Case: 4:18-cv-02419 Doc #: 1 Filed: 10/18/18 1 of 43. PageID #: 1

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

)
)
)
Plaintiff,
)
)
v.
)
)
HERITAGE THERMAL SERVICES, INC. )
)
Defendant.
)
)
UNITED STATES OF AMERICA,

Civil Action No.

COMPLAINT
Plaintiff, the United States of America, by the authority of the Attorney General of the
United States and through the undersigned attorneys, acting at the request of the United States
Environmental Protection Agency (“EPA”), alleges the following.
NATURE OF THE ACTION
1.

This is a civil action brought under Section 113(b) of the Clean Air Act,

42 U.S.C. § 7413(b) (“the CAA”), for injunctive relief and the assessment of civil penalties
against Defendant Heritage Thermal Services, Inc. (“Heritage” or “Defendant”) alleging
violations of Clean Air Act and the National Emission Standards for Hazardous Air Pollutants
for Hazardous Waste Combustors promulgated pursuant to Section 112 of the CAA, 42 U.S.C.
§ 7412, and codified at 40 C.F.R. Part 63, Subpart EEE. The violations at issue in this action
occurred at a hazardous waste incinerator owned and operated by Heritage in East Liverpool,
Ohio (the “Heritage Facility”).

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JURISDICTION, VENUE, AND NOTICE
2.

This Court has jurisdiction over the subject matter and over the parties pursuant to

Section 113(b) of the CAA, 42 U.S.C. § 7413(b), and pursuant to 28 U.S.C. §§ 1331, 1345, and
1355(a). This Court has personal jurisdiction over the Parties.
3.

Authority to bring this action is vested in the United States Department of Justice,

pursuant to Section 113(b), 42 U.S.C. § 7413(b), and pursuant to 28 U.S.C. §§ 516 and 519.
4.

Venue lies in this District pursuant to Section 113(b) of the CAA, 42 U.S.C.

§ 7413(b), and 28 U.S.C. §§ 1391(b) and 1395(a), because the alleged violations occurred within
this district at a facility located in East Liverpool, Ohio.
5.

The United States has provided notice of the commencement of this action to the

Ohio Environmental Protection Agency (“Ohio EPA”) in accordance with Section 113(b) of the
CAA, 42 U.S.C. § 7413(b).
PARTIES
6.

Plaintiff the United States of America is acting at the request of EPA, an agency

of the United States.
7.

Defendant Heritage is incorporated under the laws of the State of Delaware and

has its principal place of business in the state of Ohio.
8.

At all relevant times herein, Heritage has been a “person” within the meaning of

Section 302(e) of the CAA, 42 U.S.C. § 7602(e).
STATUTORY AND REGULATORY BACKGROUND
A.

The Clean Air Act and NESHAPs/MACTs in General

9.

The Clean Air Act establishes a regulatory scheme to protect and enhance the

quality of the nation’s air resources so as to promote the public health and welfare and the
productive capacity of its population. 42 U.S.C. § 7401(b)(1).
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10.

Congress has established a list of hazardous air pollutants (“HAPs”), which

includes, among others, certain compounds that are typically emitted as particulate matter,
metals (antimony, cobalt, manganese, nickel, selenium), semi-volatile metals (cadmium and
lead), low volatile metals (arsenic, beryllium, and chromium), dioxins and furans, hydrogen
chloride and chlorine gas, and mercury compounds. 42 U.S.C. § 7412(b)(1). Under Section
112(b)(2) of the CAA, 42 U.S.C. § 7412(b)(2), EPA periodically reviews the list of hazardous air
pollutants and, where appropriate, revises the list by rule.
11.

Section 112(c) of the CAA, 42 U.S.C. § 7412(c), requires EPA to publish a list of

all categories and subcategories of “major sources” and certain “area sources” of the hazardous
air pollutants listed pursuant to 42 U.S.C. § 7412(b).
12.

Section 112(d) of the CAA, 42 U.S.C. § 7412(d), requires EPA to promulgate

regulations establishing emissions standards for each category and subcategory of “major
sources” and “area sources” of HAPs. These emissions standards are called the National
Emission Standards for Hazardous Air Pollutants (“NESHAPs”) or Maximum Achievable
Control Technology Standards (“MACTs”).
13.

“Major sources” are sources or groups of “stationary sources” located within a

contiguous area and under common control that emit or have the potential to emit ten tons per
year or more of any HAP, or twenty-five tons per year or more of any combination of HAPs.
42 U.S.C. § 7412(a)(1); 40 C.F.R. § 63.2.
14.

An “area source” is any “stationary source” of HAPs that is not a major source.

42 U.S.C. § 7412(a)(2).
15.

A “stationary source” is any building, structure, facility, or installation that emits

or may emit any air pollutant. 42 U.S.C. § 7412(a)(3) (by reference to 42 U.S.C. § 7411(a)).

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16.

Sections 113(a)(3) and (b) of the CAA prohibit violations of any NESHAP. Thus,

a violation of a NESHAP is a violation of the CAA.
17.

Pursuant to Section 112 of the CAA, 42 U.S.C. § 7412, EPA has promulgated

multiple NESHAPs/MACTs containing emissions standards or, if not feasible, design,
equipment, work practice, or operational standards which are codified at 40 C.F.R. Parts 61 and
63.
18.

Section 112 of the CAA provides that after the effective date of any

NESHAP/MACT no person may operate a source in violation of an applicable NESHAP/MACT.
42 U.S.C. § 7412(i)(3); 40 C.F.R. § 63.4.
19.

Pursuant to Section 112(l) of the CAA, 42 U.S.C. § 7412(l), EPA may delegate to

a State the authority to implement portions of the CAA in that State.
B.

NESHAP Subpart A

20.

Pursuant to Section 112 of the CAA, 42 U.S.C. § 7412, EPA promulgated a

general NESHAP (“NESHAP Subpart A”), which applies to all sources that are subject to
NESHAP/MACT regulations in 40 C.F.R. Part 63. 40 C.F.R. §§ 63.1-63.16. Under NESHAP
Subpart A, each relevant NESHAP/MACT must identify which NESHAP Subpart A regulations
apply to the sources covered by that NESHAP/MACT. 40 C.F.R. § 63.1(a)(4)(i).
21.

NESHAP Subpart A sets forth definitions that apply to other NESHAP/MACT

regulations. 40 C.F.R. § 63.2.
22.

NESHAP Subpart A requires the owner/operator of a subject source to prepare

and submit to EPA and/or delegated state agencies various reports including semi-annual excess
emissions and continuous monitoring system performance reports and startup, periodic startup,
shutdown, and malfunction reports. 40 C.F.R. § 63.10(d)(5)(i).

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C.

The HWC MACT

23.

Pursuant to Sections 112(c) and (d) of the CAA, 42 U.S.C. § 7412(c) and (d),

EPA has identified “hazardous waste combustors” as a category of sources of HAPs and
promulgated regulations applicable to such sources which are codified at 40 C.F.R. Part 63,
Subpart EEE (§§ 63.1200-1221) (the “HWC MACT”). 64 Fed. Reg. 52,828 (Sept. 30, 1999).
24.

Hazardous waste combustors emit or have the potential to emit particulate matter,

metals (antimony, cobalt, manganese, nickel, selenium), semi-volatile metals (cadmium and
lead), low volatile metals (arsenic, beryllium, and chromium), dioxins and furans, carbon
monoxide and hydrocarbons, hydrogen chloride and chlorine gas, and mercury compounds, all of
which have adverse effects on human health and the environment.
25.

At all relevant times herein, the HWC MACT has applied to the owner/operator

of “affected sources” defined as “all hazardous waste combustors.” 40 C.F.R. § 63.1200.
26.

At all relevant times herein, the HWC MACT has defined “hazardous waste

combustors” as including “hazardous waste incinerators” as well as “all associated firing systems
and air pollution control devices, as well as the combustion chamber equipment.” 40 C.F.R.
§§ 63.1200-01.
27.

In turn, at all relevant times herein, 40 C.F.R. § 260.10, referenced in the

definition of “hazardous waste incinerator” in the HWC MACT, 40 C.F.R. § 63.1201, defines
“incinerator” as “any enclosed device that: (1) uses controlled flame combustion and neither
meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is
listed as an industrial furnace; or (2) meets the definition of infrared incinerator or plasma arc
incinerator”; (respectively defined as enclosed devices that use “electric powered resistance
heaters as a source of radiant heat followed by an afterburner using controlled flame combustion
and which is not listed as an industrial furnace” and “a high intensity electrical discharge or arc
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as a source of heat followed by an afterburner using controlled flame combustion and which is
not listed as an industrial furnace.”)
28.

