Page 1 of 72 August 3, 2010

Docket ID Number EPA

- HQ

- RCRA

- 2008

- 0329

FRL

- 9148

- 2; RIN 2050

- AG4

Mail Code: 28221T 1200 Pennsylvania Avenue, NW Environmental Protection Agency Washington, DC 20460

RE: Notice of Proposed Rulemaking

– “Identification of Non

- Hazar dous Secondary Materials That Are Solid Waste” (75 Fed. Reg. 31844 et seq ., June 4, 2010)

To Whom It May Concern:

The Portland Cement Association (PCA) is a trade association representing portland cement manufacturing companies in the United States and Canada. PCA’ s U.S. membership consists of 28 portland cement companies operating 102 manufacturing plants in 34 states and distribution center s in all 50 states . PCA m embers account for more than 97.5 percent of p ortland cement

- making capacity in the United States

.

In the Federal Register of June 4, 2010, EPA published two companion notices of proposed rulemakings (NPRMs) of great significance to PCA members. The first EPA NPRM is referenced above and is the subject of the comments we are su bmitting today. In this first NPRM, EPA is proposing to add a new “Part 241” to its regulations for non

- hazardous solid waste under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § § 6901, et seq

.

EPA’s second NPRM, published at 75 Fed. R eg. 31938, et seq . is issued pursuant to Section

129 of the C lean Air Act (CAA), 42 U.S.C. § 7429. In that NPRM, EPA proposes emission standards

and other requirements under CAA § 129 for “Commercial and Industrial Solid Waste Incineration Units,” or “CIS WIs.” EPA has recently extended the deadline for public comments on the CA A CISWI proposal until August 23 , 2010, and PCA will be submitting comments on the CISWI proposal at that time.

As will be explained in greater detail below, the two proposals are linked in a manner of g reat potential significance to p ortland cement manufacturing facilties. For even though a p ortland cement

kiln is not an “inci nerator,” under EPA’s proposal p ortland cement kilns will be subject to the new

CAA § 129 incinerator sta ndards whenever any kiln “combusts” a non

- hazardous secondary material

that EPA defines as “solid waste” in this “Part 241” RCRA rulemaking.Page 2 of 72 We appreciate the opportunity to provide comments on the important questions related to this proposed rulemaking b y the Agency. We look forward to work ing with the Agency as consideration of these issues continues. Please do not hesitate to contact us should you have any questions regarding PCA’s perspectives on this matter. We can be reached at (202) 408

- 9494.

Best Regards,

Andrew T. O’Hare

Vice President Regulatory Affairs

500 New Jersey Avenue, N.W., 7 th Floor Washington, DC 20001

202.408.9494 Fax 202.408.0877

www.cement.orgPage 3 of 72 Please ref er to the following outline for key arguments raised in PCA’s comments:

CONTENTS

Opening

................................ ................................ ................................ ................................ ................. 1

I. BACKGROUND

................................ ................................ ................................ ..................... 6

A. The Portland Cement Industry and Its Use of Non

- Hazardous Secondary

Materials

................................ ................................ ................................ ...................... 6

B. Statutory and Judicial Background to Proposed Rule

................................ ............ 8

C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts

Could Be Severe

................................ ................................ ................................ .......... 8

D. The Potentially Damaging Impacts on PCA’s Members

................................ ....... 10

E. A Portland Cement Kiln is Not a Boiler or Incinerator

................................ ........ 10

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A

SUMMARY

................................ ................................ ................................ ........................... 11

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY

MATERIALS AS INGREDIENTS UNDER CAA 129

................................ ..................... 12

A. Plain words of statute

– “combust”

................................ ................................ ......... 12

B. Legislative History

................................ ................................ ................................ .... 13

C. EPA’s Own Word Usages

................................ ................................ ......................... 14

IV. NOTHING IN THE D.C. CIRCUIT’S 200 7 NRDC OPINION, OR IN ANY OF THE RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS

THE SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE

INGREDIENTS

................................ ................................ ................................ ..................... 15

A. Energy Recovery the Only Focus

................................ ................................ ............ 15

B. Rulemaking Preceding the 2007 NRDC Opinion

................................ ................... 15

C. The NRDC Briefing and Opinion

................................ ................................ ............ 16

D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients

............ 17

V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED

DECISIONMAKING

................................ ................................ ................................ ........... 18

A. Supreme Court “State Farm” and D.C. Circuit Precedent

................................ .. 18

B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals

.......... 19

1. Rationale for Subtitle C DSW Approach

................................ ........................ 19

2. The Subtitle C DSW Approach Was Never Intended to Apply to Non

Hazardous Materials

................................ ................................ ....................... 20

C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D

Solid Waste Definition Without Justification

................................ ........................ 20

D. EPA’s Proposal Would Impose Unjustified Barriers to Recycl e and Reuse

....... 21Page 4 of 72 E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary and Inappropriate

................................ ................................ ................................ ............ 22

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT

FUNDAMENTAL FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL

....... 24

A. The Portland Cement Industry’s History of Beneficially Using Whole Scrap Tires

................................ ................................ ................................ ................. 24

B. The Proposal Will Strongly Discourage Portland Cement Kiln Utilization Of Used Tires With No Resulting Benefits to Health and the Environment

....... 26

C. EPA’s Interpretations of “Discard” and “Processing” Are Misguided and

Harmful

................................ ................................ ................................ ...................... 28

1. Discard

................................ ................................ ................................ ............ 28

2. Processed

................................ ................................ ................................ ......... 30

D. EPA’s Importation of “Legitimacy Criteria” from RCRA Subtitle C is Unwarrantedand Unproductive, Particularly as Applied to Portland

Cement Kilns.

................................ ................................ ................................ ............ 32

E. Used Tires Should Be Re cognized as “Traditional Fuels”

................................ .... 34

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND

ARBITRARY

................................ ................................ ................................ ........................ 35

VIII. PCA’S RESPONSES TO SPE CIFIC REQUESTS FOR COMMENT AND

INFORMATION IN EPA’S PREAMBLE

................................ ................................ ......... 40

A. Additional Information on non

- hazardous secondary material (“NHSM”), Federal Register page 31850.

................................ ............................... 40

B. Information on Additional Traditional Fuels, Federal Register page

31856.

................................ ................................ ................................ .......................... 41

C. Petition Process for Designating Traditional Fuel, Federal Register page

31856

. ................................ ................................ ................................ .......................... 45

D. Definition of Processing, Federal Register pages 31861, 31876, 31878

. ............... 45

E. Additional Information on Levels of Contaminants, Federal Register page 31863.

................................ ................................ ................................ ................. 48

F. Sewage Sludge Approach, Federal Register page 31866.

................................ ...... 49

G. CCR Ingredient or Fuel Value, Federal Re gister page 31868

. ............................. 50

H. Coal Combustion Residual Contaminant Changes, Federal Register page

31869

. ................................ ................................ ................................ .......................... 50

I. Levels of Contaminants in Fu els, Federal Register page 31872.

.......................... 51

J. Record Maintenance and Notification, Federal Register page 31874.

................. 52

K. Inventory Management, Federal Register page 31874.

................................ ......... 52

L. Discard Definition for Newly Generated Tires, Federal Register pages

31874.

................................ ................................ ................................ .......................... 53

M. Metal in Tires

- pr ocessing Definition, Federal Register page 31877

- 78.

.............. 55

N. Processing

- Determination Versus Self Implementing Approach, Federal Register page 31878

- 31879

. ................................ ................................ ...................... 56

O. Non

- waste Determination, Federal Register page 31880

. ................................ ..... 58

P. Storage Timeframes, Federal Register page 31880

- 31881.

................................ ... 59 Q. Definition of “Contained”, Federal Register page 31881.

................................ ..... 60Page 5 of 72 R. Btu Limit, Federal Register page 31882.

................................ ................................ 62

S. Scope of Co ntaminants, Federal Register page 31883

. ................................ .......... 63

T. Bright

- line Level of Contaminants, Federal Register page 31883

. ....................... 65

U. Comparison of Tot al Constituents, Definition of “Comparable” Federal Register page 31883

. ................................ ................................ ................................ . 66

V. Qualitative Comparison (Emissions), Federal Register page 31883

. ................... 66

W. Useful Contribution, Federal Register page 31884.

................................ ............... 67

X. Contaminant Comparison

- Ingredients, Federal Register page 31885

. ................ 68

Y. Alternative Approach, Federal Register page 31886.

................................ ............ 68

IX. CONCLUSION

................................ ................................ ................................ ..................... 69

LIST OF Attachments to PCA’s Comments

................................ ................................ ....................... 71Page 6 of 72 I. BACKGROUND

A. The Portland Cement Industry and Its Use of Non

- Hazardous Secondary

Materials

As a preliminary matter, in order for EPA to understand and apprec iate PCA’s concerns with the proposed rule, EPA fi rst needs to understand how p ortland cement manufacturers make beneficial use of secondary materials in their manufacturing operations.

Portland 1 cement is the powder that acts as the glue or bonding agent that, when mixed with water, sand, gravel and other materials, forms concrete. Portland cement is produced from various naturally abundant raw materials, including limestone, shale, clay, and silica sand. The four key elements in cement making include calcium, iron, silica and aluminum. Portland c ement is an essential construction material and a basic component of our nation’s infrastructure. It is utilized in numerous markets, including the construction of highways, streets, bridges, airports, mass transit systems, commercial and residential buil dings, dams, and water resource systems and facilities. The

low cost , durability, and universal availability of p ortland cement ensure s that concrete remains one of the world’s most essential and widely used construction materials.

PCA’s member companie s support efforts to increase our nation’s use of safe and compatible energy efficient alternative fuels and raw materials in order to reduce reliance on fossil fuels and virgin materials

. Indeed, o ur member companies are lead ers in the effort to be respo nsible stewards

of our Nation ’s energy and natural resources by , among other things, combining advanced technology and innovative manufacturing practices

. PCA’s members continue to be at the forefront

of sustainable industrial ecology, under taking volunta ry efforts to reducing waste disposal through the use of scrap tires, used motor oils, p etroleum sludge and other reusable materials as alternative fuels and raw materials in the production of cement. Indeed, the environmental benefits of these

efforts we re chronicled in a recent study underwritten by EPA’s Office of Policy, Economics, and Innovation’s Sector Strategies Division. 2

Some PCA members burn “hazardous waste fuel” (HWF) as a replacement for fossil fuels at

one or more of their p ortland cement manufacturing f acilities. HWF

- burning is fully regulated under

the hazardous waste “cradle

- to

- grave” regime of RCRA Subtitle C. HWF

- burning kilns are also subject to Clean Air Act (CAA) maximum achievable control technology (“MACT”) emission control requ irements codified at 40 C.F.R. Pa rt 63, S ubpart EEE. HWF is being utiliz ed as an

alternative fuel at eleven p ortland cement manufacturing facilities in the U.S.

At a far greater number of facilities, p ortland cement companies are using non

- hazardous

se condary materials as a replacement for traditional materials used in the manufacturing process.

1 “Portland cement” is not a brand name. It is a generic term used to descri be a specific type of cement.

2 Cement Sector Tren ds in Beneficial Use of Alternative Fuels and Raw Materials, Revised Draft October 2008, included as

Attachment K, posted on EPA’s website at http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html.Page 7 of 72 Non

- hazardous secondary materials are being used both as ingredients and fuels. These manufacturing facilities (like all p ortland cement manufacturing facil i ties that do not utilize HWF), are subject to comprehensive CAA MACT standards codified at 40 C.F.R. part 63, subpart LLL.

As EPA recognizes in the NPRM, p ortland cement manufacturers’ use of non

- hazardous secondary materials conserves virgin non

- ren ewable raw materials and fuels and provides great

benefits to the environment

. One of the principal benefits is an opportunity to reuse materials that

would otherwise be discarded. This type of recycling not only reduces the pollution and energy

necessar y to extract virgin materials, but (as explained further below) can also reduce air pollution such as greenhouse gases and other conventional pollutants from the p ortland cement manufacturing

process.

Many cement plants are capable of beneficially util izing a wide range of non

- hazardous secondary materials including both alternative ingredients and fuels. PCA estimates that in the U.S.,

over 12 million tons of non

- hazardous secondary materials are used annually by the cement industry. Among common alt ernative ingredient materials , which contain one of more of the four essential cement ingredients, include foundry sand, mill scale, and steel furnace slag. Among alternative fuels, scrap tires provide the best example, due to the industry’s long

- standing use of this secondary material. Over 40 percent of U.S. cement plants have invested in technology to use scrap t ires as an

alternative fuel to coal. In the United States, where more than 300 million scrap tires are generated annually, p ortland cement pl ants use more than 50 million tires a year

– thereby diverting those

materials from landfills.

As explained in more detail in Section VI below, t he environmental benefits of utilizing scrap

tires as a supplemental fuel in the p ortland cement manufactur ing process are multifold. When whole tires are combusted in cement kilns, the steel belting becomes a component of the clinker, an intermediate product, replacing some or all of the iron required by the manufacturing process. Pound for pound, tires have more fuel value than coal and the use of tires as fuel can actually reduce certain

emissions. EPA states that tire

- derived fuel contains about the same amount of energy as oil and 25 percent more energy than coal. This means that each ton of tire derived fuel used by a p ortland cement plant has the potential to replace 1.25 tons of coal. This practice reduces impacts of coal mining, processing, and transportation and reduces the industry’s greenhouse gas emissions. Moreover, tires contain biogenic materi als and thus when combusted are carbon neutral for that biogenic portion.

Additional background on the benefits associated with these practices is described in PCA’s comments on the “Advance Notice of Proposed Rulemaking” (ANPRM) EPA published on January 2, 2009 as a pre

- cursor to the instant proposal (74 Fed. Reg. 41 et seq .). PCA’s ANPRM comments also attach several EPA and industry studies and reports demonstrating such benefits. PCA’s ANPRM comments appear in the docket for this rulemaking at EPA

- HQ

- RCRA

- 2008

- 0329

- 0352.1[1] and are incorporated into these comments by reference.Page 8 of 72 B. Statutory and Judicial Background to Proposed Rule

Section 129 of the Clean Air Act (CAA) directs EPA to issue emission standards for “solid

waste incineration units.” The statute defines such units as those that “combust any solid waste

material” from commercial or industrial units. The CAA does not define “solid waste”

– rather it provides that “sol id waste” for purposes of CAA § 129 is to be “established by the Adm inistrator”

under RCRA. CAA § 129(g).

As EPA explains on p age 31848 of its preamble , the instant proposal is prompted by the

Court’s decision in NRDC v. EPA , 489 F.3d 1250 (D.C. Cir. 2007) (“ NRDC ”) . In that case, the Court rejected EPA’s regulations is sued under CAA § 129. No RCRA regulations were at issue in that

case.

In EPA’s CAA § 129 regulations that were under judicial review in NRDC , EPA had provided that certain types of facilities would be exempt from regulation as CAA § 129 units if the uni ts combusted solid wastes of certain types for certain purposes. The Court rejected EPA’s rules, holding that the CAA unambiguously provided that “any” facility that combusted “any” solid waste

– regardless of the purposes of the combustion

– must be regu lated under CAA § 129.

EPA is now undertaking to define “solid waste” under RCRA for purposes of determining which units will be subject to CAA § 129. Nothing in the NRDC case guides or restrains EPA’s discretion in this RCRA rulemaking, for the issue of how the Administrator may define “solid waste” under RCRA was simply not before the Court in NRDC

.

RCRA defines “solid waste” as being:

[A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution co ntrol facility and other discarded material . . . resulting from industrial, commercial, mining, and agricultural operations, and from community

activities . . .

RCRA § 1004(27).

C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts Could Be

Severe

We should make clear at the outset what is at issue in the instant rulemaking and what is not at issue. First, EPA has no constraints placed on it by the 2007 NRDC case. While the D.C. Circuit held that any facility that combusts anything tha t EPA defines as “solid waste” under RCRA regulations must be regulated under CAA § 129, the Court’s opinion did not in any manner speak to

how EPA should go about defining “solid waste” under RCRA. EPA is thus left with discretion to determine through th is rulemaking that, to effectuate the purposes of RCRA, some materials will not be deemed “solid wastes” when they are combusted in CAA § 129 units.Page 9 of 72 Second, the scope of EPA’s proposal is, consistent with the scope of the Court’s vacatur in

NRDC , actuall y quite narrow in the context of the overall administration of RCRA. EPA is not proposing to define “solid waste” for general purposes of its (and the States ’ ) solid waste management programs under R CRA Subtitle D. Neither is EPA proposing to amend its d efinition of

solid waste for Subtitle C hazard ous waste purposes (40 C.F.R. § 261.2).

Rather, the narrow purpose of the proposed regulations is stated quite clearly in the regulatory provisions of the proposed rule. In the proposed new Part 241 to the C.F.R., Subpart B would be

entitled:

Identification of Non

- Hazardous Secondary Materials That Are Solid Wastes When Used As Fuels or Ingredients in Combustion Units

75 Fed. Reg. 31892 ( emphasis added )

.

Similarly, proposed § 241.3, the regulatory secti on that includes the proposed provisions for making such identifications, is entitled:

Standards and procedures for identification of non

- hazardous secondary

materials that are solid waste when used as fuels or ingredients in combustion

units

.

Id

., ( emp hasis added )

.

And the operative language in the proposed rule leads with the following:

The following non

- hazardous secondary materials are not solid wastes when

combusted : . . .

Pro posed § 241.3(b) ( emphasis added )

.

Moreover, the proposed regulat ory language is clear that material determined to be (or not to be) a solid waste when combusted is solely within the context of determining whether a uni t will be regulated or not under CAA § 129. See proposed § 241.1.

Accordingly, a material that EPA may declare through this rulemaking not to be a solid waste

when combusted fo r purposes of determining CAA § 129 applicability may still be considered and regulated as a solid waste for other purposes under State or federal regulations. For instance , assu me EPA were to follow PCA’s recommendations below and structure its Part 241 rules so that whole scrap tires used as fuel in p ortland cement kilns are not a solid waste when combusted. This would

not affect the ability of States to classify and regulate t hose scrap tires as solid wastes under their own

solid waste laws or under RCRA Subtitle D for purposes of generation, transportation, taxation, management standards, or any other purpose. As EPA states in its preamble:Page 10 of 72 CAA Section 129 states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste Disposal Act.”

Id . at 7429(g)(6). Accordingly, the state’s definitions of solid waste would not be applicable in determining whether the section 129 standards apply. . . . Likewise, non

hazardous secondary materials that are exempted from being a solid waste by EPA's proposed rule, if finalized, would be exempt from the CAA section 129 standards, even though the state standards may define the non

- haza rdous secondary material as

a solid waste.

74 Fed. Reg. 31888 ( emphasis added )

.

D. The Potentially Damaging Impacts on PCA’s Members

As explained in the immediately preceding section

, the fact that EPA might provide in the Part 241 regulations that a who le tire is not a solid waste when combusted in a CISWI unit would not in any manner impede a State’s ability to regulate whole tires as solid wastes if they are placed in a landfill or managed in any other manner. T he only issue in this rulemaking is what materials, when combusted in certain types of units, will trigger the applicability of CAA § 129. While this issue is quite narrow in the overall scheme of the RCRA program , it is of profound significance to PCA’s

members.

The problem lies in the bas ic fact that facilities will have strong incentives to avoid combusting materials that would subject them to regulat ion as incinerators under CAA § 129. EPA recognizes this in its proposed CISWI preamble. See 75 Fed. Reg. 31965

- 66. Many p ortland cement facilities would be unable to meet the CISWI emission standards that EPA has proposed for “existing” sources for one or more parameters without undertaking retrofits with enormous costs that could not be justified. More importantly, the CISWI standards fo r “new” sources

– which would also be applicable to “modified” sources

– are so excessively stringent that no facility can meet them on a

continuous basis. Because p ortland cement kilns could through many types of necessary operational changes be deemed “modified” and thus trigger applicability of the “new source” standards, p ortland cement kilns would have no rational choice but to avoid combusting those materials EPA declares to be “solid wastes” in the part 241 rule. This would be most unfortunate ind eed, as explained throughout these comments.

E. A Portland Cement Kiln is Not a Boiler or Incinerator

As demonstrated below (Parts III and IV), in enacting CAA § 129, Congress was focused exclusively on “incinerators.” Incinerators burn waste materials so lely for the purposes of destruction. They do not use “ingredients,” and they make no product.

Moreover, in all the rulemaking and litigation that prompted this proposed rule

– culminating

in the NRDC case discussed in part I(B) above

– EPA, the parti es, and the Court were focused exclusively on incinerators and boilers. Like incinerators, boilers do not use “ingredients.” UnlikePage 11 of 72 incinerators, boilers may burn waste materials for energy recovery purposes. But the only product they make is steam, and the steam that they make never comes in contact with the fuel they burn.

A p ortland cement kiln is significantly different from an incinerator or a boiler in key respects. First, it is one type of “industrial furnace” which, unlike boilers and inc inerators, make a marketable product. All materials that are placed in the kiln

– including fuels

– come into mutual contact in the manufacturing process. The product the kilns produce must meet strict quality

standards. EPA’s RCRA regulations have lon g recognized these key distinctions among industrial furnaces, boilers, and incinerators. See 40 C.F.R. § 260.10.

Despite the fact that there was absolutely no issue with p ortland cement kilns producing ingredients in the development of CAA § 129 or the rulemaking and litigation leading to this rulemaking, p ortland cement kilns have been included in this proposal in a manner that could have very adverse impacts on kilns’ ability to use non

- hazardous materials beneficially. As will be explained further b elow, a significant flaw in the proposal i s its failure to recognize key differences

between p ortland cement kilns as compared to incinerators and boilers.

