Sent Email (.pdO. Hand Delivered, and Certified Mail <Return Receipt Requested) 

The Honorable Gina McCarthy 

Administrator, U.S. Environmental Protection Agency 

Office of the Administrator, Mail Code 1101A 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Email: mccarthy.gina@epa.gov 

Re: DOCKET ID No. EPA-R09-0AR-2013-0588 

Phoenix Cement Company Petition for Administrative Reconsideration and Stay: 

"Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze and 

Interstate Visibility Transport Federal Implementation Plan; Final Rule,"79 Fed. Reg. 

52420 (Sept. 3, 2014) 

Dear Administrator McCarthy: Phoenix Cement Company ("PCC"), an enterprise division of the Salt River Pima-Maricopa Indian 

Community, respectfully requests that the EPA reconsider and stay 40 C.F.R. § 52.145(k)(6) and 

Appendix A of the above-referenced regional haze rule ("RHR") federal implementation plan 

("FIP"), which require "optimization" of certain operating parameters at PCC's cement 

manufacturing facility in Clarkdale, Arizona ("Facility"): 

1. The Optimization Requirements 

The FIP, at 40 C.F.R. § 52.145(k)(6) and Appendix A, imposes on PCC "control technology 

demonstration requirements" that ostensibly are intended to optimize the lbs nitrogen oxides ("NOx") 

per ton of clinker produced emission limitation, which the FIP, at§ 52.145(3), caps at 2.12lbs/ton for 

the Facility, based on the FIP's conclusion that selective non-catalytic reduction technology 

("SNCR") is required at the Facility in order to satisfy the regional haze statutes and rules, 42 U.S.C. 

§ 7491, 40 C.F.R. § 51.308. The "optimization" requirements include the following elements: (i) 

PCC must submit to the EPA the SNCR design for the Facility, prior to "commencing construction" 

of the SNCR system; (ii) PCC's SNCR design must satisfy certain design elements indicated in the 

rule; (iii) PCC must collect 180 days worth of baseline emissions and operational data, specified in 

the rule, before commencing continuous operation of the SNCR system ("Baseline Data Collection 

Period"); (iv) PCC must submit to the EPA a written protocol for optimizing the SNCR system's 

capabilities, consisting of incremental adjustments of the SNCR systems' operating parameters, 

specified in the rule, and collection of continuous emissions monitoring system ("CEMS") data, to 

assess the effectiveness of the adjustments; (v) PCC must operate the SNCR system according to the 

protocol for a minimum of 165 days and collect CEMS data to assess the effectiveness of the 

SA SALT RIVER" SAND 6 RDCM 

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must operate the SNCR system according to the optimized operating parameters for a period of 270 

days and gather the same kinds of data required to be gathered during the Baseline Data Collection 

Period ("Demonstration Period"); (viii) PCC must propose to the EPA, based on the CEMS data, 

and on a "1.65 sigma" statistical equation that is mandated in the FIP, a rolling "30-kiln operating day 

emission limit" that is more stringent than the 2.12 lbs/ton limits imposed by the FIP, which the EPA 

would then promulgate in a subsequent rulemaking. See 40 C.F.R. § 52.145(k)(6) and Appendix A, 

79 Fed. Reg. at 52485-89, 52494-96. 

These optimization requirements would be burdensome to implement, to the detriment of the Salt 

River Pima-Maricopa Indian Community, which relies materially on revenue from the Facility to 

fund basic services for members of the Community. Additionally, the measures that would need to 

be taken to implement the optimization requirements would substantially interfere with the cement 

manufacturing operations at the Facility and could compromise PCC's ability to manufacture the 

same high quality of cement that it currently delivers to its customers, especially during the 180-day 

Baseline Data Collection Period, 165-day Optimization Period, and 270-day Demonstration Period, 

during which under the rule PCC would be focused materially on manufacturing cement for purposes 

of complying with the optimization requirements rather than producing high quality cement. 

Therefore, the optimization requirements, if left in place within the rule, would irreparably harm PCC 

and, by extension, the Salt River Pima-Maricopa Indian Community. 