The HWC MACT established and later revised compliance dates for HWC

MACT requirements for owners/operators of a hazardous waste incinerator that is an “existing
source,” the latest of which was October 14, 2008.
29.

At all relevant times herein, the HWC MACT and NESHAP Subpart A has

defined “existing source” as “any affected source that is not a new source.” 40 C.F.R. § 63.2
(incorporated into the HWC MACT, 40 C.F.R. Part 63, Subpart EEE, Table 1). The HWC
MACT defines a “new source” as any source subject to the HWC MACT, the construction or
reconstruction of which is commenced after the dates specified for different types of sources and
different requirements, which for hazardous waste incinerators the latest of which is April 20,
2004. 40 C.F.R. § 63.1206(a)(1).
30.

At all relevant times herein, the HWC MACT has required, with limited

exceptions not relevant to this Complaint, the owner/operator of a hazardous waste incinerator to
comply with NESHAP Subpart A. 40 C.F.R. Part 63, Subpart EEE, Table 1.
31.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to comply with multiple emissions limits, destruction and removal
efficiency (“DRE”) standards and other operating parameters including the following limits and
standards relevant to this Complaint.
Dioxins and furans
Mercury
Semivolatile metals and low volatility metals
THC
Hydrogen chloride and chlorine gas
Particulate Matter
DRE Standard

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40 C.F.R. § 63.1219(a)(1)
40 C.F.R. § 63.1219(a)(2)
40 C.F.R. § 63.1219(a)(4)
40 C.F.R. § 63.1219(a)(5)
40 C.F.R. § 63.1219(a)(6)
40 C.F.R. § 63.1219(a)(7)
40 C.F.R. § 63.1219(c).

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32.

At all relevant times herein, the HWC MACT emissions limits, operational

standards, and DRE standards have applied at all times except: (i) during periods of start-up,
shutdown, and malfunction; and (ii) when hazardous waste is not in the combustion chamber.
40 C.F.R. § 63.1206(b)(1).
33.

At all relevant times herein, the HWC MACT has prohibited the owner/operator

of a hazardous waste incinerator from discharging or causing to be discharged into the
atmosphere emissions of total hydrocarbons (“THC”) in excess of 10 parts per million by volume
dry basis (ppmvd) over an hourly rolling average (monitored continuously with a continuous
emissions monitoring system), corrected to 7 percent oxygen, and reported as propane.
40 C.F.R. § 63.1219(a)(5)(ii).
34.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to maintain the maximum combustion zone pressure lower than
ambient pressure using an instantaneous monitor unless the combustion zone is sealed.
40 C.F.R. § 63.1206(c)(5)(i)(B). Upon prior written approval of EPA, the owner/operator may
use an alternative means to provide control of combustion system leaks equivalent to
maintenance of combustion zone pressure lower than ambient pressure. 40 C.F.R.
§ 63.1206(c)(5)(i)(C).
35.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to establish and comply with certain operating parameter limits
(“OPLs”) in order to demonstrate compliance with the HWC MACT emissions limits and the
DRE standard. 40 C.F.R. § 63.1207(b)(1) and 40 C.F.R. §§ 63.1209(j)-(o); 40 C.F.R. § 63.1201
(“Operating requirements means . . . operating parameter limits . . . that ensure compliance with
the emission standards.”).

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36.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to confirm the adequacy of the OPLs in meeting applicable
emissions limits and the DRE standard by conducting Comprehensive Performance Tests
(“CPTs”) and, after the CPT, submitting a Notification of Compliance (“NOC”) to EPA or a
delegated state agency containing the OPLs verified by the CPT. 40 C.F.R. § 63.1207(j).
37.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to conduct additional CPTs no later than 61 months after the
previous CPT and submit a new NOC following each CPT. 40 C.F.R. §§ 1207(d) and (j).
38.

At all relevant times herein, to ensure compliance with the DRE and other

applicable emissions limits, the HWC MACT has required the owner/operator of a hazardous
waste incinerator to establish OPLs for the following parameters that are relevant to this
Complaint:
a.

the minimum combustion chamber temperature on an hourly rolling

average (measured at a location in each combustion chamber that best represents, as practicable,
the bulk gas temperature in the combustion zone) (40 C.F.R. § 1209(j)(1), (k)(2));
b.

the maximum flue gas flowrate or production rate on an hourly rolling

average (to indicate gas residence time in the control device) (40 C.F.R. §§ 1209(j)(2), (k)(3),
(m)(2), (n)(5), (o)(2));
c.

for incinerators equipped with an activated carbon injection system,

minimum carbon injection rate on an hourly rolling average for each injection location
(40 C.F.R. §§ 63.1209(k)(6)(i), (l)(3) (incorporating by reference § 63.1209(k)(6));
d.

for incinerators equipped with an activated carbon injection system, the

minimum carrier fluid (gas or liquid) flowrate or pressure drop as an hourly rolling average for

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each injection location (40 C.F.R. §§ 63.1209(k)(6)(ii), (l)(3) (incorporating by reference
§ 63.1209(k)(6));
e.

the minimum scrubber blowdown rate on an hourly rolling average

(40 C.F.R. § 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1));
f.

for both high and low energy scrubbers, the minimum pressure drop across

the wet gas scrubber on an hourly rolling average (40 C.F.R. § 63.1209(k)(5) (incorporating by
reference § 63.1209(m)(1)), (l)(2) (incorporating by reference § 63.1209(o)(3)), (l)(3)
(incorporating by reference § 63.1209(k)(5)), (m)(1)(i)(A), (o)(3)(i));
g.

the minimum scrubber tank volume or liquid level on an hourly rolling

average (40 C.F.R. § 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1)), (l)(3)
(incorporating by reference § (k)(5)), (m)(1)(i)(B)(4));
h.

for high and low energy scrubbers, the minimum liquid to gas ratio or the

minimum scrubber water flowrate and maximum flue gas flowrate on an hourly rolling average
(40 C.F.R. § 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1)), (l)(2) (incorporating
by reference § 63.1209(o)(3)), (m)(1)(i)(C), (o)(3)(v));
i.

for electrostatic precipitators, a minimum operating parameter limit or a

maximum operating parameter limit, as appropriate for the parameter, to define the operating
limits within which the control device can operate and still continuously achieve the same
operating conditions as during the performance test (40 C.F.R. § 63.1209(m)(1)(iv)(3); and
j.

the minimum scrubber pH on an hourly rolling average (40 C.F.R.

§ 63.1209(o)(3)(iv)).
39.

At all relevant times herein, the HWC MACT required the owner/operator of a

hazardous waste incinerator to comply with the OPLs and other requirements set forth in its

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latest NOC at all times except during start-up, shut-downs, and malfunctions provided that the
owner/operator takes the corrective measures prescribed in the startup, shutdown, and
malfunction plan. 40 C.F.R. §§ 63.1206(c)(1), (c)(2)(v)(A)(2), 1207(j)(1)(ii) and 63.1210(d)(2).
40.

At all relevant times herein, the HWC MACT has required that the

owner/operator of a hazardous waste incinerator comply with applicable emissions limits and
standards by meeting specified OPLs relevant to each limit or standard including the OPLs set
forth in the following Subparagraphs (and in Paragraph 38 above). Failure to comply with an
OPL relevant to an emissions limit or standard constitutes failure to comply with that emissions
limit or standard. See 40 C.F.R. § 63.1206(c)(1)(iii).
a.

To comply with the DRE standard, the owner/operator must comply with

the following OPLs that are relevant to this Complaint:
i. minimum combustion chamber temperature (40 C.F.R.
§ 63.1209(j)(1)); and
ii. maximum flue gas flowrate or production rate (40 C.F.R.
§ 63.1209(j)(2)).
b.

