May 19, 2011

The Honorable Lisa P. Jackson Ad ministrator United States Environmental Protection Agency Room 3000 Ar iel Ri os Building 1200 Pennsylvania Avenue, NW Washington, DC 20004

Re: Petition for Administrative Reconsideration, Amendmen t and Stay of the CISWI Rules Dear Administrator Jackson: The American Foundry

Soci et y (AFS or the Petitioner) hereby petit io ns the U.S. Environmental Protecti on Agency (EPA or the Agency ) f or reconsiderat io n and amendment of the Standards of Performanc e f

or New Stati onary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial So lid Waste Incineration Units (76 Fed. Reg. 15704 (Mar. 21, 2011)) (2011 CISWI Rule), and the Standards of Performance for New Stationary Sources and Emi ssio n Gui delines for Exist ing Sources: Commercial and Industrial So lid Waste Incinerat io n Units, 65 Fed. Reg. 75338 (Dec. 1, 2000) (2000 CISWI Rule), and for a stay of the 2000 CISWI Rule Standards of Performance for New Stationary Sources, codified at 40 C.F.R. Part 63, Subpart CCCC, as well as a stay

of any state implementation of the Emissio ns Gui delines established by th at rul e f or exist ing sources under 40 C.F.R. Part 63, Subpart DDDD. 1

Over one hundred Petit io ner member com panies operate one or mo re thermal sand reclamat io n units that treat foundry

sand as part of the conti

nuous industrial process. The Petit io ners submitted extensive co mments on the proposed CISWI Rules to Docket No. EPA

- HQ

- OAR

2003

- 0119, but those comments made no reference to th ermal sand reclamat io n uni ts. However,

1 EPA already hasagreed to stay the 2011 CISWI rule pending reconsideration and notice of that stay will be published shortly in the Federal Register. Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and Industrial Solid Waste Incineration U nits, Final rules; Delay of effective dates, Prepublication Copy, signed May 16, 2011 (hereinafter “Boiler MACT and CISWI Stay”).The Honorable Lisa P. Jackson

May 19, 2011 Page 2 in the final rule, as a result of EPA’s companion rule defining non

- hazardous secondary m ateri al as solid waste (76 Fed. Reg. 15456 (Mar. 21, 2011)) (NHSM Rule), the units described above may be incinerators of sol id waste subject to CISWI standards.

The Peti ti oner’s member com

panies also own and operate hundreds of direct flame oxidizers designed to treat off gas fro m cupo la fur naces under the National Emissio ns Standard for Hazardous Air Pollutants for Iron and Steel Foundri es (Foundry

MA CT), 40 C.F.R. Part 63, Subpart EEEEE. EPA recently clarified that the NHSM Rule did not change the regulatory status of these units because they do not combust a solid waste. 2 AFS i s request ing that EPA similarly clarify the status of these unit s in the CISWI Rule. Pursuant to section 307(d)(7)(B) of the Clean Air Act (“CAA”), EPA is authorized to reconsider a rul e where i

t was impract icable to raise an objectio n during the period of public co mment or if th e grounds of such

objecti on arose after the public comment period (but within the time specified for judicial review), and if such object io n is of central relevance to the outcome of the rul e. Given the fact that the Petitioner had no notice of the fact that EPA would con si der i ts th ermal sand recl amat io n uni

ts to be CISWI units, the Petit io ner had no opportunit y to comment on the regulat io n of such units as CISWI unit s during the comment period on either the 2000 or th e 2011 CISWI Rules. The grounds for AFS’ request for reconsiderat io n are a result of the NHSM Rule. Thus, the grounds for our object io n arose after the public co mment period but wi thin the t ime specified for judicial review. 3 Further, thi s f act i s of central

importance to the outcome of

the rul e because the final rule regulates units without considerat io n of the abilit y of th ese units to meet CISWI standards. Accordingly, for the reasons detailed herein, reconsideration of both the 2000 and the 2011 CISWI Rules under sect io n 307(d) is appropriate

