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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 1 of 39 - Page ID # 1
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`THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
`
`UNITED STATES OF AMERICA,
`
`and
`
`the STATE OF NEBRASKA
`
`Plaintiffs,
`
`
`
`v.
`
`CLEAN HARBORS ENVIRONMENTAL
`SERVICES, INC.
`
`
`
`Defendant.
`
`Civil Action No. 8:20-cv-351
`
`
`
`COMPLAINT
`
`
`
`The United States of America, by authority of the Attorney General of the United States
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`and through the undersigned attorney, acting at the request of the Administrator of the United
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`States Environmental Protection Agency (“EPA”), and the State of Nebraska, by authority of the
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`Attorney General of Nebraska, on behalf of the Nebraska Department of Environment and
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`Energy (“NDEE”), formerly known as the Nebraska Department of Environmental Quality
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`(“NDEQ”), file this Complaint, and allege as follows:
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`NATURE OF ACTION
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`1.
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`This is a civil action brought against Clean Harbors Environmental Services, Inc.
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`(“Clean Harbors”) to obtain injunctive relief and civil penalties under the Resource Conservation
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`and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq., the Clean Air Act (“CAA”), 42 U.S.C.
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`§ 7401, et seq., the Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42
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`1
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`U.S.C. § 11001, et seq., and the Nebraska Environmental Protection Act (“NEPA”), Neb. Rev.
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`Stat. § 81-1501 et seq.
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`JURISDICTION, VENUE, AUTHORITY AND NOTICE
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`2.
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`This Court has jurisdiction over the parties and subject matter of this action
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`pursuant to 28 U.S.C. §§ 1331, 1345, and 1355. In addition, this Court has jurisdiction over the
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`subject matter of this action pursuant to Sections 113(b) and 167 of the CAA, 42 U.S.C. §§
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`7413(b) and 7477, Section 325(c)(4) of EPCRA, 42 U.S.C. § 11045(c)(4), and Section
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`3008(a)(1) and (g) of RCRA, 42 U.S.C. § 6928(a)(1) and (g).
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`3.
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`Venue is proper in the District of Nebraska pursuant to 28 U.S.C. §§ 1391(b), (c),
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`and 1395(a); and RCRA Sections 3008(a) and (g), 42 U.S.C. §§ 6928(a) and (g); EPCRA
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`Sections 325(b)(3) and (c)(4), 42 U.S.C. §§ 11045(b)(3) and (c)(4), and Section 113(b) of the
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`CAA, 42 U.S.C. § 7413(b), because it is the judicial district where the Defendant is located,
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`where a substantial part of the events or omissions giving rise to the claims occurred, and where
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`the alleged violations occurred.
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`4.
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`Authority to bring this civil action on behalf of the United States is vested in the
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`Attorney General of the United States pursuant to Section 305 of the CAA, 42 U.S.C. § 7605,
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`Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), Section 325(c)(4) of EPCRA, 42 U.S.C.
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`§ 11045(c)(4), and 28 U.S.C. §§ 516 and 519.
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`5.
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`Notice of the commencement of this action has been given to the State of
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`Nebraska in accordance with Section 113(a)(1) of the CAA, 42 U.S.C. § 7413(a)(1), and as
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`required by Section 113(b) of the CAA, 42 U.S.C. § 7413(b), and Section 3008(a)(2) of RCRA,
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`42 U.S.C. § 6928(a)(2).
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`
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`DEFENDANT
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`2
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`6.
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`Defendant Clean Harbors is a Massachusetts corporation doing business in
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`Nebraska.
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`7.
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`Defendant operates a commercial hazardous waste incinerator located at 2247
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`South Highway 71 in Kimball, Nebraska (hereinafter “Facility”). As a result, Defendant treats
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`and stores hazardous waste as defined in Title 128 Neb. Admin. Code §§ 1-062 (previously
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`codified at § 1-060 before the 2016 amendments), 2-001 et seq., and 3-001 et seq.
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`8.
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`Defendant is, and at all times relevant to this action has been, a “person” within
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`the meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15), Section 329(7) of
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`EPCRA, 42 U.S.C. § 11049(7), Section 302(e) of CAA, 42 U.S.C. § 7602(e), and NEPA, Neb.
