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rjg reg g @ s id ley.com (202) 736 8581 BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON LOSANGELES

FOUNDED 1866 NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGION, D.C.

November 

### 5,2010



### By Overnight 

### Mail and Facsimile

The 

### Honorable Lisa P. Jackson 

### Administrator U.S. Environmental Protection 

### Agency 1200 Pennsylvania Avenue, 

### N.V/. Washington, D.C. 20460 Fax 

### No: (202) 501-1450


### Mr. Keith Barnett 

### Office of

### Air Quality Planning and Standards Sector 

### Policies and Programs 

### Division, Metals and 

### Minerals Group 

### (D243-02) Environmental Protection 

### Agency Research 

### Triangle Park, 

### NC 27711 Fax 

### No: (919) 541-5450 

### Mr. Richard Ossias Associate General Counsel 

### for the

### Air and Radiation 

### Law 

### Office Office 

### of General Counsel 

### (Mail Code2344{) Environmental Protection 

### Agency 1200 Pennsylvania 

### Ave 

### NW Washington, 

### DC 20460 Fax 

### No: (202) 566-0070

Re: 

### Petition

### for Reconsideration and Request 

### to Stay the Rules Made Pursuant 

### To Section 

### 307(dXÐ(B) of the Clean 

### Air Act

Dear 

### Administrator Jackson and Messrs. 

### Barnett and Ossias:

Attached please 

### find "Petitionfor Reconsideration and Request 

### to Stay the Rules Pending Reconsideration 

### for the 

### Final Rule 

### for National Emission Standards 

### for Hazardous 

### Air Pollutants 

### from the Portland Cement 

### Manufacturing Industry, Docket 

### No. 

### EPA-HQ-OAR-2002-0051, and the 

### Final Rule 

### for Standards 

### of Performance 

### for Portland Cement Plants, Docket 

### No. 

### EPA-HQOAR-2007-0877," submitted pursuant 

### to Section 

### 307(dX7XB) of the Clean

### Air Act.

Sidley Austin LLP is a ¡¡mited Iiabi¡ity partnersh¡p practicing in affìliation w¡th other Sidley Aust¡n partnersh¡ps,r^l slDtEY AUSTIN ttP 

# STDLEYI

The 

### Honorable Lisa P. Jackson 

### Mr. Keith Barnett 

### Mr, Richard Ossias Page 2

Should you have any questions, please do not hesitate 

### to contact the undersigned.

Attachments

### November 

### 5,2010

Honorable 

### Lisa P.Jackson 

### Office of the 

### Administrator Environmental Protection 

### Agency Room 3000,

### Ariel Rios 

### Building 1200 Pennsylvania 

### Ave, 

### NW Washington, 

### DC 20460


# cc: Keith Barnett 

### Office of

### Air Quality Planning and Standards Sector Policies and Programs 

### Division, Metals and 

### Minerals Group 

### (D243-02) Environmental Protection 

### Agency Research 

### Triangle Park, 

### NC 27711

Richard Ossias Associate General Counsel 

### for the

### Air and 

### Radiation Law 

### Office Office of General Counsel 

### (Mail Code23441t) Environmental Protection 

### Agency 1200 Pennsylvania 

### Ave 

### NV/ 'Washington, 

### DC 20460



### PnurroN FoR RECoNSIDERATIoN AND 

### Rnqunsr 

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### rnn Rur,us 

### PnNorxc RncoNsronnnrroN FoR
Tnn 

## Fn¿¡ RulB 

### ron N,q,rroNAL 

### EMrssroN STANDARDS FoR HAZARDoUS 

### Arn 

### PollurANTS

FRoM 

### run Ponrr,AND CEMENT MANUFAcTURTNG 

### INousrRv

Docket No. 

### EPA-HQ-OAR-2002--005 

## I

and
THp 

### FlNel 

### Rulp FoR STANDARDS oF PERFoRMANCE FoR PoRTLAND CEMENT 

### PI-eNrs Docket No. 

### EPA-HQ-OAR-2 007

### 487 7



# L lntroduction

Pursuant 

### to Clean 

### Air Act Section 

### 307(dX7XB), the 

### Portland Cement

### Association and the 

### petitioners identified 

### in Section 

### II (collectively 

### "PCA") petition the 

### Environmental Protection 

### Agency 

### ("EPA") to reconsider and stay the 

### implementation of the 

### "National Emission Standards 

### forHazardous 

### Air Pollutants 

### Fromthe Portland Cement 

### Manufacturing Industry and Standards

### of Performance 

### for Portland Cement 

### Plants," 75 Fed. 

### Reg. 54,970 (Sept,

### 9,2010) (individually,

the 

### "NESHAP Rule" and the "NSPS 

### Rule"; collectively the "Rules").1



### In 

### finalizing the 

### NESHAP Rule the NSPS Rule, 

### EPA made a number 

### of dramatic and unforeseeable changes to the scope

### of the 

### Rules. The 

### Agency went so

### far as

### to include detailed 

### regulations on an issue 

### in the

### final NESHAP Rule 

### for which 

### it had offered no standards at

### all in the proposed 

### rule. Such 

### regulatory surprises

### in aftnal rule effectively bypass the notice and comment procedures and

### violate established Clean 

### Air Act 

### ("CAA" or "the 

### Act") and 

### Administrative Procedure 

### Act ("APA") provisions intended 

### to ensure stakeholders have both 

### fair notice andthe

### opportunity to comment onthe

### final rules that

### will impact 

### them. Further, the new 

### provisions are 

### not a 

### "logical outgrowth" of the proposed 

### rules. See e.g., 

### Envtl. Integrity Project
v. 

### EPA, 425 F.3d 

### 992,996 (D.C. Cir. 

### 2005). Given that interested stakeholders, 

### including PCA, 

### did not have a

### full and

### fair opportunity to comment on such changes, 

### EPA is required 

### to grant reconsideration pending 

### further notice and comment pursuant 

### to 

### CAA Section 

### 307(d)(7)(B),42 U.S.C. $

### 7607(dX7)(B), and

### to administratively stay these Rules pending 

### reconsideration. As described more

### fully below, these changes include:



### Impacts of the 

### CIS'WI and ú6solid

### waste" 

### definition rules onthe 

### NESHAP standards: 

### After the close 

### ofthe comment 

### period on the proposed 

### NESHAP Rule, 

### EPA proposed separate but interrelated rules regulating 

### Commercial and 

### Industrial Solid Waste 

### Incineration 

### ("CISV/I") units and 

### defining 

### "solid waste." These proposed 

### CISWV"solid waste" 

### definition rules eviscerate the statistical 

### underpinning for the 

### NESHAP 

### Rule.Any shift 

### in classification offacilities from NESHAP- to ClSWl-regulated facilities undercuts the

### critical calculations that 

### EPA relied upon 

### to establish standards, 

### floors, and emissions 

### limits in the 

### NESHAP 

### Rule. In fact, 

### virtually every source that 

### EPA used

### to establish 

### MACT 

### "floor" emissions 

### limits would 

### likely be categorized as a

### CISWI source, rather than a 

### NESHAP source, under the proposed 

### CISWI/"solid waste" 

### definition rules. 

### It is

### fundamentally improper 

### for EPAto issue a

### NESHAP Rule that ignores

### two other proposed rules that undercut the basis 

### for the emissions 

### limits in the 

### NESHAP 

### Rule. Infact, 

### in both its proposed and 

### final NESHAP rule preambles, 

### EPA committedto reassess the 

### NESHAP database once the 

### CIS'WV"solid waste" 

### definition rules are 

### finalized. EPA must 

### accordingly grant reconsideration 

### of the 

### NESHAP Rule and 

### provide 

### fair notice and 

### opportunity 

### for comments once the impacts 

### of the 

### CISWI and solid waste 

### definition rules are

### fully assessed. 

### Regulation of 

### clinker storase piles: In the proposed 

### NESHAP Rule, 

### EPA requested 

### information about open 

### clinker storage piles 

### but did not propose any regulations addressing such storage

### piles. In the

### final Rules, 

### EPA issued

## - for the 

### firsttime

## - comprehensive and 

### potentially very expensive regulations governing 

### clinker storage 

### pile emissions. Stakeholders never had an

### opportunity to review

I Since PCA's concerns on reconsideration associatedwith these two rules overlap on key topics and because EPA's justifications for aspects of the twofinal rules are intertwined and published in a single Federal Register notice, PCA is submitting one petition for reconsideration covering both rules. However, PCA recognizes that there aretwo separate rulemakings at issue and does not intendto waive any arguments regarding whether the rules be addressed individually or collectively by EPA or the Courts.or comment on those onerous regulations before they were 