2 L etter dated May

13, 2011, from Suzanne Rudkinski, Director, Office of Resource Conservation and Recover y, to Mr. TimHunt, Senior Director, Air Quality, American Forest and Paper Association. 3 Given that the grounds for AFS’ objection to the CISWI Rules are created by the NHSM Rule, those grounds will not arise until the effective date of the NHSM Rule. That date is May 20, 2011, unless that rule is stayed. AFS and other associations have requested a stay o f that effective date. P etition for A dministrative Stay P ending Appeal of the Final Rule: Identification of Non

- Hazardous Secondary Materials That Ar e Solid Waste( 76 Fed. Reg. 15456 (March 21, 2011), filed May 18, 2011.The Honorable Lisa P. Jackson

May 19, 2011 Page 3 and AFS pe ti

ti ons the Agency

f or administrative reconsideration and amendment of the CISWI Rul es.
In addit io n, Peti

ti oner had no opportunit y to seek an affirmation that units that combust gases are not CISWI units because we were unaware that the issue would co me up in the NHSM Rule. Thus, we petit io n EPA to address this issue in the revised CISWI Rule.

We note that EPA retains residual authorit y under CAA sect io n 112(d)(6) to periodically review and, as appropriate, revise MACT standards. In the event that EPA takes the posit io n that the issues ident ified below do not qualify for reconsideration pursuant to section 307(d)(7)(B), we al ternat ively petit io n EPA to amend the final CISWI rule to make the changes described below fo r the reasons explained herein. AFS also petit io ns EPA for a stay of the 2000 CISWI rule as it may apply to thermal sand recl amat io n unit s pending reconsiderat io n of the CISWI Rule under both Section 307 of the CAA and Section 705 of the Administrative Procedure Act (APA). Under CAA se ction 307(d)(7)(B), EPA may grant a stay for three months if the Agency has decided to reconsider a rule. 42 U.S.C. § 7607(d)(7)(B). No other criteria or conditions are imposed on the Agency’s authority to issue a stay. Under APA section 705, EPA may st ay the effective date of a rule pending judicial review “when justice so requires.” 5 U.S.C. § 705. 4
As discussed below, the applicability of the CISWI Rule to thermal sand reclamation units found at the Petitioner’s member facilities clearly warrants r econsideration by EPA and a stay of that applicability meets the statutory requirements under both the Clean Air Act and the Administrative Procedure Act.

4 EPA’s actions in the NHSM Rule have not only c reated great substantive uncertainty ; they also have created great procedural uncertainty regarding the steps needed to obtain relief from those ac tions. To protect all of its procedural rights, AFS is filing petitions for judicial review not only o f the NHSM Rule and the 2011 CISWI Rule, but also of the 2000 CISWI Rule.The Honorable Lisa P. Jackson

May 19, 2011 Page 4
I. General Background.

AFS is the maj or trade and technical associat io n fo r the North American m etalcast ing industry

. AFS has more than 9,000 members represent ing over 3,000 metalcast ing fir ms, their suppliers and customers. The practice o f me lt ing and cast ing met al int o s olid forms has served societ y’s needs for more th an 5,000 years. Metal

cas tings are the foundat io n fo r all other manufacturing, and metalcasters have been a vital building block for every n at io n’s economic wealt h. Every sector relies on cast ings; 90 percent of all manufactured goods and capital equipment incorporate engineered cast ings int o thei

r makeup. The maj or industri es supplied by metalcast ing include agriculture, construction, mining, railroad, automotive, aerospace, communications, healt h care, defense and nat io nal securit y. The American metalcasting industry provi des empl oyment f

or over 200,000 men and women di rect ly and supports thousands of other jobs indirectly. The industry supports a payro ll o f mo re th an $8 billio n and sales of more than $36 billio n annually . Metal cast ing plants are found in every state, and the industry i s made up of predominately small businesses. Approximately 80 percent of domest ic metal casters have fewer than 100 emplo yees.
In i ts simplest terms, metal cast ing invo lves creating a mo ld with sand that defines the inside and outsi de characteri st ic s of the desired piece of metal, melt ing metal (called the “charge”) in furnace, and pouring mo lt en metal int o the mold. After the casting has solidified, it is shaken out of the mold and excess material is removed. Many facilit ies use a cupola furna ce to mel t the metal . Thi s t ype of furnace uses metallurgical coke as a fuel source and often injects additional oxy gen to increase the melt rate. This process generates off