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`Rev. Stat. § 81-1502(10).
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`STATUTORY AND REGULATORY FRAMEWORK
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`Resource Conservation and Recovery Act
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`9.
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`Federal regulation of hazardous waste is primarily based on RCRA, enacted on
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`October 21, 1976, to amend the Solid Waste Disposal Act, and on the Hazardous and Solid
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`Waste Amendments (“HSWA”), enacted by Congress in 1984 to further amend the Solid Waste
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`Disposal Act. RCRA establishes a “cradle-to-grave” program to be administered by the
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`Administrator of EPA and authorized states for regulating the generation, transportation,
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`treatment, storage, and disposal of hazardous waste. See 42 U.S.C. § 6901 et seq.
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`10.
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`RCRA’s Subchapter III (RCRA §§ 3001-3023, 42 U.S.C. §§ 6921-6940, known
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`as “Subtitle C”) required EPA to promulgate regulations establishing performance standards
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`applicable to facilities that generate, transport, treat, store, or dispose of hazardous wastes.
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`Together, RCRA Subtitle C and its implementing regulations, set forth at 40 C.F.R. Parts 260 –
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`279, comprise EPA’s RCRA hazardous waste program.
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`11.
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`Section 3002 of RCRA, 42 U.S.C. § 6922, and the regulations promulgated
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`thereunder at 40 C.F.R. Part 262, establish standards applicable to generators of hazardous waste.
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`12.
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`Section 3004 of RCRA, 42 U.S.C. § 6924, and the regulations promulgated
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`thereunder at 40 C.F.R. Part 264, establish standards applicable to owners and operators of
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`hazardous waste treatment, storage, and disposal (“TSD”) facilities.
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`13.
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`Subparts BB and CC of 40 C.F.R. Part 264 contain air emission standards
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`applicable to owners and operators of TSD facilities.
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`14.
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`Section 3004(d) through (o) of RCRA, 42 U.S.C. § 6924(d)-(o), and the
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`regulations promulgated thereunder at 40 C.F.R. Part 268, establish pre-disposal treatment
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`requirements for land disposal of certain hazardous wastes.
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`15.
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`Section 3005 of RCRA, 42 U.S.C. § 6925, and the regulations promulgated
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`thereunder at 40 C.F.R. Part 270, require the owner or operator of a TSD facility to obtain an
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`operating permit.
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`16.
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`RCRA Section 3006, 42 U.S.C. § 6926, allows the Administrator to authorize a
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`state to administer its own hazardous waste program in lieu of the federal program when the
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`Administrator deems the state program to be equivalent to and consistent with the federal
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`program. When the Administrator has authorized a state to administer its own hazardous waste
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`program, EPA retains jurisdiction and authority to initiate an independent enforcement action,
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`pursuant to Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2).
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`17.
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`The State of Nebraska has been granted authorization to administer and enforce a
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`hazardous waste program pursuant to Section 3006 of RCRA, 42 U.S.C. § 6926, and the State of
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`Nebraska has adopted by reference the federal regulations cited herein at pertinent parts of Title
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`128 of the Nebraska Administrative Code - Rules and Regulations Governing Hazardous Waste
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`Management (hereinafter “Title 128”). January 24, 1985, effective February 7, 1985 (50 FR
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`3345). Section 3008 of RCRA, 42 U.S.C. § 6928, authorizes EPA to enforce the provisions of
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`the authorized State program and the regulations promulgated thereunder. When EPA determines
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`that any person has violated or is in violation of any RCRA requirement, EPA may issue an order
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`assessing a civil penalty for any past or current violation and/or require immediate compliance or
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`compliance within a specified time period pursuant to Section 3008 of RCRA, 42 U.S.C. § 6928.
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`The State of Nebraska has been notified of this action in accordance with Section 3008(a)(2) of
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`RCRA, 42 U.S.C. § 6928(a)(2).
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`18.
