V ES 001880.pdf 
THOMPSO N COBURNLLP 

314-552-6000 

F A X 314-552-7000 

March 4, 2009 Joseph M. Kellmeyer 

314-552-6166 

FAX 314-552-7166 

EMAIL jkellmeyei® 

thompsonoobuin.com 

V I A FEDERAL EXPRESS 

Attn: Compliance Tracker, AE-17J 

Air Enforcement and Compliance Assurance Branch 

U.S. Environmental Protection Agency 

Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604 

Ray Pilapil, Manager 

Compliance and Systems Management Section 

Bureau of Air 

Illinois Environmental Protection Agency 

1021 North Grand Avenue 

Springfield, Illinois 62702 

Re: Veolia ES Technical Solutions, L.L.C.'s Responses to the United States Environmental 

Protection Agency's Request to Provide Information Pursuant to the Clean Air Act 

Dated January 29,2009 

Dear Regulator: 

This firm represents Veolia ES Technical Solutions, L.L.C. ("Veolia"). O n February 3, 2009, 

Veolia received, via certified mail, the United States Environmental Protection Agency's 

(USEPA's) Request to Provide Information Pursuant to the Clean Air Ac t dated January 29, 

2009 (Infonnation Requests). The provisions of the Information Requests require Veolia to 

respond within 30 days after the receipt of the Information Requests. Thus, Veolia is required 

to submit its response by March 5,2009. 

Included with this letter please find Veolia's written response with supporting attachments. 

Please note that, pursuant to the express direction of the Information Requests, Veolia has 

provided the Illinois Environmental Protection Agency (IEPA) with a copy of this letter and 

Veolia's written response without attachments. Should IEPA wish to have a copy of the 

Chicago St. Louis Southern Illinois Washington, D.C. 

V E S 001880 
Although Veolia has attempted to fully and completely answer the Information Requests i n 

good faith and consistent with any statutory obligations, its response is subject to the following 

general objections: 

1. Veolia objects to the Infonnation Requests to the extent that any instruction or 

request is overly broad, vague or ambiguous, or otherwise not in accordance with applicable 

law. 

2. Veolia objects to the Information Requests to the extent any instruction or 

request is different i n whole or i n part from hiformation Veolia's competitors are required to 

provide to the Agency. To the extent such differences exist, Veolia is placed at a disadvantage 

that violates its equal protection and due process rights. 

3. Veolia objects to the Information Requests to the extent any instruction or 

request arbitrarily and capriciously requests information which is irrelevant or already collected 

albeit i n a different fashion or using a different method. 

4. Veolia objects to the Information Requests and reserves its right to the extent 

any request seeks information or materials protected by the attorney-client privilege, the work 

product doctrine or any other applicable privileges. 

While Veolia submits its responses subject to the foregoing general objections and 

qualifications, Veoha, nevertheless, has attempted to respond i n good faith to the Information 

Requests and has expended significant time and resources i n doing so. 

Veolia trusts USEPA will find Veoha's answers thorough and responsive. However, if the 

USEPA believes that Veoha has misunderstood any question or has provided any incomplete or 

inaccurate responses, please contact the undersigned so that I might assist my client i n 

resolving tbe Agency's concern. Veolia reserves the right to provide additional information i n 

the future and/or to amend or supplement its responses. If you have any questions or concerns 

regarding the responses, please contact the undersigned. 

Very truly yours, 

Thompson Coburn LLP 

cc: Greig Siedor, Esq. 

Ryan R. Kemper, Esq. 

Enclosures 

- 2 -

V E S 001881 
VEOLI A ES TECHNICA L SOLUTIONS, LX.C/ S RESPONSES T O TH E UNITE D STATES 

ENVIRONMENTA L PROTECTIO N AGENCY' S REQUEST T O PROVIDE 

INFORMATIO N PURSUAN T T O TH E CLEA N AI R AC T DATE D JANUAR Y 29, 2009 

Date: March 4f 2009 

The following constitutes the response of Veolia ES Technical Solutions, L.L.C. (Veolia or 

Company) to the United States Environmental Protection Agency's (USEPA's) Request to 

Provide Information Pursuant to the Clean Air Act dated January 29, 2009 (Information 

Requests). These responses are subject to the objections referenced i n the letter of Joseph M . 

Kellmeyer of Thompson Cobum LLP dated March 4, 2009, and provided herewith. 

I. Procedural History 

For as long as it has been subject to the Clean Air Act, Veolia has diligently complied with the 

Ac t and its applicable regulations—including the MAC T standards and the Title V permitting 

program. Thus, a brief procedural history of Veolia's MAC T compliance and participation i n 

the Title V process is necessary to understand Veolia's response to the USEPA's Irnbnnation 

Requests. 

A. Summary of Veolia's Efforts to Demonstrate MACT Gompliance at the Sauget Facility 

In December of 2003, Veolia submitted a Comprehensive Performance Test and Continuous 

Monitoring System Performance Evaluation Test Plan (2003 CP T Plan) to the IEPA and 

USEPA. The 2003 CP T Plan outlined the procedures for conducting CPTs on Veoha's three 

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

compliance with Subpart EEE standards, the 2003 CP T Plan stated Veolia's request to use 

data-in-lieu and extrapolation to establish its Operating Parameter Limits (OPLs) as expressly 

allowed under 40 C.F.R. § 1207(c)(2). Specifically, the 2003 CP T Plan stated that the testing 

data developed for incinerator 2 would be used to develop OPLs for both incinerators 2 and 3— 

since units 2 and 3 are identical incinerators—in lieu of testing both 2 and 3 individualh/. The 

2003 CPT Plan also called for the use of extrapolation to establish the feed rates for wastes 

containing low volatile metals (LVMs), semi-volatile metals (SVMs), and mercury. 

O n June 30, 2004, Veolia placed a Document of Compliance (2004 DOC) i n its Operating 

Record establisliing its comphance with 40 C.F.R. Part 63, Subpart EEE. The 2004 DO C also 

set forth information regarding the use of data-in-lieu and extrapolation to establish the Sauget 

Facility's OPLs. See Onyx Environmental Services, Document of Compliance: Nat'l Emissions 

Standards for Hazardous Air Pollutants from Hazardous Waste Combustors: 40 C.F.R. Part 63, 

Subpart EEE, June 30,2004, attached as Exhibit A . Subsequently, on September 28,2005, 

Veolia submitted a Notification of Comphance with Subpart EEE (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 percury. See Onyx Environmental Services, 

Notification of Compliance: Nat'l Emissions Standards for Hazardous Air Pollutants from 

Hazardous Waste Combustors: 40 C.F.R. Part 63, Subpart EEE, Sept 28, 2005, attached at 

Exhibit B. At this point, Veolia had not received any comment from either USEPA or IEPA 
regarding the 2003 CPT Plan. Rather, the first time any. agency communicated with Veolia 

regarding the substantive portions of the 2003 CP T Plan was i n April of 2006. 

In April of 2006 Veoha met with IEPA regarding Veolia's pending Title V permit At that 

meeting, IEPA stated that Veoha had submitted sufficient information to document MAC T 

comphance 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 estabhsh limits regarding incineration unit 3. In 

addition, IEPA insisted that Veolia perform a CP T on unit 3 within one month. Thus, i n June 

of 2006, at significant additional expense due to the short time period allowed for testing by 

IEPA, Veoha performed MAC T compliance testing on unit 3 individually. This testmg 

demonstrated that the unit met all apphcable MAC T standards, including those for LVMs, 

SVMs, and Mercury. See Veoha ES Technical Solutions, Evaluation of Metals, Particulate 

Matter and PCDD/PCDF Emissions for Fixed Hearth Incinerator Unit 3, June 2006, attached 

as Exhibit C. 

As discussed i n more detail below, on September 29, 2006, USEPA notified Veolia that USEPA 

would now be the Agency i n charge of issuing Veoha's long-delayed Title V Permit As a result, 

USEPA required Veolia to submit a new apphcation for a Title V Permit, including information 

related to Veolia's comphance with the MAC T standards. Initially, USEPA set September 29, 

2007 as the deadline for that apphcation to be submitted. However, i n April of 2007 USEPA 

notified Veolia that the apphcation was, i n fact, required to be submitted on May 2, 2007. 

Veolia timely submitted a new Title V Permit apphcation on May 2, 2007. 

O n February 22, 2008, USEPA issued the first of a series of Section 114 Information Requests 

pertaining to Veoha's compliance with the MAC T standards. See USEPA, Region 5, Request 

to Provide Information Pursuant to the Clean Air Act, Feb. 22, 2008 (February 2008 

Information Requests), attached as Exhibit D . Even though Veolia had demonstrated 

compliance with the MAC T standards by using data-in-lieu and testing unit 3 i n 2006, the 

February 2008 Infonnation Requests directed Veolia to submit a new CP T Plan i n 45 days and 

conduct CPTs on all three incinerators by Jury 15,2008. See February 2008 Information 

Requests, Appx. B1T1,113. The February 2008 Information Requests specifically prohibited 

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

App x B12. 

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

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

Agency. 1 Upon receipt of the February 2008 Information Requests, Veoha entered into 

complex negotiations with the Agency regarding the infeasibility of completing CPTs on all 

three incinerators by Jury 15, 2008. 

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 conditions of the February 2008 

Information Requests. A t the meeting, USEPA acknowledged that the schedule included i n the 

February 2008 Information Requests was unrealistic i n light of the time needed to plan, 

1

 Note that 40 C.F.R. §63.1207(e)(i)(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 

- 2 -

V E S 001883 
prepare, and perform the CPTs. Veolia agreed to propose an alternative, more practical, 

schedule and submit it to the USEPA. Veolia's proposed schedule stated that the three testing 

programs would be completed between August of 2008 and April of 2009. See Email from 

Doug Harris, General Manager, Veoha's Sauget Facihty, to Cheryl Newton, USEPA Region 5, 

March 21,2008 (transmitting Veolia's proposed CP T schedules), attached as Exhibit E. 

However, this alternative schedule did not meet the USEPA's needs and was rejected. 

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

had valid test data to develop OPLs for all three incinerators for the MAC T emission standards 

for particulate matter, HCL/C12, dioxins/furans, and DRE, but wanted Veolia to conduct 

performance tests to develop OPLs for mercury, LVMs, and SVMs prior to the issuance of the 

Title V Permit in September 2008. Veolia again expressed concern regarding the performance 

of this testing on three incinerators i n a very compressed time period. 

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

address the need to demonstrate MAC T metals compliance, Veolia had to choose either to 

complete the MAC T 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 MAC T metals for 

inclusion i n the Title V Permit The four options were: 1) cease incinerating any wastes 

containing any MAC T metals; 2) install Continuous Emission Momtoring Systems (CEMS) for 

metals; 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 

Pemiit During the April 25, 2008 telephone conference call, Veolia stated that these four 

options were either undesirable, as i n the case of option 1,- unfeasible, as i n the case of option 

2; or of great concern due to the unknown nature of the results as i n the case of options 3 and 

4. Although knowing that conducting performance testing within this expedited time period 

would be challenging and result i n increased costs, Veolia chose to conduct the metals 

performance testing instead of one of these four options. Veoha 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 & 14, 2008, the parties discussed details of the testing 

and USEPA agreed to reissue the February 2008 Information Requests such that Veoha would 

only be required to perform emission testing for mercury, LVMs, and SVMs. 

The agreement reached by USEPA and Veoha regarding how Veolia was to demonstrate MAC T 

comphance was embodied i n a revised Section 114 Information Request issued by the Agency 

on June 5,2008 (the same day USEPA issued Veolia's draft Title V Permit). See USEPA, 

Region 5, Request to Provide Information Pursuant to the Clean Air Aa , June 5, 2008 (June 

2008 mformation Requests), attached as Exhibit F. 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 i n a Notification of Compliance 

(NOC) by September 26, 2008; and submit an apphcation for significant modification to its 

Title V permit (to include the OPLs for LVMs, SVMs, and mercury developed by tiie Metals 

Performance Testing i n the Title V Permit) by September 26, 2008. 

Pursuant to the directives in both the February and June 2008 Information Requests, Veolia 

was required to submit a performance test plan for USEPA approval prior to testing. See 

February 2008 Information Requests, Appx. B 114, June 2008 Information Requests, Appx. B 

HI. 

- 3 -

V E S 001884 
The Febraary and June 2008 Information Requests specifically prohibited Veolia from 

requesting to use data-in-lieu; however, the requests did allow Veoha to request to use an 

extrapolation methodology to calculate the feedrates for LVMs, SVMs, and mercury. See 

February 2008 Information Requests, Appx. B H3, June 2008 Information Requests, Appx B 

t l . 

