later, on March 26, 

2014, Region 5 placed another memorandum in its file detailing another phone call with Cooper 

which states in relevant part: 

Each unit's purchase cost is about $250K. Approx. $900K ballpark total for 3 

units including installation and testing but can't say for sure. Would need to visit 

the facility and do an appraisal of what is needed. 

Operating costs primarily come from filter tape. For continuous operation (15 

min samples), filter tape would cost $780 per roll per week ($41k per year) per 

unit. Total operating cost is approximately $50k per year per unit. 

David Ogulei March 26, 2014 Phone Call Record at VES 010622. Cooper kept its monetary 

options flexible by including variable cost factors that could be used to increase the price. 

Clearly, Cooper had an incentive to quote low prices to USEPA in order to appear reasonable to 

USEPA while attempting to use USEPA to force the third party regulated entity to purchase the 

-47-

VES 019545 
Xact CEMS. Similarly, USEPA had no reason to contest the prices quoted since it did not come 

out of USEPA's budget.23 CRWI provides a more realistic cost figure for the deployment and 

implementation of the Xact CEMS, which is based upon its members' experience. CRWI 

estimates the total costs to comply with the multi-metals CEMS requirement in the 2014 Draft 

Permit will be more than $2.2 million. See CRWI comments on Veolia's 2014 Draft Permit. 

Further, substantial additional costs will be incurred for procurement of the sampling probes and 

transport systems, for site construction costs for the enclosures to house three multi-metals 

CEMS, for power and other utilities to be supplied to the CEMS, and for incinerator control 

system enhancements (to be performed by a third-party contractor) to integrate required data 

transfer between the CEMS and Veolia's control system. As a private party, Veolia should not 

have to bear these extreme costs for what amounts to a joint research project between Cooper 

and USEPA. 

The fact that USEPA is "only" requiring the multi-metals CEMS for one year is of no help to 

Veolia. There is no secondary market for the Xact CEMS—once they are installed, the loss to 

Veolia is permanent. Further, although USEPA states "Veolia may discontinue use of the CEMS 

once EPA has sufficient information to verify the efficacy of the feedrate limits in assuring 

compliance with the HWC MACT emissions limits," given the numerous and varied information 

requests Veolia has received over the last several years, USEPA may very well never determine 

that it has enough information, and hence never allow Veolia to remove the CEMS. 

In sum, without further explanation from USEPA, USEPA's sole source requirement that Veolia 

install the Xact 640 CEMS is improper. USEPA's demonstrated desire to force someone other 

than Cooper to bear the cost of researching and developing the Xacts also appears on its face, 

without further explanation, to be improper. USEPA is falsely stating in the draft permit that the 

Xact CEMS are "temporary" while leaving itself great leeway to make them permanent. 

USEPA's actions are unwarranted, prejudicial against Veolia and are not rationally based. 

Therefore, the CEMS requirement should be removed from the 2014 Draft Permit. 

4. Region 5's Requirement that Veolia Install the Xact CEMS Places Veolia 

at an Unfair Competitive Disadvantage 

Veolia's Sauget, Illinois facility exists for one reason—to incinerate waste safely and 

compliantly. Companies in the commercial hazardous waste incineration industry compete 

nationwide for business and each company in the industry is required to hold a Title V operating 

permit under the CAA. Through the draft permit, USEPA seeks to impose onerous and unfair 

permit conditions on Veolia—conditions that are being imposed on no other commercial 

hazardous waste incinerator in the nation—that threaten to shut down Veolia's three incineration 

2 3

 The United States government requires certain precautions be taken and documented if it were to award a 

contractor with a sole source contract. See e.g. Federal Acquisition Regulation (FAR) Part 6, 48 C.F.R. Part 6; 

Competition in Contracting Act, 41 U.S.C. § 3301, et seq. However, USEPA has not allowed Veolia to take similar 

precautions. USEPA has prevented Veolia from seeking a competitive bid by instructing Veolia that Veolia must 

purchase the multi-metals CEMS from Cooper. Likewise, despite assurances to USEPA that its multi-metals CEMS 

will perform within Veolia's stacks, Cooper limits its own liability through its product warranty for the Xact multimetals CEMS that expressly limits Cooper's liability to the purchase price of the Xact. USEPA is not dealing fairly 

with Veolia. 

-48-

VES 019546 
units and increase Veolia's operating costs to such an extent that the economic viability of 

Veolia's facility is in jeopardy. 

Veolia has done nothing wrong to deserve Region 5 acting in such a prejudicial manner against 

it. Veolia is in compliance with the HWC MACT standard. USEPA admits Veolia's existing 

FAP includes verbatim all of the feedstream analysis provisions set forth in the HWC MACT 

rule and required by 40 C.F.R. §63.1209(c)(2)(i) through (vi). See Charles Hall July 18, 2012 

Memo, at VES 001293; Statement ofBasis at 47. As a policy matter, USEPA has already 

determined, through promulgation of the HWC MACT, that feedstream analysis is the best 

method for ensuring that the OPLs are assuring compliance with the emissions limits. USEPA's 

inclusion of multi-metals CEMS in Veolia's permit as a "parametric monitor" for the FAP is 

unprecedented. See Warchol Aff. at VES 019308; Fuchs Aff. at VES 019293. Veolia's reliance 

on its FAP is authorized by the HWC MACT and has been proven to be effective through CPT 

testing. The CPT testing was performed pursuant to a plan that USEPA approved and the testing 

was conducted while USEPA was present. No other commercial hazardous waste incinerator in 

the United States has the requirement of a multi-metals CEMS as a parametric monitor or 

otherwise. 

Veolia simply requests that Region 5 treat it identically to its competitors and stop acting in a 

prejudicial fashion towards it. Region 5's requirement for the installation of three multi-metals 

CEMS is baseless. Region 5 should be able to satisfy any question it has concerning the 

adequacy of Veolia's feedrates by working within the framework ofthe HWC MACT and, if 

necessary, creating a more robust FAP. USEPA has not subjected Veolia's competitors, each of 

who operate pursuant to OPLs and a FAP in order to meet the HWC MACT requirements, to a 

multi-metals CEMS requirement. In light ofthis, during meetings with Region 5, Veolia has 

offered to operate pursuant to a FAP that USEPA has already approved for Ross. Warchol Aff. 

at VES 019308. Region 5 has rebuffed Veolia's offer without consideration or explanation. 

Region 5's actions toward Veolia are prejudicial. Moreover, the installation of a multi-metal 

CEMS on each of Veolia's incinerators—when none of Veolia's competitors are required to 

install and maintain such costly equipment—simply has no rational basis. 

5. Region 5 's Draft Permit Condition Requiring the Installation of MultiMetals CEMS Within 365 Days Is Impractical 

The proposed 2014 Veolia permit states in relevant part: 

The Permittee shall install, calibrate, maintain and operate an x-ray 

fluorescence multi-metals CEMS for use as a continuous parametric 

monitoring system (CPMS) on Units 2, 3 and 4 within 12 months (365 days) 

after this permit becomes effective, unless the Administrator determines that a 

time extension is warranted based on the Permittee's documentation in writing 

of factors beyond its control that prevent the Permittee from meeting the 12-

month deadline. 

-49 -

VES 019547 
2014 Draft Permit at 34 (VES 009111). USEPA's belief that three multi-metal CEMS can be 

installed, be calibrated, be operational and receive regulatory approval within a year is not 

supported by the administrative record. 

As already related herein, Region 5 has a sordid history of inaction and delay in meeting 

regulatory deadlines with regard to Veolia's facility. The Agency failed to offer any comments 

on Veolia's first Title V draft permit application; it failed to meet the mandatory deadline for 

ruling upon Veolia's past application for significant modification; it has failed to take any action 

to conclude various NOVs/FOVs issued throughout the years; and it abandoned its efforts to 

reopen Veolia's Title V permit. Given this track record, Veolia has no confidence that Region 5 

could act in a timely fashion to approve the CEMS or grant an extension of time in the absence 

of approval. 

Further, the record does not support that multi-metals CEMS can be installed and operational 

with regulatory approval on Units 2, 3 and 4 within 12 months. In 2012, Pall, the exclusive 

distributor of Cooper's multi-metals CEMS technology, informed Veolia that Pall could not 

deliver, install, calibrate and have one exact multi-metals CEMS operational within 180 days. 

On July 18, 2013, Cooper represented to USEPA in an email that it would take 4 to 5 months to 

deliver one unit and another 2 to 3 months to get the Relative Accuracy Test Audit ("RATA") 

scheduled and completed on that one unit. See Cooper July 18, 2013 email at VES 015660. Less 

than a year later, Cooper revised its projection in a March 24, 2014 phone call with USEPA and 

stated: 

[bjuilding the units would not be a problem. 9 months should be adequate to 

install and begin operating the three units. 12 months should definitely not be a 

problem. Variables include the types of stack modifications and other sitespecific facility modifications needed to accommodate the CEMS. 

David Ogulei March 24, 2014 Phone Call Record at VES 010644. However, Cooper's estimated 

timeframe only accounts for the Xact CEMS and not for other variables. Variables unique to 

each installation such as the construction of the sampling train, electrical needs, the construction 

of shelters and the programming are not accounted for by Cooper because these unique items are 

constructed by others. Based on Veolia's experience, these variables will take at least 24 to 36 

months to construct and become permitted after the CEMS are delivered and receive regulatory 

approval. Warchol Aff. at VES 019308-019309. Further, USEPA ignores timeframes set forth in 

its own regulations for the installation and performance tests of newly acquired CEMS. See 40 

C.F.R. Part 51, Appx. P (provides affected sources 18 months or more to install and perform 

tests on newly required CEMS). Additionally, documents in the administrative record reflect 

that it took Eli Lilly three years to resolve installation problems and to obtain the necessary 

regulatory approval to operate one Xact CEMS as an alternative method. See VES 001013. 

USEPA has requested three multi-metals CEMS be installed at Veolia. Veolia therefore expects 

the time necessary to get these units sufficiently operational for USEPA's approval will be two 

years or more. Veolia uses the incinerators every day. It cannot wait two years or longer to 

operate its incinerators while USEPA considers whether the multi-metals CEMS are properly 

installed, calibrated, maintained and operational for Veolia to obtain the necessary regulatory 

approval from USEPA. 

-50-

VES 019548 
The proposed permit provides that an extension of the 12-month deadline is available if the 

"Administrator determines a time extension is warranted based on the Permittee's documentation 

in writing of factors beyond its control that prevent the Permittee from meeting the 12 month 

deadline." 2014 Draft Permit at 34. Veolia is inthe incineration business and the incinerators 

are its business. Veolia cannot operate its business on the vagaries of whether an extension of 

time is warranted based upon the Agency's evaluation and determination of whether something 

is under Veolia's control. To operate its business effectively, Veolia must have more certainty 

than is offered in the proposed permit. 

Further, Veolia is inthe business of safely disposing of hazardous waste, not installing and 

testing CEMS. Nor is Veolia in the business of installing and operating CEMS as a research 

project for Region 5. Region 5 has nothing at stake in proposing that Veolia install three multimetals CEMS. Similarly, Veolia cannot afford to bet the future viability of its operations on the 

representations of someone like Cooper, who has a vested financial interest in misrepresenting 

the timeframe that his product can be produced, installed and approved by USEPA. 

In light of the Agency's inability to meet deadlines throughout Veolia's permitting history and 

Eli Lilly's efforts for three years to make the CEMS operational and obtain regulatory approval, 

USEPA does not have a track record of promptly evaluating and responding to submissions 

related to this technology. The practical result, should the proposed modifications to the permit 

be forced upon Veolia, is that Veolia will have to shut down its Sauget operations because the 

multi-metals CEMS cannot be delivered, installed, calibrated and operational within the 12-

month deadline. Thus, as drafted, the proposed permit is equivalent to a shut-down order 

directed to Veolia. 

6. USEPA Should Promulgate a National Standard That Attempts to Impose 

Multi-Metal CEMS On All Hazardous Waste Combustors 

Region 5 posits that the multi-metals CEMS are necessary to "verify that the feedrate limits and 

the feedstream analysis procedures proposed in this Title V permit renewal are sufficient to 

assure continuous compliance with the HWC MACT emissions limits" Statement ofBasis at 54 

(VES 009303). Specifically, Region 5 sets forth that CEMS are necessary to correct deficiencies 

with the monitoring requirements currently devised under the HWC MACT: 

[fjeedstream analysis generally poses several challenges including the 

uncertainty associated with 1) measurement of extremely low metal 

concentrations in the feedstream (i.e., concentrations at or near the detection limit 

of the measurement device); 2) heterogeneity of the hazardous waste, which may 

lead to a non-representative sample and hence an inaccurate estimate of the metal 

feed concentration; and 3) inability to demonstrate continuous compliance with 

MACT limits, as required by the HWC MACT, since there is generally a 

considerable time lag between sampling and analysis. 

The uncertainties caused by feedstream analysis can be largely resolved when a 

well-maintained and operated CEMS is used to directly identify deviations from 

emission limitations that may result from inaccurate or insufficient feedstream 

analysis. 

- 51 -

VES 019549 
Statement ofBasis at 56 (VES 0009305). The purported challenges enumerated by USEPA are 

not unique to Veolia; rather, if they exist at all, they are common to each and every emissions 

source regulated under the HWC MACT. As currently devised, the HWC MACT requires 

sources to employ a system of OPLs and feedstream analysis to ensure that they meet the 

emissions limits set forth for mercury, SVMs, and LVMs. See 40 C.F.R. § 63.1209(1) ("You 

must comply with the mercury emission standard by establishing and complying with the 

following [OPLs]"); § 63.1209(n) ("You must comply with the semi volatile metal (cadmium 

and lead) and low volatile metal (arsenic, beryllium, and chromium) emission standards by 

establishing and complying with the following [OPLs]"); and § 63.1209(c) ("Prior to feeding the 

material, you must obtain an analysis of each feedstream that is sufficient to document 

compliance with the applicable feedrate limits provided by this section"). For Veolia alone, 

Region 5 is now stating that the explicit directives ofthe HWC MACT are insufficiently certain 

and that multi-metals CEMS are necessary to assure the feedstream analysis complies with the 

standard. Because all hazardous waste combustors in the United States rely on OPLs and 

feedstream analysis to comply with the HWC MACT emission limits, Region 5's apparent 

change in policy regarding the adequacy of OPLs and feedstream analysis should be applied to 

all hazardous waste combustors—not just Veolia. 

In light of Region 5's pronouncement, all sources under the HWC MACT must now be 

concerned that reliance on a FAP to meet OPLs, without a multi-metals CEMS, could cause 

them to be out of compliance and possibly subject to enforcement. Moreover, in the very least, it 

is unclear whether USEPA still believes feedstream analysis is sufficient to maintain compliance 

with the standards. Thus, because USEPA has now created uncertainty over a whole class of 

sources regarding the appropriate means of compliance, the Agency should undertake industrywide notice and comment rulemaking to propose multi-metals CEMS and the enhanced 

feedstream requirements now being proposed for Veolia. Such rulemaking would have several 

advantages over imposing these requirements in piecemeal fashion in individual Title V permits. 

Specifically, it would allow the entire hazardous waste combustor industry to work with the 

Agency in developing these monitors for the purposes of compliance. This would advance the 

technology further and faster and lead to better overall metals monitoring across the entire 

industry. Promulgating the use of multi-metals CEMS across the entire industry would also 

spread the costs of development among all sources regulated under the HWC MACT—instead of 

arbitrarily and capriciously imposing all of those costs on Veolia. Finally, and most importantly, 

if USEPA believes that the current system of OPLs and feedstream analysis does not sufficiently 

assure compliance with the HWC MACT, then the Agency has a duty to the public to 

promulgate a rule requiring the development of multi-metals CEMS across the entire hazardous 

waste combustor industry. See 42 U.S.C. § 7661c(b). 

2 4

 For statement number three, USEPA offers no explanation as to what is meant by "lag" with regard to the 

sampling and analysis performed pursuant to the FAP; nor is it clear how this relates to HWC MACT compliance. 

Veolia characterizes its waste stream for metals prior to incineration. Further, as written, USEPA's third statement 

is vague and confusing and is thus arbitrary and capricious. 

-52-

VES 019550 
E. Region 5's Representations Concerning Multi-Metals CEMS Technology are 

Incorrect, Misleading and Unsubstantiated 

USEPA must provide proof of its statements in support of its permitting decision, not just make 

unsupported assertions. See Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 

936, 954 (D.C. Cir. 2004). Unfortunately, the Statement ofBasis contains numerous incorrect, 

misleading or unsubstantiated statements on critical issues in the 2014 Draft Permit. 

Region 5's substantive discussion of multi-metals CEMS technology begins in the Statement of 

Basis on page 52 under §5.3, entitled "Multi-Metals Continuous Monitoring Requirements," and 

ends on page 63. Veolia's specific comments on these provisions are as follows. 

1. Veolia's Comments on §5.3.1 (Overview of Requirements) 

The Agency's entire argument that Veolia should be required to install multi-metals CEMS to 

monitor each of its stacks is premised, in large part, on a simple belief: 

During the period in which the multi-metals CEMS is operating, a correlation can 

be determined between the emissions concentration values reported by the multimetals CEMS and the feedrate concentrations reported through feedstream 

analysis. Veolia then will use the data from the multi-metals CEMS as an 

indicator of whether or not the feedrate limits are sufficiently stringent to assure 

continuous compliance with the metals emissions limits in the HWC MACT at 

each of the combustion units. 

Statement ofBasis at 54. 

Region 5's belief that a correlation between the multi-metals CEMS data and the feedrate 

concentrations reported through feedstream analysis is wrong. A multi-metals CEMS has never 

been attached to an operating commercial hazardous waste incinerator and accurately reported 

multi-metal emissions concentration values. Further, an EPA approved method has never 

successfully been used to correlate the results of a multi-metals CEMS to materials fed into a 

commercial hazardous waste incinerator as part of a feedstream analysis plan. There is simply 

no evidence to support that under such conditions a correlation can be accurately made between 

the emissions concentration values reported by the multi-metals CEMS and the feedrate 

concentrations reported through the feedstream analysis. 

The evidence is that, given the conditions at Veolia, no correlation can in fact be made. Veolia 

has offered evidence based on published reports and expert statements of individuals who have 

relied upon published reports and extensive personal experience sampling for particulate material 

which would include multi-metals. See comments of Veolia's Experts (citations provided supra 

in note 20.) As reflected in Veolia's Experts' statements and in figures below, the evidence 

shows that the Xact 640 CEMS has many problems. One of these problems is that metals will 

accumulate in the probe and umbilical and the metals will not be sampled by the multi-metals 

CEMS contemporaneously with the material being incinerated. 

-53-

VES 019551 
Figure 1.1 

Figure 1.2 

-54-

VES 019552 
Figure 1.3 

Therefore, a correlation between the multi-metals CEMS data and the material being incinerated 

cannot be established. 

-55-

VES 019553 
Unfortunately, Region 5's inaccurate belief as to the multi-metals CEMS ability and the 

Agency's failure to consider likely problems in the sample acquisition system significantly 

prejudice Veolia: 

Under EPA's proposal, the multi-metals CEMS will provide evidence of 

deviations that may demonstrate that the feedrate limits in the Title V permit are 

not stringent enough to assure compliance with the HWC MACT limits at all 

times. 

Statement ofBasis at 55. Forthe reasons set forth above, multi-metals CEMS data created at 

Veolia is too unreliable to be used as evidence. Region 5 should not use such data to determine 

Veolia's feedrates. Any attempt by the Agency to set feedrate limits based upon such data will 

lead to inconsistent and prejudicial results. 

2. Veolia's Comments on §5.3.2, "Multi-Metals CEMS and Feedstream 

Analysis" 

Region 5 sets up strawman arguments for challenges posed by feedstream analysis with regard to 

HWCs without citation to any authority or evidentiary support. See Statement ofBasis at 56. 

These challenges were present when the HWC MACT was developed. If Region 5 has issues 

with the HWC MACT, the appropriate manner in which to address such issues is through 

rulemaking and not through the Title V process. In any case, absent evidentiary support, Region 

5's assertions against the feedstream analysis procedures set forth in the HWC MACT cannot be 

validated or even reasonably evaluated. 

While a multi-metals CEMS might in theory address the challenges presented by Region 5 as 

being associated with feedstream analysis, multi-metals CEMS are not approved for use in the 

HWC MACT nor are they included in Title V or its implementing regulations. Moreover, the 

multi-metals CEMS technology has not been analyzed and verified by USEPA or sources 

regulated under the HWC MACT. Rather, as evidenced by the documents the Agency has 

placed in the administrative record, the only entity that claims to have vetted and verified the 

multi-metals CEMS is Cooper, who has a pecuniary interest in its success. 

Region 5 states "[t]he uncertainties caused by feedstream analysis can be largely resolved when a 

well-maintained and operated CEMS is used to identify deviations from emissions limitations 

that may result from inaccurate or insufficient feedstream analysis." Statement ofBasis at 56. 

(VES 0009305). This statement has no support or evidentiary basis. In fact, the phrase "wellmaintained and operated CEMS" is nonsensical in relation to an Xact multi-metals CEMS since 

none are currently in operation at any hazardous waste incinerator. Fuchs Aff. at VES 019292. 

Veolia requests Region 5 specifically define what is meant by this statement. At most, Region 5 

is using such terms in order for Region 5 to have a defense that the CEMS were not "wellmaintained and operated" when they are ultimately unsuccessful at Veolia. 

USEPA has made unwarranted assumptions with regard to the CEMS technology and has 

offered no evidence that it has independently substantiated any ofthe claims. In contrast, Veolia 

has offered a great deal of unrefuted evidence that the CEMS technology will not work in 

Veolia's incinerators. See Statements by: Ralph Roberson, President of RMB Consulting & 

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VES 019554 
Research (VES 008290-008380); Michael Fuchs with URS Corporation (VES 007598-007605 

and VES 019283-019293); Emma York with Evonik Industries (VES 007596-007597); Dennis 

Warchol with Veolia (VES 008381-008383 and VES 019308-019309); Robert Baxter with B3 

(VES 016997-017002), William Anderson with TestAmerica and Chris McBride with Focus 

Environmental, Inc. (VES 016997-017002; VES 016777-016795). 

3. Veolia's Comments on §5.3.3, "Deficiencies in Veolia's Current 

Emissions Monitoring Procedures " 

(i) Region 5 incorrectly views as a deficiency the fact that Veolia's 

October 2013 comprehensive performance tests revealed that 

Veolia's three incineration units have significantly different 

emissions that may not be linear 

Region 5 has always required Veolia to test its three incineration units separately, believing that 

each would have significantly different emissions. Region 5's view on this point is set forth in 

detail in a memorandum from Charles Hall, an environmental engineer with Region 5, which 

discusses, in relevant part, Veolia's CPT test plan and Region 5's rejection of Veolia's request to 

use data from Incinerator #2 to establish OPLs for Incinerator #3: 

Veolia wanted to use test data from Incinerator #2 to demonstrate compliance and 

establish OPLs for Incinerator #3... [however] Veolia has not yet demonstrated to 

EPA's satisfaction that Incinerators #2 and #3 are identical: Incinerator #2's 

baghouse has four modules, and Incinerator #3's baghouse has three modules. 

This difference may affect the emissions of dioxin/furan, mercury, PM, SVM, 

LVM , and HCL/CL2 ... hazardous waste incinerators burn wastes that can vary 

widely in their heat content and elemental composition. Waste streams can vary 

from one hour to the next. Liquid wastes can separate into two or more phases. 