### ftnalized. EPA is obligated 

### by the

### CAA to 

### provide such an

### opportunity. 

### Startup. shutdown. and 

### malfunction standards: As 

### with the

### clinker storage 

### pile regulations, 

### EPA ftnalized specific standards 

### for startup, shutdown, and 

### malfunction 

### in an approach 

### fundamentally different from that proposed, and 

### which is 

### not a 

### logical outgrowth of the proposed 

### rule, depriving stakeholders

### of any 

### meaningful notice and comment 

### opportunity. Further, 

### EPA promulgated a new and 

### unwieldy procedure 

### for asserting an

### affirmative defense 

### for malfunctions. EPA is obligated 

### to reconsider these 

### significant changes, 

### Significantly reduced 

### particulate matter 

### limits: After issuing the proposed rules, 

### EPA gathered 

### new data and recalculated 

### dramatically lower particulate matter 

### limits for the

### final Rules that are far 

### beyond arly 

### ruîge identified in the 

### proposal. EPA did not makethat 

### new data available 

### to the 

### public before the 

### rule
was

### finalized, and 

### PCA was 

### not able 

### to comment on the adequacy 

### of the data. The dramatic 

### reduction in the particulate matter 

### limits occurred because 

### EPA's
new datawas 

### selectively gathered 

### from new 

### facilitieswith new baghouses, thereby 

### artificially skewing the emissions 

### limit calculations. EPA must 

### provide stakeholders

### with an

### opportunity to comment on its new data, 

### its data 

### collection approach, and the 

### resulting emissions 

### limits. 

# o Other issues: 

### PCA has also 

### identified a number 

### of other 

### significant changes 

### in the

### final Rules that raise 

### practical implementation and 

### monitoring problemé. These changes are summarized 

### in a

### matrix attached as 

### Exhibit 1,

These changes 

### drastically impact core aspects, and thefundamental 

### workability, of the 

### Rules. As a result, 

### PCA requests 

### EPA's reconsideration 

### of several aspects

### of the Rules pursuant 

### to Section 

### 307(dX7XB) of the Clean

### Air Act,

### with acorresponding stay 

### ofthe 

### effective date

### of the 

### Rules. PCA specifically requests that 

### EPAtake 

### all necessary and appropriate steps 

### to stay and defer the compliance deadlines and other 

### provisions of the Rules 

### until the outcome 

### of the reconsideration process.
We urge 

### EPAto carefully consider the 

### practical impactthat these changes crafted 

### without adequate 

### industry input may 

### have. PCA expects the Rules

### to cost $3.4

### billion to 

### implement andmayforce almost 

### twenty plants

### to shutdown 

### by 2013,

### with the concomitant loss 

### ofjobs and 

### detrimental impact 

### to local and 

### regional economies at a

### time when the 

### nation is 

### working hard 

### toward economic 

### recovery. The closure 

### of many plants

### will not only have signif,rcant employment and economic impacts, 

### but collateral environmental impacts as

### well, Plant closures 

### would result 

### in substantial increases 

### in imports from non-U.S. plants that are not subject

### to stringent 

### environmental standards and that must ship

### their cement longer, emissionsladen 

### distances. To avoid the

### worst of these results, 

### EPA should take every 

### opportunity to
ensure that its rules do not unnecessarily burden the cement industry.


### For 

### all of these reasons, 

### PCA urges 

### EPA to reconsider the Rules, stay the effectiveness 

### of the Rules pending reconsideration, and

### to stay and deferthe compliance deadlines and other 

### provisions ofthe Rules 

### until the outcome 

### ofthe reconsideration process.

# II. The Petitioners' 

### Interest in the Rules

The Portland Cement 

### Association represents the 

### United States and Canadian cement 

### industry. It conducts market development, engineering, research, education, and 

### public affairs 

### programs. The Portland Cement 

### Association is keenly interested 

### in these Rules, as its members 

### will be

### directly subject 

### to the requirements 

### of the 

### Rules. The Portland Cement 

### Association's U.S. membership consists

### of 45 companies 

### operating 106 plants 

### in 35 states and 

### distribution centers 

### in all 50states. 

### Portland Cement

### Association members account 

### for more than95Yo 

### of cement-making capacity 

### in the 

### United Statesand 100% 

### in Canada. The Portland Cement 

### Association has worked 

### with EPA 

### for many years on various 

### environmental issues, 

### including applicable 

### NESHAP and NSPS regulations. The 

### portland cement 

### industry is committed to outstanding 

### environmental stewardship and 

### looks forward to continuing towork 

### with EPA to
ensure defensible and

### workable regulations. As part 

### of its environmental 

### commitment, the cement 

### industry has 

### improved energy 

### efficiency by 37.6% since 

### 1972. To improvethe 

### industry's energy 

### efficiency, the Portland CementAssociation member companies partnered 

### with EPA in the development 

### of an Energy Performance 

### Indicator (EPI) that allows plantsto compare 

### their performance to

### that ofthe entire 

### industry. The

### tool is intended 

### to help cement 

### plant operators 

### identify opportunities to improve energy 

### efhciency, reduce greenhouse gas emissions, conserve 

### conventional energy supplies, and reduce 

### production costs. Further, f,rnding ways 

### to reduce both energy needs and reliance on

### fossil fuels 

### is atop 

### priority for cement 

### companies. Although coal, 

### petroleum coke, and other 

### fossil fuels have been

### traditionally burned 

### in cement 

### kilns, many cement companies have turned 

### to energy-rich alternative fuels. Today, many plants 

### meet20-70% oftheir energy requirements 

### with alternative 

### fuels. And many 

### of these 

### alternative fuels are consumer wastes or byproducts 

### from other 

### industries. Recovering 

### their energy value 

### in cement 

### making is a safe and proven 

### form 

### of energy 

### recovery. This type

### of energy recovery conserves 

### valuablefossil fuels 

### for future generations

### while safely destroying wastes that 

### would otherwise bedeposited 

### in 

### landfills.
In addition 

### to being members 

### of the Portland Cement

### Association, the

### following companies 

### individually 

### join as

### petitioners 

### in support 

### of this 

### Petition 

### for Reconsideration and the statements made herein:



### Ash Grove Cement Company 

### CEMEX,Inc.
Holcim (US) Inc. Lafarge 

### NorthAmerica Inc. Lehigh Cement Company 

### LLC

Riverside Cement Company


### TXI Operations, 

### LP

# III. Standards

### for reconsideration and st4y

Section 

### 307(dX7XB) of the

### Act provides 

### for EPA's reconsideration 

### of a

### CAA rule upon 

### objection by a

### petitioner. See42 

### U.S.C. ç

### 7607(d)(7XB). EPA must grant reconsideration when the 

### petitioner:
[C]an demonstrateto the

### Administrator that 

### it was impracticable to

raise 

### [an] objection [during the 

### periodfor public comment] or

# if the grounds

### for such 

### objection arose after the 

### periodfor public comment

. .. and 

### if such objection 

### is

### of central relevance

### to the outcome 

### ofthe rule, 

## Id. ln such asituation, reconsideration is mandatory, asthe 

### CAA commands that 

### EPA"shqll
convene a proceeding 

### for reconsideration 

### ofthe 

### rule and 

### provide the same procedural 

### rights as 

### would have been afforded had the 

### information been available atthe

### time the rule was proposed," 

### Id. (emphasis 

### added). Further, 

### EPA is authorized 

### to stay the effectiveness 

### of rules promulgated under the

### CAA. See id.


### This Petition unmistakably satisfies the standard 

### for reconsideration. EPA included
numerous 

### novel provisions in the 

### final Rulesthat 

### EPA did not specifically address

### in its 

### rulemaking 

### proposal. Thus,the 

### provisions in the

### final Rules came as asurprise and 

### PCA was 

### not affordedthe 

### opportunity to comment onthose elements

### ofthe 

### Rules. 

### It was therefore 

### impracticable 

### for PCA to raiseobjections tothese 

### provisions during the 

### public comment period, and reconsideration is necessary 

### with anaccompanying 

### stay. See 42 

### U,S.C. $

### 7607(dX7XB).
Further, 

### EPA's inclusion of significant new issues 

### in the

### final Rules 

### isarbitrary and capricious because none of the 

### new additions are

### logical outgrowths 

### of the

### Agency's proposed 

### rule. The 

### D.C. 

### Circuit hasadmonished that, 

### "[g]iven the strictures 

### of notice-and-comment 

### rulemaking, an agency's proposed 

### rule and 

### its

### final rule may 

### differ only insofar asthe 

### latter is a 

### 'logical outgrowth' of the

### former." EnvtL 

### Integrity Project v. EPA, 425 

### F.3d 992,996 (D.C. Cir. 

### 2005) (stating that 

### "[t]he test is whether a new 

### round of notice and comment 

### would provide the 

### first opportunity for interested parties 

### tooffer comments that could persuade the agency to 

### modify its 

### rule"). A "final rule is a

### 'logical outgrowth' of aproposed 

### rule only 

### if interested parties should have anticipated that the change was possible, andthus reasonably should have 

### filedtheir comments onthe subject during the notice-and-comment 

### period." ,Id (citations 

### omitted). Interested parties should not have 

### to 

### "divine the agency's unspoken thoughts," 

### nor should the

### final rule be 

### "surprisingly distant" from theAgency's 

### proposal. 

### 1d (citations 

### omitted). This rule exists becausethe 

### public "must be able to

### trust an agency' s representations about

### which particular aspects

### of its proposal are 

### up

### for consideration." 

### Id. at 998. Consequently, courts

### will strike down agency action that seeks

### to "use the 

### rulemaking process to 

### pull asurprise 

### switcheroo on regulated 

### entities." 

## Id. EPA's 

### final Rules are

### exactly such a 

### "switcheroo," and 

### EPA must grant reconsideration and stay 

### implementation of the Rules.
Further, 

### EPA did not adequately 

### justify or explainwhy 

### it promulgated the 

### specific regulations that 

### it included in the

### final Rules, as

### it is required 

### to

### do. See

### CAA $

### 307(dX6)(A) ("The promulgated 

### rule shall beaccompanied 

### by
, . .

### (ii) anexplanation 

### of the reasons 

### for any 

### major changes 

### in the promulgated 

### rule from the proposed 

### rule."); see also 

### Motor Vehicle Mfrs.

### Ass'n v. State 

### Farm 

### Mut Auto. Ins. Co.,463 U.S. 29,43 (1983) (an agency must 

### "articulate a



### satisfactory explanation 

### for its action 

### including a 

### rational connection between thefacts

### found and the choice made." 

### (internal quotation 

### omitted)). EPA's failures to 

### provide adequate 

### justification and explanati onsfurther j

### ustify reconsideration. Pending reconsideration, the

### Administrator should staythe 

### application of the 

### NESHAPS and NSPS 

### Rules, Under the

### APA, "[w]hen anagency 

### finds that

### justice so requires, 

### it may postpone the 

### effective date 

### of action taken 

### by it, pending 

### judicial 

### review." 5 

### U.S.C. $

### 705, EPA has applied 

### this standard 

### to Clean 

### Air Act cases.' The standard 

### for such an 

### administrative stay is 

### significantly different from the standard 

### for a stay used by the courts because 

### it does not require
ademonstration 

### of irreparable 

### harm. This is clear

### from the

### text ofthe

### APA:

When anagency 

### finds that

### justice so requires, 

### it may postpone the 

### effective date

### of action taken 

### by it, pending

### judicial 

### review. On such 

### conditions as may be required and

### tothe extent necessary to prevent irreparable 

### injury, the 

### reviewing court

. .