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`The Facility operates under a RCRA Part I Hazardous Waste Treatment and
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`Storage Permit, EPA/NDEQ I.D. Number: NED981723513, issued pursuant to Title 128 by
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`NDEQ, the predecessor agency to NDEE (“Part I Permit”). For purposes of this Complaint,
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`references to Defendant’s Part I Permit include the Part I Permit issued on or about June 1, 2009,
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`by NDEQ, expiring on May 31, 2014, the conditions of which were applicable until the Part I
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`Permit was renewed on December 1, 2015, and all subsequent modifications.
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`19.
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`The Facility also operates under a RCRA Part II Hazardous Waste Treatment and
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`Storage Permit, EPA/NDEQ I.D. Number: NED981723513, issued pursuant to Section 3005 of
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`RCRA by the EPA (“Part II Permit”). For purposes of this Complaint, references to Defendant’s
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`Part II Permit include the Part II Permit issued May 29, 2009, expiring on May 29, 2019, the
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`conditions of which are continued in accordance with 40 C.F.R. 270.51(a) or (d), and all
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`subsequent modifications.
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`20.
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`Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), authorizes the United States to
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`commence a civil action in United States District Court to seek appropriate relief, including a
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`temporary or permanent injunction, in the event of a violation of RCRA, the regulations
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`promulgated thereunder, the requirements of a federally-approved state hazardous waste
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`program, including the Nebraska program and the regulations promulgated at Title 128, and any
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`permit issued pursuant to a federally-approved state hazardous waste program, including the
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`Permit. Section 3008(g) of RCRA, 42 U.S.C. § 6928(g), imposes a civil penalty for each such
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`violation. In addition, Neb. Rev. Stat. §§ 81-1508.02(1)(b) and (e) make it unlawful to violate
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`any permit condition or limitation and any provision of NDEE’s rules and regulations and, thus,
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`subject to a civil penalty under NEPA.
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`21.
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`Section 3008(g) of RCRA, 42 U.S.C. § 6928(g), authorizes a civil penalty of not
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`more than $25,000 per day for each violation of Subchapter III of RCRA (Hazardous Waste
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`Management). The Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, as amended,
`
`and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C.
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`§ 2461, and implementing regulations at 40 C.F.R. Part 19, increased this statutory maximum
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`penalty to $37,500 per day for each violation occurring after January 12, 2009 through December
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`6, 2013; $71,264 per day for each violation occurring between December 7, 2013 and November
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`2, 2015; $74,552 per day for each violation that occurred after November 2, 2015, where
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`penalties were assessed on or after February 6, 2019 but before January 13, 2020; and $75,867
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`per day for each violation that occurred after November 2, 2015 where penalties are assessed on
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`or after January 13, 2020.
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`Clean Air Act
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`22.
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`The CAA establishes a regulatory framework designed to protect and enhance the
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`quality of the nation's air so as to promote the public health and welfare and the productive
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`capacity of its population. 42 U.S.C. § 7401.
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`A. National Ambient Air Quality Standards and Prevention of Significant
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`Deterioration
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`23.
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`Section 110 of the CAA, 42 U.S.C. § 7410, grants the Administrator of EPA
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`authority to approve a state plan which provides for implementation, maintenance, and
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`enforcement of a standard in each air quality control region within the state.
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`24.
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`Title 129 of the Nebraska Administrative Code – Nebraska Air Quality
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`Regulations contains regulations that govern air quality in Nebraska, promulgated pursuant to the
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`NEPA, Neb. Rev. Stat. § 81-1501 et seq.
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`25.
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`Nebraska’s prevention of significant deterioration permit program is part of the
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`federally-approved state implementation plan (“SIP”). See 129 Neb. Admin. Code § 19-001 et
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`seq.
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`26.
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`Pursuant to 129 Neb. Admin. Code § 19-001 et seq., the Facility was issued Air
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`Quality Construction Permit #CP-13-008, effective May 20, 2013, based on modifications to the
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`Facility that caused the Area 58 Tank Farm to be subject to 40 C.F.R. Part 61, Subpart V, which
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`has been adopted by reference in 129 Neb. Admin. Code § 23-001.12.
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`27.
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`Pursuant to Section 113 of the Act, 42 U.S.C. § 7413, the requirements of the
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`Nebraska SIP, as approved by EPA, are enforceable by EPA. In addition, Neb. Rev. Stat. § 81-
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`1506(4)(b) and (c) make it unlawful to violate any term or condition of an air pollution permit or
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`any emission limit set in the permit; or violate any emission limit or air quality standard
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`established by the Nebraska Environmental Quality Council.