For instance, whole tires (un

- shredded and without metal removed) serve as a useful and

bona fide fuel and ingredient in p ortland cement kilns but not in boilers or incinerators. And “legitimacy criteria” for non

- hazardous materials that might possibly be appropriate for boilers and incinerators cannot properly be applied to furnaces that are in busin ess to make a quality product.

We will explain these points further throughout these comments. We urge EPA to recognize, however, just as its regulations have long provided, that key differences in these types of units require distinctions in the way th ey are controlled.

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A

SUMMARY

We now turn to our attention to the current proposal. There is a bottom

- line message that will resonate throughout these comments :

I

n imple menting RCRA , EPA must balan ce the statute’s two primary goals of (1) protecting human health and the environment and (2) encouraging reuse and recycling. The second goal is particularly critical in the Subtitle D context. Yet EPA openly recognizes that its proposal, coupled

with t he proposed CISWI rule, would result in the landfilling of great volumes of non

- hazardous secondary materials now being beneficially reused. EPA has not attempted to justify its anti

reuse/ recycling proposal on grounds that such an approach is necessary t o protect human health and the environment. As EPA clearly has discretion under RCRA and the case law to structure its

Subtitle D proposal in a manner that would promote reuse and recycling without impairing health and environmental protection, EPA ’s prop osal as applied to p ortland cement kilns is fatally arbitrary and capricious and a failure of reasoned decision making.Page 12 of 72 In Section III below, we explain why, as a legal matter, EPA has no authority under CAA § 129 to regulate the use of secondary mater ials as ingredients. In Section IV, we show that nothing in the rulemaking proceedings or the case law leading to this proposal contained any hint that regulation of ingredients was ever at issue. In Section V, we explain why we believe the proposal repr esents a failure of reasoned decisionmaking.

In Section VI, we focus on the proposal’s treatment of waste tires as the prime example of its numerous fundamental flaws, and show how EPA’s approach to key concepts such as “discard,” “processing,” and “le gitimacy criteria” as applied to p ortland cement kilns are unnecessary and unsupportable. In Section VII we show how EPA’s assessment of the costs and benefits of this proposal are flawed. In Section VIII we will respond to specific issues on which EPA h as solicited comment in its preamble.

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY MATERIALS

AS INGREDIENTS UNDER CAA 129

A. Plain words of statute

– “combust”

The purpose of the RCRA part 241 proposal is to identify materials that would be deemed

“ solid wastes” for purposes of triggering CAA § 129 jurisdiction. See 75 Fed. Reg. 31892 (proposed § 241.1)

.

EPA’s CAA § 129 authority is limited to “solid wast e incineration units,” which the statute

defines as units that “combust” solid waste. CAA § 1 29(g)(1). This statutory definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA Subtitle C). Nor does it say that EPA can regulate units that “use” solid waste.

The act of “combustion” is thus necessary to trigge r CAA § 129 jurisdiction, and materials

that are used as ingredients in an industrial process are not “combusted.” Even though temperatures in a kiln are extremely high, the feedstock for clinker that is placed into the kiln is not “combusted”

– rather, i t is incorporated into the clinker product. Similarly, secondary materials that may be used as substitutes for mined or virgin feedstock become incorporated into the clinker product and are not

“combusted.”

Neither the CAA nor RCRA define the words “com bust” or “combustion.” One must accordingly turn to t he plain meaning, dictionary, sta ndard usage among engineers, definitions. The

McGraw

- Hill Science and Engineer ing Dictionary, Third Edition 1984, defines “combustion” as follows (emphasis added): The burning of gas, liquid, or solid, in which the fuel is oxidized evolving heat and often light.” Similarly, a well

- respected engineering text defines “combustion” in this

manner: “ the conversion of a substance called a fuel into chemical compounds known as products of combustion by combination with an oxidizer. The combustion process is an exothermic chemical reaction, i.e., a reaction that releases energy as it occurs. ” Weston, Energy Conversion , chapter 3, p.Page 13 of 72 85 (emphasis added)

, included at Attach ment A , and available at http://www.personal.utulsa.edu/~kenneth

- weston/chapter3.pdf

.

As will be discussed in detail below, EPA’s proposal explicitly addresses two distinct types o f secondary material use: (1) burning materials as fuels; and (2) using materials as ingredients. As these common dictionary definitions show, a unit “combusts” fuels but not ingredients. EPA accordingly has no authority under the plain terms of CAA § 1 29 t o regulate p ortland cement kiln s ’ use of secondary materials as ingredients.

B. Legislative History

T he legislative history shows that the drafters of the CAA indicated no intent to include use of materials for ingredients when they specified the word “combust.” The legislative history of CAA §

129 in fact shows there is no mention of the use of secondary materials for ingredients. Rather, the entire focus of the legislative history reflects a concern in the late 1980s that municipal and hospital

inci nerators were coming on line (or planned) in large numbers and the then

- existing CAA controls at the federal level for such units were perceived to be inadequate.

The only analysis and explanations of the CAA § 129 language in the legislative history appear in the two Senate Environment and Public Works Committee Reports leading up to the final enactment of the 1990 Clean Air Act Amendments. One Report accompanied the 1 989 version of the Senate Bill, Senate Repor t 101

- 228, accompanying S. 1630 (the “1 989 Senate Report,” Attachment

B ). T he other accompanied the 1987 version of the Senate Bill

, Senate Repor t 100

- 231, accompanying S. 1894 (the “1987 Senate Report,” Attachment C ).

One will search in vain for any concern or reference to

– even obliquel y

– use of secondary materials as ingredients. As explained on page 8593 of the 1989 Senate Report, the driving force for

CAA § 129 was a study EPA had prepared (as directed by 1984 RCRA amendments from Congress) on the health risks of “municipal solid wa ste incinerators.” See Attachment B

. The 1987 Senate Report further explains that the concern driving Congress related to the fact that “111 municipal incineration facilities are currently in operation in the United States, and at least 210 more are in t he planning or permitting phase .” See Attachment C at 9450

.

The 1987 Senate Report explains that citizen concerns over potential health risks have made “permitting for municipal incineration units difficult or impossible in some communities,” and that

t he purpose of the legislation was to insure that such units would be subject to protective emission

standards to alleviate such concerns. Id

.

The 1987 Senate Report goes on to explain that there are three types of incinerator technology: “mass burn” facilities that take “garbage” untreated and burn it in a simple process to produce heat, steam, or electricity; “refuse derived fuel (RDF), ” which is fed to “specialized boilers;” and “modular” units, which are “small pre

- fabricated” units that burn waste in a “two

- chamber

process .” See Attachment C at 9451

- 52.Page 14 of 72 Thus, the types of units the drafters th ought they were covering with CAA § 129 most certainly did not include industrial furnaces that might be using secondary materials as ingredients.

This is strongly reinforced by the fact that there are unequivocal (and lengthy) statements in the legislative history to the effect that the byproduct of the “incinerators” covered by the legislation is “fly ash” and “bottom ash.” For example, the 1989 Senate Report states: “Pollutants which are trapped by control devices before entering the air become incinerator fly ash. Managing incinerator ash, therefore, is inextricably linked to controlling air emissions from municipal waste incinerators.”

See Attachme nt B at 8494

.

Industrial furnaces such as cement kilns produce cement kiln dust (CKD). This is a material that is wholly distinguishable from fly ash, not only physically and chemically, but legally. Compare

RCRA § 3001(b)(3)(A)(i) (fly ash) with RCR A § 3001(b)(3)(A)(iii) ( CKD ).

And the 1987 Senate Report states with respect to the units that would be regulated under

CAA § 129: “It is necessary to regulate air emissions and ash simultaneously because the control technologies required to limit emiss ions trap pollutants, which then become part of the fly ash.” See 1987 Senate Report, Attachment C at 9451

.

Under the assumptio n that the units regulated by CAA § 1 2 9 would be producing this “incinerator ash” or “fly ash,” Congress included a special pr ovision in the 1990 CAA Amendments (along with CAA § 129) specifying that “ash from solid waste incineration units” could not be regulated as a hazardous waste under RCRA for two years. 42 U.S.C. § 6921 ( note )

.

Thus all the legislative history shows no indication of any Congressional intent to cover materials used as ingredients in industrial furnaces, and

, in fact

, consistently points the oth er way. I t strongly reinforces the point that the statutory word “combust” can and should be given its plain

En glish, unambiguous meaning.

C. EPA’s Own Word Usages

EPA’s own phraseology in its proposed part 241 preamble underscores this point. As EPA

stated in its preamble summary:

EPA is proposing a definition of non

- hazardous solid waste that would be used to identify whether non

- hazardous secondary materials burned as fuels or used as ingredients in combustion units are solid wastes.

75 Fed. Reg. 31844 (emphasis added).

Moreover, in its definition of “contaminant” in the proposed regulatory provisions , EPA provided : “. . . when secondary materials are burned as fuel or used as ingredients . . . “ 75 Fed. Reg. 31892 (emphasis added). There are several additional places in the preamble where EPA draws this distinction: fuels are “burned” whereas ingredient s are “used.” Of course, “combustion” equates

with “burn” but not “used.”Page 15 of 72 We found no place in the preamble where EPA stated that ingredients are “burned.” In fact, quite remarkably, there is no place we could find in the January 2, 2009 ANPR or the n ew part 241 proposal where EPA even attempted to stake out a theory as to how its authority to regulation

“combustion” could extend to regulation of materials used as ingredients.

The closest EPA comes is (very indirectly) to say several times that it is being guided by Subtitle C principles and precedents in crafting the proposed part 241 provisions. But of course, as

not ed above, the relevant word is “treatment” in Subtitle C

– which is much broader than

“combustion.”

IV. NOTHING IN THE D.C. CIRCU IT’S 2007 NRDC OPINION, OR IN ANY OF THE RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS THE

SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE INGREDIENTS

A. Energy Recovery the Only Focus

As discussed earlier, t he part 241 proposal is EPA’s response to t he Court’s remand in NRDC

v. EPA , 489 F.3d 1250 (D.C. Cir. 2007). Starting with EPA’s first CISWI rule of December 1, 2000 (65 Fed. Reg. 75338), there were several rounds of rulemakings, administrative petitions, and judicial challenges culminating in the 2007 NRDC decision.

Throughout these administrative and judicial proceeding s, there was an ongoing dispute regarding whether EPA should regulate burning for energy recovery under CAA § 129. The focus was not only 100 percent on energy recovery, but als o overwhelmingly on boilers ( not industrial furnaces). N othing in the petitions, comments, or judicial briefs filed by NRDC or other parties ever mentioned the issue of using secondary materials for ingredients

.

B. Rulemaking Preceding the 2007 NRDC Opin ion

EPA’s first CISWI rule (December 1, 2000) contained exemptions from CAA § 129 coverage for units burning fuels for energy recovery. EPA did this by defining “commercial and industrial waste” to mean “solid waste combusted in an enclosed device using controlled flame combustion without energy recovery . . .” 65 Fed. Reg. 75359.

Even though EPA used the terms “s olid waste combusted,” EPA’s 2000 rule and preamble said nothing about use of materials as ingredients in an industrial process. Moreover, it could not be clearer from the rule and the preamble, and the types of units that EPA’s rule was intended to cover, that the rule did not cover use of ingredients.

Earthjustice (on behalf of the Louisiana Environmental Action Network (LEAN) and the

Nat ional Wildlife Federation (NWF)) filed an administrative reconsideration petition with EPA on

Janu ary 30, 2001. See Attachment D . Earthjustice’s objection focused solely on the fact that EPAPage 16 of 72 had excluded units burning solid waste for energy recovery pu rposes , maintaining that such exclusion

vi olated the clear terms of CAA § 129. Earthjustice’s petition made no mention whatever of use of materials as ingredients. See generally id.

EPA granted Earthjustice’s petition on the procedural ground that the issue of excluding energy recovery burning had not been raised with sufficient specificity in the proposed rule preceding the 2000 final rule, and EPA undertook a new round of public comment. On February 17, 2004, EPA proposed amendments to the CISWI rule , once again taking the position that burning secondary materials as fuels for energy recovery w ould not be regulated under CAA § 129. 69 Fed. Reg. 7390.

Earthjustice once again strenuously objected to EPA’s proposed defi nitions in its comments

on EPA’s February 2004 proposal ( “Earthjustice 2004 Comments” at Attachment E )

. T he comments made no mention of materials used as ingredients and included no objection to the fact that the rule did not cover ingredients. All of the objection was directed to the energy recovery issue.

Moreover, it is quite clear from Earthjustice’s comments that the overwhelming focus of its

concerns related to the issue of area source boilers

. See Attachment E at pages 1

- 2. Earthjustice’s primary fear was that EPA would “e xpl oit” the provisions in CAA § 112 allowing “area sources” to be regulated under less stringent “Generally Available Control Technology” (GACT) requirements.

Id

. Boilers, of course, do not utilize secondary materials as ingredients.

EPA issued its fina l CISWI rule September 22, 2005. 70 Fed. Reg. 55568. EPA’s rule once again exempted energy recovery burning, and did not purport in any manner to regulate use of ingredients or even mention ingredients. EPA made clear in this preamble that p ortland ceme nt kilns would not be regulated under CAA § 129 if they burned fuels for energy recovery. E.g. , 70 Fed. Reg.

55571.

C. The NRDC Briefing and Opinion

NRDC, the Sierra Club, and the Environmental Integrity Project sought judicial review of EPA’s September 2 005 final rule. This resulted in the Court’s 2007 opinion remanding EPA’s CISWI rule that EPA is now responding to with its June 4, 2010 proposed rules.

Similar to their comments on the 2004 CISWI proposed rule, the overwhelming focus of the NRDC part ies’ concern was on boilers, and the issue of whether and to what extent EPA’s rules could allow smaller “area source” boilers burning waste fuels for energy recovery to be covered by more

lenient “GACT” standards under CAA § 112. The entire thrust of the N RDC par ties brief was that EPA could not exempt units burning solid waste for energy recovery from CAA § 129

. See NRDC

Brief

, at Attachment F. If the NRDC parties prevailed on that issue, then such units would be subject

to CAA § 129, which does not pr ovide for less stringent standards for area sources.

NRDC ’s brief said nothing about the issue of whether industrial furnaces using secondary materials as ingredients should be regulated. And from the very first sentence of the NRDC Brief

“Statement of Facts,” it is clear that the issue was never considered :Page 17 of 72 This matter concerns the highly toxic air emissions from more than 50,000 incinerators and boilers nationwide. Widely used to dispose of on

- site waste and to generate heat or electricity, incinera tors and boilers operate at virtually every imaginable industrial site, including chemical plants, refineries, pulp and paper mills, lumber mills, agribusinesses, and smelters.

Id. at 6.

This becomes further evident from the following key point in the N RDC Brief:

That is, although section 129 directs EPA to regulate sources that combust “ any solid

waste material from commercial or industri al establishments,” 42 U.S.C. § 7429(g)(l) (emphasis added), the agency instead regulates only sources that combust solid waste

from “ commercial or industrial establishments ... without energy recovery. ” This leaves the excluded, so

- called “energy recovery units” to be regulated under EPA’s

boilers rules.

Id. at 19.

Note especially the last phrase, “under EPA’s boi lers rules.” This strongly reinforces the point that no thought was being given in this litigation to issues involving industrial furnaces using secondary materials as ingredients. The only issue in the case was EPA’s attempt to exclude units burning sol id waste for energy recovery from CAA § 129

.

For further reinforcement of this point, one can review the numerous “standing” declarations attached to the NRDC Brief, where various members of NRDC and its co

- petitioning organizations explained how they co uld be adversely affected if EPA excluded such units from CAA § 129. See Id.

at 69

- 98. In every one of these declarations, the declarant states that he or she lives in close to proximity to an industrial boiler or an on

- site incinerator. Not a single dec larant states that he/she would be affected by emissions from an industrial furnace such as a p ortland cement kiln.

Thus, not surprisingly, the D.C. Circuit opinion in the 2007 NRDC case makes absolutely no mention of any issue involving the use of secon dary materials as ingredients. The Court held only that EPA’s regulation that exempted solid waste combusted for energy recovery was “inconsistent with the plain lang uage of section 129,” because CAA § 129(g)(1) defined the affected facilities as

“ any fac ility which combusts any solid waste material.” 489 F.3d at 1254, 1255.

D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients

EPA made clear at the beginning of its January 2, 2009 ANPR that it was initiating the new part 241 rulemaking f or the purpose of complying with the remand in the 2007 NRDC case. 74 Fed. Reg. at 4 3. But as shown above, the NRDC case had nothing whatever to d o with ingredients. EPA never explains

– either in the ANPR or the June 4, 2010 part 241 proposal

– why it chose to include ingredients within the scope of this rulemaking

.Page 18 of 72 V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED

DECISIONMAKING

A. Supreme Court “State Farm” and D.C. Circuit Precedent

Judicial review of agency rulemakings often focuses on two fundament al issues: (1) whether the agency’s interpretation of a statutory provision is sustainable; and (2) whether the agency engaged in “reasoned decisionmaking” in reaching that interpretation. The reviewing court may vacate a regulation on either ground. I n its bedrock decision Motor Vehicle Mfrs. Ass’n v. State Farm , 463

U.S. 29 (1983) (“ State Farm ”) , the Supre me Court elaborated upon the federal Administrative

Procedure Act ’s (APA) “arbitrary or capricious” standard with the phrase “reasoned

decisionmakin g,” and this terminology is used frequently by the D.C. Circuit and other courts

.

In CMA v. EPA , 217 F.3d 861 (D.C. Cir. 2000), the Court reviewed an EPA rule issued under

the Clean Air Act in which EPA had imposed a so

- called “early cessation” requireme nt. Many facilities had been burning a certain type of waste under emission limitations established under RCRA. EPA had imposed more stringent requirements under the CAA that were to take effect in three years, and EPA specified in those new rules that f aci lities failing to affirmatively commit to coming into compliance with those new more stringent standards by the three

- year deadline would have to cease burning that type of waste much earlier than the three

- year compliance deadline.

Petitioners before the C ourt pointed out that if any facility was forced to stop burning that type of waste before the new deadline, the same waste would simply be burned by other facil i ties under the same older RCRA standards, and EPA did not dispute this. Also, EPA maint ained generally that such a rule would have health and environmental benefits, but did not explain how it

would.

The Court said the CAA’s purpose was to protect and enhance air quality so as to promote the public health and welfare. Id . at 866. But si nce EPA could not explain any environmental benefits to

its ear ly cessation requirements, the C ourt held that it was unreasonable for EPA to impose “ costly obligations on regulated entities without regard to the [CAA’s] purpose. ” Id . at 867. In fact, the

C o urt took special note that environmental harm might be increased by EPA’s rule because more movement of wastes could increase the chances of leakage or spillage. Id . at 865. The Court

concluded that EPA’s actions represented a “ classic case of arbitra ry and capricious rulemaking.” Id

. at 865.

Similarly, the D.C. Circuit in API v. EPA

, 216 F.3d 50 (D.C. Cir. 2000) rejected an EPA interpretation that a certain material had been “discarded,” and was therefore a solid waste in the

Subtitle C context. C iting State Farm

, the Court ruled that EPA had failed to provide a “rational explanation” for its decision. Id . at 56

- 58. (We note that EPA cites this case as “ API II ” in its preamble. 75 Fed. Reg. at 31851. ) Other recent D.C. Circuit cases in which th e D.C. Circuit has relied upon State Farm “reasoned decisionmaking” principles to reverse EPA rules include Am. FarmPage 19 of 72 Bureau Fedn v. EPA , 559 F.3d 512 , 523

- 24 (D.C.Cir. 2009) and New York v. EPA , 413 F.3d 3, 10

- 11 (D.C. Cir. 2005).

B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals

For over thirty years EPA has been attempting to define

– in its Subtitle C hazardous waste regulations codified at 40 C.F.R. § 261.2

– which secondary material management and handling practices trigger t he definition of solid waste (DSW). EPA has always claimed discretion to “draw lines” in this regard under the statutory definition of solid waste (RCRA § 1004(27)). As EPA stressed in its first final Subtitle C DSW rule: “the extent of the Agency’s aut hority is not explicit on the face of the statute” when addressing the issue of whether materials destined for recycling may be

deemed solid wastes. 50 Fed. Reg. at 614, 615, January 4, 1985.

A primary goal of RCRA is protection of human health and the environment. E.g ., RCRA § § 3001, 3002, 3003, 3004, 3005. Another primary goal of RCRA is to promote resource conservation and recovery, including energy recovery. E.g., RCRA § 1002, 1003. Throughout its various rounds of Subtitle C DSW rulemakings, EP A has used its discretion to “draw lines” in an attempt to effectuate and accommodate these primary statutory goals.

1. Rationale for Subtitle C DSW Approach

EPA’s DSW for Subtitle C purposes involves a complex “line drawing” matrix in which

hazardous seco ndary materials destined for recycling may or may not be deemed a solid waste. EPA’s most recent revisions to the Subtitle C DSW appear in a final rulemaking published at 73 Fed. Reg. 64668 on October 30, 2008. In the preamble to these revisions, EPA sum marized and reviewed some of the most fundamental reasons why it has used its discretion to regulate some materials destined for recycling as solid waste in the Subtitle C context.

One major factor is that the secondary material in question in the Subtit le C context is by definition “hazardous,” and presents the same risks to health and the environment as hazardous

wastes. 73 Fed. Reg. at 64671. EPA cites the fact that hazardous material destined for recycling was involved in (a) one

- third of the first 60 RCRA waste site “imminent and substantial endangerment”

actions EPA initiated before the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA ) became law in 1980, and (b) 20 of the initial 100 sites on the CERCLA

National Priorit ies List (NPL). Id. EPA stresses that many additional “damage cases” have been documented more recently. Id

.