## . may issue 

### all necessary and appropriate process to postpone the 

### effective date

### of
an 

### ageîcy action or

### to preserve status or 

### rights pending 

### conclusion of the 

### review proceedings.
Thus, the

### APA deliberately contrasts

### what is required 

### for an

### administrative 

### stay-'Justice so 

### reQuires"-and a

### judicial stay-"conditions aSmay be 

### required" and 

### "irreparable harm," 

### Similarly, 

### CAA Section 

### 307(d)(7)(B) authorizes an 

### administrative stay, 

### but does not premisethat stay on a

### finding of irreparable 

### injury. Such differences must be

### given effect,3 so there is no irreparable harm requirement 

### for an

### administrative 

### stay. Given the 

### potential impact of these 

### regulations on the cement 

### industry, 'Justice so 

### requires" that 

### EPA stay the Rules andtakeother necessary and appropriate steps 

### to defer the compliance deadlines and other 

### provisions of the Rules 

### until the outcome 

### ofthe reconsideration process, 

# IV. Grounds 

### for Reconsideration


### A. of the 

### NESHAP 

### Rule's comment 

### period.fundamentally undermine and alter the factual basis 

### for the 

### MACT rule 

# l EPA has proposed 

### CIS'WI/"solid waste"

### definition rules 

### which may result 

### in a number 

### of portland cement sources 

### being categorized as

### CISV/I units rather than 

### NESHAP units



### ' See, ".g., Ohio; Approval and Promulgation of Implementation Plans,46 Fed. Reg. 8,581, 8,582 n.1 (Jan.27, l 98 l).
t "¡Wlhere Congress includes particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely inthe disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (quotation marks and citation omitted; alteration in original).

### At the same 

### time that 

### EPA promulgated the 

### hnal NESHAP Rule, the 

### Agencywas 

### in the

process 

### of promulgating apair of rules that

### fundamentally undercut the calculations 

### EPA usedto set the 

### NESHAP Rule's emission 

### limits. The core 

### calculation

### for establishing 

### NESHAP emissions 

### limits is thedetermination 

### ofthe

### MACT 

### "floor." This calculation isdirectly tiedto the number 

### of units 

### in a

### particular source 

### category. 

### CAA Section 

### 112(d)(3)(A) calls on 

### EPA to setthe

### floor for existing units

### within asubcategory atthe average 

### level actually achieved by the best 

### "performing" 

### l2 percent or,

### for source categories 

### with fewer than 30 sources, 

### "the average emission 

### limitation achieved by the best 

### performing 5

### sources." Further, the 

### MACT floor for
new sources 

### "shall not be less stringent than the emission 

### control that is achieved in practice 

### by the best 

### controlled similar 

### source." 

### CAA Section 112(d)(3).


### Giventhe calculations demanded 

### by Section 112(dX3), 

### it is crucial that 

### EPA know both 

### how many

## - and

### which particular

## - sources are

### in a source 

### category. 

### If the number 

### of sources 

### that are 

### in acategory changes, then the number 

### of sources needed 

### for the best 

### performing 12 percent necessarily changes. 

### For example, 

### if there are 100 sources 

### in acategory, 

### EPAwould need 

### to look atthe best

### performing 12sources. 

### However, 

### if therewere 

### only 75 sources 

### in the category, 

### EPA

### would only 

### look atthe best 

### performing 9 sour""s.o



### EPA finalized the 

### NESHAP Rule based on the assumption that 

### "all Portland cement 

### kilns [are 

### classified] as

### CAA section 

### l12 sources (i.e., subject to 

### regulation under 

### CAA section 172 

### INESHAP 

### rules])." 75 Fed. Pteg. 

### 54,972. Thus, 

### EPA used every 

### portland cement 

### kiln (other than cement 

### kilns regulated under theHazardous Waste combustor 

### NESHAP) when 

### it calculated the best 

### performing 12 percent 

### of sources. 

### However, as 

### EPA itself recognizes, there is astrong 

### possibility that some 

### of the 

### portland cement 

### kilns

### will be 

### recharacteized not as Section 112 

### NESHAP sources, 

### but as

### CAA section 129(a) 

### CISV/I sources. 

### EPA generally recognized this 

### fact in the proposed and the

### final rule preambles, 

### but did not adjust 

### its calculations 

### to account

### for any 

### potential source category 

### switches. See 74 Fed. Reg. 

### 2l ,138 and 75 Fed. Reg. 54,912 

### ("EPA 

### [] cannot 

### reliably determine atthis 

### time 

### if the non-hazardous secondary materials combusted 

### by cement 

### kilns are

### to be 

### classified assolid wastes, 

### EPA is basing 

### all determinations as

### to source 

### classification on the emissions 

### information now available,



## ... and

### will necessarily continue 

### to do
so 

### until the 

### solid waste

### definition discussed above is

### promulgated"). Further, the Clean 

### Air Act specifies that the 

### NESHAP andthe 

### CISWI rules are

### mutually exclusive; a cement 

### kiln

### will be covered 

### by either the

### CISWI rule or the 

### NESHAP rule, but 

### not 

### both. 

## CAA $ 

### 129(hX2). In the preamble to the proposed 

### CISWI rule, 

### EPA recognizes the statutory requirement that 

### "[c]ement 

### kilns burning solid waste 

### would besubjectto

### this proposed 

### rule, not the applicable 

### NESHAP." 75 Fed, Reg.

### 31,942. Simply put, 

### kilns that aresubject 

### tothe 

### CISV/I rule

### will not be 

### in the 

### "Portland cement 

### manufacturing" source category.


### A number 

### of portland cement 

### kilns may end up 

### being

### CISWI sources as a result 

### of the 

### two rules that 

### EPA is 

### promulgating in the aftermath 

### of the 

### D.C. 

### Circuit's decisionin 

### Natural Resources Defense 

### Council v. 

### EPA,489 F 

### 3d 1250, 

### 1257-61 

### (D.C. 

### Cir.2007). Inthat case, the 

### Court vacated the

### CISWI Definitions Rule, 70 Fed. Reg. 55,568 (Sept.

### 22,2005), which EPA issued pursuant

### to 

### CAA section 

### 129(aXlXD). In response 

### to the 

### Court's invalidation of the

oIf there are fewer than 30 existing sources, then the MACT floor must equal the average emissions limitation achieved by the best-performing five sources in the category. CAA Section I l2(dX3XB).