To comply with emissions limits on dioxins/furans, the owner/operator

must comply with the following OPLs that are relevant to this Complaint:
i. minimum combustion chamber temperature (40 C.F.R.
§ 63.1209(k)(3));
ii. maximum flue gas flowrate or production rate (40 C.F.R.
§ 63.1209(k)(3));
iii. minimum carbon injection rate for each injection location (40 C.F.R.
§ 63.1209(k)(6)(i));

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iv. minimum carrier fluid (gas or liquid) flowrate or pressure drop for
each injection location (40 C.F.R. § 63.1209(k)(6)(ii));
v. minimum scrubber blowdown rate (40 C.F.R. § 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)(i)(B)(1)(ii));
vi. minimum pressure drop across the wet gas scrubber (40 C.F.R.
§ 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1)(i)(A));
vii. minimum scrubber tank volume or liquid level
(40 C.F.R.§ 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1)(i)(B)); and
viii.

minimum liquid to gas ratio or the minimum scrubber water

flowrate and maximum flue gas flowrate (40 C.F.R. § 63.1209(k)(5) (incorporating by reference
§ 63.1209(m)(1)(i)).
c.

To comply with emissions limits on mercury, the owner/operator must

comply with the following OPLs that are relevant to this Complaint.
i. minimum carbon injection rate (40 C.F.R. § 63.1209(l)(3)
(incorporating by reference § 63.1209(k)(6));
ii. minimum carrier fluid (gas or liquid) flowrate or pressure drop
(40 C.F.R. § 63.1209(l)(3) (incorporating by reference § 63.1209(k)(6));
iii. minimum pressure drop across the wet gas scrubber (40 C.F.R.
§ 63.1209(l)(2) (incorporating by reference § 63.1209(o)(3)), (l)(3) (incorporating by reference
§ 63.1209 (k)(5) (incorporating by reference § 63.1209(m)(1)));
iv. minimum scrubber blowdown rate (40 C.F.R. § 63.1209(l)(3)
(incorporating by reference § 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1));

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v. minimum scrubber tank volume or liquid level (40 C.F.R.
§ 63.1209(l)(3) (incorporating by reference § 63.1209(k)(5) (incorporating by reference
§ 63.1209(m)(1)); and
vi. minimum liquid to gas ratio or the minimum scrubber water flowrate
and maximum flue gas flowrate (40 C.F.R. § 63.1209(l)(2) (incorporating by reference
§ 63.1209(o)(3)).
d.

To comply with emissions limits on semivolatile metals and low volatility

metals, the owner/operator must comply with the OPL for the maximum flue gas flowrate or
production rate (40 C.F.R. § 63.1209(n)(5)).
e.

To comply with emissions limits on particulate matter, the owner/operator

must comply with the following OPLs relevant to this Complaint:
i. minimum pressure drop across the wet gas scrubber (40 C.F.R.
§ 1209(m)(1)(i)(A));
ii. minimum scrubber blowdown rate (40 C.F.R.
§ 63.1209(m)(1)(i)(B)(1)(ii));
iii. minimum scrubber tank volume or liquid level (40 C.F.R.
§ 63.1209(m)(1)(i)(B)(4));
iv. minimum flue gas flowrate or production rate (40 C.F.R.
§ 63.1209(m)(2)); and
v. the established operating parameters for electrostatic precipitators
(40 C.F.R. § 63.1209(m)(1)(iv)).
f.

To comply with the emissions limits on hydrogen chloride and chlorine

gas the owner/operator must comply with the following OPLs relevant to this Complaint:

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i. maximum flue gas flowrate or production rate (40 C.F.R.
§ 63.1209(o)(2));
ii. minimum pressure drop across the wet gas scrubber (40 C.F.R
§ 63.1209(o)(3));
iii. minimum liquid to gas ratio or the minimum scrubber water flowrate
and maximum flue gas flowrate (40 C.F.R. § 63.1209(o)(3)(v)); and
iv. minimum scrubber pH on an hourly rolling average (40 C.F.R.
§ 63.1209(o)(3)(iv)).
41.

At all relevant times herein, the HWC MACT has required the owner/operator of

a hazardous waste incinerator to use continuous monitoring systems to demonstrate compliance
with applicable OPLs. 40 C.F.R. § 63.1209(b).
42.

At all relevant times herein, the HWC MACT required the owner/operator of a

hazardous waste incinerator to duct combustion gases from the incinerator to the air pollution
control system during automatic waste feed cut off while hazardous waste remains in the
combustion chamber. 40 C.F.R. § 63.1206(c)(3)(ii).
43.

Pursuant to Section 112(l) of the CAA, 42 U.S.C. § 7412(l), EPA has delegated

authority to implement the HWC MACT to Ohio EPA. See 60 Fed. Reg. 18,790 (April 13,
1995).
D.

CAA Title V Requirements

44.

Title V of the CAA, 42 U.S.C. §§ 7661-61f, and the regulations promulgated

thereunder establish an operating permit program for certain sources, including “major sources”
subject to NESHAP requirements. 42 U.S.C. § 7661a(a). Under the Federal Title V Program
and Regulations, all “applicable requirements” for compliance with the CAA, including

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NESHAP requirements, are set forth in one operating permit known as a Title V permit.
42 U.S.C. § 7661c(a) and 40 C.F.R. § 70.6(a).
45.

Pursuant to Section 502(b) of the CAA, 42 U.S.C. § 7661a(b), EPA promulgated

regulations implementing the requirements of Title V and establishing the minimum elements of
a Title V permit program to be administered by any state or local air pollution control agency.
57 Fed. Reg. 32,250 (July 21, 1992). These regulations are codified at 40 C.F.R. Part 70.
46.

On August 15, 1995, EPA fully approved the Title V program of the state of

Ohio, effective October 1, 1995. 60 Fed. Reg. 42,045 (October 1, 1995).
47.

The CAA, federal Title V regulations, and Ohio Title V regulations provide that

no source subject to Title V may operate except in compliance with a Title V permit. 42 U.S.C.
§ 7661a(a); 40 C.F.R. §§ 70.1(b) and 70.7(b); Ohio Admin. Code 3745-77-02(A).
E.

CAA Enforcement Authority

48.

Section 113(a)(1) and (3) of the CAA, 42 U.S.C. §§ 7413(a)(1) and (3), authorize

EPA to bring a civil action under Section 113(b) if EPA finds that any person is in violation of
any requirement or prohibition of Section 112 of the CAA or a Title V permit.
49.

Section 113(b) of the CAA, 42 U.S.C. § 7413(b), authorizes the Court to enjoin a

violation, to require compliance, to assess and recover a civil penalty, and to award any other
appropriate relief for each violation.
50.

Section 113(b) of the CAA, 42 U.S.C. § 7413(b), authorizes injunctive relief and

civil penalties of up to $25,000 per day for each violation of the CAA or regulation promulgated
or permit issued thereunder. This statutory maximum civil penalty has been increased to reflect
inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act (28 U.S.C. § 2461), as
amended, to $37,500 per day for each violation occurring after January 12, 2009, through
November 2, 2015, and up to $97,229 per day per violation for each violation occurring after
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November 2, 2015, and assessed after January 15, 2018. See 73 Fed. Reg. 75,340-46 (Dec. 11,
2008); 78 Fed. Reg. 66,643-48 (Nov. 6, 2013); 81 Fed. Reg. 43,095 (July 1, 2016); 82 Fed. Reg.
3633 (Jan. 12, 2017); 83 Fed. Reg. 1193 (Jan. 10, 2018), all codified at 40 C.F.R. Part 19.
51.

Pursuant to Section 112(l)(7) of the CAA, 42 U.S.C. § 7412(l)(7), the United

States has authority to enforce Section 112 programs in delegated States.
52.

Pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), United States has

authority to enforce provisions of state-issued Title V permits. See also 40 C.F.R. § 70.6(b).
GENERAL ALLEGATIONS
53.

The Heritage Facility incinerates hazardous wastes and other wastes.

54.

At all relevant times herein, the Heritage Facility has been located at 1250 St.

George Street, East Liverpool, Ohio.
55.

At all relevant times herein, Heritage has been the “owner” and “operator” of the

Heritage Facility within the meaning of the CAA and the regulations promulgated thereunder.
42 U.S.C. §§ 7412(a)(9), 7413(b), and 40 C.F.R. §§ 63.2, 63.1201 (definition of “you” as
“owner” and “operator”).
56.

At all relevant times herein, the Heritage Facility has been a “stationary source”

within the meaning of Section 112 of the CAA. 42 U.S.C. § 7412(a)(3) (referencing 42 U.S.C.
§ 7411(a)).
57.

At all relevant times herein, the Heritage Facility has been a “major source” of

HAPs within the meaning of the CAA and the regulations promulgated thereunder. See
42 U.S.C. § 7412(a); 40 C.F.R. § 63.2.
58.