Another major factor is the “cradle to grave” regulatory regime mandated by RCRA Subtitle C. EPA has reasoned that allowing classification of hazardous materials as solid wastes depending only on what persons handling the materials “intended to do with them” would be inconsistent with the cradle to grave scheme of Subtitle C. Id

.Page 20 of 72 2. The Subtitle C DSW Approach Was Never Intended to Apply to Non

Hazardous Materials

Despite the complexity of EPA’s ever

- evolving DSW in the Subtitle C context, one thing has always been crystal clear: the definition applies only in the Subti tle C context. EPA has t aken great care to distinguish between the def inition of solid waste for Subtitle C purposes (40 C.F.R. § 261.2) and the definition for Subtitle D purposes.

EPA’s Subtitle C regulations, in fact, could not be more explicit on this point: “ The definition of solid waste contained in this part appli es only to wastes that also are hazardous for purposes of the regulations implementing subtitle C of RCRA . For example, it does not apply to materials (such as

non

- hazardous scrap, paper, textiles, or rubber) that are not otherwise hazardous wastes and th at are recycled.” 40 C.F.R. § 261.1(b)(1). In issuing this provision, EPA cited to RCRA legislative history calling for this result, so that the Subtitle C definition could not be used in “unintended contexts” for

non

- hazardous Subtitle D materials. 50 Fed. Reg. 614, 627 (January 4, 1985), citing H.R. Rep. 98

- 198 at 47.

C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D Solid

Waste Definition Without Justification

In its Part 241 proposed preamble, EPA says that to define solid waste under Subtitle D, it is “appropriate to use the same general framework” it has u sed under Subtitle C, “noting that the same statutory definition of solid waste applies to both RCRA Subtitles D and C.” 75 Fed. Reg. 31858.

The fact that the “same sta tutory definition” appl ies to both Subtitles C and D can not be a valid justification , however. As explained in the section immediately above, ( a ) EPA’s regulations have long specified that the Subtitle C DSW does not appl y in the Subtitle D context and ( b ) EPA has

stressed , cit ing legislative history, that the Subtitle C DSW should not be the same as a solid waste

definition under Subtitle D.

Yet EPA has not only borrowed heavily from its Subtitle C DSW approach in crafting its Subtitle D part 241 prop osal, but in some regards the part 241 proposal is significantly more stringent than the Subtitle C DSW. The most striking example is the contrasting approach to ingredients.

Under § 261.2 (Subtitle C DSW), a hazardous secondary material that is recycle d by being “used or reused as ingredients in an industrial process to make a product” is exempt from the DSW so long as the material is not being reclaimed. § 261.2(e)(1)(i). Under proposed § 241.3(b)(2), however,

a non

- hazardous secondary material being recycled for use as an ingredient will be exempt only if it meets several “legitimacy criteria” as specified in proposed § 241.3(d)(2).

Among the most notable of these criteria is the fourth:

The non

- hazardous secondary material used as an ingredient must result in products that contain contaminants at levels that are comparable or lower in concentration toPage 21 of 72 those found in traditional products that are manufactured without the non

- hazardous secondary material.

Proposed § 241.3(d)(2)(iv), 75 Fed. Reg

. 31893.

Thus, w hile non

- hazardous secondary materials would be subject to this product comparison testing under EPA’s proposal, under EPA’s Subtitle C hazardous waste regime hazardous secondary ingredient m aterials are exempt from the definition of sol id waste regardless of how much those materials may influence contaminant le vels in the resulting product. O ne would assume that ( a ) if EPA has leeway under the statute to define solid waste (which it does); ( b ) if EPA has authority to

define solid waste for purposes of Subtitle C differently than for purposes of Subtitle D (which it does); and ( c ) if secondary materials under Subtitle C are hazardous and secondary materials under

Subtitle D are non

- hazardous (which is the case), then EPA should not

– unle ss it can demonstrate a rationale for doing so

– be regulating secondary materials under Subtitle D as stringently as under

Subtitle C. Yet inexplicably, EPA’s proposed part 241 regulations treat non

- hazardous secondary ingre dient materials more stringen tly than hazardous secondary ingredient materials

.

We note that the two fundamental grounds EPA has cited to support the lines it has drawn in the Subtitle C context are, as discussed above, the innate hazardousness of the material (with the “damage cas e” examples going back for decades) and the “cradle to grave” mandate of RCRA Subtitle C. EPA cites no damage cases to support its part 241 proposal, however (and it is hard to see how it could when dealing with material that is by definition non

- hazardou s). And, of course, there is no “cradle to grave” system under RCRA Subtitle D. Thus, the grounds EPA relies upon in using its discretion to draw lines in its Subtitle C DSW simply do not apply in the Subtitle D context.

And EPA’s approach in this pr oposal appears even more illogical and “unreasoned” when one

con siders (as explained in part I(C) above), that the only function of the proposed part 241 definition

is to determine wh at materials will trigger CAA § 129 applicability when combusted . Materi als that may be excluded from the part 241 definition will not be excluded from the definition of solid waste for all other purposes.

This is in stark contrast to the function of EPA’s Subtitle C definitio n of solid waste in 40

C.F.R. § 261.2. If a mate rial is excluded from the definition under that section, it may also be excluded from RCRA control when stored, transported, or otherwise managed or discarded. Considering that the materials at issue under the Subtitle C definition are hazardous, the

cons equences of excluding a material are obviously much more serious from a health and environmental perspective.

D. EPA’s Proposal Would Impose Unjustified Barriers to Recycle and Reuse

EPA’s line drawing efforts in the Subtitle C recycling context over the y ears have endeavored to balance two fundamental RCRA goals: protection of human health and the environment, and the promotion of recycle/reuse of secondary materials. In the context of dealing with hazardous secondary materials in the Subtitle C definiti on, EPA has accordingly often drawn lines that might discourage some forms of recycle/reuse on grounds that such a choice was necessary to protect healthPage 22 of 72 and the environment. There is at least a rational basis for this, as materials that would qualify a s hazardous wastes may warrant special precautions. Moreover, Congress repeated the mandate to protect human health and the environment incessantly in various key Subtitle C provisions. E.g

., RCRA § § 3001, 3002, 3003, 3004, 3005.

As we will demonstrate with numerous examples throughout these comments, in the RCRA

Subtitle D non

- hazardous material context, EPA’s part 241 proposal (along with the CISWI proposal) draws many lines that would impose major impediments on recycle/reuse. Yet EPA never attempts to justify these choices dealing with non

- hazardous materials on grounds of protecting human health and the environment. One key example that will be developed below: how could keeping whole tires in landfills and waste piles be better for public health and the environment than having these tires used as coal replacement in a p ortland cement kiln regulated under CAA § 112 and other CAA

standards?

We note that the RCRA policy favoring recycle/reuse is expressed in the strongest terms in

the Subtitle D context. Here are the very first words of Subtitle D (in RCRA § 4001) (emphasis added):

The objectives of this subchapter are to assist in developing and encouraging methods for the disposal of solid waste which are environmentally sound and which max imize the utilization of valuable resources including energy and materials which are recoverable from solid waste and to encourage resource conservation.

There is no doubt that EPA envisions the part 241 proposal would result in far less solid waste

bein g recycled/reused and that waste materials would be landfilled instead. The CISWI proposal is quite clear on this in many places, as is the RIA for the part 241 proposal. E.g

., 75 Fed. Reg. 31965

- 66.

So the question becomes, why does EPA’s part 241 pro posal at practically every turn draw lines that will discourage recycle/reuse of non

- hazardous material when an over

- arching Subtitle D goal is to maximize recycle/reuse of non

- hazardous materials? If EPA believes this approach is necessary to protect hea lth and the environment, EPA never asserts this, nor explains how or why. We believe the D.C. Circuit would find this, just as it found EPA’s rules in the CMA case sited above,

a “classic case of arbitra ry and capricious rulemaking .” 217 F. 3d at 865. A nd it is clear that EPA cannot remedy this def ect by developing and articulating post

- hoc rationalizations in its final rule.

“ A ‘ notice of proposed rulemaking must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully. ’ ” Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004)) ( emphasis added )

.

E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary a nd Inappropriate

EPA attempts to justify some of its positions based on several D.C. Circuit cases that have judicially reviewed various versions of EPA’s Subtitle C DSW. See 75 Fed. Reg. 31850

- 51. But \Page 23 of 72 again, those decisions have been limited to rul ings on a Subtitle C definition that EPA has consistently maintained has no application to the Subtitle D context.

For example, EPA has cited American Petroleum Institute v. EPA , 906 F.2d 729 (D.C. Cir.

1990 (“API I”) for the proposition that the Court h as disapproved the concept that a material that may have once been thrown away could nevertheless “cease to be a solid waste” if it were being beneficially reused, as it would no longer at that point be considered a “discarded material.” 75 Fed. Reg. 3185 0; 74 Fed. Reg. 51.

But EPA has overlooked a critical element of the Court’s ruling. In remanding the rule to EPA for a further explanation of its position, the Court stressed it believed it would be “unlikely” EPA could successfully maintain the positi on that a discarded material could cease to be a solid waste when recycl ed because :

To reach such a conclusion, EPA would have to reconcile this position with RCRA’s acknowledged objective to establish a cradle

- to

- grave regulatory structure for the safe

h andling of hazardous wastes.

906 F.2d at 741 ( emphasis added and internal citations a nd quotation marks omitted )

.

Thus, this Subtitle C case in no way impairs EPA’s ability to craft a Subtitle D rule that could

allow for materials once deemed to have b een discarded to cease t o be a solid waste when reused

. And no other case cited by EPA (or any that we have found) has ruled that EPA is unable to do this in

the Subtitle D context.

In fact, other D.C. Circuit cases reviewing EPA’s “solid waste” definit ion show that the Court understood the Subtitle C hazardous waste context to be quite distinct from RCRA Subtitle D. In its preamble at p age 31850 , EPA cites American Mining Congress v. EPA

, (“ AMC I ” ) 824 F.2d 1177 (D.C. Cir. 1987)

. The Court in that cas e stated: “RCRA includes two major parts: one deals with

non

- hazardous solid waste management and the other with hazardous waste management. Under the

latter , EPA is directed to promulgate regulations establishing a comprehensive management system.”

Id

. a t 1179 ( emphasis added )

. Nothing in the Court’s opinion speaks to the issue of de fining solid waste for Subtitle D purposes. The Court correctly recognized, however, that it is Subtitle C

– and

not D

– that establishes a “comprehensive management system .”

Similarly, American Mining Congress v. EPA

, (“ AMC II ” ), which EPA cites on page 31850 of its preamble

, was limited to an examination of issues under RCRA Subtitle C, which the Court noted “requires EPA to create a comprehensive regulatory scheme for the treatment, storage, and disposal

of hazardous wastes.” 907 F.2d 1179 , 1182 (D.C. Cir. 1990) ( emphasis added )

.

EPA also cites American Petroleum Institute v. EPA

, (“ API II ”) 216 F.3d 50 (D.C. Cir. 2000) on page 318 51 of its preamble. But again, the Court’s opinion could not be clearer that it was limiting its ruling to Subtitle C issues, and not considering how solid waste might be defined in the “less stringent” Subtitle D regime:Page 24 of 72 RCRA is a comprehensive environmental statute granting EPA authori ty to regulate solid and hazardous wastes. “Solid wastes” are governed by Subtitle D of RCRA, and are generally subject to less stringent management standards than “hazardous wastes” which are regulated under Subtitle C.

...

In pursuit of its congressional ly conferred duty and authority to regulate solid waste under RCRA, the EPA has adopted regulations defining solid waste for purposes of its hazardous waste regulations

.

Id . at 54 (emphasis added).

Thus none of these cases purport to circumscribe

, or in any manner limit, EPA’s authority to

define solid waste either for purposes of RCRA Subtitle D in general or for purposes of triggering

CAA § 129 in particular. EPA remains free to craft its definition in the instant rulemaking to

effectuate the purposes of RCRA Subtitle D

– the primary purpose of which is to “maximize” the use

of non

- hazardous secondary materials. RCRA § 4001.

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT FUNDAMENTAL

FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL

A. The Portland Cement Ind ustry’s History of Beneficially Using Whole Scrap

Tires

The most dramatic adverse impact on the p ortland cement industry from EPA’s proposed part 241 rule (as it would work together with the proposed CISWI rule) is in regard to the pr oposed rule’s

approa ch to used tires. EPA already has extensive documentation in the record on the following basic points, and we will further elaborate on some of them below:

a

. S crap tires that have been buried in landfills or stacked in piles throughout the U.S.

present a major environmental problem

– not because of any inherent hazard of the

tires t hemselves, but because they take up precious landfill space that is in short supply and p resent risks of fires, draw rodents and pests, mosquitoes, etc.;

b

. O ver the last two decades, portland cement kilns have been able to provide a great source of relief for states and communities seeking environmentally responsible outlets for the removal of these tires from landfills and piles;

c

. W hole tires serve as a useful substitute for virgin fuel at cement kilns, and the metal in

these tires serves as a useful substitu te for virgin raw materials . As EPA states in its proposed rule preamble:Page 25 of 72 We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because t heir process does not require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since they use the metal as an ingredient).

75 Fed. Reg. 31877, n. 62.

d. T here is no increase in air pollutant emissi ons from p ortland cement kilns burning

these non

- hazardous materials. I n fact

, data in EPA’s record shows that if anything, there is improvement in the emission performance on key pollutants of concern.

Prior to approximately 1990, s crap t i res were simp ly landfilled, like most other waste

m aterials. They were not perceived as a disposal problem nor available in a quantity attractive to cement plants

. Two factors chan g ed that situation. The f irst fact or was diminishing la n dfill capacity.

With fewer la ndfills available, scrap tires, which do not decompose or compact easily, had been phased out as an acceptable material. In certain cases this was a decision by the landfill operator, in other cases, a decision due to changes in state regulations.

Sec ondly, scrap ti res were no longer considered as part of the municipal solid waste stream,

and therefore not collected or d isposed of by municipalities

. This, in tu rn , caused the g enerators of

scrap t i res to use the se rv ices of scrap t i re collectors and tr ansporters

. These entrepreneurs typically

f

ound inexpensive ways to dispose of their cargo; usually by stock piling the tires in a remote
location. Until 1985, this form of disposal was the accepted practice. It is these large stockpiles that subsequent ly became public nuisances due to fires and other issues. Thus other markets and opportunities for use of scrap tires were explored, including the use of tires in cement kilns as fuel.

These old landfills and piles are menaces (as they are attractive nu isances drawing rats, breeding mosquitoes, creating hazardous smoke from uncontrolled fires, etc) and there has been great support by local

, county and state governments for kilns to take these tires and use them as fuel. 3
Approximately 87 percent of the old tire piles have been cleaned up since 1990. 4 But major environmental messes linger, and p ortland cement kilns are practically the only place where they can

be reused as whole tires. While uncontrolled tire fires with thick black smoke have caused poo r public perception of tire combustion , continued use of whole tires by p ortland cement kilns as fuel will materially help prevent the occurrence of these uncontrolled fires.

In 1990, 6 million tires (of 223 million scrap tires generated that year ) were used as fuel in cement plants. By 1992, 14 cement plants were using tire

- derived fuel (TDF) with another 24

3 Report of Pennsylvania Joint State Government Commission, Waste Tire Recycling and Reuse in Pennsylvania,
October, 2007. Included as Attachment J.

4 Scrap Tire Markets In The United States, 9th Biennial Report, May 2009, Rubber Manufacturers Association. Included

as Attachment L.Page 26 of 72 planning, permi tt ing , or waiting to use scrap tires. 5 A PCA report shows data starting in 1998, when 35 plants (of those reporting) were alre ady using tire as fuels (53 of 93 reporting plants were using alternative fuel). 6 By 2009, 40 of 90 plants reporting were using tire as fuels representing a total of

over 35 5 ,000 tons of tires annually

. 7

B. The Proposal Will Strongly Discourage Portland Ce ment Kiln Utilization Of Used Tires With No Resulting Benefits to Health and the Environment

The data available indicate s that emissions from TDF

- firing kilns ha ve lower emissions of nitrogen oxides, sulfur dioxide, and most metals. 8 EPA recognizes that the use of TDF in cement

kilns results in emissions that are often less and generally within the same range as emissions from

the use of fossil fuels

. 9 Also, data that show decreases of sulfur dioxide ( SO 2 ) emissions by 20 to 50

percent or more has been found. 10 Of course actual emission results can vary on a site

- specific basis,

The use of TDF can actually result in lower nitrogen oxide ( NO

x ) emissions. NO

x can be reduced by over 30 percent depending on the kiln type, age, fuel combustion location, an d the plant’s ability to optimize the manufacturing process. An EPA

- sponsored study on NO

x reductions reported that TDF added to the raw material feed end of some preheater or precalciner kilns can reduce NO

x emissions over 30 percent , and EPA also found that when mid

- kiln injection of whole scrap tires was used, there was an average NO

x reduction of 33 percent and 40 percent for selected long dry and wet kilns, respectively. 11 EPA has also agreed that the use of TDF r esults in lower NO

x emissions when

com pared to many U.S. coals, particularly the high

- sulfur coals. 12 In fact, in some instances, the use of TDF has been incorporated into cement plants’ air permits or within state or local regulations as a

listed control mechanism for NO

x . 13 EPA’s own emissio n

- reduction strategies model incorporates

TDF as a method for NOx reduction. 14

5 The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal

, World Cement

, December 1992

. Included as

Attachment M.

6 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association , ER395, Table 44. Included as

Attachment N.

7 US & Canadian lab or

- Energy Input Survey, 2010, Portland Cement Association . Included as Attachment O

. 8 Air Emissions Data Summary for Portland Cement Pyroprocessing Operations Firing Tire

- Derived Fuels, J ohn Richards; David Goshaw; Danny Speer, and Tom Holder, PCA, 2008. Included as Attachment P

9 Tire

- Derived Fuel Frequent Questions, http://www.epa.gov/wastes/conserve/materials/tires/faq.htm . Included as Attachment Q

10 Health Consultation

- CEMEX, I ncorporated , Lyons, Boulder County, Colorado, Agency for Toxic Substances and Disease Registry, Table 2, Page A

- 3. Included as Attachment R; Air Emissions From Scrap Tire Combustion , EPA

600/R

- 97

- 115, October 1997. Included as Attachment S

. 11 NOx Control T echnologies for the Cement Industry , U.S. EPA, Office of Air Quality Planning and Standards, Ozone Policy and Standards Group, September 19, 2000. Included as Attachment T.

12 Management of Scrap Tires, EPA website, http://www.epa.gov/wastes/conserve/materials/tires

. Included as

Attachment U.

13 Mojave Desert Air Quality Management District, Rule 1161(C)(1)(a)(iv), Portland Cement Kilns. Included as

Attachment V; Proposed Rulemaking, 25 PA. Cod e Chs. 121, 129 and 145, Control of NO

x Emissions from Cement

Kilns , 38 Pa.B. 1838, April 19, 2008. Included as Attachment W; South Coast Air Quality Management District, Best Available Retrofit Control Technology Assessment, TXI Riverside Cement, Revised Draft, August 8, 2008. Included asPage 27 of 72 In addition, EPA has found that hazardous air pollutants( HAP ) emissions are not impacted by alternative fuels, including tires. In its proposed Subpart LLL rule preamble of Ma y 6, 2009 , EPA

states: “ EPA notes, however, that the combustion of secondary materials as alternative fuels did not have any appreciable effect on the amount of HAP emitted by any source. ” 15

Replacement of TDF with coal also may influence cement kiln emi ssions and costs for control of mercury. The average bituminous coal used for fuel exhibits higher levels of mercury than TDF,

as shown below. 16 Thus, increases of mercury emissions may occur with the loss of the use of TDF

as fuel.

Fuel Hg ppm by Weight

Coal 0.1

TDF

-

The preamble to this rule also notes the possible negative impacts due to the loss of the use of TDF.

EPA has mentioned both the greenhouse gas ( GHG ) and additional particulate matter ( PM ) impacts in the preamble. 17

A direct impact fr om the loss of TDF in cement kilns would be the change in GHG emissions from cement kilns. As noted above, the net increase in GHG emissions would be 0.013 MTCO 2 E per MMBtu. Based upon an estimated 20,328,000 MMBtu value for lost TDF, 18

, 19 the resulting in crease in GHG emissions from cement kilns would be 264,424 MTCO 2 E. In addition to the direct change in GHG emissions from the cement kilns, additional GHGs will be generated because of the extraction and processing emissions from the coal that replaces th e TDF. Using the same heat amount and

EPA’s value of 0.006 MTCO 2 E per MMBtu, the increase in GHG from the supply of coal would be 121,968 MTCO 2 E.

T he change to coal from TDF would also result in additional PM emissions. Based upon the total annual repl aced heat value and 0.246 lbs/MMBtu of PM from extraction and processing of coal, an increase in PM emissions would amount to 2,500 tons per year.

Attachment X.; South Coast Air Quality Management District, F inal Environmental Assessment: Proposed Amended

Rule 1112.1

– Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI

, Nov ember 13, 2009. Included as Attachment Y.

14 Industrial Sector Integrated Solutions Model , EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA

- HQ

OAR

- 2002

- 0051

- 2007.pdf

. Included as Attachment Z.

15 74 Fed. Reg. 21138.

16 Materials Characterization P aper In Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary

Materials That Are Solid Waste

– Scrap Tires, April 6, 2010. Included as Attachment AA.

