SIDLEY AUSf IN LLP

IDLEY

SIDLEY AUSTIN LLP

15O1KSTREET,NW.

WASHINGTON, D.C 2OOO5

(202) 736 8000

(2O2) 736 871 I FAX

rjg reg g @ s id le y.com

(202) 736 8581

BEIJING

BRUSSELS

CHICAGO

DALLAS

FRANKFURT

GENEVA

HONG KONG

LONDON

LOS ANGELES

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 "Petition for 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 ro SrAy 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 From the 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 and the opportunity to comment on the 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 on the NESHAP

standards: After the close of the comment period on the proposed NESHAP

Rule, EPA proposed separate but interrelated rules regulating Commercial and

Industrial Solid Waste Incineration ("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 of facilities 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 EPA to issue a NESHAP Rule that ignores two

other proposed rules that undercut the basis for the emissions limits in the

NESHAP Rule. In fact, in both its proposed and final NESHAP rule preambles,

EPA committed to 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

first time - 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 associated with these two rules overlap on key topics and because EPA's

justifications for aspects of the two final 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 are two

separate rulemakings at issue and does not intend to 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 make that new data available to the public before the rule

was finalized, and PCA was not able to comment on the adequacy of the data.

The dramatic reduction in the particulate matter limits occurred because EPA's

new data was selectively gathered from new facilities with 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 the fundamental 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 a corresponding stay of the effective date of

the Rules. 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.

We urge EPA to carefully consider the practical impact that these changes crafted

without adequate industry input may have. PCA expects the Rules to cost $3.4 billion to

implement andmay force almost twenty plants to shut down 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 defer the compliance deadlines and other

provisions of the Rules until the outcome of the 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 50 states. Portland Cement Association members account for more than95Yo of

cement-making capacity in the United States and 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 to work 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 improve the

industry's energy efficiency, the Portland Cement Association member companies partnered

with EPA in the development of an Energy Performance Indicator (EPI) that allows plants to

compare their performance to that of the 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 a top 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% of their 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 valuable fossil fuels for future generations while safely destroying

wastes that would otherwise be deposited 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 North America 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. See 42 U.S.C. ç 7607(d)(7XB). EPA must grant reconsideration when

the petitioner:

[C]an demonstrate to the Administrator that it was impracticable to

raise [an] objection [during the period for public comment] or if

the grounds for such objection arose after the period for public

comment . . . and if such objection is of central relevance to the

outcome of the rule,

Id. ln such a situation, reconsideration is mandatory, as the CAA commands that EPA"shqll

convene a proceeding for reconsideration of the rule and provide the same procedural rights as

would have been afforded had the information been available at the 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 Rules that EPA did not specifically address in its

rulemaking proposal. Thus, the provisions in the final Rules came as a surprise and PCA was

not afforded the opportunity to comment on those elements of the Rules. It was therefore

impracticable for PCA to raise objections to these provisions during the public comment period,

and reconsideration is necessary with an accompanying stay. See 42 U,S.C. $ 7607(dX7XB).

Further, EPA's inclusion of significant new issues in the final Rules is arbitrary and

capricious because none of the new additions are logical outgrowths of the Agency's proposed

rule. The D.C. Circuit has admonished that, "[g]iven the strictures of notice-and-comment

rulemaking, an agency's proposed rule and its final rule may differ only insofar as the 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 to offer comments that could persuade the agency to

modify its rule"). A "final rule is a 'logical outgrowth' of a proposed rule only if interested

parties should have anticipated that the change was possible, and thus reasonably should have

filed their comments on the 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 the Agency's proposal. 1d (citations

omitted). This rule exists because the 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 a surprise 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 explain why 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 be accompanied 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 a

satisfactory explanation for its action including a rational connection between the facts found and

the choice made." (internal quotation omitted)). EPA's failures to provide adequate justification

and explanati ons further j ustify rec onsideration.

