RECENED ML 28 2023 KINGs iescmrany URGENS.- ee HSER ad July 28,2023 ‘Secretary Roger W.Gingles Louisiana Department of Environmental Quality Office of the Serta (602 Noch Fifth Sret Baton Rouge, LA 70821 ATTN: Debra Jacaon-Jobason ‘Administrative Hearings Clerk, Legal Division ‘Debra Jacksnn obrson‘la gov Re: Request for Adjudictory Hearing (Clean Harbors Colfax, LLC ‘Activity No, PER20170002 RCRA Permit No, LAD 981055791-OP-RN-2 ‘Agency Interest No. 32096 Dear Secretary Gingles: Enclosed herewith are an original and thre (3) copies of Applicant's Request for Adudicatory Hearing which we are submiting in connection withthe aboveeferenced matter. Please retum & scanned, stamped, and dated copy ofthe Request fo Adjudicatory Heating confining i Fling today. 1 {you should have any questions, please do nt hesitate o contact us. {nthe meantime, I emain OA Chee EES Enel ssamt mrrnmepeneonrouuessceJUL 29 203 STATE OF LOUISIAN/ {ADEPT oF ERV QUALITY s LOUISIANA Der oF Ev GUA DEPARTMENT OF ENVIRONMENTAL QUALITY INTHE MATTER OF fc (CLEAN HARBORS COLFAX, LLC {ACTIVITY NO. PER20170002 GRANT PARISH 7 ALT ID NOS. LAD981055791; 1120-00010} RCRA PERMIT NO. LAD 981055791- & LA0IO1931 3 OP-RN2 PROCEEDINGS UNDER THE AGENCY INTEREST NO. 32096 LOUISIANA ENVIRONMENTAL : (QUALITY ACT, LA. RS. 30:2001, ET SEQ. APPLICANT'S REQUEST FOR ADJUDICATORY HEARING NOW COMES Applicant, Clean Harbors Colfax, LLC (‘Clean Harbors”), and hereby requests an adjudicatory hearing on certain portions ofthe Final Hazardous Waste Operating Permit No. LAD 981055791-OP-RN-2 (the “RCRA Permit”) issued by the Louisiana Deparment of Environmental Quality (the “Department’ adjudicatory hearing is made under the authority granted by the Louisiana Environmental as set forth in detail below. This request for Quality Act (*LEQA"), La. REV. STAT. ANN. §§ 30:2001-2588, and is filed to render certain provisions of this RCRA Permit non-final. L (Clean Harbors owns and operates a facility located at 3763 Louisiana Highway 471 in Colfax, Grant Parish, Louisiana (the “Colfax facility”). 0. ‘On June 29, 2023, Clean Harbors received the RCRA Permit (sometimes the “lune 29, 2023 RCRA Permit"). This RCRA Permit was issued following extended discussions with the Department regarding the RCRA Permit in which all indications were that the RCRA Permit (paons0-24‘would allow continued operation ofthe faiity for open hur/open detonation (*OBVOD") uti onsructon coud be completed on the proposed Contained Burn System. This was made necessary, par, based upon the lack of national capacity to mansge here wastes. For example, the processing of explosive waste is a discrete subset of the waste indy as a whole Management in ilies with specific expertise in the handling of these materils is entcaly important. Forte safety of personnel at generator locations, suchas America's military bass, tnaterals requiring processing cant simply be allowed to remain a those locations. The bility to continue to manage the explosives disposal needs during the construction ofthe Contained ‘Bum System is vital to ensure the safety of our military and commercial customers and the communis in which they ae Lotte. The 180 days allowed is snpy insticient and eects a closure ofthe fslity. Infact, the Department has advised hat several other RCRA permits incorporating contained burn technology as an aleastive to OB/OD ave provided mucs more long transition periods than he 180 days provided in his case Je was Clean Harboe further understanding that the RCRA Permit would allow continued OBIOD for those waste steams that coud not be safely deactivated inthe proposed Contained Bur System, which understanding was filly supported by communications withthe DDeputment andthe record ofthe pemit application. There are wider needs forthe safe handling and deactivation of energetic sts which cannot safely remain i the custody of third panes that cannot be met without the allowed pemited OB/OD operation at this flit. However, contrary to the nations needs ad ll interactions withthe Departmen, the June 29, 2023 RCRA Permit included new conditions which wer inconsistent with the record, prior discussions and ‘with existing safe tweatment and disposal needs. This was done eventhough the Deparment has advised that several other RCRA permits incorporating contsined burn technology as an sani Flteratve t9 OB/OD have allowed forthe continuation of OB/OD for specie waste seams that cannot be wate in the approved contained burn unit. The Department has an obligation to treat members ofthe regulated community fly and without unéue inconsistency. Forth reasons set forth above, below and