At all relevant times herein, the Heritage Facility has included a “hazardous waste

combustor” within the meaning of the HWC MACT. See 40 C.F.R. §§ 63.1200-01.

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59.

At all relevant times herein, the Heritage hazardous waste combustor has included

a “hazardous waste incinerator” (Heritage incinerator) within the meaning of the HWC MACT.
See 40 C.F.R. §§ 63.1200-01.
60.

At all relevant times herein, Heritage has burned “hazardous waste” in the

Heritage incinerator within the meaning of the HWC MACT. See 40 C.F.R. §§ 63.1200-01.
61.

At all relevant times herein, the Heritage Facility has been an “existing source”

within the meaning of the CAA, NESHAP Subpart A and the HWC MACT. See 42 U.S.C.
§ 7412(a); 40 C.F.R. §§ 63.2, 63.1201.
62.

At all relevant times herein, the Heritage incinerator was an “affected source”

within the meaning of NESHAP Subpart A and the HWC MACT. See 40 C.F.R. §§ 63.2,
63.1201.
63.

At all relevant times herein, Heritage, as the owner and operator of the Heritage

incinerator, has been subject to the requirements of the NESHAP Subpart A and HWC MACT.
64.

At all relevant times herein, the Heritage incinerator has included multiple

components and equipment including the following which are relevant to this Complaint.
a.

Rotary Kiln: a refractory brick-lined steel cylinder into which hazardous

waste (pumpable waste, drums and containers, loose bulk solids) is fed and incinerated. The
Rotary Kiln is the primary combustion chamber for the Heritage incinerator.
b.

Secondary Combustion Chamber (“SCC”): the exhaust from incinerated

waste flows into this chamber from the Rotary Kiln for further combustion, which is enhanced
by the controlled injection of oxygen.

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c.

Spray dryer absorber (“SDA”): from the SCC the flue gas enters a heat

recovery boiler, which reduces the temperature of the gas, and then enters the SDA which further
cools flue gas.
d.

ESP and Scrubber: from the SDA the flue gas enters a flue gas cleaning

system consisting of an electrostatic precipitator (“ESP”) followed by a four stage wet scrubber
(“Scrubber”) which consists of a high energy ring jet scrubber stage (“Ring Jet Scrubber”) and a
low energy packed bed scrubber stage (“Packed Bed Scrubber”).
e.

Carbon Injection System: the Heritage Incinerator is equipped with an

enhanced carbon injection system which injects carbon to control dioxins/furans and mercury
emissions at two locations: the SDA and Scrubber.
65.

Heritage conducted CPTs with respect to the Heritage incinerator in March, April,

May, and September of 2010.
66.

Based on the CPT results from March, April, May, and September 2010, Heritage

submitted a NOC to Ohio EPA and EPA Region 5 on November 18, 2010, (“2010 NOC”) which
identified the OPLs for the Heritage incinerator required by 40 C.F.R. §§ 63.1209(j)-(o).
67.

The OPLs identified in the 2010 NOC became effective on November 18, 2010

and remained in effect until June 18, 2015.
68.

On March 24-26, 2015, Heritage conducted CPTs for the Heritage incinerator.

69.

On June 18, 2015, Heritage submitted a subsequent NOC (“2015 NOC”) to EPA

and Ohio EPA identifying OPLs for the Heritage incinerator and Heritage incinerator required by
40 C.F.R. §§ 63.1209(j)-(o), based on the March 24-26, 2015 CPT.
70.

The OPLs identified in the 2015 NOC became effective on June 18, 2015, and

remain in effect to the present.

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71.

Pursuant to NESHAP Subpart A, 40 C.F.R. § 63.10(e)(3), Heritage is required to

submit a semi-annual excess emissions and continuous monitoring system performance report
and summary report to Ohio EPA.
72.

As allowed under 40 C.F.R. § 63.10(d)(5)(i), Heritage combines its semi-annual

startup, shutdown and malfunction report, required under 40 C.F.R. § 63.10(d)(5)(i), with the
excess emissions and continuous monitoring system performance reports required by 40 C.F.R.
§ 63.10(e)(3) (collectively, Heritage’s “Semi-Annual Reports”).
73.

Ohio EPA has issued Heritage the following permits pursuant to Title V of the

CAA, 42 U.S.C. § 7661a (collectively “Heritage Title V Permits”).
a.

On February 18, 2004, Ohio EPA issued its initial Title V permit (No.

P0084371) for the Heritage Facility, effective February 18, 2004.
b.

On December 22, 2008, Ohio EPA issued a Title V renewal permit for the

Heritage Facility (No. P0084372), effective December 22, 2008 (“2008 Title V Permit”).
c.

On July 5, 2011, Ohio EPA issued a Title V permit modification for the

Heritage Facility (No. P0108372), effective July 5, 2011 (“2011 Title V Permit”).
d.

On June 28, 2017, Ohio EPA issued a draft Title V renewal permit for the

Heritage Facility (No. P0115099), which is not yet effective.
74.

The Title V permits described in Subparagraphs 73.a-d above incorporate

applicable NESHAP Subpart A and HWC MACT requirements set forth in Paragraphs 20-43
above.

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FIRST CLAIM FOR RELIEF
Violation of THC Emission Standard
75.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

76.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

prohibited Heritage from discharging or causing to be discharged into the atmosphere from the
Heritage incinerator emissions of THC in excess of 10 ppmvd over an hourly rolling average
corrected to 7 percent oxygen, and reported as propane. See 40 C.F.R. § 63.1219(a)(5)(ii);
Conditions 5(b)(1)(e) and 5(b)(2)(f) of the 2008 Title V Permit and the 2011 Title V Permit.
77.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

occasions beginning on or before November 24, 2010, and continuing thereafter, Heritage
discharged into the atmosphere combustion gases from the Heritage incinerator that contained
THC in excess of 10 ppmvd over an hourly rolling average, corrected to 7 percent oxygen, and
reported as propane, in violation of the HWC MACT and the 2008 and 2011 Title V Permits.
See 40 C.F.R. § 63.1219(a)(5)(ii), and Conditions 5(b)(1)(e) and 5(b)(2)(f) of the 2008 and the
2011 Title V Permits.
78.

Unless restrained by an Order of the Court, these violations will continue.

79.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty of up to the statutory maximum amounts set forth in Paragraph 50 above per day for each
violation.

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SECOND CLAIM FOR RELIEF
Violation of Combustion System Leak Control Requirements
80.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

81.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

required Heritage to control combustion system leaks of HAPs at the Heritage incinerator by one
of the methods listed in 40 C.F.R. § 63.1206(c)(5). See 40 C.F.R. §§ 63.1206(c)(5)(i)(B) and
(C); and Conditions 5(b)(1)(e), 5(b)(2)(l) and 5(c)(5) of the 2008 and 2011 Title V Permits.
82.

Pursuant to 40 C.F.R. § 63.1206(c)(5)(i)(C), Heritage received approval from

EPA Region 5 to use an alternative means to control combustion system leaks equivalent to
maintenance of combustion zone pressure lower than ambient pressure. This approved
alternative method requires Heritage to comply with the following pressure requirements in the
SCC:
a.

The pressure in the SCC must be greater than zero inches of water column

for more than 10 seconds; or
b.

The pressure in the SCC must be greater than the pressure in the inlet or

outlet end shroud at any time; or
c.

The pressure in the SCC must be greater than the ambient pressure for

more than 2 seconds during operating time when the pressurizing equipment for either shroud
has failed.
83.

The alternative combustion system leak control requirements set forth in the

preceding Paragraph are contained in the 2008 and 2011 Title V Permits at Condition 5(c)(5).
84.

Semi-Annual Reports prepared and submitted by Heritage show that on one or

more days beginning on or before December 12, 2010 and continuing thereafter the Heritage
failed to maintain SCC pressure in accordance with the requirements of Paragraph 82 in violation
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of the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§§ 63.1206(c)(5)(i)(B) and (C); and Conditions 5(b)(1)(e), 5(b)(2)(l) and 5(c)(5) of the 2008 and
2011 Title V Permits.
85.

Unless restrained by an Order of the Court, these violations will continue.

86.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty up to the statutory maximum amounts set forth in Paragraph 50 above per violation per
day for each violation.
THIRD CLAIM FOR RELIEF
Violation of the OPL for Minimum Combustion Chamber Temperature,
DRE Standard and Dioxins/Furans Emissions Limit
at the Secondary Combustion Chamber
87.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

88.