Prior to including an extrapolation method i n its Metals Performance Test Plan, Veolia 

discussed extrapolation methods with Mr. Charlie Hall at USEPA Region 5. As a result of 

these discussions, Mr. Hall provided Veolia with a protocol that had been previously approved 

by USEPA for use by Lubrizol Corporation (a corporation also regulated by Region 5). Veoha 

incorporated the approved extrapolation methodology into the Metals Performance Test Plan 

that Veolia submitted to USEP A See Metals Performance Test Plans for Fixed Hearth 

Incinerator Number 2, Fixed Hearth Incinerator Number 3, and Rotary Kiln Incinerator 

Number 4, attached as Exhibit G. 

USEPA approved the general parameters of the 2008 Metals Perfonnance Test Plan i n a letter 

directed to Veoha dated August 8,2008. See Letter from George Czerniak, Chief, Air 

Enforcement and Compliance Assurance Branch, USEPA Region S, to Doug Harris, General 

Manager, Veolia Sauget Facility, Aug. 8, 2008, attached as Exhibit H . However, despite 

VeoUa's attempts to use a method that USEPA Region 5 had previously approved for use by 

Lubrizol, the Agency stated that it neither "approved nor disapproved" of Veolia's extrapolation 

method based on the Lubrizol Corporation protocol. See id. at 3. USEPA agreed that, until 

such time as USEPA did approve an extrapolation method, Veoha would operate at a feedrate 

no greater than the feedrate used during the testing to demonstrate MAC T compliance. 

Veolia proceeded to perform the approved Metals Performance Test i n August and September 

of 2008. USEPA Region 5 personnel were present at each test—except the final run2 on unit 4, 

which was observed by IEPA personnel—and, to date, neither USEPA nor IEPA has made 

Veoha aware of any problems that agency personnel observed during any of the 2008 Metals 

Performance Tests that would call into question the validity of the results or Veolia's 

compliance with the MAC T metals standard. The final results of the Metals Performance Test 

showed that all three incineration units were i n full comphance with the MAC T standards for 

LVMs, SVMs, and mercury. O n September 16, 2008, at Veoha's request, USEPA issued 

another revised Section 114 Information Request extending Veoha's deadline to submit the test 

data, NOC , and its apphcation for significant modification from September 26,2008, until 

October 10, 2008. See USEPA, Region 5, Request to Provide Information Pursuant to the 

Clean Air Act, September 16, 2008 (September 2008 Information Requests), attached as 

Exhibit I. The extension provided Veolia with additional time to add information collected 

during the September portion of the Metals Performance Test. 

O n October 10,2008, pursuant to the February, June, and September 2008 Information 

Requests, Veolia submitted a NOC , the Performance Test Reports for incinerators 2, 3, and 4, 

and an apphcation for significant modification to Veoha's Title V (Part 71) Permit. See Letter 

from Doug Harris, General Manager, Veoha Sauget Facihty, to USEPA Region 5 Air 

Enforcement and Compliance Assurance Branch, Oct. 10,2008 (attaching Notification of 

2

 Each Metals Perfonnance Test conducted on one of Veolia's incineration units consisted of three runs. 

- 4 -

V E S 001885 
Compliance, the Performance Test Reports for Incinerators 2,3, and 4, and Veoha's 

application for significant modification of its Part 71 Title V Permit], attached as Exhibit J. In 

its apphcation for significant modification, Veoha, as required by the Agency, submitted revised 

OPLs for LVMs, SVMs, and mercury. See September 2008 Information Requests, Appx. B14. 

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

Requests, Veoha also requested to use extrapolation methods to calculate feedrates for LVMs, 

SVMs, and mercury. See Feb. 2008 Information Requests, Appx B13, June 2008 Information 

Requests, Appx B11 ; Sept. 2008 Information Requests, Appx B11,- Veolia App. Significant 

Modification, Sec. 2.1(C)(2), Oct. 10, 2008. A s detailed i n its apphcation, Veoha both used the 

extrapolation methodology (the Lubrizol Corporation protocol) supplied by Region 5 and 

lowered the extrapolated metal feedrates based on historical data as defined i n 40 C.F.R. § 

63.1209(n)(2)(ii)(B)(2). See Veolia's Apphcation for Significant Modification included in 

Exhibit J. Veolia is continuing its discussions with the Agency regarding its apphcation for 

significant modification. 

On October 14,2008, just days after Veolia submitted the NOC, Performance Test Reports 

from the August and September Metals Performance Testing, and its apphcation for significant 

modification, Veolia placed i n its Operating Record a new DO C (2008 DOC) to establish its 

adherence to the MAC T permanent replacement standards for hazardous waste combustors.3 

Importantly, Veoha's 2008 DO C contains OPLs for LVMs, SVMs, and mercury that are not 

based on extrapolation methodology. See Veolia ES Technical Solutions, L.L.C. , Document of 

Compliance (DOC): Naf l Emission Standards for Hazardous Air Pollutants from Hazardous 

Waste Combustors: 40 C.F.R. Part 63, Subpart EEE, Oct. 14, 2008, attached at Exhibit K. 

Veolia began operating under these OPLs on October 14,2008 and continues to use these 

feedrates i n its present operation i n full comphance with the MAC T standards. 

B. Summary of Veolia's Title V Permit Process Regarding the Sauget Faculty 

O n September 7,1995, Veoha submitted a Title V apphcation to IEPA. IEPA deemed Veolia's 

application adkunistratively complete i n October of 1995. Nearly eight years later, on June 6, 

2003, IEPA finally issued a draft Title V Permit The pubhc comment period on this draft 

permit ended on September 12, 2003 and a revised permit was sent to USEPA on November 6, 

2003. USEPA did not issue any comments on the revised draft. However, on February 18, 

2004, the Sierra Club petitioned the USEPA / pursuant to Section 505(b)(2) of the Clean Air 

Act and 40 C.F.R. § 70.8(d), to object to IEPA's issuance of the pennit (After USEPA did not 

respond to the petition, the Sierra Club filed suit against the USEPA seeking the same relief on 

August 2,2005. See Sierra Club, et al. v< Johnson, Case No. 05-C-4425 (N.D. Dl. Aug. 2, 

2005).) As a part of a consent decree between USEPA and the Sierra Club resolving the 

litigation, on February 1,2006, USEPA partially granted the petition and directed the IEPA to 

3

 Veolia was required to comply with the MACT permanent replacement standards beginning on 

October 14, 2008. See 40 C.F.R. §§ 63.1200 - 63.1221. 

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

permitee 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. 

- 5 -

V E S 001886 
reassess certain aspects of the permit. Further, USEPA directed IEPA to issue a revised permit 

within 90 days. IEPA failed to issue a revised permit within that time frame. In Jury of 2006 

the Siena Club again hied suit against USEPA i n the United States District Court for the 

Northern District of Illinois in an attempt to force USEPA to issue the Title V Permit. See 

Sierra Club, et al. v. Johnson, Case No. 06-C-4000 (N.D. 111. Jury 27, 2006). 

O n September 29,2006, USEPA notified Veolia that USEPA was taking over the Title V 

process from IEPA. USEPA informed Veoha that it must submit a new Tide V Permit 

application by September 29,2007. However, i n April of 2007 USEPA notified Veoha that the 

apphcation was, i n fact, due by Ma y 2, 2007. Veoha submitted a new apphcation on May 2, 

2007. The apphcation was deemed admimstrativery complete on June 13, 2007. USEPA then 

issued a draft Title V Peimit for public comment on June 5, 2008. Notably, this draft Title V 

Permit did not contain OPLs for LVMs, SVMs, and mercury, as those numbers were still under 

development through the Metals Performance Testing process outlined above. A pubhc 

heaiing was held on July 8, 2008. Thereafter, Veoha submitted written comments to issues 

presented at the public hearing. 

On or about June 11,2008, USEPA and the Sierra Club settled the July 27, 2006 lawsuit with a 

consent decree that required USEPA to issue a formal pennit decision by September 12, 2008. 

On September 12, 2008, USEPA formally issued a Title V Permit to Veolia (Pennit No. V-IL1716300103-08-01). Veoha's final Title V Permit did not contain OPLs for LVMs, SVMs, and 

mercury. As discussed above, on October 10, 2008, Veoha submitted to USEPA a NO C and an 

application for significant modification of the Title V Permit (along with the reports from the 

Metals Performance Testing) that contain OPLs for LVMs, SVMs, and mercury. Veolia was 

anridpating a response to these submittals—and believed it would have an opportunity to work 

through the modification process with USEPA—when it received yet another Section 114 

Information Request from USEPA dated January 29, 2009. 

C. Tanuarv 29. 2009. Information Requests 

On February 3,2009, Veoha received, via certified mail, 5 USEPA's Information Requests dated 

January 29,2009 (Information Requests). Upon receipt, Veolia acted swiftly to contact Sarah 

Marshall at USEPA Region 5 to begin coordinating a response. After spealdng with Ms. 

Marshall and analyzing USEPA's directives regarding the installation of Continuous Emission 

Monitonng Systems (CEMS) for mercury/ Veolia determined that it would need additional 

time to accurately and fully respond to the Agency's Information Requests. Thus, Veoha, 

through its attorney Joe Kellmeyer, attempted to contact Sabrina Argentieri, an attorney for 

Region 5, on Tuesday, February 10,2009, to request a 60-day extension of time for Veoha to 

5

 Proof Veolia's receipt date is attached hereto as Exhibit X. 

' The problems that Veolia has encountered related to USEPA's demand regarding the installation of 

CEMS for mercury are detailed fully in Veolia's numbered responses to Appendix B of the Infonnation 

Requests. 
respond to the Information Requests.7

 Ms. Argentieri returned Mr. Kellmeyer's call on 

Wednesday, February 11, 2009; During this call, Mr. Kellmeyer relayed the basis for Veoha's 

request for additional time, specifically, Veolia's need to folly evaluate the availabihty, cost, 

accuracy, and overall performance of CEMS for mercury prior to mstalling three systems at the 

Veolia facihty. Further, Mr. Kellmeyer pointed out that, even if Veolia did no evaluation 

whatsoever and simply purchased three CEMS, it would take longer than the 30 days provided 

by the Information Requests to receive and install the equipment. Ms. Argentieri, however, 

apparently did not feel these were sufficient reasons to grant an extension of time and therefore 

denied Veolia's request 

Despite arbitrarily being denied a reasonable and justifiable extension of time to respond to 

USEPA's demands, Veoha has endeavored to respond to the Information Requests as fully and 

completely as practical within the time period imposed by the Agency. 

JJ. Comphance with the Hazardous Waste Combustor MACT 

The Information Requests provide that USEPA is ''requesting this information to determine 

whether [Veolia's] emission source is complying with the Hazardous Waste Combustor 

MACT. " As an initial matter, Veolia is i n compliance with the Hazardous Waste Combustor 

MAC T and, i n cooperation and conjunction with the USEPA, has demonstrated such 

compliance through extensive and effective Metals Performance Testing, which included 

mercury testing, as recently as August and September of 2008. See Metals Performance Test 

Reports for mcineration Units 2, 3, and 4, included i n Exhibit ]-, see also 40 C.F.R. § 63.1207; 

§63.1207. 

As discussed above, the MAC T metals comphance testing that Veolia performed i n August and 

September of 2008 was completed pursuant to USEPA's February, June, and September 2008 

revised Information Requests. See Feb. 2008 Information Requests, Appx. B f 1, June 2008 

Information Requests, Appx B H2; Sept. 2008 Information Requests, Appx B112. Al l three of 

Veoha's incineration units demonstrated compliance with the MAC T metals emissions 

standards during these tests. See Metals Performance Test Reports for Incineration Units 2,3, 

and 4, included i n Exhibit J. Further, agency personnel observed each test and, to date, have 

not made Veoha aware of any deviations from method quahty assurance procedures.8 

Veolia submitted a NO C to USEPA on October 10, 2008, along with the results of performance 

tests, verifying Veolia's compliance with the MAC T standards. Moreover, on October 14, 

2008, Veoha placed a new DO C i n its Operating Record setting forth Veolia's compliance with 

the new MAC T standards for hazardous waste combustors. Notably, this DO C does not use an 

extrapolation methodology to detennine Veoha's OPLs for LVMs, SVMs, and mercury,- rather, 

the feedrate limits included i n the 2008 DO C are based solely on the August and September 

Metals Performance Testing, which was both approved and witnessed by USEPA. See Veoha 

7

 Due to the illegible signature on the Information Requests, Veolia initially contacted Jan Woolums, 

another attorney at Region 5. Ms Woolums informed Veolia that Ms. Argentieri was the appropriate 

contact 

8

 See supra Part I A 

- 7 -

V E S 001888 
ES Technical Solutions, L.L.C., Document of Comphance (DOC): Nat/1 Emission Standards for 

Hazardous Air Pollutants from Hazardous Waste Combustors: 40 C.F.R. Part 63, Subpart EEE, 

Oct. 14, 2008, attached at Exhibit K. 