### CISWI Def,rnitions 

### rule, EPA issued 

### two proposed rules, one 

### ofwhich defines nonhazardous



### "solid waste"for purposes 

### of subtitle 

### D (non-hazardous waste) 

### of RCRA and one 

### ofwhich establishes emissions standards 

### for CISWI 

### units. See75 Fed. Reg. 31844 (June 4,

### 2010) and75 Fed. Reg. 31938 (June 

### 4,2010). Importantly, EPA proposedthe 

### CISWI/"solid'waste" definition rules after the comment 

### period closed on the 

### NESHAP rule,foreclosing any real 

### opportunity 

### for PCAto assess and comment onthe impacts 

### of the 

### NESHAP. Indeed, 

### it was 

### not 

### until EPA proposedthe subsequent 

### CISWV"solid waste" rulesthat that 

### PCA had notice 

### with any real 

### specificity of the number 

### of cement

### facilities that may end up being regulated as

### CISV/I

### facilities. PCA wasquite surprised
at

### just how many 

### facilities EPA's proposed rules 

### would classify as

### CISWI

### facilities. PCA subsequently 

### provided EPA

### with comments 

### critical of the proposed 

### CISWI/"solid waste" 

### dehnition rules and

### their potentially broad 

### impact on the cement 

### industry. See Portland Cement 

### Associations' Comments on 

### FPA's Proposed Standards 

### of Performance 

### for 

### New Stationary Sources and 

### Emission Guidelines 

### for 

### Existing Sources: 

### Commercial and 

### Industrial Solid Waste 

### Incineration Units (Aug. 

### 23,2010) (filed in Docket 

### No. EPA-HQ-OAR-2003-01 I9) 

### (including Attachment 3, 

### PCA Comments 

### filed in Proposed 

### RCRA Rule, dated

### August 3,

### 2010). However, 

### EPA provided no

### opportunity to 

### revisit the 

### NESHAP Rule despite 

### this fundamental midstream change 

### in EPA's analysis.



# 2. EPA must reconsider the 

### NESHAP emissions 

### limit in 

### light of the 

### CISWV"solid waste" 

### definition rules



### EPA cannot have 

### it both 

### ways-charccterize certain 

### facilities 

### for one purpose 

### in one rule andthen recharacterize those 

### facilitiesfor an

### entirely different purpose 

### in a

### different rule in a manner that 

### fundamentally undermines and 

### conflicts 

### with the

### first 

### rule, There can be no debate, the proposed 

### CISWV"solid waste" 

### definition rules evisceratethestatistical 

### underpinning for the 

### NESHAP 

### rule. As EPA recognizes, depending onwhat 

### EPA decides 

### in the

### final rules, a 

### significant number 

### of portland cement 

### facilities could switch from being 

### NESHAP-regulated 

### facilities to CISWI regulated 

### facilities. See 75 Fed. 

### Reg. 54,972. 

### In fact, 

### if the proposed rules
were 

### codified unaltered (a result 

### which PCA opposes), 

### all but one 

### ofthe 

### portland cement 

### facilities that EPA used 

### to setthe

### MACT floors could end 

### up as

### ClSWl-regulated facilities, at least based on the 

### historic operations 

### of those 

### kilns during the periods used

### to generate the data used 

### by EPA in the 

### NESHAP 

### Rule. Clearly, this creates afundamental 

### flaw with the 

### NESHAP Rule, as 

### EPA cannot setthe entire suite of 

### NESHAP emissions 

### limits for portland cement 

### facilities based on emissions data

### from an 

### entirely distinct group 

### of 

### CISV/I facilities not regulated 

### by the 

### NESHAP Rule.

The 

### D.C, 

### Circuit hasalready 

### ruledthat 

### it is inappropriate to promulgate a

### NESHAP rule that is based on calculations that 

### include 

### CISWI 

### units. In 

### Natural Resources Defense 

### Council v. 

### EPA, 489 F 

### 3d 1250 

### (DC 

### Cir. 2007),the 

### Court vacated the 

### NESHAP rule for boilers when 

### it vacated the 

### CISV/I 

### Definitions 

### Rule. The court ruled:

[Since the Court is 

### requiring] EPA to revise the 

### CISWI Definitions Rule..., the 

### Boilers Rule

### will need

### to be revised as

### well because the universe 

### of boilers subject

### to its standards 

### will be

### far smaller and more homogenous after 

### all CISWI units



### ... are removed 

### from

### its coverage. Given the 

### likelihood 

### (if not certainty) that the 

### Boilers Rule

### will change 

### substantially as a result 

### of our vacatur 

### of the challenged 

### "solid waste"definition, we believe the 

### Boilers Rule should bevacated 

### in its entirety and remanded

### for EPA to repromulgate after 

### revising the 

### CISWI 

### Definitions Rule.


### Id. at 1261 

### (citations

### omitted). The court 

### took the dramatic step 

### of vacating the 

### NESHAP boiler rule because:
[The 

### court's] rejection 

### of EPA's 

### definition

### of 'commercial or



### industrial waste,' as incorporated 

### in the

### definition of CISWI, 

### will shift thousands 

### of unitsthat are

### currently regulated under the section 112 

### Boilers Rule into the

### CISWI category, subject to 

### regulation under 

### section 

### I29 and [a]s a result, the populations 

### of units subject

### to EPA's 

### boilers and 

### CISWI rules

### will change substantially, 

### requiring that 

### EPA recalculate the stringency 

### of the emissions standards 

### for

... the 

### newly shrunk 

### boilers category,


### Id. (citations

### omitted), By relying on 

### unitsthatthe

### Agency 

### itself recognizes may be 

### CISWI units 

### to calculate the 

### NESHAP emissions 

### limits, EPA has set 

### itself up

### for a

### similar vacatur 

### of the 

### portland cement 

### NESHAP Rule.


### PCA has 

### reviewed information aboutthe

### facilities that 

### EPA used

### to setthe emissions 

### floors for the 

### NESHAP Rule and has determined that 

### all but one 

### of those 

### facilities utilized material(s) that 

### may constitute 

### "solid waste" under the proposed 

### definitional rule during the

### time period covered by 

### EPA's 

### MACT floor data. See 

### Exhibit 

### 2. Thus, 

### virtually 

### all of

### EPA's 

### "floor" facilities could end up being classified as CISWI 

### units.s By 

### logical extension,

### virtually all of the 

### top-performing units that 

### EPA used 

### to establishthe emissions 

### limits for new sources are also 

### potential CISWI 

### units,6 These facts alone

### justify the need

### for EPA to reconsider the 

### NESHAP emissions 

### limits in 

### light of whatever 

### CISWI/"solid waste"

### definition rules areeventually 

### ftnalized.

Since the

### CISV/I/"solid waste"

### definition rules are

### only in proposed

### form, the 

### Agency may change theway 

### they impact 

### portland cement 

### facilities in the 

### hnal 

### rule. In fact, asthe Portland Cement 

### Association explained 

### in extensive comments on those proposed rules, 

### PCA believes that 

### significant changes arewarranted andthat 

### farfewer portland cement 

### facilities, 

# if

s In the proposed NESHAP Rule, EPA suggestedthat whether afacility was classified as aCISWI or a NESHAP facility should not matter to the final emissions calculations. 74Fed. Reg. 21,138 ("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.") As the discussion above demonstrates, this is clearly incorrect. Every source that EPA used to set emissions floors could potentially shift from being NESHAP to CISV/I sources,significantly altering EPA's calculations. Furthermore, it is incorrect as a matter of law because EPA's MACT floor determinations for existing sources may only consider facilitieswithin the source category.