tobe futer addressed on tis appeal, Clean Fatbors hereby requests an ajudiatory hearing racing she following sections and conditions in the RCRA Pemit (*Appealed Conditions), Clean Harbors submits his request due to both the presence of conrary evidence and absence of factual support in she record and the lak ofa statutory anor regultory basis fa he inclusion of the requizement in question andthe failure to low the contnuing OB/OD. LC. Sthedule of Compliance 1L.C2. Permitice shal permanently cease all Open Bura/Open Detonation (OB/OD) thermal creatment operations no later than 180 days after notice ofthe final permit Is received by the Permittee, For 180 days after notice of the final permit is received by the Permitter, the thermal treatment operations by OB/OD shall be linited in capacity, as specified, and limited to the specific waste streams identified in this permit. Permittee shall submit a notiGcation of closare for the OB/OD thermal treatment unit (including the pad, pans and all associated equipment) within 30 days after cessation of operation ofthe OB/OD unit. Within one year ofthe issuance ofthis permit, the Permittee shall submit a revised Part A/l and applicable revised plans asa permit modifications) in accordance with LAC 33:V.321.C. “This contin contains reference to the 180-day limit for OBIOD, which is aria and caprisious and contrary to law asthe record ofthis maner filly suppor the authriation of continued OB/OD operations. Tis provision is contary to the law and fects, seves no legitimate purpore ad will eum the effective closing of business thatthe Department has sdmited provides socal and economic benefits that outweigh any alleged potetal adverse coviconmental impacts The proposed Coetined Burn System will equi et las vo years to construct, and te facility's inability to continue providing uninterupted thermal treatment enn 3services will cause an ieparble neguive impacto the atonal waste management system. AS there is camel such limited capacity in the environmental management industy throughout the county for his typeof ast testmeatdinpoal, the elimination of OBYOD at this facility without a readily available atenatve will leave many hazardous waste generators without rope outlets fr ther wastes. This cessation af OB/OD wil eultinthe unsafe aecumution of these energetic wastes in loa! communities rather than allowing a responible dispel option that eliminates th hazard ofthese wastes J.C. Requirements of the Open Buraing/Open Detonation Thermal Trestment. Permstee shall comply sit the conditions ofthis parageaph LC. for any OB/OD operations conducted prior to cessation of operation of the OBOD unl, which shal txtend no more than 180 Day flowing Notice of Final ermitlsuance. “This contin contains reference to the 180-day limit for OB/OD, which i sitar end capricious and contrary to Iw as se record ofthis mater filly suppor the authorizton of continued OB/0D operations. This provision is contrary to the law and facts, serves no legitimate purpose and will result in the effective closing ofa business thatthe Deparsnent has admit provides social and economic benefits that outweigh any alleged potential adverse cavionmental inet. The proposed Corsi Burn Systm wil require at leat evo years 9 consrict, and the feiliy’s ibility o continue providing unintempted thermal treatment secvies will ause an imepaable negative impact fo the atonal waste management system. AS there is curentiy sich limited capacity in the enviromental management industy roughout the county for his ype of waste treatment disposal, he elimination of OB/OD a this fiity without a readily avilable alternative will eave many hazardous waste generators without proper outlets fr their wastes, This cessation of OB/OD wil result in the unsafe accumulstion of these energetic wastes in local communities eather than allowing a responsible disposal option that eliminates the hazard ofthese wastes sean 4LC4a. THERMAL TREATMENT FOR 180 DAYS AFTER RECEIPT OF NOTICE OF FINALPERMIT ACTION “This condition contains efeence othe 180 ay limit for OBIOD, whch iby and capricious and contrary to Iw a8 the record ofthis mater fly sports the suthoriaon of ‘cominved OB/OD operations, This provision is contary to the law and fact, senes mo Iegtmate prpre and wil es inthe efetive closing ofa basins hat the Department has sdmited provides soil nd economic benefits that outweigh any alleged potential vere ovitnmental impacts. The proposed Contned Burn System wil requ at est vo yas 10 consis, and th facliy's iby wo comtaue providing unitemupied hemal tatment serie wl ane an neprble negative impact the