- gases containing contaminants that must be treated in an oxidizer. The sand fro m th e mol d is collected and reused in an endless cy cle. This cycle may include periodic treatment of the sand in a thermal reclamation unit to improve the qualit y of

the sand and metal cast ings.The Honorable Lisa P. Jackson

May 19, 2011 Page 5

II. Reconsideration and Amendment of Provisions of the C ISWI Rule Pertaining to Thermal Sand Reclamation Units and Clarification of the Status of Off Gas Oxidizers and Other Air Pollution Control Equipment. A. Thermal Sand Reclamation Units.

The metal cast ing process invo lves pouring mo lt en metal int o sand molds to produce metal cast ings. The sand mo lds and cores are formed by mixing sand with clay or resin binders to fo rm a cavi ty int o whi ch the mol

ten metal i s poured.

When the metal cast ings are cooled, the mo lds are broken to remove the castings from t he sand in a process referred to as “shakeout.” After the casting is separated fro m th e mold and core sand, i t i s sent off for cleaning. During the shakeout process the molds and sand cores are placed int o a mechanical

reclamat io n process consist ing of a vibratory drum or mechanical shaker with perforations and a series of conveyors and screens. Sand (hereafter referred to as return sand) th at passes through the drum/shaker and screens is returned to the mo ld mak ing process to be used to make new molds. Some f oundries also process the return sand in a thermal sand recl amat io n unit that helps to remove addit io nal residual binder and dust, thus making the sand
mo re amenable to reuse (in many cases even better than virgin sand).

The enti re process of making sand mo lds and reclaiming return sand fo r producing new mo ld s is referred to as th e sand lo op. F oundri es ty pically recy

cle fo undry sand wi

th in th e sand lo op at least 20 times before it c an no lo nger be reused fo r mo ld s and must be ei th er discarded or ben eficially

used in some fashi on . Foundry sand i s not considered a waste by the f oundry industry as i t i s beneficially

reused in a continuous industrial process. In the proposed NHSM Rule, EPA agreed with this conclusio n, noting that foundry

sand woul d n ot be considered a solid waste when used as an ingredient in a combustion unit. 75 Fed. Reg. 31844, 31869 (June 4, 2010). This conclusio n is consistent with EPA’s previous determinations that foundry sand is not a waste. See 73 Fed. Reg. 64668, 64705 ( Oct. 30, 2008). EPA even noted in the preamble to the final NHSM Rule that foundry sand isThe Honorable Lisa P. Jackson

May 19, 2011 Page 6

not a waste when it is “re

- used on

- si te in the primary

producti on process on a continuous basis in th e sand loop.” 75 Fed. Reg. at 15519. However, in that preambl e, EPA for the first time also took the posit io n that even though foundry sand is not a waste, any

contaminants in the foundry sand that are thermally

destroyed are wastes and therefore any uni ts that thermally reclaim fo undry sand woul d be subject to sect io n 129 CAA standards. 76 Fed. Reg. at 15519.

