Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.2 Page 1 of 12
`
`JOHN W. HUBER (Utah Bar #7226)
`United States Attorney, District of Utah
`JOHN K. MANGUM (Utah Bar #2072)
`Assistant United States Attorney
`
`111 South Main St., #1800
`Salt Lake City, Utah 84111
`(801) 524-5682
`john.mangum@usdoj.gov
`
`JAMES D. FREEMAN
`Senior Attorney
`Environment Enforcement Section
`U.S. Department of Justice
`999 18th Street, South Terrace, Suite 370
`Denver, CO 80202
`(303) 844-1489
`james.freeman2@usdoj.gov
`Attorneys for the United States of America
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`STERICYCLE INC.,
`
`Defendant.
`
`Case No. 1:21-cv-00012-JNP
`
`COMPLAINT
`
`Judge Jill N. Parrish
`
`Plaintiff, the United States of America, by authority of the Attorney General of the
`
`United States and acting at the request of the Administrator of the United States Environmental
`
`Protection Agency (“EPA”), files this Complaint and alleges the following:
`
`
`
`JOHN W. HUBER (Utah Bar #7226)
`United States Attorney, District of Utah
`JOHN K. MANGUM (Utah Bar #2072)
`Assistant United States Attorney
`
`111 South Main St., #1800
`Salt Lake City, Utah 84111
`(801) 524-5682
`john.mangum@usdoj.gov
`
`JAMES D. FREEMAN
`Senior Attorney
`Environment Enforcement Section
`U.S. Department of Justice
`999 18th Street, South Terrace, Suite 370
`Denver, CO 80202
`(303) 844-1489
`james.freeman2@usdoj.gov
`Attorneys for the United States of America
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`STERICYCLE INC.,
`
`Defendant.
`
`Case No. 1:21-cv-00012-JNP
`
`COMPLAINT
`
`Judge Jill N. Parrish
`
`Plaintiff, the United States of America, by authority of the Attorney General of the
`
`United States and acting at the request of the Administrator of the United States Environmental
`
`Protection Agency (“EPA”), files this Complaint and alleges the following:
`
`
`
`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.3 Page 2 of 12
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action against Stericycle, Inc. (“Stericycle” or “Defendant”)
`
`pursuant to Section 113(b) of the Clean Air Act (the “Act”), 42 U.S.C. § 7413(b).
`
`2.
`
`Plaintiff seeks civil penalties for alleged violations of the Act’s program to
`
`regulate solid waste incineration units as set forth in Section 129 of the Act, 42 U.S.C. § 7429,
`
`and the regulations promulgated thereunder, and the Act’s program for Federal operating permits
`
`as set forth at Title V of the Act, 42 U.S.C. §§ 7661–7661f, and the regulations promulgated
`
`thereunder.
`
`JURISDICTION AND VENUE
`
`3.
`
`This Court has jurisdiction over the subject matter of this action, pursuant to
`
`28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the Act, 42 U.S.C. § 7413(b).
`
`4.
`
`Venue is proper in this District pursuant to Section 113(b) of the Act, 42 U.S.C.
`
`§ 7413(b), and 28 U.S.C. §§ 1391(b) and 1395(a), because the violations alleged in this
`
`Complaint are alleged to have occurred in, and Defendant conducts business in, this judicial
`
`district.
`
`NOTICE
`
`5.
`
`Notice of the commencement of this action has been given to the State of Utah as
`
`required under Section 113(b) of the Act, 42 U.S.C. § 7413(b).
`
`DEFENDANT
`
`6.
`
`Stericycle is a Delaware corporation headquartered in Lake Forest, Illinois and
`
`licensed to do business in the State of Utah. Stericycle provides business services that include
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`medical and pharmaceutical waste management.
`
`
`
`2
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.4 Page 3 of 12
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`7.
`
`At all times relevant to this Complaint, Stericycle owned and operated a hospital,
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`medical, and infectious waste incinerator (“HMIWI”) located at 90 North 1100 West, North Salt
`
`Lake, Utah (the “Facility”).
`
`8.
`
`Stericycle is a “person” as defined in Section 302(e) of the Act, 42 U.S.C.
`
`§ 7602(e).
`
`STATUTORY AND REGULATORY BACKGROUND
`
`Emission Guidelines for Existing HMIWI
`
`9.