Pending reconsideration, the Administrator should stay the application of the NESHAPS

and NSPS Rules, Under the APA, "[w]hen an agency 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

a demonstration of irreparable harm. This is clear from the text of the APA:

When an agency 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 to the 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 aS may be required" and "irreparable harm,"

Similarly, CAA Section 307(d)(7)(B) authorizes an administrative stay, but does not premise that

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 and take other

necessary and appropriate steps to defer the compliance deadlines and other provisions of the

Rules until the outcome of the 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 in the 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 Agency was in the

process of promulgating apair of rules that fundamentally undercut the calculations EPA used to

set the NESHAP Rule's emission limits. The core calculation for establishing NESHAP

emissions limits is the determination of the MACT "floor." This calculation is directly tied to

the number of units in a particular source category. CAA Section 112(d)(3)(A) calls on EPA to

set the floor for existing units within a subcategory at the 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).

Given the 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 a category changes, then the number of sources needed for the best performing 12

percent necessarily changes. For example, if there are 100 sources in a category, EPA would

need to look at the best performing 12 sources. However, if there were only 75 sources in the

category, EPA would only look at the 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 a strong

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 7 4 Fed. Reg. 2l ,138 and 7 5 Fed. Reg. 54,912 ("EPA

[] cannot reliably determine at this time if the non-hazardous secondary materials combusted by

cement kilns are to be classified as solid 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 and the 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 be subject to this proposed rule, not the applicable NESHAP."

75 Fed, Reg. 31,942. Simply put, kilns that are subject to the 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). In that 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

o If 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 of which defines nonhazardous

"solid waste" for purposes of subtitle D (non-hazardous waste) of RCRA and one of which

establishes emissions standards for CISWI units. See 75 Fed. Reg. 31844 (June 4, 2010) and75

Fed. Reg. 31938 (June 4,2010).

Importantly, EPA proposed the CISWI/"solid'waste" definition rules after the comment

period closed on the NESHAP rule, foreclosing any real opportunity for PCA to assess and

comment on the impacts of the NESHAP. Indeed, it was not until EPA proposed the subsequent

CISWV"solid waste" rules that 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 was quite 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 I 9) (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

and then recharacterize those facilities for 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 eviscerate the statistical underpinning for the

NESHAP rule. As EPA recognizes, depending on what 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 of the portland cement

facilities that EPA used to set the 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 a fundamental flaw with the NESHAP

Rule, as EPA cannot set the 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 has already ruled that 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 be vacated 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 units that 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 units that the 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 about the facilities that EPA used to set the 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 establish the 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 are eventually

ftnalized.

Since the CISV/I/"solid waste" definition rules are only in proposed form, the Agency

may change the way they impact portland cement facilities in the hnal rule. In fact, as the

Portland Cement Association explained in extensive comments on those proposed rules, PCA

believes that significant changes are warranted and that far fewer portland cement facilities, if

s In the proposed NESHAP Rule, EPA suggested that whether a facility was classified as a CISWI 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 facilities within the source category.

u PCA has attached a chart as Exhibit I that shows the potential CISWI units that EPA used to set the 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 on the NESHAP rule is utterly uncertain.

The significant 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

what the top 12 percent of performers are, or even what is the top performer, of the NESHAP

regulated facilities. EPA thus is required to reconsider and stay the portland cement rules until

the NESHAP standards can be recalculated based on the proper sources and until notice and

comment is provided for the new standards.

3. PCA has not had a proper opportunity to comment on the 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 on the 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 a commenter

to raise an objection during the public comment period or when 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

January 2009 ANPR that the CISWV"solid waste" definition rules that were under development

may impact cement kilns burning certain fuels. However, such generalized and speculative

referencing of the issue in the ANPR and the proposed rule preamble does not provide fair notice

approaching the broad impact of the CISWI rules that EPA ultimately proposed. Only when the

proposed CISWI rule was issued did EPA make clear for the first time the overarching impact of

recharacterizing significant portland cement facilities as CISWI facilities and fundamentally

altering the calculations proposed in the NESHAP Rule. At that point, the comment period had

closed on the NESHAP rule, and PCA had no further opportunity to comment at that time,

It is not adequate for EPA to merely put a "marker" down on the 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 of fundamental changes to

rules that impact them without the opportunity to comment on such changes. Given the central

relevance of this issue to the outcome of the Rule, and that 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 stated that it would 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 committed to doing exactly what PCA is requesting today