At all relevant times herein, HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL for the minimum combustion chamber
temperature for each combustion chamber in the Heritage incinerator in order to comply with the
HWC MACT’s DRE standard and dioxins/furans emissions limit. See 40 C.F.R. § 63.1209(j)(1),
(k)(2); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6) and 5(f)(14) of the 2008 and 2011
Title V Permits.
89.

Heritage has established this OPL separately for the Rotary Kiln and the SCC.

90.

In the 2010 NOC, Heritage identified the OPL for the minimum combustion

chamber temperature for the SCC as 1747° Fahrenheit on an hourly rolling average which was
effective for the period of November 18, 2010 through June 17, 2015.

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91.

In the 2015 NOC, Heritage identified the OPL for the minimum combustion

chamber temperature OPL for the SCC as 1710° Fahrenheit on an hourly rolling average which
is effective for the period of June 18, 2015 through the present.
92.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days beginning on or before January 6, 2011 and continuing thereafter, Heritage operated the
Heritage incinerator in a manner such that the combustion chamber temperature inside the SCC
fell below the applicable minimum combustion chamber temperature OPL for the SCC in
violation of the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§§ 63.1206(c)(1), 63.1209(j)(1), (k)(2); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6) and
5(f)(14) of the 2008 and 2011 Title V Permits.
93.

The violations of the minimum combustion chamber temperature OPL for the

SCC set forth in the preceding Paragraph also constitute violations of the DRE standard and
dioxins/furans emissions limit in the HWC MACT and the 2008 and 2011 Title V Permits. See
40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(j), (k)(2), 63.1219(a)(1)(i)(A) and (c); and Conditions
5(b)(2)(a), 5(b)(2)(i), 5(f)(6) and 5(f)(14) of the 2008 and 2011 Title V Permits.
94.

Unless restrained by an Order of the Court, these violations will continue.

95.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty up to the statutory maximum amounts set forth in Paragraph 50 above per violation per
day for each violation.

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FOURTH CLAIM FOR RELIEF
Violation of the OPL for Minimum Combustion Chamber Temperature,
DRE Standard and Dioxins/Furans Emissions Limit
at the Rotary Kiln
96.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference

97.

At all relevant times herein, HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL for the minimum combustion chamber
temperature for each combustion chamber in the Heritage incinerator in order to comply with the
HWC MACT’s DRE standard and dioxins/furans emissions limit. See 40 C.F.R.
§§ 63.1209(j)(1), (k)(2); and Conditions 5(b)(1)(e), 5((b)(2)(l), 5(d)(1), 5(f)(6) and 5(f)(14) of
the 2008 and 2011 Title V Permits.
98.

Heritage has established this OPL separately for the Rotary Kiln and the SCC.

99.

In the 2010 NOC, Heritage identified the OPL for the minimum combustion

chamber temperature for the Rotary Kiln as 1718° Fahrenheit on an hourly rolling average which
was effective for the period of November 18, 2010 through June 17, 2015.
100.

In the 2015 NOC, Heritage identified the OPL for the minimum combustion

chamber temperature for the Rotary Kiln as 1695° Fahrenheit on an hourly rolling average which
is effective for the period of June 18, 2015 through the present.
101.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days beginning on or before January 6, 2011 and continuing thereafter, Heritage operated the
Heritage incinerator in a manner such that the combustion chamber temperature inside the
Rotary Kiln fell below the applicable minimum combustion chamber temperature OPL for the
Rotary Kiln in violation of the HWC MACT and the 2008 and 2011 Title V Permits. See 40
C.F.R. §§ 63.1206(c)(1), 63.1209(j)(1), (k)(2)); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1),
5(f)(6) and 5(f)(14) of the 2008 and 2011 Title V Permits.
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102.

The violations of the minimum combustion chamber temperature OPL for the

Rotary Kiln set forth in the preceding paragraph also constitute violations of the DRE standard
and dioxins/furans emissions limit set forth in the HWC MACT and the 2008 and 2011 Title V
Permits. See 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(j), 63.1209(k)(2), 63.1219(a)(1)(i)(A) and
63.1219(c); and Conditions 5(b)(2)(a), 5(b)(2)(i), 5(f)(6) and C.5(f)(14) of the 2008 and 2011
Title V Permits.
103.

Unless restrained by an Order of the Court, these violations will continue.

104.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty up to the statutory maximum amounts set forth in Paragraph 50 above per violation per
day for each violation.
FIFTH CLAIM FOR RELIEF
Violation of the OPL for Maximum Flue Gas Flowrate or Production Rate
the DRE Standard and Emission Limits on Dioxins/Furans, Particulate Matter, Metals,
Hydrogen Chloride and Chlorine Gas
105.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

106.

At all relevant times herein, HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL for the maximum flue gas flowrate or
production rate in order to comply with the HWC MACT’s DRE standard and emissions limits
on dioxins/furans, particulate matter, semivolatile and low volatility metals, hydrogen chloride
and chlorine gas. See 40 C.F.R. §§ 63.1209(j)(2), (k)(3), (m)(2), (n)(5), (o)(2); and Conditions
5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(8), 5(f)(9), 5(f)(12), 5(f)(13), and 5(f)(14), of the 2008
and 2011 Title V Permits.

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107.

In the 2010 NOC, Heritage identified the OPL for the maximum flue gas flowrate

as 67,505 standard cubic feet per minute (scfm) on a 1-hour rolling average, which was effective
for the period of November 18, 2010 through June 17, 2015.
108.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days beginning on or before April 12, 2011, and continuing through October 9, 2014, Heritage
operated the Heritage incinerator in a manner that exceeded the maximum flue gas flowrate OPL
of 67,505 scfm on an hourly rolling average in violation of the HWC MACT and the 2008 and
2011 Title V Permits. See 40 C.F.R. §§ 63.1206(c)(1), 63.1209(j)(2), (k)(3), (m)(2), (n)(5),
(o)(2); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(8), 5(f)(9), 5(f)(12), 5(f)(13),
and 5(f)(14), of the 2008 and 2011 Title V Permits.
109.

The violations of the maximum flue gas flowrate OPL set forth in the preceding

Paragraph also constitute violations of the DRE standard and emissions limits for dioxins/furans,
particulate matter, semivolatile and low volatility metals, hydrogen chloride and chlorine gas set
forth in the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§§ 63.1206(c)(1)(iii), 63.1209(j), (k), (m), (n), (o), 63.1219(a)(1)(i)(A), 63.1219(c),
63.1219(a)(7), 63.1219(a)(6), and 63.1219(a)(3); and Conditions 5(b)(2)(a), 5(b)(2)(c),
5(b)(2)(d), 5(b)(2)(g), 5(b)(2)(h), and 5(b)(2)(i), 5(f)(6), 5(f)(8), 5(f)(9), 5(f)(12), 5(f)(13), and
5(f)(14) of the 2008 and 2011 Title V Permits.
110.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.

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SIXTH CLAIM FOR RELIEF
Violation of OPL on Minimum Carbon Injection Rate and Emissions Limits for
Dioxins/Furans and Mercury at the SDA
111.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

112.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL on the minimum carbon injection rate at
each location where the system injects in order to comply with the HWC MACT’s dioxins/furans
and mercury emissions limits. See 40 C.F.R. §§ 63.1209(k)(6)(i) and 63.1209(l)(3)
(incorporating by reference 63.1209(k)(6)); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6),
and 5(f)(7) of the 2011 Title V Permit.
113.

Pursuant to the HWC MACT, Heritage separately established the OPL for the

minimum carbon injection rate in its 2010 NOC for each of the two locations where carbon is
injected: (i) the SDA and (ii) the Scrubber.
114.

In the 2010 NOC, Heritage identified the OPL for the minimum carbon injection

rate as confidential business information pursuant to 40 C.F.R. Part 2, Subpart B thereby
preventing this Complaint from stating the limit. This limit was effective for the period of
November 18, 2010 through June 17, 2015.
115.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days from June 21, 2012 through November 29, 2014, Heritage operated the Heritage incinerator
in a manner that failed to comply with the minimum carbon injection rate OPL at the SDA in
violation of the HWC MACT and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1),
63.1209(k)(6)(i), and 63.1209(l)(3) (incorporating by reference 63.1209(k)(6)); and Conditions
5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), and 5(f)(7) of the 2011 Title V Permit.

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116.