`
`Section 129 of the Act, 42 U.S.C. § 7429, requires EPA to establish performance
`
`standards and other requirements pursuant to Section 111, 42 U.S.C. § 7411, for certain
`
`categories of solid waste incineration units. The performance standards must include guidelines
`
`for existing incineration units. 42 U.S.C. § 7429(b)(1).
`
`10.
`
`A “solid waste incineration unit” means a “distinct operating unit of any facility
`
`which combusts any solid waste material from commercial or industrial establishments or the
`
`general public.” 42 U.S.C. § 7429(g)(1).
`
`11.
`
`States with existing solid waste incineration units are required to submit to the
`
`EPA for approval plans to implement and enforce the guidelines. 42 U.S.C. § 7429(b)(2).
`
`Within two years of promulgating guidelines for existing sources, EPA is required to develop
`
`and implement a federal plan for existing units in states without an approved state plan.
`
`12.
`
`In 1997, the EPA promulgated standards of performance for new HMIWI and
`
`emission guidelines for existing HMIWI. 62 Fed. Reg. 48,348 (Sept. 15, 1997). Emission
`
`guidelines for existing HMIWI are codified at 40 C.F.R. Part 60, Subpart Ce. Emission
`
`
`
`3
`
`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.5 Page 4 of 12
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`guidelines for existing HMIWI apply to facilities for which construction was commenced on or
`
`before June 20, 1996. 40 C.F.R. § 60.32e(a)(1).
`
`13.
`
`The EPA approved the State of Utah’s HMIWI plan (“Utah HMIWI Plan”) on
`
`June 22, 2000. 65 Fed. Reg. 38,732. Utah’s HMIWI Plan is codified in the Utah Administrative
`
`Code at r.307-220 and r.307-222 and incorporates federal emission guidelines for existing
`
`sources at Subpart Ce.
`
`14.
`
`Effective December 7, 2009, the EPA amended the Subpart Ce requirements and
`
`lowered the NOx emission limit for large HMIWI to 140 ppmv based on a three-run average. 74
`
`Fed. Reg. 51,368 (Oct. 6, 2009). After the EPA promulgated the 2009 amendments to Subpart
`
`Ce, states were required to submit amended state plans for approval. Id. at 51,374. On May 13,
`
`2013, the EPA amended the federal plan for HMIWI, codified at 40 C.F.R. Part 62, Subpart
`
`HHH, to incorporate the 2009 amendments to Subpart Ce. 78 Fed. Reg. 28,052. The revised
`
`federal plan went into effect on June 12, 2013 for any state that did not have an approved
`
`amended plan as of October 6, 2011, which included the State of Utah. Id. at 28,056. Plaintiffs
`
`allege violations of the NOx emission limit prior to June 12, 2013.
`
`15.
`
`Before June 12, 2013, the NOx emission limit for existing HMIWI in Utah was
`
`250 ppmv based on a three-run average as measured in accordance with EPA Method 7. Utah
`
`Admin. Code r. 307-222-4 (requiring compliance with emission limitations at 40 C.F.R. Part 60,
`
`Subpart Ce).
`
`16.
`
`HMIWI may comply with applicable emission limits by setting operating
`
`parameters that ensure a HMIWI will not exceed the limit. Operating parameters are established
`
`through performance tests, which consist of a “minimum of three test runs conducted under
`
`
`
`4
`
`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.6 Page 5 of 12
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`representative operating conditions.” 40 C.F.R. §§ 60.37e(a), 60.56c(b)(1). Operating
`
`parameters for HMIWI may include, among other things, the “charge rate,” which is generally
`
`the amount of waste fed into the incinerator expressed as pounds per hour.
`
`17.
`
`Emission guidelines at 40 C.F.R. Part 60, Subpart Ce also establish reporting
`
`requirements, including the requirement to report annually “[a]ny use of the bypass stack, the
`
`duration, reason for malfunction, and corrective action taken.” 40 C.F.R. § 60.38e(a) (requiring
`
`compliance with 40 C.F.R. § 60.58c(d)); see also Utah Admin. Code r. 307-222-3 (requiring
`
`compliance with reporting provisions at 40 C.F.R. § 60.58c(d)).
`
`18.