171 Veolia's Responses to Appendix B 

The Information Requests provide that Appendix 5 "specifies the information that [Veoha] 

must submit... [and that Veoha] must send this infonnation according to the schedule i n 

Appendix B." 

The Introductory Paragraph of Appendix B states as follows: 

Veoha must provide continuous mercury emission data for Incinerators Nos. 2, 3, and 4 

at its plant located at #7 Mobile Avenue, Sauget, Illinois, in accordance with the following 

instructions: 

Response / Information Provided: As outlined above, Veolia has completed MAC T metals 

testing, including tests for mercury, on all three of its incinerators in August and September of 

2008. Veoha completed this testing at the behest of and i n cooperation with USEPA. Al l three 

incinerators demonstrated comphance with the MAC T standards and the results of these tests 

have been submitted to IEPA and USEPA to document such compliance and, among other 

things, to define a 12-hour rolling average feedrate limit for mercury pursuant to 40 C.F.R. § 

63.1209(1)(1). See Letter from Doug Harris, General Manager, Veolia Sauget Facihty, to 

USEPA Region 5 Air Enforcement and Compliance Assurance Branch, Oc t 10,2008 (attaching 

Notification of Comphance, the Performance Test Reports for Incinerators 2, 3, and 4, and 

Veolia's apphcation for significant modification of its Part 71 Title V Permit), attached as 

Exhibit J. 

The MAC T metals testing that Veolia completed i n August and September of 2008 was the 

result of a series of complex negotiations between USEPA and Veolia after USEPA issued the 

February 2008 Information Requests. The February 2008 Information Requests required, 

among other conditions, Veoha to submit CP T Plans for all three incinerators within 45 days 

of receipt of the mformation Requests and to conduct comprehensive performance tests on 

each incinerator no later than July 15,2008. In a meeting with USEPA on March 13, 2008, 

Veolia presented its concerns regarding the extremely short time period that was given to 

complete the conditions of the February 2008 Information Requests. The USEPA 

acknowledged that the schedule i n the letter was overly aggressive and not realistic. It requires 

many months, if not up to a year, to: obtain the services of an independent company to develop 

and submit CPT Plans; allow the USEPA time to review and comment on the plans; resolve 

USEPA comments on test plan content and testing protocol and submit these revisions for 

further review; procure and prepare chemicals necessary for performance testing,- select and 

segregate appropriate liquid and sohd waste feeds,- schedule the independent company to 

perform the stack sampling with enough lead time for preparation of sampling equipment, 

personnel scheduling, and mobilization; and to perform the testing, obtain analytical results, 

perform test calculations, and produce a test report—and that is just for a single incinerator. 

Veoha's proposed schedule stated that the three testing programs would be completed between 

August of 2008 and April of 2009. See Email from Doug Harris, General Manager, Veoha's 

- 8 -

V E S 001889 
Sauget Facility, to Cheryl Newton, USEPA Region 5, March 21,2008 (attaching Veolia's 

proposed CPT schedules), attached at Exhibit E. However, this alternative schedule did not 

meet the USEPA's needs and was rejected. 

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

had valid test data to develop OPLs for all three incinerators for the MAC T emission standards 

for particulatematter, HCL/C12, dioxins/furans, and DRE, but wanted Veoha to conduct 

performance tests to develop OPLs for mercury, LVMs, and SVMs prior to the issuance of the 

Title V Permit in September 2008. Veoha again expressed concern regarding the performance 

of this testing on three incinerators i n a very compressed time period. 

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

address the need to demonstrate MAC T metals compliance, Veoha had to choose either to 

complete the MAC T metals testing as directed by the USEPA, pursuant to the Agency's very 

tight time frame, or dternatrvely to choose one of four options addressing MAC T metals for 

inclusion i n the Title V Permit. The four options were: 1) cease incinerating any wastes 

containing any MAC T metals,- 2) install metals CEMS; 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 During the April 25, 2008 telephone 

conference call, Veolia stated that these four options were either undesirable, as i n the case of 

option 1; unfeasible, as in the case of option 2; or of great concern due to the unknown nature 

of the results as in the case of options 3 and 4. Although knowing that conducting 

performance testing within this expedited time period would be challenging and result in 

increased costs, Veolia chose to conduct the metals performance testing instead of one of these 

four options. Veolia agreed to expedite the delivery of the metals performance test plans and 

USEPA agreed to review the test plans i n two weeks. In phone conferences held on May 12 & 

14,2008, the parties discussed details of the testing and USEPA agreed to reissue the February 

2008 Information Requests such that Veolia would only be required to perform emission 

testing for mercury, LVMs, and SVMs on all three incinerators. This agreement reached by 

USEPA and Veolia was embodied i n the June 2008 Information Requests. 

Veolia conducted the agreed upon testing i n August and September of 2008. Test results 

demonstrating compliance with the MAC T Emission Standards were submitted on October 10, 

2008 per the revised information request. 

In light the agreement reached between Veoha and USEPA, which Veolia fully and faithfully 

executed by performing metals performance testing that demonstrated comphance with the 

MAC T standards, Veolia is at a loss as to why the Company has now received a demand from 

USEPA that requires Veolia to install mercury CEMS on its three incinerators. To be clear, 

Veoha and USEPA agreed that Veolia would not be required to, and need not, install mercury 

CEM S if Veolia successfully performed the metals performance testing as set forth i n the June 

2008 mformation Requests. Veolia fulfilled its end of the bargain at great labor and expense. 

In the absence of any information showing why the data generated during the Metals 

Performance Testing is insufficient, inaccurate, or unreliable, USEPA should stand by its 

agreement reached with Veoha regarding how Veolia may demonstrate compliance with the 

- 9 -

V E S 001890 
MAC T standards. To do otherwise, as USEPA has chosen to do i n these Information 

Requests, is arbitrary, capricious, and lacks a rational basis.9 

Instruction Bl states as follows: 

1. Install and operate a total mercury continuous emission monitoring systems 

(CEMS) on Incinerators 2, 3, and 4 at its.plant located at #7 Mobile Avenue, 

Sauget, Illinois. 

Response / Information Provided: Despite a limited time period i n which to complete 

sufficient due diligence, Veolia has endeavored, to the best of its ability, to evaluate the 

availabihty, accuracy, and overall perfonnance of mercury CEMS for application to its Sauget 

facihty. 

Based on its findings, Veolia does not believe that there is an accurate, reliable, and available 

CEM S for mercury that can be implemented at the Sauget Facihty. In addition, i n light of this 

unreliability, and the lack of an apphcable cahbration standard for mercury, Veoha personnel 

cannot certify the accuracy of any monitoring data produced by CEMS technology as required 

by USEPA. 

In recent telephone conversations, Veolia asked USEPA for a recommendation regarding a 

CEM S for mercury that has a proven track record of accuracy at a hazardous waste incinerator; 

however, USEPA has refused to give Veolia any guidance as to the apphcation of a particular 

CEM S technology. 

In an attempt to comply with the Agency's demands, Veolia has sought out experts who have 

previously dealt with CEMS technology as it relates to mercury emissions. These experts have 

concluded that the currently available CEMS technology as it applies to mercury monitoring is 

unreliable for apphcation to commercial hazardous waste incinerators. See generally 

documents included i n Exhibits L&M . Specifically, one of the emissions testing experts 

contacted by Veoha related that his company, URS, had abandoned the use of CEM S at a 

hazardous waste incinerator project i n Oregon because the technology was "not reliable nor 

[was it] able to meet the demands of varying concentration of mercury i n the stack gases." See 

Letter from Michael Fuchs, Project Manager, URS, to Joseph Kellmeyer, Attorney, Thompson 

Cobum, February 13,2009, attached as Exhibit L. Also, on that same project, URS refused to 

guarantee 95% data availabihty from a CEMS for mercury, even with redundant systems i n 

place, due to the unreliability of the CEMS technology. See id. 

In addition, Veoha's primary supplier of analytic equipment does not even offer mercury CEMS 

technology because it believes that the current technology is unreliable. This supplier, 

EcoChem Analytics, offered the foflowing explanation as to why it is not offering mercury 

9

 Furthermore, if USEPA's intention has always been to require Veolia to install mercury CEMS 

technology, USEPA should have made Veoha aware in April of 2008 that the Agency was going to 

require die 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 Performance Test. 

- 10-
CEMSs at this time: "Our experience found that we could monitor su<xessfuuy i n certain 

applications and fail miserably in others ... [w]e had units at several locations, including EPA 

and had varying degrees of success; however, the knowledge and availabihty of mercury 

techniques is still lacking." See Letter from Bob Peters, Project Manager, EcoChem Analytics, 

to Dave Klarich, Veoha Environmental Services, February 12,2009, attached as Exhibit M . 

Moreover, even if mercury CEMS technology was accurate and reliable for apphcation to the 

Sauget Faculty, which it is not, the CEMS units could not be obtained and be made operational 

within the time period allotted by the Information Requests. Rather, based on the research 

and experience of the experts Veoha consulted, and conversations with Veolia's own suppliers, 

Veolia believes it would take between 16 to 20 weeks (after contract negotiations) to obtain the 

CEMS and upwards of 9 to 12 months to make them fully operational. See Letter from 

Michael Fuchs, Project Manager, URS, to Joseph Kellmeyer, Attorney, Thompson Cobum, 

February 13, 2009, included i n Exhibit L; see also Veolia's Response to Instruction B3. 

Another aspect of Veoha's analysis is the overall cost of implementing an inaccurate and 

unverihable monitoring system. Based on Veolia's internal calculations and estimates from 

outside suppliers, a conservative estimate of costs associated with the engineering, purchase, 

installation, certification, and operation of CEM S for mercury on the three incinerators at the 

Sauget Facility would be in excess of $1 million to $2 million. 

Veolia is aware that CEMS technology has been apphed to commercial hazardous waste 

incinerators i n Europe and is currently being apphed to the electric utility industry i n the 

United States. However, after diligent inquiry, Veolia did not discover any successful mercuiy 

CEMS implementation efforts on any commercial hazardous waste incinerators i n the United 

States.10 Moreover, the CEMS technology employed to the electric utility industry and 

European commercial hazardous waste incinerators is not apphcable to, and significantly 

different than, the CEMS technology that USEPA has directed Veolia to instalL 

The CEM S technology utilized by the electric utility industry cannot be utilized at the Sauget 

Facihty because the well estabhshed calibration range of the CEMS system used on coal-fired 

power plants is: (1) an order of magnitude less than the 130 jig/dscm concentration standard 

Veoha is required to meet under the 40 C.F.R. Part 63, Subpart EEE; and (2) is two orders of 

magnitude less than the mercury measurement range specified i n Draft Perfonnance 

Specification 12 (Draft PS12), which USEPA has directed Veoha to comply with under 

Instruction B4 of these Information Requests. See Veolia's Response to Instruction B4. 

Further, Veoha is aware of no rehable gaseous elemental mercury cahbration standards that can 

be used to quantify mercury concentrations at levels above 40 /ig/dscm. In addition to dramatic 

differences in the mercury concentrations, the emissions variabuity, effluent conditions, 

1 0

 Veolia is aware that the Eli Lilly Company facility located in Tippecanoe, Indiana, has installed and 

currently operates CEMS technology on its captive incinerator. However, the CEMS technology 

employed by Eli Lilly is significantly different [than the technology USEPA is directing Veolia to install. 

The Eli Lilly CEMS is a multi metals CEMS that has direct calibration for certain MACT metals—but 

does not have a direct calibration for mercury, Lilly's CEMSs uses an inferred cahbration method for 

mercury that cannot be used for direct demonstration of compliance under 40 C.F.R. Part 63, Subpart 

EEE. 

-11 -

V E S 001892 
chemical matrix, and the relative concentrations of elemental and oxidized mercuiy at a 

commercial hazardous waste incinerator such as the Sauget Faculty will be vastly different than 

at a coal-fired power plant. These differences are likely to impose new technical challenges and 

problems that have not been encountered i n the evaluations of mercury CEMS at coal-fired 

power plants. 

Likewise, Veoha is not aware of any CEMS technology currently utilized on a European 

commercial hazardous waste incinerator that can meet USEPA performance standards. See 

Draft Performance Specification 12; Performance Specification 12A, 40 C.F.R. Part 60, Appx. 

B. The instruments used i n European countries to conform to CE N (Comite Europeen de 

Normalisation; European Committee on Standardization) regulations for monitoring emissions 

from incinerators: 1) are not required (nor demonstrated) to utilize gas calibration standards to 

verify performance on a daily basis as required by 40 C.F.R. § 60.13(d) or 40 C.F.R. § 63.8(c); 

and 2) are not subject to relative accuracy test requirements as prescribed by USEPA 

regulations. See, e.g., 40 C.F.R. Part 60, Appx. B; Draft Performance Specification 12 (requiring 

use of NIST traceable cahbration standards for both elemental mercury and oxidized mercury 

cahbration tests of initial certification and ongoing quahty assurance). 