Consequently, EPA cannot reasonably assume that a hazardous waste incinerator 

- especially one such as Veolia that accepts hazardous waste from numerous 

generators - burns a homogenous waste stream. 

VES 007534-35. Thus, Region 5 has always required Veolia to test Units #2 and #3 separately. 

Similarly, USEPA has always required that Unit 4 be tested separately due to its carbon injection 

control system which makes it difficult to compare Unit 4's emissions to those of the other units. 

VES 007533-007536. Test results that show different emissions of mercury from Units #2 and 

#3, despite nearly identical mercury feedrates to Units #2 and #3 are consistent with Region 5's 

pre-existing beliefs. 

Thus, nothing has changed from Region 5's initial view and this point cannot now be identified 

as a "deficiency" in support of a multi-metals CEMS. 

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VES 019555 
(ii) Veolia's CPT results demonstrate compliance while generating 

emissions under the worst case operating conditions for the 

particular combination of wastes incinerated and combustion 

conditions at the time of the test 

To demonstrate compliance during periods between compliance tests, the HWC requires sources 

comply with OPLs that are representative of operating levels achieved during compliance testing 

required by the HWC MACT. See 40 C.F.R. § 63.1207; Statement ofBasis at 37. Region 5 

admits that the emission levels achieved during compliance tests are typically the highest 

emission levels a source emits under reasonably anticipatable circumstances. See 69 Fed. Reg. 

21197, 21218 (April 20, 2004); see also 40 C.F.R. §§63.1206(b)(2), 63.1207(f)(1), (g)(1); 

Statement ofBasis at 39. Despite USEPA's admissions, and the regulations which support these 

admissions, Region 5 attempts to limit the applicability ofthe CPT by stating "[t]he CPT 

demonstrates compliance only for the particular combination of wastes incinerated and 

combustion conditions at the time of the test." Statement ofBasis at 59. Region 5's efforts are 

similar to someone questioning a successful Mount Everest mountain climber's ability to climb a 

flight of stairs. 

CPT test plans are designed "to generate emissions under worst case operating conditions" in 

order for a source to "establish OPLs that account for variability in operations (e.g., composition 

and feedrate of waste, as well as variability of pollution control equipment efficiency) and that 

do not impede normal operations." Statement ofBasis at 39; 69 Fed. Reg. at 21309-10, nn. 202 

& 204. Region 5 found that Veolia's revised CPT plans and Quality Assurance Project Plan 

("QAPP") were complete, as required by the HWC MACT, and therefore approved Veolia's 

CPT test plan and QAPP in correspondence dated September 27, 2013. VES 019294-019295. 

Following the completion of the testing, the Agency reviewed Veolia's CPT test report dated 

January 28, 2014, and Veolia's Notification of Compliance dated January 28, 2014, and 

determined that there is sufficient information to enable Region 5 to establish OPLs for mercury, 

S VM and LV M that satisfy the requirements ofthe CA A and the HWC MACT. VES 009289. 

Thus, Region 5 approved both Veolia's test plan and the accuracy of Veolia's test results. Given 

Region 5's intimate involvement in every step of Veolia's CPT testing, Region 5 cannot now 

credibly allege that such testing was not under the worst case operating conditions or otherwise 

limit the applicability of the results in any fashion. 

4. Veolia's Comments on §5.3.4, "Availability of Multi-Metals CEMS" 

Paragraph 1 contains three principal assertions: 1) multi-metals CEMS are commercially 

available; 2) they have been demonstrated to be reliable; and 3) the multi-metals CEMS will 

allow Veolia to measure compliance in "real time." These assertions are wholly unsupported by 

the facts. 

Region 5 makes absolutely no effort to provide support to its first statement in paragraph 1, 

"[m]ulti-metals CEMS are commercially available and have been proven to be reliable for 

measuring actual emissions of HAP metals from a hazardous waste combustor." Statement of 

Basis at 59. The fact is that multi-metals CEMS have not been proven to be reliable in daily use 

at a commercial hazardous waste incinerator such as Veolia. 

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VES 019556 
The Statement ofBasis goes on to allege "EPA has monitored side-by-side evaluations of multimetals CEMS with EPA Method 29 ... at industrial waste incinerators and found good 

correlation between the two methods." Id. As a reference for this statement, USEPA cites to 75 

Fed. Reg. 31,962 (June 4, 2010). The quote used in the Statement ofBasis is copied directly 

from the Federal Register. Unfortunately, the Federal Register excerpt appears in the preamble 

to a proposed rule and cannot be verified because it contains no reference or documentation. As 

Michael Fuchs discusses at length in his comments, multi-metals CEMS have never been 

demonstrated against USEPA Method 29. Fuchs Aff. at VES 019283-019293. 

USEPA admits that multi-metals CEMS are not required in the recently promulgated mercury 

and air toxics (MATS) rule, although "EPA considers multi-metals CEMS as an accepted option 

for metals emission compliance." 77 Fed. Reg. 9303 (Feb.16, 2012). The term "multi-metals 

CEMS" does not appear in MATS. The MATS rule does state that an affected facility may 

comply with the metal HAP emission limits using a CEMS approved in accordance with § 

63.7(f) as an alternative to the test methods specified in the MATS rule.25 Assuming that a 

"HAP metals CEMS" is functionally equivalent to a "multi-metals CEMS," under the rule, a 

facility that wishes to use that alternative has the burden of selecting the CEMS, and developing 

the site-specific testing procedures. The MATS rule contains no performance specifications for 

the HAP metals CEMS, despite the fact that OTM 16 and OTM 20 existed at the time the MATS 

rule was issued. The MATS rule states that an affected facility may petition the Administrator to 

use a HAP metals CEMS as an alternative method. USEPA failed to consider that a multi-metals 

CEMS is only an acceptable option for metals emission compliance in the MATS rule "if 

approved as part of an alternative monitoring request." See 11 Fed. Reg. at 9,304, 9,386. 

Further, the Agency suggests in the Statement ofBasis that a regulated entity's ability to petition 

USEPA to use a HAP metals CEMS as an alternative method supports requiring multi-metals 

CEMS for measuring actual emissions from a hazardous waste combustor. This is unjustifiable 

and misleading. In fact, the MATS rule establishes that multi-metals CEMS are not 

commercially available and are not a demonstrated alternative that USEPA can require without 

evidence that it is proven to be reliable. 

The second paragraph states, without substantiation, that "EPA recently evaluated, at several 

facilities, a commercial version of a multi-metals CEMS capable of measuring up to 20 or more 

HAP metals in real time." The statement fails to identify the facilities or type(s) of facilities, the 

test conditions (including whether the tests were conducted in commercial hazardous 

incinerators), whether the version evaluated is the same as the version Region 5 discusses 

throughout the rest of the Statement ofBasis, whether the version evaluated in fact measured 20 

or more HAP metals in real time, and what the results of that evaluation were. Absent such 

information, the sentence provides no support to the Statement ofBasis discussion. 

The remainder ofthe second paragraph relies upon materials that Cooper developed or 

contributed to as support for the statements contained therein. See Statement ofBasis at 59-60 & 

nn.51-55. Region 5 fails to consider Cooper's vested interest in reporting that the CEMS was a 

77 Fed. Reg. 9478 (Feb. 16, 2012). 

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VES 019557 
success. The Agency has offered no evidence that USEPA independently verified the claims 

made by these entities. 

The third paragraph reflects the Agency's continued failure to independently evaluate the Xact 

multi-metals CEMS: 

Cooper Environmental Services has also developed and received EPA approval 

for a Quantitative Aerosol Generator (QAG), which generates a reference aerosol 

for calibrating the multi-metals CEMS and for performing relative accuracy test 

audits (RATAs) ofthe multi-metals CEMS. Yanca et al. evaluated both the Xact 

and the QAG using a modified EPA Method 301 at a hazardous waste combustor 

by comparing measured and reference aerosol concentrations. The authors found 

that both the Xact and the QAG met the Method 301 validation criteria with 

precisions and accuracies on the order of 5 percent over a wide range of 

concentrations. 

Statement ofBasis at 60 (footnotes omitted). Region 5 fails to cite to any independent 

verification of the QAG. Historically, a group of companies have designed, developed and 

marketed CEMS (e.g., Thermo Fisher, Monitor Labs, California Analytics, etc.). Another 

completely independent group of companies have manufactured and supplied the market with 

calibration gases (e.g., Air Liquide, Airgas, Linde, etc.). Roberson Aff. at VES 008295. In the 

present case, USEPA failed to consider problems that may arise due to Cooper, the developer, 

providing both the available performance specifications and the calibration materials. Region 5 

has instructed Veolia to purchase and install the multi-metals Xact CEMS sold by Cooper, use 

the draft performance specifications written by Cooper to determine whether the CEMS operates 

accurately, and calibrate the CEMS to determine accuracy by using materials supplied by 

Cooper. USEPA's total reliance on Cooper is not appropriate—specifically in light ofthe 

undeveloped state ofthe multi-metals CEMS technology and its questionable accuracy—because 

Cooper has pecuniary incentives to represent the technology had capabilities beyond it limits. 

Without other companies' participation, no independent means exist to establish that the Xact 

CEMS produces accurate and reliable data for compliance. 

Further, the references Region 5 provides in paragraph 3 and in footnotes 56 and 57 also show 

the Agency's failure to consider Cooper's vested interest in reporting that the CEMS was a 

success. USEPA has offered no evidence that USEPA independently tested the assertions it 

repeats from these sources. 

Incredibly, USEPA uses paragraph 4 to tout in a positive fashion the Xact CEMS which failed at 

the former Eli Lilly facility. The Xact CEMS failed on the Eli Lilly non-commercial hazardous 

waste incinerator due to software and firmware problems and was removed from service 

permanently in August of 2011 by Evonik, the owner of the facility. Evonik Aff. at VES 

007596. During its operation, Evonik used the Xact CEMS in a very limited capacity, namely 

during RATA and performance testing only; found the Xact CEMS to be costly in terms of time 

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VES 019558 
and maintenance; and never relied on it for official monitoring purposes under the site's Title V 

permit. 2 6 Evonik Aff. at VES 007596-007597. 

The Agency also failed to consider the differences between the former Lilly Incinerator and 

Veolia's incinerators. An obvious difference is that, when Evonik operated the incinerator, it 

was not a commercial hazardous waste incinerator like Veolia's. Evonik Aff. at VES 007596. 

Veolia's incinerators, and commercial hazardous waste incinerators like Veolia's, receive widely 

diverse waste streams from unrelated industries which, Region 5 recognizes, results in a 

heterogeneous waste stream. Statement ofBasis at 50 (VES 009299). Due to the variety of 

feedstreams Veolia accepts, the significant variance in metals content would likely affect the 

ability of multi-metals CEMS to produce valid data over an extended period. Fuchs Aff. at VES 

007600. 

Most incinerators, including the former Eli Lilly incinerator, employ wet scrubbers or a 

combination of wet scrubbers and baghouses as their pollution control equipment. The off gases 

from incinerators using wet scrubbers have similar moisture and temperature ranges. The 

suppliers of the Xact Multi-Metals CEMS claim that the Xact analyzes the off gas emitted from 

an incinerator to determine the amount of metals in the emissions stream. Unlike wet scrubber 

systems such as that employed by the Lilly Incinerator, Veolia operates a dry pollution control 

system on Units 2, 3 and 4 of its Sauget facility. To Veolia's knowledge, only one other 

exclusively dry system operates in the United States: the Clean Harbors incinerator in Kimball, 

Nebraska. Veolia's dry pollution control systems operate at much higher moisture and 

temperature ranges than wet scrubber systems. Region 5 offers no documentation demonstrating 

that the Xact Multi-Metals CEMS has successfully operated in the high variable moisture and 

high temperature environment presented by Veolia's incinerators. Warchol Aff. at VES 008381-

008382. 

Eli Lilly's experience establishes that the multi-metal CEMS is costly in terms of time and 

maintenance and that its software and firmware failed in the comparatively more friendly, noncommercial hazardous waste environment involving a homogenous feed stream. The Xact 

CEMS has never been proven to be reliable in measuring actual emissions of HAP metals in a 

commercial hazardous waste environment involving a heterogenous feed stream such as Veolia. 

Fuchs Aff. at VES 007599-007601; Evonik Aff. at VES 007596; Warchol Aff. at VES 008382; 

Roberson Aff. at VES 008290-008302. 

Likewise, Region 5's allegation that the multi-metals CEMS can work effectively in moisture 

laden environment of the stacks at Veolia has no true, tested support. Statement ofBasis at 60, 

n.58. Rather, it is based on an untested "assurance" from Cooper. Cooper has a financial 

incentive to make this assurance. Veolia has countered Cooper's assurance with evidence from 

experts in the field that the Xact will not work at Veolia. See comments of Veolia's Experts 

2 6

 On October 4, 2012, USEPA's Sarah Marshall sent an email to other USEPA staff discussing Evonik's experience 

with the multi-metals CEMS and indicating that further discussions directly with Evonik would occur. See Sarah 

Marshall Oct. 4, 2012 email at VES 001470. However, no documents are contained within the administrative record 

reflecting the content of those subsequent discussions. Veolia requests that USEPA disclose and add to the 

administrative record all communications with Evonik pertaining to the CEMS. Further, Veolia requests that the 

public comment period be reopened following such additions. 

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VES 019559 
(citations provided supra in note 20. Certainly, no data or objective evidence exist in the record 

to demonstrate the Xact multi-metals CEMS can operate at moisture contents at or above 40 

percent. Warchol Aff. at VES 008382. 

Footnote 60, cited in paragraph 5, further reflects USEPA's misunderstanding that the Xact 

technology has been successfully employed by others. In fact, the evidence does not support the 

Agency's assertion. Region 5 states that the U.S. Department of Defense has purchased three 

Xact units for use at army munitions incinerators. Statement ofBasis at 61, n. 60 (VES 009310). 

In fact, the Army is not using the three Xact units at all, much less for compliance purposes. 

Warchol Aff. at VES 019308; Fuchs Aff. at VES 007601-007602. USEPA has admitted during 

meetings with Veolia that no Xact CEMS is currently operating at any commercial hazardous 

waste incinerator to monitor stack emissions. Warchol Aff. at VES 008382. 

In an attempt to bolster the credibility ofthe failed technology, Region 5 also alleges that Cooper 

recently signed agreements with the South Coast Air Quality Management District (SCAQMD) 

and a Texas company that has some type of facility in Nigeria. Statement ofBasis at 61. 

According to its website, SCAQMD is the air pollution control agency for all of Orange County 

and the urban portions of Los Angeles, Riverside and San Bernardino counties. USEPA states 

that "SCAQMD will operate one multi-metals CEMS on a secondary lead smelter in Southern 

California for a period of at least 10 months beginning in December 2014." Based upon 

information from the minutes of the March 7, 2014 Board Meeting for SCAQMD, the multimetals CEMS will be a "demonstration program" which "will allow for a better understanding of 

the capabilities of this technology in monitoring multi-metals on a continuous basis, and will not 

be used for compliance purposes." VES 019491. SCAQMD states "[t]his program is necessary 

to understand and evaluate the capabilities of this technology in monitoring metals emissions on 

a continuous basis for metal emitting facilities." These actions were taken "[sjubject to Board 

adoption of the Proposed Amended Rule 1420.1 multi-metals CEMS demonstration program 

provision" pursuant to which "large lead-acid battery recycling facilities would be required to 

fund and participate in a multi-metals CEMS demonstration program that the SCAQMD staff 

proposes to implement." The CEMS provisions contained within Veolia's draft permit are more 

arduous then those proposed by SCAQMD. Unlike SCAQMD who acknowledges use ofthe 

CEMS is part of a demonstration program to better understand the technology, Region 5 assumes 

the HWC MACT does not work and disregards the FAP/OPLs monitoring requirements. This is 

troubling because USEPA is ultimately charged with implementing the CAA through the HWC 

MACT. However, Region 5 disregards the FAP/OPLs and starts with the presumption that the 

CEMS technology works and that it accurately calculates multi-metals information for Veolia's 

emissions. Based on this assumption, USEPA requires Veolia to modify its HWC MACT 

compliance depending on the values calculated by the CEMS regardless of the accuracy of this 

technology when applied to Veolia's stacks. 

The secondary lead smelter in California was to install the multi-metals CEMS in December 

2014. However, Cooper recently represented to Veolia that, to date, the Xact at the Southern 

California secondary lead smelter facility was not operational. Warchol Aff. at VES 019309. 

Obviously, even if the Xact was operational, its use in a secondary lead smelter which deals 

primarily with only a few metals is not comparable to its use in the Veolia incinerators which 

would involve numerous metals as well as other waste streams. 

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VES 019560 
Region 5 apparently does not know enough about the Nigerian company to reference any 

particular industry, however nothing suggests the Xact CEMS in Nigeria will be employed to 

monitor stack emissions or that it will be employed at a commercial hazardous waste incinerator. 

The location in Nigeria was to install the multi-metals CEMS in mid-summer 2014. Cooper did 

not provide a status report on whether the Xact was operational in Nigeria. Veolia is unable to 

comment further on the use of multi-metals CEMS in Nigeria due to a lack of specificity in the 

Statement ofBasis. 

5. Veolia's Comments on §5.3.5, "Performance Specifications for the MultiMetals CEMS" 

The HWC MACT emissions limitations for mercury, SVMs, and LVMs were established using 

USEPA Method 29. To demonstrate compliance with these emissions limitations, a source must 

utilize Method 29 during performance testing or use an alternative monitoring technology. 40 

C.F.R. §63.1208(b)(2)-(4). The source may only use an alternative monitoring technology if the 

source provides evidence for its approval and the technology is ultimately approved by the 

Agency. Veolia has demonstrated compliance using Method 29. Further, Veolia has not 

petitioned the Agency to use any alternative monitoring technologies and the USEPA has not 

approved any such technologies for use at Veolia's facility. Thus, Method 29 remains the only 

approved method for Veolia to demonstrate compliance with the HWC MACT emissions 

limitations. Region 5 is arbitrarily and capriciously requiring Veolia to use an alternative 

method that is not approved under the HWC MACT. Further, Region 5 has no authority to 

require Veolia to use an alternative monitoring technology that Veolia has not requested. 

Region 5 has promulgated no performance specifications for the multi-metals CEMS, and 

therefore the multi-metals CEMS cannot be used to measure compliance. The Statement of 

Basis states: "As EPA's historical practice indicates, OTM specifications and procedures can be 

used for compliance purposes with the approval of the permitting authority. As the permitting 

authority for this permitting action, EPA believes that the specifications and procedures 

published as OTM 16 and 20 are appropriate for the multi-metals CEMS." Statement ofBasis at 

61-62. Pursuant to 40 C.F.R. § 63.7(f), an affected facility may petition USEPA to use an 

alternative test method to any test method specified in a relevant emission standard. However, in 

this case, the multi-metals CEMS is parametric monitoring and Veolia has not requested it be 

used at its facility. USEPA does not have authority to sua sponte establish OTM specifications 

for parametric monitoring that has not been requested by Veolia. Absent such specifications and 

procedures, the performance of a multi-metals CEMS cannot be evaluated and results produced 

by a multi-metals CEMS such as the Xact Multi-Metals CEMS cannot be relied upon to 

accurately measure emissions from an incinerator. Roberson Aff. at VES 008295. 

Nevertheless, while acknowledging that performance specifications for multi-metals CEMS have 

not been subjected to a formal rulemaking process, Region 5 alleges "EPA has published 

specifications and quality assurance procedures for the multi-metals CEMS" as OTM 16 and 

O TM 20. Statement ofBasis at 61. USEPA has never promulgated or approved these 

specifications and procedures; rather, the two documents are simply posted on an EPA website 

entitled "Technology Transfer Network Emission Measurement Center" under "Category C: 

Other Methods." Both documents have cover pages stamped "DRAFT" and are dated June 

2005. More importantly, neither document was authored by USEPA, but rather both were 

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VES 019561 
authored by Cooper, which has a financial interest in portraying the performance specifications 

as legitimate. The USEPA website contains the following lengthy caveat that governs 

documents such as these: 

Category C: Other Methods 

This category includes test methods which have not yet been subject to the 

Federal rulemaking process. Each of these methods, as well as the 

available technical documentation supporting them, have been reviewed 

by the Emission Measurement Center staff and have been found to be 

potentially useful to the emission measurement community. The types of 

technical information reviewed include field and laboratory validation 

studies; results of collaborative testing; articles from peer-reviewed 

journals; peer-review comments; and quality assurance (QA) and quality 

control (QC) procedures in the method itself. A table summarizing the 

available technical information for each method can be found at the link 

below. The EPA strongly encourages the submission of additional 

supporting field and laboratory data as well as comments in regard to these 

methods. 

These methods may be considered for use in Federally enforceable State 

and local programs (e.g., Title V permits, State Implementation Plans 

(SIP)) provided they are subject to an EPA Regional SIP approval process 

or permit veto opportunity and public notice with the opportunity for 

comment. The methods may also be considered to be candidates to be 

alternative methods to meet Federal requirements under 40 CFR Parts 60, 

61, and 63. However, they must be approved as alternatives under 60.8, 

61.13, or 63.7(f) before a source may use them for this purpose. 

Consideration of a method's applicability for a particular purpose should 

be based on the stated applicability as well as the supporting technical 

information outlined in the table. The methods are available for 

application without EPA oversight for other non-EPA program uses 

including state permitting programs and scientific and engineering 

applications. 

As many of these methods are submitted by parties outside the Agency, 

the EPA staff may not necessarily be the technical experts on these 

methods. Therefore, technical support from EPA for these methods is 

limited, but the table contains contact information for the developers so 

that you may contact them directly. Also, be aware that these methods are 

subject to change based on the review of additional validation studies or 

on public comment as a part of adoption as a Federal test method, the Title 

V permitting process, or inclusion in a SIP. 

USEPA, Technology Transfer Network, Test Methods at www.epa.gov/ttn/emc/tmethods.html., 

VES 007561- 007563. Thus, USEPA admits that it may not be "the technical experts on these 

methods" and that these methods have not been subject to the federal rulemaking process and are 

subject to change based on additional studies or public comment. 

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VES 019562 
Region 5 has abandoned recognized means of compliance with the HWC MACT in favor of the 

multi-metals CEMS technology. Unfortunately, in the process, the Agency failed to consider 

that this technology lacks performance specifications and ongoing quality assurance or quality 

control procedures for measuring whether the technology was operating correctly and that Pall 

has now abandoned the technology. Roberson Aff. at VES 008290-008302; Warchol Aff. at 

VES 008383. Region 5 also failed to consider that it may have been misled, through its 

exclusive reliance on Cooper/Pall, as to the technology's abilities and its capabilities to function 

in the environment of Veolia's incinerators. Further, the Agency failed to consider that USEPA 

demeans its independent status by advocating on behalf of the Xact CEMS and reduces the 

incentive for technical advancement while also prejudicing Veolia's rights as a consumer. If 

Veolia's permit were modified as proposed, in theory, Cooper could charge Veolia any price it 

wishes for the Xact multi-metals CEMS. Roberson Aff. at VES 008290-008302. 

F. The Proposed Methodology for Measuring Beryllium Shows that Region 5's 

Requirement for the Installation of Multi-Metals CEMS Is Arbitrary and 

Capricious 

Region 5 justifies the installation of multi-metals CEMS because it believes the HWC MACT 

feedstream analysis procedure has problems that were not adequately dealt with by those who 

promulgated the procedure, specifically: 

[fjeedstream analysis generally poses.. .uncertainty associated with 1) 

measurement of extremely low metal concentrations in the feedstream (i.e., 

concentrations at or near the detection limit of the measurement device); 2) 

heterogeneity ofthe hazardous waste, which may lead to a non-representative 

sample and hence an inaccurate estimate of the metal feed concentration; and 3) 

inability to demonstrate continuous compliance with MACT limits since there is 

typically a considerable time lag time between sampling and analysis. 