maton waste management system. AS there i camemly sch Himited capacity inthe envionment management industry thoughout the county for his ype of waste treamentispsal, the elimination of OB'OD at this aity wihout« realy avaible skemaive wil lave many hazardous waste generators without prope outs forth wastes. Tis eatin of 08 0D wil eau th nsfeacumaaton of these energetic wastes in local communities rather tan allowing a responsible dispose option thacliminntes te hazards of these wastes, LCA. The Fermitee may thermally treat by OB/OD those hazardous wastes liste ine Waste Ansys Plan; and in Table A for 180 days ater notice othe final permits recrved by the Permittee. ‘This contin sonns efeenc othe 180-ay limit for OB/OD, which is arbirry and capricious and contay to law as the record of his mater filly suppor the authorization of cominied OB/OD operaion. Tis provision fs conmary to the law an hy seer legitimate purpore and wl sul in he effi cosng ofa basins thatthe Departent has admited provides social and economic benefits tha outweigh any alleged potential adverse cavironmental impacts, The proposed Contained Burn System will require atleast two years to ver 5construc, and the fcliy’s inability to continue providing winteruped thems! teamnent services wil cane aniepaable epaive impct ote atonal waste management system. As thee is carey sich Finite capacity inthe environmental management inst thrughout the county for hs ype of waste tesmentiposl, the elimination of OB/OD at this aii vihout» readily valle altmave wil lave many tazadous waste generators without oper oles fo thei wastes, Tis esation of OB/OD wil result inthe unsafe acumulition of these energetic wastes in local communities rater han allowing a responsible Asposl opin tha climints te hasards ofthese wastes LCA; The Permittee prohibited from treating all non-xplsive wastes by OBIOD. 180 days ater voice of the final permits received bythe Permit, hose sates specified in Condon LCA. shall be prohibited from being treated by oB/oD. ‘This conton contains ference tothe 180d limit for OB/OD, which bitay and capricious and contay to law as the record of his mane ly suppors the authorization of comtinsed OB/0D operations, This provision is conmary 10 the law and fas, Sees 20 leimate purpose and wil esl i the effective closing of» business tha he Deparment has admited pov sil and economic bene tht outweigh any alleged potential adverse environmental impacts. The proposed Contained Bur System will egies lest to Jers 12 const, and te ficiliy'siabiliy w cootmue proving unitemuped thermal teatment services wil case tn epaabe negative imp! othe national waste rmanagement system. AS there is cameny sich limited capacity inthe enioamental management indsty theughout the county for his pe af waste weatmenpoal the elimination of OBIOD a this ait without a reaiy availabe atematve will eave many tazardous waste generators without proper outlets fer ther wastes. This cessation of OB/OD will esult in the unsafe accumulation of orm ‘‘these energetic wastes in local communities rather than allowing a responsible disposal option that eliminates the hazards ofthese wastes LC4.bsih Three ambient air monitoring stations shall monitor all therm: ‘treatment units for air emissions during the period the OB/OD unit remains ‘operational, Air monitoring reports shall be submitted to the Office of Eavironmental Assessment, Air Planning and Astessment Division for review ‘quarterly, and a final report shall be subrmited within 90 days from the receipt of ‘the final laboratory analytical reports for the monitoring period. ‘The three ambient alr monitoring stations shall sample every 6 days; the sampling uration is 24 hours. Samples are collected during no burning and during burning for OB/OD. After cessation of the OB/OD operations ambient air monitoring will rot be required during the closure of the OB/OD unit and not during the construction ofthe CBCS. ‘The constituents for air monitoring areas follows PM. Mio Pals The sampling Gequency for the Ambient Air Monitoring Program should not be increased. This decision is not sapportd by the law or the record, The historical voluntary program hes shown nothing to cause a concer that could be materially affected by an increase in monitoring frequency. Considering the sporadic operation ofthe OB/OD unit and the votume of dat already collected over the previous 19 quately sampling periods, an increase in the monitoring Sressency is unlikely to reslt in any itfrences in sir monitoring resus, In audition, i mere appropriate to include an Ambient Air Monitoring Program in the ai emit than the RCRA Permit according to the applicable statutes. The Ambient Air Monitoring Program should be sien fom tis RCRA Peni. Le. Permittee shall cease all OB/OD actvies. Permittee sball submit closure for the OB/OD unit (including the pad, pans and ass within 3 days after cessation of operation of the OB/OD unit. 1. 