May 19, 2011

The Honorable Lisa P. Jackson

Administrator

United States Environmental Protection Agency

Room 3000

Ariel Rios Building

1200 Pennsylvania Avenue, NW

Washington, DC 20004

Re: Petition for Administrative Reconsideration, Amendment and Stay of 

the CISWI Rules

Dear Administrator Jackson:

The American Foundry Society (AFS or the Petitioner) hereby petitions the U.S. Environmental 

Protection Agency (EPA or the Agency) for reconsideration and amendment of the Standards of 

Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration Units (76 Fed. Reg. 15704 (Mar. 21, 2011)) 

(2011 CISWI Rule), and the Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration 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 Emissions Guidelines established by

that rule for existing sources under 40 C.F.R. Part 63, Subpart DDDD.1 

Over one hundred Petitioner member companies operate one or more thermal sand reclamation 

units that treat foundry sand as part of the continuous industrial process. The Petitioners 

submitted extensive comments on the proposed CISWI Rules to Docket No. EPA-HQ- OAR2003-0119, but those comments made no reference to thermal sand reclamation units. However, 

 

1

 EPA already has agreed 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 Units, 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 material 

as solid waste (76 Fed. Reg. 15456 (Mar. 21, 2011)) (NHSM Rule), the units described above 

may be incinerators of solid waste subject to CISWI standards. 

The Petitioner’s member companies also own and operate hundreds of direct flame oxidizers 

designed to treat off gas from cupola furnaces under the National Emissions Standard for 

Hazardous Air Pollutants for Iron and Steel Foundries (Foundry MACT), 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 is requesting that EPA 

similarly clarify the status of these units in the CISWI Rule. 

Pursuant to section 307(d)(7)(B) of the Clean Air Act (“CAA”), EPA is authorized to reconsider 

a rule where it was impracticable to raise an objection during the period of public comment or if 

the grounds of such objection arose after the public comment period (but within the time 

specified for judicial review), and if such objection is of central relevance to the outcome of the 

rule. Given the fact that the Petitioner had no notice of the fact that EPA would consider its 

thermal sand reclamation units to be CISWI units, the Petitioner had no opportunity to comment 

on the regulation of such units as CISWI units during the comment period on either the 2000 or 

the 2011 CISWI Rules. The grounds for AFS’ request for reconsideration are a result of the 

NHSM Rule. Thus, the grounds for our objection arose after the public comment period but 

within the time specified for judicial review.3 Further, this fact is of central importance to the 

outcome of the rule because the final rule regulates units without consideration of the ability of

these units to meet CISWI standards. Accordingly, for the reasons detailed herein, 

reconsideration of both the 2000 and the 2011 CISWI Rules under section 307(d) is appropriate 

 

2

 Letter dated May 13, 2011, from Suzanne Rudkinski, Director, Office of Resource Conservation and Recovery, to 

Mr. Tim Hunt, 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 of that effective date. Petition for Administrative Stay Pending Appeal of 

the Final Rule: Identification of Non-Hazardous Secondary Materials That Are 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 petitions the Agency for administrative reconsideration and amendment of the CISWI 

Rules. 

In addition, Petitioner had no opportunity to seek an affirmation that units that combust gases are 

not CISWI units because we were unaware that the issue would come up in the NHSM Rule. 

Thus, we petition EPA to address this issue in the revised CISWI Rule. 

We note that EPA retains residual authority under CAA section 112(d)(6) to periodically review 

and, as appropriate, revise MACT standards. In the event that EPA takes the position that the 

issues identified below do not qualify for reconsideration pursuant to section 307(d)(7)(B), we 

alternatively petition EPA to amend the final CISWI rule to make the changes described below 

for the reasons explained herein.

AFS also petitions EPA for a stay of the 2000 CISWI rule as it may apply to thermal sand 

reclamation units pending reconsideration of the CISWI Rule under both Section 307 of the CAA 

and Section 705 of the Administrative Procedure Act (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 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 reconsideration 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 created great substantive uncertainty; they also have created great 

procedural uncertainty regarding the steps needed to obtain relief from those actions. To protect all of its procedural 

rights, AFS is filing petitions for judicial review not only of 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 major trade and technical association for the North American metalcasting industry. 

AFS has more than 9,000 members representing over 3,000 metalcasting firms, their suppliers 

and customers.