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`B. Title V Operating Permits
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`28.
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`Title V of the CAA, 42 U.S.C. §§ 7661-7661f, establishes an operating permit
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`program for certain sources, including “major sources.” The purpose of Title V is to ensure that
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`all “applicable requirements” for compliance with the CAA, including PSD requirements, are
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`collected in one place.
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`29.
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`Pursuant to Section 502(a) of the Act, 42. U.S.C. § 7661a, it is unlawful for a
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`major source to operate without or in violation of a permit issued pursuant to Title V of the Act,
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`42 U.S.C. § 7661 et seq. See also 40 C.F.R. § 70.7(b) and 129 Neb. Admin. Code § 8-007.01 and
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`129 Neb. Admin. Code § 5-001 et seq. In addition, Neb. Rev. Stat. § 81-1506(4)(b) and (c) make
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`it unlawful to violate any term or condition of an air pollution permit or any emission limit set in
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`the permit; or violate any emission limit or air quality standard established by the Nebraska
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`Environmental Quality Council.
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`30.
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`The Nebraska Title V operating permit program was fully approved by EPA on
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`October 18, 1995. These regulations are currently codified at 129 Neb. Admin. Code, Chapters 1,
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`2, 5–15, 29, 40–43, insofar as they apply to Title V.
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`31.
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`A “Permit to Operate (Permit # 03R1-001) An Air Contaminant Source” was
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`issued by NDEE, pursuant to its approved Title V Program, to Defendant on or about August 6,
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`2009, and subsequently modified, including a modification effective August 11, 2011. The
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`permit expired August 5, 2014, however, the conditions of the permit continued until the
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`effective date of a new permit pursuant to 129 Neb. Admin. Code § 8-003. For purposes of this
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`Complaint, all references to Nebraska Operating Permit #03R1-001 mean the Operating Permit
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`effective August 11, 2011 (“Air Operating Permit #03R1-001”).
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`C. Clean Air Act Section 112 Regulation of HAPs Pre-1990
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`32.
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`CAA Section 112 contains requirements to control certain hazardous air
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`pollutants (“HAPs,”), such as benzene and vinyl chloride. These requirements are known as
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`“National Emissions Standards for Hazardous Air Pollutants” (“NESHAPS”). NESHAPS
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`established before the CAA was amended in 1990 are promulgated at 40 C.F.R. Part 61.
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`33.
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`Pursuant to CAA Section 112, 42 U.S.C. § 7412, before it was amended on
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`November 15, 1990 (the “1990 CAA Amendments”), the EPA promulgated NESHAPS for
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`categories of stationary sources. Among these source categories, the EPA promulgated the
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`National Emission Standard for Equipment Leaks (Fugitive Emission Sources) found at 40
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`C.F.R. Part 61, Subpart V.
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`34.
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`40 C.F.R. Part 61, Subpart V, establishes, inter alia, standards for volatile
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`hazardous air pollutant leaks from pumps, compressors, pressure relief devices in gas/vapor
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`service, sampling connecting systems, open-ended valves or lines, valves, pressure relief services
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`in liquid service and connectors, surge control vessels and bottoms receivers, delay of repair, and
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`closed-vent systems and control devices that are intended to operate in volatile hazardous air
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`pollutant (“VHAP”) service. In addition, Subpart V establishes test methods and procedures,
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`recordkeeping and reporting requirements.
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`D. Clean Air Act Section 112 Regulation of HAPs Post-1990
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`35.
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`Through the 1990 Amendments, Congress established a list of 188 HAPs believed
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`to cause adverse health or environmental effects, 42 U.S.C. § 7412(b)(1), and directed EPA to
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`publish a list of all “categories and subcategories” of “major sources” of HAPs. 42 U.S.C.
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`§ 7412(c).
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`36.
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`Congress directed EPA to promulgate regulations establishing emission standards
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`for each category or subcategory of major sources of HAPs. 42 U.S.C. § 7412(d)(1). These
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`emission standards must require the maximum degree of reduction in emissions of HAPs that the
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`Administrator, taking into consideration the cost of achieving such emission reduction, and any
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`non-air quality health and environmental impacts and energy requirements, determines is
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`achievable for the new or existing sources in the category or subcategory to which the emission
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`standard applies. 42 U.S.C. § 7412(d)(2).