17 75 Fed. Reg. 31849.

18 Materials Characterization Paper in Support of the Propos ed Rulemaking: Identification of Nonhazardous Secondary

Materials That Are Solid Waste

– Scrap Tires, EPA, April 6, 2010. Included as Attachment AA

. 19 In 2007, 48.4 million tires were used as fuel for cement kilns. This represents 20,328,000 MMBtu/year of fuel, assuming each tire weighs 30 lbs and has 14,000 Btu/lb heat value.Page 28 of 72 U nder the structure of EPA’s part 241 proposal, p ortland cement kilns would not be allowed

to continue this highly environmentally beneficial practice of burning whole tires from landfills and waste piles unless they were willing to subject themselves to being regulated and permitted as an incinerator under the CISWI regime. This is despite the fact that t he record is replete with demonstrations and showings that sources will for good reason choose not to enter the CISWI regime, and EPA’s CISWI proposal explicitly and affirmatively projects that sources will choose not to do so.

The only “way out” of this dilemma for p ortland cement kilns under the part 241 proposal

would be for p ortland cement kilns to burn TDF that has gone through the “processing” steps of chipping/shredding and metal removal. For kilns to use such processed TDF, however, the costs

wou ld escalate greatly and there would be additional air pollution and other adverse environmental impacts associated with the “processing.” We should note here that the “non

- waste determination” petition process

– in addition to all its other infirmities as explained later in these comments

– does not provide a “way out” under EPA’s proposal. This is because EPA makes quite clear in its proposed preamble that in its view, tires from landfills or waste piles could never qualify for relief under this petitio n process. See 75 Fed. Reg. 31879.

In effect, EPA’s proposal would strongly discourage p ortland cement kilns from continuing the highly beneficial practice of using whole tires from landfills and waste piles. This presents not only the most notable adv erse impact on the p ortland cement industry, but also the most dramatic example of how EPA’s proposal is wholly unsupportable under “arbitrary/capricious” and “reasoned decisionmaking” standards.

C. EPA’s Interpretations of “Discard” and “Processing” Are Mis guided and

Harmful

EPA bases its regulatory construct on certain legal theories involving the words “d iscard” and “processing.” We will show below that EPA’s interpretations of “discard” and “processing” for purposes of this Subtitle D RCRA proposal are wholly unnecessary and counte rproductive

.

1. Discard

EPA says that RCRA’s definition of solid waste cen ters on the concept of “discard. ” 75 Fed. Reg. at 31850. But then EPA asserts in its preamble that any material that is discarded by anybody

must be c onsidered forever discarded (and therefore remain a solid waste) no matter what value or use it may have to another person who may retrieve the material. We find this logic al leap to defy common sense, and not in any manner compelled by the statutory lang uage or judicial precedent. As this interpretation produces results that impede reuse and recycling of non

- hazardous materials with

no benefit to health and the environm ent, we believe it is arbitrary and capricious and a failure of

reasoned decisionmakin g.Page 29 of 72 a. Plain Meaning

I f Party A abandons or dumps a material that Party A no longer wants or no longer has any use for, it may logically be concluded that Party A has “discarded” that material . A s long as that

material remains where it was abandoned o r dump ed, it logically can continue to be considered

“discarded” material. But it is illogical and nonsensical to hold that a material must be considered

forever “discarded” if Party B comes upon the material, removes it from its “discarded” venue, and

ta kes it with him or her for a bona fide use.

Suppose a woman walks by a town dump and spies a chest

- of

- drawers that someone has thrown away (i.e., abandoned, discarded). The piece of furniture is old, but it is perfectly usable for a

room in her house

. S he takes the chest of drawers and places it in a g uest bedroom , and it now sits

there full of clothes . T o say the chest sitting in that room is now a “discar ded” material simply defies the plain meaning of the word.

b. Case Law

As explained in Section V(E) above, EPA cites one D.C. Circuit case (“ API I ”) as having rejected a previous EPA interpretation that a material once discarded need no longer be considered a solid waste when recycled. But as we show in the discussion above, that decision did not r eject EPA’s rule, but rather remanded it to EPA for further explanation. And while the Court stated that it believed it “unlikely” EPA could sustain its original position on remand, the Court explained:

To reach such a conclusion, EPA would have to recon cile this position with RCRA’s acknowledged objective to establish a cradle

- to

- grave regulatory structure for the safe handling of hazardous wastes.

906 F.2d at 741 ( emphasis added and internal citations and quotation marks omitted )

.

Thus, the case EPA relies upon is clearly a RCRA Subtitle C case and its logic and rationale is expressly limited to Subtitle C, as the lines to be drawn between solid waste and exempt material

involve hazardous material in a cradle

- to

- grave regulatory regime. In this part 241 rulemaking, EPA is defining solid waste for non

- hazardous materials in the Subtitle D setting where there is no cradle

to

- grave regime. EPA cites no case law, and we are aware of none, in which a court has ruled that a

discarded non

- hazardous material must forever be deemed discarded no matter what beneficial use it may subsequently be put to.

c. RCRA Provisions

N othing in the RCRA definition of solid waste ( § 1004(27)) or any other provision of RCRA suggests that a material that is once discarded m ust be deemed discarded forever and thereforePage 30 of 72 forever re main a “solid waste.” In fact, language in RCRA strongly supports the opposite conclusion:

(c) Materials. The Congress finds with respect to materials, that

—

(1) millions of tons of recoverable ma terial which could be used are needlessly buried each year;

(2) methods are available to separate usable materials from solid waste ; and

(3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resourc es and reduce the deficit in its balance of payments

.

RCRA § 1002(c) (emphasis added).

This statutory provision directly contradi cts the premise that a once

- discarded material must
forever be deemed a solid waste , for it states that material that has be en buried (hence initially discarded) can , if usable, be considered “ separate ” from solid waste.

2. Processed

Even if EPA felt compelled to deem tires in waste piles and land fills incapable of being exempt from the part 241 definition of solid waste witho ut some form of “processing” (which it should not, as explained immediately above), the proposed rule ’s approach on the requisite degree of “proc essing” for waste tires is who lly inappropriate and illogical, at least as applied to p ortland

cement kilns.

EPA begins its analysis by explaining:

T he Agency believes that sufficient processing of the secondary material (e.g., changing the mass, chemical make

- up, or removing particular components from the secondary material) must be undertaken to transform a waste

- derived fuel or waste

derived ingredient into a fuel or ingredient product.

75 Fed. Reg. 31861.

EPA never explains why it believes this, however, in the context of a material that does not

need processing

– or perhaps needs only minimal processi ng 20

20 We note that whole tires that have long been buried or stacked in aging piles may need minimal processing for use in
cement kilns, such as removal of excess water and dirt, mud, and debris. Whole tires from newer stacks or piles often need no physical processing whatever. – to serve as a wholly bona fide fuel.

EPA t hen says that used tires cannot be considered sufficiently “processed” unless they are physically shredded and undergo metals removal processing. See 75 Fed. Reg. 31877.Page 31 of 72 EPA never explains why it thinks this much processing is necessary for tires to escape the

“discard” rubric and serve as bona fide fuels in p ortland cement kilns. But all logic goes against EPA

on this point . In two different passages in the same Federal Register page, EPA states ( a ) u sed tires must go through “various processing steps to meet certain specifications that are necessary for a particular end use,” including TDF, and ( b ) p ortland cement kilns use whole tires as fuels “because their process does not require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since they use the metal as an ingredient).” 75 Fed. Reg. 31877, & n. 62.

The logic to be divined from this is:

a. a once

- discarded secondary material must be proce ssed to a sufficient degree to meet the specifications to serve a particular bona fide end use;

b

. the specifications for tires used by p ortland cement kilns in a bona fide end use do not include shredding or metal removal; and

c

. tires used by p ortland cement kilns will not be considered sufficiently processed unless they are processed by shredding and metal removal.

We submit this simply makes no sense. The result of this faulty logic is that beneficial reu se of significant amounts of non

- hazardous m aterial will be greatly discouraged, and there will be no health or environmental benefits (only detriments). We believe it is obvious that EPA’s proposal represents a “classic case or arbitrary and capricious rulemaking .” CMA

, supra Section V(A) , 217

F. 3d at 865.

EPA points to its approach to “scrap metal” under Subtitle C on page 31876 of the preamble.

In the Subtitle C hazardous waste context, EPA’s regulations provide that scrap metal that would

otherwise be a RCRA hazardous waste will be deemed s ufficiently “processed” to escape the definition of solid waste under extremely minimal conditions. As EPA states in its preamble, under

40 C.F.R .§ § 261.1 and 261.4, such minimal steps as baling or sorting are all that are necessary. This

material that w ould otherwise be a hazardous waste may then be sent into high

- temperature
environments such as electric arc furnaces at steel mill s and aluminum smelters entirely free of

RCRA controls.

EPA’ s only explanation for the discrepancy in the way it treats scr ap metal going to thermal processing under the Subtitle C hazardous waste regime so much more leniently than its proposed approach for non

- hazardous scrap tires going to p ortland cement kilns is:

We believe this is a good example of where the level of pro cessing necessary to

convert a waste material to a non

- waste material is dependent on the material itself.

75 Fed. Reg. 31876.Page 32 of 72 We submit that this entire train of logic simply cannot be sustained as reason ed decision making. EPA is discouraging reuse a nd recycle practices of non

- hazardous materials in p ortland

cement kilns in a manner that it has not attempted to justify (nor could it) on grounds of health and environmental protection. To make matters worse, the stringency of the discouragement for the non

hazardous reuse practices is much more pronounced when compared to EPA’s approach to a Subtitle

C hazardous material

.

A point we explained in Section I(C) above bears repeating in conclusion. If EPA excludes

whole tires burned in p ortland cement ki lns from its part 241 definition of solid waste, all it will be saying is that such tires are not solid wastes when combusted for purposes of determining whether the

p ortland cement kiln combusting such material will be subject to CAA § 129. The rule as t hus

constructed

, would have absolutely no impact on the States’ ability to define waste tires as solid wastes for any purpose, including disposal, generation, transport, taxation, or any other management requirement mode.

D. EPA’s Importation of “Legitimac y Criteria” from RCRA Subtitle C i s Unwarrantedand Unproductive, Particularly a s Applied to Portland Cement

Kilns

.

Once a non

- hazardous material is run through the tests involving “discard” and “processing,”

EPA’s proposal still requires that fuels meet three “le gitimacy criteria” and that ingredients meet four

such crite ria . EPA introduces the concept of legitimacy criteria in its part 241 proposal with an extended discussion of why and how such criteria are necessary in the Subtitle C context in assuri ng proper management of hazardous materials. As EPA explains, the point is to “guard against hazardous secondary materials being discarded in the guise of recycling.” 75 Fed. Reg. 31851.

After EPA explains why legitimacy criteria are so important in th e hazardous materials context, EPA summarily concludes that it “believes” the concept is “important” in the non

- hazardous

material context as well. 75 Fed. Reg. 31851. The only ground EPA offers in support of this “belief” is that legitimacy criteria wil l help determine whether a “non

- hazardous secondary material being recycled is truly being recycled or is, in fact, being discarded through sham recycling.” 75 Fed. Reg.

31852. EPA appears again to adopt the ill

- founded and wholly unjustified approach th at whatever restrictions are appropriate for hazardous waste s under Subtitle C are appropriate for non

- hazardous

waste issues under Subtitle D.

We have already explained why EPA does not have jurisdiction to regulate materials used as ingredients unde r CAA § 129. (See Section III above)

. But to the extent EPA might nevertheless erroneously include the ingredient provisions in its fina l rule, we must strongly object to the inclusion of the legitimacy criteria for ingredients

. EPA has not even imposed legitimacy criteria for ingredients in its Subtitle C definition of solid waste rule. See Section V(C) above. Once again, EPA would be placing burdens on reuse and recycle of non

- hazardous materials that cannot be justified (and which EPA has not attemp ted to justify) on grounds of health and environmental protection.Page 33 of 72 Much the same can be said for EPA’s legitimacy criteria approach for fuels as applied to

p ortland cement kilns. T he p ortland cement industry simply cannot afford to jeopardize its pr oduc t by using alternate fuels that affect cement quality. As EPA recognizes in its preamble, the controversy over “sham recycling” relating to fuels arose in the hazardous waste context years ago.

See 75 Fed. Reg. 31871. EPA justifiably had a concern (refl ected in the earlier Subtitle C rulemaking and policy documents it cites) that unscrupulous parties seeking to avoid the expensive

Subtitle C cradle

- to

- grav e regime had incentives to claim that the hazardous waste they were burning

was a bona fide fuel. A t that stage in the RCRA Subtitle C develop ment (mid 1980s), burning of hazardous materials for bona fide energy recovery purposes was exempt. This concern simply does not apply to the situation in which non

- hazardous materials are being burned in fully r egulated

industrial furnaces such as p ortland cement kilns.

Ironically, EPA has long recognized that products from p ortland cement kilns burning
hazardous waste fuel (HWF) are not adversely affected in any manner. In 1995, after reviewing

exhaustive dat a presented in a petition filed under the Toxic Substances Control Act (TSCA) , EPA rejected the petitioners’ request that products from HWF kilns carry warning labels because EPA found there was no difference in contaminant levels (or risks) in the product . 60 Fed. Reg. 39169 et

seq.
, August 1, 1995. As recently as 2007, EPA’s Assistant Administrator for Solid Waste and Emergency Response (OSWER) stated in a letter to the Center for Maximum Potential Building Systems that “there is no difference in the ce ment from kilns burning hazardous waste compared to cement produced by kilns not burning hazardous waste.” See “Letter from OSWER Assistant Administrator”, included as Attachment G

.

Moreover, NSF International has reviewed data from several p ortland ce ment kilns burning HWF to assess whether product from such kilns could be safely used in concrete water pipes and water storage tanks. These studies have uniformly concluded that there is no statistical difference in contaminants between clinker or produc t made from kilns burning HWF as compared to kilns using only fossil fuels. 21

Aside from our general opposition to the proposed legitimacy criteria for non

- hazardous materials, w e take particular exception to the third criterion for fuels and the similar fourth criterion for ingredients as applied to p ortland cement kilns :

(iii) [ Fuels ] The non

- hazardous secondary material must contain contaminants at levels comparable or lower to those in traditional fuels which the combustion unit is designed to burn. Such comparison is to be based on a direct comparison of the

contaminant levels in the non

- hazardous secondary material to the traditional fuel

itself.

. . .

21 E.g ., “A Comparison of Metal and Organic Concentrations in Cement and Clinker Made with Fossil Fuels to Cement and Clinker Made with Waste Derived Fuels,” NSF International (1993). Included as Attachment BB

.Page 34 of 72 (iv) [ Ingredients ] The non

- hazardous secondary material used as an ingredient must result in p roducts that contain contaminants at levels that are comparable or lower in concentration to those found in traditional products that are manufactured without the

non

- hazardous secondary material.

Prop osed § § 241.3(d)(1)(3), 241.3(d)(2)(4).

As emphasi zed throughout these comments, a p ortland cement kiln (unlike a boiler or an incinerator) is an industrial furnace that manufactures a product to quality specifications. Portland cement manufacturers simply cannot afford to use fuels or ingredients that w ill interfere with that product quality, and w hen dealing with non

- hazardous secondary materials, it simply seems pointless to attempt to monitor (assuming one accurately and meaningfully could do so ) parameters such as contaminant levels in fuels, ingredi ents, and products when the variability of such levels could be just as great when dealing with different traditional fuels and ingredients.

As noted above, EPA has long maintained that p ortland cement quality is not adversely

affected in terms of contam inant levels when hazardous waste is being burned. T here can be no justification for imposing such criteria, therefore, when non

- hazardous secondary materials are at

issue. Most ironically, nothing in EPA’s regulations subjects product from p ortland ceme nt kilns burning hazardous waste to any legitimacy criteria (no r should they be , based upon all the data and findings that have accumulated over the years). It would in our view be supremely arbitrary and capricious, therefore, for EPA’s regulations to su bject product from p ortland cement kilns using non

hazardous secondary materials to legitimacy criteria.

In addition, a s we will be elaborating upon in our comments on the CISWI proposal, there are major complex implementation issues regarding p ortland c ement kilns’ coverage under the CAA § 112 MACT rules and the upcoming CAA § 129 CISWI rules. One such issue is how, when, and why a kiln may move from one regime to another, either voluntarily or involuntarily. If a regime is established by which a kiln could remain under CAA § 112 only if its secondary material fuel met certain contaminant level requirements, but the kiln could be challenged in the future on the ground that its fuel no longer met those requirements so that a State agency or EPA could sud denly declare that the kiln was covered by CAA § 129, the kiln would have every incentive to avoid burning the alternative fuel in the first place.

Finally , imposition of such sub jective criteria would inevitably invite disputes between and among regulat ed parties, regulators, and potentially citizens groups and greatly increase the burdens and transaction costs of attempting to operate under the system. It would thereby be an additional disincentive for parties to engage in the practice of beneficial re use and recycling of non

- hazardous secondary materials. Moreover, EPA has not articulated any reason for creating these obligations.

E. Used Tires Should Be Recognized as “Traditional Fuels”

Under EPA’s proposal as currently structured, materials classi fied as “traditional fuels” would

not be deemed solid waste. Although EPA describes coal and petroleum coke as traditional, based on the extensive use developed over the last 20

- 30 years in the industry, many of the alternative fuelsPage 35 of 72 such as TDF can also be consider ed traditional. As explained earlier , the industry goals since 199 1 have emphasized use of alternate fuels and raw materials based on the industry increasing their reliance on this type of material since the 1980s. The practice is so predomina nt that the data used to

es tablish MACT standards under CAA § 112 for p ortland cement kilns contained significant information on kilns that were already using alternative fuels and raw mat erials as a standard practice.

Thus, use of TDF is a long

- standing and customary practice now characteristic of cement manufacturing fuel options. The number of cement plants utilizing TDF as a supplemental fuel has risen dramatically over the last 19 years. In 2009

, the cement industry consumed 355,000 tons of

tires f or energy recovery which is a significant portion of the tires used for such purposes

. Furthermore, as of 2006, state and local environmental agencies have approved the use of TDF in 21

states. We believe these facts justify consideration for TDF as a tr aditional fuel for the cement industry as well as for other sectors.

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND ARBITRARY

Throughout these comments PCA has endeavored to demonstrate that, if EPA elects to go forward with the proposed part 241 RCRA rule as it has been proposed, p ortland cement kilns will, of necessity, be forced to stop using non

- haz ardous secondary materials because the compliance costs which they would have to incur under CAA § 129 and EPA’s pending (and future) regulation s implementing § 129.

For example, although it may not be what EPA intends, PCA’s members have advised us that the materials processing requirements which EPA would mandate under this rule, for purely arbitrary

and not demonstrated environmental or sc ientific reasons, will, at the very least, cause them to stop using whole tires as an alternative fuel. As we discuss below, EPA has failed to conduct any meaningful analysis of this impact of the proposed rule on the operating costs of cement

manufacture rs and other members of the regulated community, or the environmental impacts that EPA will cause by needlessly forcing industry to abandon the use, in whole or in part, of secondary materials as fuels and ingredients and burn more coal and other fossil, a nd mine more virgin materials for fuels and ingredients. As we discuss below, EPA has instead avoided, or attempted to downplay, the significance of the costs that, of necessity, the proposed rule would require be incurred by the regulated community in or der to prevent the secondary materials we use legitimately as a fuel (or an ingredient, if the final rule does not exclude ingredients), from being designated by EPA as a “solid waste” and thereby causing the unit in which that fuel (or ingredient) is used from becoming subject to § 129.

The NPRM asserts that the action proposed in this rulemaking “does not directly invoke any costs or benefits” and, therefore, that there was no need for EPA to have “prepared a separate economic assessment in support o f this proposal.” 75 Fed. Reg. 31889 (emphasis added). Several paragraphs later, however, the NPRM also states that compliance with the proposed rule will impose

“costs and benefits indirectly associated with this action.” Id. (emphasis added). As we d iscuss below, PCA has a number of concerns with EPA’s assessment of the costs that this rulemaking willPage 36 of 72 impose on the regulated community, including the distinction EPA has sought to draw between “direct” and “indirect” costs. Aside from being a purely ar bitrary distinction, as we explain below, it is factually incorrect.

While PCA acknowledges that EPA did review costs “indirectly associated with this action,” 75 Fed. Reg. 31899, as part of its review of the “corresponding impacts assessed in the regul atory impact analyses prepared in support of the CAA proposed rules,” id., referring to the Boiler M AC T and CISWI rules, 22 we have significant concerns with both the substance of the analysis as well as its thoroughness in identifying the costs likely to be incurred. 23

The source for the preamble’s claim, that there are no direct costs, appears to be EPA’s cost
review document which is contained in the rulemaking docket and identified as EPA

- HQ

- RCRA

2008

- 0329

- 0528 . This cost review document states in rele vant part :

The proposed NHSM, on its own, will not result in any of the costs, benefits, or other impacts described in this section. 24 As explained above, the proposed NHSM rule specifies criteria under which non

- hazardous secondary materials

are consider ed solid wastes. Although the rule will determine which Section of the CAA under which a given combustion unit is regulated, the rule does

not include emission standards and does not require changes in the management or use of secondary materials . Only w ith the promulgation of the air rules would society realize the costs and benefits and other impacts

estimated with the methods described in this section. EPA therefore attributes these impacts entirely to the air rules.