uPCA has attached a chart as Exhibit 

### I that shows the potential CISWI units that EPA used to setthe NESHAP floors.any, should end up 

### classified as

### CIS'ù/I 

### facilities in the

### final NESHAP 

### Rule. Thus, the impact 

### of

the

### final CISWV"solid waste" 

### definition rules onthe 

### NESHAP rule is 

### utterly uncertain.



### Thesignificant uncertainty in whether 

### facilities are

### to be regulated as 

### NESHAP or 

### CISWI facilities undercuts every one 

### of the calculations that 

### EPA relied upon

### to establish standards, 

### floors, and emissions 

### limits in the 

### NESHAP 

### rule. EPA cannot say

### with any certainty 

### whatthe top 12 percent 

### of performers are, 

### or even what isthetop 

### performer, of the 

### NESHAP regulated 

### facilities. EPAthus is required 

### to reconsider and stay the 

### portland cement rules 

### until the 

### NESHAP standards can be recalculated based onthe proper sources and 

### until notice and comment is 

### provided

### for the 

### new standards.



# 3. PCA has not had aproper 

### opportunity to comment onthe 

### interplay between the 

### NESHAP rule and the 

### CISWV"solid waste" 

### definition rules


### In addition to the fundamental changes 

### to the 

### NESHAP landscape that

### will result 

### from the

### final CISWV"solid waste" rules, reconsideration 

### is also warranted as 

### it was impracticable 

### for PCA to raise necessary objections 

### during comments. EPA issued the proposed

### solid waste 

### definition rule and the CIS-WI ruie aJter the comment 

### period cioseci onthe Portianci Cement 

### MACT 

### rule, Thus 

### it was impossible 

### for PCA to 

### provide informed comments on the 

### interplay between the 

### CISV/I/"solid waste" 

### definition rules and the 

### NESHAP 

### rule. This scenario

### clearly satisfies the statutory grounds by 

### which EPA is required 

### to grant 

### reconsideration, 

### CAA Section 

### 307(dX7XB) requires 

### EPA to grant reconsideration when 

### it was 

### impracticable

### for acommenter 

### to raise an 

### objection during the 

### public comment 

### period orwhen the grounds

### for the 

### objection
arose after the 

### public comment period.


### PCA recognizes that 

### EPA identified in the proposed 

### NESHAP rule preamble and 

### in a January2009 

### ANPR that the 

### CISWV"solidwaste"definition rules thatwere under development may impact cement 

### kilns burning certain 

### fuels. However, such generalized and speculative 

### referencing ofthe issue 

### in the

### ANPR and the proposed 

### rule preamble does not 

### provide fair notice approaching the broad 

### impact ofthe 

### CISWI rules that 

### EPA ultimately proposed. Only when the proposed 

### CISWI rule was issued 

### did EPA make clear

### for the

### firsttime theoverarching impact 

### of recharacterizing 

### significant portland cement

### facilities as

### CISWIfacilities and

### fundamentally altering the calculations proposed 

### in the 

### NESHAP Rule. At that 

### point, the comment period had closed onthe 

### NESHAP rule, and 

### PCA had no

### further opportunity to comment atthat time,


### It is not adequate 

### for EPA to merely 

### put a

### "marker" down onthe issue generally 

### in the proposal 

### without more 

### specific information on 

### how the

### Agency planned 

### to proceed 

### with the 

### CISWI/"solid waste" 

### definition rules. 

### A generic comment is 

### not adequate

### to put stakeholders on 

### fair notice that the

### CISWI/"solid waste"

### definition rules could 

### fundamentally change the scope 

### of the 

### NESHAP source 

### category. The rules governing reconsideration were developed to prevent exactly that outcome 

### of depriving stakeholders 

### of

### fair notice offundamental changes to rules

### that impact them 

### without the 

### opportunity 

### to comment on such changes. Given the central relevance 

### of this issue

### tothe outcome 

### ofthe 

### Rule, andthat 

### it was impossible 

### for PCA to 

### provide comments on the 

### interplay between the rules, reconsideration should be granted.



### l0

# 4. EPA committed to reconsider the data once the 

### CISWI/"solid waste" 

### dehnition rules were 

### finalized

In both the proposed and

### final 

### MACT rule, EPA statedthat 

### itwould reconsider the data
once the 

### CISWI and 

### "solid waste" 

### definition rules were 

### finalized. In the proposed rule preamble, 

### EPA stated:



### EPA is basing 

### all determinations as

### to source 

### classifìcation on the emissions 

### information now available, as required 

### by section 112(dX3), and

### will necessarily continue 

### to do so 

### until the

### solid waste 

### definition discussed above is promulgated.



### 74Fed. Reg.21,138 (emphasis 

### added). EPA repeated that statement 

### in the

### final 

### rule. 75 Fed. 

### Reg.54,972. 

### By making that promise, 

### EPA committedto doing exactly 

### what PCA is requesting today



## - re-assessing and reconsidering the emissions database and the source category once the 

### Agency issuesthe 

### Íinai CiS\Ã/i an<i 

### "soiid waste" 

### ciefinition 

### ruies. Giventirai 

### EPA had notyei 

### published the 

### proposed 

### CISV/I/"solid waste"definition rules by the

### time thatthe comment 

### period closed, and 

### in light of 

### EPA's stated commitment 

### to revisit the 

### rule after 

### promulgation 

### of the 

### solid waste

### definition, EPA must grant reconsideration,



# 5. EPA should stay the Rules 

### until after 

### it has assessed the

### final CIS'WV"solid waste" definition rules and 

### provided an

### opportunity 

### for notice and comment on the changes


### In addition to reconsideration, 

### EPA must also staythe impacts and effectiveness of these rules pending reconsideration and 

### notice and comment, given thefundamental changes and the 

### significant 

### lead{ime for industry to prepare

### for compliance. For the reasons discussed above, 

### EPA should grant reconsideration and halt the 

### implementation of the Rules (andstay/extend any compliance deadlines) 

### until it knows

### whichfacilities should be 

### classified as Section

# ll2 facilities and

### which should be

### classified as 

### Section 729

### facilities, Once 

### EPA has hnalized the 

### CISWI/"solid waste" 

### definition rules, 

### it can reassess theappropriate source category

### for facilities, reconsider the emissions 

### limits for the 

### Rules, and 

### finalize the Rules

### following proper notice and 

### comment. Given that 

### EPA has committed 

### to issuethe

### final CISWI rule in

### just over 

### two months (by mid-January), 

### this is a reasonable request.

B. storaee piles that were 

### not 

### ideltified in the 

### Eoposed rule

EPA for the 

### hrst time included in the

### final NESHAP Rule a brand new suite

### of requirements 

### for open 

### clinker storage 

### piles

### without ever 

### providing an

### opportunity 

### for comment
on such 

### rules. PCA 

### hrst saw these 

### nationally applicable regulations when 

### EPA published the 

### Rules. Because theseonerous and 

### unworkable regulations were 

### not subject to proper notice and comment 

### rulemaking, EPA is obligated 

### to "convene aproceeding 

### for reconsideration 

### of the rule and 

### provide the same procedural 

### rights as

### would have been 

### afforded had the 

### information been available atthetime the 

### rule was 

### proposed." 

### CAA Section 

### 307(d)(7)(B).



### 1l

# L Background



### EPA had indicated 

### in the proposed rule preamble that 

### it was considering whether 

### regulation of clinker storage piles was warranted, but 

### it provided absolutely 

### no suggestion 

### concerning the scope 

### of such regulations or thetypes 

### of requirements 

### it might consider. EPA's entire discussion 

### ofthe issue consisted 

### of asingle paragraph that requested the

### following information: 

### [H]ow common the practice 

### of open 

### clinker storage 

### is, appropriate

ways 

### to detect or measure 

### fugitive emissions (ranging 

### from openpath techniques 

### to continuous 

### digital or 

### intermittent manual 

### visible emissions techniques), atry measurements 

### of emissions

### of hexavalent 

### chromium (or other 

### HAP) from these open storage piles, 

### potential controls 

### to reduce emissions, or any other factors
we should consider.


### 74Fed. Reg.

### 21,163. EPAthen said that, based on the 

### information 

### it received, 

### it"may (or may 

### not)take action to regulate these open 

### piies in the f,rnai action on this 

### ruiemaking." /ø1


### In the 

### NESHAP Rule, 

### EPA concluded that 

### it was compelled 

### to regulate open 

### clinker storage 

### piles and that 

### it would 

### "adopt[] the

### work practice standards and 

### opacity emissions 

### limits contained 

### in 

### Rule 1156 asamended by the South Coast

### Air Quality Management 

### District [SCAQMD] on 

### March 

### 6,2009 and 

### incorporating them 

### into this 

### rule," 75 Fed. Reg. 54989.7 These 

### regulations arequite detailed, yet were never subject

### to a

### nationwide notice and comment 

### process. EPA never references either these rules orthe 

### SCAQMD standards 

### in the proposal, and 

### provided no subsequent 

### opportunity 

### for comment.



# 2. EPA must reconsider the 

### clinker storage 

### pile regulations 

### Realistically, stakeholders nevçr had any

## - let alone anadequate

## - chance

### to comment on 

### EPA's new 

### regulations. In the proposal, 

### EPA never 

### offered any 

### hint as

### to how 

### it might regulate 

### clinker storage 

### piles. In the

### final rule, EPA issued

## - for the 

### first time

## - acomplete set

### of regulations that stakeholders never had an 

### opportunity to review or comment on. Despite the

### factthat 

### EPA hypothesized that 

### it might regulate 

### clinker storage 

### piles in the proposed 

### rule 

### in some unspecified manner, the 

### specific regulations that 

### EPA codified in the 

### NESHAP Rule are 

### not a 

### logical 

### outgrowth. EPA did not amend aproposed set 

### of rules 

### or chose 

### from a range 

### of proposed rules. Instead, 

### in the 

### NESHAP Rule, 

### EPA created an

### entirely new set 

### of requirements, As the 

### D.C. Circuit has explained, "general 

### notice that a

### new standard 

### will be adopted 

### affords the parties scant 

### opportunity 

### for comment.



### ... The agency's 

### obligation is more 

### demanding-it must describe the range 

### of alternatives being considered

### with reasonable 

### specificity." Horsehead Resource Development Co. v. 

### Browner, 16 

### F.3d 1246,1268 (D.C. Cir. 1994) 

### (citations 

### omitted). EPA only provided the "general 

### notice" and 

### did not 

### provide the

t The use of SCAQMD regulations was suggested by an environmental group andthe SCAQMD itself. EPA, National Emission Standardsfor HazardousAir Pollutantsfrom the Portland Cement Manufacturing Induslry; Response to Comments Received on Proposed Rule 

### aI2ll

.

T2

### required "reasonable 

### specificity" that 

### would have 

### put stakeholders on

### fair notice and 

### provided an



### opportunity 

### for comment. Simply stated, 

### EPA carurot bypass the entire 

### public notice and comment plocess by 

### identiffing standards 

### for the

### firsttime in the

### final rule.

The 

### D.C. Circuit has made clearthatthe

### CAA specifically requires that 

### EPA issue a proposed 

### rule on an issue, 

### which the

### Agency failed to do in

### this case. 

### As the 

### D.C. Circuit has 

### often emphasized,the requirements 

### of 

### CAA $307(d) are 

### in many respects 

### "more stringent" than those

### of the

### APA. Union 

### Oil v. 

### EPA, 821F.2d 

### 678,681(D.C. 

### Cir. 1987). One 

### ofthe 

### "major differences" betweenthe

### APA andthe 

### "more stringent" 

### CAA $307(d) isthat the latter "requires 

### EPA to issue 

### a'proposed 

### rule"'while the

### former does

### not. Smøll Re/ìner Leqd Phase-Down Task 

### Force v. 

### EPA, 705 F .2d 506, 519 

### (D.C. 

### Cir. 1983) (hereafter 

### "Small 

### Refiner")' ln Smqll 

### Refiner, the 

### Court engaged 

### in a

### thorough analysis comparing the language and structure 

### of CAA S307(d)

### with the

### APA. In doing so, the 

### Court stressed that Congress had 

### affirmatively rejected the 

### alternative generally 

### provided in the

### APA whereby 

### an agency 

### might forego actual proposed 

### rule language 

### in a notice 

### of proposed 

### rulemaking. Id. at

### 518-19. Inthis situation, the agency 

### simply stated that 

### it "may (or may 

### not) take action to regulate these open 

### piles." 74 Fed. Reg. 27,163 

## , A vague statement that the agency may regulate 

### in an areadoes

### not constitute the issuance 

### of aproposed 

### rule, as required 

### by the

### CAA.
Further, 

### EPA did not adequately 

### justify or explainwhy 

### it promulgated the 

### specific regulations that 

### it included 

### in the 

### NESHAP 

### Rule. CAA $

### 307(dX6)(A) ("The promulgated rule shall beaccompanied 

### by

. . ,

### (ii) an explanation 

### of the reasons

### for any 

### major changes 

### in the promulgated 

### rule from the proposed 

### rule."); see also, 

### Motor Vehicle 

### Mfrs. Ass'n v. State 

### Farm Mut.Auto. Ins. Co.,463 U.S.

### 29,43 (1983) (an agency must 

### "articulate asatisfactory explanation 

### for its action 

### including a 

### rational connection betweenthefacts

### found and the choice 

### made." (internal quotation 

### omitted)). EPA did 

### not explain the legal or

### factual basis 

### for regulating the 

### piles in the manner that 

### it

### did, In fact, 

### EPA failed to disclose data suggestingthat 

### clinker piles should be regulated at

### all. EPA simply stated that 

### it was adopting the 

### California regulations in

### toto,without offering asatisfactory explanation 

### ofwhy those specific regulations

are warranted.