The practice of melting and casting metal into solid forms has served society’s needs for more 

than 5,000 years. Metal castings are the foundation for all other manufacturing, and metalcasters 

have been a vital building block for every nation’s economic wealth. Every sector relies on 

castings; 90 percent of all manufactured goods and capital equipment incorporate engineered 

castings into their makeup. The major industries supplied by metalcasting include agriculture, 

construction, mining, railroad, automotive, aerospace, communications, health care, defense and 

national security.

The American metalcasting industry provides employment for over 200,000 men and women 

directly and supports thousands of other jobs indirectly. The industry supports a payroll of more 

than $8 billion and sales of more than $36 billion annually. Metalcasting plants are found in 

every state, and the industry is made up of predominately small businesses. Approximately 80 

percent of domestic metalcasters have fewer than 100 employees.

In its simplest terms, metalcasting involves creating a mold with sand that defines the inside and 

outside characteristics of the desired piece of metal, melting metal (called the “charge”) in 

furnace, and pouring molten metal into the mold. After the casting has solidified, it is shaken out 

of the mold and excess material is removed. Many facilities use a cupola furnace to melt the 

metal. This type of furnace uses metallurgical coke as a fuel source and often injects additional 

oxygen to increase the melt rate. This process generates off-gases containing contaminants that 

must be treated in an oxidizer. The sand from the mold is collected and reused in an endless 

cycle. This cycle may include periodic treatment of the sand in a thermal reclamation unit to 

improve the quality of the sand and metal castings. 
The Honorable Lisa P. Jackson

May 19, 2011

Page 5

II. Reconsideration and Amendment of Provisions of the CISWI 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 metalcasting process involves pouring molten metal into sand molds to produce metal

castings. The sand molds and cores are formed by mixing sand with clay or resin binders to 

form a cavity into which the molten metal is poured. 

When the metal castings are cooled, the molds are broken to remove the castings from the sand 

in a process referred to as “shakeout.” After the casting is separated from the mold and core 

sand, it is sent off for cleaning. During the shakeout process the molds and sand cores are placed 

into a mechanical reclamation process consisting of a vibratory drum or mechanical shaker with 

perforations and a series of conveyors and screens. Sand (hereafter referred to as return sand) 

that passes through the drum/shaker and screens is returned to the mold making process to be 

used to make new molds. Some foundries also process the return sand in a thermal sand 

reclamation unit that helps to remove additional residual binder and dust, thus making the sand 

more amenable to reuse (in many cases even better than virgin sand).

The entire process of making sand molds and reclaiming return sand for producing new molds is 

referred to as the sand loop. Foundries typically recycle foundry sand within the sand loop at 

least 20 times before it can no longer be reused for molds and must be either discarded or 

beneficially used in some fashion. 

Foundry sand is not considered a waste by the foundry industry as it is beneficially reused in a 

continuous industrial process. In the proposed NHSM Rule, EPA agreed with this conclusion, 

noting that foundry sand would not be considered a solid waste when used as an ingredient in a 

combustion unit. 75 Fed. Reg. 31844, 31869 (June 4, 2010). This conclusion 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 is 
The Honorable Lisa P. Jackson

May 19, 2011

Page 6

not a waste when it is “re-used on-site in the primary production process on a continuous basis in 

the sand loop.” 75 Fed. Reg. at 15519. However, in that preamble, EPA for the first time also 

took the position that even though foundry sand is not a waste, any contaminants in the foundry

sand that are thermally destroyed are wastes and therefore any units that thermally reclaim 

foundry sand would be subject to section 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 result, the Petitioner had no opportunity 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 

rule. Under section 129 of the CAA, new and existing unit MACT standards must be achievable 

limits based on the maximum degree of reduction in emissions considering cost and non-air 

health and environmental impacts and energy requirements. CAA Section 129(a)(2), 42 U.S.C. 

7429(a)(2). EPA used data collected under an Information Collection Request to develop the 

rule. This request did not go to foundries and EPA has no data about the performance of foundry

sand thermal reclamation units, and no data on the cost and non-air health and environmental 

impacts and energy requirements related to imposing limits on these units under section 129. 

Accordingly, EPA has no legal basis to regulate these units under section 129 and applying the 

CISWI standards for incinerators to these units violates the CAA. 