22 The NPRM did not provide the identification number of the specific costing document to which the NPRM was referring. However, PCA assumes that the specific document being referred to by the NPRM was EPA

- HQ

- RCRA

2008

- 0329

- 0528. For the remainder of our comments in this section, therefore, when we refer to EPA’s “cost review” or “cost assessment,” we are referring to document EPA

- HQ

- RCRA

- 2008

- 0329

- 0528.

23 The NPRM’s description of the specific factors EPA actually assessed is both vague and, PCA submits, misleading (“These independent regulatory analyses measure, among other factors, the estimated net change in social welfare associated with these actions,” 75 Fed. Reg. at 31899) . Regardless of why the spe cific wording may have been chosen, the wording used nonetheless provides support for our concerns regarding the incorrectness of EPA’s belief that this rulemaking imposes no direct costs, as well as supports our contention that EPA’s cost analysis is inad equa te and incomplete . As written by EPA, the NPRM ’s costs and benefits discussion at 75 Fed. Reg. 31889, infers that this rulemaking will

, at worst, impose only a small number of minimal costs on the regulated community

, independent of what

other costs w ould be incurred if, because of how EPA defines secondary material in this rulemaking, a unit becomes subject to § 129. Additionally, in light of the preamble’s discussion, and seeming downplay, of costs, a concern also arises over whether, by virtue of t he preamble, a court would conclude that the regulated community has not been given the full opportunity to comment on the EPA’s assessment of costs. See, e.g., Owner

- Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007).

24 The “section” the authors were referring to in this sentence is Section 3 of EPA’s cost review document. Section 3 is entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document (EPA

- HQ

RCR A

- 2008

- 0329

- 0528) and consists of five subparts: 3.1 (“Engineering Cost Methodology”); 3.2 (“Social Cost Methodology”); 3.3 (“Job Effects”); 3.4 (“Costs of Petition Process for Non

- Waste Determination”); and, 3.5 (“Benefits Methodology”).Page 37 of 72 EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 18 (emphasis added). 25 Other than making the assertion that the proposed rule “does not require changes in the management or use of secondary materials ,” neither the preamble’s discussion of the costs and benefits of the proposed rule, 75 Fed. Reg. 31889,

nor its source document, EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 , provide any explanation or other evidence to support the claim. Thus, EPA appears to be asking the public to accept its claim on good faith.

However, EPA’s claim has no merit. As we discuss below, the re are a host of costs which the regulated community will have to incur if the rule, as proposed, is adopted, including costs due to changes in the management or use of secondary materials which the proposed rule would, on an individualized basis, necessit ate.

Although neither the preamble nor cost review states so expressly, it appears that the rationale

for EPA’s claim

– that there would be no changes in the management or use of secondary materials

– is that the intent of this rulemaking is solely to de fine, or identify, what non

- hazardous secondary materials are solid wastes for purposes of CAA § 129. In other words, excluding the proposed petition process (which we will address in a moment), EPA appears to believe, and therefore to have only focused o n what actions the regulated community will be required to do, and their costs, only if and after a secondary materials is deemed to be a solid waste for purposes of CAA § 129. For unexplained reasons, EPA has erroneously concluded, and therefore ignored, that the proposed rule clearly contemplates a range of activities, in addition to the proposed petition process, which the regulated community will, on an individualized basis, have to engage to preclude a secondary material from being designated a solid waste and thereby avoid the triggering of § 129. 26 For purposes of our comments, PCA will refer to the cost of the petition process and such other activities as “pre

- designation costs.”

The fact that EPA recognized, and therefore attempted to quantify th e petition process costs, in its cost review document while at the same time contending in the preamble that the regulated community will not incur any pre

- designation costs, is not only a contradiction but also a clearly erroneous and arbitrary assertion; especially when EPA has failed to provide any factual support or reasoned explanation to back up its claim. However, before we discuss pre

- designation costs that EPA has failed to consider, we first want to discuss the inadequacy of EPA’s analysis of the costs of the petition process.

As a preliminary matter concerning the petition process, PCA takes note of the fact that, in

cost review ’s analysis o f the petition process, EPA refers to the petition process as “voluntary” but

25 The “Section” b eing referred to in the above

- quoted statement is Section 3 of EPA’s cost review document. Section 3 is entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document and consists of five subparts: 3.1 (“Engineering Cost Metho dology”); 3.2 (“Social Cost Methodology”); 3.3 (“Job Effects”); 3.4 (“Costs of Petition Process for Non

- Waste Determination”); and, 3.5 (“Benefits Methodology”).

26 PCA takes note of the fact that, in its cost review of the petition process, EPA refers to the petition process as “voluntary,” while also acknowledging that EPA “requires [petitioners engaging in the process] to provide information describing how the secondary materials satisfy the legitimacy criteria described above, along with analysis of cer tain market, human and environmental health, and other factors.” EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 21.Page 38 of 72 goes on to immediately ackn owledg e that the proposed petition process “ requires [petitioners engaging in the process] to provide information describing how the secondary materials satisfy the legitimacy criteria described above, along with analysis of certain market, human and envir onmental health, and other factors.” EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 21 (emphasis added). PCA infers that EPA agrees that the costs incurred to comply with the petition process and other pre

- designation activities are costs which should be considered and, therefore, that EPA’s use of the term “voluntary” was intended to be purely descriptive. As neither the preamble, nor the cost review, make any further mention of the term “voluntary,” PCA assumes that EPA is not claiming that,

because such activities are engaged in “voluntarily,” there is no need for EPA to conduct a thorough cost analysis of all such pre

- designation activities. If, on the other hand, EPA is asserting (or will assert) this is its rationale for not conducting a thorough analysis, EPA need s to state this and give the public an opportunity to respond. PCA certainly does not believe EPA can rely upon such reasoning, and EPA’s analysis of the costs of the petition process would support our view.

Turning, then, to EPA’s review of the cost of the petition process. As we previously stated, PCA contends that EPA’s analysis is inadequate and incomplete. In fact, the cost review effectively agrees with PCA’s assessment, by pointing out the following deficiencies:

The costs associated with this pe tition option are uncertain, both nationally and at the level of the facility. Nationally, the costs of the petition process will depend largely on the number of facilities that submit petitions. Due to the uncertainty surrounding the number of petitions likely to be submitted to EPA under this rule, we do not include the total costs of the petition process in the primary cost estimates presented in this document.

The costs of the petition process are also uncertain at the facility level, but EPA already has in place certain petition processes whereby parties may request exclusions similar to the non

- waste determinations established in the proposed rule.

EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 2 2. 27

While EPA’s foregoing statement evidences the inadequacy of EPA’ s cost assessment, it also falls short in recognizing the extent of the inadequacy and incompleteness of EPA cost assessment. For example, while EPA’s cost review uses the 40 C.F.R. 260.22 delisting petition and a subpart of the petition for variance from classification as a solid waste as analogues to estimate the costs of the petition process being proposed in this rule, EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 2 2, the cost review provides no details of analytical methodology and thus “failed to provide an opportun ity for comment on the methodology .” Owner

- Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 , 206 (D.C. Cir. 2007). Among other things, it is impossible to tell whether the costs estimates EPA presented on page 22 of its review reflect only the costs that would be incurred to prepare and file a petition with EPA, or also include all of the related

27 Even assuming there are similarities between the processes, as EPA asserts, EPA has not claimed they are identical. Thus, by failing to provide a substanti ve analysis of the process and their specific similarities, and also differences, EPA has not provided the public an opportunity to comment on the merits of its claim and the accuracy of the specific cost estimates it has put forth.Page 39 of 72 costs which would be incurred in order to prosecute a petition to conclusion; such as, the cost to respond t o comments filed by the public in opposition to a petition, the cost of a a n administrative appeal by the denial of a petition by EPA or an administrative appeal initiated by an environmental group of EPA’s grant of the petition, and the cost of a judicial appeal of a denial of a petition or an appeal initiated by an environmental group of EPA’s grant of a petition. Given that amount of the dollar values presented on page 22 of EPA’s cost review, it is highly unlikely that EPA’s published

estimates include these additional costs. Further, the failure to consider all such additional costs, given that EPA’s proposed petition process would allow for the public to comment on each petition, makes it extremely more likely that such costs will be incurred and, th erefore, that much more arbitrary for EPA to fail to consider such additional costs.

PCA also assumes that EPA’s cost estimates only include the direct out

- of

- pocket costs of such petitions, and that no consideration has been given to identifying and cal culating the costs that might be incurred, or the dollar amount of the operating efficiencies lost, or the lost jobs, while a petition is pending. Such costs would be incurred, for example, if a facility has to purchase more expensive fuel while its petit ion to use a less expensive, secondary material as an alternative fuel is pending, or being appealed. The potential for this and other such lost operating efficiencies to occur is quite real under the EPA’s proposed petition process and such additional co sts should be recognized and taken into account by EPA as part of its cost assessment.

In addition to the cost of the petition process, which is the only pre

- designation cost factor EPA did attempt to analyze, the proposed rule will necessitate changes i n the management or use of secondary materials as a result of the proposed rule’s requirement that, to avoid being designated a “solid waste,” secondary materials will have to be “sufficiently processed.” Under the currently

proposed rule, there clearly w ill be processing costs that will need to be incurred, including by cement manufacturers. However, because of EPA’s current indecisiveness on this issue and the NPRM’s insufficient specificity 28

EPA has, effectively, three courses of action which it can take with respect to t he deficiencies in its cost review. One option is simply to ignore the concerns we have expressed here and proceed to final rule without addressing the defects we have identified. However, PCA believes that the

courts would overturn and remand EPA’s fina l rule should it choose this path. A second option is for EPA to agree with the concerns we have raised with respect to the inadequacy and incompleteness of its cost review and cure the defects by conducting a meaningful and comprehensive review of the co sts associated with this proposed rule and republishing the rule with the revised cost analysis for public comment. A third option available to EPA is to amend the proposed rule by adopting the revisions PCA is recommending in these comments, including:

d esignating scrap tires as a traditional fuel; excluding ingredients from the scope of the rulemaking; , only EPA can realistically assess what the cost, or range of costs, of the processing to be required might be. To date it has not. Here again is an additional reason why EPA’s cost review and analysis is inadequate and incomplete.

28 T he NPRM, in fact, c oncedes PCA’s point, wherein it state admits that “there is a question whether the definition of processing is sufficiently clear so the regulated community can appropriately apply the definition.” 75 Fed. Reg. 31878. The NPRM goes on, then, to compound EPA’s failure to identify and calculate the proposed rule’s costs, and the regulated community’s ability to respond in any meaningful way, by requesting public to offer comment and suggestions on what the final rule’s specific requirements should be. See, e.g., 75 Fed. Reg. 31878

- 79.Page 40 of 72 and eliminating the proposed rule’s processing requirements for scrap tires. EPA’s adoption of these

revisions PCA is recommending would not only elimina te costs that the current proposed rule would impose as well as the need for EPA to have to analyze such costs, but would also, as we discuss in greater detail elsewhere in these comments, further RCRA’s goal of promoting beneficial material recycling and reuse.

VIII. PCA’S RESPONSES TO SPECIFIC REQUESTS FOR COMMENT AND

INFORMATION IN EPA’S PREAMBLE

In the remainder of these comments, we will respond to various requests for comments and/or information as set forth in EPA’s preamble. It is important to note that in some of the responses below, we are providing comments and information only as a “backup” in the event EPA were to decide to issue a final rule with certain provisions that we have shown should not be included earlier in our comments.

For i nstance, we explain earlier in our comments that EPA does not have the authority to regulate ingredients under CAA § 129. The fact that we may offer some comments, suggestions, and/or information regarding ingredients below in response to EPA’s request sh ould in no way be regarded as any concession on our part regarding our basic legal position. For another example, we explain both above and below why we believe “legitimacy criteria” have no place in this rule for non

- hazardous materials as applied to an industrial furnace producing a product, such as a p ortland cement kiln. The fact that we offer certain comments, suggestions, and/or information in response to EPA’s request for comments on legitimacy criteria below should in no way be regarded as any con cession on our part regarding our basic position that no legitimacy criteria should be included.

A. Additional Information on non

- hazardous secondary material (“NHSM”), Federal Register page 31850

.

EPA defined a list of NHSMs known to be in use in the prea mble, and asked for additional information to describe beneficially used materials.

In addition to information provided throughout our comments, PCA offers the following information with respect to TDF:

**•** Used tires have been utilized historically as fue ls and have been managed as a valuable

resource ; particularly tires that are collected directly from retailers or other tire changing facilities or through state or local tire collection programs with respect to handling from the point of generation

.

**•** The EPA should allow the same consideration for tires that is allowed for biomass, wood from forest fires, and crop residuals

– that is if the materials are properly managed and have a meaningful heat value then they are traditional fuels and are not considere d solid waste.Page 41 of 72 **•** The EPA points out that zinc may be present at higher concentrations in TDF than in coal, but does not provide supporting data in the preamble

. Data available from the USGS database indicates that the average bituminous coal concentration for zinc is 73 ppm. Note that this coal data includes concentrations of zinc as high as 51,000 ppm. 29 Zinc in tires is typically around 2% (20,000 ppm). Thus, zinc concentrations in TDF could be similar to coal. However, what is important is the potenti al for air emissions if used tired are burned. EPA conducted a study

in which tires were burned in a test incinerator without the aid of any emission control

devices

. 30 The study concluded that, with the exception of zinc, there were no significant

increa ses in air emissions when tires were substituted for coal. Zinc is not defined as a hazardous air pollutant (HAP) which is a criterion to be considered a “contaminant” under this proposed rule. However, the EPA stated that the zinc emissions would have b een effectively eliminated if an appropriate control technology had been used

, which would be the case for any cement plant burning used tires. EPA should focus more on the fact that tires have lower concentrations of other metals with greater toxicity, s uch as mercury. Furthermore, there is significant environmental benefit from burning used tires in place of coal due to the typical

reduction found for numerous other emissions, such as greenhouse gases, particulate matter, NOx, SO 2 and dioxin/furans.

B. In formation on Additional Traditional Fuels, Federal Register page 31856

.

EPA requests comment on whether other fuels in use today should be classified as traditional fuels, and for supporting information.

PCA believes that the traditional fuels category should be broadened, as described throughout our comments. In the ANPRM, EPA acknowledged that “...there are secondary materials that may not have been traditionally used as fuels, but that are nonetheless legitimate fuels today because of changes in techno logy and in the energy market

. In cases where these legitimate alternative fuels have not been discarded, EPA said that it would not consider them to be solid

wastes.” 75 F ed. R eg. 31853 (emphasis added).

In this proposal, EPA “...recognizes that traditio nal fuels are not solid wastes when burned in

a combustion unit.” In the following sentence, EPA states that “... [t]raditional fuels are those fuels that have been historically managed as valuable fuel products rather than being managed as waste

materials. ” 75 F ed. R eg. 31856

.

Yet, EPA limits the definition of “traditional fuels” to a very narrow universe of materials, namely “...fossil fuels ( e.g., coal, oil, including used oil meeting on

- specification levels, natural gas) and their derivatives ( e.g., pet roleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas). Clean

29 USGS Nat'l Coal Resources, US Coal Quality Database, available at: http://energy.er.usgs.gov/coalqual.htm . Included

as Attachment CC.

30 Referenced from the TNRCC “Air E missions Associated with the Burning of Tire

- Derived Fuel”, Waste Tire Recycling Program, March 2001 . Included as Attachment DD.Page 42 of 72 cellulosic biomass materials are also traditional fuels rather than wastes when burne d as a fuel.” 75

F ed. R eg. 31856

.

By their very nature, some of these “traditional fuels” are secondary materials (used oil, petroleum coke), yet they are defined as traditional fuels in this proposal. There are many other materials that might be consi dered as secondary materials, but because of their energy content, have been identified as viable fuels for industries such as cement manufacturing, particularly as the cost of

fossil fuels have increased over time. These “changes in... the energy market”, as well as systems designed and installed by cement plants in order to manage these materials (“changes in technology”), would suggest that materials such as plastics, paper and paper residues, and tires should qualify under this definition of “traditional fuels

. ”

There are other fuels used by cement kilns such as glycerin, a by

- product of biodiesel production, that are not specifically mentioned as "traditional fuel

. " It is generated from agricultural seed or fast growing grass, but can also be generate d from vegetable grease or oils. There is no way to distinguish which source was used as feedstock or for that matter, other potential new sources being evaluated today, such as algae, etc. Since the only difference is the source (all biomass), and

all o ther aspects are identical, it is not intuitive that some materials should be arbitrarily identified as

“traditional fuels

, ” but others as “secondary materials

. ” It is our contention that all biomass

- derived

materials may be classified as traditional fuel s. We also believe that if a material is capable of being used for its energy value to replace fossil fuels, then that objective meets the individual company goals, our national goals, and international goals for sustainability. We do not believe it is

a ppropriate to use our U.S. solid waste regulations to inhibit the vast strides we have made on reuse

of these non

- hazardous materials in the energy intensive cement manufacturing industry

.

The cement industry has integrated alternative fuels and raw mate rials in its fuel consumption strategies for more than 20 years. The following table illustrates the use of alternative fuels in the cement industry in the last decade. As this table illustrates, very large quantities of alternative fuels are being used. The major growth category is “other alternative fuels.” This includes a wide variety of alternative fuels including wood wastes (sawdust, planer shavings), paper/cardboard, spent pot liners, off

- spec products/packaging, plastics, biomass, biodiesel wast es, glycerin, vegetable oils, etc.

The decline in utilization of alternative fuels in the past 2 years is primarily due to the construction and cement consumption downturn the industry has experienced, although even in the midst of this downturn, consu mption of “other alternative fuels” increased. Cement production has been severely impacted by the recession and has resulted in numerous plant closures as well as temporary shutdowns. This suggests that the total amount of fuel burned by the industry (o f all types) has dropped significantly. Thus, alternative fuel consumption of waste oil, solvents, and tire derived fuels would also be reduced accordingly.Page 43 of 72 Nonetheless, the number of plants that have used alternative fuel strategies has grown as

illust rated by the second table. 31

31 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association , ER395, Table 44.

Attachment N. This shows the use of alternative fuels by the number of plants from 1998 through 2009. Given the percentage of plants using alternative fuels, the importance of

alternative fuels cannot be understated.Page 44 of 72 Quantities of Alternat ive Fuels Burned in Cement Kilns

Alternative

Fuel Units 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Waste Oil gallons 7,519,371 5,327,494 8,312,276 6,709,055 7,075,863 10,739,071 9,386,766 22,635,768 10,675,288 7,168,381

Other

Alternati ve Fuel * tons 83,815 225,514 244,077 310,589 842,418 493,761 494,063 645,376 719,478 855,376

Solvents tons 840,388 824,198 829,166 809,299 813,116 728,338 736,279 691,862 743,888 579,636

TDF tons 303,330 275,385 326,158 383,221 44 1,102 450,267 463,794 478,858 475,948 355,918

* This includes such other alternative fuels such as biomass, plastics, wood wastes of various types, paper, spent pot liners, and off

- spec products/packaging, etc.

Alternative Fuels Utilized

1998 199 9 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Total Reporting Plants 93 93 95 95 98 97 96 96 98 98 97 90
Plants using Alternative fuel 53 51 54 54 55 56 62 64 65 64 66 63

Percent 57 54.8 56.8 56.8 56.1 57.7 64.6 66.7 67 65.3 68 70
Types of Altern ative Fuels Used*

Tire Derived Fuel 35 35 38 38 37 41 44 52 47 41 43 40

Waste Oil 6 8 11 10 10 13 16 17 16 15 18 18

Solvents 14 12 12 10 12 13 12 11 10 10 11 11

Other 19 17 18 24 23 22 28 36 40 39 42 43

* Plants may use more than one typ e of alternative fuel

Source: PCA U.S. and Canadian Labor

- Energy Input SurveyPage 45 of 72 C. Petition Process for Designating Traditional Fuel, Federal Register p age 31856

.

EPA requests comment on whether the rule should include a petition process to

demonstrate that a non

- hazardous fuel qualifies as a traditional fuel.

We believe that the petition process would be too slow and cumbersome to be effective. In addition, adding yet another layer of public participation and notice to the existing regulatory structure is unnecessary and burdensome to industry without providing any real benefit, environmental or economical, to stakeholders or the general public.

PCA believes this type of process, like the non

- waste determination, would be an unpredictable

and unnecessa ry process that would not only be more costly to producers and thus consumers but would certainly be a disincentive to utilizing NHSM . The process includes an initial decision by the EPA which may later be overturned or changed based on public comments. This will not only slow the process but also make it unduly political where a scientific approach would be more beneficial to the environment and to the public.

Also, as described elsewhere in PCA’s comments

, the concept of “traditional” as used by EPA in the proposed rule seems arbitrary and inconsistent. We object to the way it is applied as a key term to make a decision that may result in a significant negative influence on the long

- term reuse program in our industry for the sake of using a previous ly poorly designed (RCRA) component of the regulations. In Europe, what EPA considers “non

- traditional” fuels have been used for decades. We are concerned that the petition process will be too slow, and that clear decisions that allow sustainability prin ciples to stay in place will be difficult to obtain . Along the same lines we are concerned that the process will not be dependable to make operating decisions on the timely basis necessary to continue to incorporate these types of programs into manufactur ing.

D. Definition of Processing, Federal Register p ages 31861, 31876, 31878

.

EPA has proposed a definition of “processing” for determining if a once discarded material can be used without it being considered a solid waste, and requests comments on the defin ition and on adopting an additional definition for processing tires where the metal would not be required to be removed

. ..

