11011 C ODY O VERLAND P ARK

, KS 66210

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

CURTIS D

. LESSLIE

, PE

V ICE P RESIDENT

, E NVIRONMENTAL A FFAIRS 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 s ubmitting this letter requesting that EPA issue a direct final rule including both an interpre tive clarification and also making a technical correction to the Subpart LLL NESHAP modifications prom ulgated on September 9, 2010. Specifically, Ash Grove is requesting that EPA co rrect 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 corr ection, Ash Grove is re questing 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 w ith the clinker pile re quirements 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, wh ile the September 9th rulemaking added new PM requirements applicable to c linker piles (and so EPA appears to have intended to establish a 2013 compliance date), the clinker pile requirements are discussed in paragr aphs (c) and (d) of §Mr. Keith Barnett October 21, 2010 Page 2

63.1343. As a result, no compliance date is provi ded 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 th at affected sources must have either complied with the pre-existing standards in 2002 or, fo r the new PM, mercury, THC, and HCl emissions limits in § 63.1343(b), affected sources must co mply in 2013. No compliance date is provided

for those affected sources that must undertake the significant capital pr ojects required for compliance with §§ 63.1343(c) and (d). Where EP A has failed to state a compliance data, an affected source has no authority to add a comp liance date. Absent th e Administrator having identified a compliance date, there is no compliance da te. 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 reas onable 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 pr ior to issuance of the final rule. Compliance will requi re significant capital projects that cannot be undertaken until local permitting requirements are complied with. Designing, permitting and constructing structures that are compliant wi th the regulatory requirements is expected to take approximately 2 to 3 years. Part of this time is needed for de sign, 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 t echnology. As the clinker pile PM regulations clearly requir e control of clinker pile emissions , we anticipate that this local permitting process will apply. In addition, facili ties will need to obtain structural/building permits given the scale of the f acilities required. In light of the fact that these enclosure requirements are new as a result of the 2010 rulema king and that they will take time to install, EPA should extend the 2013 compliance date to th e 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 clarific ation by EPA, there is a reas onable interpreta tion that no compliance date has been established for the cli nker 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 th at 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 Federa l 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 si milar circumstances (see, e.g., direct final rulemaking making technical amendments to sta ndards applicable to marine spark-ignition engines and vessels; 75 Fed. Reg. 56477 (Sept. 16, 2010)). By issuing an interpretive

clarification and technical corr ection 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 w ithin the regulated community. Without any compliance date established for th e clinker pile requirements in §§ 63.1343(c) and (d), it is impossible to identify when capital inve stments must be made. However, in the unlikely

event that adverse comments are rece ived such that the direct fina l rule must be withdrawn, it is equally important that EPA issue an interpretive cl arification 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 ab le to issue a direct final ru le prior to November 8, 2010, Ash Grove requests that EPA grant the facilities identified on the atta chment 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 complian ce 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 require ments 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 indus tries if controls must be installed and an additional 3 years for the mining industry “if th e 4-year compliance time is insufficient to dry and cover mining waste.” This statutory provis ion 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 p iles are clearly within the scope of mining wastes that need to be dried and covered. Given that the clinker pi le requirements were not known until after capital planning for 2011 was largely completed, that pe rmitting is required prior to commencement of

work and that the structures themselves will re quire 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. Ho wever, 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 th e 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 extens ion 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 prio r to the date of this request, this is due to circum stances beyond Ash Grove’s control as the clinker pile standards were not even published until September 9, 2010. As h Grove did not learn of the standards and

1 If EPA concludes that Ash Grove is not elig ible 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 necessa ry to come into compliance until after the standards were published. Theref ore, if a compliance date is assumed to exist and further assumed to be November 8, 2010, Ash Grove was in capable of making an extension request in compliance with the 120 day deadline.

In order to grant an extensi on, 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 th e equipment installation. This process will require considerable time, alt hough we are too early in the pro cess to generate a compliance schedule with any specificity. However, consiste nt 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 comp ly with the standard;

Ash Grove believes that the speci fic controls that require inst allation 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 handli ng facilities to more th an 1,000 feet from the property line. Therefore, until this engineering assessment is completed, it is impossible to identify the controls beyond this re ference to the NESHAP requirements.

(i)(6)(i)(B) – A compliance schedule, including th e date by which each step toward compliance will be reached;

Ash Grove has prepared the following conceptu al schedule as require d by EPA’s regulations.

Activity Estimated Completion Date Engineering assessment of clinker storage/handli ng 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 unanticipat ed 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 reflect s 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 orde rly fashion. In relation to the extension request, while the regulations only requ ire a response to this request within 30 days, I would greatly appreciate an earlier response as we are necessarily concerne d 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 QualityMr. Keith Barnett October 21, 2010 Page 6

List of Ash Grove Cement Co mpany 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