Statement ofBasis at 56. Although offering no actual evidence, such as studies of commercial 

hazardous waste incinerators to support its assertions, Region 5 asserts the CEMS cures the 

perceived shortcomings of feedstream analysis with one exception—beryllium emissions. 

Veolia believes evidence demonstrates that the Cooper multi-metals CEMS will not accurately 

work to measure multi-metals when used at commercial hazardous waste incinerators. Region 5 

agrees with Veolia with respect to beryllium: "EPA recognizes that the only current available 

multi-metals CEMS that would meet EPA's requirements (i.e the Cooper Environmental 

Services' multi-metal CEMS) is incapable of measuring beryllium emissions." Statement of 

Basis at 62. Therefore, Region 5 proposes: 

.. .a methodology in the draft permit for quantifying emissions of metals for which 

the multi-metals CEMS is incapable of directing (sic) measuring. See Condition 

2.1(D)(l)(i)(ii). The proposed methodology would require that beryllium 

emissions be quantified using the results of feedstream analysis and the system 

removal efficiency and exhaust parameters used by Veolia to estimate emissions 

during the 12-hour period used to calculate the 12-hour average rolling average. 

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VES 019563 
Id. The methodology for beryllium that Region 5 proposes on page 62 ofthe Statement ofBasis 

is the same HWC MACT methodology that Region 5 dismisses as too uncertain on page 56 of 

the Statement ofBasis. If this accepted HWC MACT methodology is accurate and acceptable 

for beryllium, Region 5 must show why the same methodology is inaccurate for the other metal 

emissions in order to justify its decisionmaking regarding CEMS. Rather than treating the 

emissions monitoring of metals in such an arbitrary fashion, Veolia proposes that all metal 

emissions be subject to measurement using the same methodology—specifically, the 

methodology set forth and approved in the HWC MACT standard. The HWC MACT standard 

was established in part to avoid inconsistent and varying sampling results which would occur 

without this standard methodology. 

G. Region 5's Permitting Decision to Use Multi-Metals CEMS is Not Supported 

by Substantial Evidence 

1. The Xact 640 Multi-Metals CEMS Has Never Been Tested or Installed on 

Incinerators with Dry Pollution Control Systems such as Those at Veolia 

USEPA makes much of the use of a Xact CEMS at the former Eli Lilly incinerator. Statement of 

Basis at 60-61. Eli Lilly's incinerator and Veolia's incinerators are not comparable. The Eli 

Lilly incinerator, along with most other incinerators in the United States, employs wet scrubbers 

as its pollution control equipment or a combination of wet scrubbers and baghouses. Warchol 

Aff. at VES 008381. The off gases from incinerators using wet scrubbers all have similar 

moisture and temperature ranges. In comparison, Veolia operates an exclusively dry pollution 

control system on Units 2, 3 and 4 of its Sauget facility. Warchol Aff. at VES 008381. The only 

other exclusively dry system in the United States known to Veolia is the Clean Harbors 

incinerator in Kimball, Nebraska. Veolia's dry pollution control systems produce off gases at 

much higher variable moisture and temperature ranges than wet scrubber systems. Id. The Xact 

Multi-Metals CEMS purports to analyze the off gas emitted from an incinerator to determine the 

amount of metals in the emissions stream. The Xact Multi-Metals CEMS has never been tested, 

installed or demonstrated to successfully operate in incinerators using exclusively dry pollution 

control systems and producing off gases with the high variable moisture and high temperature 

produced by Veolia's incinerators. 

2. Veolia Has Offered Unrefuted Evidence that the Xact 640 Multi-Metals 

CEMS Will Not Work and Is Inappropriate to be Used as a Temporary 

Continuous Parametric Monitoring System at Veolia 

Veolia has offered evidence from nationwide experts that the Xact 640 Multi-Metals CEMS is 

not a CPMS as alleged in the Statement ofBasis and will not provide accurate data at Veolia. 

See generally comments of Veolia's Experts (citations provided supra note 20). 

Michael Fuchs is an expert with over 35 years of experience who actually takes emission 

measurements from hazardous waste incinerators across the country as part of his job as a 

Project Manager in the Measurements Group in URS Corporation's Austin, Texas office. He 

uses CEMS to measure particulates and other constituents. Fuchs Aff. at VES 019283-019293c. 

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VES 019564 
Robert Baxter has for over thirty years worked in hazardous waste incineration across the United 

States. In recent years through his employment at B3 Systems, Inc., he has become extremely 

familiar with particulate monitors for EPA MACT compliance and process control. 

Currently, multi-metals CEMS are not used anywhere in the United States to measure metals 

from emissions at a hazardous waste incinerator. Cooper Environmental Services, LLC alleges 

that the Xact 640 continuous emission monitoring system is capable of measuring metals 

collected on filter tape through the use of X-ray fluorescence. For purposes of Veolia's Title V 

permit, Region 5 alleges that these measurements would accurately reflect the metal content of 

emissions from Veolia's incinerators. However, evidence in the administrative record and 

Statement ofBasis do not support the viability of the Xact 640's use at Veolia's commercial 

hazardous waste incinerator. Further, the Xact 640 cannot provide accurate data within the 

Veolia incinerators' environment. See generally Fuchs Aff. at VES 019283-019293c; Baxter 

Aff. at VES 016997-017002. 

(i) The Xact 640 as proposed in Veolia's draft Title VPermit is not a 

temporary Continuous Parametric Monitoring System nor should 

it be used as evidence of compliance with the HWC MACT 

USEPA alleges that the Xact CEMS is being installed as a temporary CPMS to verify the 

adequacy of the feedrate limits. Statement ofBasis at 54. USEPA is not being forthright. 

USEPA does not treat the Xact CEMS as a temporary CPMS in the 2014 Draft Permit and to 

suggest that the Xact CEMS is a temporary CPMS without further explanation demonstrates bad 

faith and improper behavior by the Agency. 

As set forth in the regulations, a CEMS limit on an operational incinerator is typically requested 

by the permittee as part of the CPT testing in order to establish a relationship, if any, between the 

CEMS and the parameter that is sought to be monitored. See 40 C.F.R. §63.1209(g)(l)(iii)(A) 

and (D) (requiring alternative monitoring requirements such as CEMS to be submitted at the 

same time as the CPT plan); Baxter Aff. at VES 016997-016998. However, Veolia never 

requested the CEMS. Further, the first time Region 5 requested installation of the CEMS was as 

part ofthe Title V draft permit—well after the CPT testing. The impact to Veolia of the CEMS 

not being included in the CPT testing is that there is no known relationship between the CEMS 

and the parameter that is sought to be monitored. Any attempt to establish a relationship 

between the two must be made during actual, operational conditions which is both disruptive and 

prejudicial to Veolia. 

Further, USEPA alleges the CEMS will be used temporarily as a CPMS. Statement ofBasis at 

53-54. In part due to its temporary nature, a temporary CPMS is never used as evidence of 

compliance. Only a permanent feedstream analysis plan which was set forth in the CPT plan and 

whose validity was established through CPT testing establishes HWC MACT compliance. 

Baxter Aff. at VES 016998. Further, the CPMS is being used as an absolute emission rate for 

providing evidence of deviations that Region 5 believes will demonstrate that Veolia may not be 

in compliance with a HWC MACT metals emissions limit. Statement ofBasis at 53-55. Thus, 

the Agency is impermissibly using a multi-metals CEMS as a CPMS, which was never used in 

Veolia's CPT testing and has no established relationship to compliant emissions, to replace the 

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VES 019565 
HWC MACT recognized feedstream analysis plan which Veolia did use in its CPT testing and is 

evidence of compliant emissions.27 

(ii) The Xact 640 has not been demonstrated to be reliable for 

measuring the content of stack emissions from a commercial 

hazardous waste incinerator 

The Xact 640 has never been evaluated by USEPA approved test methods. The Statement of 

Basis attempts to obscure this fact with generalizations and unsubstantiated statements. 

USEPA's Statement ofBasis provides that "multi-metals CEMS ... have been demonstrated to 

be reliable for measuring metals emissions from a hazardous waste combustor ," and "EPA has 

monitored side-by-side evaluations of multi-metals CEMS with EPA Method 29." Statement of 

Basis at 59. USEPA's statements are confusing in that they use terms such as "multi-metals 

CEMS," "demonstrated," "reliable" and "Method 29." USEPA should in its response to 

comments accurately state that no multi-metals CEMS used in emission stack gas analysis has 

ever been demonstrated to be reliable using Method 29, despite the HWC MACT requiring that 

Method 29 be used to demonstrate compliance with the emission standards for metals.28 

Similarly, the Statement ofBasis also vaguely states "EPA recently evaluated at several facilities 

a commercial version of a multi-metals CEMS (the Xact multi-metals CEMS)." Statement of 

Basis at 59. There is no citation given for this evaluation and without further information the 

statement has no evidentiary value relating to the Xact. 

Region 5 should further explain in its response to comments what the Statement ofBasis meant 

that "[m]ulti-metals CEMS ... have been demonstrated to be reliable for measuring metals 

emissions from a hazardous waste combustor." Statement ofBasis at 59. Since the accuracy of 

the Xact multi-metals CEMS has not been demonstrated against EPA Method 29 with samples 

collected directly from a source by both the Xact and by EPA Method 29 and since the HWC 

MACT requires that Method 29 be used to demonstrate compliance with the emission standards 

for metals, the reliability for measuring metals emissions by the Xact multi-metals CEMS has 

not been demonstrated for purposes ofthe HWC MACT. 2 9 

2 7

 The HWC MACT does not provide for or allow a CPMS to be used to "measure" the adequacy of an operating 

parameter. 

2 8

 The HWC MACT states that Method 29 (40 C.F.R. 60, Appendix A, Method 29) must be used to demonstrate 

compliance with the emission standards for mercury; the semi volatile metals cadmium and lead; and the low 

volatility metals arsenic, beryllium and chromium. 40 C.F.R. § 63.1208 (b)(2)-(4). 

2 9

 USEPA's website, under Metals and Mercury Emissions Monitoring, states "[i]n 1996 Performance Specification 

10 (PS 10) was proposed in conjunction with the original Hazardous Waste Combustor NESHAP, but because the 

measurement technology had not been fully developed and demonstrated, the specification was not promulgated." 

USEPA at www.epa. go v/ttnemcO 1 /monitor .html. It is important to note that even this proposed technology requires 

samples be drawn directly from a source if they are to be analyzed. The Xact does not test samples drawn directly 

from a source. Rather, it draws a sample through an acquisition system and further conditions the sample prior to 

analyzing it. Fuchs Aff. at VES 019290-019291. 

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VES 019566 
Further, USEPA represents in the Statement ofBasis that "Eli Lilly Company received approval 

from the EPA to use a multi-metals CEMS as an alternative to Method 29 and operating 

parameter monitoring at the Eli Lilly facility," and that the "US Army has also successfully 

installed and evaluated a multi-metals CEMS on one of its hazardous waste incinerators." 

Statement ofBasis at 60-61 & n.60. "These studies resulted in several monitoring methods and 

performance standards for the x-ray technology. These documents may be found on the OAQPS 

methods website at Other Test Methods. See http://www.epa.gOv//ttn-emc/prelim.html."30 

Statement ofBasis at 61 & n.59. 

Cooper prepared the OTMs 16-21, specifically for, and in support of, the Eli Lilly's Alternative 

Monitoring Petition for the use ofthe Xact to monitor metals emissions on the hazardous waste 

incinerator at Eli Lilly's Tippecanoe Laboratories manufacturing facility near Lafayette, Indiana. 

Fuchs Aff. at VES 019286. At the former Eli Lilly facility, the Xact multi-metals CEMS was 

primarily to show there were no, to very low, concentrations of metals emissions from Eli Lilly's 

incinerator. These OTMs were not developed to determine the accuracy of a multi-metals 

CEMS used in a commercial hazardous waste incinerator to measure the actual and varying 

concentration of metals. Thus, USEPA is attempting to use these OTMs in a manner in which 

they were never intended and for a function they were not designed to accomplish. 

For emission stack sampling, the OTMs simply do not have the safeguards and essential 

elements that Method 29 provides to address critical aspects ofthe measurement of metals 

emissions from stationary sources through sample acquisition systems. Fuchs Aff. at VES 

019288-019290. These omissions create the probability for error when the OTMs are used in 

lieu of Method 29 to attempt to demonstrate the Xact's reliability: 

• Method 29 rigorously requires the sample that is analyzed be collected isokinetically at 

multiple points across the stack to ensure that a representative sample ofthe stack gas is 

collected, including both aerosol and gas-phase constituents. For the results of Method 

29, and all isokinetic sampling methods, to be acceptable, the sampling must be within 

10% of isokinetic (i.e., 100±10%). If the sampling is not within 10% of the isokinetic 

sampling rate then that sample cannot be accepted by regulatory agencies. By 

comparison, OTM 16 states in §1.3.2 "your multi-metals CEMS should sample from the 

source at a flow rate which is within 10 percent of true isokinetic." However, operating 

data for installed and evaluated Xact CEMS do not report the isokinetic sampling rate. 

Rather, "[t]he process begins when an isokinetic sub-sample of stack gas is taken from 

the stilling chamber and drawn through a chemically-reactive filter tape." Statement of 

3 0

 The OTMs listed on EPA's website that pertain to multi-metals CEMS include: Other Test Method 16 (OTM 16) -

Specifications for X-Ray Fluorescence Based Multi-Metals CEMS at Stationary Sources; Other Test Method 17 

(OTM 17) - Determination of Metal Concentration in CES' Xact CEMS Stilling Chamber Using Filters and Solid 

Sorbents with X-Ray Fluorescence Analysis; Other Test Method 18 (OTM 18) - Performance Specifications for a 

Quantitative Reference Aerosol Generator; Other Test Method 19 (OTM 19) - Determination of Metal 

Concentrations in Emissions from Stationary Sources (Instrumental Analyzer Procedure); Other Test Method 20 

(OTM 20) - Quality Assurance Requirements for X-Ray Fluorescence Based Multi-Metals CEMS at Stationary 

Sources; and Other Test Method 21 (OTM 21) - Standard Operating Procedure for Generating a Quantitative MultiMetals Reference Aerosol with CES QAG. 

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VES 019567 
Basis at 59. The stilling chamber is a component of the sample acquisition system, and is 

a vessel into which sample gas is drawn from the source. This should not be confused as 

withdrawing an isokinetic sample from the source itself as required by Method 29. 

• Following collection of the Method 29 sample, the entire sampling train is rinsed (with 

reagents specified in the method), and all of the components recovered from the sampling 

train (from the nozzle to the impingers used to collect gas-phase metals) are analyzed for 

metals in a laboratory (using methods specified in Method 29). Results for Method 29 

are specific to individual metals, and include results for all components recovered and 

analyzed. By comparison, while different sample collection configurations are found for 

applications of the Xact multi-metals CEMS, the sample acquisition systems always 

include a transport line, and may include a stilling chamber, water trap, and/or drying 

chamber. None of the components from the sample acquisition system are recovered or 

analyzed for inclusion in the results for the Xact multi-metals CEMS. This difference 

between Method 29 and the Xact multi-metals CEMS is potentially critical to the 

accuracy ofthe results of the Xact multi-metals CEMS. Specifically for mercury, 

experience has shown that mercury may condense and then re-vaporize in the sample 

acquisition system, depending on conditions. This phenomenon could occur for other 

metals, depending on the configuration and conditions of the sample acquisition system. 

If experienced, the Xact multi-metals CEMS will not be quantifying a sample 

representative ofthe source (i.e., the stack gas) and potentially inaccurate data will be 

collected. 

• Due to the design and operation ofthe air pollution control systems, the moisture content 

of stack gases from Veolia's incinerators is variable and considerably higher than most 

incinerators, typically more than 40% and at times as high as 45%. While Cooper 

Environmental Services has assured USEPA that the Xact can operate reliably at 

moisture contents above 30% to 45% (see Statement ofBasis footnote 58), no studies 

supporting Cooper's assurance are cited. Concentration of moisture in the stack gas from 

Veolia's incinerators could have a negative impact upon the operation of multi-metals 

CEMS (i.e., its reliability), and the CEMS ability to produce valid metals data in the stack 

gas from those incinerators. The OTMs were not designed to and do not determine 

whether the Xact can reliably operate in the conditions presented at Veolia. Further, no 

evidence exists in the record that the Xact multi-metals CEMS has successfully operated 

on an incinerator having the concentration of moisture in the stack gas from Veolia's 

incinerators. Thus, USEPA and Cooper have not demonstrated or proven the Xact is 

reliable for measuring actual emissions of metals at the stack gas moisture concentrations 

that would be experienced at Veolia. 

Fuchs Aff. at VES 019288-019290. The manner in which the sample is collected and the 

conditions in the Veolia stacks make it extremely unlikely that results from the Xact 640 will 

replicate the content of the emissions, if any, from Veolia's stacks. 

Published articles by John A. Cooper on the Xact 640 reflect that the Xact 640 has not been 

compared to emissions taken directly from the stack. For example, the journal article authored 

by Hay, et al presents the results of relative accuracy testing of the Xact multi-metals CEMS. 

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VES 019568 
K. James Hay, et al, Relative Accuracy Testing of an X-Ray Fluorescence-Based Mercury 

Monitor at Coal-Fired Boilers, 56 Journal of Air & Waste Management Association, 657-665 

(2006). A sample was drawn from the source through a sample acquisition system including a 

transport line, water trap, and drying chamber. Compressed air was injected into the sample 

acquisition system upstream of the drying chamber. Following the drying chamber, a portion of 

the sample gas was drawn into the Xact multi-metals CEMS, and the remainder ofthe sample 

gas was collected in paired (i.e. two) Method 29 sampling trains. While relative accuracy (RA) 

testing of the Xact multi-metals CEMS was performed for the Xact for the sample it analyzed 

(which had traveled through an acquisition system and has been further conditioned), RA was 

not demonstrated for samples collected directly from the source (Le., stack).31 Fuchs Aff. at VES 

019290-019291. Hence, no relative accuracy was proven between the stack emissions and the 

results provided by the Xact. RA testing performed in this manner measures the RA of the 

analytical portion of the Xact multi-metals CEMS to Method 29, but it fails to measure the RA 

between concentrations of metals measurements found in the results of the Xact and the 

concentrations of metals measurements found in the source (i.e., stack gas). Fuchs Aff. at VES 

019290-019291. 

(iii) The Xact 640 technology fails to obtain a representative sample 

The majority of the metals from the dry process that Veolia uses are in the form of particulate 

matter ("PM"). As a result of variations during normal operation, the P M emitted is not size 

selective. Baxter Aff. at VES 016998. In order to provide accurate analysis, the Xact CEMS 

must obtain a representative sample of the PM in the emission stream and transport that 

sample to the detector. 

P M CEMS systems have PM stratification issues. Baxter Aff. at VES 016998. The velocity 

profile may normalize, but higher P M concentrations may stay closer to the wall and can be 

shifted around based on the gas flow dynamics that can vary during normal operation. Further, 

in Veolia's dry process, the induced draft fan will impact the PM mixing and dispersion in the 

downstream duct/stack. PM stratification in systems such as Veolia's are part of a dynamic 

process that varies during normal operations. Dynamic changes in the system (flow, 

temperature, particle size, particle density, etc.) will change the P M dispersion. Although 

Veolia uses a baghouse for P M removal, based upon the 2009 and 2013 CPT test data, particle 

size may vary depending upon operational conditions. See Franklin Engineering Group, Inc. 

Human Health Risk Assessment Report at VES 019340. Dry particles of all sizes may be 

transferred into the clean-gas side ofthe baghouse and carried to the stack. Baxter Aff. at VES 

016999. Given these conditions, the representativeness of a single point source such as the 

source the Xact CEMS uses to sample is very questionable. A change in particle size and 

density can and does affect the accuracy of the results of such single point sampling systems. 

Baxter Aff. at VES 016999. 

3 1

 Further, RA was measured between the Xact multi-metals CEMS and Method 29 only for mercury and arsenic. 

Results are not reported for the other metals regulated by the HWC MACT, beryllium, cadmium, chromium, and 

lead. 

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VES 019569 
P M CEMS and the Xact CEMS sample PM, with the P M CEMS measuring relative total PM 

and the Xact CEMS purporting to measure PM for selective multi-metal content. USEPA 

Performance Specification 11 (PSI 1) defines the procedures for PM CEMS. PSI 1 uses an EPA 

Manual Reference Method ("RM") to calibrate the P M CEMS under three (3) levels of PM 

concentration. This means that if the monitoring location is not ideal, then the data from the 

traversing R M is used to calibrate the single point sampling CEMS. 3 2 The R M results 

compensate for the imperfection in the single point sampling location. Baxter Aff. at VES 

016999-017000. Further, a PM CEMS' result is merely a "relative" output (i.e., is there more 

or less PM) and the result is not a discrete, quantifiable reading (i.e., an absolute numerical 

value). 

The Xact CEMS, on the other hand, purports to measure metals in absolute terms. The result 

from the Xact CEMS is a discrete, quantifiable reading for each ofthe multi-metals it tests 

from a single sampling point. A single point sampling location cannot obtain a sample as 

representative as a traversing sampling collection system under changing process conditions. 

When the Xact CEMS fails to obtain a representative sample from the stack to be examined by 

the detector, the resulting discrete output for each ofthe multi-metals from the Xact CEMS 

will be incorrect. Baxter Aff. at VES 017000. Based on the actual sampling location of the 

Xact CEMS, there is a very high possibility that the Xact CEMS output will not match the 

actual emissions since, unlike PM CEMS which use PS 11, the Xact CEMS does not have any 

way of compensating for P M stratification under changing process conditions. Depending on 

the single point stack gas sampling location of the Xact CEMS, the sample collected could be 

higher or lower in metals/PM than the overall average concentration. 

In addition to problems inherent in a single point sampling system and the Xact's attempt to 

produce a discrete, quantifiable reading for each of the tested multi-metals, the OTMs for the Xact 

ignore fundamental sample acquisition procedures typically required in EPA reference methods 

and therefore, allow numerous opportunities for error in sample transport. The first is obtaining a 

representative sample from the stack based on a single point sampling system. The second is 

transporting the stack sample through the large diameter stack probe and umbilical to the stilling 

chamber.33 The third is taking a representative isokinetic subsample from the stilling well. 3 4 The 

final transport related issue is getting the subsample to the filter tape for analysis. 

PM transportation is easiest in a downward, vertical direction due to gravity or in an upward, 

vertical direction due to the force of the gases working against the gravitational pull. Baxter Aff. 

at VES 017001. Particle transportation is most difficult for horizontal and inclined runs. USEPA 

reference methods use sampling probes (i.e., horizontal transport runs). Although the stack gases 

are being sampled isokinetically (i.e., at the same velocity as the stack flow), based on the nozzle 

diameter, the actual flow rate in the probe cannot carry the larger particles through the probe and 

3 2

 Basically, "traversing" is taking samples from multiple locations in the stack and integrating these into one 

sample. 

3 3

 Krag Peterson, Review of Monitoring Experience with the Xact Multi-Metals CEMS, Cooper Environmental, IT3 

2014 Paper & Presentation, Paper 29. 

3 4

 Xact 640 Monitoring System Spec Sheet, Cooper Environmental. 