PCA objects to the concept of processing in determining whether a material that can be used is a solid waste (for purposes of § 12 9 versus § 112 regulation). M any materials are not only similar to “traditiona l fuels” but also are bona fide fuels without any further processing. We

feel in fact that even if a fuel is not similar to a “traditional fuel” it should still be considered n ot a solid waste since its management, use and impact on the environment are similar or the same as

that of a traditional fuel , as has been demonstrated by the cement industry through years of program implementation

.Page 46 of 72 PCA believes the EPA should consider NHSM that is used in a manner no different from

other non

- waste fuel /ingredient s in use today to be considered a non

- waste fuel/ingredient product even though they may have been discarded in the first instance

. One other way to look at processing, however , is for EPA to recognize that in a cement kiln; the process inherently works to “process” the materials in the kiln as opposed to creating extra steps that must be implemented preceding the kiln. Hence, the cement kiln eliminates the need for the process ing step(s). We therefore believe that EPA could and should recognize that processing “in” the cement kiln system inherently meets the definition of processing.

In demonstrating why processing is not a good option for defining waste versus non

waste, the use of TDF in cement kilns can provide an easy to understand example. This example illustrates why there should be no criteria on processing of tires to be used as legitimate non

solid waste fuels, or there should at least be a subcategory for whole t ires and TDF with metal for use in cement kilns as legitimate non

- solid waste fuels. EPA discusses the processing of tires to meet requirements for a specific combustion unit design, and references ASTM Standard

6700

- 01 as describing practices for using T DF as fuel, including the size and metal content in order to optimize combustion. EPA proposes that to be sufficiently processed

, the TDF meet the ASTM standard for “relatively wire free” while also acknowledg ing that cement kilns benefit

from the wire as an ingredient for producing cement clinker.

**•** While tires may be processed to size and metal content specifications for certain combustion units, it should be recognized that for cement kilns

, the specification would be whole tires or tire chips without me tal being removed. Therefore, in the case of

cement kilns

, whole and chipped tires without the metal removed already meet the specifications for use in cement kilns as legitimate non

- solid waste fuels.

**•** Cement kilns can utilize tires with metal more effic iently than units where specifications require metal to be removed. In the process of removing the metal, a certain amount of rubber agglomerated to the metal does not become part of the TDF. Based on the Rubber Manufacturers Association, approximately 2 0% of the tire weight is lost to metal, fluff and agglomerated rubber.

**•** The need to remove the metal component of the tires to reduce metal content in ash is not applicable to the cement industry as the metal is a legitimate secondary material in the

proce ss of making cement. Metals are captured by being chemically incorporated into the product during the chemical reaction that takes place in the kiln. Furthermore, it is conceivable (and likely) that if it were necessary to shred tires and remove the meta l to

make a non

- solid waste TDF for use in a cement kiln, the removed metal would meet the requirement of a sufficiently processed NHSM that would also go to the cement kiln. This would result in the same materials being introduced to the kiln system as i f whole tires or shredded tires with metal were used, and the only thing accomplished would be a tremendous waste of energy and money to “process” the tires.

**•** With regards to removing metals to reduce metals in emissions, EPA should focus more

on the fact that tires have lower concentrations of certain metals, such as mercury asPage 47 of 72 compared to “ traditional ” fuels. Furthermore, there is significant environmental benefit from burning used tires in place of coal due to the typical reduction of numerous other

emi ssions, such as greenhouse gases, particulate matter, NOx, SO 2 and dioxin/furans.

**•** Even though EPA only cites the ASTM Standard 6700

- 01 as an example, it later relies on the criteria of “relatively wire free” from the standard to define what is sufficientl y processed. This wrongly implies that TDF that does not meet the ASTM standard is not legitimate fuel and references the ASTM standard out of its narrow context.

i. The context of the ASTM standard is the practice for processing tires into chipped

materi als with or without metal being removed to meet a specification necessary for use in existing solid fuel combustion units with minimal adjustments or retrofitting.

The ASTM standard excludes whole tires not because whole tires are not a legitimate fuel, r ather because whole tires do not require processing to be used as a fuel in a cement kiln, and as no processing is required, there is no basis for a standard practice. Whole tires certainly meet the intent of the ASTM standard

– that

is to be used in an e xisting combustion unit (i.e., a cement kiln) with minimal adjustments or retrofitting.

ii. The proposed solid waste rule preamble states that only TDF meeting the “relatively wire free” definition per ASTM (<1% bead wire and <2% total wire) is sufficiently

pr ocessed. This is arbitrary. The ASTM standard states that metal content can range

from wire free to no wire removed. As stated in the ASTM standard: “TDF tolerable wire content is determined by a combustion unit’s design consideration.

TDF’s wire remo val is determined by production process capabilities. Some

combustion units such as cement kilns can tolerate all inherent wire, so no removal is

necessary .”

iii. The ASTM standard discusses the need to remove wire based on various processing problems as the y generally relate to boilers (e.g

. , fuel feed systems, grate maintenance, ash circulation/handling, and ash disposal). It also discusses issues for the amount of ash if wire is left in and the metal content of the ash. Therefore, metal that may be remov ed to meet other combustion unit specifications or because of concerns for metals content of the ash is not a concern for a cement plant. An example of a combustion device that would need “wire free” fuel would be a boiler

or a fluidized bed boiler unit f or power generation. In those units, the wire builds up and the unit would require shut down on regular intervals to clean out the ash and accumulated wire. However, in the case of a cement kiln, the wire is used beneficially as iron incorporated into th e product and does not remain in the combustion unit, the cement kiln. Therefore, the wire is not detrimental to the process but replaces virgin iron raw materials and inherently becomes part of the product.

Most references to chip size in the ASTM stan dard are with respect to handling and conveying as well as residence time and combustion efficiency in boilers. It goes on to say that

to be economical

, the existing unit should have the ability to use TDF without modification, and that a supplier must be able to economically collect, process and transport TDF to thePage 48 of 72 combustion unit. In the case of cement plants, the existing units can utilize whole tires without (or minimal) modification and it is economically feasible for a supplier to collect and trans port whole tires, as these delivery systems have been in place for many years at many of the plants.

E. Additional Information on Levels of Contaminants, Federal Register page

31863

.

EPA discusses the amount of uncertainty associated with the level of

contam inants in NHSMs in comparison to traditional fuels, and requests commenters to provide additional data on this topic , and specifically on creosote

treated lumber

.

While PCA does not have specific data on contaminant levels in creosote treated lumber,

th e level of polycyclic aromatic hydrocarbons (“PAH”) in alternate fuel has been shown not be an issue when these materials are managed in cement kilns, and therefore we do not believe the

level of PAH should be an issue in the Solid Waste rules. Destruction efficiencies of the primary organic preservative constituents in treated wood have been demonstrated to be in the range of

99.99%

. 32 C reosote is a coal tar oil derived from the distillation of coal tar. Wood timbers are typically treated with creosote fo r its wood preservative characteristics. Coal tar oil is a derivative of coal and thus should be considered a traditional fuel. Therefore, creosote treated

wood is a combination of two traditional fuels

– wood and coal tar oil.

Cement kilns, with flame

- zone temperatures in excess of 3400 o F and residence times in excess of 2 seconds have routinely shown that organic constituents are destroyed at 99.99%+ from a wide range of use of fuels that includes both fossil and alternative fuels. If constituents

fr om all types of fuels in a kiln have consistently shown to be destroyed, we contend that this fact would certainly apply to the range of non

- hazardous fuels that EPA is addressing in this proposal.

Data is available that shows the variation in the most c ommon “traditional” fuel used,

coal. The USGS generated data on more than 13,000 samples collected by the USGS and cooperative state geological surveys . The USGS database contains coal quality data for 7,430 coal samples that represent complete

- bed thick nesses at various localities throughout the U.S. This is the most complete dataset for coal available.

In order to provide the most complete picture of the variability of the coal, all bituminous coal data analyses were used to prepare averages and ot her statistical data. Since cement plants use a number of different sources of bituminous coals (Appalachian, Midwest, and West), the use of the entire database was chosen. The following is data for sulfur, Btu, mercury, cadmium

and lead concentrations o f coal from this database:

32 Recycli ng Waste Treated Wood As Fuel; An Environmental Responsible Option, Stephen Smith, P.E. April 2005

. Included as Attachment EE.Page 49 of 72 Coal Data

- National Coal Resources Data System US Coal Quality Database

- All Bituminous Coal Analyses

Sulfur

% Heat Value

Btu/lb Hg

ppm Cd

ppm Pb

ppm Average 2.18 12,456 0.19 0.49 11.49

Minimum 0.04 5,030 0 0 0.17

M aximum 17.3 15,247 44.0 160 520

Standard Deviation 1.80 1,447 0.85 5.31 23.7

As indicated by the above table, the range of minimum and maximum values for all of these important parameters is quite large. The standard deviation also indicates that the variability can be quite significant. The above represents what is most likely the worst

- case in terms of variability, but it does emphasize the fact that even traditional fuels cannot be assumed to have a consistent level of sulfur or mercury. While the content may be much more consistent from a single source, facilities almost always source traditional fuels from multiple sources.

F. Sewage Sludge Approach, Federal Register page 31866.

EPA requests comments on the proposed approach for sewage sludge with respect to redundancy between a solid waste definition and section 405 of the

CWA.

Sewage sludge that has been treated in thermal drying systems and other processes for the purpose of primary fuel replacement in cement and other industries should not be considered a solid waste. Utilizing the inherent fuel content of this material for heat recovery and energy consumption demonstrates that this material has not been discarded and is a legitimate fuel. There are also other industry uses of these biosolids (note that “wet” and “dry” sludge have the same general composition and there is no reason to expect varying emission results

. )

This is again an issue of a better use of a material. Many States are ending land

application of sludge due to contaminate bu ild

- up. So cement kilns should be the logical destination for positive use of a material which would otherwise become a n increasingly challenging disposal issue

.

There are examples where cement kilns are using sewage sludge in the cement manufacturing pr ocess. For example, Lafarge is currently using sewage sludge as a fuel, on a limited basis, in a kiln in Austria. Mitsubishi Cement Corp (MCC) in California has been using

a wet biosolid material as NO

x control, and that material has no significant heati ng value because of the high water content . We are also aware that a limited number of U.S. facilities have recently begun testing/using a dried/processed sewage as a supplemental fuel. This sludge is dried and pelletized and has a heating value compar able to many alternative fuels. WePage 50 of 72 understand that these trials are still in the stage of testing the logistics

, and that the supply may be limited

.

The following points are provided as additional information :

**•** It may be useful to note that approximately 60% of the biosolids produced are land applied, composted or used as landfill cover, 22% are used for energy recovery, and the remaining 17% are disposed of in landfills. Source: National Biosolids Partnership (2002) A guide to understanding biosolids issues. http://biosolids.org/docs/Guide_to_Understanding_Biosolids_Issues_052506. pdf

**•** Although useful as a fertilizer and soil conditioner, sewage sludge, if applied inappropriately can be potentially harmful to the environment and th e health of humans

and animals.

**•** If agricultural land is flooded, frozen or covered with snow, biosol ids cannot be applied

due to the chance of runoff.

**•** An advantage to consuming biosolids for energy recovery is that it is a sustainable fuel that helps to move society towards a carbon neutral footprint. Zero ash is generated when

these materials are bene ficially used in a cement kiln, unlike other energy recovery uses where an ash is created that must ultimately be disposed.

G. CCR Ingredient or Fuel Value, Federal Register p age 31868

.

EPA solicits comment on whether the use of CCRs is primarily used for t heir ingredient value as opposed to their fuel value.

PCA believes that CCRs are utilized as ingredients instead of fuels, and as such can satisfy the legitimacy criteria for ingredients. Air emission controls in place regulate maximum emissions which inherently limit the types of materials that are acceptable based on the established regulatory framework. We are currently not aware o f CCRs that are being used for purposes of fuel rather than ingredients and

should be handled as such if this distinctio n is so key to t he final regulations.

H. Coal Combustion Residual Contaminant Changes , Federal Register p age 31869

.

EPA discusses coal combustion residuals (CCR) use and requests comment on whether advanced emission control technologies are or are expected to result in increased levels of contaminants in a manner that CCR will not satisfy EPA’s legitimacy criteria.Page 51 of 72 There is no data and no way for the cement industry to predict the result of new or future technology on the character of fly ash because of t he use of advanced pollution control technology. It should be noted though that there is no current information available that has proven that advanced emission control technologies directly result in increased contaminant levels. This future scenario al so helps make the point that alternative materials (fuels and ingredients) have and will continue to change

in nature . For example, when activated carbon injection ( ACI ) is incorporated for emission control

, the impact this process may have is already add ressed as part of the future LLL MACT standards. Therefore, to implement these types of sustainability programs in manufacturing, the flexibility to work with the changes over time is key. The existing regulatory controls are in place to regulate emissio ns. As with other comments PCA is offering, the bottom line is that we do not believe that EPA working to

find definitions that lock beneficial materials into a “waste” versus no

- waste designation to prohibit their

future reuse is in line with sustainabil ity goals of industry

, EPA , or industry

.

I. Levels of Contaminants in Fuels, Federal Register p age 31872.

EPA requests comment on comparing the level of contaminants in alternative fuels to traditional fuels.

PCA contends that this comparison is not neces sary or pertinent with respect to the cement industry for purposes of establishing legitimate fuel criteria. Cement kilns are already regulated under multiple rules that have been put in place to ensure that facility emissions don’t adversely impact human

health and the environment ( See PCA C lean A ir A ct Permitting Manual, Attachment H ) on permitting that describes the CAA permitting process). We believe that the current regulations already in place governing cement kilns and the range of fuel s they use a re sufficient to protect human health and the environment. Therefore, we recommend that EPA not include any contaminant comparisons of NHSM to “traditional fuels” out of this regulation since they already do not escape regulation under Clean Air

Act and/o r state permitting with respect to emissions. Such action by EPA would only serve to duplicate current permitting and/or Clean Air Act regulations.

Further, we do not believe that there is an efficient or practical approach to comparing 187 HAPs plus 9 Section 129 constituents bet ween an appropriate alternative material and “traditional” material. The variability inherent to any material, whether naturally occurring or man

- made complicates a direct comparison. Further, the real intent, as noted by EP A several times in the preamble is protection of human health and the environment. First, a comparison of constituents does not deal with actual environmental impact. As noted by EPA in the LLL proposed standards “the combustion of secondary

materials as alternative fuels (in cement kilns) did not have any appreciable effect on the amount of HAP emitted by any source.” 33

33 74 Fed. Reg. 21138

. The proposed approach by EPA ignores that in many if not most instances, cement has contributions of contaminants from raw materials as well as fuels. Further, the contributions from raw materials outweigh that of fuels. As a result, the fuel contaminant level in some cases can be high but not high enough to significantly change the total input rate

– to materially affect

the emission ra te.Page 52 of 72 A number of facilities in our industry have performed studies over the last two decades showing the same results with respect to the lack of negative environmental impact. The segment of the industry

which uses hazardous materials as alternative f uel has conducted multi

- pathway risk assessments as part of the RCRA permitting process to demonstrate that emissions from operations do not pose unacceptable

risk to human health and the environment. The studies address operations from cement manufacturi ng while using a wide range of alternative fuel and raw materials (including non

- hazardous and hazardous waste), thus can be viewed as representative of the industry alternate fuel and raw material use as a whole. As the agency approved permits for each f acility that conducted the assessments, this action demonstrates that the operations reflected protection of human health and the environment. Therefore,

w e believe that adding a Solid Waste driven regulation that adds complexity to the rules already in p lace for protection of emissions is unnecessary and not pertinent when applied to the cement manufacturing

process.

J. Record Maintenance and Notification, Federal Register page 31874.

EPA requested comments on the need for record maintenance and notificatio n for self

- implementing rule components.

PCA agrees with the EPA determination that any additional regulatory notification and record keeping imposed under this proposal would be duplicative and therefore an unnecessary

burden. As described elsewhere i n our comments, the level of regulatory approvals in place for

the use of alternative materials at cement manufacturing facilities is already significant.

K. Inventory Management, Federal Register page 31874.

In Section D.2, EPA states that third parties rec eiving materials from generators do not have sufficient incentive to manage the materials as useful products (p age 31875). EPA also points to over

- accumulation of materials by middlemen who may also lack incentive.

With materials which are sent directl y from a generator to a cement kiln, there is sufficient incentive to distinguish the facility from the scenarios cited. The value of the material to the user is the same as that for the generator.

The user has absolutely no reason to maintain the mater ial in inventory. In fact, the longer it sits in storage, the more its value degrades (e.g. weathering can diminish fuel/ingredient value) and the more virgin material must be used. PCA therefore believes EPA should allow

direct use of non

- hazardous alter native materials to be treated the same as material under the control of the generator, as we believe the regulations as written add a cumbersome and unnecessary regulatory approach. In addition, we believe that the automatic designation of a

material as a solid waste if it is out of the control of the original generator is not a legitimate argument since there is potentially no difference between materials whether the original generator has control over this material or not. In the preamble to this propos ed rule, in fact, EPA quotes from a recent D.C. Circuit opinion stating that a secondary material “transferred toPage 53 of 72 another firm or industry for subsequent recycling” is not automatically a solid waste. See 75 Fed. Reg. 31851.

As we have pointed out many times throughout these comments, assumptions EPA makes regarding hazardous material handling and management simply cannot be logically

carried over to non

- hazardous materials. This is one more example.

L. Discard Definition for Newly Generated Tires, Fede ral Register pages 31874.

EPA requests comments on the definition of discard with respect to tires in a state collection program.

PCA rejects EPA’s application of “discard” to newly generated scrap tires. Comments on several state tire regulations are included a s example s. California law (PRC Section 42870

- 42871) prohibits landfills from disposal of whole tires and prohibits dumping tires or storing

them in non

- permitted locations. In fact, California Public Resources Code (PRC) Section 42861(d) note s, “Used tires represent a valuable state resource which should be reclaimed and recycled whenever possible.” The used tires must be transported by a State

- licensed hauler and all shipments are manifested on a “Comprehensive Trip Log ” (PRC Section 42951

- 4 2956)

. Landfills also set tires aside for transport to facilities with further use for these tires. Landfills in California may accept chipped tires or chip tires on

- site, but very few landfills do that (Azuza landfill is the only one in Southern Califor nia).

In addition, t ires that are abandoned illegally must be transported to a proper usage facility , thus they are not discarded, and rather they are “temporarily misplaced”

. Therefore, by law, tires are not discarded, but are moved through a process to a further use. This procedure is exclusive to tires; no other materials are included with these documents. It is clear that California regards used tires as a separate commodity. Similarly, Florida’s Waste Tire Rule states that “Collection or storage of waste tires a permitted waste tire processing facility or waste tire collection center prior to processing or use does not constitute disposal, provided that the collection and storage complies with Rule 62

- 711.540, F.A.C.”

The state of Texas also ha s stringent waste tire tracking systems. Texas State Regulations (Texas Administrative Code (TAC) Title 30 Chapter 328F) concerning the management of used or scrap tires (tires that are not are not identified as industrial solid waste) also have stringent waste tire transportation, manifest and storage requirements. Scrap tire storage sites, facilities and transporters must register with the Texas Commission on Environmental Quality (30 T A C 328.55) before any collection, storage, transportation or

process ing of used or scrap tires may take place. Transportation of used and scrap tire is under a manifest and detailed records retention system (30 T A C 328.57

- 58). Whole tires are prohibited from being placed below ground (30 TAC 328F.66(e)).

Arkansas state regulation set forth by the Arkansas Pollution Control and Ecology Commission prohibits the landfilling of whole tires. Whole tires that are not split are notPage 54 of 72 allowed disposal in a landfill (Reg 14.704, 14.708 and 14.1301). It is illegal to dispose of w hole or portions of used or waste tires at any facility that is not authorized to accept waste tires (Reg 14.703)

. Alternate use of used tires is encouraged by the prohibition of any new monofills for used tires, unless it is demonstrated that there is no feasible recycling alternative (Reg 14.705)

.

Waste tire transporters must be also be licensed as a waste tire transporter by the Arkansas Department of Environmental Quality (ADEQ) (Reg 14.1103)

. Each waste tire collection, transportation activity and delivery activity is required to be recorded (Reg 14.1111)

. For Arkansas facilities with capacity for waste tires over a certain level, permitting for waste tire storage, collection or processing activities is required by ADEQ (Reg 14.901 and 14.1201)

. R ecordkeeping and regular reporting on waste tire activities is required.

In much the same manner, Kansas has established a system of permit for waste tire processors, processing facilities, transporters and collection centers (KSA 65

- 3424b). Kansas

Admi nistrative Regulations KAR 28

- 29 establish many specific requirements for management, design, pest control, storage and recordkeeping for these various entities. Kansas regulations require processing (i.e. use of a volume

- reducing technique of shredding o r cutting) of tires before they can be placed into landfills (KAR 28

- 29

- 29).

Oregon law establishes a permitting system for waste tire carriers and storage sites, and also imposes a landfill ban on disposal of whole tires. Oregon Revised Statute (ORS 459 .247) describes landfill bans. Statutes and Rules describing Oregon's waste tire program include: ORS 459.705 Waste Tire Storage and Disposal; Oregon Administrative Rules (OAR) 340 Chapter 64 Waste Tire Program.

Although only a small sampling of states r ules are discussed here, many states have rules and procedures in place for the handling, transportation, storage and usage of tires. As can be

seen on Attachment I

, 34 several states have regulations prohibiting the placement of tires in

landfills. Landfi lling is not usually an attractive options because as the landfill reaches capacity, the permitting of new landfills faces both public and political resistance. States are also recognizing the use of TDF as effective NO

x control technology. As an example , Tennessee has incorporated using TDF for NO

x control into their NO

x State Implementation Plan and the Texas Commission of Environmental Quality has defined mid

- kiln firing as a mechanism for decreasing nitrogen oxides emissions (§117.3101(7)).