190 days after notice ofthe final permit is received by the Permitle, the notification of led equipment)‘This condition conan etrence to the 180-ay limit or OBIOD, which s arbitrary and capicious and contrary to law as the record ofthis mater filly supports the authorization of caninued OB/OD operations. Ths provision is contary tothe law and fils, seves no legiimate purpose and will sulin the elective closing of «business tat the Deparment has ‘Mined provides socal and economic benefits that curseigh any alleged potential adverse ‘vironmental impacts The proposed Contained Bum Syst will equise at leas two years to ‘construct, and the facility's inabiliy to contime providing unintemupted thenmal weatment services wil case an reparableneptv ict othe national wate management syst. AS thee is curently such ‘imited capacity in he environmental management industry tveughout the coun for ti type of wat retention the elimination of OBKOD atti ality without rediy avaiable semative wil lee many hazardous waste generators without oper outlets fr their wastes, This essation of 08.0 wil eultin the unsafe accumulation of these energetic wastes in local commanite rather than allowing a responsible disor epion {hat eliminates th hazards ofthese wastes .CA.hi. For 180 days after notice of the final permit is reesived by the Pernitte, ‘the Permittee shall thermally treat by OB/OD only those hazardous wastes specified in Table A and the waste codes inthe Part A. ‘This condition contains reference tothe 180-day mit for OB/OD, whichis arbitrary and capricious and contrary to law as the record ofthis mater fully supports the authorization of continued OB/OD operation. Tht provision is contrary to the law and fies, series no legate purpose aad wil et inthe efetiv closing ofa husnss thatthe Deparment has admit provides social and economic benefits tat outweigh any alleged! poten verse cviroenalinpacts. The propose Contsined Barn Sytem wil equie a leat wo sea 10 construct, and He focily's insbilty to continue providing uninterrupted thermal treatment‘services wil cause an imeparable negative impact tothe national waste management system. AS thee is currently such limited capacity in the environmental management industry thrayghout the country fortis type of waste treatmenuidisposal, the elimination of OB/OD at this facility ‘without 2 readily avilable alternative will leave many hazardous waste generators without proper outlets fo their wastes. This cessation of OB/OD will result in the unsafe accumulation of these energetic wastes in local communities rather than allowing a responsible disposal option that eliminates th hazards of these wastes, VAa. and Table 4, The Permittee shall maintain, calibrate, and operate all ceontinuoas monitoring system equipment as specified in Table 4 of this permit and record the operating conditions at all times while operating the CBCS. V.A.7b. and Table 4. In accordance with 40 CFR 63.1201(2) for continaous ‘monitors the equipment, at » minimam, shall analyze values from the continuous ‘monitoring system equipment every 15 seconds. The equipment must compute and record the average value a last every 60 seconds for use n caleulating an hourly rolling average basis forthe treatment process to demonstrate compliance with the continuous monitoring data collection requirements, -Aconinous emissions monitoring system is unecessary and oetly burdensome in tha all emissions requirements for carboo monoxide and toa ydccarbons will be demoostaed during the Tra Bum. This sision is ot supported by the lw or the record. The propose uit operates by procsng dart atses of waste a ime (bath nit”) and does ot process ‘mate on a couinuous basis like a incinerator. Continuous monitoring isnt apie fora ‘it operating asa batch un VAS. Within 90 days of completing the Trial Burn for the CBCS, the Permittee must submit «report of the Trial Bura result. Ifthe Trial Burn results in a failure to demmustrate compliance with any emission standards, 40 CFR 63.1297() requirements wl be applicable. ‘The props unit is not an incinerator, and MACT EEE emissions standards would not ‘be applicable. This decision isnot supported by the law or the record ined °V.A9 and Table S Table 5 now includes as an operating limit forthe Minimum Descivation Furmace “Temperature the phrase “To Be