The violations of the minimum carbon injection rate OPL at the SDA set forth in

the preceding Paragraph also constitute violations of the emissions limits for dioxins/furans and
mercury set forth in the HWC MACT and the 2011 Title V Permit. See 40 C.F.R.
§§ 63.1206(c)(1)(iii), 63.1209(k)-(l), 63.1219(a)(1)(i)(A), 63.1219(a)(2); and Conditions
5(b)(2)(a), 5(b)(2)(b), 5(f)(6), 5(f)(7), of the 2011 Title Permit.
117.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
SEVENTH CLAIM FOR RELIEF
Violation of OPL on Minimum Carbon Injection Rate and Emissions Limits for
Dioxins/Furans and Mercury at the Scrubber
118.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

119.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL on the minimum carbon injection rate at
each location where the system injects in order to comply with the HWC MACT’s dioxins/furans
and mercury emissions limits. See 40 C.F.R. §§ 63.1209(k)(6)(i) and 63.1209(l)(3)
(incorporating by reference § 63.1209(k)(6)); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1),
5(f)(6), and 5(f)(7) of the 2011 Title V Permit.
120.

Pursuant to the HWC MACT, Heritage separately established the OPL for the

minimum carbon injection rate in its 2010 NOC for each of the two locations where carbon is
injected: (i) the SDA and (ii) the Scrubber.
121.

In the 2010 NOC, Heritage identified the OPL for the minimum carbon injection

rate as confidential business information pursuant to 40 C.F.R. Part 2, Subpart B thereby

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preventing this Complaint from stating the limit. This limit was effective for the period of
November 18, 2010 through June 17, 2015.
122.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days from June 21, 2012 through November 29, 2014, Heritage operated the Heritage incinerator
in a manner that failed to comply with the minimum carbon injection rate OPL at the Scrubber in
violation of the HWC MACT and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1),
63.1209(k)(6)(i) and 63.1209(l)(3) (incorporating by reference § 63.1209(k)(6)); and Conditions
5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), and 5(f)(7) of the 2011 Title V Permit.
123.

The violations of the minimum carbon injection rate OPL at the Scrubber set forth

in the preceding Paragraph also constitute violations of emissions limits for dioxins/furans and
mercury set forth in the HWC MACT and the 2011 Title V Permit. See 40 C.F.R.
§§ 63.1206(c)(1)(iii), 63.1209(k)-(l), 63.1219(a)(1)(i)(A), 63.1219(a)(2); and Conditions
5(b)(2)(a), 5(b)(2)(b), 5(f)(6), and 5(f)(7), of the 2011 Title Permit.
124.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
EIGHTH CLAIM FOR RELIEF
Violation of OPL for Minimum Carrier Fluid Flowrate or Pressure Drop and
Emissions Limits for Dioxins/Furans and Mercury at the SDA
125.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

126.

At all relevant times herein, the HWC MACT and the 2008 Title V Permit

required Heritage to establish and comply with an OPL on the minimum carrier fluid flowrate or
pressure drop (minimum carbon feed pressure) at the Heritage Incinerator based on the

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manufacturer’s specifications in order to comply with the HWC MACT’s dioxins/furans and
mercury emissions limits. See 40 C.F.R. §§ 63.1209(k)(6)(ii) and 63.1209(l)(3) (incorporating
§ 63.1209(k)(6)); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), and 5(f)(7) of the 2008
and 2011 Title V Permits.
127.

Pursuant to the HWC MACT, Heritage separately established an OPL for the

pressure drop (minimum carbon feed pressure) in its 2010 NOC for each of the two locations
where carbon is injected: (i) the SDA; and (ii) the Scrubber.
128.

In the 2010 NOC, Heritage identified the OPL for the minimum carbon feed

pressure as 3.0 psig on an hourly rolling average at each location effective for the period of
November 18, 2010 through June 17, 2015.
129.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days from April 12, 2011 through May 11, 2011, Heritage operated the Heritage incinerator in a
manner that failed to comply with the minimum carbon feed pressure OPL at the SDA in
violation of the HWC MACT and the 2008 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1),
63.1209(k)(6)(ii) and 63.1209(l)(3) (incorporating § 63.1209(k)(6)); and Conditions 5(b)(1)(e),
5(b)(2)(l), 5(d)(1), 5(f)(6), and 5(f)(7) of the 2008 Title V Permit.
130.

The violations of the minimum carbon feed pressure OPL at the SDA set forth in

the preceding Paragraph also constitute violations of the emissions limits for dioxins/furans and
mercury set forth in the HWC MACT and the 2008 Title V Permit. See 40 C.F.R.
§§ 63.1206(c)(1)(iii), 63.1209(k)-(l), 63.1219(a)(1)(i)(A), 63.1219(a)(2); and Conditions
5(b)(2)(a), 5(b)(2)(b), 5(f)(6), and 5(f)(7) of the 2008 Title Permit.
131.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the

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statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
NINTH CLAIM FOR RELIEF
Violation of OPL for Minimum Carrier Fluid Flowrate or Pressure Drop and
Emissions Limits for Dioxins/Furans and Mercury at the Scrubber
132.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

133.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL on the minimum carrier fluid flowrate or
pressure drop (minimum carbon feed pressure) at the Heritage Incinerator in order to comply
with the HWC MACT’s dioxins/furans and mercury emissions limits. See 40 C.F.R.
§§ 63.1209(k)(6)(ii) and 63.1209(l)(3) (incorporating § 63.1209(k)(6)); and Conditions
5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), and 5(f)(7) of the 2008 and 2011 Title V Permits.
134.

Pursuant to the HWC MACT, Heritage separately established an OPL for the

minimum carbon feed pressure in its 2010 NOC for each of the two locations where carbon is
injected: (i) the SDA; and (ii) the Scrubber.
135.

In the 2010 NOC, Heritage identified the OPL for minimum carbon feed pressure

as 3.0 psig on an hourly rolling average at each location effective for the period of November 18,
2010 through June 17, 2015.
136.

In the 2015 NOC, Heritage identified the OPL for minimum carbon feed pressure

as 3.0 psig on an hourly average at each locating effective for the period of June 18, 2015
through the present.
137.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days from April 13, 2011 through July 30, 2016, Heritage operated the Heritage incinerator in a
manner that failed to comply with the minimum carbon feed pressure OPL at the Scrubber in

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violation of the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§§ 63.1206(c)(1), 63.1209(k)(6)(ii) and 63.1209(l)(3) (incorporating § 63.1209(k)(6)); and
Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(7) of the 2008 and 2011 Title V Permits.
138.

The violations of the minimum carbon feed pressure OPL at the Scrubber set forth

in the preceding Paragraph also constitute violations of the emissions limits for dioxins/furans
and mercury set forth in the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§§ 63.1206(c)(1)(iii), 63.1209(k)-(l), 63.1219(a)(1)(i)(A), 63.1219(a)(2); and Conditions
5(b)(2)(a), 5(b)(2)(b), 5(f)(6), and 5(f)(7) of the 2008 and 2011 Title Permits.
139.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
TENTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber Blowdown Rate and Emissions Limits for
Dioxins/Furans, Mercury and Particulate Matter at the Ring Jet Scrubber
140.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

141.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL on the minimum scrubber blowdown rate
for the Ring Jet Scrubber at the Heritage Incinerator in order to comply with the HWC MACT’s
dioxins/furans, mercury and particulate matter emissions limits. See 40 C.F.R. §§ 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)), (l)(3) (incorporating by reference
§ 63.1209(k)(5)), (m)(1); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(7) and
5(f)(13) of the 2008 and 2011 Title V Permits.

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142.

In the 2010 NOC, Heritage identified the OPL for minimum scrubber blowdown

rate for the Ring Jet Scrubber as 19.5 gallons per minute (gpm) on an hourly rolling average
effective for the period of November 18, 2010 through June 17, 2015.
143.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days from April 13, 2011 through December 4, 2013, Heritage operated the Heritage incinerator
in a manner that failed to comply with the minimum scrubber blowdown rate OPL for the Ring
Jet Scrubber in violation of the HWC MACT and the 2008 and 2011 Title V Permits. See
40 C.F.R. §§ 63.1206(c)(1), 63.1209(k)(5) (incorporating by reference § 63.1209(m)(1)), (l)(3)
(incorporating by reference § 63.1209(k)(5)), (m)(1); and Conditions 5(b)(1)(e), 5(b)(2)(l),
5(d)(1), 5(f)(6), 5(f)(7) and 5(f)(13) of the 2008 and 2011 Title V Permits
144.