Therefore, Veoha believes that the mercury CEMS technology is not a demonstrated 

comphance momtoring technology for commercial hazardous waste incinerators. Rather, the 

best method for Veoha and other hazardous waste incinerators to accurately demonstrate 

compliance with the MAC T metals standards is through perfonnance testing and the 

development of OPLs. This is supported both by the stringent and detailed CP T MAC T 

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, i n an 

April 16,2008 memorandum directed to Veolia, which was approved by Section Chief William 

MacDowell, Region 5 stated the folbwing regarding the use of CEMS for MAC T metals: 

Although continuous emission monitors (CEM) for dioxin/furan, mercury, PM , 

SVM/LVM , and HC1/C12 do exist, the HW C MAC T does not require them. 

EPA has not promulgated a performance specification for HC1/C12 CEMS. A 

D RE CE M is technically possible, but the case engineer does not know of any 

facihty that uses one. Until EPA requires a CE M 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 CP T 

operating data on the same incinerator, under known test operating 

conditions. 

Memorandum from Charles Hall, Environmental Engineer, USEPA Region 5, to Veoha, 

through William MacDowell, Chief of MN/O H Air Enforcement and Comphance Assurance 

Section, USEPA Region 5,11 (April 16, 2008), attached as Exhibit N (footnote omitted) 

(emphasis added). As discussed above, and i n accordance with the agreement reached with 

USEPA, Veoha conducted performance testing i n August and September of 2008 and used the 

results from that testing to develop OPLs. without extrapolation, that Veoha is currently 

operating under in full comphance with the MAC T metals standards. See Veolia ES Technical 

Solutions, L.L.C. , Document of Compliance pOC) : Nat'l Emission Standards for Hazardous 

A ir Pollutants from Hazardous Waste Combustors: 40 C.F.R. Part 63, Subpart EEE, Oct. 14, 

2008, attached at Exhibit K 

-12 -
However, in a departure from this accepted and technologically-proven approach, USEPA is 

now demanding that Veoha install mercury CEMS at the Sauget Facihty that would certainly 

produce flawed data that Veolia cannot use to demonstrate comphance with the MAC T metals 

standards and which Veolia cannot certify as "true and complete" as required by these 

Infonnation Requests. Moreover, such flawed data would undoubtedly mislead USEPA and the 

pubhc regarding Veolia's mercury emissions. 

Thus, Veoha believes that Instruction 61 and these Information Requests as a whole are 

arbitrary, capricious and lack a rationale basis because they are 1) technically flawed, 2) 

contradictory, 3) incomplete, 4) not within the limits of achievability given the feasible reach of 

current technology, and 5) are contrary to the accepted and technologically-proven methods for 

demonstrating MAC T metals compliance set forth by 40 C.F.R. Part 63, Subpart EEE and 

previously set forth by USEPA Region 5. 

Instruction B2 states as follows: 

2. The CEMS referenced in Paragraph 1, above, must be installed and operated in 

accordance with applicable regulations (including but not limited to the General 

Provisions of 40 C.F.R Part 63, Subpart A 40 C.P.R. § 63.8,40 C.F.R. Part 60, 

Appendix B and 40 C.F.R. Part 60, Appendix F). 

Response / Information Provided: Based on Veolia's findings, there is not an accurate, 

reliable, and available mercuiy CEMS for use at the Sauget Facihty because there is no rehable 

calibration technology for mercury CEMS and no such teclmology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. 

Moreover, Veolia believes that the inherent inaccuracy and unreliability of the CEMS 

technology currently available make it unlikely that any such system could be operated i n 

comphance with all aspects of 40 C.F.R. Part 63 and 40 C.F.R. Part 60. See also Veolia's 

Response to Instruction B1. 

In addition, Instruction B2 is an unreasonable request because the regulations i n 40 C.F.R. Part 

63, Subpart A or (redundantly) i n 40 C.F.R. § 63.8 are not apphcable. Specifically, § 63.8(a)(2) 

states that the requirements of this part apply upon promulgation of performance specifications 

for CEMS as specified i n the relevant standard or otherwise by the Adrninistrator. However, 40 

C.F.R Part 60 Appendix B does not contain an apphcable Performance Specification for a 

mercury CEMS installed on a hazardous waste mcinerator. 1 1 

40 C.F.R. Part 60 Appendix F was developed for S0 2 and NO x CEM S that were required 

equipment for direct compliance monitormg at electric utilities and other Part 60 monitoring 

1 1

 The regulations do contain Perfonnance Specification-12A (PS12-A); however, this performance 

specification was designed for and applies to mercuiy CEMS installed on fossil fuel-fired boilers. See 40 

C.F.R. Part 60, Appendix B. FS-12A is inapplicable to a 40 CFR Part 63 Subpart EEE Source having an 

mercuiy emission standard of 130 ^g/dscm corrected to 7% oxygen. 

-13 -
applications. This standard cannot be apphed to a mercury CEMS subject to the Draft 

Performance Specification 12 (or 12-A for that matter) because of the grossly incompatible span 

requirements and inapplicable Q A acceptance criteria. 

Appendix F, Procedure 1 contains the Quahty Assurance procedures for CEM S that are 

prescribed by regulation for direct compliance monitoring. These procedures apply to Part 60 

source categories such as Subpart Da, Subpart Db, Subpart Ea, etc. They do not apply to 

CEMS required by any other Part 60 regulations where monitors are not the direct comphance 

method, such as Subpart D . Further, the Q A procedures for CEMS contained i n Appendix F, 

Procedure 1 are specifically superseded by the Q A regulations for hazardous waste combustors 

contained i n 40 C.F.R. Part 63, Subpart EEE, Appendix § 1.1. See 40 C.F.R. Part 63, Subpart 

EEE, Appendix § 1.1 ("These requirements supersede those found in part 60, Appendix F, of 

this chapter ... Appendix F does not apply to hazardous waste burning devices."). Therefore, 

Veolia is unclear as to why Appendix F is referenced i n Instruction B2. 

One example of how Appendix F, Procedure 1 is not apphcable to a mercury CEMS installed on 

a hazardous waste incinerator is that Appendix F specifies cylinder gas audit levels for pollutant 

analyzers as 20-30% of span and 50-60% of span. These requirements i n conjunction with the 

Draft PS12 requirement to set the span as 20 times the emission limit produces absurd and 

unachievable audit levels for a mercury CEMS. Even if this problem was resolved by using a 

more reasonable span level (such as that contained i n PS.-12A), the specifications for the 

cylinder gas audit levels are inconsistent with the levels required for the cahbration error test i n 

the initial certification of the CEMS. 

Moreover, a major problem (certainly one that would require a manufacturer to think about 

"special design" for this apphcation) lies in the fact that contemporary CEM S manufacturers 

have gone to substantial lengths to ensure that the capabilities and designs of their elemental 

Hg head space calibrators are operated under specific conditions for 40 ue/dscm and lower 

concentration levels. Combinations of certain instrumental conditions consistent with design 

for particular spans have been manufactured (such as those required by previous regulations i n 

the electrical power generating sector). These design constramts are not modified easily, would 

likely be considered "Research" designs (thus uncertifiable) by the manufacturer, and cannot 

accommodate any of cahbration levels demanded by the USEPA i n these Infonnation Requests. 

Thus, in sum, Veoha believes that Instruction B2 is arbitrary, capricious, and lacks a rationale 

basis because 1) the regulatory citations provided by USEPA do not contain a Perfonnance 

Specification that can be applied to a commercial hazardous waste incinerator; 2) the required 

span of any such mercury monitoring system would be grossly incompatible with the Q A 

procedures contained i n 40 C.F.R. Part 60, Appendix F; and 3) the commercially available 

mercury CEMS do not provide a reliable cahbration technology above 40 gg/dscm. 

-14 -
Instruction B3 states as follows: 

3. The CEMS must be installed and commence operation on each ofthe 

incinerators, as referenced in Paragraph 1, above, within 30 days after Veolia's 

receipt of this Request for Information. 

Response / Infonnation Provided: Based on Veolia's findings, there is not an accurate, 

reliable, and available mercuiy CEM S for use at the Sauget Facihty because there is no rehable 

cahbration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Infonnation Requests. See Veoha's Response to Instruction B l and B2. Even if an 

accurate and reliable CEMS for mercury became available immediately, Veoha has determined 

that such a system could not be feasibly installed and become operational within 30 days. 

Thus, Veolia beheves that the 30-day period provided by USEPA i n these Information Requests 

for design, selection, purchase, manufacture, and installation of three mercury CEMSs, and 

acquisition and configuration of a Data Acquisition System (DAS) is unreasonable, 

unachievable, and contrary to good practice. It also is contrary to USEPA's own guidance, 1 1 

and inconsistent with the time period allowed for implementing CEM S programs i n numerous 

other regulations. 

The 30 day time period is not achievable for any single CEMS apphcation, much less three 

separate mercury monitoring systems. Veolia's inquiries to mercury CEMS manufacturers and 

suppliers indicate that a minimum of 16-20 weeks (after contract negotiations have been 

completed and a final agreement has been reached)13 is needed to install a completed CEMS i n 

an appropriate envhonmental shelter. In addition, this 16-20 week timeframe would be 

apphcable to only those facihties that have a clearly defined scope and proper technical 

specifications available to them—which is not the case here, as the Information Requests have 

left Veoha without a properly defined scope or achievable technical specifications. 

Moreover, USEPA's own guidance materials set forth a detailed 10 step process for 

implementing a CEMS program that can take months to complete. See Center for 

Environmental Research Information, USEPA, EPA Handbook: Continuous Emission 

Monitoring Systems for Non-Criteria Pollutants, Ch . 6, 80-103; and Appx. F, 149-157 (April 

1997), attached as Exhibit O. This guidance explains that the process must be performed very 

carefully and deliberately and cautions the user to perform the entire process to achieve 

n

 Center for Environmental Research Infonnation, USEPA, EPA Handbook: Continuous Emission 

Monitonng Systems for Non-Criteria Pollutants, EPA/625/R-97/001 (April 1997), included in Exhibit O. 

1 3

 Contract negotiations depend upon many technical factors that must be discussed between the 

supplier and the facility. These factors include analyzer span, calibration requirements, calibration 

materials, data averaging time, monitor certification requirements, monitor data availabihty 

requirements, data substitution requirements, data system requirements, apphcable certification test 

method, and others. These factors have not been adequately addressed by the Information Requests; 

therefore, Veolia believes it is not in a position to even begin the planning process regarding CEMS 

installation. 

-15 -
success. One reference cited by USEPA states that the typical process requires 40 weeks. Id. at 

80 (citing J.G. Passmore and S.L. Brodmerkle, A Systematic Approach to tbe Selection and 

Installation of Continuous Emissions Monitoring Systems (1991) (paper presented at PowerGen 1997 Conference i n Tampa, Florida)). 

Further, recent experience by electric utilities i n attempting to implement mercuiy CEMS 

programs has clearly demonstrated that months—not weeks—and perhaps years are required to 

properly install and start-up the mercury CEMS technology. In addition, the time to install 

such a program at Veoha would undoubtedly be longer, as the electrical utility apphcation is 

relatively well understood i n comparison to the untested apphcation of mercury CEMS 

technology to a commercial hazardous waste incinerator. 

Wit h regard to continuously operating and maintaining three mercury CEMS, a substantial 

period of time will be required for Veolia personnel to become familiar with dilution extractive 

CEMS , the complex Hg sampling systems with inertial filters, and the Hg converters and other 

devices specific to mercury monitoring. Additionally, Veoha personnel will be required to learn 

the elemental Hg calibrators and humidification systems, the specifics of the H g analyzers 

mcmding software, and also, the HgCLZ cahbration equipment which is much different than 

that used for elemental cahbration. Needless to say, a significant amount of training and 

outside support will be necessary. Therefore, based on these personnel concerns, conducting 

any mercury CEMS certification tests prior to a thorough equipment shakedown and sitespecific evaluation and training of Veolia personnel will be a pointless waste of resources and 

time. 

Finally, history has shown, through numerous regulatory programs under Parts 60, 63 and 75, 

that the complex nature of CEMS can demand up to 9 months to design, select, purchase, 

manufacture, install and conduct performance testing, and this is for die most mature 

technologies that monitor the most "familiar" compounds—i.e., traditional criteria pollutants 

such as S0 2 and NO r Muc h more time would be necessary to perform these actions at Veoha 

for installation of a mercury CEMS. 

Thus, i n sum, Veolia beheves that Instruction B3 is arbitrary, capricious, and lacks a rationale 

basis because 1) it is inconsistent with USEPA guidance regarding the implementation of 

CEM S programs; 2) implementing three CEMSs i n the thirty day period provided by USEPA is 

unreasonable, unachievable, and contrary to good practice,- 3) history and USEPA experience 

has shown that proper installation and operation of CEM S wil l take months if not years; and 4) 

thirty days is i n an insufficient period of time for to train Veolia on the safe use and operation 

of the CEMS technology. 