Determined (THD) ding Trial Bara”. This decision isnot supported bythe lw or the eco, There isn sfe way to operate the combustion chamr wth ‘minimum temperature. It would be very dangerous to introduce explosivetectve wast into an already bested chamber. Doing so would create an unacceptable safety rik forthe employees working inthe sea, Moreover, felling a review ofa previous round of comment Fom the facility, LDEQ cgreed wo remove his requirement because it cannot be applicable to ths batch process. In the document “Worksheet for Review of Technical Draft of Proposed temit’ LDEQ stated that it concurred with the comment and Table ‘as been revised to elect the removal of the combustion chamber (deactivation furnace) minimum temperstue (Reference EDMS Document # 13516593 dated 107272022) V.A.10 and Table V.A.10 The stad DRE (destruction removal efficiency) for POHC (Pri pal Organic Haardous Consituent) is> or = $9:99%. The point of compliance isthe thermal oxides, and typical thermal cxidizers havea 99% DRE. 99.99% isthe level applicable oincineratss. This proposed unit is ot an incineratr, Tie decison i not supported by the ln or the record VALLI. Air Emission Standards VA... The Permittee shall comply with the applicable requirements under LAC 33:V.ATI7-1745 for all equipment associated with operations that treat, sore, or dispose of hazardous masts LV.A.LD. The Permitte shall comply wth the applicable requirements under LAC 33:V.1747-1799 for all containers in hazardous waste service managed at the fllity. V.A.1Le. Upon commencement of operations of the CBCS, the three ambient air ‘monitoring stations shall sample every 10 days; the sampling duration is 24 hours. noon 0Samples are collected during burning and no burning operations. The results are to bbe submitted to the Office of Environmental Astessment, Air Planning and Assessment Division annually, V.A.IL.4. The constituents analyzed for during the ar monitoring are a follows: Tas PAS Meal VOCr “This decision i not supported bythe lw orth recor, Its more appropriate t clude an Ambient Air Monitoring Program inthe Air Permit rather than inthe RCRA Perit according to the applicable statues. The Ambient Air Monitoring Program shouldbe svicken fom this RCRA Permit. Nv. ‘This request for adjudcatory hearing is expressly intended to reader the Aypaled Conditions and ed requirements non-final, suspend ther effec, and to rlieve Clean Harbors ofthe requirements included in them. Clean Harbors will continue o operate within the authority ofits prior permit in al areas covered by the appealed provisions v, ‘The application of Appested Condition tthe Colas felity, andthe process flowed ‘in issuing the RCRA Perit, violate Clean Hubots"constiusonal sighs to due proces. v ‘Tae application ofthe Appeal Conditions tothe Colfax flit i arbitrary, capricious, andlor carsterized by an abuse of discretion ar clearly unwarranted exercise of discretion. vu ‘The appation of Appesied Conditions not in compliance with Iw and aot supported and suctsinabl bythe record Val sneer u(Clean Harbors pleads that application of the Appealed Conditions tothe Colfax fility ‘constitutes an unconstitutional attempt ata deprivation of property without due process of law and a deprivation of Clean Harbor righ to equal treatment under the law. a ‘The Deparment is estopped from including the Appealed Conditions under the above and forgoing circumstances onthe grounds of fundamental firess. x. Further, che Deparment is now interpreting its rules, as applied to this facil, in a ‘manner that is diferent from how it has done so inthe past before providing formal notification ofits cument interpretation, Doing so violates the “fir notice” requirements of aninistrative Jaw and impermissibly denies Clean Harbors’ due process rights under the Louisiana and United ‘States Consiutons. x (Clean Harbors has made multiple submissions tothe Department on all ofthe facual and legal issues underlying the RCRA Permit Clean Harbors asks that those submissions be included ‘within the recor of hi mane. xa. All ofthe above and foregoing items are illustrative and are not Clean Harbors” exclusive challenges fo the Appealed Conditions. These provisions are appealed on all availble grounds. (Clean Harbors specifically reserves ll of is legal rights and all defenses seein 2Respectly Submited. ROBERT //BURVANT (#14119) KRYSTIN M. FRAZIER-SANTIAGO (433838) MARIE 0. LUIS (#38332) KING & SURGENS, LLC 201 St. Charles Avenue, 4S Foor Telephone: (304) 582-3800/Telefac(504) SE21233, ee stuvani@kingiugenscom 7 2 Mipzic-sentasntahiegunzenscon ‘Atoeneys for Clean Harbors Cofix, LLC