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

Agency issues the Íinai CiS\Ã/i an<i "soiid waste" ciefinition ruies. Given tirai EPA had not yei

published the proposed CISV/I/"solid waste" definition rules by the time that the 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 stay the impacts and effectiveness of these

rules pending reconsideration and notice and comment, given the fundamental 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 (and stay/extend any

compliance deadlines) until it knows which facilities 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 the appropriate 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 issue the 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 these onerous and unworkable regulations were not subject to proper notice and

comment rulemaking, EPA is obligated to "convene a proceeding for reconsideration of the rule

and provide the same procedural rights as would have been afforded had the information been

available at the time 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 the types of requirements it might consider. EPA's

entire discussion of the issue consisted of a single 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. EPA then 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 as amended 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 are quite detailed, yet were never subject to a nationwide notice and comment

process. EPA never references either these rules or the 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 an adequate - 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 - a complete set of

regulations that stakeholders never had an opportunity to review or comment on.

Despite the fact that 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 a proposed 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 and the SCAQMD itself. EPA,

National Emission Standards for Hazardous Air Pollutants from 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 first time in the final rule.

The D.C. Circuit has made clear that the 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 of the "major

differences" between the APA and the "more stringent" CAA $307(d) is that 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. In this 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 area does not constitute the

issuance of a proposed rule, as required by the CAA.

Further, EPA did not adequately justify or explain why it promulgated the specific

regulations that it included in the NESHAP Rule. CAA $ 307(dX6)(A) ("The promulgated rule

shall be accompanied 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 a satisfactory

explanation for its action including a rational connection between the facts 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 suggesting that

clinker piles should be regulated at all. EPA simply stated that it was adopting the California

regulations in toto,without offering a satisfactory explanation of why 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 of the regulations,

alternative options for the regulations, and the practical implementation problems inherent in the

regulations. For example, the finalized regulations do not even specify how big a pile must be to

constitute a regulated clinker storage pile or how long a clinker pile may exist in one place

before it becomes subject to regulation. As a threshold 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, as drafted, 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

13
concerns 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 is warranted for the open clinker storage pile regulations, as it was

not only impracticable, but impossible, to raise objections during comments given EPA's

announcement of the standards for the first time in the final rule. Should EPA wish to regulate

open clinker storage piles, it needs to go through 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 made fundamental 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 on these 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 a 30 day period for normal

operations because "it might take a period of 1 year 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 a concentration 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, as they are not based on the appropriate methodology for

setting MACT floors

8 Simple review and response to Exhibit 2by EPA would not comprise required notice and comment rulemaking.

EPA needs to reconsider the Rules and open them up for full notice and comment rulemaking.

e PCA opposed this approach and continues to believe that the only appropriate approach for regulation ofSSM

periods is to use work practices.

14
The 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 nor the 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 to the SSM rules on new and

unsupported conclusions

EPA based the changes it made to the startup and shutdown regulations on assertions and

conclusions regarding kiln operations. For example, EPA partially justified its final regulations

on the conclusion that:

[O]n a pure concentration basis, kiln emissions ovff time would

likely be lower than during normai operation given the iesser

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

being used to 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 is that the agency has not identified to stakeholders any daLa to 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

regulations all 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, as was 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 that the 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 periods to supporl the final 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 for facilities to employ. Had EPA provided PCA

with an opportunity to comment on the details of the aff,rrmative defense, PCA would have

provided suggestions for how to better implement the process and documentation in order to

ensure that companies are actually able to take advantage of the affrrmative defense in practice.

In order to give stakeholders the 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 in 40 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/ton of clinker) between the proposed and final rule. For existing facilities, the

NESHAP limit was cut roughly in half (reduced from 0.085 to 0.04 lbs/ton of clinker) between

the proposed and final rule. EPA cut the NSPS PM limit from 0.86 to 0.1 lbs/ton of clinker

between the proposed and final rule.

These dramatic reductions in PM are sufficient, in and of themselves, to warrant

reconsideration. EPA did not indicate in the proposal that it was considering such a wide range

of standards and thus PCA had no notice that EPA intended to reduce the 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 so far outside of the range of limits considered in the proposed

rule that they fail to represent a "logical outgrowth" of the proposed rule. .See e.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

across the 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

l6
emissions limits,ll and then 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 on the basis of inadequate data, or on

datathat, critical degree, is known only to the agency.").