`
`“After the effective date of any performance standard, emission limitation or other
`
`requirement promulgated pursuant to [Sections 129 and 111 of the Act], it shall be unlawful for
`
`any owner or operator of any solid waste incineration unit to which such standard, limitation or
`
`requirement applies to operate such unit in violation of such limitation, standard or requirement
`
`or for any other person to violate an applicable requirement of this section.” 42 U.S.C.
`
`§ 7429(f)(3).
`
`Title V Operating Permits
`
`19.
`
`Each source subject to Section 129 performance standards must operate pursuant
`
`to a permit issued under Section 129 and Title V of the Act. 42 U.S.C. § 7429(e).
`
`20.
`
`States must submit permitting programs to the EPA for approval. 42 U.S.C.
`
`§ 7661a(d). Permits issued under EPA-approved programs must contain emission limitations
`
`and standards, including operational requirements and limitations that ensure compliance with all
`
`applicable requirements, as well as any monitoring, recordkeeping, and reporting under
`
`applicable requirements. 40 C.F.R. § 70.6.
`
`
`
`5
`
`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.7 Page 6 of 12
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`21.
`
`The EPA approved the State of Utah’s Title V operating permit program effective
`
`July 10, 1995. 60 Fed. Reg. 30,192 (June 8, 1995).
`
`22.
`
`After the effective date of EPA’s approval of a Title V operating permit program,
`
`“it shall be unlawful for any person to violate any requirement of a permit issued under [Title V],
`
`or to operate [a facility required to obtain a permit] except in compliance with a permit issued by
`
`a permitting authority under [Title V].” 42 U.S.C. § 7661a.
`
`23.
`
`All terms and conditions in a permit issued under an EPA-approved program are
`
`enforceable by the EPA unless the permitting authority designates as not being federally
`
`enforceable any terms or conditions included in the permit that are not required under the Act or
`
`any of its applicable requirements. 40 C.F.R. § 70.6(b).
`
`GENERAL ALLEGATIONS
`
`24.
`
`Defendant conducted two test runs to determine compliance with applicable NOx
`
`emission limits on December 27, 2011, and six test runs on December 28, 2011.
`
`25.
`
`The two test runs on December 27, 2011, and the first three test runs on
`
`December 28, 2011, exceeded the applicable NOx emission limit in 40 C.F.R. Part 60, Subpart
`
`Ce, as incorporated in the Utah HMIWI Plan.
`
`26.
`
`The last three test runs on December 28, 2011, were below the applicable NOx
`
`emission limit in 40 C.F.R. Part 60, Subpart Ce, as incorporated in the Utah HMIWI Plan.
`
`27.
`
`The last three test runs on December 28, 2011, involved the incineration of waste
`
`that was not characteristic of the Facility’s waste stream and therefore were not “conducted
`
`under representative operating conditions,” 40 C.F.R. §§ 60.37e(a), 60.56c(b)(1).
`
`
`
`6
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.8 Page 7 of 12
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`28.
`
`The State of Utah did not accept the December 27 and 28, 2011 test runs as a
`
`valid performance test because Defendant did not average the results of all test runs.
`
`29.
`
`30.
`
`Defendant did not conduct a compliant performance test until April 2013.
`
`Based on the December 2011 test runs, from December 2011 to May 6, 2013,
`
`Defendant could not comply with applicable NOx emission limits when incinerating waste
`
`characteristic of the Facility’s waste stream at a charge rate of more than 1550 pounds/hour.
`
`FIRST CLAIM FOR RELIEF
`(Violations of NOx Emission Limit in 40 C.F.R. Part 60, Subpart Ce, as Incorporated in the
`Utah HMIWI Plan)
`
`31.
`
`Plaintiff realleges and incorporates Paragraphs 1 through 30 as if fully set forth
`
`
`
`herein.
`
`32.
`
`The Facility includes a “solid waste incineration unit” as that term is defined by
`
`Section 129 of the Act, 42 U.S.C. § 7429(g)(1).
`
`The Facility was constructed prior to June 20, 1996.
`
`The Facility is subject to 40 C.F.R. Part 60, Subpart Ce, as incorporated in Utah’s
`
`33.
`
`34.
`
`HMIWI Plan.
`
`35.
`
`On at least 152 days between September 14, 2012, and May 6, 2013, the
`
`maximum charge rate at the Facility was 1551 pounds/hour or higher.