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`37.
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`The emission standards promulgated under Section 112 of the CAA, 42 U.S.C.
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`§ 7412, are known as the NESHAPs for Source Categories. These emission standards are found
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`in Part 63 of Title 40 of the Code of Federal Regulations.
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`38.
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`After the effective date of any emission standard, limitation, or regulation
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`promulgated pursuant to Section 112 of the CAA, no person may operate a source in violation of
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`such standard, limitation, or regulation. 42 U.S.C. § 7412(i)(3).
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`39.
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`For the hazardous waste combustor industry, EPA promulgated the NESHAPs
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`pursuant to 42 U.S.C. § 7412 at 40 C.F.R. Part 63, Subpart EEE (“Subpart EEE”), effective
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`September 30, 1999. Subpart EEE establishes emission standards, operating limits, monitoring
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`and compliance provisions, notification, reporting and recordkeeping requirements applicable to
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`all hazardous waste combustors, including hazardous waste incinerators.
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`E. Clean Air Act 112(r)
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`40.
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`In 1990, Congress enacted Section 112(r) of the CAA, 42 U.S.C. § 7412(r)(1), to
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`prevent accidental release and to minimize the consequences of any such release that may cause
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`death, injury or property damage.
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`41.
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`Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), authorizes EPA to
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`promulgate release prevention, detection, and correction requirements to prevent accidental
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`releases of “regulated substances,” and requires a prompt emergency response to any such
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`releases in order to protect human health and the environment. EPA promulgated regulations to
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`implement Section 112(r)(7), codified at 40 C.F.R. Part 68 and known as the Risk Management
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`Program (“RMP”) regulations, which apply to the owners and operators of stationary sources
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`that have more than a threshold quantity of a regulated substance in a “process.” See 40 C.F.R. §
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`68.10.
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`42.
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`40 C.F.R. § 68.3 defines “process” to mean “any activity involving a regulated
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`substance including any use, storage, manufacturing, handling, or on-site movement of such
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`substances, or any combination of these activities.” “Covered process” means “a process that has
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`a regulated hazardous substance present in more than a threshold quantity as determined under
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`[40 C.F.R.] § 68.115.”
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`43.
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`Section 112(r)(2)(B) of the CAA, 42 U.S.C. § 7412(r)(2)(B), defines “regulated
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`substance” as any substance listed by EPA under Section 112(r)(3) of the CAA, 42 U.S.C. §
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`7412(3). Pursuant to Section 112(r)(3), 42 U.S.C. § 7412(r)(3), EPA promulgated a list of
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`“regulated substances.” See 40 C.F.R. § 68.130.
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`44. Whenever any person has violated, or is in violation of, any requirement or
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`prohibition of the CAA and its implementing regulations, including any requirement or
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`prohibition of an applicable implementation plan or permit, Section 113(b) of the CAA, 42
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`U.S.C. § 7413(b), authorizes the United States to commence a civil action for a permanent or
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`temporary injunction, and/or for civil penalties.
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`45.
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`Section 113(b) of the CAA, 42 U.S.C. § 7413(b), authorizes a civil penalty of not
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`more than $25,000 per day for each violation. The Debt Collection Improvements Act of 1996,
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`31 U.S.C. § 3701, as amended, and the Federal Civil Penalties Inflation Adjustment Act
`
`Improvements Act of 2015, 28 U.S.C. § 2461, and implementing regulations at 40 C.F.R. Part
`
`19, increased this statutory maximum penalty to $37,500 per day for each violation occurring
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`after January 12, 2009 through December 6, 2013; $71,264 for each violation occurring between
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`December 7, 2013 and November 2, 2015; $99,681 for violations that occurred after November
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`2, 2015, where penalties were assessed on or after February 6, 2019 but before January 13, 2020;
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`and $101,439 per day for each violation that occurred after November 2, 2015 where penalties
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`are assessed on or after January 13, 2020.
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`Emergency Planning and Community Right -to -Know Act
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`46.