2. No Opportunity to Comment on the Optimization Requirements and No Tribal 

Consultation Regarding the Requirements 

The above and balance of the optimization requirements imposed by 40 C.F.R. § 52.145(k)(6) and 

Appendix A where not to any degree included, or even anticipated, in the proposed FIP, 79 Fed. Reg. 

9318-9378 (February 18, 2014). The first time PCC became aware of the optimization requirements 

was when it read the pre-publication version of the fmal FIP. 1 

Had PCC been given the opportunity to comment on a proposal of the optimization requirements, it 

would have commented, first and foremost, that such requirements do not fall within the EPA's 

authority to impose requirements on reasonable progress sources under the regional haze statutes and 

1 While the EPA asserted that the optimization requirements are "in response to concerns raised by Earthjustice," 79 Fed. 

Reg. at 52455/3, the EPA may not "bootstrap notice from a comment." Fertilizer lnst. v. EPA, 935 F.2d 1303, 1312 

(D.C. Cir. 1991 ). "EPA must itself provide notice of a regulatory proposal." Small Refiner Lead Phase-Down Task 

Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (emphasis in the original); see also Ass 'n of Private Sector Colleges v. 

Duncan, 681 F.3d 427, 462 (D.C. Cir. 2012) (agency could not show adequate notice because it had not raised the issue 

and parties' comments did not significantly engage the issue); Natural Res. Def Council v. EPA, 863 F.2d 1420, 1429 

(9th Cir. 1988) ("EPA ... must provide notice sufficient to 'fairly apprise interested persons of the "subjects and issues" 

before the Agency"') (citations omitted); Natural Res. Def Council v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002) ("A 

decision made without adequate notice and comment is arbitrarv or an abuse of discretion.") (emphasis added). 

MEMT SASRLT RIVER'" SANDE; ROCK 

Tel: 480-850-5757 • Fax: 480-850-5758 • 8800 E Chaparral Rd • Ste 155 • Scottsdale, AI. 85250 
consideration of the four factors specified at 40 C.F.R. § 51.308(d)(1)(i) for reasonable progress 

analyses- including, without limitation, the costs of compliance-or are necessary or appropriate to 

improve visibility in Class I areas.3 Thirdly, PCC would have commented that, even if such 

optimization requirements fall within the EPA's regulatory authority under the regional haze laws, 

there are several elements of the optimization requirements that are not appropriate for a cement 

manufacturing facility such as PCC's;4 would, if implemented, lead to inappropriate results;5 and 

could cause PCC to sacrifice (i.e., diminish) the quality of the cement that it provides to its 

customers, by subordinating cement quality assurance and control to the determination of the ability 

to reduce further the Facility's NOx emissions, including during the Baseline Data Collection Period, 

Optimization Period and Demonstration Period.6 Fourthly, PCC would have commented that the 

tribal consultation mandates of Executive Order 13175 and corresponding directives regarding rules 

and policies that have "tribal implications" were not followed with respect to the development of the 

2 The EPA's statutory and regulatory authority to promulgate this type offederal plan is limited to emission limitations 

and other measures that make reasonable progress towards the goal of restoring Arizona to natural visibility. The 

optimization protocol does not constitute an emission limitation or alternative work practice or design standard that would 

improve visibility in the state. Instead, it constitutes a protocol that could lead to more stringent emission requirements in 

a separate rulemaking, and that may actually lead to worse performance and less visibility improvement. 

3 See 79 Fed. Reg. at 52456/2 ("while visibility improvement is not listed in the CAA or RHR as a required factor for 

evaluating individual RP sources, we consider it to be relevant ... as a supplemental factor in our RP analysis"). 

