11011 CODY

OVERLAND PARK, KS 66210 

PHONE 913 / 451-8900 FAX 913 /451-1686 

CURTIS D. LESSLIE, PE 

VICE PRESIDENT, ENVIRONMENTAL AFFAIRS WRITER’S DIRECT LINE – 913/319-6065 

October 21, 2010 

Mr. Keith Barnett 

U.S. EPA 

109 T.W. Alexander Drive 

Mail Code: D243-02 

Research Triangle Park, NC 27709 

Re: Regulation of Clinker Piles Under 40 CFR 63, Subpart LLL (Portland Cement 

MACT) 

Dear Mr. Barnett: 

Ash Grove Cement Company (“Ash Grove”) is submitting this letter requesting that EPA issue a 

direct final rule including both an interpretive clarification and also making a technical 

correction to the Subpart LLL NESHAP modifications promulgated on September 9, 2010. 

Specifically, Ash Grove is requesting that EPA correct an administrative error in the September 

9, 2010 rule where EPA failed to establish a date by which existing sources must comply with 

the clinker pile requirements in 40 CFR §§ 63.1343(c) and (d) as required by 40 CFR 63.6(c). In 

the event that EPA cannot issue a timely correction, Ash Grove is requesting a three year 

compliance extension from the earliest possible date that could ultimately be established as the 

clinker pile requirement compliance date, i.e., November 8, 2010. 

Request for Establishment of a Reasonable Clinker Pile Requirement Compliance Date

As a result of an administrative oversight, there is currently no date stated in the PC MACT rule 

by which time an existing source must comply with the clinker pile requirements in §§ 1343(c) 

and (d). The September 9th rule replaces 40 CFR § 63.1351 (Compliance Dates) in its entirety 

with a revised section that identifies only two compliance dates for existing sources. The rule 

imposes a June 14, 2002 compliance date for all requirements other than those discussed in 

paragraph (b). Paragraph (b) states “The compliance date for existing sources with the PM, 

mercury, THC, and HCl emissions limits in § 63.1343(b) which became effective in November 

8, 2010 will be September 9, 2013.” However, while the September 9th rulemaking added new 

PM requirements applicable to clinker piles (and so EPA appears to have intended to establish a 

2013 compliance date), the clinker pile requirements are discussed in paragraphs (c) and (d) of § 
Mr. Keith Barnett 

October 21, 2010 

Page 2 

63.1343. As a result, no compliance date is provided for the PM requirements applicable to 

clinker piles. 

EPA’s Part 63 general provisions clearly place the burden on the agency to establish the 

compliance date for each standard. 40 CFR § 63.6(c) unequivocally states that the compliance 

date for existing sources is the date “established by the Administrator in the applicable subpart(s) 

of this part.” The plain language of § 63.1351 is that affected sources must have either complied 

with the pre-existing standards in 2002 or, for the new PM, mercury, THC, and HCl emissions 

limits in § 63.1343(b), affected sources must comply in 2013. No compliance date is provided 

for those affected sources that must undertake the significant capital projects required for 

compliance with §§ 63.1343(c) and (d). Where EPA has failed to state a compliance data, an 

affected source has no authority to add a compliance date. Absent the Administrator having 

identified a compliance date, there is no compliance date. Therefore, it is critical that EPA issue 

a rule correction if it wants to establish a compliance date for the new PM requirements 

applicable to clinker piles. 

EPA must allow existing affected sources a reasonable amount of time to comply with the new 

PM requirements applicable to clinker piles. The clinker pile PM requirements are a new 

element of the 2010 rule revisions that could not have been anticipated prior to issuance of the 

final rule. Compliance will require significant capital projects that cannot be undertaken until 

local permitting requirements are complied with. Designing, permitting and constructing 

structures that are compliant with the regulatory requirements is expected to take approximately 

2 to 3 years. Part of this time is needed for design, but there will also be the need to obtain minor 

new source review permits from the local air permitting authority as most State Implementation 

Plans require minor new source review prior to installing any control technology. As the clinker 

pile PM regulations clearly require control of clinker pile emissions, we anticipate that this local 

permitting process will apply. In addition, facilities will need to obtain structural/building 

permits given the scale of the facilities required. In light of the fact that these enclosure 

requirements are new as a result of the 2010 rulemaking and that they will take time to install, 

EPA should extend the 2013 compliance date to the new PM requirements applicable to clinker 

piles. 