At no point during the development or proposal of either the 2000 or the 2011 CISWI Rule did EPA indicate that thermal sand reclamation units would be subject to section 129 standards. As a resul t, the Pet it io ner had no opportunit y to comment on this issue during the comment period on the CISWI rule and reconsideration is appropriate under Section 307 of the CAA. AFS requests EPA to specifically exempt foundry sand thermal treatment units from the CISWI rul e. Under section 129 of the CAA, new and existing unit MACT standards must be achievable limits based on the maximum degree of reduct io n in emissio ns considering cost and non

- ai r healt h and environmental impacts and energy requirements. CAA Sect io n 129(a)(2), 42 U.S.C. 7429(a)(2). EPA used data collected under an Informat io n Collect io n Request to develop the rul e. Thi s request did not go to foundries and EPA has no data about the performance of foundry sand thermal

reclamat io n uni

ts, and no data on

the cost and non

- ai

r heal th and environmental impacts and energy

requirements related to imposing limits on these units under sect io n 129. Accordingly , EPA has no legal b asis to regul ate these unit s under sect io n 129 and applying the CISWI standards for incinerators to these unit s vio lates the CAA. Just as EPA decided to forego applying the CISWI Rule to burn

- off ovens and so lid treatment units because it had no data on those categories, EPA must determine that this rule does not apply to foundry

sand th ermal

reclamat io n unit s. See 76 Fed. Reg. at 15734. In fact, EPA admits in Ms. Rudzinski’s May 13, 2011, letter to Timothy Hunt that if EPA did not solicit comment on the regulat io n of certain unit s in i ts proposed CISWI Rule, and did not analyze or
a ddress the regulat io n of such unit s in the preamble to the final CISWI Rule or in the Regulatory Im pact Analysis for the rule, EPA cannot change the prior regulatory status of such a unit.The Honorable Lisa P. Jackson

May 19, 2011 Page 7

B. Off Gas Oxidizers. Off gas generated fro m th e f oundry cupo la fur nace is a mixture of the products of co mbust io n of th e coke, the gases generated from the calcinat io n of the fluxing agents, and the gases generated by the reactions of the products of co mbust io n, decomposit io n and reduction of the metal oxides conta ined in the charge materials. The Foundry MACT (40 C.F.R. Part 63, Subpart EEEEE) requi res that all cupol a off gas be treated in a direct flame oxidizer with at least 0.3 seconds resi dence time at a minimum of 1,300°F operating temperature, specifically fo r maj or sources. In addi ti on, individual state regulat io ns may also apply to the combust io n of cupola off gas. The statutory

defini ti on of solid waste under RCRA includes “contained gaseous material.” 42 U.S.C. 6904(27). Since EPA first examined this i ssue in 1982, EPA has always interpreted “contained gaseous material” to mean gas in a container, not gases flowing through pipelines to flares or boilers. 47 Fed. Reg. 27520 (June 24, 1982). The purpose of this interpretation is to delineate where RCRA r egul at io n ends and Clean Air Act regulat io n begins. 47 Fed. Reg. at 27530. To ensure that this interpretation of RCRA carried through to the implementation o f sect io n 129 of the Clean Air Act, the 2000 CISWI Rule defined “contained gaseous material” as f ol lo ws: “Contained gaseous material means gases that are in a container when that container is combusted.” 40 C.F.R. 60.2265. In the Response to Comments on the NHSM Rule, EPA stated that it was unable to find support fo r thi s l ong - standing interpreta ti on. NHSM, Response to Comments, at 213. EPA did not include a definit io n of “contained gaseous material” in the NHSM Rule and deleted that definit io n fro m th e CISWI rul e. 76 Fed. Reg. at 15761. In the proposed CISWI rule (75 Fed Reg. 31938 (June 4 , 2010)) EPA did not propose to delete th e definit io n of “contained gaseous material” from the 2000 CISWI rule. 75 Fed. Reg. at 31983. However, this definit io n is deleted in the final CISWI Rule with no discussio n of this change in either the preamble orthe response to comments document. 76 Fed. Reg. at 15761.The Honorable Lisa P. Jackson

May 19, 2011 Page 8

The Peti ti oner appreci ates the l etter sent from Suzanne Rudzinski to Tim Hunt on May 13, 2011, assert ing that EPA’s Response to Comments document for the NHSM Rule “does not change any previous EPA posi

ti ons” and “the Agency’s previous statements and interpretations remain effect ive.” We agree that EPA could not change its long

- standing posi ti on that the term “contained gaseous material” includes only gases in containers, without going through notice and comment rulemaking. However, the Petit io ner believes that this issue should be addressed in the CISWI Rule, as it is revised during reconsiderat io n. EPA must explain the deletion o f th e term “contained gaseous material” from the CISWI Rule and ensure that no inferences are drawn from th at del et io n that would be inconsistent with Ms. Rudzinski’s May 13, 2011, letter.