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`EPCRA was enacted on October 17, 1986 as Title III of the Superfund
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`Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (1986) (codified at 42 U.S.C.
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`§§ 11001-11050).
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`47.
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`Pursuant to Section 311(a) of EPCRA, 42 U.S.C. § 11021(a), the owner or
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`operator of any facility that is required to prepare or to have available a material safety data
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`sheet (“MSDS”) for a hazardous chemical in accordance with the Occupational Safety and
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`Health Act (“OSHA”) and its implementing regulations must submit to the appropriate local
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`emergency planning committee, state emergency planning committee, and fire department, for
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`those chemicals present at the facility in quantities equal to or greater than the minimum
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`threshold level set by EPA pursuant to 40 C.F.R. § 370.10, a copy of the MSDSs for such
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`chemicals or a list of all such chemicals.
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`48.
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`Pursuant to Section 312(a) of EPCRA, 42 U.S.C. § 11022(a), the owner or
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`operator of any facility that is required to prepare or to have available a MSDS for a hazardous
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`chemical in accordance with the OSHA and its implementing regulations must prepare and
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`submit annually, to the appropriate local emergency planning committee, state emergency
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`planning committee, and fire department, for each such chemical present at the facility in an
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`amount equal to or greater than the minimum threshold level set by EPA for such chemical,
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`pursuant to 40 C.F.R. § 370.10, an emergency and hazardous chemical inventory form.
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`49.
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`Pursuant to Section 313(a) of EPCRA, 42 U.S.C. § 11023(a), and 40 C.F.R.
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`§ 372.22, the owner or operator of any facility that 1) has 10 or more full-time employees, 2) is
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`in standard industrial codes (“SIC”) 20 through 39 or one of the codes specified in 40 C.F.R.
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`§ 372.23(a), which includes code 4953, and 3) manufactured, processed, or otherwise used a
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`toxic chemical listed under Section 313(c) of EPCRA, 42 U.S.C. § 11023(c), and 40 C.F.R.
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`§ 372.65 in excess of the threshold quantity established under Section 313(f) of EPCRA, 42
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`U.S.C. § 11023(f), and 40 C.F.R. § 372.25 during the preceding calendar year, is required to
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`submit annually to EPA and the state in which the subject facility is located a Toxic Chemical
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`Release Inventory ("TRI") Reporting Form for such chemical.
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`50.
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`According to Section 313(f) of EPCRA, 42 U.S.C. § 11023(f), and 40 C.F.R.
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`§ 372.25, the threshold amount for reporting under Section 313(b) of EPCRA, 42 U.S.C.
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`§ 11023(b), and 40 C.F.R. § 372.30, is 25,000 pounds for any toxic chemical “manufactured or
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`processed” and 10,000 pounds for any toxic chemical “otherwise used” for the applicable
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`calendar year. Alternative reporting thresholds for certain other chemicals are set forth in 40
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`C.F.R. §§ 372.27 and 372.28.
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`51.
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`Section 325(c) of EPCRA, 42 U.S.C. § 11023(c), authorizes the United States to
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`commence a civil action in United States District Court to seek a civil penalty for any violation
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`of Sections 311, 312, or 313 of EPCRA, 42 U.S.C. §§ 11021-23. Section 325(c)(1) of EPCRA,
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`42 U.S.C. § 11045(c)(1), authorizes a civil penalty not to exceed $25,000 for each violation of
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`Section 313 of EPCRA, 42 U.S.C. § 11021. The Debt Collection Improvements Act of 1996, 31
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`U.S.C. § 3701, as amended, and the Federal Civil Penalties Inflation Adjustment Act
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`Improvements Act of 2015, 28 U.S.C. § 2461, and implementing regulations at 40 C.F.R. Part
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`19, increased this statutory maximum penalty to $37,500 for violations occurring after January
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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 14 of 39 - Page ID # 14
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`12, 2009 through November 2, 2015; $57,317 for violations that occurred after November 2,
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`2015, where penalties were assessed on or after February 6, 2019 but before January 13, 2020;
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`and $58,328 for violations that occurred after November 2, 2015 where penalties are assessed on
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`or after January 13, 2020.