Had 

### PCA been 

### given a chance to 

### review the new regulations before 

### finalization, 

### it could have commented on the 

### potential effectiveness 

### of the regulations, the cost

### ofthe regulations, 

### alternative options 

### for the regulations, and the 

### practical implementation problems inherent 

### in the 

### regulations. For example,

### thefinalized regulations do 

### not even specify 

### how big a

### pile must beto 

### constitute a regulated 

### clinker storage 

### pile or 

### how long a

### clinker 

### pile may exist 

### in one place before 

### it becomes subject 

### to 

### regulation. As athreshold issue, Portland Cement

### Association members need

### to know what constitutes an open 

### clinker storage 

### pile, including minimum pile volumes or dimensions. More fundamentally, these regulations, asdrafted,

### will be exceedingly expensive 

### to implement and

### will provide 

### little, 

### if any, environmental 

### benefit. 

### If EPA concludes that 

### it is obligated to regulate open 

### clinker storage piles 

### in some manner, we believe that there may be more 

### effective and 

### cost-effective approaches. 

### Finally, PCA has 

### identified additional

13concerns 

### with the open 

### clinker storage 

### pile regulations 

### in the table attached as 

### Exhibit 2.8 EPA

must grant reconsideration and 

### provide appropriate 

### opportunity for public comment.
Thus, reconsideration iswarranted 

### for the open 

### clinker storage 

### pile regulations, as

### it was 

### not only impracticable, but impossible, to raiseobjections 

### during comments given 

### EPA's announcement 

### of the standards 

### for the

### firsttime in the

### final 

### rule. Should 

### EPAwish to regulate open 

### clinker storage 

### piles, 

### it needs 

### to gothrough 

### full notice and comment 

### rulemaking on the proposed rules. 

# C. Sta¡tuo. shutdown. and 

### malfunction standards


### As

### with the 

### clinker storage 

### pile rules, 

### EPA bypassed the entire notice and comment process 

### by never 

### providing stakeholders

### with a chance 

### to comment on 

### EPA's codified standards 

### for startup, shutdown, and 

### malfunction. EPA proposed 

### to regulate emissions

### for startup and shutdown 

### in one

### way in the proposed 

### rule and madefundamental changes to those regulations 

### in the

### final rule that were not a 

### logical outgrowth of the 

### proposal. Further, 

### EPA promulgated a new and 

### unwieldy procedure 

### for asserting an

### affirmative defense 

### for 

### malfunctions. Stakeholders never haci an

### opportunity to 

### review or comment onthese signif,rcantiy change<Í reguiations.



# l. EPA should reconsider 

### its regulations 

### for startup and shutdown periods.


# a. EPA made

### significant, unexpected changes regarding SSM 

### in the 

### final Rules


### In the proposed rule, 

### EPA stated that the 

### uniform standards 

### would apply during both 

### normal operations 

### and periods 

### of startup, shutdown, and 

### malfunction. 74Fed. Reg.

### 2l 162. In contrast, 

### in the

### final Rules, 

### EPA codif,red a number 

### of specific standards that 

### would apply to periods 

### of startup and shutdown, but that 

### differed 

### significantly from the standards that 

### apply during 

### normal operations, 75 Fed. Reg. 54991

### -92.e For example, 

### EPA decided to use

### a7 day averaging 

### period

### for the startup and shutdown standards rather than a30 day period 

### for normal operations because

### "it might take a

### period

### of 1year or more 

### to accumulate 30 days 

### of startup 

### operation." 75 Fed. Reg.

### 54,992. Similarly, EPA decided

### to establish standards 

### for mercury and 

### PM by converting the 

### normal operation'standards 

### to aconcentration basis. 75 Fed. Reg. 54,991. 

### EPA made a number 

### of other changes to 

### key attributes 

### of the startup and shutdown standards. 75 Fed. 

### Reg.

### 54,991-92.



# b. EPA's new SSM rules 

### violate the requirements 

### of 

### CAA Section 

## ll2, asthey are not based on theappropriate 

### methodology

### for setting 

### MACT floors

8Simple review and responseto Exhibit 2by EPAwould not comprise required notice and comment rulemaking. EPA needs to reconsider the Rules and open them up forfull notice and comment rulemaking.

ePCA opposed this approach and continues to believe that theonly appropriate approach for regulation ofSSM periods isto usework practices.

14The changes that 

### EPA made 

### for startup and shutdown periods are not based on the



### MACT methodology specified 

### in Section 112 

### of the

### CAA. EPA did not examine startup/shutdown data

### for the range 

### of 

### facilities and 

### pick the best 

### performing 12 percent to use as the 

### standard. EPA could not have done that because neither the

### Agency northe industry has 

### credible and substantial dataregarding emissions 

### during startup/shutdown. 

### In order to promulgate 

### MACT standards 

### for SSM periods, 

### EPA must have data

### to determine 

### which facilities

are the best 

### performing sources 

### during SSM 

### periods. EPA cannot

### just promulgate standards that

are based on assertions regarding 

### kiln emissions that are unsupported 

### by data'



# c. EPA

### justified its changes

### tothe SSM rules on 

### new and unsupported conclusions



### EPA based the changes 

### it made 

### to thestartup and shutdown regulations on assertions and conclusions regarding 

### kiln operations. For example, 

### EPA partially 

### justified its

### final regulations
onthe conclusion that:



### [O]n apure concentration basis, 

### kiln emissions 

### ovff timewould 

### likely be 

### lower than 

### during normai operation given the iesser 

### volume of inputs being processed, and (at startup) the cleaner

### fuel being usedto heat the

### kiln to 

### normal operating 

### conditions'

75 Fed. Reg. 

### 54,991. The 

### problem

### with EPA's assertions regarding the 

### likely emissions 

### from startup and shutdown isthatthe agency has 

### not identified to stakeholders 

### any daLato back up 

### its conclusions. Because systematic emissions 

### monitoring during startup and shutdown has 

### not been conducted, the

### Agency can 

### provide no support 

### for its conclusions.'u


### PCA never had an

### opportunity to comment on 

### EPA's assertions and 

### underlying conclusions regarding the 

### likely emissions 

### during startup and shutdown, much less on 

### how the ageîcy translated those assertions 

### into regulatory

### text. Those statements, conclusions and 

### regulationsall 

### first appeared 

### in the

### final 

### rule. Without an 

### opportunity to review and comment on such 

### information, PCA must assume 

### EPA's conclusions are 

### nothing but 

### arbitrary and capricious assertions.


### While PCA appreciates that 

### EPA attempted

### to

### tailor the startup and shutdown regulations 

### to make them achievable by 

### facilities, EPA cannot 

### blindly assume that the

### final rules are actually 

### achievable. EPA simply has not identif,red any emissions data

### from startup and shutdown periods that 

### would be necessary to make that determination.



### EPA thus must reconsider its 

### regulation for startup and shutdown 

### periods. The 

### fundamentally changed regulations that 

### EPA codified are 

### unworkable, aswas 

### EPA's proposed 

### rule. Rather than using the new emissions standards 

### for startup and shutdown periods that EPA 

### included in the

### final Rules, 

### EPA should instead 

### rely on

### work practice standards 

### for these periods.

l0 In the proposed rule preamble, EPA admitted thatthe Agency's "emissions database has no data showing that emissioni during periods of startup, shutdown, and malfunction are different than during normal operation." 74 Fed. Reg. 21,138. EPA did not gather additional data on SSM periodsto supporl thefinal Rules.