The Peti ti oner had no opportunit y to comment on this issue during the comment period on the CISWI rul e. Accordingly, reconside rati on is appropri ate under Secti on 307 of the CAA. AFS requests EPA to include in the CISWI Rule, or the preamble to that rule, a specific statement that ai r pollut io n control devices such as direct flame oxidizers are not subject to section 129 of the C AA because the unit s do not combust solid waste as defined in 40 C.F.R. Part 241.
III. Request for Stay of the 2000 CISWI Rule Pertaining to Thermal Sand Reclamation Units. EPA has ample authorit y to grant a stay pending reconsideration of the CISWI R ul e under both Section 307 of the CAA and section 705 of the APA. Under CAA Section 307(d)(7)(B), EPA may grant a stay for three months if the Agency has decided to reconsider a rule. 42 U.S.C. § 7607(d)(7)(B). No other criteria or conditions are imposed on the Agency’s authority to issue a stay. Under APA section 705, EPA may stay the effective date of a rule “when justice so requires.” 5 U.S.C. § 705. EPA already

has agreed to grant a stay of the 2011 CISWI Rule. 5 However, a stay of the 2000 CISWIRule as it may apply to thermal sand reclamation units also is appropriate.

5 Industrial, Commercial, and Institutional Boilers and Pr ocess Heaters and C ommercial and Industrial Solid Waste Incineratio

n Un its, Fin al rules; Delay of effective dates, Prepublication Copy, signed May 16, 2011 (hereinafter “Boiler MACT and CISWI Stay”).The Honorable Lisa P. Jackson

May 19, 2011 Page 9

Under Section 705, EPA may grant a stay “[r]egardless of whether [the stay request] meet[s] the requirements of Section 307(d)(7)(B).” See Ohio: Approval and Promulgation of Im plementation Plans, 46 Fed. Reg. at 8,582 n.1. Moreover, a stay under Section 705 may be of unlimited duration. In fact, EPA has regularly used this authority to postpone the effective date of a rule indefinitely. See, e.g., Reconsideration of the Prevent ion of Significant Deterioration and Nonattainment New Source Review NSR: Aggregation, 75 Fed. Reg. 27,643 (May 18, 2010); Final Rule, Amendments of Final Rule To Postpone Requirements, 61 Fed. Reg. 28,508 (June 5, 1996) (staying rules to prevent facilitie s from incurring “compliance expenditures . . . which may prove unnecessary in light of the projected amendments”); Hazardous Waste Management System: Identification and Listing of Hazardous Waste; Burning of Hazardous Waste in Boilers and Industrial Furna ces, 56 Fed. Reg. 42874 (Sept. 5, 1991). Thus, the APA provides ample authority for EPA to stay the CISWI Rule.

As demonstrated bel ow, the Environmental Protectio n Agency (EPA or the Agency) has ample authori ty and just ification to grant an administrat ive stay under sect io n 705 of the APA , 5 U.S.C. § 705, pending judicial review and such an administrative stay i s requi red to impart j ust ice and to prevent irreparable harm.
A. A Stay of the CISWI Rule is Required by Justice.