We believe that EPA can and should address this administrative error through a direct final rule. 

In the absence of any clarification by EPA, there is a reasonable interpretation that no 

compliance date has been established for the clinker pile requirements in §§ 63.1343(c) and (d). 

We suspect that this is not what was intended by EPA when it issued the PC MACT revisions in 

September. However, it is equally certain that EPA could not have intended to require a 2002 

compliance date for the clinker pile requirements in §§ 63.1343(c) and (d). In such situations, it 

is appropriate for EPA to publish in the Federal Register an interpretive clarification and 

technical correction. We urge EPA to accomplish this as a direct final rule consistent with the 

approach EPA has previously adopted under similar circumstances (see, e.g., direct final 

rulemaking making technical amendments to standards applicable to marine spark-ignition 

engines and vessels; 75 Fed. Reg. 56477 (Sept. 16, 2010)). By issuing an interpretive 

clarification and technical correction through a direct final rule, EPA can expeditiously address 

this issue prior to the effective date of the NESHAP revisions (i.e., November 8th). 
Mr. Keith Barnett 

October 21, 2010 

Page 3 

EPA’s failure to act immediately will create great uncertainty within the regulated community. 

Without any compliance date established for the clinker pile requirements in §§ 63.1343(c) and 

(d), it is impossible to identify when capital investments must be made. However, in the unlikely 

event that adverse comments are received such that the direct final rule must be withdrawn, it is 

equally important that EPA issue an interpretive clarification of the agency’s intent in issuing a 

compliance deadline for the clinker pile requirements in §§ 63.1343(c) and (d). 

Request for a Compliance Extension

In the event that EPA is not able to issue a direct final rule prior to November 8, 2010, Ash 

Grove requests that EPA grant the facilities identified on the attachment to this letter until 2013 

to come into compliance with the clinker pile requirements. Ash Grove believes that in the 

absence of a compliance date, there is no deadline for implementing the clinker pile 

requirements. However, the earliest compliance date that could be established would be 

November 8, 2010. Therefore, as a precautionary measure, Ash Grove is requesting a 3 year 

compliance extension for the clinker pile requirements commencing from the earliest date that 

the requirements could ultimately be deemed to apply, i.e., until November 8, 2013. 

A three year extension is appropriate under the circumstances. Clean Air Act Section 

112(i)(3)(B) provides an extension of 1 year across all industries if controls must be installed and 

an additional 3 years for the mining industry “if the 4-year compliance time is insufficient to dry 

and cover mining waste.” This statutory provision is implemented in EPA’s regulations at 40 

CFR § 63.6(i)(4)(i). Ash Grove is clearly engaged in the mining of limestone and other materials 

and the outdoor clinker storage piles are clearly within the scope of mining wastes that need to 

be dried and covered. Given that the clinker pile requirements were not known until after capital 

planning for 2011 was largely completed, that permitting is required prior to commencement of 

work and that the structures themselves will require significant engineering, it is reasonable to 

allow a minimum extension of three years from November 8, 2010, i.e., the earliest date that the 

standards could comply.1

 As stated in 40 CFR § 63.6(i)(4)(i)(B), a request for an extension must 

be submitted to the state where the facility is located where that state is the Part 70 permitting 

authority with delegation for the NESHAP. However, where the standard has not yet taken 

effect, the state cannot be assumed to hold the necessary authority to grant an extension. 

Because of the uncertainty of the appropriate recipient, Ash Grove is addressing this request to 

both EPA and the state permitting authority for each state where we have a facility subject to 

Subpart LLL. As specified in 40 CFR § 63.6(i)(4)(i)(C), this extension request stays the 

applicability of Subpart LLL to the clinker piles until such time as the request is granted or 

denied. If the compliance date is considered to be less than 120 days prior to the date of this 

request, this is due to circumstances beyond Ash Grove’s control as the clinker pile standards 

were not even published until September 9, 2010. Ash Grove did not learn of the standards and 

 1

 If EPA concludes that Ash Grove is not eligible for a three year extension, this request 

should be interpreted as requesting the maximum time allowed that is less than three years. 
Mr. Keith Barnett 

October 21, 2010 

Page 4 

was not able to begin to assess the time necessary to come into compliance until after the 

standards were published. Therefore, if a compliance date is assumed to exist and further 

assumed to be November 8, 2010, Ash Grove was incapable of making an extension request in 

compliance with the 120 day deadline. 