-16 -
Instruction B4 states as foUows: 

4. The CEMS referenced in Paragraph 1, above, must be installed, evaluated and 

certified in accordance with the proposed Performance Specification 12 for total 

mercuiy continuous monitoring systems vrithin 30 days after commencing 

operation. Veoha must continuously operate the CEMS and collect mercury 

emission data starting from the date of installation as referenced in Paragraph 3, 

above. 

Response / Infonnation Provided: Based on Veolia's findings, there is not an accurate, 

rehable, and available mercury CEMS for use at the Sauget facihty because there is no reliable 

cahbration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. See also Veolia's Response to Instruction Bl , B2, and B3. 

Furthermore, Instruction B4 lacks a credible basis. USEPA has never officially promulgated 

Draft Performance Specification 12 and has never subjected the specification to notice and 

comment rulemaking procedures. Draft Performance Specification 12 was proposed i n 1997, 

and as such, is completely outdated with respect to rapidly evolving mercury CEMS technology 

and is woefully inadequate as compared to more contemporary monitoring requirements such 

as those in the vacated CAM R Part 75 Appendix A and Appendix B (last updated i n January of 

2008). 

Draft Performance Specification 12 contains numerous technical errors (as well as careless 

typographical errors duphcated in other "draft" performance specifications) and is inappropriate 

for mercury monitoring applications. As an initial matter, Draft PS12 contains a requirement 

to measure both vapor and particulate bound mercury even though particle bound mercury 

measurement is not performed by contemporary mercury CEMS . Some additional Draft PS 12 

deficiencies are highlighted below. (A copy of Draft Performance Specification 12 is attached as 

Exhibit P.) 

• The procedure outlined i n Draft PS12 for conducting interference tests is nearly 

impossible to complete and fraught with potential errors; such defects are evidenced by 

USEPA's abandonment of the Draft PS 12 interference test procedures i n subsequent 

performance specifications. 

• Draft PS 12 contains a requirement i n Section 2.4 that the CEM S span value be "twenty 

times'' the emission level (a level of 2600 jug/dscm for the Veoha apphcation), which 

would render essentially all measurement data to a level less than 5% of the 

measurement range and would create unachievable drift and cahbration error 

specifications. 

• In Section 4.8, Draft PS12 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. 

-17 -
• Draft PS 12 requires a source to perform elemental mercury calibration tests for initial 

certifications at levels 300% greater than the highest NIST elemental mercury 

measurement. 

• Draft PS 12 mandates the use of NIST traceable standards for oxidized mercury which 

do not exist at any concentration level. 

• Section 6.0 of Draft PS12 provides that the cahbration of the CEMS can be achieved by 

using "standard solutions, filters, etc. that challenge the pollutant analyzer part of the 

CEMS ... but which do not challenge the entire CEMS, including the samphng 

interface." However, such methods are not NIST traceable and do not provide 

assurances of proper calibration and performance of a dilution extractive CEMS (which 

are the only viable mercury CEMS at this time). 

• Section 7.1 of Draft PS12 provides that relative accuracy tests be performed "in such a 

way that they will yield results representative of emissions from the source." The 

Section also requires that the relative accuracy tests provide "[a] measure of relative 

accuracy at a single level that is detectable by both the CEM S and [the Reference 

Method1 4 ]." However, these requirements are impractical because they are 1) beyond 

the control of the source operator who cannot necessarily predict or control emission 

levels or spikes and other transients,- 2] may be mutually exclusive; and 3) may not be 

satisfied by the CEMS due to varying emission concentrations or other factors. 

Furthermore, "detectable" is insufhcient; emission concentrations should be several 

times the detection limit to be reliably quantified by either the CEMS or the Reference 

Method. 

• The commercially available mercury CEMS provide results on a wet basis. However, 

Section 11 of Draft PS 12 requires a source to report emissions i n units of/ig/m3 dry 

basis, corrected to 20°C, and 7% 02 , without any mention of the acceptable procedures 

for converting those measurements to wet-basis mercury concentration measurements 

and without excluding the accuracy of the moisture corrections from the relative 

accuracy performance evaluation of the CEMS. 

Based on Veolia's mquiry of experts familiar with the CEMS technology, there are no mercury 

CEMS installed on any U.S. or European facihty that can be demonstrated to comply with 

Draft Performance Specification 12. 

Finally, Veoha is aware of the promulgated Performance Specification 12-A (effective date of 

July 18,2005) for fossil-fuel fired boilers. See 40 C.F.R. Part 60, Appx. B. However, this 

Performance Specification also does not apply to the Veolia apphcation for many of the reasons 

hsted above. For example, PS12A has a span requirement of two times the 130 ^g/dscm 

1 4

 Section 7.4 of Draft Performance Specification 12 provides that, unless otherwise specified, Method 

3B, or its approved alternative, is the reference method for diluent (OJ concentration; and the manual 

method for multi-metals in 40 C.F.R. part 266, Appendix IX, Section 3.1, or its approved alternative is 

the reference method for mercury. However, as noted below in Veolia's Response to Instruction Bil, 40 

C.F.R. part 266, Appendix DC, Section 3.1, does not exist in the Federal Regulations. 

-18 -
concentration standard Veolia is required to meet under the 40 C.F.R. Part 63, Subpart EEE. 

It also contains a requirement that dictates that emissions sources must use the NIST 

traceable cahbration standards. However, Veolia is aware of no NIST standard that would 

apply to the span requirements of either Draft Performance Specification 12 or Performance 

Specification 12A. 

Thus, i n sum, Veolia beheves that Instruction B4 is arbitrary, capricious, and lacks a rationale 

basis because there are no mercury CEMS that can meet the requirements of either Draft 

Performance Specification 12 or Performance Specification 12A. 

Instruction B5 states as follows: 

5. Veolia must submit tbe electronic CEMS data collected in accordance with 

Paragraph 4, above, on a monthly basis. This submission must continue for one 

year, beginning immediately after the initial operation ofthe CEMS, as required 

by Paragraph 3, above. 

Response / Information Provided: Based on Veolia's findings, there is not an accurate, 

reliable, and available mercuiy CEMS for use at the Sauget facihty because there is no rehable 

calibration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. See also Veoha's Response to Instruction Bl , B2, B3, and B4. 

Veolia beheves that it is impossible to collect data i n accordance with Instruction B4 using 

Performance Specification 12 for the reasons stated in Veoha's Response to Instruction B4. 

Veolia also beheves it is impossible to conduct the ongoing quahty assurance as required by 

Paragraph 3, Appendix F, Procedure 1 for the quarterly cylinder gas audits because the audit 

level specifications contained i n Appendix F are unachievable and, as discussed above, NIST 

traceable cahbration standards are not available. 

Further, USEPA has failed to clarify what the reference "electronic CEMS data" means i n 

Instruction B5 which is ambiguous and undefined. USEPA has also failed to define what 

particular averaging period would be used in any such electronic submissions. 

Veoha also questions the one-year time period and requests further explanation as to how the 

Agency determined this allotment of time. Moreover, USEPA has failed to define what 

responsibihties, if any, Veoha will have after the expiration of the one year period and what will 

become of the monitoring equipment after the Company has expended i n excess of $ 1 million 

to $2 milhon to purchase, install, and attempt certification. 

Thus, i n sum, Veolia beheves that Instruction B5 is arbitrary, capricious, and lacks a rationale 

basis because 1] it is impossible to collect data i n accordance with Performance Specification 

12; 2) it is impossible to conduct the ongoing quahty assurance as required by Paragraph 3, 

Appendix F, Procedure 1; and 3) USEPA has failed to define what responsibihties, if any, Veolia 

will have foUowing the expiration of the one year period provided i n Instruction B5, after Veolia 

-19 -
has expended in excess of $1 million to $2 million to purchase, install, and attempt 

certification. 

Instruction B6 states as follows: 

6. Veolia must submit tbe electronic feed rate data for Incinerators 2, 3, and 4 for 

mercury, low volatile metals (LVM), semi-volatile metals (SVM), and chlorine 

commencing immediately after the initial operation ofthe CEMS, as required by 

Paragraph 3, above, on a monthly basis. 

Response / Information Provided: Based on Veolia's findings, there is not an accurate, 

rehable, and available mercuiy CEM S for use at the Sauget facihty because there is no rehable 

cahbration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. See also Veolia's Response to Instruction Bl , B2, B3, B4, and 

B5. 

As discussed above, the MAC T metals compliance testing that Veolia performed i n August and 

September of 2008 was completed pursuant to USEPA's February, June, and September 2008 

revised Information Requests and the agreement reached with USEPA i n Ma y of 2008. See 

Feb. 2008 Infonnation Requests, Appx B HI, June 2008 Information Requests, App x B H2; 

Sept. 2008 Information Requests, Appx B H2. Al l three of Veolia's incineration units 

demonstrated comphance with the MAC T standards during these tests. Veolia submitted a 

N O C to USEPA and IEPA on October 10, 2008, along with the results of perfonnance tests, 

verifying Veoha's comphance with the MAC T standards and setting forth the electronic feed 

rate data for Incinerators 2,3, and 4 for mercury, LVMs, and SVMs i n October of 2008. See 

Letter from Doug Harris, General Manager, Veolia Sauget Facihty, to USEPA Region 5 Air 

Enforcement and Compliance Assurance Branch, Oct. 10,2008 (attaching Notification of 

Compliance, the Performance Test Reports for Incinerators 2,3, and 4, and Veolia's 

apphcation for significant modification of its Part 71 Title V Permit), attached as Exhibit J. 

During the August and September 2008 Metals Performance Tests, metals were spiked into the 

incinerator at a known feedrate and the stack concentrations and emissions were collected and 

recorded using USEPA Methods 1, 2, 3, 4 and 29. See 40 C.F.R. Part 60, Appx. A . During the 

tests, feedrates were correlated with stack testing results to affirm that the metals data 

submitted i n the 2005 NO C (those referred to as "in heu of) were vahd. Thus, data from the 

2008 Metals Performance Tests confirmed that the OPLs previously submitted i n 2005 NO C 

were accurate. 

Veoha beheves that the results of its Metals Performance Tests are vahd because all Q A criteria 

of the methods were met, the field testing or laboratory analyses were conducted properly, and 

the field testing was witnessed by USEPA representatives. Further, USEPA has not brought to 

Veoha's attention any findings of noncompliance or any reason to believe that Veoha's results 

are invalid. 

Thus, i n sum, Veolia beheves that Instruction B6 is arbitrary,, capricious, and lacks a rationale 

basis because 1) Veolia conducted the 2008 metals performance testmg i n good faith and 

-20 -
pursuant to an agreement reached with USEPA; 2) the certified results of the 2008 metals 

performance testing showed compliance with MAC T standards; and 3} such results confirm 

Veoha's prior submissions regarding MAC T metals compliance. 

Instruction B7 states as follows: 

7. Veolia mast submit a summary of the mercury CEMs data for each month 

including the date and time the mercury emissions were above the standard of 

130. ug/dscm corrected to 7% oxygen. Veolia must also provide the feedrate for 

mercury, SVM, LVM, and chlorine at the time the mercury emissions were above 

130 ug/dscm corrected to 7% oxygen. Veolia must submit this information and 

other required mformation in accordance with 

40 C.F.R. § 63.10. 

Response / Infonnation Provided: Based on Veolia's findings, there is not an accurate, 

reliable, and available mercury CEM S for use at the Sauget facihty because there is no reliable 

calibration technology for mercury CEM S and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. See also Veolia's Response to Instruction B l through B6. 

Moreover, Instruction B7 lacks any reference to averaging period for data reduction and 

reporting. A CEMS attempting compliance with any emission standard must include both a 

numerical limit and an associated averaging period. 

Finally, the commercially available CEM S that USEPA is forcing Veolia to consider under these 

Information Requests provides wet basis measurements; however, under 40 C.F.R. Part 63, 

Subpart EEE, compliance determinations are based on dry. basis measurements. Thus, 

Instruction B7 is vague and unclear because USEPA has not provided any infonnation as to 

how this conversion would be made.. 

Thus, i n sum, Veolia beheves that Instruction B7 is arbitrary, capricious, and lacks a rationale 

basis because 1) it lacks any reference to an averaging period for data reduction and reporting 

and 2} it does not provide any infonnation concerning the necessary conversion of wet basis 

measurements to the dry basis measurements required by the MAC T standard. 

Instruction B8 states as follows: 

8. Veolia must analyze all waste in accordance with Appendix C. Veolia must 

submit all waste analysis data for mercury, LVM, SVM, and chlorine on a 

monthly basis in an Xcel compatible spreadsheet. All original waste analysis 

data must be kept onsite at the facility. 