`
`36. When operating at a charge rate of 1551 pounds/hour or higher, Defendant
`
`violated the NOx emission limit in 40 C.F.R. Part 60, Subpart Ce, as incorporated in Utah’s
`
`HMIWI Plan, and Section 129(f)(3) of the Act, 42 U.S.C. § 7429(f)(3).
`
`37.
`
`Under Section 113(b) of the Act, 42 U.S.C. § 7413(b), Defendant is liable for
`
`civil penalties of up to $37,500 per day for each violation of Subpart Ce.
`
`
`
`7
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`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.9 Page 8 of 12
`
`SECOND CLAIM FOR RELIEF
`(Failure to Submit Data from NOx Performance Test in Violation
`of Title V Operating Permit)
`
`Plaintiff realleges and incorporates Paragraphs 1 through 37 as if fully set forth
`
`38.
`
`herein.
`
`39.
`
`From February 19, 2009, to September 28, 2015, Defendant was subject to the
`
`conditions of the Facility’s Title V Operating Permit, No. 1100055002 (hereinafter “Title V
`
`Permit”), issued by the State of Utah under an EPA-approved operating permit program.
`
`40.
`
`Defendant’s Title V permit required that Stericycle semi-annually report: “If a
`
`performance test was conducted during the reporting period, the results of that test.” Title V
`
`Permit, Special Provisions, § II.B.3.c.3(a)6).
`
`41.
`
`Defendant failed to report the December 27, 2011, test runs in its March 2012
`
`semi-annual report.
`
`42.
`
`Defendant’s failure to report test runs was a violation of condition II.B.3.c.3(a)(6)
`
`of its Title V Permit and Section 502 of the Act, 42 U.S.C. § 7661a.
`
`43.
`
`Under Section 113(b) of the Act, 42 U.S.C. § 7413(b), Defendant is liable for
`
`civil penalties of up to $37,500 per day for each violation of its Title V Permit and Section 502
`
`of the Act, 42 U.S.C. § 7661a.
`
`THIRD CLAIM FOR RELIEF
`(Failure to Conduct Emission Testing for NOx at Least Once Every Five Years in Violation
`of Title V Operating Permit)
`
`Plaintiff realleges and incorporates Paragraphs 1 through 43 as if fully set forth
`
`44.
`
`herein.
`
`
`
`8
`
`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.10 Page 9 of 12
`
`45.
`
`Defendant’s Title V Permit requires performance tests for NOx every five years.
`
`Title V Permit, § II.B.3.c.1.A(b)(4). “All tests shall be conducted while the source is operating at
`
`the maximum production or combustion rate at which such source will be operated. During the
`
`tests, the source shall burn fuels or combustion of fuels, use raw materials, and maintain process
`
`conditions representative of normal operations . . . .” Title V Permit, § II.B.3.c.1.A(d).
`
`46.
`
`Defendant was required to conduct a performance test for NOx within five years
`
`of October 18, 2006.
`
`47.
`
`Defendant did not conduct a performance test for NOx that was “representative of
`
`normal operations” until April 10, 2013.
`
`48.
`
`Defendant’s failure to conduct a performance test for NOx within five years of
`
`October 18, 2006, was a violation of condition II.B.3.c.1.A(b)(4) of its Title V Permit and
`
`Section 502 of the Act, 42 U.S.C. § 7661a.
`
`49.
`
`Under Section 113(b) of the Act, 42 U.S.C. § 7413(b), Defendant is liable for
`
`civil penalties of up to $37,500 per day for each violation of its Title V Permit and Section 502
`
`of the Act, 42 U.S.C. § 7661a.
`
`FOURTH CLAIM FOR RELIEF
`(Failure to Report Highest Maximum Charge Rate in Violation of Title V Operating
`Permit)
`
`Plaintiff realleges and incorporates Paragraphs 1 through 49 as if fully set forth
`
`50.
`
`herein.
`
`51.
`
`Defendant’s Title V permit required that Stericycle semi-annually report: “[t]he
`
`highest maximum operating parameter and the lowest minimum operating parameter, as
`
`
`
`9
`
`
`
`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.11 Page 10 of 12
`
`applicable, for each operating parameter recorded for the calendar year being reported.” Title V
`
`Permit, § II.B.3.c.3(a)(2).
`
`52.