The violations of the minimum scrubber blowdown rate OPL for the Ring Jet

Scrubber set forth in the preceding Paragraph also constitute violations of the emissions limits
for dioxins/furans, mercury and particulate matter set forth in the HWC MACT and the 2008 and
2011 Title V Permits. See 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209 (k), (l), (m),
63.1219(a)(1)(i)(A), 63.1219(a)(2) 63.1219(a)(7) and Conditions 5(b)(2)(a), 5(b)(2)(b),
5(b)(2)(h) 5(f)(6), 5(f)(7), and 5(f)(13), of the 2008 and 2011 Title V Permits.
145.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.

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ELEVENTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber Pressure Drop and Emissions Limits for
Dioxins/Furans, Mercury, Hydrogen Chloride and Chlorine, and Particulate Matter
at the Ring Jet Scrubber
146.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

147.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

required Heritage to establish and comply with an OPL for the minimum pressure drop across
the scrubber (minimum scrubber pressure drop) for the Ring Jet Scrubber in order to comply
with the HWC MACT’s dioxins/furans, mercury, particulate matter and hydrogen chloride and
chlorine gas emissions limits. See 40 C.F.R. § 63.1209(k)(5) (incorporating by reference
§ 63.1209(m)(1)), (l)(3) (incorporating by reference § 63.1209(k)(5)), (m)(1)(i)(B)(1)(ii),
(o)(3)(i)); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(7), 5(f)(12) and 5(f)(13) of
the 2008 and 2011 Title V Permits
148.

In the 2010 NOC, Heritage identified the OPL for minimum scrubber pressure

drop for the Ring Jet Scrubber as 28.0 inches of water column on an hourly rolling average
effective for the period of November 18, 2010 through June 17, 2015.
149.

In the 2015 NOC, Heritage identified the OPL for minimum scrubber pressure

drop for the Ring Jet Scrubber as 27.0 inches of water column on an hourly rolling average
effective for the period of June 18, 2015 to the present.
150.

Semi-Annual Reports prepared and submitted by Heritage show that on numerous

days beginning on or before January 30, 2011 and continuing thereafter, Heritage operated the
Heritage incinerator in a manner that failed to comply with the applicable minimum scrubber
pressure drop OPL for the Ring Jet Scrubber in violation of the HWC MACT and the 2008 and
2011 Title V Permits. See 40 C.F.R. §§ 63.1206(c)(1), 63.1209(k)(5)(ii) (incorporating by

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reference § 63.1209(m)(1)), (l)(3) (incorporating by reference § 63.1209(k)(5)), (m)(1); and
Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(7), 5(f)(12), and 5(f)(13) of the 2008 and
2011 Title V Permits.
151.

The violations of the minimum scrubber pressure drop OPL for the Ring Jet

Scrubber set forth in the preceding Paragraph also constitute violations of the emissions limits
for dioxins/furans, mercury, particulate matter and hydrogen chloride and chlorine gas set forth
in the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R. §§ 63.1209 (k)-(m),
(o), 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(k)-(m), 63.1219(a)(1)(i)(A), 63.1219(a)(2),
63.1219(a)(6), 63.1219(a)(7) and Conditions 5(f)(6), 5(f)(7), 5(f)(12), 5(f)(13), 5(b)(2)a., b., g.
and h. of the 2008 and 2011 Title V Permits.
152.

Unless restrained by an Order of the Court, these violations will continue.

153.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty up to the statutory maximum amounts set forth in Paragraph 50 above per violation per
day for each violation.
TWELFTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber Pressure Drop and
Emissions Limits for Dioxins/Furans, Particulate Matter, Mercury,
Hydrogen Chloride and Chlorine Gas at the Packed Bed Scrubber
154.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

155.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL for the minimum pressure drop across
the scrubber (minimum scrubber pressure drop) for the Packed Bed Scrubber in order to comply
with the HWC MACT’s emissions limits for dioxins/furans, particulate matter, mercury,

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hydrogen chloride and chlorine gas. See 40 C.F.R. § 63.1209(k)(5) (incorporating by reference
§ 63.1209(m)(1)), (l)(2) (incorporating by reference § 63.1209(o)(3)), (l)(3) (incorporating by
reference § 63.1209(k)(5)), (o)(3)(ii); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(7),
5(f)(12) of the 2011 Title V Permit.
156.

In the 2015 NOC, Heritage identified the OPL for minimum scrubber pressure

drop for the Packed Bed Scrubber as is 1.3 inches of water column water column on an hourly
rolling average effective for the period of June 18, 2015 to the present.
157.

Semi-Annual Reports prepared and submitted by Heritage show that on

September 5, 2015, and February 18, 2017, Heritage operated the Heritage incinerator in a
manner that failed to comply with the applicable minimum scrubber pressure drop OPL for the
Packed Bed Scrubber in violation of the HWC MACT and the 2011 Title V Permit. See
40 C.F.R. §§ 63.1206(c)(1), 63.1209(l)(2) (incorporating by reference § 63.1209(o)(3)),
(o)(3)(ii); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(7), 5(f)(12) of the 2011 Title V
Permit.
158.

The violations of the minimum scrubber pressure drop OPL for the Packed Bed

Scrubber set forth in the preceding Paragraph also constitute violations of the HWC MACT’s
emissions limits for dioxins/furans, particulate matter, mercury, hydrogen chloride and chlorine
gas and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)), (l)(2) (incorporating by reference
§ 63.1209(o)(3)), (l)(3) (incorporating by reference § 63.1209(k)(5)), (o)(3)(ii); § 63.1219(a)(2),
§ 63.1219(a)(6); and Conditions 5(f)(7), 5(f)(12), 5(b)(2)(b), and 5(b)(2)(g) of the 2011 Title V
Permit.

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159.

Unless restrained by an Order of the Court, these violations will continue.

160.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for injunctive relief and the assessment of a civil
penalty up to the statutory maximum amounts set forth in Paragraph 50 above per violation per
day for each violation.
THIRTEENTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber Tank Volume or Liquid and
Emissions Limits for Dioxins/Furans and Particulate Matter at the Ring Jet Scrubber
161.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

162.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL for the minimum scrubber tank volume
or liquid level for the Ring Jet Scrubber in order to comply with the HWC MACT’s
dioxins/furans and particulate matter emissions limits. See 40 C.F.R. § 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)), (l)(3) (incorporating by reference
§ 63.1209(k)(5)), (m)(1)(i)(B)(4); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(13)
of the 2011 Title V Permit.
163.

In the 2010 NOC, Heritage identified the OPL for minimum scrubber liquid level

for the Ring Jet Scrubber as 1.7 feet effective for the period of November 18, 2010 through June
17, 2015.
164.

Semi-Annual Reports prepared and submitted by Heritage show that on December

6, 2011, Heritage operated the Heritage incinerator in a manner that failed to comply with the
minimum scrubber tank volume or liquid level OPL for the Ring Jet Scrubber in violation of the
HWC MACT and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1), 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)), (l)(3) (incorporating by reference

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§ 63.1209(k)(5)), (m)(1)(i)(B)(4); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(13)
of the 2011 Title V Permit.
165.

The violations of the minimum scrubber volume or liquid level OPL for the Ring

Jet Scrubber set forth in the preceding Paragraph also constitute violations of the emissions limits
for dioxins/furans and particulate matter set forth in the HWC MACT and the 2011 Title V
Permits. See 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(k)-(m), 63.1219(a)(1)(i)(A) and (a)(7);
and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(6), 5(f)(13), 5(b)(2)(a), 5(b)(2)(h) of the 2011
Title V Permit.
166.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
FOURTEENTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber Water Flowrate and
Emissions Limits for Dioxins/Furans, Mercury, Particulate Matter,
Hydrogen Chloride and Chlorine Gas at the Ring Jet Scrubber
167.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

168.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL for the minimum liquid to gas ratio or the
minimum scrubber water flowrate and maximum flue gas flowrate for the Ring Jet Scrubber in
order to comply with the HWC MACT’s dioxins/furans, mercury, particulate matter, hydrogen
chloride and chlorine gas emissions limits. See 40 C.F.R. § 63.1209(k)(5) (incorporating by
reference § 63.1209(m)(1)), (l)(2) (incorporating by reference § 63.1209(o)(3)), (l)(3)
(incorporating by reference § 63.1209(k)(5)), (m)(1)(i)(C), (o)(3)(v); and Conditions 5(b)(1)(e),
5(b)(2)(l), 5(d)(1), and 5(f)(6), 5(f)(7), 5(f)(12), and 5(f)(13) of the 2011 Title V Permit.
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169.