Response / Infonnation Provided: Veolia objects to this Instruction/Information Request on 

the grounds that it is overly broad, onerous, burdensome, and lacks any regulatory or safety 

basis. Moreover, many if not all of the issues contained in Appendix C are addressed, or 

should be addressed, i n the RCR A Part B permit process that Veolia has been involved in since 

-21 -
1997. See Veolia's Response to Appendix C for a summary of Veolia's RCR A Part B Process 

Regarding the Sauget Facility. 

Further, the procedures required by Appendix C are not consistent with the requirements for 

mercury analysis that are included i n the RCR A Part B Permits for other hazardous waste 

incinerators i n USEPA Region 5. For example, the RCR A Part B Permits issued to HeritageWTI, Inc. and Ross Environmental Services, Inc. merely state that the facihties are to follow 

the procedures detailed in their Waste Analysis Plan (WAP). The requirements for mercury 

analysis found in Appendix C are far more onerous than the procedures outlined in WAPs for 

either Heritage-WTI or Ross. Thus, Veoha beheves that it is being unfairly singled out for 

more burdensome regulation than its direct competitors and that USEPA does not have a 

rational basis for treating Veolia differently under the law. 

In addition, as discussed fully in Veoha's response to Appendix C below, Veoha currently has 

protocols in place to identify and analyze incoming wastes that may contain mercury. See 

Veolia's Response to Appendix C. 

Instruction B9 states as follows: 

9. Veolia must submit the report and CEMS data referenced in Paragraphs 5 

through 8, above, to: 

Attn: Compliance Tracker, AE-17J 

At Enforcement and Compliance Assurance Branch 

U.S. Environmental Protection Agency 

Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604 

Response / Infonnation Provided: See Veolia's Responses to Instructions B l through B8. 

Instructions BIO &)B11 state as follows: 

CEM S Performance and Equipment Evaluation: 

10. Veolia must evaluate the CEMS performance by conducting calibration and zero 

drift tests, relative accuracy tests, calibration error tests, and interference 

response tests in accordance with 40 C.P.R. Part 60, Appendix B and proposed 

Performance Specification 12. 

11. Veoha may use the following reference methods as part of the monitor 

evaluation testing: 

A. EPA Method 2,2A, 2B, 2C, or 2D for velocity and volumetric flow rates; 

B. EPA Method 3 or 3A for gas analysis; 

-22-
C. . EPA Method 4 for stack gas moisture; and 

D. EPA Method 29 or the manual method for multi-metals in 40 C.F.R. Part 

266, Appendix DC, Section 3.1 for mercury from all incinerators. 

Response / Infonnation Provided: Based on Veolia's findings, there is not an accurate, 

rehable, and available mercuiy CEMS for use at the Sauget facihty because there is no reliable 

cahbration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level required by Instruction B7 

of these Information Requests. See also Veolia's Response to Instruction B l through B7. 

Instructions BIO and B l 1 are a reiteration (with additional detail) of the same requirement in 

Instruction B4 since the recited tests are the performance test requirements of Draft PS 12. Al l 

of Veolia's previous responses as to Instruction B4 are apphcable here, but the following is 

provided as a further example of the deficiencies associated with Draft PS12. 

Under Draft PS 12, high level cahbration must be performed at 80%-120% of the standard 

which would require NIST traceable standards at levels between 104 ug/m3 and 156 ug/m3. 

M i d level cahbration must be performed at 40%-60% of the standard which would require 

NIST traceable standards at levels between 52 ug/m3 and 78 ug/m3. As noted above, NIST 

traceable standards are not available at these levels. 

Veolia beheves the Agency cited 40 C.F.R. Part 60 Appendix B i n error because there are no 

separate requirements i n 40 C.F.R. Part 60 Appendix B regarding the draft standards of Draft 

PS 12 or any of the directives presented by Instructions B10 or B l 1. Veoha requests 

clarification from the Agency regarding this citation. 

Likewise, although Veolia has located the references to "40 CFR Part 266, Appendix LX, Section 

3.1" i n Section 7.4 of Draft Performance Specification 12, this citation does not exist i n the 

Federal Regulations. Veolia objects to USEPA's attempt to force Veolia to comply with a 

regulatory standard that does not exist and again requests clarification from the Agency 

regarding this citation. 

The calibration drift tests and cahbration error tests i n the mercury Perfonnance Specifications 

require gaseous cahbration standards at levels that NIST has not ever measured and for which 

traceable cahbration materials do not exist for elemental mercury. These tests also requhe use 

of NIST traceable oxidized Hg calibration standards that do not exist. 

Further, Part 60 regulations almost always require that CEMS relative accuracy tests (or 

relative accuracy test audits, Le., RATAs) be performed i n units of the standard. The Draft 

PS12 definition of "2.5 Relative Accuracy" specifically mentions comparisons i n units of 

"pollutant concentration" and Section 11 requires reporting emissions i n units of ng/m.3 dry 

basis, corrected to 20°C, and 7% 0 2. Therefore, Veolia is unclear why there is mention of 

various flow rate measurement methods i n Instruction 11 A . 

-23 -
Typically, test methods have either a numerical identifier or another means to identify them 

for the purpose of theh use; however, the Agency has failed to set forth such an identifier for 

Veoha to use i n this case. 

Thus, i n sum, Veolia beheves that Instructions BIO and B l 1 are arbitrary, capricious, and lack 

a rationale basis because 1) there are no mercury CEM S that can meet the requhements of 

either Draft Performance Specification 12 or Performance Specification 12A; 2) the 

commercially available mercury CEMS do not provide a reliable cahbration technology; 3) there 

is no "40 CFR Part 266, Appendix LX, Section 3.1" included in the Federal Regulations; and 4) 

Instruction B l 1 contains references to volumetric flowrates which are not consistent with the 

measures used in 40 C.F.R. Part 63, Subpart EEE. 

Instructions B12 states as follows: 

Performance Specifications to be met; 

12. The Mercury CEMS must meet the performance specifications at 40 C.F.R. Part 

60, Appendix Band proposed Performance Specification 12, Section 4. 

Response / Information Provided: Based on Veolia's findings, there is not an accurate, 

rehable, and available mercury CEMS for use at the Sauget facihty because there is no reliable 

calibration technology for mercury CEMS and no such technology has been apphed to a 

commercial hazardous waste incinerator at the concentration level requhed by Instruction B7 

of these Information Requests. See also Veoha's Response to Instruction B l through B7, BIO 

&.B11. 

As discussed above, there are no separate requhements in 40 C.F.R. Part 60 Appendix B 

regarding the draft standards of Draft PS12 or any of the Instructions included i n Appendix B of 

these Information Requests. 

Moreover, as reiterated several times i n Veoha's Responses to Instructions B l through B7, BIO 

and B l 1, commercially available mercury CEM S do not provide a rehable cahbration 

technology based on any known performance standards, mcluding both Draft PS12 and PS12A. 

IV. Veolia's Responses to Appendix C 

Rnmmnrv of Veolia's RCRA Part B Process Regarding fhe Sauxet Facility 

As an initial matter, Veolia has previously submitted formal comments to many if not all of 

the issues contained in Appendix C during the RCR A Part B permit process that Veolia has 

been undergoing since 1997. Specifically, Veoha submitted comments on the most recent draft 

RCR A Part B permit on September 12, 2008. As detailed below, Veoha has diligently been 

seeking a renewal to its RCR A Part B Permit since November of 1997—a period of over 11 

years. Therefore, Veolia beheves that USEPA's inclusion of Appendix C i n these Information 

Requests is an inappropriate attempt to circumvent the RCR A Part B Permit process and 

therefore deprive Veolia of its due process rights provided by the permitting process. 

-24 -
A brief summary of Veolia's RCR A Part B Permit process regarding the Sauget Facihty is 

provided below. 

On November 6,1997, Veolia submitted an application to IEPA to renew its existing RCRA 

Part B Permit. EEPA deemed Veolia's apphcation adrrunistrativety complete on April 17, 1998. 

Veolia's RCR A Part B Permit expired on May 5,1998. Approximately five years later, IEPA 

finally issued a draft RCR A Part B Permit for pubhc comment. In 2002/2003, USEPA 

conducted a RCRA Risk Screen as part of its review of the draft permit. Upon completion of 

the Risk Screen, USEPA advised Veolia that Veolia's emissions did not pose any risks. 

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

commenter suggested that mercury emissions from Veoha may pose a risk to the fisheries i n 

area lakes that residents allegedly use as a food source. 1 5 After the pubhc meeting, USEPA 

undertook a Risk Assessment focusing on Veolia's metals emissions. The USEPA Risk 

Assessment ultimately recommended that Veolia be subjected to stricter emissions hmitations 

for mercury, cadmium and chronuum; however, the Agency only reached this conclusion after 

making many unsupported assumptions, including, among others, that Veoha operated with 

maximum metals emissions 24-hours-a-day, 7-days-a-week, which it does not, and 

determining, based on little evidence, that subsistence fishing is conducted at lakes i n Frank 

Holten State Park (a state park and golf course located approximately three miles to the West of 

the Sauget Facihty). 

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

In 2005, i n order to address concerns regarding the recommendations included i n USEPA's 

Risk Assessment, Veoha contracted with Franklin Engineering Group (Frankhn Engineering) to 

perform a second, independent, Risk Assessment regarding metals emissions. Franklin 

Engineering utilized USEPA's Human Health Risk Assessment Protocol for Hazardous Waste 

Combustion Facihties 1 6 to determine that Veoha's low level of metals emissions did not pose a 

risk to the water bodies i n Frank Holten State Park. In November of 2005, Veoha submitted 

the results of this Risk Assessment to the USEPA. USEPA indicated to Veolia that it would 

review and comment on the results of the Risk Assessment conducted by Frankhn Engineering 

within four to six weeks,- however, as of the date of these responses—over three years later— 

USEPA has not responded to Veolia's submission. Finally, on July 24, 2008, over ten years 

after Veolia submitted its original apphcation for renewal of its RCR A Part B Permit, IEPA 

issued a second draft permit for pubhc comment, Veolia submitted its comments on the draft 

Permit on September 12,2008 and is currently awaiting further action by the agencies. 

1 5

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

IEPA Public Meeting on Draft CAPP and RCRA Permits for Onyx Environmental Services, Sauget, 

included Exhibit Y. 

u

 Franklin Engineering utilized the 1998 Peer Review Draft version of the HHRAP (EPA530-D-98-001) 

during the initial stages of the risk assessment and then finalized its evaluation using the Final HHRAP 

(EPA520-R-05-006), which USEPA published in September of 2005. 

-25 -
The Introductory Paragraph of Appendix B states as follows: 

Special Waste Analysis Procedures 

Veolia shall hnplement the following special waste analysis procedures for mercury, low 

volatile metals (LVM), semi-volatile metals (SVM), and chlorine: 

Response / Infonnation Provided: Veolia currently reviews all mcoming waste for the 

presence of mercury, lead, cadmium, chromium, beryllium, and arsenic pursuant to Veolia's 

Standard Division Practice (SDP) "Determination of Metals and As h Values" protocol. A copy 

of Veolia's SDP is attached as Exhibit Q. 

Veoha's review of mcoming wastes for the presence of mercury, LVMs, SVMs, and chlorine 

begins far in advance of the actual receipt of the material for incineration. Every generator that 

intends on submitting waste to Veoha must first complete a Wastestream Information Profile 

(Waste Profile). 1 7 See Example Wastestream Information Profile attached as Exhibit R. 

Generators are required by law to completely and accurately fill out the Waste Profile and 

specifically to provide waste codes, information on the physical characteristics of the waste, the 

percentage of halogens (e.g. chlorine) included i n the waste, a complete listing of the chemical 

constituents (chem comp) of the waste, and provide any analytic data, Material Safety Data 

Sheets (MSDSs), or additional information that the generator may have. Veolia employs two 

full time Approvals Coordinators, each with over 15 years of experience, to review each 

generator's Waste Profile. The Approvals Coordinators are vested with the power to approve 

acceptance of the waste, deny it, or seek additional information dhectly from the generator. 

The Coonhnators review the Waste Profiles for completeness, consistency with Veolia's 

permits, safety considerations for process employees, and for compliance with Veolia's metals 

pohcy as provided i n the SDP. Pursuant to SDP Section 7.1.2, the Approvals Coordinators will 

require analytic testing of wastes where the Coordinators have reason to suspect that a waste 

may contain MAC T metals and, Veolia has not received analytic data from a certified 

independent laboratory or does not have specific data or other information—e.g., a MSDS— 

from the generator that would allow Veolia to calculate the concentration of MAC T metals i n a 

waste. See Veolia's SDP attached at Exhibit Q. Veoha's Coordinators base these decisions on, 

among other things, the presence of federal waste codes that indicate the likely presence of 

MAC T metals, the chemical composition of the waste, and the process that generated the 

waste. For example, i n certain situations, Veoha Approvals Coordinators will look into 

whether a generator may use mercury i n its manufacturing process or have mercury at its 

facihty,- i n these instances, the Coordinators would then require analytic testing regardless of 

whether there was any indication of mercury on the Waste Profile. Moreover, the Coordinators 

review the Waste Profiles and any additional information provided by the generator for 

indications of the presence of mercury or other MAC T metals at any level. 