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VES 019570 
to the filter. This dropping out of the PM is known as "saltation" and accounts for as much as 

60% to 80% of the PM ending up in the probe. This is easily seen by reviewing the detailed P M 

results from the CPT test, Tables 4-14 (VES 017748), 4-15 (VES 017750) & 4-16 (VES 017751) 

of the CPT Report. This is further supported by detailed analysis of the metals sampling trains in 

Tables 4-20 (VES 017756), 4-22 (VES 017758) & 4-24 (VES 017761). By reviewing the total 

metals catch in the probe & nozzle rinse (PNR) to the total, it is apparent that a large portion of 

the metals show up in the probe, with the exception of mercury. EPA reference methods such as 

Method 29 require the recovery of the PM/metals from the probe and nozzle for analysis. 

However, the Xact CEMS OTMs do not require recovery of the multi-metals P M from the probe 

and umbilical. If the PM does not make it to the filter of the Xact, then that PM will not be 

analyzed and the Xact CEMS results will be biased low in comparison with the actual stack gases 

Conversely, if accumulated PM in the probe nozzle or umbilical breaks free during operation, 

those PM—potentially carrying metals—would be analyzed by the Xact CEMS giving a biased 

high result unrelated to current stack conditions. See supra Figure 1.4. The dynamic conditions 

in the stack gases combined with the sample transport issues discussed above are impossible to 

overcome for a single point sampling system where a large majority of the metals are in the form 

of PM. This fact would become glaringly obvious if the Xact proposed for Veolia used EPA 

reference methods such as Method 29 as required by 40 C.F.R. 60, Appendix A. 

(iv) The Xact 640 technology has not been calibrated against a QAG 

that represents the process conditions at Veolia 

USEPA states the Xact has been challenged against a QAG: 

Cooper Environmental Services has also developed and received 

EPA approval for a Quantitative Aerosol Generator (QAG), which 

generates a reference aerosol for calibrating the multi-metals 

CEMS and for performing relative accuracy test audits (RATAs) of 

the multi-metals CEMS. Yanca et al. evaluated both the Xact and 

the QAG using a modified EPA Method 301 at a hazardous waste 

combustor by comparing measured and reference aerosol 

concentrations. The authors found that both the Xact and the QAG 

met the Method 301 validation criteria with precisions and 

accuracies on the order of 5 percent over a wide range of 

concentrations. 

Statement ofBasis at 60. The QAG is an excellent tool to verify the detector, similar to a 

calibration gas for other CEMS since it generates a known concentration of metal. However, a 

QAG used to verify a detector is only as good as the QAG's replication of the conditions in 

which the detector will exist. The QAG used to validate the Xact CEMS was nonrepresentative in that the particle sizes contained within the QAG were too small and not 

representative of the particle sizes that have been documented to exist in Veolia's stack 

emissions. Baxter Aff. at VES 017000. During the time that the Xact CEMS was being 

validated prior to 2010, the QAG being used to validate the Xact could have only produced 

metal particles in the resulting gas stream that were approximately 1 micron or less. Particles 

being emitted from incineration processes vary greatly and are not uniformly 1 micron or less. 

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VES 019571 
The data from Veolia's 2013 CPT testing reflected stack velocities across all sampling trains on 

Units 2, 3 and 4 averaged 31.2 ft/sec, 30.8 ft/sec, and 56.8 ft/sec, respectively. Baxter Aff. at 

VES 017000. At 30 ft/sec (9.1 m/s), large particles, 100 micron and greater, can be transported 

up Veolia's stacks based on a review of terminal settling velocities.35 Baxter Aff. at VES 

017000. 

Particles of almost any size are denser than their surrounding fluid (air) and therefore have more 

mass. This extra mass means they do not act like a gas, especially once the particle size starts to 

be greater than 5-10 microns. Baxter Aff. at VES 017000. Several studies36 on pneumatic 

conveying of particles have discovered that that after the particles made a turn, such as 

transitioning from a horizontal duct to a stack, the particles formed a rope, "horse shoe" or "U " 

pattern on the opposite side ofthe vertical wall. This means that the particles on the wall are not 

in the Centroid (i.e., not in the center of the stack) that the Xact OTMs require for sampling. The 

sample required by the Xact is therefore not representative of the conditions in the stack. This 

error is compounded when the Xact takes its sub-sample since it is very probable that larger 

particles could still be near the wall and therefore the sub-sample would miss them. Further, the 

particles generated by the pre-2010 QAG were very fine and would be less affected by these 

conditions. The Xact has simply never been validated using a QAG representative of actual 

process conditions at Veolia. Baxter Aff. at VES 017000. 

(v) The Xact 640 technology is a historical failure when applied to 

stack emission monitoring at the locations identified by USEPA 

In the Statement ofBasis, Region 5 discusses at length multi-metals CEMS technology. 

Statement ofBasis 52-63. The Statement ofBasis makes much of a handful of attempts to utilize 

the Xact for stack emission monitoring while obfuscating the truth. The multi-metals technology 

is a historical failure for daily, operational emissions monitoring and not used anywhere in the 

country for such stack emissions monitoring. 

The Statement ofBasis discusses the use of a Xact CEMS approved by USEPA at the request of 

Eli Lilly for use at the former Eli Lilly incinerator from 2006 to 2010. Statement ofBasis at 60-

61. Evoniks Degussa Corporation purchased the Tippecanoe facility in 2010. The Xact CEMS 

failed and is no longer in operation for functional and economic reasons.37 Fuchs Aff. at VES 

007601; Evonik Aff. at VES 007596-007597. 

3 5

 "Perry's Chemical Engineering Handbook," Fourth Edition, Figure 5-74, Pg 5-62. 

3 6

 "Quantitative Aerosol Generator (QAG) for PM CEMS Calibration," Presentation at EUEC 2014; "Mixing and 

dispersion of particle ropes in lean phase pneumatic conveying," Harun Bilirgen, Edward K. Levy, Energy Research 

Center, Lehigh University, 117 ATLSS Drive, Bethlehem, PA 18015, USA; and "Experimental and Numerical 

Study of Dilute Gas-Solid Flow inside a 90° Horizontal Square Pipe Bend," Walid Aniss Aissa 1, Tarek Abdel 

Malak Mekhail 1, Soubhi Ali Hassanein, Osama Hamdy, Open Journal of Fluid Dynamics, 2013, 3, 331-339. 

3 7

 The use ofthe Xact CEMS at the former Eli Lilly incinerator is not relevant to its use at Veolia since the systems 

at the two facilities are completely different. Baxter Aff. at VES 017001. The incinerator at Eli Lilly used a wet 

scrubber, not the dry baghouse system utilized by Veolia. As a result, the incinerators at the two facilities produce 

PM including multi-metal PM that are of a completely different type, size and characteristic. Baxter Aff. at VES 

017001. Thus, whether the Xact CEMS worked and produced accurate results at Eli Lilly is not predictive as to 

whether the Xact CEMS will work and produce accurate results at Veolia. 

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VES 019572 
Similarly, footnote 60 in the Statement ofBasis states, "EPA understands that the U.S. 

Department of Defense has purchased three Xact units for use at army munitions incinerators." 

Mr. Fuchs contacted Larry Wells with the U.S. Army at the Tooele Army Depot ("TEAD") 

about these Xact units. Wells related that TEAD had two Xact multi-metals CEMS with one 

installed on each ofthe two incinerators at TEAD. Fuchs Aff. at VES 007601. See also VES 

010411. Ofthe two incinerators at TEAD, one is on a unit used for testing and the other is used 

for production. The unit used for testing only operates periodically, while the production unit 

operates more often. Wells said that while there is a Xact multi-metals CEMS at the test unit, he 

was not aware that it had ever been operated. Wells then introduced his colleague, Joe Peterson, 

who is involved in the operation/monitoring ofthe production furnace at TEAD. Fuchs Aff. at 

VES 007601. Peterson remembered that the Xact multi-metals CEMS was installed on the 

production furnace and calibrated when it was acquired (he thought around 2007), and that 

testing of the production furnace was performed shortly thereafter that allowed comparison of 

measurements performed by the multi-metals CEMS to an EPA reference method. He 

remembered that the Xact multi-metals CEMS was operated for about 15 to 20 days before it 

failed. Peterson said that the Xact multi-metals CEMS has not operated since it failed. Based on 

the phone conversations with both Wells and Peterson, both of the Xact multi-metals CEMS are 

still at TEAD, but are not in operation. 

The Third Xact multi-metals CEMS referenced at footnote 60 is at the Crane Naval Surface 

Warfare Center in Crane, Indiana. The instrumental monitoring system has been set up. 

However, the CEMS is not connected to, or drawing sample gas from, the stack ofthe unit as 

part of normal operations and therefore it is not truly installed. Warchol Aff. at VES 019308. 

Neither the Eli Lilly incinerator nor the munitions incinerators treat the broad range of wastes 

treated in a commercial incinerator. Fuchs Aff. at VES 007600; Warchol Aff. at VES 008381-

82. Unlike Veolia, the stack emissions from these incinerators also do not have the same high 

temperature ranges and variable high moisture content. Fuchs Aff. at VES 007600 & VES 

019289-019290; Warchol Aff. at VES 008381-008383. The failure ofthe Xact 640 in these, the 

only stack emission applications identified by USEPA, does not bode well for success of the 

Xact 640 in daily operations at Veolia. 

(vi) Region 5's actions in requiring the installation of Cooper's Xact 

640 CEMS are unprecedented and should be investigatedfurther 

Region 5's actions in requiring the installation of Cooper's Xact 640 CEMS are unprecedented. 

Fuchs Aff. at VES 019292. It is highly unusual for EPA to endorse the use of a specific vendor 

of an instrument, monitoring equipment, or other such system in a mandated regulatory or 

enforcement circumstance or for use in lieu of a performance test. Fuchs Aff. at VES 019292; 

Warchol Aff. at VES 019308; Robertson Aff. at VES 008300-8302. Veolia reserves the right to 

request additional discovery including written discovery and depositions before an appropriate 

tribunal due to USEPA's failure to explain this unprecedented requirement that Veolia believes 

demonstrates a strong showing of bad faith and improper behavior. See Sierra Club v. Costle, 

657F.2d298(D.C. Cir. 1981). 

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H. Region 5 Is Arbitrarily and Capriciously Using Unsubstantiated 

Enforcement Allegations to Deny Veolia a Permit Shield and Support 

Unnecessary Multi-Metals CEMS and Feedstream Analysis Requirements 

Region 5 is improperly using unsubstantiated enforcement allegations to 1) deny Veolia a permit 

shield and 2) support unlawful and unnecessary multi-metals CEMS and burdensome feedstream 

analysis requirements. The allegations in the FOVs are unsupported, undeveloped, are not final 

agency action, and have not been subject to administrative or judicial review. As set forth 

below, USEPA has acted arbitrarily and capriciously in making these unsupported allegations 

and by including them in this permitting decision. 

1. The Findings of Violation Issued to Veolia Are Unsubstantiated 

Region 5 sets forth and briefly summarizes (incorrectly) three Findings of Violation ("FOVs") 

that the Agency has issued to Veolia since approximately 2006. See Statement ofBasis at 27-28 

(VES 009276-009277). These FOVs consist of unsupported, unsubstantiated, and highly 

contested allegations that should not be used to support the Agency's permitting decision. 

Furthermore, references to the FOVs are improper and have no place in the Agency's Statement 

ofBasis because such references transform the permit renewal process into an enforcement 

action against Veolia. By this transformation, Veolia is deprived of the procedural safeguards it 

would ordinarily receive had the Agency brought an enforcement action pursuant to the FOVs. 

The Statement ofBasis raises the allegations contained in the FOVs and—since there is no other 

reason to include the FOVs in the Statement ofBasis—assumes the allegations contained within 

the FOVs are true for purpose of the 2014 Draft Permit. Thus, Veolia is being deprived of the 

procedures that would be available in the enforcement context to contest the allegations 

contained within the FOVs. 

By Region 5's own admission a FOV is of no legal consequence: 

An FOV is simply one step in the EPA's enforcement process. This step is 

commonly followed by additional investigation or discovery, information 

gathering, and an exchange of views, all of which occur in the context of an 

enforcement proceeding, and are important means of fact-finding under our 

system of civil litigation. An FOV is not a final agency action and is not subject 

to judicial review. No binding legal consequences flow from an FOV, and an 

FOV does not have the force or effect of law. 

Statement ofBasis at 29 (emphasis added)(VES 009278). As such, an FOV may consist of 

nothing more than naked assertions with no factual basis (although it is contemplated that the 

claims will be developed as the process continues). The FOVs Region 5 has served on Veolia 

are comprised of misstatements and claims that cannot be substantiated. In meetings with the 

Agency's legal personnel, Veolia and its counsel have repeatedly requested that the Agency 

provide Veolia with evidence supporting the Region 5's claims that Veolia violated the emission 

requirements ofthe HWC MACT. However, Region 5 has refused to provide any evidence or 

analysis showing that Veolia has violated the HWC MACT emission standards. Harris Aff. at 

VES 008390. 

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VES 019574 
Further, the investigation, discovery, and the exchange of views contemplated by USEPA's 

enforcement process have been totally absent with regard to the FOVs served on Veolia. Despite 

Veolia's efforts to meet with the Agency, in an effort to understand the claims being made 

against it, the Agency has totally failed to support or develop the allegations so that Veolia can 

appropriately answer and/or rebut the Agency's claims. Also, so much time has passed with 

regard to the allegations contained in the 2006 and 2008 FOVs that the statute of limitations has 

expired with regard to some or all of those claims. Because of the Agency's failure to develop 

these FOVs, the claims contained in them are no longer subject to enforcement, have no 

relevance, and cannot justify the of Veolia's 2014 Draft Permit. This point was reinforced when 

the DOJ contacted Veolia earlier this year and—after an extended period of reviewing the FOVs 

and the allegations contained therein—informed Veolia that the Department would not pursuing 

any enforcement against Veolia. VES 016105. 

On the basis of these unsubstantiated FOVs, the Agency seeks to deny Veolia a permit shield for 

the applicable requirements of the FfWC MACT. See Statement ofBasis 28. Section 504(f) of 

the 1990 amendments to the CAA explicitly authorizes Title V operating permits to include a 

"permit shield"—a permit condition providing that, subject to certain restrictions, a source is 

considered to be in compliance with all applicable requirements if it is in compliance with the 

terms and conditions of its Title V permit. Under a permit shield, the permit becomes the 

comprehensive statement of the source's CA A obligations, and such obligations can be enforced 

only under the permit. For example, if the permitting authority includes emissions limits in a 

permit because of a requirement in a state implementation plan ("SIP") for reasonably available 

control technology ("RACT"), only an enforcement action for violating these limits can be 

brought. No enforcement action can be initiated on the grounds that the SIP actually requires a 

technology different from that specified as RACT in the permit or that the plan imposes more 

stringent emission limits. The permit shield must be explicitly written into the permit for the 

permit shield to apply. USEPA is authorized, if it is the permitting agency, but not required to, 

include a provision in the permit stating that compliance with the conditions of the permit is 

considered compliance with any applicable requirements as of the date of the permit issuance. 40 

C.F.R § 71.6(f). Inthe case of Veolia, Region 5 determined that is it not appropriate to grant a 

permit shield for the applicable requirements of the HWC MACT standard to Veolia: 

However, because the allegations in the June 12, 2008 and August 24, 2012 FOVs 

have not yet been resolved, and may result in incorporation into the permit of a 

compliance schedule, if necessary to bring this facility into compliance, EPA has 

determined that it is not appropriate at this time to grant a permit shield for the 

applicable requirements of the HWC MACT standard. 

See Statement ofBasis at 28. In light of the amount of time that has passed, Veolia's efforts to 

try to resolve the issues, and the lack of engagement by the Agency, this position is 

unreasonable, arbitrary and capricious, and absurd. USEPA has had multiple opportunities 

during the many interfaces with Veolia since the FOVs were issued to pursue or at least engage 

on these topics. However, the Agency has failed to do so. The only fair conclusion one can 

draw from this pattern of conduct is that Region 5 has no intention of actually pursuing the FOV 

allegations because it lacks sufficient evidence to bring an enforcement action. Notably, DOJ 

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VES 019575 
declined to pursue an enforcement action earlier this year. Despite this, Region 5 obviously 

wants to keep the FOVs "alive" for the purposes of pressuring Veolia to accept the enhanced 

monitoring requirement and multi-metals CEMS included in the Draft Permit. This conduct is 

improper. The Agency is also being less than tmthful when it claims that these FOVs may 

eventually result in a compliance schedule in the Title V permit. Again, there has been ample 

time for Region 5 to address the allegations in the FOVs and include a proposed compliance 

schedule in the Draft permit. However, as §3.2.3 of the Statement ofBasis bears out, the Agency 

has no use for a compliance schedule and instead would rather keep the FOVs as a useful tool to 

leverage Veolia into accepting unnecessary requirements. 

In addition, pursuant to 40 C.F.R. § 70.6(f)(3), a permit shield does not affect "[t]he liability of 

an owner or operator of a source for any violation of applicable requirements prior to or at the 

time of the permit issuance." Thus, allegations of past violations are not affected by the permit 

shield. Further, a review of the allegations contained within the 2008 and 2012 FOVs 

demonstrate that the FOVs are premised on Veolia's alleged conduct and are not premised on 

conditions present in Veolia's past permit. Therefore, the permit shield which applies only for 

conditions set out in the permit would be inapplicable to such FOVs. Additionally, even if the 

FOVs were premised on provisions contained within Veolia's past permit, and USEPA 

successfully pursues such allegations, a compliance schedule should be unnecessary. Common 

sense would indicate that USEPA has modified in Veolia's new draft permit any permit 

conditions it previously found troubling in Veolia's former permit. Any permit shield provided 

to Veolia now would be premised on Veolia complying with new the draft permit including any 

new permit conditions that USEPA has placed within it. There is no reason to arbitrarily deny 

Veolia the permit shield. Veolia's draft permit should become the comprehensive statement of 

Veolia's CA A obligations including those contained within the HWC MACT, and such 

obligations should be capable of being enforced only under this new permit. Region 5 should 

therefore grant Veolia a permit shield for the applicable requirements of HWC MACT standard 

and those portions of 40 C.F.R. Part 63 applicable to the source as a result of the applicability of 

40 C.F.R. Part 63, subpart EEE. 

Similarly, USEPA is using the unsupported and unsubstantiated FOVs—particularly the August 

24, 2012 FOV—in an attempt to support its push for a multi-metals CEMS and an enhanced 

FAP. In § 5.2.2. ofthe Statement ofBasis, USEPA sets forth its primary justifications for the 

enhanced monitoring. Every argument furthered by the Agency in this section relies on the 

allegations that were included in the August 24, 2012 FOV and the underlying allegations by the 

NEIC. However, like the 2006 and 2008 FOVs, the 2012 FOV consists of one-sided allegations 

that have never been tested through an administrative review process, have not been analyzed in 

the light of Veolia's counter-arguments, and have not been subject to independent third-party 

review. In light of this, Veolia has set forth below its responses to the allegations contained in 

the August 24, 2012 FOV. 

(i) The August 24, 2012 FOV 

The FOV issued to Veolia on August 24, 2012 identified three separate categories of alleged 

violations: 1) that Veolia failed to provide certain information to Region 5 pursuant to the March 

2010 Information Requests; 2) that Veolia failed to establish correct OPLs for mercury based on 

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VES 019576 
the metals testing it conducted in 2008; and 3) that Veolia failed to appropriately analyze certain 

waste streams prior to incineration. See August 2012 FOV at VES 001356-001365. 

Each of the alleged violations arises out of long-running points of contention between the 

Agency and Veolia, but none of the alleged violations supports Region 5's proposal to deny 

Veolia a proper permit shield. 

(a) Veolia's Alleged Failure to Provide Information Pursuant 

to the March 2010 Information Requests 

The March 2010 Information Requests issued to Veolia were just one event in a long series of 

negotiations between Veolia and the Agency regarding metals testing, CEMS, and OPLs for 

mercury. To understand why the allegations in the August 2012 FOV recklessly misrepresent 

Veolia's actions and compliance history, it is imperative to understand the sequence of events 

surrounding the March 2010 Information Requests. 

USEPA first served an information request on Veolia regarding metals testing on February 22, 

2008 ("February 2008 Information Requests"). The February 2008 Information Requests 

directed Veolia to perform comprehensive performance testing on all three incineration units by 

July 15, 2008. See February 2008 Information Requests at VES 002450-002452. On March 10, 

2008, Veolia submitted a formal written response to the February 2008 Information Requests. 

See Veolia's March 10, 2008 Response at VES 004695-004706. In its response, Veolia agreed 

to conduct the testing requested by USEPA, but stated that it could not do so by July 15, 2008. 

Veolia further supported this assertion by attaching an affidavit from Craig Doolittle of ENSR 

Corporation (Veolia's stack-testing contractor) agreeing that it was not feasible to plan and 

perform in less than five months testing that would normally take a year or more. 

Veolia and the Agency met to discuss the February 2008 Information Requests on March 13, 

2008. USEPA acknowledged that the schedule included in the February 2008 Information 

Requests was unrealistic in light of the time needed to plan, prepare, and perform the CPTs. 

Veolia agreed to propose an alternative, more practical, schedule and submit it to the USEPA. 

The schedule Veolia proposed stated that the three testing programs would be completed 

between August of2008 and April of 2009. See Veolia's March 21, 2008 email (transmitting 

Veolia's proposed CPT schedules) at VES 004710-004720. However, this alternative schedule 

was rejected by Region 5. 

The next discussion regarding the February 2008 Information Requests took place on April 25, 

2008. During a phone call that day between Veolia and Region 5, the Agency instructed Veolia 

that it had to choose either to complete the metals testing, pursuant to the Agency's very tight 

time frame, or alternatively to choose one of four options for metals compliance that would be 

included in Veolia's long-delayed Title V permit. The four options presented to Veolia were: 1) 

cease incinerating any wastes containing MACT metals; 2) install mercury CEMS; 3) accept 

OPLs developed by Region 5; or 4) settle previously discussed compliance concerns with issue 

resolution incorporated into the Title V permit. After negotiations, Veolia—although knowing 

that conducting performance testing within this expedited time period would be challenging and 

result in increased costs and, more importantly, increased risk of calculation error as a result of 

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VES 019577 
reduced QA/QC review time—chose, with the agreement of USEPA, to conduct the metals 

testing instead of one of the four alternatives presented by the Agency. 

To memorialize the agreement between the Agency and Veolia regarding the metals testing, the 

USEPA agreed to revise and reissue the February 2008 Information Requests. Region 5 issued 

these revised information requests on June 5, 2008 (the same day USEPA issued Veolia's draft 

Title V permit). See June 2008 Information Requests at VES 004721-004733. The June 2008 

Information Requests required Veolia to, among other things: commence performance testing for 

LVMs, SVMs, and mercury by no later than August 15, 2008; submit the results of this testing in 

a Notification of Compliance ("NOC") by September 26, 2008; and submit an application for 

significant modification to its Title V permit (to include the OPLs for mercury, SVMs, and 

LVMs developed by the metals testing in the Title V permit) by September 26, 2008. 

Thus, the June 2008 Information Requests were specifically negotiated to address three key 

issues: 1) the date by which Veolia would provide test data for mercury, SVMs, and LVMs; 2) 

the development of OPLs for mercury, SVMs, and LVMs using the test data; and 3) the manner 

in which metals would be handled under the Title V permit (i.e., the Agency required Veolia to 

submit an application for modification of the permit after it was issued to include OPLs 

developed from the test data). 