Just ice requires a stay of

the 2000 CISWI Rule, as it may apply to any newly i dent ified incinerators because current ly there is substant ia l uncertaint y regarding what is considered a waste and therefore what units are subject to emissio n limits for incinerators under section 129 of th e CAA. Many more units may now be considered solid waste combust io n unit s as a result of th e NHSM Rule. Accordingly, these units potentially will be regulated under the Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial So lid Waste Incineration Units (76 Fed. Reg. 15704 (Mar. 21, 2011)) (CISWI Rule) or under exist ing CISWI regulations at 40 C.F.R. Subpart CCCC and state implementation plans adopted under 40 C.F.R. Subpart DDDD.The Honorable Lisa P. Jackson

May 19, 2011 Page 10

The final NHSM Rule impacts not only materials that are being burned for energy recovery or used as ingredients in cement kilns, but also materials that are being reused in a cont inuous industri al process that involves combustion units. This creates s ubstantial uncertaint y regarding th e timing of the applicabilit y of the CISWI Rule to units that are not energy recovery uni ts or cement kilns. For this reason, Petitioners have asked for an administrative stay of the NHSM Rul e. However, to ensure Petiti oner’s members have adequate time to come into compliance once the issues surrounding the interrelationship between the CISWI Rule and the NHSM Rule are resolved, EPA also must stay the applicabilit y of

sect io n 129 to newly ident ified incinerators. Absent a stay

of ei th er the NHSM Rul e or the 2000 CISWI Rule, as of May 20, 2011, thousands of uni ts at metalcast ing and other industrial facilit ies around the country may be considered solid waste incinerators. As incinerators, these units may beco me subject t o the emissio ns limits for exist ing units under state plans that implement the 2000 CISWI rule. The compliance date for th ese exist ing units is unclear, as is the compliance date for any n ewly cl assified incinerators that
are modified after September 21, 2011, even if that modificat io n is necessary to meet other Clean Air Act requirements. Justice requires that EPA stay b oth rul es. 6
B. Even under the more stringent judicial standard, a stay is warranted. While a stay

i s warranted under the APA, it w ould be just ified even under the more stringent standard emplo yed by the courts. Courts ty pically consider four factors in determining whether to grant a judicial stay : “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the meri

ts; (2) whether the applicant will be irreparably injured absent a stay ; (3) whether issuance of the stay will substant ially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder , 129 S. C t. 1749, 1761 (2009). These factors must be balanced against one another, such that “[a] stay may be granted

6 AFS notes that EPA’s ability to control the effect of the NHSM Rule o n state SIPs may be limited. Accordingly, even if it grants a stay

o f the 2000 CISWI Rule, a stay o f the NSHM Rule is still needed. A FS also notes that its members’ thermal sand reclamation units all are subject to applicable state permits and no state h as ever asserted that these units must be permitted as CISWI units.The Honorable Lisa P. Jackson

May 19, 2011 Page 11

wi th ei ther a hi gh probabilit y of success and so me injury , or vice versa.” Cuomo v. US Nuclear Reg. Com’n , 772 F.2d 972, 974 (D.C. Cir. 1985). All fo ur f actors are am

ply satisfied in this case.
1. Petitioners are Likely to Succeed on the Merits.

As di scussed above, EPA provided no notice of or opportunit y to comment on the regulation o f th ermal sand recl amat io n uni

ts under secti on 129 of the CAA. Accordingly , applying CISWI standards to thermal sand reclamat io n unit s vio lates the APA. 5 U.S.C. 553. Applying CISWI standards to thermal sand reclamation unit s also would vio late the CAA. Under sect io n 129 of the CAA, new and exist ing unit MACT standards must be achievable limits based on the maximum degree of reduction in emissio ns considering cost and non

- ai r healt h and environmental impacts and energy requirements. CAA Sect io n 129(a)(2), 42 U.S.C. 7429(a)(2). EPA used data collected under an Informat io n Collection Request to develop the CISIW Rule. This request did not request informat io n fro m fo undri es. Thus, EPA did not consider the performance of thermal

sand reclamati on uni

ts used by f oundri es when i

t devel oped ei

th er the 2000 or the 20 11 CISWI rule. EPA also did not consider the cost and non

- ai r heal th and environmental impacts and energy requirements of such controls. Finally , as noted i n the May 13, 2011, letter, EPA did not analyze or address this issue in the preamble or in the Re gulatory Im pact Analysis of the CISWI Rule. Accordingly, EPA has no legal basis to regulate these unit s under sect io n 129 and applying the CISWI standards for incinerators to thermal sand reclamat io n units vio lates the CAA.