Veolia's Approvals Coordinators are conservative i n determining when to require analytic 

testing and consistently e n on the side of caution when dealing with any wastes that have the 

1 7

 Generators of packaged laboratory wastes provide inventory sheets that list similar information as 

required by the Wastestream Infonnation Profile form. 

-26 -
potential to contain mercury. This is the best practice for ensuring the safety of Veoha's 

employees and ensuring Veoha's compliance with the MAC T standards. Moreover, Veolia also 

has a pecuniary interest in fully investigating mcoming wastes for MAC T metals as Veolia 

imposes a significant surcharge on generators that ship material containing metals. 

If an Approvals Coordinator determines that a waste is not suspected of containing MAC T 

metals, and the waste meets all other requirements, it is approved for shipment to the Sauget 

Facihty. Conversely, if a waste is considered suspect, and the amount of MAC T metals present 

cannot be determined from information provided by the generator, or by additional clarification 

from the generator, the Coordinators will contact the generator and ask for a sample to be sent 

to the Veoha lab for analysis. The Approvals Coordinators then use the results of the 

laboratory analysis to determine whether to approve or deny the waste for incineration. 

After a waste is approved, the Approvals Coordinators generate a Laboratory Analysis Report 

(Lab Report) that dictates the following, among other things: 1) the type of samphng that must 

be performed on the waste when it reaches the facihty; 2) handling instructions for the waste; 1 8 

and; 3) the specific laboratory analyses that must be performed on the waste. See TWI 

Laboratory Analysis Report, attached as Exhibit S. 1' 

When a waste arrives at the Sauget Facihty, receiving personnel evaluate the waste as directed 

by Veoha's Sampling Report. See Veolia Samphng Report, attached as Exhibit T. The 

Sampling Report is generated based on the Approvals Coordinators' instructions on the Lab 

Report The Sampling Report and the Waste Profile directs the nature and type of sampling 

that must be completed pursuant to Section 5.1 of Veolia's WA P and the SDP regarding 

metals. See Waste Analysis Plan for Trade Waste Incineration, attached as Exhibit U . The 

receivmg personnel also fill out a Physical Description Worksheet See Veoha Physical 

Description Worksheet, attached as Exhibit V . This worksheet is used to verify the physical 

characteristics of the waste as delivered to the Facihty against the description i n the Waste 

Profile. 

Importantly, all waste for which a sample is required is sampled upon arrival at the Sauget 

Facihty. It is Veolia's goal to perform this initial sampling within one to two days of receiving 

the waste at the Sauget Facihty. 

After the receiving personnel take the required samples, the collections are sent to Veolia's 

laboratory for analysis. Al l waste is stored pursuant to Veoha's RCR A permit while the 

samples are analyzed. Once the laboratory has analyzed the samples, the results are included 

on the Lab Report. The Lab Manager (or designee) then evaluates the data and, if the data 

conforms to the information provided i n the Waste Profile, corifirms the approval of the waste 

for incineration. The laboratory results are also used to determine the feedrates for certain 

materials. 

1 8

 Other handling instructions come from the Process Hazard Analysis Engineer and are included in the 

Sampling Report, included in Exhibit T. 

1 9

 A similar form, a "Lab Pack Decision WIRR," is generated for packaged laboratory wastes. An example 

of a Lab Pack Decision WIRR is included in Exhibit Z. 

-27 -
However, Veolia ensures that all analytical results regarding MAC T metals testing are 

submitted to the Laboratory Manager (or designee), or to the Approvals Coordinators, for 

further evaluation. If the Laboratory Manager (or designee) and/or a Approvals Coordinator 

determines that the amount of MAC T metals found i n the material is acceptable and 

consistent with Waste Profile—or if the material is found not to contain MAC T metals—the 

Laboratory Manager (or designee) and/or a Approvals Coordinator will submit the data to 

Veolia's Process Planner. 2 0 The Process Planner then assigns processing instructions to the 

waste prior to its incineration. When mercury is present, the Process Planner will consult with 

Veolia's MAC T Implementation Manager, prior to assigning the processing instructions. 

If the Laboratory Manager determines that the MAC T metals analysis yielded a discrepancy i n 

the amount of metals disclosed by a generator on the Waste Profile, or obtained i n the 

preapproval analysis, Veoha will then contact the generator and attempt to resolve the 

discrepancy. After the discrepancy resolution process has reached its conclusion, if the waste is 

found to be acceptable, Veoha will not use any analytical results provided by the generator; 

rather, Veoha always uses its own analytical results to determine the acceptability and 

appropriate feedrates for material containing MAC T metals. 

Moreover, if a suspect material is analyzed and found to contain no mercury—or contains 

levels of mercury below the detection limit—Veolia always uses the detection limit as the basis 

for the feedrate. Thus, every time Veolia runs an analytical test for mercury on a material, that 

test generates a number for mercury—i.e., the detection limit—that "counts" for the purposes 

of Veolia's permit, even if that material contains no mercury whatsoever. 

In sum, Veolia does not incinerate waste containing MAC T metals or waste suspected of 

containing MAC T metals without first evaluating the waste to determine whether it is 

acceptable under apphcable regulations and Veoha's permits and, if such waste is acceptable, to 

determine the appropriate feedrate for that material. 

Thus, Veolia beheves that the provisions of Appendix C are arbitrary, capricious, and lack a 

rational basis because they are unnecessary i n light of the effective and tested safeguards and 

protocols Veoha already has i n place for reviewing and analyzing incoming wastes for the 

presence of MAC T metals. 

Analytic data for bulk loads is entered into the Waste Tracking System by laboratory personnel. 

-28 -
Special Waste Analysis Procedure (i) states as follows: 

(i) Waste acceptance procedure. Veolia shall conduct representative samphng of 

each shipment of waste for mercury, LVM, SVM, and chlorine within 24 hours of receipt 

and shall analyze such samples using appropriate quality assurance/quahty control 

procedures located in the Region 5 Quality Assurance Project Plan (QAPP) Guidance 

http:frwvm.epa.gov/reg5rcra/ca/qapp.htrnl and an appropriate test method that are 

consistent with SW-846. 

Response / Information Provided: Veolia objects to this Procedure/Iriformation Request on 

the grounds that it is overly broad, onerous, burdensome, and lacks any regulatory or safety 

basis. Specifically, Veoha is unsure as to whether this procedure requires Veolia to just sample 

waste shipments for mercury, LVMs, SVMs, and chlorine within 24 hours of receipt,- or sample 

aad analyze waste shipments for mercury, LVMs, SVMs, and chlorine within 24 hours of 

receipt,- or analyze waste shipments for mercury, LVMs, SVMs, and chlorine within 24 hours 

of conducting sampling. 

Samphng each waste shipment within 24 hours of arrival is both unnecessary and, i n many 

cases, impractical. 1 1 As discussed above, Veolia does not incinerate waste without first 

performing ajl necessary samphng and analyses; therefore, requiring that such samphng and 

analyses occur within 24 hours would not promote comphance with envhonmental 

regulations. 

In addition, Veoha beheves that the imposition of such a requirement could actually negatively 

impact environmental comphance and plant safety by arbitrarily placing an additional tracking 

and workload burden on facihty personnel. Veoha also beheves that a 24-hour samphng 

requirement would dangerously force receiving and analytical personnel to focus on meeting 

the arbitrary 24-hour deadline instead of focusing solely on the substantive portions of their 

work. 

Moreover, sampling shipments within 24 hours is not always practical. For example, if a 

shipment of waste arrives before or after its scheduled date due to transportation issues or 

weather-related problems, the facihty may not be able to unload, sample, and analyze the waste 

within 24 hours. Ih these instances, the trailer remains on-site i n the truck staging area and is 

inspected daily until the load can be unloaded and sampled. Once it is unloaded, the waste 

remains i n secure permitted storage and is not cleared for incineration until all sampling and 

analyses are complete. 

Further, i n wmtertime, drums of waste sometimes arrive completely frozen. It is both unsafe 

and impractical to require Veolia to perform samphng and analysis within 24 hours when this 

occurs. 

u

 Pursuant to 40 C.F.R. § 268, Veolia is allowed to store waste at its facility for up to one year prior to 

processing it. During this time waste is stored in a permitted storage building {permitted pursuant to 40 

C.F.R. § 264) that is inspected daily. The building also contains secondary containment and fire 

protection and alarm systems. 

-29 -
Finally, it is already Veolia's goal, when practical, to perform the necessary sampling per its 

W A P and SDP within one to two days of a waste arriving at the Sauget Facihty. 

Special Waste Analysis Procedure (h) states as follows: 

(ii) On-site waste procedure: Veolia shall sample and analyze any waste mat was 

accepted prior to the installation ofthe CEMS for mercury, LVM, SVM, and chlorine 

prior to incineration using appropriate quahty assurance/quality control procedures 

located in the Region 5 Quality Assurance Project Plan (QAPP) Guidance 

http.VAvww.epa.gov/reg5rcra/cWqcappJitrnl and an appropriate test method that are 

consistent with SW-846. 

Response / Information Provided: Veolia objects to this Procedure/Information Request on 

the grounds that it is overly broad, onerous, burdensome, and lacks any regulatory or safety 

basis. 

As discussed in detail above, Veoha's waste acceptance practice ensures that all waste currently 

awaiting incineration at the Sauget facihty has already been reviewed and analyzed for the 

presence of mercury, lead, cadmium, chromium, beryllium, and arsenic pursuant to Veoha's 

SDP regarding MAC T metals and WAP. See Veolia's Response to Special Waste Analysis 

Procedure (i). 

Special Waste Analysis Procedure (Hi) states as follows: 

(iii) Batch sampling procedure. If waste accepted for incineration is hatched, treated, 

blended, mixed, or otherwise altered from its shipped state, Veoha shaU sample and 

analyze such batched, treated, blended, mixed, or otherwise altered waste for mercury, 

LVM, SVM, and chlorine prior to incineration using appropriate quahty 

assurance/quaUty control procedures located in the Region 5 Quality Assurance Project 

Plan (QAPP) Gwdance http://www.epa.gov/reg5rcra/ca/qapp.htrnl and an appropriate 

test method that are consistent with SW-846. 

Response / Infonnation Provided: Veolia objects to this Procedure/Information Request on 

the grounds that it is overly broad, onerous, burdensome, and lacks any regulatory or safety 

basis. 

This Special Waste Analysis Procedure is duplicative to samphng activities Veolia aheady has 

i n place. See Section 7.3 of See Veoha's Standard Division Practice (SDP) ''Determination of 

Metals and Ash Values" protocol attached as Exhibit Q. If Veoha were to implement this 

Special Waste Analysis Procedure, waste received for processing as a decant or a consolidation 

would be analyzed no less than three times between the arrival of the waste at the facihty and 

the time it is incinerated. Veoha beheves it is unnecessary and imprecise to physically 

reanalyze waste after batching has been performed. Rather, Veolia beheves that the more 

accurate practice is to analyze the most concentrated waste (at receipt) and then 

mathematically calculate the presence of mercury (and other substances) as that concentrated 

waste is blended and/or added to other materials i n a tank or drum. This practice prevents the 

-30 -
erroneous results that sometime occur as a result of physically reanalyzing diluted samples 

from batches and blends. 

Special Waste Analysis Procedure (iv) states as follows: 

(iv) Exemptions to the special waste procedures. The foUowing wastes that Veoha 

determines do not contain mercury, LVM, SVM, and chlorine shall be exempt from the 

Special Waste Procedures set forth above: 

(1) Packaged chemicals from laboratories, hospitals, household clean sweeps, or 

manufacturing facihties, including scintillation vials packed in accordance with Small 

Quantity Chemical Guidelines (SQCG's). For packaged chemicals, Veolia shall obtain a 

packing list for each container from the generator specifying type and quantity of 

chemicals contained within; 

(2) Empty containers as definedm 35 IAC 721.107(b); 

(3) Pharmaceutical and commercial products or chemicals that are off-specification 

or outdated and are packaged in consumer quantities, are unused or banned, and are in 

their original packaging or are packaged as specified by Veoha; 

(4) Aemsol caw, lecture botdes or gas cyhnders; 

(5) Controlled substances regulated by the Federal Government; and 

(6) Explosive, poison inhalation hazard (PIH), or odiferous material, such as 

mercaptan, which present sampling, and analytical safety hazards. 