Pursuant to the June 2008 Information Requests, Veolia performed the stack testing for LVMs, 

SVMs, and mercury in August and September of 2008. On September 12, 2008, USEPA 

formally issued a Title V permit to Veolia. Veolia's final Title V permit did not contain OPLs 

for LVMs, SVMs, and mercury. On September 16, 2008, at Veolia's request, USEPA issued 

another revised §114 Information Request extending Veolia's deadline to submit the test data, 

NOC, and its application for significant modification from September 26, 2008, until October 10, 

2008. See September 2008 Information Requests at VES 002713-002726. The extension 

provided Veolia with additional time to add information collected during the September portion 

of the metals testing. 

On October 10, 2008, pursuant to the February, June, and September 2008 Information Requests, 

Veolia submitted a NOC, the test reports for incinerators 2, 3, and 4, and an application for 

significant modification to Veolia's Title V permit. See Veolia's Oct. 10, 2008 Submission at 

VES 000743-000917. In its application for significant modification, Veolia, as required by the 

Agency, submitted revised OPLs for mercury, SVMs, and LVMs. See September 2008 

Information Requests at VES 002713-002726. 

At the direction of USEPA, Veolia submitted a revised application for significant modification to 

USEPA on or about January 6, 2009. Veolia Jan. 2009 Sig. Mod. at VES 000918- 000922. This 

revision lowered (i.e., made the OPLs more restrictive) for LVMs, SVMs, and mercury based on 

a revised calculation for the moisture content ofthe solid waste that was fed to the incinerator 

during the August and September 2008 metals testing. 

After completing all ofthe requirements of the negotiated June 2008 Information Requests and 

submitting a revised application for significant modification in January 2009 at the Agency's 

direction, Veolia was very surprised when it received another information request from USEPA, 

dated January 29, 2009 ("January 2009 Information Requests"). Veolia was even more surprised 

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VES 019578 
when it learned that the January 2009 Information Requests directed Veolia to install mercury 

CEMS on the three hazardous waste incinerators located at the Sauget facility within 30 days of 

Veolia's receipt of the requests. See January 2009 Information Requests at VES 006369-

006379. This direction was in clear violation of the April 25, 2008 agreement reached between 

Veolia and Agency whereby, with the Agency's concurrence, Veolia conducted metals testing in 

lieu of installing mercury CEMS (or any ofthe other options offered by the Agency). 

After being denied an extension of time to evaluate USEPA's directive to install millions of 

dollars' worth of monitoring equipment, Veolia responded within the required 30-day deadline 

provided by the January 2009 Information Requests. Veolia objected to the premise ofthe 

information requests—that they were to "determine whether [Veolia] ... is complying with the 

Hazardous Waste Combustor MACT"—because Veolia had just established compliance with the 

HWC MACT through USEPA approved and directed performance testing. Veolia Mar. 4 

Response at VES 006388-006389. Further, Veolia asserted that if Region 5's intention had 

always been to require Veolia to install mercury CEMS technology, USEPA should have made 

Veolia aware in April of 2008 that the Agency was going to require the installation of CEMS 

technology for metals before Veolia incurred hundreds of thousands of dollars in costs and spent 

hundreds of hours of staff time completing the metals tests pursuant to the June 2008 

Information Requests. Id. at VES 006391. 

Veolia's response demonstrated that the installation of mercury CEMS was impractical and 

improper for the purposes of trying to ensure HWC MACT compliance. Specifically, Veolia 

made the following points, among others, concerning the problems associated with the 

application of mercury CEMS to its incineration units: 

• After diligent inquiry, Veolia did not discover any successful mercury CEMS 

implementation efforts on any commercial hazardous waste incinerators in the United 

States. Moreover, the CEMS technology employed in the electric utility industry and 

on European commercial hazardous waste incinerators is not applicable to, and 

significantly different than, the CEMS technology that USEPA directed Veolia to 

install. 

• The 30-day period provided by USEPA in the Information Requests for design, 

selection, purchase, manufacture, and installation of three mercury CEMS, and 

acquisition and configuration of a Data Acquisition System (DAS) was unreasonable, 

unachievable, and contrary to good practice. It also was contrary to USEPA's own 

guidance,38 and inconsistent with the time period allowed for implementing CEMS 

programs in numerous other regulations. Moreover, the 30-day time period is not 

achievable for any single CEMS application, much less three separate mercury 

monitoring systems. 

3 8

 Center for Environmental Research Information, USEPA, EPA Handbook: Continuous Emission Monitoring 

Systems for Non-Criteria Pollutants, EPA/625/R-97/001 (April 1997), attached at VES 004160-004329. 

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VES 019579 
• USEPA required the CEMS to be "installed, evaluated, and certified in accordance with 

the proposed Performance Specification 12"; however, no commercially available 

mercury CEMS can meet the requirements for either Draft Performance Specification 

12 or Performance Specification 12A. 

o USEPA has never officially promulgated Draft Performance Specification 12 

and has never subjected the specification to notice and comment rulemaking 

procedures. 

o Draft Performance Specification 12 contains numerous technical errors (as well 

as careless typographical errors duplicated in other "draft" performance 

specifications) and is inappropriate for mercury monitoring applications. 

o Draft PS 12 requires the use of National Institutes of Standards and Technology 

("NIST") traceable mercury calibration standards for both elemental and 

oxidized mercury that are not yet available because such traceability protocols 

are still under development. 

o Draft PS12 mandates the use of NIST traceable standards for oxidized mercury 

which do not exist at any concentration level. 

• The Information Requests lacked any reference to averaging period for reporting data 

from the CEMS. A CEMS attempting compliance with any emission standard must 

include both a numerical limit and an associated averaging period. 

• The commercially available CEMS that USEPA was forcing Veolia to consider under 

the Information Requests provides wet basis measurements; however, under 40 CF.R. 

Part 63, Subpart EEE, compliance determinations are based on dry basis measurements 

USEPA provided no information as to how this conversion would be made. 

• The Information Requests referenced citations that do not exist in the Code of Federal 

Regulations. 

Because of these defects and others with the CEMS required by the January 2009 Information 

Requests, Veolia concluded: 

Veolia believes that the mercury CEMS technology is not a demonstrated 

compliance monitoring technology for commercial hazardous waste incinerators. 

Rather, the best method for Veolia and other hazardous waste incinerators to 

accurately demonstrate compliance with the MACT metals standards is through 

performance testing and the development of OPLs. This is supported both by the 

stringent and detailed CPT MACT metals requirements of 40 C.F.R. Part 63, 

Subpart EEE and USEPA Region 5's own representations to Veolia regarding the 

use of OPLs over CEMS technology. Specifically, in an April 16, 2008 

memorandum directed to Veolia, which was approved by Section Chief William 

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VES 019580 
MacDowell, Region 5 stated the following regarding the use of CEMS for MACT 

metals: 

Although continuous emission monitors (CEM) for dioxin/furan, 

mercury, PM, SVM/LVM, and HC1/C12 do exist, the HWC 

MACT does not require them. EPA has not promulgated a 

performance specification for HC1/C12 CEMS. A DRE CEM is 

technically possible, but the case engineer does not know of any 

facility that uses one. Until EPA requires a CEM for each 

standard, we will have to rely upon OPLs as surrogates for 

them. In order for OPLs to assure compliance reliably, the 

owner or operator must establish OPLs from CPT operating 

data on the same incinerator, under known test operating 

conditions. 

Veolia Mar. 4, 2009 Response at VES 006393 (quoting USEPA April 16, 2008 Memo). After 

Veolia submitted its detailed response on March 4, 2009, USEPA and Veolia met to discuss the 

January 2009 Information Requests on May 13, 2009. At the May 13, 2009, meeting, USEPA 

conceded that 30 days had been an insufficient period of time to install the CEMS contemplated 

by the January 2009 Information Requests. Moreover, the Agency acknowledged that NIST had 

yet to come up with a traceable calibration standard that could begin to verify the accuracy of 

data produced by the proposed mercury CEMS. USEPA also conceded that they referenced the 

wrong Performance Specification—Draft PS 12—in their information requests and that, to their 

knowledge, no mercury CEMS had yet been installed and successfully operated at a commercial 

hazardous waste combustion facility in the United States. Despite these errors and admissions, 

USEPA indicated that it would not withdraw the January 2009 Information Requests and 

maintained that the Agency intended to use the data collected via the CEMS for compliance with 

the HWC MACT and possible enforcement. However, the Agency did indicate that it wished to 

continue the dialogue with Veolia and ended the meeting by stating that Agency personnel would 

contact Veolia for further discussions—with the eventual goal being some sort of settlement 

regarding compliance. See Harris Aff. at VES 008388. 

However, instead of a discussion regarding settlement, the next meaningful contact that Veolia 

received from the Agency were the March 2010 Information Requests. USEPA sent the March 

2010 Information Requests to Veolia without explanation or prior notification. The March 2010 

Information Requests consisted of a slightly revised version of USEPA's flawed January 2009 

Information Requests with a few material changes to the relevant requests. The primary material 

change in the March 2010 Information Request was that USEPA attempted to fix the deficiencies 

that plagued the January 2009 version by impermissibly shifting from itself to Veolia the burden 

of creating technical standards to verify the data generated by the mercury CEMS that USEPA 

itself had failed to devise. (A strikethrough comparison of the January 2009 and March 2010 

Information Requests is attached at VES 006420-006438.) 

Veolia responded to the March 2010 Information Requests on March 25, 2010. See Veolia's 

March 25, 2010 Response at VES 006346-006468. In addition to numerous general objections, 

Veolia objected to the Information Requests on the grounds that (a) they were unconstitutional as 

they placed Veolia in a position of incurring penalties for noncompliance without any 

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VES 019581 
opportunity for administrative or judicial review; (b) they represented an attempt by the Agency 

to unlawfully modify Veolia's Title V permit; (c) they represented an attempt by the Agency to 

deprive Veolia of its due process rights by circumventing Veolia's appeal of its RCRA Part B 

Permit; and (d) they were arbitrary and capricious and lacked a rational basis because they 

ignored Veolia's demonstrated compliance with the HWC MACT Rule. However, despite these 

objections, Veolia again offered to meet with the Agency in an attempt to work out a 

compromise. 

On April 28, 2010, Veolia sent a team of decision makers to meet with USEPA at USEPA's 

Raleigh, North Carolina Research Triangle Park facility. At these meetings, the Agency was 

unable to identify a location where mercury CEMS technology had ever been successfully 

utilized in the United States on a commercial hazardous waste incinerator. Veolia expressed its 

belief, based upon Veolia's experience in operating its commercial hazardous waste incinerators, 

that the high variable moisture, high temperature environment found in the incinerators and the 

wide variations of mercury found in the feed combined to make the Veolia incinerators the most 

challenging environment in which anyone had ever proposed to operate a mercury CEMS. 

Veolia believed that the technology was likely to fail and would succeed, if ever, only after the 

mercury CEMS endured many failures and Veolia incurred much time and expense attempting to 

force the technology to successfully operate. The Agency did not disagree and offered no 

evidence to the contrary. As a result of the discussions, the Agency offered to entertain 

alternative methods to obtain the relevant emissions information. Harris Aff. at VES 008388. 

In response to USEPA's invitation to offer alternative methods as part of the ongoing discussions 

between the parties, on May 25, 2010, Veolia offered, in relevant part, to install additional 

technology in the form of activated carbon injection systems on incinerators 2 and 3, provided 

that all approvals were in place. Carbon injection systems actually reduce emissions as opposed 

to simply monitoring emissions. See Veolia's May 25, 2010 Letter at VES 006469-006471. 

Veolia further proposed that it would provide the Agency with additional data by scheduling and 

performing mercury emission testing in accordance with the USEPA approved 2008 

performance test plans. This testing would document whether incinerator units 2, 3 and 4 met all 

applicable mercury MACT Standards. Despite its offer to entertain alternatives to the March 

2010, Information Request, the Agency never provided an analysis or otherwise responded to the 

merits of this proposal. 

In fact, USEPA did not bring up the March 2010 Information Requests—or mention CEMS at 

all—until Veolia received the August 2012 FOV. The August 2012 FOV states, without 

explanation, "[t]o date, Veolia has failed to provide any of the information required by the March 

10, 2010 Information Request in violation of §114 ofthe CAA. " August 2012 FOV at VES 

001364. Quite conversely, as set forth in these comments and in Mr. Harris' Affidavit, it was 

USEPA that never provided any response to Veolia's March 4, 2009, response to the January 

2009 Information Requests, Veolia's March 25, 2010 response to the March 2010 Information 

Requests, or Veolia's May 25, 2010 offer to install carbon injection systems as a way to resolve 

the CEMS issues. See Harris Aff. at VES 008387-008388. 

Throughout this entire period, despite its repeated requests, Veolia has been presented with no 

evidence demonstrating Veolia's noncompliance with the HWC MACT emission standards as 

set forth in the August 2012 FOV. Moreover, given this history, USEPA's demand that Veolia 

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install mercury CEMS as set forth in the March 2010 Information Requests—an expensive, 

experimental technology that cannot be used to establish MACT compliance—has no rational 

basis and is arbitrary and capricious. 

(b) Allegation that Veolia Failed to Establish and Abide by 

Appropriate OPLs for Mercury Emissions 

As detailed above, Veolia and USEPA have communicated extensively from 2008 forward 

concerning Veolia's emissions. Throughout this period, Veolia worked cooperatively with 

USEPA in an effort to establish appropriate OPLs. In August and September of2008, Veolia 

undertook performance testing to establish OPLs for mercury, SVMs, and LVMs as detailed in 

the June 2008 Information Requests. Prior to conducting the tests, Veolia provided USEPA with 

Veolia's Metals Performance Test Plan, which set forth how the testing would be performed and 

how the waste would be spiked with mercury prior to being fed into the incinerator. See VES 

002633-002707. Further, during the August 2008 performance testing, Veolia provided split 

samples to USEPA's Region 5 Land Group at USEPA's request. As reflected in the plan 

provided to USEPA, Veolia retained ENSR Corporation (which is now a part of AECOM, Inc.) 

to perform the stack testing. ENSR retained the services of the outside lab Maxxam Analytics, 

Inc. to evaluate and analyze the collected samples on behalf of Veolia. Maxxam in turn subcontracted the analysis to PSC Environmental Systems to perform ash and heating value analyses 

ofthe waste samples. 

The accepted analytical method for the metals analyses ofthe solid waste samples from the tests 

was that the testing was to be performed on the samples on an "as received" basis. Maxxam 

followed a procedure, common for soil samples, that included a step that dried the samples prior 

to analyzing for metals content. This most likely inflated the reported metals concentrations. It 

was presumed that the metals analysis reported by the lab were on an "as received" basis since 

the lab reports did not indicate otherwise (as is typically done when analyses are performed on a 

dry basis). The fact that the samples were first dried before analyses were performed was 

discovered in early November of2008. Maxxam was instructed to repeat their drying procedure, 

following the same protocol as was originally performed, on the remaining solid waste samples 

for Units 2 and 3 (no samples remained from Unit 4 testing) and record before and after weights 

so a moisture percentage could be determined. After these moisture determinations were 

received, mercury feed rates for the testing were recalculated and Veolia lowered the mercury 

feedrate limit set forth in its DOC from 0.0047 lb/hr to 0.0034 lb/hr on Units 2 and 3 on 

November 18, 2008. See VES 007582-007589. Since Maxxam did not have any Unit 4 solid 

waste samples remaining, it was determined that the most conservative, and only known, 

moisture values for the Unit 4 solid samples (from PSC analytical results) would be used to 

recalculate the mercury feedrates for the testing on Unit 4. Upon completing this calculation, 

Veolia lowered Unit 4's mercury feedrate limit set forth in its DOC from 0.031 lb/hr to 0.026 

lb/hr on November 25, 2008. See VES 007590-7595. Veolia promptly notified USEPA 

personnel of the new calculations and the reasons for the new calculations. It should be noted 

that Veolia believes that USEPA's insistence that the 2008 metals testing be conducted on an 

expedited basis—in a shorter timeframe than provided for in the HWC MACT—significantly 

contributed to the moisture issue not being discovered until November 2008. In fact, if Veolia 

had been provided with three months to prepare the test reports as provided under the 

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regulations, this issue would have been identified and corrected within the three month period, 

since it was corrected in November of2008. 

On or about July 28, 2009, USEPA's Land and Air Groups initiated a call with Veolia staff. 

During this call, USEPA expressed satisfaction with the preparation of the spiked sample for 

mercury but continued to express concern with the moisture content ofthe solid samples. This 

was part of an ongoing discussion with USEPA in which USEPA alleged on a number of 

occasions that analysis the Agency had conducted on the 2008 split samples—specifically with 

regard to moisture content—was inconsistent with Veolia's analysis even after Veolia had 

adjusted the OPLs in November of 2008. During these discussions, Veolia repeatedly offered to 

use USEPA's moisture content or, in the alternative, use the most conservative moisture content 

to develop new OPLs. See Veolia's July 6, 2009 Response at VES 004833-004841. USEPA 

continually rebuffed these attempts to settle the dispute by refusing to provide Veolia with the 

moisture content USEPA allegedly found via analysis of its own split samples. Harris Aff. at 

VES 008387. 

In an effort to resolve the dispute with USEPA, but without the benefit of USEPA's analytical 

data from the split samples, Veolia searched for a logical nexus for an even more conservative 

moisture value. Veolia determined that PSC's analytical methods resulted in an even more 

conservative moisture value then Maxxam's (due to drying temperature) and therefore used 

PSC's moisture results to establish even lower OPLs. These revised OPLs were placed in 

Veolia's NOC on March 16, 2010, for Units 2 and 3. Veolia used PSC's moisture results not 

because Veolia believed them to be more accurate, rather simply as an accommodation to 

USEPA and in an effort to bring final resolution to the moisture issue. During a meeting in 

Springfield, Illinois on March of 2011, USEPA representatives finally agreed that the moisture 

issue was resolved. 

It is important to note that from March 10, 2008, to the present, Veolia has followed USEPA's 

specific directive that Veolia comply with the October 10, 2008, OPLs. See USEPA's December 

5, 2008 Letter at VES 007553-007560. Further, during this time period, Veolia never exceeded 

its mercury emission standard of 130 ug/dscm based on its actual feedrate. 

(c) Allegation that Veolia Failed to Appropriately Analyze 

Certain Waste Streams 

The 2012 FOV alleged that Veolia failed to appropriately profile and analyze certain wastes it 

receives for incineration. The allegations arose out of an inspection conducted at the Veolia 

facility by the USEPA's National Enforcement Investigations Center ("NEIC") between 

December 5, 2011, and December 15, 2011. The August 2012 FOV contained excerpts from the 

NEIC's final report regarding the inspection; however, Region 5 did not provide Veolia with a 

copy ofthe NEIC report prior to issuing the August 2012 FOV. The excerpts of the NEIC report 

that were included contained errors, moreover, because the report was excerpted, the totality of 

the NEIC's findings with regard to Veolia were unclear—i.e., it was unclear whether the NEIC 

had generally found Veolia to be in compliance and had only found a small number of minor 

issues, or whether the NEIC had determined there were larger compliance issues. 

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VES 019584 
In response to the August 2012 FOV, Veolia scheduled a meeting with USEPA on September 

18, 2012. On September 17, 2012, the day before the scheduled meeting on the August 2012 

FOV, Region 5 sent Veolia a Notice of Violation ("NOV"), dated September 13, 2012. Sept. 

2012 NOV at VES 006478-006481. The September 2012 NOV contained the same allegations 

based on the NEIC inspection that were contained in the August 2012 FOV. In addition, 

although it contained nearly identical allegations, the September 2012 NOV was sent by the 

RCRA Branch of Region 5. 

Veolia representatives met with USEPA on September 18, 2012, in Chicago to discuss both the 

FOV and the NOV. During the meeting, Veolia informed USEPA that it could not properly 

respond to the violations alleged in the FOV and the NOV without receiving a copy of the NEIC 

Report, which, at the time of the meeting, Veolia had requested but had not received. In 

addition, based on the information set forth in FOV and the NOV, Veolia stated that the NEIC 

Report appeared to contain errors. Region 5's assistant regional counsel, Sabrina Argentieri, 

requested that Veolia set forth in writing the allegations that Veolia believed to be erroneous to 

the extent Veoha could do so without having the benefit of having reviewed the NEIC Report. 

On September 26, 2012, Veolia provided Ms. Argentieri with the requested written analysis. 

Veoha finally received a copy of the NEIC report on September 28, 2012. The NEIC report 

stated that the specific purpose ofthe investigation was to determine Veolia's compliance with 

40 C.F.R. Part 63.1209(c) (analysis of feedstreams) under the Clean Air Act and Veolia's 

compliance with its Waste Analysis Plan ("WAP") under RCRA. See NEIC Report at VES 

001330. The NEIC report did not offer conclusions or compliance/enforcement 

recommendations; rather, the report set forth four "observations/areas of concern" regarding 

Veolia's waste profiles. These "observations/areas of concern" eventually ended up in the FOV 

and NOV served on Veolia. After having reviewed the NEIC Report, Veolia confirmed that the 

NEIC Report contained errors. Veolia provided a written response to the allegations via letter 

dated October 12, 2012. (A copy of Veolia's October 12, 2012 response is attached as VES 

006483-006502.) Veolia responded to Region 5's general allegations voicing concerns over 

Veolia's waste profiles as follows 

Since the effective date of the Incinerator MACT Rule, Veolia has had a 

Metals Testing Protocol in place that has been provided to USEPA, along with 

a Waste Analysis Plan (WAP) and Feed Stream Analysis Plan (FAP). This 

protocol along with the WAP and FAP determines if metals analysis needs to 

be conducted and how often based on the generator's provided waste profile 

sheet including metal analysis, MSDSs, and additional generator-provided 

information. The facility's on-site laboratory is equipped with two 

Inductively Coupled Plasma ("ICP") units and two direct mercury analyzers 

("DMA") that support this effort. [Currently, Veolia operates three ICPs and 4 

DMAs.] These instruments are continually upgraded to keep up with 

improved technology/software. These protocols and plans, along with the onsite laboratory's capabilities, ensure that the wastes being received are 

properly evaluated and the metal concentrations are correctly determined. In 

addition, Veolia has a metals suspect list that is continually updated and that 

requires those suspect wastes to undergo metals analysis. 

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VES 019585 
In addition, Veolia responded to each of USEPA's individual allegations as follows: 

USEPA Allegation No. 1: Veolia was using toxicity characteristic leaching 

procedure (TCLP) results instead of total metals concentrations. NEIC 

identified the presence of conflicting metals data between the profile package 

and the information in the WTS and in the incineration control system (ICS). 

For profile 236152, an MSDS contained in the profile package listed the 

chromium concentration as "3 to 6 percent chromium as chromium oxide " 

(30,000 to 60,000 mg/kg). TCLP values from off-site analytical (SGS 

Environmental Services, Inc. on 3/24/06) were 11.4 mg/L for Chromium and 

0.876 mg/L for Cadmium. Veolia stated that 20 times TCLP values were used 

(228 and 17.52 mg/L) for the incinerator feed rate calculations, although 

there are no values in the WTS query that were provided. 

Veolia Response No. 1: Profile 236152 is rarely used and has only shipped on 

four occasions since April of 2006. This waste stream is comprised of spent 

filter media (carbon with chrome). The MSDS in the profde package is for 

unused carbon with copper and chromium and is provided as additional 

information, not to establish a metals concentration for the waste. As a result, 

the concentration value defined on the MSDS would not be in the WTS or 

ICS. Following discussions with NEIC, currently this spent filter media waste 

stream is sampled and analyzed for metals every time it is received. Finally, 

after reviewing the NEIC inspection report, it does not reflect accurately 

Veolia's procedures for managing the total metals concentrations in the WTS 

and ICS. The profile package may contain additional information (from 

MSDSs) that is not representative of the actual waste stream. In this case, the 

MSDS in the profile package was unused carbon with copper and chromium, 

where the actual waste stream was spent filter media (carbon with chrome). 