A 2007 P ennsylvania report 35

34 Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap T ire and Rubber Users Directory. Included as Attachment I

. (Attachment J ) describe s the negative impacts of and problems with mismanaged used tires and provides an overview of the market for products created from used tires which exist in each state. It is recognized that when an item can no

l onger be used as a tire, the item still has value. The tire commodity can be recycled or reused with the purpose of conserving virgin materials and energy and to reduce waste. The report

35 Waste Tire Recycling and Reuse in Pennsylvania: An Analysis of the Industry, Markets, and State Use, Including

Rubber Modifi ed Asphalt, October 2007. Joint State Government Commission. Included as Attachment J.Page 55 of 72 recommends that state policy and regulations further encourage and expand the recycling and use of tires. In fact, the report specifically recommends (recommendation #18.) for Pennsylvania to explicitly regulate tires as a commodity and not as a waste.

Historically state tire programs have come into existence because for a number of

decades used tires destined for “discard” were taken to a landfill and “discarded or “thrown away” , and there were also certain individuals that mismanaged these materials prior to

“discard” , and they were not taking tires to the designate d “discard” location. In addition, tires

have been and are used for erosion control

, so just saying that a tire on the ground or in a ditch is

“discarde d” is not a correct assumption.

M. Metal in Tires

- processing Definition, Federal Register page 31877

- 78.

EPA discusses an option for an additional definition for processing tires where metals belts and wire would not need to be removed (where it serves a useful purpose).

As an overall comment PCA rejects EPA’s definition and approach to the term, “processi ng” as described above. However, if EPA does include the definition, we believe that language such as stated in this comment request that recognizes units such as cement kilns where materials serve a useful purpose without other processing is productive a nd will help implement an otherwise quite troublesome rule.

The definition of processing should also include, for flexibility, the idea that sorting of the tires or other materials for size and quality is legitimate processing. For example, tires are

co llected in one central location where they are sorted and usable tires are resold, retreadable tires are sent for retreading and resale, selected tires are evaluated for use in crumb rubber, some

are set aside for use as whole tire fuel and others are size d for use as fuel in cement kilns with the remainder shredded or chipped for fuel or landfill.

Regarding whole scrap tires used as alternative fuel, the cement industry’s interpretation of “processing” entails a broad definition not relegated to a prescr ibed approach that only recognizes physical practices such as shredding or chipping. While our industry acknowledges that a handful of cement plants utilize chipped or shredded tire scraps as a fuel, the overwhelming majority use whole tires. Regarding “ processing,” the industry believes that this term encompasses sorting, segregation, cleaning, culling, racking, transportation, or other systematic procedures directed toward an established way of making scrap tires (in whole form) ready for use as TDF in a cement kiln. We view such “non

- mechanical processing” as an effective reclamation protocol, so long as the outcome results in sufficient examination and sorting of the whole scrap tires as a cement kiln fuel.

On p age 6, Section 4 of our comments to t he docket (EPA

- HQ

- RCRA

- 2008

- 0329

- 0352.1) in response to the January 2, 2009 ANPRM, we stated that “while we agree that legitimate fuel products that have been extracted, processed, or reclaimed from previouslyPage 56 of 72 discarded non

- hazardous secondary materials wo uld not generally be considered solid waste,” it is also our view that “it should not be imperative that such fuel products undergo prescribed processing prior to utilization as legitimate fuels.”

As discussed above u sed tires undergo various processi ng steps to meet certain specifications that are necessary for a particular end use. In cement manufacturing, both shredded and whole tires can be fed to the kiln as fuel sources based on the kiln type and its design. The iron in the wire (approximately 98.5% iron content) is a necessary ingredient for manufacturing cement. The steel used by the tire industry is AISI 1070 and above tire cord quality wire rod to manufacture new tires. 36 In addition to the iron, the following is the content

of the steel in tires:

Steel Belts Bead Wire

Carbon 0.67

- 0.73% 0.60% min.
Manganese 0.40

- 0.70% 0.40

- 0.70%

Silicon 0.15

- 0.03% 0.15

- 0.30% Phosphorus 0.03% max. 0.04% max.

Sulfur 0.03% max. 0.04% max.
Copper Trace Trace

Chromium Trace Trace

Nickel Trace Trace

Therefore, removal of the wire from the tire and then adding it back to the process is not warranted. In addition, the TDF processing required in the ASTM standard referenced above is mainly for the use of TDF in boilers and is not applicable fo r cement manufacturing. Therefore, we are requesting that for cement manufacturing sorting and/or sizing be considered the required TDF processing. Ultimately the form the TDF enters the kiln should be dictated by the kiln system. Processing should simp ly be considered as making the material amenable to meet the quality objectives of the manufacturing process. Anything more is an unnecessary waste of energy and resources.

N. Processing

- Determination Versus Self Implementing Approach, Federal Register p a ge 31878

- 31879

.

EPA further requests comment with respect to processing regarding the self

implementing approach versus a determination approach, and whether a general rulemaking provision should be available for EPA to evaluate various processing

activiti es generally versus on a site

- by

- site basis.

36 R ubber Manufacturers A ssociation, S crap T ire M anagement C ounsel: Scrap Tire Characteristics.

Included as Attachment FF

, and available at http://www.energyjustice.net/tires/files/scrapchn.html

.Page 57 of 72 We oppose the agency’s definition and application of the term “processed” to the use of

non

- hazardous secondary fuels. PCA understand s this rule applies to multiple types of

combustion devices but the fact i s a cement kiln operator will always endeavor to sufficiently and efficiently process any NHSM or traditional fuel before using it, and the actual processing happens in the kiln. In the case of some fuels that is an easy task and some not so easy. T he

am ount of processing may limit how much of a fuel can be used but producing a quality cement product is the driving force in a cement production facility. The following points address and

illustrate comments and concerns in this area :

**•** Many NHSM s are alread y sufficiently processed as they are generated. A good example is whole tires. A whole tire that is complete, the correct size and containing little water inside the tires is a good fuel and relatively the same as shredded tires. Tires do not need

to ha ve the steel wire removed since iron is a raw material used in the cement making

process. The same is true for wood, paper and plastics in that they need little or no processing to become a good fuel. Many NHSM s are either already shredded or the y are si ze d in the process as they are generated, and they are already sufficiently small to be used for good combustion. Some other examples are packaging materials from receiving facilities, manufacturing and consumer product warehouses. These wastes are typica lly shredded and as bulk materials, they are good fuels. In addition, there are car

manufacturing by

- products like trunk liner trimmings, bumper trim remnants and packaging materials that are shredded and ready for use as fuels. Finally, off specificatio n product or trim wastes from manufacturing products like diapers, paper towels, and other paper products are currently collected and shredded. All of the previously mentioned materials could be pelletized but the extra energy expended consumes power and creates additional emissions with no benefit. In the case of NHSM s that contain moisture, the least efficient approach for combustion of those materials is to dry them in a separate drying system before sending them to a facility for combustion. A

separa te drying system will have innate inefficiencies and will create additional emissions from combustion to produce drying air. This will require separate transportation, storage, material handling and combustion which will certainly increase multiple pollut ant and greenhouse gas emissions. The most efficient approach for combustion of those materials is to use the combustion process (cement kiln) to dry them in a system that is designed and operated to run as efficiently as possible. This approach

eliminat es the need for separate transportation, storage, material handling and combustion which will ensure lower overall emissions and energy consumption.

**•** The term “sufficient processing” may on its face sound logical and appropriate but when

it comes to defini ng the term and offering an analogy the EPA uses the example of whole tires as NHSM not sufficiently processed. This provides confusion since whole tires have been successfully and efficiently used in the cement industry for decades without negative impac t on human health or the environment, thus the industry consider s tires a “traditional” fuel. The effort and resources expended in obtaining TDF from the generators and transferring them to the cement kilns requires investment and, therefore, imparts suff icient value to the TDF product to make it a legitimate "fuel product".

**•**Page 58 of 72 **•** In the preamble EPA discusses other NHSMs and what constitutes "sufficient processing". In particular, a discussion of scrap metal de scribes that “baling” or “sorting” of scrap meta l constitutes sufficient processing. This directly contradicts EPA’s definition of sufficient processing of fuels in this proposed rule

.

It is inappropriate for EPA to single out tires or other fuels and require a prescribed amount of processing when they may not require further processing to be efficiently used as fuels. In fact, more whole tires are used in the cement industry than shredded tires because certain kiln technologies are more amenable to whole tires while some

can better utilize shredde d tires. In the case of facilities that can use whole tires, further processing is energy intensive with little if any added benefit to the process or environment

. C onstruction and pallet wood are two other specific examples of materials that could be

co nsidered processed if removed, shredded and metal removed, much like TDF processing

.

O. Non

- waste Determination, Federal Register page 31880

.

With respect to the non

- waste determination process, EPA solicits comment as to whether the Agency can (and if so sh ould ) allow a state, for example, under a state’s beneficial use program, to also make case

- specific determinations without EPA’s approval.

Regarding a petition process for a non

- waste determination, PCA does not support making this a mandatory prerequis ite for a source to use a NHSM material as a fuel or ingredient. Under the current regulations, sources always have the ability to seek regulatory guidance or a formal interpretation by a regulator of a rule as applied to specific facts. EPA should make clear in the rulemaking, however, that such determinations must be obtained from the applicable permitting authority, which in almost all cases

will be the State. It is important to permitted sources that EPA require s tates to provide in their Title V

pro grams knowledgeable CAA staff to implement this rule, and not require sources to separately seek a determination or assistance from RCRA staff regarding their CAA permits. Therefore, we believe that approval for use of alternative materials is implementab le at the s tate level, based on the existing regulatory pathways as emphasized above. We support allowing states to grant petitions under existing beneficial use programs and encourage EPA to allow the existing regulatory structure in stay in place.

We also think it is important to point out that we believe the process designed by EPA in the proposed rule will be cumbersome and difficult to implement. We are concerned about EPA and/or the states’ ability to make timely and reasonable decisions under the proposed rule. Our industry has past experience with waste management driven air standards and trying to rectify issues such as the purpose of burning, discard, constituent levels, Btu, etc. We have found the process to have so many decisions that repr esent gray areas that many times the agency response is no decision at all. Other times the decision making process is a difficult and lengthy one. Either scenario results in a lost opportunity for the facility to secure an alternative material . Althoug h permitting alternate fuels and raw materials has not necessarily been an easy or timely process in the past, we are concerned that the newly envisioned process will stifle industry’s sustainability initiatives that we have been working toward for decades

.Page 59 of 72 \ We also believe the process will require the petitioner to demonstrate that the material is non

waste is unduly repetitive. It must be demonstrated that the material has not been discarded and meets legitimacy criteria. If the petitioner makes the first demonstration that the material has not been discarded, than by definition the material is not a solid waste. Similarly, if the petitioner can make the second demonstration (legitimacy) on a previously discarded material, then it should be acceptabl e since, when used, it is no different than a material that had not been previously discarded.

The requirement of the fifth criterion for a non

- waste determination, as described in the preamble, allows a petitioner to provide case

- specific information. This may be misinterpreted that a person does not have the right to present such information with the first four criterion. We assume it is not EPA’s intent to be compelled to ignore such information if submitted with the first four criterion.

We think i t is important to include language to clarify that information the applicant believes “appropriate to demonstrate that the material as used in the combustion unit is not a solid waste” is necessary. Without such language, agencies may misunderstand the in tent and use this to demand information not directly related to the petition.

In the cement industry, many of the plants have already worked through the process to gain acceptance of alternate fuels and/or raw materials through detailed technical work, w orking with the regulatory agencies, and with the public. To use an even more arduous process now for materials that are by definition non

- hazardous flies in the face of common sense.

P. Storage Timeframes, Federal Register p age 31880

- 31881

.

EPA requested comment on defining a specific timeframe or range of timeframes, and on a typical management for fossil fuels.

PCA believes that a defined storage timeframe should not be among the criteria used for determining if a non

- hazardous secondary material ( NHS M ) is a valuable commodity. PCA strongly recommends that EPA not define a specific timeframe or range of timeframes as part of this criterion but rather leave it to the facilities to choose an appropriate timeframe for the NHSM based on how frequently the material is used and the amount of reasonable storage space that is available

.

To run a consistent program that allows for the process changes, a cement plant needs to be allowed to have continuous and unrestricted storage of NHSM. Materials to be used in the process have been managed throughout the history of cement manufacturing. The main operating driver in the industry is to maintain strict chemistry requirements necessary to produce quality products. D ue to natural variability in naturally occurr ing substances, such as the raw materials supplied from the quarries where the cement facilities are located, storage of alternate materials is necessary to balance production requirements. There may be times when an alternate material is used more and ti mes when an alternate material is used less, depend ing predominantly on the cement quality criteria.

Both the use of fuels and materials in a cement facility can vary depending on the availability of the raw materials and the type of cement product bei ng manufactured. When alternate fuels or materials become available a cement facility has the ability to store these materials in the event they are not regularly available, which is the standard practice for fuels and raw materials in manufacturing cemen t.Page 60 of 72 A cement facility ideally runs continuously and with a steady feed of materials. To operate in this

fashion

, large quantities of raw materials, fuels, and NHSM are necessary and need to be stockpiled

.

As another factor, the storage period of NHSM may be related to the amount and timing of generation of the specific NHSM. If a NHSM is generated continuously, then use and storage is predictable and can be kept consistent. However, some NHSM s are generated after long periods of accumulation and may b e removed only once or twice per year. For example, foundry sands can typically be received year round. However, in some instances if the material becomes wet, it can form lumps since some foundry sands include clays to help bind the sand grains together in the manufacturing process. In colder portions of the U.S., these lumps can then freeze and may plug storage bins or otherwise cause problems within conveyance systems. Thus, for some locations, these materials (both virgin and alternate materials) mu st either accumulate only when it is dry or not be received during the winter. Similarly, alumina

- bearing raw materials are often clay

- like and can absorb water easily. These may also freeze in winter and need to be stored under cover.

When a NHSM is g enerated once or twice per year, it will require a longer storage period at the user’s site as they receive a large shipment at one time but use it on a consistent basis over a long period. In the case of most agricultural byproducts, they may be generate d in total once or twice per year. The same may apply for manufacturing by

- products such as process catalysts or other process reaction agents that are removed annually or semi

- annually. Typically, coal, the most widely used traditional fuel, is not tric kled in on a daily basis but large shipments are received on a semi

- monthly or monthly

basis.

In summary, we do not believe that over accumulation of non

- hazardous secondary materials

should be of concern; good business sense does not allow excessive ac cumulating to avoid tying up capital and cash. Alternate materials in the cement industry are managed as a useful commodity, the

same as the naturally occurring ingredients and fuels. T here are existing regulations for fugitive air

emissions and stormwat er pollution prevention that provide adequate oversight of management practices, ensuring that they are protective of human health and the environment (as described below ).

Q. Definition of “Contained”, Federal Register p age 31881.

EPA requested comment on whether the definition of “contained” as applied to

non

- hazardous secondary materials is appropriate. EPA goes on to address other approaches including potentially imposing specific containment standards.

PCA believes imposing specific standards could le ad to unnecessarily stringent containment standards especially considering the non

- hazardous status of the materials. The cement industry already is regulated under current air (primarily Title V permits that incorporate emission standards for storage pil es and material handling) and stormwater regulations (40 CFR 122.26 and analogous state requirements) that address the issue of containment

. Cement facilities are required to comply with air permitting regulations that apply not only to the main stack, bu t also to the following areas:Page 61 of 72 **•** quarrying

**•** raw material, and intermediate and final products (clinker, p ortland cement) processing

**•** fuel processing

**•** storage of raw materials and fuels (including alternatives), intermediate and final products (clinker, p ortlan d cement)

**•** transportation/conveyance of raw materials and fuels (including alternatives), and intermediate and final products (clinker, p ortland cement)

All of the above air permitting and compliance requirements are contained within each

facilities’ Title V permit. This permit describes all of the numerous applicable regulations, including applicable MACT regulations (Part 63 Subpart LLL) and NSPS regulations (Part 60 Subpart OO O, Subpart Y). In addition, many other requirements are incorporated that are mandated per each state’s SIP. In short, the Title V permitting process is very detailed and incorporates emission limitations on each process and storage unit and each material transfer point.

Also, each facility must meet other non

- air regulatory requ irements. USEPA’s stormwater permitting regulations are applicable to cement manufacturing facilities. All but four

of the states are authorized to issue national pollutant discharge elimination system ( NPDES ) permits for stormwater discharges from indus trial activities. These permits are generally based

on the federal Multi

- Sector General Permit (MSGP) and as such, contain many of the MSGP’s components as they are applicable to the cement industry. EPA recently issued a new MSGP in 2008, but most of th e state authorized permits are based on the previo us MSGP issued in 2000. That permit requires the prevention of exposure of fine granular solids (cement, fly ash, kiln dust, etc. ) to storm water where practicable, by storing these materials in enclosed s ilos/ hoppers, buildings or under other covering [Section 6.E.3.2]

. The general permit also requires benchmark monitoring of Total Suspended Solids (TSS) (Section 6.E.4).

Industrial facilities in the four states that are not authorized to manage their st ormwater programs are currently operating under the 2008 MSGP which requires stormwater discharges from material storage piles at cement manufacturing facilities to be monitored for Total Suspended Solids (TSS) and pH (Section 78.E.5).

For those facilit ies that store and utilize oil and/or oil products, the Oil Pollution Prevention regulations establish procedures, methods, equipment, and other requirements to prevent the discharge of oil from non

- transportation

- related onshore and offshore facilities in to or upon the navigable waters of the United States or adjoining shorelines (40 CFR Part 112.1(1)). Per these requirements, facilities that manage oil and oil products must prepare a Spill Prevention, Countermeasure, and Control (SPCC) Plan to ensure tha t discharges of oil are prevented. The management of oil

- bearing AFR is covered by this requirement.

Also, in addition to the Solid Waste/tire state

- specific rules d escribed elsewhere in our comments, the state Solid Waste rules also often deal with non

- hazardous material management. The state rules range from acknowledging use in industrial processes as a non

- regulated activity (i.e. no additional requirements above the CAA and other rules described), to having a beneficialPage 62 of 72 use determination process, to permitting Solid Waste processing actions if processing is conducted on site). Most often, the rules acknowledge, as do the RCRA hazardous waste rules, that reuse of an otherwise waste material in an industrial process is akin to normal processing

and th us they do not add yet another layer of regulation to the framework already in place.

This rule does not need to further address containment so that it becomes burdensome

. The ability to handle the materials in a manner that is protective of human health and the environment must already be addressed when bringing any of these materials onsite.

We believe EPA’s current “contained standard” as defined in this proposal, which is a general performance standard, provides sufficient direction to the regulated c ommunity. In fact, typical industry practices are already using this as a general guideline for safe handling and storage of NHSM and meeting or exceeding these standards. Further specific definitions or other approaches would not be

beneficial since the current guidance provides clear and sensible direction. It is unlikely that EPA would be able to quickly draft standards addressing all possible NHSMs, both current and future. No additional program is needed to regulate containment.

R. Btu Limit, Federa l Register page 31882.

EPA requested input on whether a bright line Btu limit should be established.

PCA objects to establishing any type of Btu/lb threshold and believes it is not necessary for materials to be considered a “legitimate” fuel. As explain ed above, t he industry cannot afford to jeopardize our product by using alternate materia ls that negatively affect cement quality, and this applies to fuels as well as ingredients. We note that the entire controversy over “sham recycling” relating to

fuel s arose in the hazardous waste context years ago, when EPA justifiably had a concern that unscrupulous parties might seek to avoid the expensive Subtitle C cradle

- to

- grave regime. Those with

material that could be a hazardous waste had incentives to claim that the hazardous waste they were burning was a bona fide fuel (because at that stage in the RCRA Subtitle C development, bona fide fuel burning was exempt). This concept has no relevance to the situation in which non

- hazardous materials are being burne d

– the incentives to avoid RCRA Subtitle C simply do not exist.

Any heating value is “ meaningful

. ” The ability to use NHSMs with any heating value reduces fossil fuel dependency

, yield ing environmental benefit . E missions generated by such use are cont rolled through CAA standards. In addition, regardless of the Btu value EPA would select, the number would be arbitrary with respect to some future potential fuel. This would stifle continuing advancements in combustion design and operations that presently fulfill the RCRA goals of pollution source reduction, energy recovery and the most environmentally beneficial disposal methods possible for any byproduct material that is still generated. EPA should not only avoid impeding the use of even lower heating va lue fuels that provide useful heat energy and displace fossil fuels, but they should implement standards and guidelines that encourage their continued and increased use.

Specifically for the cement industry, it has been shown many times over history that it is possible to effectively recover the energy of low heat value materials in a cement kiln. Historically, the RCRA hazardous waste rules did not address Btu, but an EPA guidance document (Sham Recycling Policy

–Page 63 of 72 March 16, 1983) documented the 5,000 Bt u criteria as a guideline, especially for less efficient boilers. The policy was published as enforcement guidance that set forth general criteria for energy value, and it directed enforcement personnel to high priority misuse scenarios (e.g. non

- industri al boilers burning

low

- Btu waste). As the bright line did not take into account industry specific technical abilities, the cement industry worked for years to demonstrate the abilities of the process to utilize fuel value at varying and lower Btu values

. As an example, many of the facilities that use hazardous waste fuel have successfully demonstrated through permitting and/or technical documentation the ability for their device

to utilize lower Btu materials for their fuel value

. To date, none of the gu idance documents have ever

resolved the original misconstrued bright line Btu issue at a national level for hazardous waste fuel

. However, the process of making a determination on a site

- specific and manufacturing type specific basis is working and should be left in place due to the range of units being addressed under this rule versus establishing a bright line

.