In order to grant an extension, specific information is being submitted consistent with the 

requirements in 40 CFR § 63.6(i)(6)(i). Ash Grove is currently working with its engineers and 

vendors to establish designs and timetables for the equipment installation. This process will 

require considerable time, although we are too early in the process to generate a compliance 

schedule with any specificity. However, consistent with the rule requirements, we present our 

best answers to the required questions below. We currently believe that these answers are 

equally applicable to each of our facilities: 

(i)(6)(i)(A) – A description of the controls to be installed to comply with the standard; 

Ash Grove believes that the specific controls that require installation for each facility are 

described with reasonable specificity in § 63.1343(c) and (d) of the rule. Ash Grove is still 

evaluating which facilities are subject to which provision of the rule as it may be possible at 

some plants to move clinker storage and handling facilities to more than 1,000 feet from the 

property line. Therefore, until this engineering assessment is completed, it is impossible to 

identify the controls beyond this reference to the NESHAP requirements. 

(i)(6)(i)(B) – A compliance schedule, including the date by which each step toward compliance 

will be reached;

Ash Grove has prepared the following conceptual schedule as required by EPA’s regulations. 

Activity Estimated Completion Date 

Engineering assessment of clinker 

storage/handling activities 

relocation 

June 30, 2011 

Design drawings prepared December 31, 2011 

Permitting (environmental, 

structural, land use, etc.) 

July 1, 2012 

Initiation of on-site construction September 1, 2012 

Completion of on-site construction June 1, 2013 

Final compliance date November 9, 2013 

Please keep in mind that this schedule does not include any unanticipated delays such as 

permitting delays, requests for public hearings, late deliveries of necessary equipment, vendor or 

contractor problems or similar sources of delay. Also, until the permitting is completed, the 

bidding process wrapped up and the construction contracts signed, it is impossible to provide any 

dates with specificity. This table reflects our best estimate at the present time. 
Mr. Keith Barnett 

October 21, 2010 

Page 5 

 Thank you for your consideration of these requests. We urge EPA to issue a direct final rule 

consistent with what is outlined above prior to the rule revisions taking effect next month so as to 

ensure that the rules are implemented in an orderly fashion. In relation to the extension request, 

while the regulations only require a response to this request within 30 days, I would greatly 

appreciate an earlier response as we are necessarily concerned about the possibility of any 

impending deadlines. 

If you have any questions about this letter, please contact me at (913) 319-6065, or 

curtis.lesslie@ashgrove.com. 

 Sincerely, 

 

 

 Curtis Lesslie, P.E. 

 Vice-President of Environmental Affairs 

 Ash Grove Cement Company 

cc: Puget Sound Clean Air Agency 

 Oregon Department of Environmental Quality 

 Idaho Department of Environmental Quality 

 Montana Department of Environmental Quality 

 Utah Division of Air Quality 

 Texas Commission on Environmental Quality 

 Kansas Department of Health and Environment 

 Nebraska Department of Environmental Quality 

 Arkansas Department of Environmental Quality
Mr. Keith Barnett 

October 21, 2010 

Page 6 

List of Ash Grove Cement Company Plants Subject to Request

Ash Grove Cement Company 

3801 E. Marginal Way, S. 

Seattle, WA 98134-1147 

Ash Grove Cement Company 

33060 Shirttail Creek Road 

Durkee, OR 97905-0287 

Ash Grove Cement Company 

230 Cement Road 

Inkom, ID 83245-1543

Ash Grove Cement Company 

100 Hwy. 518 

Clancy, MT 59634-9701

Ash Grove Cement Company 

PO Box 38069 

Leamington, UT 84638

Ash Grove Cement Company 

900 Gifco Rd. 

Midlothian, TX 76065

Ash Grove Cement Company 

1801 N. Santa Fe 

Chanute, KS 66720

Ash Grove Cement Company 

16215 Highway 50 

Louisville, NE 68037 

Ash Grove Cement Company 

4343 Highway 108 

Foreman, AR 71836