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`GENERAL ALLEGATIONS
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`52.
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`The Facility is a hazardous waste TSD facility that performs hazardous materials
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`management and disposal services.
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`53.
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`The Facility is, and at all times relevant to this action has been, a “facility” within
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`the meaning of 40 C.F.R. § 260.10, Section 329(4) of EPCRA, 42 U.S.C. § 11049(4), 40 C.F.R.
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`§ 372.3, and 128 Neb. Admin. Code § 1-052.
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`54.
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`At all times relevant to this action, the Facility employed more than 10 “full-time
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`employees” as that term is defined in Section 313(b)(1)(A) of EPCRA, 42 U.S.C.
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`§ 11023(b)(1)(A), and as defined by 40 C.F.R. § 372.3.
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`55.
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`56.
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`At all times relevant to this action, the Facility’s SIC was 4953.
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`At all times relevant to this action, Defendant was the “owner” and/or “operator”
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`of the Facility within the meaning of 40 C.F.R. § 260.10; Section 112(a)(9) of the CAA, 42
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`U.S.C. § 7412(a)(9); 129 Neb. Admin. Code § 1-097; and 128 Neb. Admin. Code §§ 1-100, 1-
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`101. The Facility is a “stationary source” within the meaning of 40 C.F.R. § 68.3; Sections
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`112(a)(3), 112(a)(9), and 112(r)(2)(C) of the CAA, 42 U.S.C. §§ 7412(r)(2)(C), 7412(a)(3), and
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`7412(a)(9); and 129 Neb. Admin. Code § 1-154. The Facility includes a “covered process”
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`within the meaning of 40 C.F.R. § 68.3.
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`57.
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`At all times relevant to this action, the Defendant owned and operated equipment,
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`including pumps, compressors, pressure relief devices, sampling connection systems, open-
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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 15 of 39 - Page ID # 15
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`ended valves or lines, valves, connectors, surge control vessels, bottoms receivers, and/or control
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`devices or systems, that either contain or contact a liquid or gas that is at least 10 percent by
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`weight a volatile HAP, as determined according to the provisions of 40 C.F.R. § 61.245(d), at the
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`Facility. 40 C.F.R. § 61.240(a).
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`58.
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`At all times relevant to this action, the Defendant owned and operated a “major
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`source” of HAPs within the meaning of 42 U.S.C. § 7412(a)(1), and subject to Subpart EEE.
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`59.
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`The Facility is, and at all times relevant to this action has been, used for treating,
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`storing, or disposing of “hazardous waste” within the meaning of Section 1004 of RCRA, 42
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`U.S.C. § 6903(5), and 128 Neb. Admin. Code §§ 2-004 to 2-007.
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`60.
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`At all times relevant to this action, the Facility produced, processed, handled,
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`and/or stored one or more regulated substances listed under Section 112(r)(3) of the CAA, 42
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`U.S.C. § 7412(r)(3), above the thresholds set forth in 40 C.F.R. § 68.10, and used these
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`substances in a “process” as defined by 40 C.F.R. § 68.3.
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`61.
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`Defendant owns or operates a covered process that is subject to OSHA’s process
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`safety management standard at 29 C.F.R. § 1910.119 and is therefore subject to the Program 3
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`requirements of 40 C.F.R. Part 68, Subpart D, as specified in 40 C.F.R. § 68.12(d).
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`62.
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`The Facility consists of a hazardous waste incinerator, or thermal oxidation unit,
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`with associated waste storage in tanks and containers, waste consolidation, and waste transfer
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`operations. The Facility manages waste streams consisting of contaminated process wastewaters,
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`soils, solids, residues from the chemical processing industry, oil, spent flammable solvents, paint
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`residues, and chemical spill clean-up material.
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`63.
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`The Facility receives bulk solid and hazardous wastes in 55-gallon drums and
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`large roll-off containers, and liquid, solid, and hazardous wastes by tanker truck and 55-gallon
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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 16 of 39 - Page ID # 16
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`drums and stores these wastes in specific permitted areas of the Facility. The Facility also has
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`one or more 90-day storage areas that are not subject to the requirements of the Part I and Part II
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`Permit.
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`64.