One additional point that the PCA thinks it is important to note is with respect to alternate raw materials or ingredients. In the event that i ngredients are not excluded from the final rule, we believe it is important to recognize that some ingredients do contain minor Btu content. As long as the primary intent for the secondary material is as an ingredient, then the material should be consider ed an ingredient versus being considered a fuel for the purposes of this rule.

S. Scope of Contaminants

, Federal Register page 31883

.

EPA requests comment on the proposed approach for establishing the contaminants to be compared, or whether the list should be narrower or broader.

In addition to disagreeing with the criteria for contaminant comparison, PCA disagrees with broadening the scope of contaminants discussed by EPA . Using the definition of “contaminants” as

“constituents in non

- hazardous secondary materials that will result in emissions of the air pollutants identified as HAP listed under CAA section 112(b) and the nine pollutants listed under CAA section 129(a)(4) when such secondary materials are burned as fuel” is excessive and unnecessary . Bas ed on stack testing data and risk assessment s performed in the cement industry previously described

, it is accepted that organics in fuels do not survive intact to exit a cement kiln or cause harm to human health and the environment. In addition, stack tes ting comparing different fuels (tires, waste derived fuel, coal, coke, etc.) on a single kiln system under normal operating conditions supports that same conclusion. Based on the same data, hydrocarbon emissions in a cement kiln stack are from traces of na turally occurring organic materials (roots, limestone, clay, etc.) and evolve from the incoming raw materials in

a non

- combustion atmosphere. This fact has been recognized previously by EPA, and the organic emissions, regardless of their source, are being regulated under the soon to be finalized LLL NESHAP

standards.

Extensive testing has also been conducted on kilns that burn hazardous waste fuel with respect to organic emissions. This testing has shown that nearly all of the organic content in the fue ls does not survive in the kiln. These kilns have been required to conduct destruction and removal efficiency (DRE) testing for nearly 20 years. These tests involve the injection of difficult to destroy Principal Organic Hazardous Constituents (POHCs) an d stack testing to determine how much of these POHCs are thenPage 64 of 72 emitted. These POHCs are selected based upon how difficult they are to destroy. Because of the stringency of the hazardous waste burning requirements, compounds that rank near the top of the

i ncinerability rankings are chosen to prove the efficacy of the kiln’s DRE capabilities. Thus, if a kiln can demonstrate destruction of the most difficult to destroy compound, then any other organic compound must also be likewise destroyed. Many of these tests were conducted under worst case conditions for kiln combustion to further indicate they can perform under the whole operational range.

Kilns first had to demonstrate compliance with a RCRA standard for DRE of 99.99%. That is, at

least 99.99% of o rganic hazardous constituents must be destroyed when used as a fuel. Once MACT standards were promulgated for hazardous waste burning kilns, the same DRE standard was used as

non

- dioxin/furan organic hazardous air pollutants are controlled by the DRE stan dard

. In promulgating the HWC MACT standard, EPA noted that kilns always destroy organic compounds. EPA’s DRE data base of operating [hazardous waste

- burning] cement kilns includes results from approximately 25 DRE tests and nearly 200 runs. All data sh ow compliance with the DRE standard. 37 In fact, many tests showed destruction efficiencies one or two orders of magnitude higher than the standard. Based on the consistent results showing the high level of destruction is inherent in a cement kiln, EPA di minished the frequency requirement for DRE testing

.

Applying the type of comparison proposed by EPA for the original list of contaminants or an expanded list would empower EPA to require expensive and lengthy material and/or stack sampling for any and all additional NHSM considered for use. This arduous process would likely eliminate many materials based on the cost hurdle and how long it would take to schedule, conduct and evaluate this type of analysis . Further, as noted above, the air emissions fo r cement kilns, including use of alternate fuels and raw materials is regulated in accordance with existing Clean Air Act regulations. Therefore, an additional level of scrutiny is not a wise use of resources.

As described elsewhere in these comments, si nce metals are chemically incorporated into the cement and resulting concrete, EPA should not place restrictions on the product quality. In a study conducted by NSF International ( see Attachment BB & supra note 25 ) it was determined that when

cement manuf actured from the combustion of hazardous waste fuels is used to construct pipes and infrastructures for water treatment purposes there is no impact on concrete quality or threat to public

health or the environment. It is also discussed in the “Definition of Processing” section of our comments how metals (such as those contained in tires) are vital ingredients for the manufacture of cement and must be added in order to produce a quality product.

As noted above, (hazardous waste burning) kilns have been re quired to perform multipathway human health risk assessments (HRAs). Each HRA included evaluation of a number of organic compounds and metals that were required to be emission tested at each facility. All of the HRAs

demonstrated that there was no unacce ptable health risks associated with the facility emissions as documented by the facilities receiving final permits

37 70 F ed. R eg. 59500.Page 65 of 72 T. Bright

- line Level of Contaminants

, Federal Register page 31883

.

In response to EPA’s request for comment on establishing bright

- line levels of contaminants, PCA disagrees with any action toward establishing bright

- line levels or any other levels aimed at any of the various traditional fuels that are burned; doing so would provide no benefit to the regulated community or human

health and the e nvironment.

The concept of comparative contaminant concentration is inappropriate as applied to non

hazardous byproduct materials used as fuel for energy recovery or for materials used for ingredient value. The same standard that applies to traditional fuels should apply to any new (non

- traditional) fuels regardless of the extent to which they are familiar or widely used. The fact that certain fuels have been traditionally used does not make the levels of contaminants in them an appropriate standard. S imilarly, the fact that certain fuels have not been traditionally used should not exclude them from being used, even if some of their levels of contaminants are higher than traditional fuels. A comparison process would be unnecessarily costly and impracti cal (note this is not a one time analysis; rather an opportunity for new alternative fuels is an ongoing process).

Further, requiring that the constituent concentrations of these materials not be “significantly higher” than the fossil fuels they replac e is misguided since emissions, which is the real issue at hand

,

are already controlled under the Clean Air Act ( § 112 standard for manufacturers). Indeed, that is the purpose of § 112

– to require sources to control HAP emissions that are related to the specific manufacturing processes.

Whether those materials are regulated under § 112 or § 129, the emissions will be regulated and owners/operators will need to comply with pertinent emission limits that will have been established with consideration of pr otection of human health and the environment. The cement industry has previously shown that a wide range of fuels can be utilized with essentially complete destruction of organic HAPs. Further, risk results mentioned above demonstrate the lack of impact on human health and the environment based on over two decades of study. As noted in each study, for organic constituents, the environmental impacts are predominantly orders of magnitude lower than health based thresholds and thus do not pose a health risk concern. Most metals included in risk studies also have a negligible impact on any potential health risks.

As a final but critical point with respect to the cement industry, imposing these types of requirements would also result in elimination of some (and potentially significant quantities of ) materials from use as legitimate alternative energy or ingredient sources, against the intended national goals of energy independence. Similarly, use of a comparable fuel approach or equivalent concentrations ap proach is detrimental to continued/increased useful utilization of byproduct materials that can avoid increased fossil fuel use and the associated environmental impacts.

Therefore, our conclusion is that these rules are inappropriate, arbitrary and dupl icative of Clean Air Act regulations and permits already in place, do not provide any improved environmental benefit and discriminate against the use of non

- traditional fuels. All qualifications should be on a case

- by

- casePage 66 of 72 basis, allowing for flexibility in each facility’s determination process in accordance with existing regulations.

U. Comparison of Total Constituents, Definition of “Comparable” Federal Register p age 31883

.

EPA requested comments on basing a comparison on total constituents, and the defi nition of “comparable

. ”

PCA reiterates that we disagree with any action toward establishing bright

- line levels or any other levels for contaminants that are aimed at any of the various traditional fuels that are burned; doing so would provide no benefit t o the regulated community. As described above, we do not believe that a comparison of constituents is appropriate. Further, c riterion for contaminant levels per Btu would also be impractical and unrelated to protecting human health and the environment. Generally, non

- hazardous secondary materials used as fuels will be similar or lower in heat value, so the normalized basis would not be appropriate. With regard to the term, “comparable,” EPA attempts to define the term by using the actual word “comparabl e” in its definition ( 75 F ed. R eg. 31856). Such usage does not clarify what is actually meant by the term. PCA points out that the term “comparable” should not be solely interpreted as “equal” or “same .” The term comparable can also mean “similar”, “hig her” or “lower.”

Furthermore, EPA attempts to justify the criterion for contaminant levels in the description of legitimacy criteria ( 75 F ed. R eg. 31882). In the text, EPA states that establishing such a criterion is necessary to ensure that the non

- haz ardous secondary material is not being burned for disposal. This implies that because the contaminants may be different, then the material cannot possibly be a valuable fuel. This reasoning is flawed and PCA objects to this rationale by EPA. There are n umerous examples

of so

- called traditional fuels that exhibit variability with respect to certain constituents. For example, there is plenty of sulfur variability in coal and limestone. Another example is the difference in mercury

content found in coal an d coke

. Data showing the type of variability in “traditional” fuels is presented

elsewhere in our comments. Using an alternative fuel as an example, plastic

- derived fuel has much lower mercury content than coal. PCA believes EPA’s logic is flawed becaus e it would imply

– in the

case of coal

– that the material is being burned for disposal purposes. EPA goes on to discuss how constituents must be comparable to guard against increased risk of adverse effect on human health and environment resulting from e missions. These issues are already addressed through the air permitting program where facilities already have to obtain air quality regulatory approvals to use alternative materials. Further, the cement industry, as described above, has demonstrated cons istently that the use of alternatives does not adversely impact human health and the environment

.

V. Qualitative Comparison (Emissions ), Federal Register page 31883

.

EPA also requests comment on a qualitative approach to comparison, taking into account the f ocus on emissions versus fuel contaminant inputs.

Although the intent of this qualitative approach certainly makes more sense than the other approaches for a comparison, PCA also believes this action is not necessary. Again, the cement industryPage 67 of 72 emission s limits already contemplate a wide range of fuels and raw materials in the inherent manner by

which the LLL MACT standards have been established.

W. Useful Contribution, Federal Register page 31884.

EPA requested comment on quantitatively defining how much of the non

hazardous secondary material must provide a useful contribution.

PCA objects to the establishment of limits. Our alternate material programs have been used for decades, and are driven by cement quality criteria that are a normal part of manuf acturing. The industry cannot afford to jeopardize our product by using alternate materials that negatively affect cement quality , as we are ultimately responsible to supply a quality product to our customers

. It is important for EPA to recognize that th is applies to fuels as well as ingredients, for (unlike boilers) in a p ortland cement kiln the fuels and ingredients are all inserted into the same manufacturing device where the clinker product is produced. Therefore, if the non

- hazardous secondary mater ial can be used safely and produce products that have continually been shown safe for public use, then the actual content of the useful components is irrelevant.

The Agency should not “quantitatively define how much of the non

- hazardous secondary

materi al must provide a useful contribution, or alternatively, how much constituents or components in a

non

- hazardous secondary material there would need to be, before the material would not be considered to provide a useful contribution.” In most cases, a NHSM has several contributing components, and the ability to use th e material components is depende nt on the manufacturing or equipment type. For example, as the cement industry utilizes major raw material constituents and minor constituents to manufacture qu ality cement, those specific components are typically fit together using a variety of

materials

. The traditional use of raw materials to supplement the quarried calcium and silica sources come from a variety of materials that have the necessary chemical c ontribution for that process need. The cement chemist is responsible for using materials that are stored on

- site, supplemented by alternative materials, to proactively determine which materials are used to meet quality needs.

The following are examples of common alternative raw materials that contain more than one constituent necessary to manufacture cement and in various concentration ranges:

Material Calcium

Oxide Aluminum

Oxide Iron Oxides Silica Oxide

Waste refractory 5

– 15% 40

– 50% 0.5

– 1.5% 3 0

– 40% Paint sludge 5

– 15% 5

– 10% 0

– 25% 5

– 10% Steel plant slag 1

– 2% 0

– 0.5% 90

– 95% 1

– 2%

Waste alumina 0

– 1% 95

– 98%

- 0

– 1%

Acknowledging that various industries/equipment have differing needs, it is also unclear what

standard would be used to set a limit even if the useful contribution was measurable. The fact is, the incentive of using a NHSM is that it does provide a useful contribution. It is in the user’s best interest to maximize that useful contribution aside from any other incentives or disincentives that may or may not exist. Therefore, PCA is against quantitatively defining what constitutes a “ useful contribution .”Page 68 of 72 X. Contaminant Comparison

- Ingredients, Federal Register p age 31885

.

EPA requests comment on establishing a c omparison method for contaminants in ingredients, where the approach would address comparing contaminants in the product not being significantly higher than “traditional” product.

PCA opposes setting limits of contaminants in ingredients. As described above, our industry is already regulated on the emissions at the exhaust point as opposed to the content of the material going into the feedstock or the product. Cement manufacturing facilities operate in compliance with the Clean Air Act standards as per mitted through the Title V program which includes the Federal MACT standards and the full state implementation of the Clean Air Act. The results of facility risk studies are consistent with EPA’s comment in the preamble; “. . . in a recent Report to Congr ess that addressed the use of these secondary materials as ingredients in cement and concrete applications, the overall conclusion reached with respect to the perceived safety health risk barriers was a positive one, in that the risk analyses did not ident ify significant risks to human health and the environment associated with these

uses.”

The burden of testing and deciding if the contaminants contained in a NHSM should be left to the current manufacturing and regulatory processes through our ongoing s ustainability programs, and not subject to standards set forth in this regulation. The ASTM cement quality standards guide the operations of cement manufacturing, and making a quality product is the absolute goal of every

manufacturer.

Portland cement i s manufactured to meet strict chemical and performance specifications under such organizations as ASTM and AASHTO. These specifications dictate, to a large degree, the ingredients that can be used in cement manufacturing. There are a wide range of raw ma terials and fuels that can be used to meet cement manufacturing quality objectives. The levels of contaminants in these traditional raw materials and fuels can vary significantly. These variations occur within material taken from the same source (e.g. si ngle quarry) and also between multiple sources. For the purpose of comparing levels of contaminants found in NHSMs with levels found in traditional materials, the

NHSM contaminant should be allowed to be compared to multiple sources of the traditional raw materials that are available across the market to the facility. Such a comparison should be allowed regardless of whether or not the traditional material is being used by the facility at that time of the comparison. Doing so would allow for the variabil ity of constituent levels to be properly accounted for when going through the comparison process. Variability needs to be considered because multiple sources of a single traditional material are typically available to a facility. Furthermore, the natural variability inherent in sampling events needs to be considered.

Y. Alternative Approach, Federal Register page 31886.

EPA requests comments on the alternative approach presented in the preamble. In response, PCA does not agree with the alternative EPA has p resented.Page 69 of 7 2 As expressed throughout PCA’s comments, we do not agree with EPA’s approach to use

the Solid W aste rule to unnecessarily “label” the wide range of alternative fuels and ingredients that have and can continue to be used in the cement industry. EPA should finalize the rule in a manner that recognizes the cement industry’s operating approach and not further burden the

process. We therefore do not agree with the alternative approach.

IX. CONCLUSION

In closing, PCA’s member companies support efforts t o increase our nation’s use of safe and compatible energy efficient alternative fuels and raw materials. PCA’s members have been on the forefront of undertaking voluntary efforts to contribute to a cleaner environment through the use of scrap tires, used motor oils, petroleum sludge and other waste materials as alternative fuels and raw materials in the production of cement. Many cement plants are capable of beneficially utilizing a wide range of non

- hazardous secondary materials including both

alternativ e ingredients and fuels.

However, we reiterate that in implementing RCRA, EPA must balance the statute’s two primary goals of (1) protecting human health and the environment and (2) encouraging reuse and recycling. The second goal is particularly critic al in the Subtitle D context. Yet EPA openly recognizes that its proposal, coupled with the proposed CISWI rule, would result in the landfilling of great volumes of non

- hazardous secondary materials now being beneficially

reused. This would increase the burden upon the existing landfill capacity in the US and change the timeline for requiring new landfill capacity. EPA has not attempted to justify its anti

reuse/recycling proposal on grounds that such an approach is necessary to protect human health

and the environment. As EPA clearly has discretion under RCRA and the case law to structure its Subtitle D proposal in a manner that would promote reuse and recycling without impairing health and environmental protection, we believe EPA’s proposal is fatally arbitrary and capricious and a failure of reasoned decisionmaking.

For all of the reasons developed throughout these comments, we urge EPA to take the following basic steps in structuring its final rule:

a. Remove all portions of the rule that would pur port to regulate use of non

- hazardous secondary materials as ingredients;

b. With respect to non

- hazardous secondary fuels, make numerous revisions that would encourage rather than discourage reuse and recycle by p ortland cement kilns, such as

–

(i) provide that materials suitable for use as fuel without the need for processing are not solid wastes when combusted even if they have previously been discarded;

(ii) provide that if “processing” may be needed to make a discarded material

suitable for us e as fuel, that material will not be a solid waste when combusted so long as the material has been rendered suitable for use as fuel in the type of device in which it will be used (thus, neither shredding nor metal removal would be necessary for whole tire s in p ortland cement kilns);Page 70 of 72 c. Delete the “legitimacy criteria” at least as applicable to p ortland cement kilns.

* * * * * We appreciate the opportunity to provide comments on the important questions related to this proposed rulemaking by the Agency . We look forward to work ing with the Agency as consideration of these issues continues. Please do not hesitate to contact us should you have any questions regarding PCA’s perspectives on this matter. We can be reached at (202) 408

- 9494.Page 71 of 72 L IST OF ATTACHMENTS TO PCA’S COMMENTS

Attachment A Weston, Energy Conversion, chapter 3, p. 85, http://www.personal.utulsa.edu/~kenneth

- weston/chapter3.pdf.

Attachment B 1989 Senate Report Excerpt

Attachment C 1987 Senate Report Excerpt.

Attachment D E arthjustice Petition January 30, 2001.

Attachment E Earthjustice 2004 Comments

Attachment F NRDC Brief, NRDC v. EPA 489 F.3d 1254 (2007)

Attachment G Letter from OSWER Assistant Administrator

Attachment H PCA (Trinity) AFR CAA permitting manual

Att achment I Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap Tire and Rubber Users Directory

Attachment J Report of Pennsylvania Joint State Government Commission, Waste Tire Recycling and Reuse In PA, Oct. 2007

Attachment K Cement Sector Trends in Beneficial Use of Alternative Fuels and Raw Materials, Revised Draft October 2008, posted on EPA’s website at http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html.

Attachment L Scrap Tire Markets In The United States, 9th Biennial Report, May 2009,

Rubber Manufacturers Association.

Attachment M The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal, World Cement, December 1992.

Attachment N North American Cement Industry, Annual Ye arbook 2009, Portland Cement Association, ER395

, Table 44

Attachment O US & Canadian labor

- Energy Input Survey, 2010, Portland Cement

Association

Attachment P Air Emissions Data Summary for Portland Cement Pyroprocessing Operations Firing Tire

- Derived F uels, John Richards; David Goshaw; Danny Speer, and Tom Holder, PCA, 2008.

Attachment Q Tire

- Derived Fuel Frequent Questions, http://www.epa.gov/wastes/conserve/materials/tires/faq.htm

Attachment R Health Consultation

- CEMEX, Incorporated , Lyons, Boulde r County, Colorado, Agency for Toxic Substances and Disease Registry, Table 2, Page

A

- 3.

Attachment S Air Emissions From Scrap Tire Combustion , EPA

- 600/R

- 97

- 115, October

1997.

Attachment T NOx Control Technologies for the Cement Industry , U.S. EPA, Offic e of Air Quality Planning and Standards, Ozone Policy and Standards Group, September 19, 2000.Page 72 of 72 Attachment U Management of Scrap Tires, EPA website, http://www.epa.gov/wastes/conserve/materials/tires

Attachment V Mojave Desert Air Quality Management Distr ict, Rule 1161(C)(1)(a)(iv),

Portland Cement Kilns.

Attachment W Proposed Rulemaking, 25 PA. Code Chs. 121, 129 and 145, Control of NO

x Emissions from Cement Kilns, 38 Pa.B. 1838, April 19, 2008.

Attachment X South Coast Air Quality Management District, Best Available Retrofit Control Technology Assessment, TXI Riverside Cement, Revised Draft, August 8, 2008.

Attachment Y South Coast Air Quality Management District, Final Environmental Assessment: Proposed Amended Rule 1112.1

– Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI, November 13, 2009.

Attachment Z Industrial Sector Integrated Solutions Model , EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA

- HQ

- OAR

- 2002

- 0051

- 2007.pdf

Attachment AA Material s Characterization Paper In Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste

– Scrap Tires, April 6, 2010.

Attachment BB “A Comparison of Metal and Organic Concentrations in Cement and Clinker

Ma de with Fossil Fuels to Cement and Clinker Made with Waste Derived Fuels,” NSF International (1993) Attachment __.

Attachment CC USGS Nat'l Coal Resources, US Coal Quality Database, available at: http://energy.er.usgs.gov/coalqual.htm

Attachment DD TNR CC Air Emissions Associated with the Burning of Tire

- Derived Fuel, Waste Tire Recycling Program, March 2001

Attachment EE Stephen Smith, P.E. “Recycling Waste Treated Wood as a Fuel,” April 2005

Attachment FF RMA STMC Scrap Tire Characteristics, availabl e at http://www.energyjustice.net/tires/files/scrapchn.html

Attachment GG Report on Sustainable Manufacturing, PCA, 2009