4 There is no justification in the rulemaking docket, for instance, of why it is appropriate to monitor during the Baseline 

Data Collection Period and Demonstration Period carbon monoxide concentrations and sulfate in the feed, or why these 

parameters are relevant to the representativeness of the data being collected for purposes of the optimization exercise. See 

40 C.F.R. § 52.145, Appendix 8. 

5 For example, the statistical equation that is imposed at 40 C.F.R. § 52.145(k)(6)(vi) and Appendix 21, and the 

requirement to apply the equation to the 270 days-worth of Demonstration Period data to calculate a "rolling 30-day 

emissions limit" that is more stringent than 2.12lbs/ton, are inappropriate in at least two respects: (1) the equation, which 

is a 1.65 sigma equation, computes a one-sided 95th percentile of emissions, such that actual emissions will exceed the 

limit 5% of the time due to emissions variability, even when the Facility's processes are well-controlled; and (2) the 

requirements do not address the need to determine whether the emissions data conform to a normal distribution before 

applying the equation. If one assumes normality but the data are actually log normal, the equation will underestimate the 

emission level corresponding to the 99th percentile. An error in determining the statistical distribution will lead to an 

inappropriate value for a re-determined lbs/ton standard. There is no information in the rulemaking docket that addresses 

or resolves these concerns. 

6 It is not clear from the final rules to what extent, if any, PCC would be required to subordinate the QA/QC of its cement 

products to the necessities of testing for, and establishing, operational parameters for the ammonia injection system that 

result "in the minimization of emissions ofNOx to the greatest extent practicable." 40 C.F.R. § 52.145(k)(6)(vi), 

Appendix A 1 0. Any adjustment of "the balance between fuel supplied to the existing riser duct burner and the existing 

calciner burners," id. 10(a)(i), adjustments to the "proportions of primary, secondary and tertiary air supplied to the 

kiln system," id. 10(a)(ii)(2), and adjustments to the "chemical and physical properties" of the raw mix fed into the 

kiln, id. 10(a)(iii), relative to PCC's current QA/QC practices, would adversely affect the cement products' quality, 

the rule's qualifications to the contrary notwithstanding. PCC is in the business of making cement; it already optimizes 

these parameters as a matter of course, both as a function of applicable ASTM standards (e.g., ASTM C150) and PCC's 

clients' specifications. 

SRSRLT RIVER'" SAND 6 ROCK 

Tel: 480-850-5757 • Fax: 480-85Q-5758 • 8800 E Chaparral Rd • Ste 155 • Scottsdale, AZ 85250 
It was impracticable to raise such comments during the public comment period on the proposed FIP, 

as the optimization requirements were not presented as part of the proposal and could not reasonably 

be anticipated from the balance of the rulemaking docket prior to the issuance of the final FIP. 

Moreover, the matters asserted in this petition for review are of central relevance to the FIP. The 

appropriate result of the EPA's consideration of such comments would have been the exclusion of 

any optimization requirements from the fmal FIP, for not falling within the four comers of the EPA's 

regulatory authority under the regional haze statutes and rules and being inappropriate for PCC's 

cement manufacturing facility. 

3. Requested Action PCC respectfully requests that the EPA reconsider 40 C.F.R. § 52.145(k)(6) and Appendix A and 

remove them from the federal plan in their entirety, as they are not authorized by the regional haze 

statutes and rules and are inappropriate, in whole and in part, for PCC's cement manufacturing 

facility. PCC is filing a petition for review of the FIP and also requests that the EPA immediately 

stay the effectiveness of 40 C.F.R. § 52.145(k)(6) and Appendix A, in their entirety. See 5 U.S.C. § 

705 ("When an agency finds that justice so requires, it may postpone the effective date of action 

taken by it, pending judicial review."); cf 42 U.S.C. § 7607(d)(7)(b). 8 

7 Section 5(b) of Executive Order 13175 provides that, "[t]o the extent practicable and permitted by law, no agency shall 

promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal 

governments, and that is not required by statute, unless: 

(1) funds necesscuy to pay the direct costs incurred by the Indian tribal government or the tribe in complying with the 

regulation are provided by the Federal Government; or 

(2) the agency, prior to the formal promulgation of the regulation, 

(A) consulted with tribal officials early in the nrocess of developing the proposed regulation; 

(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, 

provides to the Director of OMB a tribal summarv impact statement, which consists of a description of the extent 

of the agency's prior consultation with tribal officials, a summary of the nature of their concerns and the 

agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns 

of tribal officials have been met; and 

(C) makes available to the Director of OMB any written communications submitted to the agency by tribal 

officials. 