### l5

# 2. EPA should reconsider the 

### affrrmative defense 

### for malfunctions

EPA did not change its proposal 

### for the emissions 

### limits that are

### to be used

### for regulation of 

### malfunctions. EPA did, however, add to the

### final rule an

### afftrmative defense 

### to

### civil penalties 

### for exceedances 

### of emission 

### limits that are caused

### by malfunctions and specified the elements that are necessary 

### to establish 

### this affrrmative defense. 75 Fed. Reg. 54,993.


### While PCA continues 

### to oppose the 

### imposition 

### of emissions standards during 

### malfunction periods, 

### PCA welcomes the concept

### of an

### affirmative defense 

### for instances 

### of malfunctions. However, the

### affirmative defense process that 

### EPA codified in the

### final rules is cumbersome and

### will be exceedingly 

### difficult forfacilitiesto

### employ. Had 

### EPA provided PCA 

### with an

### opportunity to comment onthe details 

### ofthe aff,rrmative defense, 

### PCA would have 

### provided suggestions 

### for howto better implement the process and documentation 

### in order to
ensure that companies are

### actually able 

### totake advantage 

### of the 

### affrrmative defense in practice. 

### In order 

### to give stakeholdersthe 

### opportunity to 

### provide such 

### input, EPA should grant reconsideration and accept comments. 

# D. RecÍuceci particuiate matter 

### iimits

In the 

### final NESHAP and NSPS Rules, 

### EPA dramatically deviated 

### from the range 

### of possible 

### limits that 

### it had proposed 

### for particulate matter 

### ("PM"). EPA established 

### ultra-low 

### limits for both the 

### NESHAP and NSPS regulations, 

### codifying them 

### in40 C.F.R. $63.1343 and $60.62. For new 

### facilities, the 

### NESHAP 

### limit was reduced 

### by almost 90 percent (cut 

### from 0.080 

### to 0.01 

### lbs/tonof clinker) betweenthe proposed and

### final 

### rule. For existingfacilities, the 

### NESHAP 

### limit was cut 

### roughly in 

### half (reduced 

### from 0.085

### to 0.04 

### lbs/tonof clinker) between the proposed and

### final 

### rule. EPA cutthe NSPS 

### PM 

### limit from 0.86

### to 0.1 

### lbs/tonof clinker between the proposed and

### final rule.

These dramatic reductions 

### in PM are 

### sufficient, 

### in and 

### of themselves,

### towarrant 

### reconsideration. EPA did not indicate 

### in the proposal that 

### it was considering such a

### wide range 

### of standards andthus 

### PCA had no notice that 

### EPA intended 

### to reducethe 

### PM 

### limits so 

### dramatically. While PCA recognizes that 

### EPA has some

### flexibility in issuing 

### final standards, the 

### Agency is required to 

### put stakeholders on notice 

### of a

### fair range 

### of standards 

### it is considering. These 

### final emissions 

### limits are sofar outside 

### of the range 

### of 

### limits considered 

### in the proposed rule that they

### fail to represent a

### "logical outgrowth" of the proposed 

### rule. .Seee.g., Horsehead Resource Development Co. v. 

### Browner, 

### l6 F.

### 3d1246,1268 (D.C. Cir.1994) (The 

### Agency "must describe the range 

### of alternatives 

### being considered

### with reasonable 

### specificity.") (citations 

### omitted).
Further, 

### EPA's basis 

### for promulgating those reduced emissions 

### limits is also severely 

### flawed. After issuing the proposed 

### rule, EPA selectively gathered 

### additional PM data to augment 

### its database. 

### However, rather than 

### collecting a broad swath 

### of representative data

### from

acrossthe 

### industry, EPA "cherry 

### picked" the data,

### with the expanded dataset 

### arbitrarily and 

### capriciously biased towards top 

### performers. EPA collected 

### additional data 

### only from recently constructed 

### facilities 

### with new baghouses. These are the

### facilities that

### will have the absolute 

### lowest PM emissions. Thus, by unnecessarily 

### limiting the data used

### to calculate the 

### PM



### l6emissions 

### limits,ll andthen by adding select data

### from 

### low emissions

### facilities, EPA

inappropriately biased the 

### resulting emissions 

### limit calculations 

### for the

### final Rules. See 

### Portland CementAssn.v. 

### Ruckelshaus,486F.2d375,393 (D.C, 

### Cir. 1973) 

### ("ltisnotconsonantwiththe purpose 

### of a 

### rule-making proceeding 

### to promulgate rules onthe basis 

### of inadequate data, or on 

### datathat, critical degree, is 

### known only totheagency.").


### PCA was unable

### to comment onthese data problems 

### until now because 

### EPA did not make the data available 

### for public review 

### until after 

### promulgation ofthe

### final Rules. EPA should have issued a notice 

### of data 

### availability and 

### allowed stakeholders 

### review and comment on the 

### significant additional datathat 

### EPA intended 

### to rely upon before 

### finalizing the Rule. 

### Industry 

### will not be able to meet the 

### ultra-low standards that 

### EPA has 

### ftnalized. Eventhe

### facilities that 

### EPA gathered data

### from and based the standards on are not 

### likely to beable 

### to meet those standards 

### for long, because, as

### their baghouses age,

### their emissions

### will likely go 

### up. In other words, the snapshot 

### in time offered 

### bythis data does 

### not account

### for emissions overthe

### life

### of the

### facilities at issue 

### in all operating conditions.


### In addition, these 

### PM 

### limits may be

### difficult, 

### if not impossible, 

### to meet

### for those 

### facilities that 

### install wet gas scrubbers 

### for HCI control. PCA uncierstands that the new source 

### PM 

### iimit cannot be guaranteed 

### for 

### kilns that 

### install post-baghouse 

### wet gas 

### scrubbers, The scrubbers 

### actually re-introduce 

### PM materials 

### from the scrubbing reagent 

### into the exhaust stream, 

### making

### it impossibleto achieving the 

### limit. That isthe 

### likely reason 

### why none

### of the units that 

### EPA used 

### to setthe

### floor for PM has 

### wet gas 

### scrubbers. EPA should have examined the interactions between 

### control systems installed 

### to address separate

### pollutants before establishing the 

### ultra-low 

### PM emissions. In doing so, the 

### Agency should have subcategorized 

### kilns 

### with wet gas scrubbers 

### in order 

### to determine appropriate 

### PM 

### limit for such sources. 

### In order

### to ensute a

### workable outcorne, 

### EPA must reassess the 

### PM emissions 

### limits in 

### light ofthe use

### of wet gasscrubbers at
some sources and the need 

### for the subcategorization 

### of sources on this basis.
Further, 

### PCA was denied 

### opportunity to comment on the approach 

### EPAtook in the

### final rule

### for setting the 

### PM NSPS 

### limit. Rather than basing that 

### limit onthe 

### new source 

### limit contained 

### in the Hazardous Waste Combustor 

### NESHAPfor cement 

### kilns burning hazardous waste, as 

### EPA had proposed

### to do,the

### Agency ftnalized the

### limit based on the 

### NESHAP 

### limit codified in the 

### NESHAP 

### Rule. This change 

### in rationale 

## - and in the 

### ultimate compliance number

# - are subjects that should have been subject 

### to notice and comment 

### rulemaking, but were 

### not. New source 

### NESHAP andthe NSPS are 

### not 

### in all cases

### functionally equivalent and EPA cannot 

### blindly assume

## - as

### it apparently has

## - that there is no real difference between 

### NESHAP and NSPS requirements. 

### PCA should have been 

### allowed to comment onthese 

### significant issues.

Because 

### PCA could not have reasonably anticipated the 

### dramatically lower hnal PM emission 

### limits, nor was 

### it able 

### to comment onthe 

### limits orthe 

### new data used

### to calculate those 

### limits, EPA should grant reconsideration 

### of the 

### PM emissions 

### limits.



### " As PCA noted in its comments, there is awealth of PM datathatwas available to theAdministrator in the Agency'sfiles, but that EPA did not use.

L7

# E. Other chanses 

### in the

### final rule
PCA has 

### identified significant changes 

### in the

### final rule that raise 

### practical implementation and 

### monitoring 

### problems. Because these changes were

### first included in the

### final rule, PCA was not 

### provided an

### opportunity to comment on these 

### problems. Given the number 

### of such issues and 

### theirtechnical nature, these 

### important additional issues are most 

### effrciently addressed 

### in table 

### format. Thus, 

### PCA has attached a

### matrix as 

### Exhibit 

### I that 

### lists some 

### of these problems. The 

### matrix also 

### identifies some implementation problems associated 

### with the issues addressed 

### in the 

### previous sections. For 

### all of the reasons discussed above, 

### PCA urgesthat 

### EPA reconsider the 

### Rules. As partof reconsideration, EPA needs 

### to address the extensive range

### of problems that are suggested 

### by 

### Exhibit 1.


### In addition to the issues 

### in 

### Exhibit 1, 

### PCA has 

### identified numerous other 

### signihcant implementation and compliance issues 

### in the regulations that

### will require 

### clarification by EPA. 

### PCA looks forwardto

### working with the

### Agency to better understand 

### EPA's interpretation 

### of those 

### issues. Depending on 

### how EPA clarifies those issues, reconsideration may bewarranted
on some 

### of those issues. 

# V. Grounds 

### for stay Pending reconsideration, the 

### Administrator should staythe 

### application of the 

### NESHAP and NSPS 

### Rules, Both the

### APA and 

### CAA Section 

### 307(d)(7)(B) authorize an

### administrative stay 

### during reconsideration. Given the 

### potential 

### multibillion dollar impact of these regulations on the cement 

### industry and the 

### significance of the issues addressed above,

### justice and basic 

### principles 

### of good government require that 

### EPA stay the 

### Rules. Given how intimately tied together the 

### NESHAP and the 

### CISV/I/"solid waste" 

### definition rules are, 

### EPA must 

### wait 

### until 

### it has

### finalized the

### CISV/I/"solid waste" 

### definition rules before 

### it should seek 

### tofinalize the 

### NESHAP rule (as 

### EPA hasalready 

### committed to do 

### in its proposed and

### final rule preambles). 

### Further, astay iswarranted because 

### of the signif,rcant lead 

### time required to plan investments 

### in control technology necessary 

### to comply 

### with the emissions 

### limits, clinker storage 

### pile storage 

### regulations, and the other issues addressed above and 

### in 

### Exhibit 1. Further, 

### PCA specifically requests that EPA take 

### all necessary and appropriate steps

### to stay and defer the compliance deadlines and other 

### provisions of the Rules 

### until the outcome 

### of the reconsideration process. 

# VI. Conclusion
Forthe

### foregoing reasons, the

### Administrator must convene aproceeding 

### for reconsideration 

### of the 

### NESHAP Rule and the NSPS 

### Rule, stay 

### implementation of the Rules pending reconsideration, and extend the compliance deadlines applicable 

### tothe Rules beto 

### reflect the stay period. 

### Respectfully submitted, 

# ü"*,*ra,t'M^

Andrew 

### T. O'Hare Vice President, Re

### gulatory

### Affairs Portland Cement

### Association

18Of Counsel to P

### ortland Cement Ass

### ocíation Roger R. 

### Martella, Jr. 

### Timothy 

### K. Webster R. Juge Gregg 

### SIDLEYAUSTIN, 

### LLP 1501 

### K Street, 

### N,Vl. Washington, 

### D.C.20005 Q02) 736-8000 (phone) (202) 

## ß 6-e7 1

## I (facsimile)


### EXHIBITS: 1) Selected 

### Additional Concerns

### Warranting Reconsideration

2) 