CAA sect io n 307(d) requires EPA, at the time it proposes a rule, to include a “statement of basis and purpose” that must include a summary of the “major legal interpretations and policy considerations underlying the proposed rule.” This requirement is inherent in all federal agency
rul emaking that proceeds under the APA. An agency m ust set forth the reasons underlying its acti ons, and the reasons must be stated at the time of proposal so interested parties will have the opportunit y to provi de “meaningful co mment.” E.g., Northeast Mary land Waste Disposal Authority v. EPA, 358 F.3d 936, 948

- 49 (D.C. Cir. 2004). In Northeast Maryland, the D.C.The Honorable Lisa P. Jackson

May 19, 2011 Page 12

Ci rcui t reversed an EPA rul e under CAA sect io n 129 on the grounds that EPA had failed to provi de any rat io nale to support the regulation o f sub

- categorizat io n of unit s in a manner that adversely affected the peti

ti oners. In the case of thermal sand treatment units, EPA has failed to provi de any rat io nale at all to support regulat ing these unit s. Accordingly , the 2000 and 2011 CISWI Rules cannot ap ply to these unit s. Further, given that EPA did not analyze the economic impacts to the many foundries that are small businesses, EPA’s regulatory act io n also vio lated the Regulatory Flexibilit y Act.
2. A stay of the CISWI Rule is required to avoid irreparable harm.

Peti ti oners have asked for reconsideration o f th e applicabilit y of the CISWI Rule to foundry sand recl amat io n unit s. Absent a stay pending reconsideration, Petitioner’s members will suffer irreparable harm. First, Petitioner’s membe rs will face uncertaint y and legal risk regarding the regul atory

status of thermal sand reclamat io n units. Second, because thermal reclamat io n does not invo lve energy recovery and does not take place in a waste

- burning kiln, Petit io ners’ members may

h ave to stop reclaiming their foundry sand on May 20, 2011.

If Pet it io ners’ members decide to comply wi th CISWI limits, they

will h ave to invest in air pollut io n controls that will increase the capital costs of the sand reclamat io n unit. The cost for th ese th ermal

sand reclamati on uni

ts ranges from

$500,000 to over $1,200,000 (depending on the size of the unit needed), and the cost of the required add

- on control equi pment would range fro m $1,000,000 to $2,500,000, for total costs ranging from $1,500,000 to $ 3,700,000. This dramat ic increase in equipment cost does not include operational costs, which will increase by approximately

25 percent. Such com

pliance cost increases will make the operation of thermal sand reclamat io n uni

ts no l onger cost effect ive or economically viable. In addit io n, the cost of permitting and emissio ns testi ng for these units, which will take several years, would be approximately

$60,000 to $100,000.The Honorable Lisa P. Jackson

May 19, 2011 Page 13 As a result of the high increased co mp liance costs imposed by the new regulatory re qui rements, it i s likely that Peti ti oners’ members will no longer be able to thermally reclaim foundry sand to facilitate reuse of the sand within the foundry and will h ave to purchase addit io nal sand and find di sposal/beneficial use options for used sand. However, the May 20, 2011, deadline gives P eti ti oners members no time to address these issues. Due to increased demand for the sand by th e natural gas industry

f or hy draulic fracturing, the supply of sand available to foundries has decreased significant ly. If member companies are forced to stop using their thermal sand recl amat io n unit s, they