PCA was unable to comment on these data problems until now because EPA did not

make the data available for public review until after promulgation of the 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. Even the facilities that

EPA gathered data from and based the standards on are not likely to be able 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 by this data does not account for emissions over the 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

impossible to achieving the limit. That is the likely reason why none of the units that EPA used

to set the 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 of the use of wet gas scrubbers at

some sources and the need for the subcategorization of sources on this basis.

Further, PCA was denied opportunity to comment on the approach EPA took in the final

rule for setting the PM NSPS limit. Rather than basing that limit on the new source limit

contained in the Hazardous Waste Combustor NESHAP for 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 and the 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 on these significant issues.

Because PCA could not have reasonably anticipated the dramatically lower hnal PM

emission limits, nor was it able to comment on the limits or the new data used to calculate those

limits, EPA should grant reconsideration of the PM emissions limits.

" As PCA noted in its comments, there is a wealth of PM data that was available to the Administrator in the

Agency's files, 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 their technical 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 urges that EPA

reconsider the Rules. As part of 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 forward to working with the Agency to better understand EPA's interpretation of

those issues. Depending on how EPA clarifies those issues, reconsideration may be warranted

on some of those issues.

V. Grounds for stay

Pending reconsideration, the Administrator should stay the 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 to finalize the

NESHAP rule (as EPA has already committed to do in its proposed and final rule preambles).

Further, a stay is warranted 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

For the foregoing reasons, the Administrator must convene a proceeding for

reconsideration of the NESHAP Rule and the NSPS Rule, stay implementation of the Rules

pending reconsideration, and extend the compliance deadlines applicable to the Rules be to

reflect the stay period.

Respectfully submitted,

ü"*,*ra,t'M^

Andrew T. O'Hare

Vice President, Re gulatory Affairs

Portland Cement Association

18
Of Counsel to

P ortland Cement Ass ocíation

Roger R. Martella, Jr.

Timothy K. Webster

R. Juge Gregg

SIDLEY AUSTIN, 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, and th,erefore the 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 the applicable terms

and conditions between active

and inactive in 863.1343.

Clinker Piles I 343(c)

i343(d)

135 I

$63

$63

$63

Standards for clinker

piles.

$63.1351 provides a compliance 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 as the effective date

of the rule, 111812010, which is not correct

As PCA has already separately

identified to EPA, the Agency

should modify $63.1351 to

include a compliance date of

91912013 for 63.1343(c) and (d).

Clinker Piles $63.1 343(d)

$63. I 345

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 provisions would appear to

subject all "clinker handling" to a l\Yo VE standard

that must occur with an enclosure or within a 3-

sided banier if greater than 100t0 feet 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 nonmobile sources from clinker

piles less than 1,000 feet from

the property line.
PM Limit $63.r343(bX2) Alternate PM Limit. The provision appears to only 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 to the main

stack, or, alternative, add a

provision to allow such

adiustment.

SSM $63.1344(a)(7) To qualify for 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 that the 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 normal fuel (75 Flì 54992). HCl can

be formed 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, and therefore settinlg an emissions 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 an emission

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.. sorbent trap).
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 a caustic scrubber"

(emphasis added). However, in other preamble

language and in the rule, EPA refers only to 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 is the raw material

storage, which is just prior to the raw mill.....

Furthermore, the first conveyor transfer point

subject to this subpart is the transfer point

associated with the conveyor transferring material

from the raw material storage to the raw mill."

The proposed rule did not imply

that the aforementioned

language would be deleted. This

language was added as part 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 Lucerne Valley Lucerne Valley, CA Potential CISWI

Alamo San Antonio San Antonio, TX Potential CISWI

Capitol

Cement

Capítol

Cement San Antonio, TX Potential CISWI

Holcim Midlothian Midlothian, TX Potential CISWI

x The 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 the time period from which EPA drew its data to

establish the NESHAP floors. However, the facilities 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 that the facility

does or will be covered by the CISWI rule, as currently proposed or as will be finalized.