In the 2015 NOC, Heritage identified the OPL for minimum scrubber water

flowrate for the Ring Jet Scrubber as 494.7 gallons per minute (gpm) on an hourly rolling
average effective for the period June 18, 2015 to the present.
170.

Semi-Annual Reports prepared and submitted by Heritage show that on February

17, 2017, Heritage operated the Heritage incinerator in a manner that failed to comply with the
minimum scrubber water flowrate OPL for the Ring Jet Scrubber in violation of the HWC
MACT and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1); 63.1209(k)(5)
(incorporating by reference § 63.1209(m)(1)), (l)(2) (incorporating by reference
§ 63.1209(o)(3)), (l)(3) (incorporating by reference § 63.1209(k)(5)), (m)(1)(i)(C), (o)(3)(v); and
Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), and 5(f)(6), 5(f)(7), 5(f)(12), and 5(f)(13) of the 2011
Title V Permit.
171.

The violations of the minimum scrubber water flowrate OPL for the Ring Jet

Scrubber set forth in the preceding Paragraph also constitute violations of the emissions limits
for dioxins/furans, mercury, particulate matter, hydrogen chloride and chlorine gas set forth in
the HWC MACT and the 2011 Title V Permit. See 40 C.F.R. §§ 63.1206(c)(1)(iii), 63.1209(l),
(o), 63.1219(a)(1)(i)(A), 63.1219(a)(2), 63.1219(a)(6), and 63.1219(a)(7); and Conditions
5(f)(6), 5(f)(7), 5(f)(12), 5(f)(13), 5(b)(2)(a), 5(b)(2)(b), 5(b)(2)(g), and 5(b)(2)(h) of the 2011
Title V Permit.
172.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.

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FIFTEENTH CLAIM FOR RELIEF
Violation of OPL for Minimum Scrubber pH and
Emissions Limits for Hydrogen Chloride and Chlorine Gas at the Scrubber
173.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

174.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish and comply with an OPL for the minimum scrubber pH in order to
comply with the HWC MACT’s hydrogen chloride and chlorine gas emissions limits. See 40
C.F.R. § 63.1209(o)(3)(iv); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), 5(f)(7), and 5(f)(12) of
the 2011 Title V Permit.
175.

In the 2010 NOC, Heritage identified the OPL for minimum scrubber pH as 7.6

on an hourly rolling basis effective for the period of November 18, 2010 through June 17, 2015.
176.

Semi-Annual Reports prepared and submitted by Heritage show that on May 18,

2014, Heritage operated the Heritage incinerator in a manner that failed to comply with the
minimum scrubber pH OPL in violation of the HWC MACT and the 2011 Title V Permit. See
40 C.F.R. §§ 63.1206(c)(1), 63.1209(o)(3)(iv); and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1),
5(f)(7), and 5(f)(12) of the 2011 Title V Permit.
177.

The violations of the minimum scrubber pH OPL set forth in the preceding

Paragraph also constitute violations of the emissions limits for hydrogen chloride and chlorine
gas set forth in the HWC MACT and the 2011 Title V Permit. See 40 C.F.R.
§§ 63.1209(o)(3)(iv), 63.1219(a)(6), and Conditions 5(b)(2)(b), 5(b)(2)(g), 5(f)(7), and 5(f)(12)
of the 2011 Title V Permit.
178.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the

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statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
SIXTEENTH CLAIM FOR RELIEF
Violation of ESP Field OPL and Emissions Limits for Particulate Matter at the ESP
179.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

180.

At all relevant times herein, the HWC MACT and the 2011 Title V Permit

required Heritage to establish a set of OPLs for its ESP that are a representative and reliable
indicator of the control device performance in order to comply with the HWC MACT’s
particulate matter emissions limits. These OPLs shall consist of minimum operating parameter
limit or a maximum operating parameter limit within which the control device can operate and
still continuously achieve the same operating conditions as during the performance test. See
40 C.F.R. § 63.1209(m)(1)(iv) and Conditions 5(b)(1)(e), 5(b)(2)(l), 5(d)(1), and 5(f)(13) of the
2011 Title V Permit.
181.

In the 2015 NOC, Heritage identified the OPL for the minimum power to each

ESP field as 100 milliamps (mA) on an hourly rolling average basis effective for the period of
June 18, 2015 to the present.
182.

Semi-Annual Reports prepared and submitted by Heritage show that on February

18, 2017, Heritage operated the ESP on the Heritage incinerator in a manner that failed to
comply with the minimum ESP power OPL in violation of the HWC MACT and the 2011 Title
V Permit. See 40 C.F.R. §§ 63.1206(c)(1), 63.1209(m)(1)(iv) and Conditions 5(b)(1)(e),
5(b)(2)(l), 5(d)(1), 5(f)(13) of the 2011 Title V Permit.
183.

The violation of the ESP power OPL set forth in the preceding Paragraph also

constitute a violation of the emissions limits for particulate matter set forth in the HWC MACT

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and the 2011 Title V Permits. See 40 C.F.R. §§ 63.1209(m), (l)(iv), 63.1219(a)(7); and
Conditions 5(b)(2)(h) and 5(f)(13) of the 2011 Title V Permit.
184.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
SEVENTEENTH CLAIM FOR RELIEF
Failure to Duct Emissions to Air Pollution Control Equipment
185.

Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.

186.

At all relevant times herein, the HWC MACT and the Heritage Title V Permits

required that during an automatic waste feed cut off event (“AWFCO”) Heritage continue to duct
combustion gases from the Heritage incinerator to the air pollution control system while
hazardous waste remains in the combustion chamber (i.e., if the hazardous waste residence time
has not transpired since the hazardous waste feed cutoff system was activated). See 40 C.F.R.
§ 63.1206(c)(3)(ii); and Conditions 5(b)(1)(e), 5(b)(2)(n), 5(c)(1) and 5(c)(2) of the 2008 and
2011 Title V Permits.
187.

Responses to EPA Requests for Information submitted by Heritage show that on

April 12, 2011 and July 13, 2013, Heritage failed to duct combustion gases to the air pollution
control system during AWFCO events while hazardous waste remained in the combustion
chamber, in violation of the HWC MACT and the 2008 and 2011 Title V Permits. See 40 C.F.R.
§ 63.1206(c)(3)(ii) and Conditions 5(b)(1)(e), 5(b)(2)(n), 5(c)(1) and 5(c)(2) of the 2008 and
2011 Title V Permits.

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188.

As a result of the above-listed violations and pursuant to Section 113(b) of the

CAA, 42 U.S.C. § 7413(b), Heritage is liable for the assessment of a civil penalty up to the
statutory maximum amounts set forth in Paragraph 50 above per violation per day for each
violation.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff United States respectfully requests that this Court:
1.

Issue an injunction requiring Heritage to remedy its past and current non-

compliance with the CAA and the implementing regulations under that statute, and to comply
prospectively with all applicable requirements;
2.

Assess civil penalties against Heritage for up to the amounts provided in the CAA

for each day of violation;
3.

Award the United States its costs and disbursements in this action; and

4.

Grant such relief as this Court deems just and proper.

United States v. Heritage Thermal Services Complaint

Page 42.

 Case: 4:18-cv-02419 Doc #: 1 Filed: 10/18/18 43 of 43. PageID #: 43

Respectfully submitted,
THE UNITED STATES OF AMERICA

Date: October 10, 2018

/s/ Bruce S. Gelber
BRUCE S. GELBER
Deputy Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

s ~~.~.~ ~o p ~--~
ELTZAB~T~fI LOEB
Senior A~rney
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044-7611
Telephone: (202)616-8916
Elizabeth.loeb@usdoj.gov

JUSTIN E. HERDMAN
United States Attorney
Northern District of Ohio
/s/ Steven J. Paffilas
STEVEN J. PAFFILAS (Bar No. 0037376)
Assistant United States Attorney
Northern District of Ohio
801 W. Superior Avenue, Suite 400
Cleveland, OH 44113
Telephone: (216)622-3698
Facsimile: (216)522-4928
Steven.Paffilas@usdoj.gov
OF COUNSEL:
JOHN MATSON
Associate Regional Counsel
U.S. Environmental Protection Agency, Region 5

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