Just as EPA decided to forego applying the CISWI Rule to burn-off ovens and solid treatment 

units because it had no data on those categories, EPA must determine that this rule does not 

apply to foundry sand thermal reclamation units. 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 regulation of certain units in its proposed CISWI Rule, and did not analyze or 

address the regulation of such units in the preamble to the final CISWI Rule or in the Regulatory

Impact 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 from the foundry cupola furnace is a mixture of the products of combustion of 

the coke, the gases generated from the calcination of the fluxing agents, and the gases generated 

by the reactions of the products of combustion, decomposition and reduction of the metal oxides 

contained in the charge materials. The Foundry MACT (40 C.F.R. Part 63, Subpart EEEEE) 

requires that all cupola off gas be treated in a direct flame oxidizer with at least 0.3 seconds 

residence time at a minimum of 1,300°F operating temperature, specifically for major sources. In 

addition, individual state regulations may also apply to the combustion of cupola off gas. 

The statutory definition of solid waste under RCRA includes “contained gaseous material.” 42 

U.S.C. 6904(27). Since EPA first examined this issue 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 regulation ends and Clean Air Act regulation begins. 47 Fed. Reg. at 

27530. To ensure that this interpretation of RCRA carried through to the implementation of 

section 129 of the Clean Air Act, the 2000 CISWI Rule defined “contained gaseous material” as 

follows: “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 

for this long-standing interpretation. NHSM, Response to Comments, at 213. EPA did not 

include a definition of “contained gaseous material” in the NHSM Rule and deleted that 

definition from the CISWI rule. 76 Fed. Reg. at 15761. 

In the proposed CISWI rule (75 Fed Reg. 31938 (June 4, 2010)) EPA did not propose to delete 

the definition of “contained gaseous material” from the 2000 CISWI rule. 75 Fed. Reg. at 

31983. However, this definition is deleted in the final CISWI Rule with no discussion of this 

change in either the preamble or the response to comments document. 76 Fed. Reg. at 15761. 
The Honorable Lisa P. Jackson

May 19, 2011

Page 8

The Petitioner appreciates the letter sent from Suzanne Rudzinski to Tim Hunt on May 13, 2011, 

asserting that EPA’s Response to Comments document for the NHSM Rule “does not change 

any previous EPA positions” and “the Agency’s previous statements and interpretations remain 

effective.” We agree that EPA could not change its long-standing position that the term

“contained gaseous material” includes only gases in containers, without going through notice and 

comment rulemaking. However, the Petitioner believes that this issue should be addressed in the 

CISWI Rule, as it is revised during reconsideration. EPA must explain the deletion of the term

“contained gaseous material” from the CISWI Rule and ensure that no inferences are drawn from 

that deletion that would be inconsistent with Ms. Rudzinski’s May 13, 2011, letter. 

The Petitioner had no opportunity to comment on this issue during the comment period on the 

CISWI rule. Accordingly, reconsideration is appropriate under Section 307 of the CAA. AFS 

requests EPA to include in the CISWI Rule, or the preamble to that rule, a specific statement that 

air pollution control devices such as direct flame oxidizers are not subject to section 129 of the 

CAA because the units 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 authority to grant a stay pending reconsideration of the CISWI Rule 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 

CISWI Rule as it may apply to thermal sand reclamation units also is appropriate. 

 

5

 Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and Industrial Solid Waste 

Incineration Units, 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 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 Implementation 

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 Prevention 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 

facilities 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 Furnaces, 56 Fed. Reg. 

42874 (Sept. 5, 1991). Thus, the APA provides ample authority for EPA to stay the CISWI Rule. 

As demonstrated below, the Environmental Protection Agency (EPA or the Agency) has ample 

authority and justification to grant an administrative stay under section 705 of the APA , 5 U.S.C. 

§ 705, pending judicial review and such an administrative stay is required to impart justice and to 

prevent irreparable harm. 

A. A Stay of the CISWI Rule is Required by Justice.

Justice requires a stay of the 2000 CISWI Rule, as it may apply to any newly identified 

incinerators because currently there is substantial uncertainty regarding what is considered a 

waste and therefore what units are subject to emission limits for incinerators under section 129 of

the CAA. Many more units may now be considered solid waste combustion units as a result of 

the 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 Solid Waste Incineration Units (76 Fed. Reg. 15704 (Mar. 21, 2011)) 

(CISWI Rule) or under existing 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 continuous 

industrial process that involves combustion units. This creates substantial uncertainty regarding 

the timing of the applicability of the CISWI Rule to units that are not energy recovery units or 

cement kilns. For this reason, Petitioners have asked for an administrative stay of the NHSM 

Rule. However, to ensure Petitioner’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 applicability of section 129 to newly identified incinerators. 