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`Incoming wastes are either incinerated on-site or shipped off-site to another
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`designated facility.
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`65.
`
`66.
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`Prior to incineration of the waste, it is treated and/or stored in tanks or containers.
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`Solid and hazardous wastes are incinerated by use of a thermal oxidation unit,
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`also described as a fluidized bed incinerator. Liquid wastes are sprayed into the thermal
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`oxidation unit, and solid wastes are transported into the incinerator via a conveyor belt. The
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`fluidized bed incinerator has a feed capacity of approximately 18,000 pounds per hour.
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`67.
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`Samples of ash generated by the thermal oxidation unit’s baghouse are
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`continuously collected, and these samples are analyzed for delisting parameters. If the ash meets
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`the delisting criteria, it is no longer considered a hazardous waste, and it is disposed of in an on-
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`site “monofill”, which is a landfill designed for only one type of waste. If the ash fails to meet
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`delisting criteria, it is either resampled or stabilized. If the ash continues to exceed delisting
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`parameters following stabilization or resampling, it is transferred as a hazardous waste to a
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`designated facility.
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`68.
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`Since at least 2002, numerous fires and other reactions occurred in the shredder,
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`conveyors, and hoppers in Building 55 as a result of mixing incompatible waste.
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`69.
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`EPA conducted RCRA compliance inspections of the Facility on August 9-11,
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`2011 (“2011 EPA Inspection”), August 28-30, 2012 (“2012 EPA Inspection”), July 30-31, 2013
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`(“2013 EPA Inspection”), April 8-10, 2014 (“2014 EPA Inspection”), August 18-19, 2015
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`(“2015 EPA Inspection”), August 2-3, 2016 (“2016 EPA Inspection”), June 13-14, 2017 (“2017
`
`
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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 17 of 39 - Page ID # 17
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`EPA Inspection”), March 27, 2018 (“2018 EPA Inspection”) and on September 26, 2019 (“2019
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`EPA Inspection”). EPA also conducted an EPCRA compliance inspection of the Facility on June
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`13-14, 2017 (“2017 EPCRA Inspection”)
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`70.
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`EPA conducted a CAA 112(r) Compliance Investigation of the Facility on
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`October 28-31, 2013 (“2013 EPA 112(r) Inspection”). In addition, EPA issued a CAA Section
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`114 Request for Information to Clean Harbors on July 27, 2015. Clean Harbors responded to the
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`information request on August 20, 2015 and September 15, 2015.
`
`71.
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`NDEQ (hereinafter referred to as “NDEE”) performed Hazardous Waste
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`Compliance Evaluation Inspections of the Facility on March 28-April 1, 2016 (“2016 NDEE
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`Inspection”), March 21-24, 2017 (“2017 NDEE Inspection”), September 25, 2018 (“2018 NDEE
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`Inspection), and March 26-29, 2019 (“2019 NDEE Inspection”). NDEE also performed an Air
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`Compliance Evaluation of the Facility on August 11-13, 2015 (“2015 NDEE Air Inspection”).
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`FIRST CLAIM FOR RELIEF
`(RCRA: Failure to Adequately Manage Containers)
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`Paragraphs 1-71 are incorporated herein by reference.
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`Defendant stores solid hazardous waste in several areas of the Facility in 55-
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`
`
`72.
`
`73.
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`gallon drums, satellite accumulation containers, and 20 and 30-cubic yard “roll-off” containers,
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`which are large rectangular metal containers similar to residential construction debris dumpsters.
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`74.
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`Failure to store hazardous waste in containers that are in good condition.
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`Pursuant to 128 Neb. Admin. Code § 21-009, 40 C.F.R. § 264.171, and Section III.D. of
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`Defendant’s Part I Permit, if a container holding hazardous waste is severely rusted or has
`
`apparent structural defects, or if it begins to leak, Defendant is required to transfer the hazardous
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`waste to a container that is in good condition or place the leaking container in an overpack or
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`otherwise manage the waste in compliance with the Part I Permit within 24 hours.
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`8:20-cv-00351 Doc # 1 Filed: 08/31/20 Page 18 of 39 - Page ID # 18
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`75.
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`During the 2011, 2014, and 2015 EPA Inspections, Defendant stored hazardous