`
`In Defendant’s March 2011 semi-annual report, Defendant reported a maximum
`
`charge rate of 1934 pounds/hour.
`
`53.
`
`According to data from the Facility, the maximum charge rate for the March 2011
`
`reporting period was 2007.73 pounds/hour.
`
`54.
`
`In Defendant’s March 2013 semi-annual report, Defendant reported a maximum
`
`charge rate of 1934 pounds/hour.
`
`55.
`
`According to data from the Facility, the maximum charge rate for the March 2011
`
`reporting period was 2145.23 pounds/hour.
`
`56.
`
`In Defendant’s September 2013 semi-annual report for the period from January
`
`16, 2013, to May 20, 2013, Defendant reported a maximum charge rate of 1550 pounds/hour.
`
`57.
`
`According to data from the Facility, the maximum charge rate for the period from
`
`January 16, 2013, to May 20, 2013, was 1961 pounds/hour.
`
`58.
`
`Each of Defendant’s failures to report the maximum charge rate was a violation of
`
`condition II.B.3.c.3(a)(2) of its Title V Permit and Section 502 of the Act, 42 U.S.C. § 7661a.
`
`59.
`
`Under Section 113(b) of the Act, 42 U.S.C. § 7413(b), Defendant is liable for
`
`civil penalties of up to $37,500 per day for each violation of its Title V Permit and Section 502
`
`of the Act, 42 U.S.C. § 7661a.
`
`FIFTH CLAIM FOR RELIEF
`(Failure to Report Use of the Bypass Stack in Violation of Title V Operating Permit)
`
`Plaintiff realleges and incorporates Paragraphs 1 through 59 as if fully set forth
`
`60.
`
`herein.
`
`
`
`10
`
`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.12 Page 11 of 12
`
`61.
`
`Defendant’s Title V permit required that Stericycle semi-annually report: “[a]ny
`
`use of the bypass stack, the duration, reason for malfunction, and corrective action taken.” Title
`
`V Permit § II.B.3.c.3(a)(8).
`
`62.
`
`The bypass stack on the Facility was opened on 20 instances over 18 days
`
`between November 27, 2010, and April 5, 2013.
`
`63.
`
`Defendant did not report each “use of the bypass stack, the duration, reason for
`
`malfunction, and corrective action taken” in its March 2011, September 2011, March 2012,
`
`September 2012, March 2013, and September 2013 semi-annual reports.
`
`64.
`
`Each of Defendant’s failures to report the use of the bypass stack was a violation
`
`of condition II.B.3.c.3(a)(8) of its Title V Permit and Section 502 of the Act, 42 U.S.C. § 7661a.
`
`65.
`
`Under Section 113(b) of the Act, 42 U.S.C. § 7413(b), Defendant is liable for
`
`civil penalties of up to $37,500 per day for each violation of its Title V Permit and Section 502
`
`of the Act, 42 U.S.C. § 7661a.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, based on the above allegations, Plaintiff requests that this Court:
`
`Assess a civil penalty against Stericycle for each violation of the applicable
`
`A.
`
`provisions of the Act and its implementing regulations, of up to $37,500 per day;
`
`B.
`
`Grant such other and further relief as the Court deems just and proper.
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`NATHANIEL DOUGLAS
`Deputy Chief
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`
`11
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`
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`
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`Case 1:21-cv-00012-JNP Document 2 Filed 01/29/21 PageID.13 Page 12 of 12
`
`J MES D. FREEM
`nior Attorney
`vironment Enforcement Section
`U.S. Department of Justice
`999 18th Street, South Terrace, Suite 370
`Denver, CO 80202
`(303) 844-1489 (PHONE)
`(303) 844-1350 (FAX)
`j ames.freeman2@doj . gov
`
`JOHN W. HUBER
`United States Attorney
`District of Utah
`
`JOHN K. MANGUM
`Assistant United States Attorney
`& Chief of Civil Division
`111 South Main St., #1800
`Salt Lake City, Utah 84111
`(801) 325-3216
`john.mangum@usdoj .gov
`
`C~]~K~~~f.~F
`
`JESSICA PORTMESS
`Office of Regional Counsel
`U.S. Environmental Protection Agency
`Region 8
`1595 Wynkoop Street
`Denver, Colorado 80202
`
`12
`
`
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