50 0 New Jersey Avenue, NW

7 th Floor Washington, D.C. 20001 October 8 , 2010

Mr. Keith Barnett Metals and Minerals Group Office of Air Quality Planning and Standards U.S. Environmental Protection Agency Research Triangle Park, NC 27711

Mr. Steve Silverman

Office of General Counsel

U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Re: Request for Clarification Regarding NESHAP Rule Compliance

Date

Dear Keith and Steve,

I am writing to clarify confusion that has ari sen unnecessarily regarding the date for compliance with the recently promulgated portland cement national emission standard for hazardous air pollutants (NESHAP), published on September 9, 2010 (75 Fed. Reg. 54970). The confusion may have been created by the way Section 63.1351 (b) was drafted, in that it makes reference to Table 1 in the regulatory text (Section 63.1 34 3 (b))

, which contains only the emission standards themselves.

There can be no debate that the compliance date of the NESHAP is no sooner than September 9, 2013 for existing sources

. While t he final rule

identifies an effective date of November 8, 2010 , that date does not

determine the deadline for compliance. Instead , the preamble and associated rule language are clear that the compliance date for existing

sources is September 9, 2013. EPA has made this clear in both the text of the rule and preamble language.

First, t he t ext of the rule specifies expressly that compliance is not
require d for existing sources until September 9, 2013.

“Section 63.1351(b) : The compliance date for existing sources with the PM, mercury, THC, and HCl emissions limits in § 63.1343(b) which2

became effective in November 8, 2010 will be September 9, 2013.” (75 Fed. Reg 55063)

Second, u nder the subheading “What are EPA’s final actions on compliance dates?,” the Agency explained in the preamble that:

“For existing sources we proposed a compl iance date of 3 years after the promulgation of the new emission limits for mercury, THC, PM, and HCl to take effect. This is the maximum period allowed by law. See section 112(i)(3)(A). We continue to believe a 3 year compliance period is justified becaus e most facilities will have to install emissions control devices (and in some cases multiple devices) to comply with the proposed emissions limits. Therefore, we have retained a 3 year compliance data in this final rule.” (75 Fed. Reg. 54993)

Third, i n discussing the facilities affected by the rule and assessing the economic impacts on the cement industry EPA also explained in the preamble:

“The impacts are presented for the year 2013, which will be the year that all existing k ilns will have to be in compliance, and also the year that will represent approximately 5 years of new kiln construction subject to the amended NSPS emissions limits.” (75 Fed. Reg. 55020)

Fourth

, u nder a subheading titled, “1. What are the affecte d sources?,” the Agency explained that:

“We expect that by 2013, the year when all existing sources will be required to come into compliance, there will be 100 Portland cement manufacturing facilities located in the U.S. and Puerto Rico that we
expect to be affected by these final amendments. Of these facilities, approximately 5 are complete new greenfield facilities. These facilities will operate 158 cement kilns and associated clinker coolers.” (75 Fed. Reg. 55020)

The foregoing Agency explanations in the text of the rule and the preamble clearly express the Agency’s decision to set the compliance date for existing sources at September 9, 2013. As we would expect, there is no ambiguity in these statements

. The Clean Air Act itself provides for up to 3 years for compliance with new NESHAP standards, and in the September 9 final rule, the Agency clearly elected to grant the cement industry the full three year time period to prepare for and then come into compliance with the new rule requirements by September 9, 2013 (with a potential one year extension to this time frame granted at the discretion of the Agency o n a facility

- by

- facility basis). See CAA § 112(i)(3).3

This full three

- year period i tself will create significant and unprecedented challenges for the industry; to shorten the time frame any further would present burdens truly insurmountable. Of particular concern in this regard are the new requiremen ts addressing storage of clinker (Section

63.1343 (c)

, 75 Fed. Reg. 55052 ). It will be impossible for facilities to implement th ese requirements by November 8, 2010. Furthermore, these requirements were never officially proposed by EPA, and the industry, therefore, had no opportunity to comm ent on them.

Final ly , nowhere in the May 6, 2009 proposal or in the final rule, d id the Agency suggest that there would be different compliance dates for various rule provisions. Had the Agency proposed such an approach, the industry would have strenuously objected. We therefore strongly oppose

a ny circumstance where the Agency wo uld

— post promulgation

— selectively and differentially implement multiple compliance deadlines for existing

sources

. Any such attempt by EPA would constitute an illegal change to the regulation , and require EPA to both reconsider and stay the implementati on of the rule

.

We therefore urge you to officially clarify, before November 8, 2010, that the compliance date for all of the new rule’s requirements on existing

sources is September 9, 2013.

I may be reached at (202) 408

- 9494 or aohare@cement.org to address any questions you may have regarding this matter.

Sincerely,

Andrew T. O’Hare Vice President, Regulatory Affairs

Cc: Peter Tsirigotis, OAQPS Steve Fruh, OAQPS