will incur substantial costs associated with sand purchases and sand di sposal of approximately one millio n tons of foundry sand a yearthat are currently being th e rmally reclaimed at foundries across the United States. The addit io nal costs for a ty pi cal fo undry to buy n ew sand and dispose of its used sand would be approximately $1,000,000 annually. Given that over 100 foundries currently thermally reclaim thei r sa nd, the costs to the industry could exceed $100,000,000 a year. Both the impossibilit y of

pl anning for these consequences by May 20, 2011, and the addit io nal costs imposed on members co mpanies constitute irreparable harm. Irreparable injury is injury f or which a party

will not be adequately compensated through money damages or other corrective relief if ult imately successful on the merits. Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958). Economic losses unrecov erable from an immune federal agency and losses threatening a company’s viabilit y both const it ut e i rreparable harm. See Smoking Everywhere, Inc. v. FDA , 680 F. Supp. 2d 62, 76

– 77, n.19 (D.D.C. 2010), aff’d sub nom. Sottera, Inc. v. FDA , No. 10

- 5032, 2010 WL 4942132, at *7 (D.C. Cir. Dec. 7, 2010) (upholding the district court’s finding of irreparable loss as “ent ir ely reasonable”); see also Cal. Pharms

. v. Maxw

ell

-Jolly , 563 F.3d 847, 852 (9th Cir. 2009); Kan. Health Care Ass’n v. Kan. Dep’t of Soc., 31 F.3 d 1536, 1543 (10th Cir. 1994).

Even facilit ies that do not face shutdown face irreparable harm as a result of wasted expenditures. The D.C. Circuit recently granted a mot io n fo r expedited considerat io n of a challenge to the Portland Cement MACT. Order, Portland Cement Association, Inc. v. EPA , No. 10

- 1359 (D.C. Cir. Jan. 19, 2011). In order to justify expedited consideration, a party “mustThe Honorable Lisa P. Jackson

May 19, 2011 Page 14

demonstrate that the delay will cause irreparable injury .” D.C. Ci r. Handbook at 34. In that case, petit io ners arg ued that they f aced i rreparable injury

f rom h aving to commit resources to implement a MACT rule that was subject to challenge and potential change. By grant ing the
mo ti on, the D.C. Circuit clearly indicated that the harms in question constituted irreparab le harm. It necessarily fo llo ws that the impact the CISWI Rule will have on the Petitioner’s members, combined wit h the significant legal uncertaint y similarly constitutes irreparable harm and warrants a stay
. 3. A stay of the 2000 CISWI Rule will not h arm any other party. A stay of the applicabilit y of the 2000 CISWI Rule to thermal sand reclamat io n uni ts at f oundri es will not cause harm to any person because these units already are regul ated under applicable federal and state air permitt ing requireme nt s, thereby fully protecting human health and the environment.
4. The public interest requires a stay. Given the irreparable harm to Petitioner’s members if a stay i s not granted and the lack of harm to any other person if a stay

i s granted, it i s c lear that the public interest requires a stay of the applicabilit y of

sect io n 129 of the CAA thermal sand reclamation units found at foundries.

IV. Conclusion.

As demonstrated above, EPA must reconsider and amend the CISWI Rule to prevent the applicat io n of section 129 of the CAA to thermal sand reclamat io n units used by foundries. In addi ti on, to avoi d i

rreparable harm

to the Peti

ti oner’s members, EPA m ust stay the applicabilit y of sect io n 129 to such units pending reconsiderat io n.The Honorable Lisa P. Jackson

May 19, 2011 Page 15

On behalf o f th e American Foundry Soci et y, we l ook f

orward to working wit h yo u on these requests. If you have quest io ns or need addit io nal informat io n, pl ease contact Jeff Hannapel in our Washington office at 202

- 257

- 3756 or jhannapel@thepo licygroup.com

. Respect fu lly

submi tted,

Jerry Call Execut ive Vice President American Foundry Society

cc: Gina McCarthy Janet McCabe Ri chard Ossias Peter Tsirigotis Robert Wayland Toni Jones Charl ene Spells