500 New Jersey Avenue, NW

7

th Floor

Washington, D.C. 20001

(202) 408-9494

December 3, 2010

Gina McCarthy

Assistant Administrator for Air and Radiation

Environmental Protection Agency

USEPA Headquarters

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Mail Code: 6101A

Washington, DC 20460

Re: The Portland Cement Association’s Petition for Reconsideration and Petitions for Review

Dear Ms. McCarthy:

On behalf of the Portland Cement Association (“PCA”), I respectfully am writing to request a 

meeting with you at your earliest opportunity to discuss the Petition for Reconsideration and 

accompanying request for administrative stay that PCA and its member companies filed with the 

Environmental Protection Agency (“EPA”) on November 5, 2010. The Petition for Reconsideration 

raises a number of important issues addressed in the portland cement national emission standard for 

hazardous air pollutants (NESHAP) and the portland cement new source performance standard (NSPS) 

that PCA looks forward to working cooperatively with the Agency to resolve. We also believe such a 

conversation at this time with EPA and the Department of Justice on these issues could further efforts to 

address immediate concerns through alternative means than litigation.

As detailed in PCA’s Petition for Reconsideration, the final portland cement rules discuss several 

dramatic and unforeseeable changes to the scope of the final rules over the proposal. Given that PCA did 

not have a full and fair opportunity to comment on those changes, PCA has requested that EPA grant 

reconsideration pursuant to Section 307(d)(7)(B) of the Clean Air Act and to stay the rules pending the 

reconsideration process. The issues raised by PCA’s Petition for Reconsideration include:

Impacts of the CISWI and “solid waste” definition rules on the NESHAP standards: After

the close of the comment period on the proposed NESHAP rule, EPA proposed separate but 

interrelated rules regulating Commercial and Industrial Solid Waste Incineration (“CISWI”) units 

and defining “solid waste.” These proposed CISWI/“solid waste” definition rules eviscerate the 

statistical underpinning for the NESHAP rule. Any shift in classification of facilities from 

NESHAP-to CISWI-regulated facilities undercuts the critical calculations that EPA relied upon to 

establish standards, floors, and emissions limits in the NESHAP rule. In fact, virtually every 

source that EPA used to establish MACT “floor” emissions limits would likely be categorized as 

a CISWI source, rather than a NESHAP source, under the proposed CISWI/“solid waste” 

definition rules. It is fundamentally improper for EPA to issue a NESHAP rule that ignores two 

other proposed rules that undercut the basis for the emissions limits in the NESHAP rule. 

Regulation of clinker storage piles: In the proposed NESHAP rule, EPA requested information 

about open clinker storage piles but did not propose any regulations addressing such storage piles. 

In the final rules, EPA issued – for the first time – comprehensive and potentially unworkable and 

very expensive regulations governing clinker storage pile emissions. Stakeholders never had an 
2

opportunity to review or comment on those potentially onerous regulations before they were 

finalized. 

Startup, shutdown, and malfunction standards: As with the clinker storage pile regulations, 

EPA finalized specific standards for startup, shutdown, and malfunction in an approach 

fundamentally different from that proposed, and which is not a logical outgrowth of the proposed 

rule, depriving stakeholders of any meaningful notice and comment opportunity. Further, EPA 

promulgated a new and unwieldy procedure for asserting an affirmative defense for malfunctions. 

Significantly reduced particulate matter limits: After issuing the proposed rules, EPA gathered 

new data and recalculated dramatically lower particulate matter limits for the final rules that are 

far beyond any range identified in the proposal. EPA did not make that new data available to the 

public before the rule was finalized, and PCA was not able to comment on the adequacy of the 

data. The dramatic reduction in the particulate matter limits may have resulted in part because 

some of the new data was selectively gathered from facilities with new baghouses, thereby 

artificially skewing the emissions limit calculations. 

Other issues: PCA has also identified a number of other significant changes in the final rules that 

raise practical implementation and monitoring problems.

These changes drastically altered the final rules from the proposal in ways that stakeholders could 

not have anticipated as the final rules were not logical outgrowths of the proposal. Thus, EPA is required 

to grant reconsideration at this time. PCA urges EPA to reconsider the rules, stay the effectiveness of the 

rules pending reconsideration, and to stay and defer the compliance deadlines and other provisions of the

rules until the outcome of the reconsideration process. 

Further, in order to preserve its legal position before the court, PCA and a number of PCA 

members have also filed Petitions for Review with the D.C. Circuit seeking review of the NSPS and 

NESHAP rules. In addition to addressing concerns raised in the Petition for Reconsideration, PCA in the 

D.C. Circuit litigation, would intend to raise other core concerns with the rules that PCA has previously 

raised in its comments on the rules.

PCA recognizes, however, that litigation may not be the best means to resolve these issues. To 

that end, we would appreciate the opportunity to sit down with you at your earliest convenience to discuss 

PCA’s Petition for Reconsideration and the issues raised therein. We would also like to discuss ways for 

PCA and EPA to work cooperatively to resolve the range of concerns that exist regarding the NSPS and 

NESHAP rules. 

I look forward to your response and to the opportunity to discuss these important issues. I may be 

reached at (202) 408-9494 or aohare@cement.org.

Sincerely,

Andrew T. O'Hare 

Vice President, Regulatory Affairs