The 228 mg/l for chromium was consistently used in the profile package and 

in the WTS and ICS. If the NEIC continues to have concerns, Veolia will 

need additional information from the NEIC in order to address the NEIC's 

concerns, if any. 

USEPA Allegation No. 2: The profile package for 691163 has a TCLP value 

for chromium of 1.8 mg/L, while the WTS and ICS used a value of 0 mg/L. 

Chromium is likely much greater than 20 times the TCLP concentration of 1.8 

mg/L, an off-site analysis result that was found in the profile package. No onsite metal analyses has been conducted. 

Veolia Response No. 2: Veolia reviewed this profile and determined that it 

did not take the TCLP data and multiple by 20 to obtain the metals 

concentration. This waste stream is not a metals suspect waste so in 

accordance with Veolia protocols, metals analysis is not required. The TCLP 

values included in this waste profile were all below detection limits. 

Moreover, the 1.8 mg/L value referenced in both paragraph 45(b) ofthe First 

Letter and paragraph 2 of the Second Letter was not included in this profile. 

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VES 
If the NEIC continues to have a concern, Veolia needs additional information 

from the NEIC in order to address the NEIC's concern, if any. 

USEPA Allegation No. 3: Veolia profile reviews were based on general 

processes that did not consider the possibility for variability in volatile or 

semivolatile metals concentrations. For example, profiles 660210 and 

CI5789 both are described as "cyanide containing wastes. " While both 

profiles list cadmium cyanide as a possible constituent, Veolia uses a value of 

6,470 mg/kg cadmium for profile CI5789 and 1 mg/kg cadmium for profile 

660210. These are very similar waste streams generated by different 

generators, therefore there could be variability between waste streams. 

Veolia Response No. 3: These are not "very similar waste streams"; rather, 

CI5789 is bulk liquid waste that comes to Veolia in 5,000 gallon shipments 

and 660210 consists of containers filled with individually-packaged and 

labeled unused products. The cadmium cyanide concentration for CI5789 is 

based on analytical analysis, while the concentration present in 660210 is 

known because it is unused material (and was confirmed through analysis). 

Veolia believes this further explanation adequately addresses NEIC's issues. 

If the NEIC continues to have concerns, Veolia will need additional 

information from the NEIC in order to address the NEIC's concerns, if any. 

USEPA Allegation No. 4: The profile package for AF3753 has a total 

mercury value of 4140 mg/kg (TCLP value of 37.8 mg/L), but the WTS and 

ICS used a value of 25 mg/kg for at least 5 years. Having conflicting values 

between profile packages and databases, without a clear indication as to 

which value is correct, could lead to the use of incorrect metals 

concentrations for feed rate calculations. Veolia stated that a total mercury 

analysis was measured and the measured value of 25 ppm is usedfor the 

incinerator feed rate calculations, rather than the profile values stored in the 

WTS. Since the historical data in the profile indicates a mercury value as 

high as 4140 mg/kg, this waste stream might not have a total mercury value of 

25 ppm every shipment. 

Veolia Response No. 4: The 4140 mg/kg value is a historical value that dates 

back to the early 1990s. In 2004, when the MACT standards came into effect, 

the analysis for profile package AF3753 was updated and the updated analysis 

showed mercury to be below 25 mg/kg. Therefore, Veolia used a value of 25 

mg/kg for the incinerator feed rate calculations. Recently, the generator 

validated Veolia's use ofthe 25 mg/kg mercury figure when the generator 

amended profile AF3753 to list 0-50 mg/kg thimerosal. Thimerosal is 

49.55% mercury. Given that the upper limit of profile AF3753 is 50 mg/kg 

thimerosal, the upper limit of profile AF3753 for mercury is 49.55% of 50 

mg/kg or 24.78 mg/kg. Pursuant to applicable regulations, Veolia has the 

right to rely upon the generator's representations. Further, the generator's 

representations are in agreement with Veolia's own analysis. Finally, after 

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VES 
reviewing the NEIC inspection report, it does not reflect accurately Veolia's 

procedures for managing the total metals concentrations in the WTS and ICS. 

The profile package matched the WTS and ICS. If the NEIC continues to 

have concerns, Veolia will need additional information from the NEIC in 

order to address the NEIC's concerns, if any. 

USEPA Allegation No. 5: For Profile 374339, Veolia stated that a total 

metals analyses was run on-site and total MACT metals were usedfor 

IPS/WTS. Since the waste type listed on this profile is "Organic Debris, " this 

waste stream is variable and should be analyzed each time a load is received. 

Veolia Response No. 5: While not to the exclusion of its own sampling and 

analysis, Veolia has the right to rely upon the generator's representations 

relating to the waste stream under applicable regulations. However, Veolia is 

sampling and analyzing this waste stream for metals every time it is received 

and the metals concentrations are adjusted as such in the WTS and ICS based 

on that current analysis. 

Veolia's Oct. 12, 2012 Response at VES 006483-006502. As Veolia's responses indicate, the 

waste analysis allegations contained in the FOV and NOV were either based on 

misunderstandings of Veolia's waste profiles and waste profile system, or were just erroneous. 

Moreover, Veolia, although it was not required to do so, instituted a program to test many ofthe 

incoming wastes streams identified in the NEIC report for metals every time those wastes are 

received at the facility. Region 5 failed to provide any response, comment, or reaction to 

Veolia's October 12, 2012, response. 

In sum, each and every allegation contained in the August 2012 FOV has been resolved, 

rebutted, clarified, or otherwise addressed by Veolia during the negotiations with the Agency 

over Veolia's HWC MACT compliance that have taken place over the last several years. 

Moreover, despite the time, effort, and resources Veolia has spent to engage USEPA regarding 

the issues raised in the August 2012 FOV, the Agency has offered no response and provided no 

other support for its allegations. The Agency has taken no final action—nor taken steps toward 

final agency action—that show that Veolia is out of compliance. For these reasons, Region 5 

must revise the Statement ofBasis and the draft permit to include a permit shield to Veolia for 

the HWC MACT and remove all references to the FOVs. Thereafter, Region 5 should reopen 

this portion ofthe permit for public comment. 

2. Alleged Referrals by the IEPA to the Illinois Attorney General 

On Page 28, footnote 15, of the Statement ofBasis, USEPA sets forth the following: 

1 5On February 26, 2007, IEPA referred Veolia to the Illinois Attorney General for 

alleged violations of the Illinois Environmental Protection Act, Illinois Pollution 

Control Board Regulations, and the HWC MACT. On March 5, 2010, after 

receiving additional information, the IEPA referred to the Illinois Attorney 

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VES 019588 
General additional alleged violations ofthe Illinois Environmental Protection Act, 

Illinois Pollution Control Board Regulations, and the HWC MACT. 

Statement ofBasis at 28 n.15 at VES 009277. Veolia has never received any notice of any kind 

regarding these alleged violations referred to the Illinois Attorney General by IEPA. Nor has the 

Illinois Attorney General, to Veolia's knowledge, ever pursued such allegations in any way. 

Moreover, the passage of time since these alleged referrals were supposedly made (more than 

seven years and four years, respectively) strongly suggests that, even if these referrals were 

made, the Illinois Attorney General long ago deemed them unworthy. Region 5's inclusion of 

this footnote in the Statement ofBasis is improper and negligent, and demonstrates the Agency's 

bias and malice against Veolia in requiring the multi-metals CEMS and the changes to the FAP 

in the 2014 Draft Permit. These unspecified and unsubstantiated allegations provide no support 

for any of the Agency's permitting actions with regard to Veolia. 

A l l references to the 2006, 2008, and 2012 FOVs and any reference to alleged violations referred 

to the Illinois Attorney General by IEPA should be removed from the Statement ofBasis. It 

would be arbitrary and capricious for Region 5 to rely on unsupported, unsubstantiated, and 

unidentified enforcement allegations to support the Agency's denial of Veolia's permit shield 

and the enhanced monitoring requirements. Further, the permit shield for the HWC MACT 

should be granted and the enhanced FAP and the requirements for the installation of CEMS 

should be removed from the 2014 Draft Permit. 

I. The Administrative Procedures USEPA Is Employing Violate Veolia's Due 

Process Rights 

The administrative procedures USEPA is following for the permit renewal are constitutionally 

inadequate as applied to Veolia because they do not give Veolia an adequate opportunity to 

contest the alleged violations of the Clean Air Act that Region 5 is using to justify portions ofthe 

2014 Draft Permit. 

Veolia is not a manufacturing facility. It does not make commercial or industrial products. 

Rather, Veolia's sole business is to destroy hazardous waste in a safe and effective manner by 

incinerating that waste. The incineration process does not create products; it creates air 

emissions. Under § 502 of the CAA, Veolia cannot operate its incinerators and create air 

emissions without a valid permit. See 42 U.S.C. § 7661a. In addition, while the Clean Air Act 

contemplates that sources required to have permits may be permitted by state-regulatory agencies 

with delegated programs—like IEPA—USEPA has taken over the Title V permit process as it 

relates to Veolia. Veolia cannot obtain a Title V permit from any other authority other than 

USEPA. Thus, USEPA holds a unique and powerful authority over Veolia's sole business 

activity. 

As set forth herein, USEPA has subjected Veolia to a barrage of enforcement actions beginning 

with the issuance of the 2006 FOV and continuing with a half-dozen §114 information requests, 

and the 2008 and 2012 FOVs. In each instance, Region 5 alleged significant violations of the 

C A A or asserted that violations formed the basis of the Agency's requests for information. 

However, also in each instance, Region 5 provided little or no factual support for its assertions 

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VES 019589 
and failed to substantively respond to Veolia's submission of information in response to the 

Agency's accusations. In addition, Region 5 has carried on this process in a manner that ensured 

Veolia could not seek judicial review. 

The unsupported nature of its accusations notwithstanding, Region 5 is now using its Title V 

authority over Veolia to continue its pursuit of Veolia. The Agency's actions are an unlawful 

and an inappropriate use ofthe Title V program that has resulted in the violation of Veoha's due 

process rights. The permit conditions that USEPA imposes in this draft permit gravely threaten 

Veolia's property rights and Veolia's ability to carry on its business. Under the guarantees of the 

Fifth Amendment to the United States Constitution, USEPA cannot take these actions and 

deprive Veolia of its protected interests "without due process of law." U.S. Const, amend. 5. 

The procedures for processing a Title V permit renewal are included in 40 C.F.R. §71.7(a) and 

Subsection 71.11 and mirror those associated with the familiar "notice and comment 

rulemaking" under § 553 of the Administrative Procedure Act. See 5 U.S.C § 553. While these 

procedures offer sufficient due process protection in most instances, they are inadequate as 

applied to Veolia under the circumstances of the 2014 Draft Permit. 

The § 553 procedures are designed to ensure public participation in the Agency's 

decisionmaking and they offer protection at a level consummate with participation by any 

member ofthe general public. However, they are inadequate as applied to Veolia when the 

Agency is basing its permit decision on specific, unsubstantiated allegations regarding Veolia's 

compliance history. While Veolia has participated in the process through these comments and the 

public hearing, it has no opportunity under these procedures to engage in fact-finding or other 

discovery regarding the allegations being made against it. Veolia also has had no opportunity to 

conduct cross-examination or otherwise to test the evidence against it in the presence of a neutral 

fact-finder. Finally, although the procedures in 40 C.F.R. § 71.11 and § 307(b) ofthe CAA 

contemplate an appeal to the appropriate United States Court of Appeals after USEPA makes its 

permitting decision (and appeals to the EAB are exhausted), this level of post-deprivation review 

will not provide Veolia with the fact-finding and cross-examination that is essential to due 

process in this instance. 

J. Specific Section-by-Section Comments 

1. Region 5's Statement of Basis Contains Errors and Inaccuracies 

Page 15 of 79. §2.1. Table 2 

The capacity of Storage Tanks for Liquid Wastes Tank #2 is 4931 gallons, not 4391 gallons as 

set forth in the Table. 

Page 20 of 79. §2.2. Table 4 

The facility has only one horizontal 550 gallon #2 fuel oil tank, not two as set forth in the table. 

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VES 019590 
Page 27 of 79, § 3.I.2.C.. Paragraph 3 

Region 5 suggests that it became aware of Veolia's intention to conduct CPTs in April of 2013 

and, based on that information, it decided to abandon the reopening. However, Region 5 has 

misstated the facts with regard to when Veolia made the Region aware that Veolia was going to 

conduct another round of CPTs. Veolia's Title V permit expired on October 12, 2013, however 

USEPA notified Veolia in June of 2012 that the CPT was required to be initiated by September 

5, 2013. Although Veolia disagreed with this date because the 5 year requirement for CPT 

testing would not have required Veolia to conduct testing until September 5, 2014, Veolia 

submitted CPT plans to USEPA on September 5, 2012. This is well before the permit expired 

on October 12, 2013, and months before the April 2013 date that Region 5 suggests. Because of 

this, Region 5's claim that Veolia's CPT testing was the reason for abandoning the reopening 

process is dubious. Region 5 should revise this paragraph and state the real reasons that it 

abandoned the permit reopening, to the extent it has actual reasons. 

Page 27 of 79, § 3.2 & 3.2.2 

The Agency has never taken any final agency action pertaining to the allegations contained 

within the September 27, 2006 FOV/NOV and the June 12, 2008 FOV/NOV. So much time has 

passed with regard to the allegations contained in the 2006 and 2008 FOVs, that the statute of 

limitations has expired with regard to some or all of those claims. Because of the Agency's 

failure to develop these FOVs, the claims contained in them are no longer subject to 

enforcement, have no relevance, and should be deleted from the Statement ofBasis. Moreover, 

it is improper for Region 5 to deny Veolia a comprehensive permit shield on the basis of the 

unsubstantiated and unproven FOVs. The Statement ofBasis and the 2014 Draft Permit should 

be revised to give Veolia a permit shield for the applicable provisions of the HWC MACT. See 

supra Part IV.H. 

Page 28 of 79. Footnote 15 

There is no evidence of any enforcement referrals in the administrative record and this footnote 

is potentially misleading and prejudicial to Veolia and should be deleted from the Statement of 

Basis it its entirety. 

Page 47 of 79, § 5.2.1. First Partial Paragraph 

The following statement is incorrect, misleading, and potentially prejudicial to Veolia and should 

be removed from the Statement ofBasis: "Therefore, under the HWC MACT, Veolia must 

analyze each feedstream prior to feeding the material into any of its incinerators and document 

the amount of metals, ash and chlorine present in the feedstream." 

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VES 019591 
The HWC MACT does not require each feedstream to be analyzed. In fact, the two other 

commercial incinerators in Region 5 do not analyze each feedstream prior to feeding the material 

into their incinerators. See Ross Incineration Services, Inc., Waste Characteristics and Waste 

Analysis Plan (April 2013) at VES 016106-016293 & Heritage-WTI, Inc., Waste Characteristics 

and Waste Analysis Plan (Sept. 18, 2014) at VES 016295-016537. Furthermore, the HWC 

MACT does not require that Veolia analyze every feedstream prior to incineration; rather, it 

allows Veolia and other incinerators to use "other methods" such as "using analytical 

information obtained from others or using other published or documented data." 40 C.F.R. 

63.1209(c)(2)(H). The use of "other methods" is even referenced in the 2014 Draft Permit: 

"[Veolia shall] [determine and record the value of the parameter for each feedstream by 

sampling and analysis or other method." See 2014 Draft Permit at § 2.0(D)(4)(d)(i)(A) 

Thus, the statement in this paragraph should be deleted because it is contradictory to the HWC 

MACT, inconsistent with what has been imposed on other facilities in Region 5, and conflicts 

with other provisions of the 2014 Draft Permit. 

Page 47 of 79. § 5.2.1. Full Paragraphs 1 & 2 

The following statements are incorrect and should be deleted from the Statement ofBasis: 

Veolia currently depends on information in a corporate database for "similar" 

waste streams without real knowledge of what metals are in the wastes it 

incinerates. Further, the database frequently contains information that is 

inconsistent with data provided by waste generators. Therefore, the existing FAP 

cannot assure compliance with the metals feedrate limits. 

Additionally, because Veolia's FAP does not ensure that each feedstream is 

appropriately characterized, the current FAP does not assure compliance with the 

feedrate limits in the permit 

Veolia does not depend on information from a corporate database. Veolia characterizes each 

shipment of waste. Except for those waste streams that have exemptions defined in Veolia's 

FAP, Veolia analyzes wastes that are suspect for metals—i.e., if the process generating the 

waste, the waste type, the waste characteristics, or the history of facility indicate that metal 

maybe present. Thus, Veolia identifies the characteristic of each waste stream independent of a 

corporate database through analysis, generator knowledge, MSDSs, technical information, and 

reference documents to ensure compliance with existing regulations and permit requirements. 

These methods are consistent with the practices of other commercial hazardous waste 

incinerators in Region 5. See Ross Incineration Services, Inc., Waste Characteristics and Waste 

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VES 019592 
Analysis Plan (April 2013) at VES 016106-016293 & Heritage-WTI, Inc., Waste Characteristics 

and Waste Analysis Plan (Sept. 18, 2014) at VES 016295-016537. 

Page 48 of 79. § 5.2.1. Last Paragraph 

The statement "Because Veolia would generally base metal feedrate calculations on actual 

feedstream analysis data and not on theoretical profile estimates..." is not a correct statement and 

should be deleted from the Statement ofBasis. This statement infers that Veolia only uses 

theoretical estimates to calculate metal feedstreams. As noted above, Veolia characterizes each 

shipment of waste. Except for those waste streams that have exemptions defined in Veolia's 

FAP, Veolia analyzes wastes that are suspect for metals—i.e., if the process generating the 

waste, the waste type, the waste characteristics, or the history of facility indicate that metal 

maybe present. 

Page 49 of 79. § 5.2.2(A) 

This entire section is incorrect and flawed and should be deleted from the Statement ofBasis. 

Under Veolia's, Ross's and Heritage-WTFs WAPs, there are waste streams that are specifically 

exempt from sampling because of (a) safety concerns, (b) the impracticality of sampling the 

waste, or (c) the waste characteristics are of such a nature that the waste information provides all 

the required information to incinerate the waste. In these instances, the facilities rely on 

generator knowledge, MSDS information, or other waste profile information to properly 

characterize the waste. Although a waste may not be sampled, it does not mean that metals are 

being underreported. The metal concentrations are determined on generator knowledge, MSDS 

information, and other waste profile information to properly characterize the waste. In addition, 

waste streams that are not exempt from sampling that are suspect for metals are sampled and 

analyzed every time prior to incineration to calculate metal concentrations. 

Veolia does not depend on information from a corporate database. Veolia characterizes each 

shipment of waste. Except for those waste streams that have exemptions defined in Veolia's 

FAP, Veolia analyzes wastes that are suspect for metals—i.e., if the process generating the 

waste, the waste type, the waste characteristics, or the history of facility indicate that metal 

maybe present. Thus, Veolia identifies the characteristic of each waste stream independent of a 

corporate database through analysis, generator knowledge, MSDS's, technical information, and 

reference documents to ensure compliance with existing regulations and permit requirements. 

These methods are consistent with the practices of other commercial hazardous waste 

incinerators in Region 5. See Ross Incineration Services, Inc., Waste Characteristics and Waste 

Analysis Plan (April 2013) at VES 016106-016293 & Heritage-WTI, Inc., Waste Characteristics 

and Waste Analysis Plan (Sept. 18, 2014) at VES 016295-016537. 

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VES 019593 
Page 50 of 79. § 5.2.2.B.. Paragraph 1 

USEPA justifies the imposition of the enhanced feedstream analysis with the statement: 

Veolia's feedstreams are highly variable and metal compositions can vary 

significantly within the feedstream (i.e., heterogeneous feedstreams) and among 

feedstreams (variable feedstreams). 

Veolia treats and disposes a variety of solid, liquid and gaseous wastes which 

typically arrive in drums, roll-off containers or other similar bulk transport 

vehicles, totes, Gaylord boxes, tank trucks and cylinders. According to Veolia's 

website, in addition to other hazardous and non-hazardous waste, Veolia's Sauget 

facility accepts for incineration Drug Enforcement Administration controlled 

substances, drugs, goods with expired dates, seized goods, returned goods and lab 

chemicals. Because Veolia's Sauget facility accepts and incinerates a broad range 

of wastes, Veoha has explained that the individual streams that may make up the 

incinerator overall feed at any given time can vary greatly, depending on 

generator production and shipping schedules. 

While portions ofthis statement are accurate, the variability of Veolia's waste streams does not 

justify Region 5's enhanced monitoring proposal. Veolia does accept a wide range of 

wastestreams, but this is also true for all of the commercial incinerators in the country, including 

the Ross and Heritage-WTI incinerators in Region 5. The varied waste streams do not support or 

justify a need to sample all waste streams. Veolia does sample and analyze those waste streams 

that are highly variable and uses the most current data to demonstrate compliance with the HWC 

MACT Rule and Title V permit requirements. However, some waste streams such as cylinders 

(which cannot be sampled but the contents are known), explosives, and reactive wastes pose 

significant safety concerns that make analysis imprudent and dangerous for Veolia staff. Other 

wastes, such as certain off-specification commercial products, controlled substances, and certain 

chemical wastes are made up of known constituents and do not vary in their compositions. 

Under Region 5's 2014 Draft Permit, Veolia would be required to sample and analyze these 

waste streams—a dangerous and wasteful proposition. Neither of the other two incinerators in 

Region 5 (Ross and Heritage-WTI) currently have to sample and analyze these types of waste. 

Page 50 of 79. § 5.2.2.B.. Paragraph 2 

The following statement is incorrect and should be deleted from the Statement ofBasis: 

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VES 019594 
In its 2012 investigation, EPA's National Environmental Investigations 

Center(NEIC) found that some nominally similar waste streams generated by 

different generators had significantly different metal concentrations, yet, as 

described above, Veolia did not analyze these wastes when they arrived onsite. 

Instead, Veolia relied upon an "overly broad" characterization of the wastes and 

assigned a single metal concentration value for the individual wastes. In one 

instance, for example, Veolia has assigned two waste streams, both classified as 

"cyanide containing wastes" and identified by Veolia as "very similar," two very 

different cadmium concentrations: 6,470 mg/kg and 1 mg/kg, respectively. NEIC 

suggested that, due to the potential variability in metal concentrations of some 

"very similar" wastes from different generators, Veolia should analyze waste 

streams generated by different generators each time they arrive on-site instead of 

relying on "overly broad profiles" to characterize these wastes. 

The wastes discussed in the NEIC report are not "similar" waste streams. The waste containing 

the 6470 mg/kg of cyanide is a bulk liquid waste that is shipped to Veolia in 5000 gallon tankers. 

The 1 mg/kg of cyanide waste stream is a container filled with individually-packaged and labeled 

unused products. The bulk waste stream was sampled and analyzed with a cyanide concentration 

of 6470 mg/kg. The individual packages are unused products, so the cyanide concentration is 

known by technical information. The bulk liquid waste is a perfect demonstration of 

wastestreams that vary and are therefore sampled and analyzed by the facility. Similarly, the 

unused product is a demonstration of a wastestream that does not vary and technical information 

is provided to support the chemical concentration and are therefore not sampled and analyzed by 

the facility. Region 5's use of this example to justify the need for enhanced analysis 

demonstrates the Agency's profound misunderstanding ofthe industry that it purports to 

regulate. Region 5's enhanced monitoring requirements would require Veolia to sample all 

waste streams containing metals regardless of the safety and environmental concerns, 

practicality, or the technical information received regarding the waste stream that clearly 

identifies the waste's constituents. These requirements are dangerous for Veolia staff, are 

unnecessary and wasteful, and are not required of the other incinerators in Region 5. 