Veoha shall review any container labels, material safety data sheets, drum inventories, 

packing lists, and any other relevant data or information provided by the generator to 

determine whether mercury, LVM, SVM, or chlorine is present in any waste listed above 

that may be exempt. Only those wastes listed above that Veoha determines in writing 

contain no mercury, LVM, SVM, or chlorine based on such review are exempt from the 

Special Waste Procedures set forth above. Veoha's written determination of exemption 

from the Special Waste Procedures shall describe the information reviewed and the basis 

for the determination that no mercury, LVM, SVM and chlorine are present. Any waste 

listed above for which there is insufficient information to allow Veoha to make a 

reasonable determination that mercury, LVM, SVM and chlorine is not present is not be 

exempt. 

Response / Information Provided: Veoha beheves that this Special Waste Analysis Procedure 

is unnecessarily duplicative of the pre-acceptance review process that Veoha already has in 

place. 

As discussed above, Veolia employs two full time Approvals Coordinators, each with over 15 

years of experience, to review each generator's Waste Profile, which may mclude container 

labels, material safety data sheets, drum inventories, and packing hsts. The Approvals 

-31 -
Coordinators are vested with the power to approve acceptance of the waste, deny it, or seek 

additional information directly from the generator. 

The Coordinators review the Waste Profiles for completeness, consistency with Veolia's 

permits, safety considerations for process employees, and for compliance with Veoha's metals 

pohcy as provided i n the SDP. Pursuant to SDP Section 7.1.2, the Approvals Coordinators will 

require analytic testing of wastes where the Coordinators have reason to suspect that a waste 

may contain MAC T metals and Veolia has not received analytic data from a certified 

independent laboratory or does not have specific data or other information—e.g., a MSDS— 

from the generator that would allow Veoha to calculate the concentration of MAC T metals i n a 

waste. See Veoha's SDP attached at Exhibit Q. Veoha's Coordinators base these decisions on, 

among other things, the presence of federal waste codes that indicate the likely presence of 

MAC T metals, the chemical composition of the waste, and the process that generated the 

waste. 

Moreover, the Coordinators review the Waste Profiles and any additional information provided 

by the generator for indications of the presence of mercury or other MAC T metals at any level 

Veolia's Approvals Coordinators are conservative i n deteroiiningwhen to requhe analytic 

testing and consistently err on the side of caution when dealing with any wastes that have the 

potential to contain mercury. This is the best practice for ensuring the safety of Veoha's 

employees and ensuring Veolia's compliance with the MAC T standards. Moreover, Veoha also 

has a pecuniary interest i n fully investigating incoming wastes for MAC T metals as Veolia 

imposes a significant surcharge on generators that ship material containing metals. 

V. Conclusion 

A. Appendix B as applied to Veolia is Arbitrary. Capricious, and Lacks a Rational Basis 

1. Veolia is in compliance with the MACT standards 

Veolia is in full compliance with the MAC T standards for hazardous waste combustors as set 

forth i n 40 C.F.R. Part 63, Subpart EEE. USEPA personnel have acknowledged that the MAC T 

standards do not requhe CEMS and that, until USEPA requires the installation of CEMS, 

compliance with the MAC T standards must be demonstrated through performance testing. 

Veolia proved such compliance through extensive and effective, state-of-the-art Metals 

Perfonnance Testing conducted i n August and September of 2008 i n accordance with all 

methods and protocols estabhshed by USEPA. Veoha conducted such tests pursuant to the 

May 2008 agreement it reached with USEPA. Moreover, USEPA approved Veolia's Metals 

Performance Testing Plan and USERMEP A personnel observed all twelve test runs that Veolia 

conducted on incineration units 2,3, and 4. Veoha subsequently submitted all of the test 

reports from these metals tests along with an extensive NOC—that did not include 

extrapolated metal feedrates. 

In short, Veoha stands behind its 2008 Metals Performance Testmg. The data produced by 

these tests are accurate, complete, and demonstrate Veoha's comphance with the MAC T 

standards—^including those for LVMs, SVMs, and mercury. A t no time has USEPA, either 

during the actual metals performance tests, or in the four plus months since Veolia submitted 

-32 -
the test reports, ever made Veoha aware of any incidents of noncomphance or deviations from 

quahty assurance criteria regarding the tests. In fact, the progress made between USEPA 

Region 5 permitting personnel and Veoha regarding the development of feedrate extrapolations 

would suggest that USEPA has concluded that the results from the metals performance testing 

are vahd. Moreover, i n the formal written comments USEPA has provided to Veolia regarding 

the metals performance testing, the Agency sought only additional clarifying information and 

set forth no criticisms regarding the validity of the results derived from the testing. See Letter 

from Cheryl L. Newton, Acting Director, A h and Radiation Division, USEPA Region 5, to 

Doug Harris, General Manager Veolia's Sauget Facihty, Nov. 21,2008, attached as Exhibit W. 

USEPA directed Veolia to complete the Metals Performance Testing so that the Agency could 

use the data generated by the tests to formulate MAC T metals OPLs in Veoha's pending Title 

V Permit—a Title V Permit that was pending for 13 years. This situation required that the 

tests be performed at great expense i n an extremely short period of time—a time period that 

even Region 5's perrmtting personnel acknowledged was short. Yet, despite these conditions, 

Veolia achieved high quahty results and demonstrated comphance with the MAC T standards. 

2, There is no accurate, reliable, and available mercury CEMS for use at 

the Sauget Facility 

The CEM S mercury technology that these Information Requests requhe Veoha to install and 

operate is unreliable and will not produce accurate data. The commercially available mercury 

CEM S do not provide a rehable calibration technology that can meet the emissions limit 

included i n these Infonnation Requests. Moreover, USEPA has failed to provide clear 

instructions for the installation and operation of a mercury CEMS as the regulatory standards 

cited by USEPA throughout Appendix B do not contain performance specifications that are 

apphcable to hazardous waste combustors regulated under 40 C.F.R. Part 63, Subpart EEE. In 

addition, the CEMS mercury technology requhed by USEPA cannot meet the Quahty 

Assurance procedures contained i n 40 C.F.R. Part 60, Appendix F; and, it is unreasonable for 

USEPA to attempt to force Veolia to operate a mercury CEMS pursuant to an unpromulgated, 

archaic, and faulty performance specification—Draft PS 12. Veolia is aware of no mercury 

CEM S that can meet the requirements of either Draft PS12 or PS12-A. 

Importantly, the inherent inaccuracy and unrehabihty of mercury CEM S also make it 

impossible for Veoha to comply with the certification statement included with these 

Information Requests. Specifically, due to the inaccuracy of the mercury CEMS technology, 

Veolia's Plant Manager could not certify that data gathered with a CEMS and submitted to 

USEPA pursuant to Instructions 5,6, and 7 would be "true and complete" as requhed by these 

Information Requests. 

Further, the Information Requests are unclear and incomplete to the extent that Veolia would 

not be able to operate a mercury CEM S as contemplated by the USEPA. For example, the 

emissions limitation presented by these Information Requests lacks any reference to the 

apphcable averaging period and USEPA does not provide any information concerning how the 

data from the mercury CEMS (which produces wet basis measurements) can be converted to 

the dry basis measurements required by 40 C.F.R. Part 63, Subpart EEE. 

-33 -

V E S 001914 
Finally, the 30 day period that USEPA has imposed on Veoha to install and begin operation of 

the mercury CEMS technology is unreasonable, unachievable, and contrary to USEPA's own 

guidance materials for the installation of CEMS. 

In light of these facts, Veolia believes the requirements and provisions of Appendix B are 

arbitrary, capricious, and lack rational basis. 

3. USEPA is improperly using these Information Requests to modify 

Veoha's Title VPermit 

On September 12,2008—thirteen years after Veoha submitted its first apphcation—USEPA 

formally issued Veoha a Title V permit. Just under one month later, on October 10, 2008, 

Veoha, pursuant to USEPA's request, submitted an apphcation for significant modification to 

its Title V permit pursuant to 40 C.F.R. § 71.7(e). Under 40 C.F.R. § 71.7(e)(3)(h), 

applications for significant modification "shall meet ah requirements of this part, including 

those for applications, pubhc participation, review by affected States, and review by EPA.. . as 

they apply to permit issuance and permit renewal." 40 C.F.R. § 71.7(e)(3)(h). Moreover, 

Section 71.7(e)(3)(h) provides that USEPA shah design and implement a review process for 

applications for significant modification that will lead to a permit decision within 9 months. 

See id. Therefore, pursuant to the regulatory framework, Veolia's apphcation for significant 

modification is subject to pubhc notice and comment procedures and a process that anticipates 

months of review time. Importantly, under the significant modification regulations, Veolia 

may also avail itself of the adniinistrative review process, including an appeal of the Agency's 

decision regarding the apphcation for significant modification to the Environmental Appeals 

Board and eventually judicial review. See 40 C.F.R. §71.11 . 

Conversely, these Information Requests, issued under Section 114 of the Clean A h Act, do not 

provide for pubhc participation, do not contemplate months of review time, do not provide an 

avenue for direct adniinistrative review or judicial review, and potentially subject Veoha to 

significant monetary penalties for each day of noncomphance. 

Simply put, the underlying issues i n Veolia's application for significant modification of its Title 

V permit—i.e., operating hmits regaining the incineration of waste containing LVMs, SVMs, 

and mercury—are identical to the underlying issues addressed by these Information Requests 

and USEPA's demand that Veolia install mercury CEMS . 

Thus, Veoha is left to conclude that these Information Requests represent an impermissible 

attempt by USEPA to circumvent the significant modification process and arbitrarily and 

capriciously deprive Veolia of its due process rights provided by 40 C.F.R. § 71.7 and §71.11. 

B. Appendix C as apphed to Veoha is Arbitrary. Capricious, and Lacks a Rational Basis 

1. Veoha currently reviews and analyzes mcoming wastes forthe 

presence of MACT metals 

Veolia already reviews ah mcoming waste for the presence of LVMs, SVMs, mercury and 

chlorine. Veolia's pre-acceptance procedures, Standard Division Practice protocol, and Waste 

-34 -
Analysis Plan, combine to form a system that effectively determines the presence of MAC T 

metals i n all mcoming waste. 

Requiring Veoha to sample and/or analyze all mcoming waste within 24 hours of receipt is 

unnecessary, impractical, and shifts the focus away from the more important substantive 

analysis that Veoha personnel are requhed to perform when waste arrives at the facihty. In 

some cases, arbitrarily requiring samphng within 24-hours will pose a threat to human health 

and the environment as well as threaten the safety of facihty personnel. 

Moreover, forcing the physical testing of batches and blends is unnecessary and imprecise. 

Under Veolia's SDP protocol, such analysis is performed with much greater accuracy and safety 

through mathematical calculations. 

Thus, the provisions of Appendix C are arbitrary, capricious, and lack a rational basis because 

they are unnecessary i n light of the effective and tested safeguards and protocols Veoha already 

has i n place for reviewing and analyzing incoming wastes for the presence of MAC T metals. 

2. USEPA is using these Information Requests improperly circumvent Veolia's 

ongoing RCRA Part B permit process 

Veolia first apphed for renewal of its RCR A Part B permit i n November of 1997. To date, over 

11 years later, Veolia still has not received a new permit. However, the RCR A Part B permit 

process is continuing and Veolia submitted its comments to the most recent draft permit on 

September 12, 2008. The Special Waste Analysis Procedures included i n Appendix C of these 

Information Requests are the same as, or closely related to, issues that Veoha has previously 

commented on during the lengthy RCR A Part B permit process. Therefore, Veoha beheves that 

USEPA's inclusion of Appendix C i n these Information Requests, which are issued under 

Section 114 of the Clean A h Act, is inappropriate. The issues presented by Appendix C should 

be addressed i n the RCR A Part B permit process where the regulatory framework allows Veolia 

to work with the Agency to achieve a comprehensive and fair permit. To impose the 

requirements of Appendix C on Veolia via these Information Requests—where Veolia faces 

significant monetary penalties for each day of noncompliance—is an arbitrary and capricious 

deprivation of Veolia's due process rights under the RCR A Part B permit process. 

C. Veolia's Reservation ofRizhts and Request To Meet 

Veolia reserves its right to provide additional information i n the future and/or to amend or 

supplement its Response to these Information Requests in an effort to maintain an open 

dialogue with USEPA regarding the issues contained herein. In addition, to facilitate this 

continued dialogue, Veoha requests a meeting with USEPA Region 5 at its earliest convenience 

to discuss the Information Requests and Veoha's Responses. 

-35 -
REQUEST FOR INFORMATION 

CERTIFICATION STATEMENT 

I certify under penalty of law that I have examined and am familiar with the 

information i n the encbsed documents, including all attachments. Based on my 

inquiry of those mdividuals with primaiy responsibihty for obtaining the 

information, I certify that the statements and information are, to the best of my 

knowledge and behef, true and complete. I am aware that there are significant 

penalties for knowingly submitting false statements and information, including 

the possibility of fines ox imprisonment pursuant to section 113(c)(2) of the Act, 

and 18 U.S.C. §§ 1001 and 1341. 

V E S 001917