65 Fed. Reg. 67249, 67250 (November 9, 2000) (emphases added.); see also "Memorandum for the Heads of Executive 

Departments and Agencies, SUBJECT: Tribal Consultation," by President Barack Obama (November 5, 2009) ("My 

Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy 

decisions that have tribal implications including, as an initial step, through complete and consistent implementation of 

Executive Order 13175."). 

8 PCC believes that it meets the criteria for a judicial stay of 40 C.F.R. § 52.145(kX6) and Appendix A, based on the 

relevant factors for deciding whether a stay is justified. Humane Soc y v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009) 

(citing Winter v. Natural Res. Def Council, 555 U.S. 7 (2008)). First, PCC would be likely to succeed on the merits of its 

CEMENT SRSRLT RIVER'" SAND 6 RDCI-i 

Tel: 480-850-5757 • Fax: 480-850-5758 • 8800 E Chaparral Rd • Ste 155 • Scottsdale, tv.. 85250 
V erle C. Martz 

Vice President Engineering & 

Phoenix Cement Company, a ivision of the 

Salt River Pima-Maricopa Indian Community 

cc: JoAnn Chase, Director, U.S. EPA American Indian Environmental Office (chase.joann@epamail.epa.gov) 

Jared Blumenfeld, Administrator, U.S. EPA Region 9 (blumenfeld. jared@epa.gov) 

Thomas Webb, Air Division Planning Office, U.S. EPA Region 9 (r9azreghaze@epa.gov) 

Diane Enos, President, Salt River Pima-Maricopa Indian Community Martin Harvier, Vice-President, Salt River Pima-Maricopa Indian Community 

John Carroll, Treasurer, Salt River Pima-Maricopa Indian Community 

Gary Bohnee, Congressional & Legislative Affairs, Salt River Pima-Maricopa Indian Community 

Jennifer Giff, Office of the General Counsel, Salt River Pima-Maricopa Indian Community 

Roger Smith, President, Phoenix Cement Company Pete Kuehner, Senior Vice-President, Phoenix Cement Company 

Brett Lindsay, Environmental Manager, Phoenix Cement Company 

Mark W. DeLaquil, Baker & Hostetler LLP 

Andrew M. Grossman, Baker & Hostetler LLP 

George A. Tsiolis, Attorney at Law 

petition for judicial review, for the reasons indicated in Section 2 of this petition. Second, PCC and, by extension, the 

Salt River Pima-Maricopa Indian Community, would suffer irreparable injury if the EPA does not stay 40 C.F.R. § 

52.145(k)(6) and Appendix A, in that PCC must begin as early as Spring 2015 to comply with the optimization 

requirements, the optimization protocol threatens to undermine the quality of cement produced, and resources spent to 

comply with the optimization protocol will be diverted from the beneficial purpose to which the Community puts them. 

Third, the balance of equities favors issuing a stay, since, despite the significant harms PCC would suffer and 

expenditures that PCC would have to make to comply with the optimization requirements, there is nothing in the 

rulemaking docket that supports any conclusion that the requirements fall within the four comers of the EPA's regulatory 

authority under the regional haze statutes or rules or that the requirements arise from the EPA's consideration of the 

factors that are specified for reasonable progress analyses, at 40 C.F.R. § 51.308(d)(1)(i) and 79 Fed. Reg. at 52456/2. 

Fourth, a stay would be in the public interest, as the Clean Air Act does not demand visibility improvement at any cost, 

let alone cost that is not defmed or assessed pursuant to 40 C.F.R. § 51.308(d)(1)(i), whereas it is clear public policy to 

not impede unnecessarily or arbitrarily, but rather to foster, the economic self-sufficiency of Indian tribes such as the Salt 

River Pima-Maricopa Indian Community. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44 

(1980) (noting "a firm federal policy of promoting tribal self-sufficiency and economic development" as evidenced by 

various congressional enactments); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 

155 (1980) (recognizing "varying degrees [of] congressional concern with fostering tribal self-government and economic 

development"). 

SRSRLT RIVER- SAND 6 ROCK 

Tel: 480-850-5757 • Fax: 480-850-5758 • 8800 E Chaparral Rd • Ste 155 • Scottsdale, Al. 85250