Page 50 of 79. § 5.2.2.B.. Paragraph 3 

The statement "Also, as noted in the NEIC report, '[sjamples of bulk liquids are not analyzed [by 

Veolia] for metals; instead, metals concentrations are calculated based on profile information 

stored in Veolia's waste tracking system (WTS). The WTS pulls information from the corporate 

tracking system, called the "I-Series."'" is not correct and should be deleted from the Statement 

ofBasis. 

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VES 019595 
Regardless ofthe waste being liquids or solids, Veolia characterizes each shipment of waste. 

Except for those waste streams that have exemptions defined in Veolia's FAP, Veolia analyzes 

wastes that are suspect for metals—i.e., if the process generating the waste, the waste type, the 

waste characteristics, or the history of facility indicate that metal maybe present. 

Page 51 of 79. § 5.2.2.C. 

The following statement is incorrect and should be deleted from the Statement ofBasis: 

Veolia's current feedstream analysis and recordkeeping procedures could cause 

Veolia to significantly underreport concentrations of some metals in its 

feedstreams. NEIC's investigation revealed that Veolia may have significantly 

underreported concentrations of chromium and cadmium in some feedstreams. In 

one example, Veolia reported a chromium value of 228 milligrams per kilogram 

(mg/kg) for a certain waste in its databases while a material safety data sheet for 

that waste listed a total chromium value of 30,000 to 60,000 mg/kg. Because 

Veolia generally uses information contained in its databases to calculate metal 

feedrates rather than independently analyzing each feedstream before it is fed to 

the incinerator, Veolia may have used an incorrect concentration to calculate 

chromium feedrates in this case. Therefore, in the examples observed by NEIC, 

Veolia's possible use of incorrect metal concentrations to calculate feedrates may 

have resulted in significant underreporting of the actual metal feedrates. Without 

the proposed monitoring procedures, there is no way to evaluate the 

accuracy ofthe metal concentrations used by Veolia. 

The waste profile that the NEIC report referred to consisted of spent filter media. The MSDS 

values were for unused carbon with copper and chromium that was provided as additional 

information. As a result, Veolia did not use the total chromium value defined on the MSDS to 

determine the metals concentration. Veolia currently samples and analyzes this waste stream 

every time it is received to determine the metals concentration. 

Page 51-52 of 79. § 5.2.2.D. 

The following statement is incorrect and should be deleted from the Statement ofBasis: 

Analytical and data reporting errors may have resulted in inaccurate feedrate 

calculations for some metals. In its investigation, NEIC identified conflicting 

metals data between the profile package and the information entered in Veolia's 

databases. In one example, a profile reported a chromium concentration of 1.8 

milligrams per liter (mg/L), yet Veolia used a value of 0 mg/L in its databases. In 

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VES 019596 
another example, a profile reported a total mercury concentration of 4140 mg/kg 

but Veolia used a value of 25 mg/kg in its databases for at least 5 years. NEIC 

estimated that if a mercury concentration of 4140 mg/kg had been present in 

waste that was incinerated on August 28 and 29, 2011, Veolia would have 

exceeded the emissions and feedrate limits for mercury on those days. Because of 

this type of problem with conflicting entries, without any clear indication of 

which concentration is correct, it is possible that Veolia used incorrect metals 

concentrations for feedrate calculations on August 28 and 29, 2011, and very 

likely that Veolia uses incorrect metals concentrations on a regular basis. 

The 1.8 mg/L value for chromium was not included in Veolia's waste profile and the TCLP 

values in the profile were all below detection limits. Thus, this allegation is incorrect and is of 

no support for Region 5's position. In addition, the mercury value of 25 mg/kg determined by 

Veolia was validated by the generator of the waste and Veolia is entitled to rely on the 

generator's representations under applicable regulations. Thus, the mercury value of 4140 mg/kg 

that Region 5 alleges Veolia fed on August 28 and 29, 2011 is incorrect and likewise does not 

support Region 5's draft permit proposal. Region 5's use of unsubstantiated and inaccurate 

allegations in support of its permitting decision is inappropriate and arbitrary and capricious. See 

also supra Part IV.H(l)(i)(c) for Veolia's specific response to this allegation by the NEIC. 

2. Region 5 's Draft Permit Must Be Revised 

Page 9 of 172. $ 1.3 

The capacity of Storage Tanks for Liquid Wastes Tank #2 is 4931 gallons, not 4391 gallons as 

defined in the Table. 

Page 13 of 172. §2.1.7(a) 

This section should be amended as follows to account for the different limits established at 

incineration Unit 4: "The Permittee shall not allow emissions of dioxins and furans from the 

facility in excess of 0.20 nanograms (or 0.40 nanograms if the combustion gas temperature at 

the inlet to the initial particulate matter control device is 400 °F or lower based on the average 

of the test run average temperatures) toxicity equivalents per dry standard cubic meter (ng 

TEQ/dscm), corrected to 7 percent oxygen. [40 C.F.R. § 63.1219(a)(1)]." (Inserted language in 

italics.) 

Page 15 of 172. § 2.1(C)(1) 

This section states that the permittee shall not burn hospital medical infectious waste. Veolia 

would like this requirement removed because, although the facility does not currently receive 

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VES 019597 
and incinerate hospital medical infectious waste, it does possess a permit from the Illinois EPA 

to accept and incinerate potentially infectious medical waste. There are no current prohibitions 

or regulatory reasons why the facility cannot accept and incinerate hospital medical infectious 

waste as long as it meets all the regulatory requirements. 

Page 15 of 172. 5 2.1(0(2) 

Section 2.1(C)(2) provides: 

The Permittee must operate Units 2, 3 and 4 in compliance with the following 

operating parameter limits (OPLs). The Permittee must also comply with the 

OPLs contained in the Notification of Compliance (NOC) required pursuant to 

condition 2.1(E)(2), below. If any OPL contained in this condition 2.1(C)(2)differ 

from the corresponding OPL contained in the Permittee's most recent NOC, the 

Permittee may submit an application requesting a revision to the OPLs in this 

permit, pursuant to 40 C.F.R. § 71.7(e)(1). Nothing in this permit obligates the 

Administrator to approve an application to revise OPLs in this permit. 

The facility is required to conduct Comprehensive Performance Testing every 5 years and then in 

accordance with 40 C.F.R. 63.1207(j)(l), submit a Notification of Compliance (NOC) to USEPA 

within 90 days of the completion of testing. Upon postmark of the NOC, the facility must 

comply with all operating requirements specified in the NOC. Complying with this requirement 

would inevitably put the NOC and the Operating Conditions defined in this permit in conflict. 

Veolia is scheduled to test all ofthe incinerators again in 2018, which will result in OPLs based 

on performance tests that are different than those included in this permit. If there is no 

mechanism in this permit to address that the new OPLs should be followed in lieu of the 

outdated requirements included in this permit, then the facility will have to operate under both 

sets of conditions. This puts the facility in a compromising position and will create compliance 

issues. A significant modification can be submitted at the same time as the NOC is submitted 

but the Agency has 18 months to review and approve the submittal. This again creates a period 

where the new NOC OPLs can and will be different than what is included in the permit. It is 

common in many permits where these situations can occur that wording is placed in this section 

that states that the current NOC OPLs are always the point of compliance until a significant 

modification is approved by the Agency. This section must be amended to address this conflict 

and to clearly identify what set of OPLs are applicable and enforceable. 

Page 15-16 of 172. § 2.1(C). OPL Table 

The "minimum secondary combustion chamber temperature" for incineration Unit 3 should be 

the same as incineration Unit 2's, i.e 1885 °F. 

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VES 019598 
The value for incineration Unit 4 for "minimum carrier fluid (gas or liquid) flowrate or pressure 

drop for activated carbon injection system" should be N/A. This criteria is met by high and low 

pressure switches supplied by the manufacturer and previously approved by USEPA. The 3.10 

gal/lb CI2 value is for "minimum carrier fluid flowrate or nozzle pressure drop for the spray dryer 

absorber" in the table on page 17. 

Page 34ofl72.S2.0fDVn(flfii) 

The Xact 640 is incapable of measuring beryllium. Because of this the 2014 Draft Permit 

requires Veolia to "quantify [beryllium] emissions using [the beryllium] feedrate as determined 

according to 2.1(D)(4)(d) for the most recent 12-hour period for which feedstream analysis data 

for [beryllium] is available and the system removal efficiency [SRE] and exhaust parameters 

used by the Permittee to estimate emissions of [beryllium] for that 12-hour period." 

However, Veolia cannot calculate an SRE specific for beryllium, a low volatile metal (LVM), 

from the 2013 CPT data because analytical results for the waste feeds and emissions were 

predominately non-detect values—i.e., there was not enough beryllium in either the feed or in 

the emissions to obtain an accurate measurement. Thus, Veolia would need to use a SRE for 

LVM , instead of one for beryllium. The lowest SRE for LV M among the three incinerators is 

99.99918%. 

Page36ofl72.g2.1(D¥l¥i)(x) 

The following requirement is confusing, impractical, and cannot be implemented as written: 

Any one-hour block average CEMS reading above any parametric range, as 

defined in condition 2.1(D)(l)(i)(iii), is a deviation. 

Condition 2.1(D)(l)(i)(iii), states: "The parametric range for each metal or class of metals 

measured by the multi-metals CEMS is equal to the emission limit for that metal or class of 

metals specified in condition 2.1(A)(7) ofthis permit." As a result of the definition of the 

parametric range that is defined as the emission limit, then the one-hour block average CEM 

reading set at that parametric range can never be exceeded. Using mercury as an example, the 

parametric range would be set at 0-130 ug/dscm, with 130 being the emission limit. Since the 

range of the instrument is set at 0-130 then the instrument cannot, by definition, read above 130 

ug/dscm because this condition requires the range to be set at the emission limit. An instrument 

set at that range will never show a reading above the emission limit. 

This condition becomes even more confusing when trying to implement this requirement with 

L V M and SVM. Since the instrument cannot read beryllium, the parametric range for the LV M 

compounds, arsenic and chromium, is 92 ug/dscm. The parametric range for SVM compounds, 

cadmium and lead, is 230 ug/dscm. Because LV M and SVM are each made up of two 

compounds, it is difficult for Veolia to determine if it should set the parametric range at half the 

- 101 -

VES 019599 
emission limit or should proceed as instructed by this condition and set the range at the emission 

limit. The permit conditions do not set forth how to deal with the LV M and SVM compounds 

nor do they provide how the multi-metals CEM would be able to set the ranges for an emission 

standard that includes multiple compounds. 

Page 36 of 172. § 2.1fD¥l¥i¥x)(i) 

Veolia is unable to implement the following permit condition as written: 

From the time that a CEMS records a deviation, the Permittee must immediately 

take corrective action to reduce emissions of the affected metal(s) and record all 

corrective actions taken. Corrective actions may include, but are not limited to, 

stop feeding or reduce the feedrate ofthe batch of waste burned when the 

deviation occurred, or adjustment to combustion conditions. The Permittee must 

document all corrective actions in the report required by condition 2.1(D)(l)(i)(x). 

As explained in the comment to § 2.1(D)(l)(i)(x) immediately above, the deviation can never 

occur due to the requirement for setting the parametric range at the emission limit. However, 

there are other problems with this permit condition, even if a deviation could occur. The multimetals CE M that is being proposed is not a real-time CEMS. A reading is obtained every 15-20 

minutes versus other real-time instruments that the facility uses that produce a value within 

seconds. This delay makes it almost impossible to correlate between what is being incinerated 

and the CEMS reading. Veolia's waste feeds and feedrates can vary minute by minute, so what 

occurred 15-20 minutes ago maybe entirely different than what was occurring when the value 

was actually obtained. Also, the waste that was being fed 15-20 minutes ago may be completely 

gone when the reading is obtained so that there is no way to go back and do more analysis to 

prove or disprove the instrument reading. It is therefore impossible to pinpoint with any 

accuracy what was causing the deviation with an instrument that has a 15-20 minute delay. This 

is not a real-time instrument and, since the facility's feeds and operating conditions change 

minute by minute, parametric monitoring as proposed by Region 5 in the 2014 Draft Permit is 

impossible. 

Page 41 of 172. § 2.1.4. Analysis of Feedstreams 

Veolia ES Technical Solutions currently operates with an Illinois EPA approved Waste Analysis 

Plan (WAP) and a Feed Stream Analysis Plan (FAP) that "contains the minimum elements 

required by 40 C.F.R. 63.1209(c)(2)(i) through (vi)" as defined in USEPA Region 5's Statement 

ofBasis. Region 5 goes on to say that the FAP is not sufficient to determine that waste streams 

comply with the feedrate limits and cites to the NEIC Multimedia Compliance Investigation 

Observations Report. Veolia contests the findings contained in the NEIC Report. See supra Part 

IV.H(l)(i)(c) (setting forth Veolia's responses). Further, Veolia takes many steps to ensure that 

every waste stream incinerated is accurately characterized pursuant to the HWC MACT 

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VES 019600 
requirements. The enhanced monitoring that Region 5 is requiring in the 2014 Draft Permit, 

however, causes serious safety concerns by requiring sampling and analysis of wastes that are 

currently exempted from analysis (e.g., explosives, certain reactives, controlled substances), or 

are impossible to sample (e.g., gas cylinders, sealed fdters). The enhanced monitoring would 

also require Veolia to sample other exempted wastes such as lab packs and off-specification 

commercial products despite the fact that the metals concentrations of these wastes are already 

known. The requirements contained within Veolia's 2014 Draft Permit are extraordinarily more 

burdensome then Veolia's current WAP and more extreme than the requirements for the two 

commercial incinerators that are also regulated by Region 5. Currently, the two other 

commercial incinerators in Region 5 are allowed to rely upon generator knowledge, MSDS 

information, or other waste profile information to exempt certain waste from sampling either 

because of safety concerns, impracticality of sampling, or the waste characteristics are of such a 

nature that the waste information provides all the required information to incinerate the waste. 

See Ross Incineration Services, Inc., Waste Characteristics and Waste Analysis Plan (April 

2013) at VES 016106-016293 & Heritage-WTI, Inc., Waste Characteristics and Waste Analysis 

Plan (Sept. 18, 2014) at VES 016295-016537. 

Veolia has taken many steps to enhance its waste characteristic procedures since the 

promulgation ofthe HWC MACT. Further, Veolia has implemented certain suggestions 

resulting from the NEIC inspection in 2011 and the final report dated August 2012. Veolia 

samples and analyzes all suspect waste for metals and has developed a list of suspect industries 

whose waste may contain metals. Metals analyses are conducted on wastes received from these 

industries even though the waste may not contain metals. All wastes are characterized for metals 

concentration prior to incineration. This characterization may be performed through generator 

knowledge, MSDS's, technical documents, or through sampling and analysis. Thus, if certain 

waste is able to be completely characterized through information provided by the generator, then 

the waste is not sampled or analyzed. These wastes are called "exempt" wastes, a common term 

in the incineration industry that denotes wastes that require no sampling and analysis ofthe 

waste because their chemical properties are sufficiently documented to enable them to be 

processed and managed properly in accordance with the HWC MACT. 

One category of exempt wastes are those that present safety concerns, such as explosives, 

controlled substances, or reactive wastes. Sampling and analysis are "exempted" because the 

waste could endanger an employee by sampling or performing certain analysis (e.g., BTU, 

flashpoint). However, in all cases the waste is still characterized to ensure that all regulatory and 

permit requirements are met. Another category of exempt wastes are wastes that are impractical 

to sample such as aerosol cans, sealed filters, or gas cylinders. These wastes are appropriately 

characterized by means other than sampling to ensure that all regulatory and permit requirements 

are met. Exempted wastes may also consist of off-specification products either in their consumer 

packaging or packaged in other containers that make it more practical for shipping. Again, since 

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VES 019601 
detailed information is provided by the manufacturer ofthe product, the waste is exempt from 

sampling and analysis but appropriately characterized to ensure that all regulatory and permit 

requirements are met. Ross's WAP and Heritage-WTI's WAP use this "exempt" waste process 

and these facilities do not sample and analyze wastes that fall into these categories. 

The enhanced monitoring provided in Veolia's 2014 Draft Permit, Page 45 of 172, § 

2.1(D)(4)(d)(ii)(F), expressly allows this "exempt" waste process, but removes the exemption if 

the waste contains mercury, LV M and SVM. This change would require Veolia to sample 

wastes that pose safety and environmental risks such as explosives, controlled substances or 

reactives. It would also require the facility to sample waste filters, aerosol cans and cylinders, 

again causing safety concerns. It would require sampling of off-specification products of which 

the exact chemical composition is known causing unnecessary releases of chemicals to the 

environment, not to mention the waste of resources and generation of waste products through the 

sampling and analysis procedures. If using generator knowledge, MSDSs, technical, or reference 

documents are acceptable to characterize wastes that are not sampled and analyzed when the 

waste contains no metals, then it should be acceptable to characterize wastes when the wastes 

contain metals. If this is sufficient for the other two incinerators in Region 5, then it should be 

sufficient for Veolia. 

Veolia has enhanced existing procedures to require sampling and analysis of waste streams that 

contain metals. For wastes not exempted from sampling by the current FAP/WAP, Veolia 

analyzes those wastes every time and the values obtained are used to document compliance. 

These enhancements are far more stringent than those requirements found in the Ross and 

Heritage WAPs. In fact, Veolia is willing to accept the conditions contained in the approved 

WAP of Heritage-WTI, Inc. There are no current Agency actions to modify their WAP, so the 

Agency must feel that their WAP is adequate to show compliance with the existing regulations. 

Page 42 of 172, § 2.1.4(d)(u) 

The Agency is requiring Veolia to submit a revised FAP for approval within 60 days ofthe 

permit becoming effective. Due to the complexity of these types of plans and to ensure that all 

required elements are incorporated, Veolia would expect to meet with the Agency several times 

to ensure the plan is adequate. As a result, Veolia is requesting that this requirement be changed 

from 60 days to 180 days to allow the necessary time to ensure all required elements are 

included. 

Page 43 of 172. § 2.1.4fd¥ii¥Q. Batch Sampling Procedure 

The statement 'Teedstreams which are exempt from sampling in accordance with condition 

2.1(D)(4)(d)(ii)(F) must not be batched, treated, blended, mixed, or otherwise 

- 104-

VES 019602 
altered, unless the Permittee samples and analyzes the otherwise exempt feedstream" is vague 

and confusing. 

The reason for the exemptions from sampling and analysis defined in the 2014 Draft Permit is to 

avoid safety and environmental concerns of sampling explosives, controlled substances or 

reactive material when there is sufficient information available to calculate metal feedrates. 

These exemptions also prevent Veolia from having to sample wastes which have already been 

sampled and are impractical to sample again, particularly when there is already sufficient 

information to calculate feedrates. These exemptions also avoid the sampling of offspecification products where there are MSDSs that completely define the waste. By requiring 

that exempted wastes that are batched, treated, blended, mixed, or otherwise altered be sampled, 

Region 5 is unnecessarily placing employees and the public at risk and causing Veolia to incur 

additional costs that its direct competitors in Region 5, Ross and Heritage-WTI, do not have to 

bear. In addition, if the Agency is allowing sampled waste to be batched, treated, blended, 

mixed, or otherwise altered, exempted waste should be permitted to be batched, treated, blended, 

mixed, or otherwise altered as long as information is available to determine metals concentration 

and feedrates to ensure compliance with the HWC MACT Rule and the Title V Permit 

requirements. 

Page 44 of 172. § 2.1.4(d)(u)(E)qD 

Veolia objects to the following requirement: 

If the applicable metal is not detected at or above the reporting limit for that 

metal, as defined in condition 2.1(D)(4)(d)(ii)(E)(III), in any sampling analysis 

required by condition 2.1(D)(4)(d)(2), the metal concentration shall be equal to 

the reporting limit, as defined in condition 2.1(D)(4)(d)(ii)(E)(III), from the 

sampling analyses required by condition 2.1(D)(4)(d)(ii). 

USEPA used "non-detects" as zeros in formulating the HWC MACT rule and Region 5 cannot 

now reject this approach by requiring that "non-detects" be reported at the reporting limit. 

Veolia agrees with Region 5 that the reporting limit is the only defensible number that should be 

used, but the HWC MACT must be applied consistently. The method that was used to set the 

standards has to be the one that is used to show compliance. Thus, Region 5 cannot now require 

non-detects to be reported at the reporting limit. This would artificially inflate Veolia's 

emissions and potentially create compliance issues where none actually exist. This also will 

cause problems with Veolia's compliance with the Emergency Planning and Community Rightto-Know Act. The requirements of this condition place Veolia in a "catch-22"—if Veolia does 

not comply with this permit condition it will be in violation of its Title V permit; however, if 

Veolia does comply with this condition it will be forced to not certify that its EPCRA emissions 

reports are accurate (because the emissions are inflated) and thus will be in violation of EPCRA. 

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VES 019603 
Page 45-46 of 172, § 2.1.4(d)(ii)(F). Exemptions to the analysis procedures 

Veolia objects to the entirety of subsection (F). This subsection arbitrarily and capriciously 

omits provisions of Veolia's current FAP/WAP and imposes requirements that are onerous, 

unsafe, and place Veolia at an unfair disadvantage as compared to other incinerators in Region 5. 

The permit requirement causes serious safety concerns by requiring sampling and analysis of 

waste that are currently exempted (e.g. explosives, certain reactives, controlled substances) or 

impossible to sample (e.g. gas cylinders, sealed filters). The enhanced monitoring also requires 

the sampling of other defined "exempt" waste such as lab packs and off-specification 

commercial products although the metals concentration are known. These requirements are not 

required by Veolia's current FAP/WAP and are more stringent than the two commercial 

incinerators that are also regulated by Region 5. See Ross Incineration Services, Inc., Waste 

Characteristics and Waste Analysis Plan (April 2013) at VES 016106-016293 & Heritage-WTI, 

Inc., Waste Characteristics and Waste Analysis Plan (Sept. 18, 2014) at VES 016295-016537. 

If using generator knowledge, MSDS's, technical or reference documents are acceptable to 

characterize wastes that are not sampled and analyzed when the waste contain no metals, than it 

should be acceptable to characterize wastes, when the wastes contain metals. The Ross and 

Heritage-WTI WAPs allow these exemptions regardless of the metal content. 

Region 5 fails to explain why the exemptions defined in § 2.1.4(d)(ii)(F), have eliminated some 

of the defined exemptions in Veolia's current FAP/WAP. One ofthe exemptions that has been 

removed is for visually identifiable material such as glass, batteries, metal parts, etc. These types 

of wastes in many cases cannot be sampled due to their design and construction; however, the 

chemical constituents are known from MSDSs, generator knowledge, technical data or reference 

documents. USEPA must reinstate this exemption. Veolia also requests that the Agency include 

in the exemption list "other waste that pose safety, health, environmental and sampling 

difficulties as determine and justified by the Technical Manager." The Ross and Heritage-WTI 

WAPs give this latitude to the Technical Manager so that he/she can determine whether sampling 

would present safety and environmental concerns. 