### Potential 

### CISWI Facilities Used 

### to 

### Establish 

### MACT Floors

19

## Exhibit 1 

### Selected 

## Additional Concerns

## Warranting Reconsideration

Issue 

### Citation Requirement Issue 

### Recommendation

Clinker Piles 

### $63.1340(bxe)

$ 63.1341 

### Applicability

provision 

### for open 

### clinker piles at portland cement plants and 

### definitions section. The regulations do not 

### provide a

### suffrcient 

### definition of clinker pile to put the regulated 

### community on notice 

### of what EIPA believes constitutes a

### clinker pile, andth,ereforethe scope

### of applicability of the rule. 

### Provide a

### definition of "open clinker 

### pile" in $63.1341 to 

### provide a 

### minimum pile volume or dimension, as

### well as 

### how long a

### pile may exist before becoming subiect to regulation. 

### Clinker Piles $63.1 34 

### I

$63.13a3(cXa) Requirements 

### for

"active clinker 

### pile." The regulations do not 

### provide sufficient information or clear criteria 

### to determine when an 

### "inactive" pile becomes 

### "active." Provide a

### definition of "active clinker 

### pile" in $63.1341, and 

### distinguish theapplicable terms and 

### conditions between active and 

### inactive 

### in 863.1343. 

### Clinker Piles I343(c)



### i343(d) 135 

### I $63 $63 $63 Standards 

### for clinker

piles. $63.1351 provides acompliance date

### of 91912013 

### for existing sources

### with emissi,ons 

### limits noted 

### in $63.1343(b). Since the standards 

### for clinker piles
are 

### not listed 

### in $63.1343(b), thr: compliance date could 

### potentially be construed asthe 

### effective date 

### of the 

### rule, 111812010,

### which is not correct 

### As PCA hasalready separately 

### identified to EPA, the

### Agency should 

### modify $63.1351 to 

### include acompliance date

## of 91912013 

### for 63.1343(c) and (d).



### Clinker Piles $63.1 343(d)

$63. I345 

### If clinker material

storage 

### and 

### handling activities occru 1,000 feet or less

### from the 

### facility propertyJine these

### activities must be 

### in an enclosed storage area that meets the emissions 

### limits specihed 

### in 863.1345. The 

### rule could 

### potentially be re¡rd

### to require 

### that emissions 

### from mobile source handling 

### of clinker
are 

### now subject

### to I0%o

### VE standard, 

### which is incorrect. The new 

### provisionswould appearto subject 

### all 

### "clinker handling" to a 

### l\Yo VE standard that must occur

### with an enclosureor

### within a3- sided 

### banier 

### if greater 

### than 100t0feet

### from the 

### property line. 

### Mobile source 

### activities should not be subject to these requirements. 

### Clarify 

### in $63.1345 that the l0o/o 

### opacity standard is

### for non

### mobile sources 

### from 

### clinker piles less

### than 1,000 feet

### from the 

### property line.

### PM 

### Limit $63.r343(bX2) Alternate 

### PM 

### Limit. The 

### provision appears 

### toonly allow adjustment 

### for 

### flow from the

### kiln and 

### cooler. 'lìhe 

### provision does 

### not appear

### to address exhaust 

### from coal 

### mill and/or by-pass that go

### to the 

### main stacli. 

### Clarify that the 

### existing provisions allows adjustment 

### for 

### flow from 

### all sources 

### tothe 

### main stack, or, alternative, add a 

### provision to 

### allow such adiustment. SSM $63.1344(a)(7) 

### To 

### qualifyfor the 

### affirmative defense 

### provision, this requirement must be met: 

### (7)Your actions 

### in response to the excess emissions were documented 

### by 

### properly signed, contemporaneous operatins loss. This 

### provision implies thatthe l,ogs must not 

### only be contemporaneous, but also be signed 

### contemporaneously. Implementing signed contemporaneous operating logsi

### for use

### of Affirmative Defense process is not consistent

### with most plant operating 

### practices. The procedure should 

### allow for contemporanec)us electronic records and other

### official unsigrred operating logs. 

### Allow any contemporaneous operating 

### log be

### available

### for
use 

### in the

### affrrmative defense requirement.

Other $63.1343

### Table 1

Footnote 4 

### If the 

### kiln does

### not

have a 

### HCI CEM, the emissions 

### limit is zero. 

### EPA erroneously assumes that 

### IICI is formed 

### only from burning normalfuel (75 

### Flì 54992). HCl can beformed 

### by

### oxidizing chlorides 

### in the 

### raw materials present 

### in the

### kiln regardless 

### of the 

### type of fuels 

### used. In order words, 

### very 

### low "background" levels 

### of HCI emissions may occur at many 

### kilns, andtherefore settinlg anemissions 

### limit ofzero is unreasonable. The current 

### provision would arguable require 

### facilities 

### with only these 

### "background" 

### HCl emissions

### -rvhich were not the impetus 

### for requiring 

### HCI CEMs, 

### to nonetheless 

### instail 

### HCI CEMs. 

### EPA should not use anemission 

### limit of zero at 

### kilns that do 

### not have an 

### HCI 

### CEM. This 

### limit should be 3 ppmvd.

Other $63.1343(b)



### Table I PM and 

### Hg emission

standards under 

### normal operations
versus startup/shutdown operations. 

### If standards are expressed 

### in lb/ton for normal operations, but concentration 

### for startup and shutdown events, 

### it is unclear whether the same 

### monitoring device can be used

### to determine compliance. 

### EPA needs 

### to address

### this issue
as part 

### of its reconsideration 

### of startup and 

### shutdown. This may be a problem 

### with some approved methods 

### for Hg 

### monitorins (i.e.. sorbenttrap).Other $63.1348(aX6XiÐ 

## Ifa source does

### not have a

### wet scrubber

### or tray 

### tower, 

### initial HCI compliance must be demonstrated using CEMS. 

### EPA is inconsistent 

### in the preamble and 

### rule language. On page 54990, 

### EPA states 

### "CEMS meeting the requirements 

### of PS-15 

### will be required 

### to demonstrate compliance 

### with the 

### HCI standard 

### for all kilns except those using acaustic 

### scrubber" (emphasis 

### added). However, in other preamble language and 

### in the 

### rule, EPA refers 

### onlyto a

### "wet scrubber" or 

### "tray 

### tower". These categories are 

### materially different. Given industry's concerns about 

### lack of water resources 

### in several areas where 

### kilns are 

### currently located 

### (i.e, Southwest 

### U.S.), EPA should reconsider the 

### "caustic scrubber" 

### option to 

### allow sources using 

### dry scrubbing options 

### to opt 

### for stack testins versus CEMS. Other $63.1 340(c) The

### applicability provision states that crushers are 

### not covered by 

### this subpart, regardless 

### of their location. The 

### May 6,2009 proposal combined the

### former $63.1340(b)(8) and 

### (9) 

### into $63.1340(bX8). EPA then added $63.1340(c) 

### into the 

### rule specifying that crushers were not 

### covered. In doing so, 

### EPA deleted some 

### key language 

### from the

### former $63.1340(c) 

### which includes the

### following: "For portland cement plants

### with on-site 

### nonmetallic mineral processing

### facilities, the

### first affected
source 

### in the sequence

### of materials 

### handling operations subject to

### this subpart isthe raw material storage, 

### which is

### just prior to the raw 

### mill..... Furthermore, the

### first conveyor transfer 

### point subject

### tothis subpart isthetransfer 

### point associated 

### with the conveyor transferring 

### material from the raw 

### material storage to the raw 

### mill." The proposed 

### rule did not 

### imply thatthe aforementioned language 

### would be 

### deleted. This language was added aspart

### of PCA's settlement

### with EPA 

### in the 1999 

### rulemaking. EPA should add

### this language back 

### into the rule.

## Exhibit 2 

## Facilities Used

# to Establish NESHAP 

## Floors

Name 

## of Company Name

## of

Plant 

## Plant Location NESHAP 

## or Potential CISWI* Source 

## Mercurv Floor Ash Grove 

### Imkom 

### Inkom, ID 

### Potential CISWI 

### Ash Grove 

### Montana Citv 

### Clancy, MT 

### Potential CISWI Essroc 

### Frederick 

### Frederick MD 

### Potential CISWI Essroc 

### Martinburq 

### Martinsburo. WV 

### Potential CISWI Holcim Portland 

### Florence, CO 

### Potential CISWI Holcim 

### Mithlodian Midlothian. TX 

### Potential CISWI Lafaroe Tulsa 

### Tulsa, OK 

### Potential CISWI

Lehiqh 

### Union Bridqe 

### Union 

### Bridoe. MD 

### Potential CISWI Suwannee Suwannee 

### Branford, FL NESHAP



### Lafaroe 

### Whitehall 

### Whitehall, PA 

### Potentia CISWI Lafa 

### rqe 

### Sugar Creek 

### Suoar Creek. MO 

### Potentia CISWI Lehiqh 

### Union Bridqe 

### Union 

### Bridqe, MD 

### Potentia CISWI 

### Lehigh (Kiln 

## #1) Evansville 

### Evansville, PA 

### Potential CISWI 

### Lehigh (Kiln 

### #2) Evansville 

### Evansville, PA 

### Potential CISWI


### Mitsubishi LucerneValley 

### Lucerne

### Valley, CA 

### Potential CISWI



### Alamo SanAntonio San 

### Antonio, TX 

### Potential CISWI Capitol 

### Cement Capítol



### Cement San 

### Antonio, TX 

### Potential CISWI

Holcim 

### Midlothian Midlothian, TX 

### Potential CISWI



### xThe listing as 

### "Potential CISWI" reflects 

## the PCA's 

### preliminary assessment 

### of how 

### the proposed 

### CISWI/"solid waste" rules may apply 

### to the facilities listed above, based

### on historic operating 

## information. This 

### operating information covers 

### thetime period 

### from which EPA

### drew its data to 

### establish

### the NESHAP 

## floors. However, 

### thefacilities may change 

### or may have already changed 

### their operations and

### fuel

## sources, Further, PCA 

### recognizes

## that EPA 

### may change

### the proposed 

### CISWI/"solid waste" rules in

### their final

## form. Finally, PCA 

### and 

## its members are continuing to 

### review

## the proposed 

### CISWI/"solid waste" rules and expect 

## to refine

### their understanding of those 

## rules. Thus,

## the listing as 

### "Potential CISWI" does 

### not represent a determination 

### thatthe facility does 

### or

### will be covered by

### the CISWI rule, as

### currently proposed 

### or as

### will be 

### finalized.