Additionally, the requirement in § 2.1.4(d)(ii)(F)(VII) requiring a "written determination of 

exemption from these analysis procedures [that] shall describe the information reviewed and the 

basis for the determination that no mercury, LV M or SV M is present" is unnecessary and overly 

burdensome. Veolia maintains technical records on the waste streams approved at the facility 

and the Waste Profile Sheets and supporting documentation supports the Technical Manager's 

decision on sampling and analysis. To require additional documentation, such as describing the 

basis for the decision is not required in the RCRA regulations for WAPs at 40 C.F.R. 264.13, nor 

is it required in either the Ross or Heritage-WTI WAPs or Title V permits. This requirement 

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VES 019604 
needlessly duplicates information that is already available at the facility and should be removed 

from the 2014 Draft Permit. 

Page 46 of 172. § 2.1.fD)(4)(d)(uXF)qX) 

Veolia objects to the following permit requirement: 

The Permittee may request approval from the Administrator to exempt any waste 

that is not listed in conditions 2.1(D)(4)(d)(ii)(F)(I) through (VI) from the analysis 

procedures set forth in condition 2.1(D)(4)(d)(ii)(A) through (E). The Permittee 

shall describe the information reviewed and the basis for the determination that no 

mercury, LV M or SVM is present in the wastes proposed for exemption. 

The exemption should be expanded to include wastes that contain metals. Waste streams that 

contain metals can be properly characterized without sampling to determine the metals 

concentration. Veolia also respectfully requests that the section provide the amount of time the 

Agency has to approve these requests. If these requests are not reviewed and responded to in a 

timely manner, Veolia will be unable to respond to the needs of its customers and will lose 

business as a result. Veolia will only incinerate waste that is properly characterized either by 

sampling and analysis, generator knowledge, MSDSs, technical documents, or other reference 

material. 

Page 56 of 172. § 2.1(D)(4Xo)(ifl(A) 

The citation to the HWC MACT in this paragraph needs to be corrected. It should be 40 C.F.R. 

§63.1209(n)(2)(vii), not 40 C.F.R. §63.1209(n)(2)(iiL 

Page 58-59 of 172. § 2.1(D¥4¥p) 

This paragraph does not adequately track the language of 40 C.F.R. §63.1209(p) and should be 

amended accordingly: "The Permittee must monitor the pressure instantaneously and the 

automatic waste feed cutoff system must be engaged when negative pressure is not adequately 

maintained." (Inserted language in italics.) 

Page 65 of 172. § 2.1(D¥1 l¥a¥xvi¥A) & (B) 

This paragraph does not pertain to Veolia's incineration units and should be removed. 

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VES 019605 
Page 77 of 172. § 2.1(E)(4)(a) 

This paragraph does not adequately track the language of 40 C.F.R. §63.1206(c)(3)(vi) and 

should be amended accordingly: "For each set of 10 exceedances of an emission standard or 

operating requirement while hazardous waste remains in the combustion chamber (i.e., when the 

hazardous waste residence time has not transpired since the hazardous waste feed was cutoff) 

during a 60-day block period, you must submit to the Administrator a written report within 5 

calendar days ofthe 10th exceedance documenting the exceedances and results ofthe 

investigation and corrective measures taken." (Inserted language in italics.) 

Page 77-78 of 172. § 2.1(E)(5) 

This paragraph does not adequately track the language of 40 C.F.R. §63.1206(c)(8)(iv) and 

should be amended accordingly: "If you operate the combustor when the detector response 

exceeds the alarm set-point or the bag leak detection system is malfunctioning more than 5 

percent of the time during any 6-month block time period, you must submit a notification to the 

Administrator within 30 days of the end of the 6-month block time period that describes the 

causes of the exceedances and bag leak detection system malfunctions and the revisions to the 

design, operation, or maintenance of the combustor, baghouse, or bag leak detection system you 

are taking to minimize exceedances and bag leak detection system malfunctions. To document 

compliance with this requirement:." 

Page 80 of 172. §2.1(E)(9) 

The cross reference should be to condition 2.1(C)(4), not to condition 2.1(B)(4). 

Page 80 of 172. §2.1 (E)( 10) 

This section should be amended to include the requirements of 40 C.F.R. §63.1207(e)(l)(i)(A), 

which states that "[t]he Administrator will notify you of approval or intent to deny approval of 

the site-specific test plan and CMS performance evaluation test plan within 9 months after 

receipt of the original plan." 

Page 82 of 172. § 2.1(E)(10)(c)(ii) 

This section should be amended to include a new subsection C. The new subsection should 

state: "The Administrator will approve or deny the petition within 30 days of receipt and notify 

you promptly of the decision pursuant to the requirements of 40 C.F.R. §63.1207(e)(3)(ii)(B)." 

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VES 019606 
Page 99 of 172. § 2.2(E)(3) 

There are no enclosed storage tanks located in MP-1, MP-2 or in the Lab Pack Repack areas. 

The last sentence of this paragraph should therefore be deleted. 

Page 105 of 172. § 2.4(D)(1) 

Veolia's tanks are not below atmospheric pressure; thus, the sentence "The Permittee must 

monitor the pressure continuously to ensure that the pressure in the tank remains below 

atmospheric pressure" should be removed. 

Page 117 of 172. § 2.5(E)(2)(D) 

This paragraph discusses calculation of VO M from the bulk pits using the most current method, 

however, because there are no enclosed storage tanks located in the bulk solid waste storage 

facility, this discussion should be deleted. 

Page 124 of 172. 5 2.7(D)(4) 

There is not a regulatory basis for performance testing this boiler. Further, while Veolia has 

historically been required to perform performance testing for CO, the draft permit now adds NOx 

to the requirements. Veolia disagrees primarily with the need for any performance testing but 

also the additional emissions test. This is a natural gas fired boiler and there are published 

emission factors which can be used for both CO and NOx. 

Page 125 of 172. § 2.7(E)(2)(h) 

Veolia does not have a SSMP for the boiler, which is subject only to tune-ups and energy 

assessments. Therefore, this requirement should be deleted. 

Page 125 of 172. § 2.7(E)(2)(e) 

The annual compliance report requires a summary of performance test results. Performance 

testing is required once every 5 years. If performance testing is required, Veolia would like this 

section to read as follows: "A summary of the results of performance tests conducted during the 

reporting period if applicable." 

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VES 019607 
Page 129 of 172. § 2.8(0(10) 

These fuel requirements are applicable under Subpart ZZZZ, if, and only if, Veolia participates 

in an emergency demand response program. The draft permit implies the facility is subject to the 

fuel requirements at all times beginning January 1, 2015. 

Page 150 of 172. § 3.1(C) 

Section 3.1(C)1 requires emissions calculations to be chosen from a hierarchically ranked list of 

options. Section 3.1(C)2 requires Veolia to document review of the hierarchy prior to selection 

of an emissions calculation methodology, including a demonstration of the appropriateness of the 

selected emission factor. The draft permit clearly identifies emission calculation methods for 

Veolia emission units lacking published emission factors or commercially available emission 

calculation software. Review, demonstration, and documentation of the choice of methodology 

is unnecessary and these requirements should be deleted. 

K. Region 5's Statement ofBasis Is Contradictory and Does Not Support the 

Conclusions Contained Therein 

Region 5's rationale for the provisions contained within the 2014 Draft Permit are unsound and 

contradictory. USEPA finds (a) that Veolia's CPT testing, OPLs and FAP, as supplemented in 

the 2014 Draft Permit, are adequate for F1WC MACT compliance but also determines (b) that 

Veolia's CPT testing, OPLs and FAP, as supplemented, are inadequate for HWC MACT 

compliance in order to justify the installation of three multi-metals CEMS—both findings cannot 

be simultaneously true. 

USEPA acknowledges in the Statement of Basis that the emission levels achieved during 

compliance tests ("CPT testing") are typically the highest emission levels a source emits under 

reasonably anticipatable circumstances and worst case operating conditions: 

To ensure that these OPLs do not impede normal day-to-day operations, sources 

generally take measures to operate during compliance testing under conditions 

that would normally produce the highest emissions. For example, sources often 

feed ash, metals, and chlorine during compliance testing at substantially higher 

than normal levels (e.g., by spiking the feedstream) to maximize the feed 

concentration, and they often detune the air pollution control equipment to 

establish operating limits on the control equipment that provide operating 

flexibility. Thus, the emission levels achieved during compliance tests are 

typically the highest emission levels a source emits under reasonably anticipatable 

circumstances. 

By designing its CPT to generate emissions under worst case operating 

conditions, a source can establish OPLs that account for variability in operations 

(e.g., composition and feedrate of feedstreams, as well as variability of pollution 

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VES 019608 
control equipment efficiency) and that do not impede normal operations. Thus, 

the feedrate OPL would be based on waste levels fed during the CPT unless the 

regulatory authority approves a request for the source to extrapolate to a higher 

allowable feedrate (and emission rate) limit. 

Statement of Basis at 39 (footnotes omitted). Region 5 acknowledges that Veolia through its 

CPT Tests provided sufficient information to enable the Agency to establish OPLs for mercury, 

S VM and LV M that satisfy the requirements of the Act and the HWC MACT: 

EPA has reviewed Veolia's CPT test report dated January 28, 2014 (the 2014 

CPT report) and Veolia's Notification of Compliance (NOC) dated January 28, 

2014 (the 2014 NOC) and determined that there is sufficient information to enable 

EPA to establish OPLs for mercury, SVM and LV M that satisfy the requirements 

ofthe Act and the HWC MACT. Specifically, EPA has determined that the OPLs 

shown in Table 9, below, are supported by the available CPT data. Therefore, 

consistent with 40 C.F.R § 71.6(a)(1), EPA is proposing to incorporated these 

OPLs into the permit. See Condition 2.1(C)(2). 

Statement ofBasis at 40 (footnotes omitted). By Region 5's own admission, Veolia's CPT tests 

have established OPLs that represent the highest emission levels Veolia would typically emit 

under reasonably anticipatable circumstances and worst case operating conditions. Having 

acknowledged the adequacy of Veolia's CPT tests, a few pages later in the Statement ofBasis, 

Region 5 discards the adequacy of Veolia's CPT tests in an attempt to justify the installation of 

multi-metals CEMS: 

Veolia conducted comprehensive performance tests (CPTs) at each of the 

incinerators in October 2013. The results of those CPTs demonstrated, among 

other things, that the emissions from the three units were significantly different, 

despite the fact that Veolia had incinerated similar wastes during the tests. This 

illustrates that a simple linear calculation may not be appropriate for estimating 

metal stack concentrations from the emission units. As discussed at section 5.3.3, 

below, EPA has identified several possible reasons for the differing emissions at 

the three units. Further, EPA does not know with which metals chlorine or other 

anions preferentially react in the gas stream and which metal chlorides are more 

easily captured in Veolia's air pollution control equipment. 

Statement ofBasis at 53-54. If Region 5 really believed that Veolia's CPT test results were 

flawed, Region 5 should not have accepted the results. The Agency should have required Veolia 

rerun the tests rather than require the "after-the-fact" installation of three multi-metals CEMS. 

Similar contradictions are found in USEPA's discussion of Veolia's FAP. First, Region 5 

criticizes it as being inadequate and proposes minimum mercury, LV M and SVM analysis 

procedures in the permit to address the deficiencies: 

EPA has reviewed Veolia's FAP, which is available as part of the permit record 

for this proposed permit renewal action, and other monitoring requirements in the 

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VES 019609 
existing 2008 permit, and determined that they are not sufficient to determine that 

waste streams comply with the feedrate limits or assure compliance with 

applicable emissions limits for metals. Although Veolia's FAP contains the 

minimum elements required by 40 C.F.R. § 63.1209(c)(2)(i) through (vi), forthe 

reasons outlined below, EPA has found that the existing FAP is not sufficient to 

ensure that the mercury, lead, arsenic, beryllium, cadmium and chromium 

concentrations in the waste streams are no greater than the concentrations stated 

in the waste profiles that Veolia has used to calculate metal feedrates. As 

discussed below, Veolia currently depends on information in a corporate database 

for "similar" waste streams without real knowledge of what metals are in the 

wastes it incinerates. Further, the database frequently contains information that is 

inconsistent with data provided by waste generators. Therefore, the existing FAP 

cannot assure compliance with the metals feedrate limits. 

Additionally, because Veolia's FAP does not ensure that each feedstream is 

appropriately characterized, the current FAP does not assure compliance with the 

feedrate limits in the permit. 

For the reasons further discussed below, Veolia's current FAP is not sufficient to 

ensure that the mercury, SV M and LV M concentrations in the waste streams are 

no greater than the concentrations stated in the waste profiles that Veolia uses to 

calculate metal feedrates. Therefore, the FAP cannot assure compliance with the 

feedrate limits for mercury, SVM and LVM . Compliance with the feedrate limits 

is a fundamental step in assuring compliance with the HWC MACT emissions 

limits. To address the deficiencies in Veolia's FAP described above, and to assure 

compliance with the feedrate limits, EPA has proposed minimum mercury, LV M 

and SVM analysis procedures in the permit... 

Statement ofBasis at 47. USEPA asserts the supplemental feedstream analysis procedures 

assure compliance with the proposed feedrate limits, and through them, with applicable HWC 

MACT emissions limits: 

The above feedstream analysis provisions supplement any analysis procedures 

specified in Veolia's FAP for mercury, LV M and SVM, and supersede any less 

stringent provisions in the FAP. Incorporation of these requirements into the Title 

V permit would not eliminate Veolia's obligation to maintain an adequate FAP, 

consistent with 40 C.F.R. § 63.1209(c); rather, the permit would specify minimum 

feedstream analysis procedures to assure compliance with the proposed feedrate 

limits, and, through them, with applicable HWC MACT emissions limits. 

Statement ofBasis at 48. Subsequently, USEPA states that installation of multi-metal CEMS are 

necessary to verify that the feedrate limits and the supplemental feedstream analysis procedures 

assure compliance with the HWC MACT emissions limits: 

To verify that the feedrate limits and the feedstream analysis procedures proposed 

in this Title V permit renewal are sufficient to assure continuous compliance with 

the HWC MACT emissions limits, EPA is proposing to require that Veolia install 

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VES 019610 
and operate a multi-metals CEMS at each incineration unit for a period of at least 

12 months. Veolia will operate each multi-metals CEMS as a CPMS, using the 

metal concentrations measured by the multi-metals CEMS as a parametric 

indicator of compliance with the emissions standards and to verify the adequacy 

ofthe feedrate limits. 

Statement ofBasis at 54. Once again, if Region 5 really believed that the supplemental 

feedstream analysis procedures proposed in the 2014 Draft Permit did not assure compliance 

with the HWC MACT, USEPA should have proposed additional procedures until it had such 

assurance. 

In short, the Agency cannot simultaneously find (a) that Veolia's CPT testing, OPLs and FAP, as 

supplemented, are adequate for HWC MACT compliance and later determine (b) that Veolia's 

CPT testing, OPLs and FAP, as supplemented, are inadequate for HWC MACT compliance in 

order to justify the installation of three multi-metals CEMS. This exemplifies Region 5's 

inconsistent and contradictory reasoning and demonstrates the Agency's arbitrary and capricious 

decisionmaking. 

L. Region 5's Discussion of Environmental Justice Considerations Contains 

Inaccurate, Misleading, Prejudicial and Conflicting Information 

Veolia's facility has been located in Sauget, Illinois for over thirty years. During this time 

period, USEPA personnel have visited the Veolia site on numerous occasions. Region 5 

nevertheless inaccurately states "Veolia is located in East St. Louis, Illinois, an area with 

overburdened communities, and the source is of significant public interest." Statement ofBasis 

at 75. Region 5's statement is simply not true. Veolia is located at 7 Mobile Avenue, Sauget, 

Illinois 62201, and the facility is not of a "significant public interest" as evidenced by the lack of 

attendance and comments at the public hearing regarding the 2014 Draft Permit that was held on 

December 3, 2014. See Hearing Transcript, VES 016558-016569 and Sign-in Sheet, VES 

019307. 

Premised on this inaccuracy, USEPA goes onto cite various statistics in an attempt to persuade 

the public that additional monitoring requirements set forth in Veolia's draft Title V permit are 

authorized and necessary. Rather than attempting to draft a persuasive Statement ofBasis that 

inflames prejudice, Region 5's first goal should be to draft an accurate Statement ofBasis. After 

revising the Statement ofBasis to accurately reflect Veolia's location, USEPA needs to perform 

additional study and collect further evidence using the correct Veolia location in Sauget, Illinois 

to determine whether environmental justice should even be discussed in the Statement ofBasis. 

If such issues should be discussed, the Agency should reissue the Statement ofBasis and reopen 

the draft permit for comment. 

Further, the manner in which USEPA discusses environmental justice in the context of 

compliance with the HWC MACT attempts to create a misleading impression that Veolia has not 

been and would not be in compliance with the HWC MACT, but for the additional and specific 

monitoring requirements set forth in the draft permit: 

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VES 019611 
The Title V Program itself does not grant EPA the authority to create new 

limits or other requirements based on these (Environmental Justice) 

concerns. As previously discussed, the Title V permitting program 

codified under 40 C.F.R. Part 71 provides EPA with the authority to 

incorporate into permits 'all operational requirement and limitations that 

assure compliance with all applicable requirements' and monitoring 

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

representative of the sources' compliance with the permit' that will assure 

compliance with all requirements of the Act. Through this proposed 

permit renewal action, EPA is incorporating monitoring requirements 

necessary to assure compliance with all applicable requirements. 

E PA believes that compliance with the HWC MACT requirements will 

help protect the air quality around Veolia, which will benefit the entire 

community. To ensure compliance with the feedrate limits in the permit, 

E PA has included in the Title V permit additional and specific monitoring 

requirement for heavy metals ... [t]he proposed monitoring requirements 

are based on site-specific conditions at the Veolia facility and will help 

protect human health and the environment from the consequences of 

emissions of mercury and other metals by providing further assurance that 

Veolia will not exceed its permitted limits. 

Statement ofBasis at 77. 

As the cited passage from the Statement ofBasis indicates, Veolia and Region 5 are in 

agreement that the Title V Program does not grant USEPA the authority to create new limits or 

other requirements based on these Environmental Justice concerns. Given this fact, Region 5 

had no reason to raise Environmental Justice in the Statement ofBasis for Veolia's draft permit. 

Veolia and the Agency are also in agreement with the non-contested statement that compliance 

with the HWC MACT will help protect the air quality around Veolia and benefit the entire 

community. 

However, the foregoing noncontroversial statements are precursors to Region 5's false 

conclusion that "[t]o ensure compliance with the feedrate limits in the permit, EPA has included 

in the Title V permit additional and specific monitoring requirement for heavy metals... [t]he 

proposed monitoring requirements are based on site-specific conditions at the Veolia facility and 

will help protect human health and the environment from the consequences of emissions of 

mercury and other metals by providing further assurance that Veolia will not exceed its permitted 

limits." 

This statement is false on many levels. First and importantly, Veolia has always ensured 

compliance with the feedrate limits in the permit by conducting and demonstrating compliance 

through emission testing as defined in 40 C.F.R. 63.1209. Any implication to the contrary by the 

Agency through this statement or otherwise is false and prejudicial. Further, the proposed 

monitoring requirements, such as the CEMS, do not change Veolia's history of compliance or 

effect Veolia's future compliance. The CEMS is not and cannot be used to assure compliance by 

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VES 019612 
Veolia, and to the extent Region 5 asserts otherwise in the Statement ofBasis, such assertions are 

untrue and misleading. The CEMS is purported to be a multi-metals monitoring device by 

Region 5 and by others with a financial incentive to sell such devices. Unlike the HWC MACT 

standards, the CEMS has never been shown to protect human health and the environment from 

the consequences of emissions of mercury and other metals in the stack emissions from a 

commercial hazardous waste incinerator. Region 5's statements to the contrary are false and 

prejudicial to Veolia. 

Additionally, Veolia's facility has not moved and the demographics in the area in which it is 

located have not changed. To the extent the Agency attempts to justify the additions contained 

within the draft permit, in part, due to the location of the facility, Region 5 must explain why in 

2008 Region 5 exercised its judgment and issued Veolia its permit without such conditions. The 

Agency cites to the 2000 U.S. Census data in the Statement ofBasis in order to support its 

environmental justice discussion. This exact data existed in 2008 when Region 5 issued Veolia's 

Title V permit. The facility's location and the surrounding demographics have not changed since 

2008, but the Agency's decisions with regard to Veolia's permit have changed. Region 5 should 

explain why it considered the same data, but arrived at a different conclusion. 

M. USEPA's Notice failed to comply with the requirements of § 71.11(d)(4) 

USEPA's Notice of Proposed Renewal of Veolia's Title V Permit ("Notice") failed to comply 

with40C.F.R. § 71.11(d)(4). Section 71.11(d)(4) provides "(i) ... [a]llpublic notices issued 

under this subpart shall contain the following minimum information: ... (B) The name and 

address of the permittee or permit applicant and, if different, of the facility regulated by the 

permit, except in the case of draft general permits." Likewise, "(ii) ... [a]ny public notice of a 

hearing shall contain ... (A) [t]he information described in paragraph (d)(4)(i) of this 

sectionf.]" As identified by the Illinois Secretary of State, Veolia's principal office is located at 

700 E. Butterfield Rd., Ste 201, Lombard, Illinois, 60148, but this address was not included in 

USEPA's Notice. Section 71.11 (d)(4) further provides that all public notices shall contain: "(E) 

The name, address, and telephone number of a person whom interested parties may contact for 

instructions on how to obtain additional information ... available to the permitting authority that 

are relevant to the permitting decision." USEPA's Notice fails to designate an individual that 

may be contacted "for instructions on how to obtain additional information" as required by this 

section. Thus, USEPA's Notice is deficient and the Agency must remedy the deficiency and all 

other defects arising from the deficiency. 

N. Veolia's Specific Incorporation of Other Public Comments 

In addition to the comments set forth in this document, Veolia incorporates into these comments 

as though fully set forth herein, the affidavits and comments of the below listed individuals and 

requests that USEPA consider and respond to these affidavits and comments: 

• Joint comments of William C. Anderson, Ph.D., Senior Analytical Project Manager, 

TestAmerica, Inc. and Chris E. McBride, P.E., Focus Environmental, Inc. VES 016777-

016795; 

• Robert W. Baxter, B3Systems, Inc. VES 016997-017002; 

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VES 019613 
• Emma York, Evonik Manager, Environmental, Safety, Health and Security, VES 

007596-007597; 

• Ralph L. Roberson, President, RMB Consulting & Research Inc., VES 008290-008380; 

• Michael Fuchs, Project manager in the Measurements Group in URS Corporation's 

Austin, Texas Office, VES 007598-7605 and VES 019283-019293. 

• Doug Harris, General Manager at Veolia ES Technical Solutions, L.L.C, VES 008384-

008391; 

• Dennis J. Warchol, Veolia Manager of Environmental, Health and Safety, VES 008381-

008383 and VES 019308-019309; 

• Delana Owen, Franklin Engineering, VES 007606-007615; and 

• The Comments offered by the Coalition for Responsible Waste Incineration offered in 

response to Veolia's 2014 Draft Permit as well as in response to USEPA's attempt to 

reopen Veolia's Permit in 2013 (VES 016961-016974). 

V. Conclusion 

For the reasons set forth above, Veolia requests that USEPA modify the Draft Permit in 

accordance with Veolia's comments. 

Veolia's comments are offered by: 

Doug Harris 

General Manager 

Veolia ES Technical Solutions, LLC 

7 Mobile Ave. 

Sauget, IL 62201 

Office 618-271-2804 Ext. 101 

Fax: 618-271-2128 

Doug.harris@veoliaes.com 

www.veoliaes.com 

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