Absent a stay of either the NHSM Rule or the 2000 CISWI Rule, as of May 20, 2011, thousands 

of units at metalcasting and other industrial facilities around the country may be considered solid 

waste incinerators. As incinerators, these units may become subject to the emissions limits for 

existing units under state plans that implement the 2000 CISWI rule. The compliance date for 

these existing units is unclear, as is the compliance date for any newly classified incinerators that 

are modified after September 21, 2011, even if that modification is necessary to meet other Clean 

Air Act requirements. Justice requires that EPA stay both rules.6

B. Even under the more stringent judicial standard, a stay is warranted. 

While a stay is warranted under the APA, it would be justified even under the more stringent 

standard employed by the courts. Courts typically 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 merits; (2) whether the applicant will be irreparably injured absent a 

stay; (3) whether issuance of the stay will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.” Nken v. Holder, 129 S. Ct. 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 on state SIPs may be limited. Accordingly, 

even if it grants a stay of the 2000 CISWI Rule, a stay of the NSHM Rule is still needed. AFS also notes that its 

members’ thermal sand reclamation units all are subject to applicable state permits and no state has ever asserted 

that these units must be permitted as CISWI units. 
The Honorable Lisa P. Jackson

May 19, 2011

Page 11

with either a high probability of success and some injury, or vice versa.” Cuomo v. US Nuclear 

Reg. Com’n, 772 F.2d 972, 974 (D.C. Cir. 1985). All four factors are amply satisfied in this case. 

1. Petitioners are Likely to Succeed on the Merits.

As discussed above, EPA provided no notice of or opportunity to comment on the regulation of 

thermal sand reclamation units under section 129 of the CAA. Accordingly, applying CISWI 

standards to thermal sand reclamation units violates the APA. 5 U.S.C. 553. 

Applying CISWI standards to thermal sand reclamation units also would violate the CAA. 

Under section 129 of the CAA, new and existing unit MACT standards must be achievable limits 

based on the maximum degree of reduction in emissions considering cost and non-air health and 

environmental impacts and energy requirements. CAA Section 129(a)(2), 42 U.S.C. 7429(a)(2). 

EPA used data collected under an Information Collection Request to develop the CISIW Rule. 

This request did not request information from foundries. Thus, EPA did not consider the 

performance of thermal sand reclamation units used by foundries when it developed either the 

2000 or the 2011 CISWI rule. EPA also did not consider the cost and non-air health and 

environmental impacts and energy requirements of such controls. Finally, as noted in the May 

13, 2011, letter, EPA did not analyze or address this issue in the preamble or in the Regulatory

Impact Analysis of the CISWI Rule. Accordingly, EPA has no legal basis to regulate these units 

under section 129 and applying the CISWI standards for incinerators to thermal sand reclamation 

units violates the CAA. 

CAA section 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 

rulemaking that proceeds under the APA. An agency must set forth the reasons underlying its 

actions, and the reasons must be stated at the time of proposal so interested parties will have the 

opportunity to provide “meaningful comment.” E.g., Northeast Maryland 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

Circuit reversed an EPA rule under CAA section 129 on the grounds that EPA had failed to 

provide any rationale to support the regulation of sub-categorization of units in a manner that 

adversely affected the petitioners. In the case of thermal sand treatment units, EPA has failed to 

provide any rationale at all to support regulating these units. Accordingly, the 2000 and 2011 

CISWI Rules cannot apply to these units. 

Further, given that EPA did not analyze the economic impacts to the many foundries that are 

small businesses, EPA’s regulatory action also violated the Regulatory Flexibility Act. 

2. A stay of the CISWI Rule is required to avoid irreparable harm. 

Petitioners have asked for reconsideration of the applicability of the CISWI Rule to foundry sand 

reclamation units. Absent a stay pending reconsideration, Petitioner’s members will suffer 

irreparable harm. First, Petitioner’s members will face uncertainty and legal risk regarding the 

regulatory status of thermal sand reclamation units. Second, because thermal reclamation does 

not involve energy recovery and does not take place in a waste-burning kiln, Petitioners’ 

members may have to stop reclaiming their foundry sand on May 20, 2011. 

If Petitioners’ members decide to comply with CISWI limits, they will have to invest in air 

pollution controls that will increase the capital costs of the sand reclamation unit. The cost for 

these thermal sand reclamation units 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 equipment would range from 

$1,000,000 to $2,500,000, for total costs ranging from $1,500,000 to $3,700,000. This dramatic 

increase in equipment cost does not include operational costs, which will increase by 

approximately 25 percent. Such compliance cost increases will make the operation of thermal 

sand reclamation units no longer cost effective or economically viable. In addition, the cost of 

permitting and emissions testing 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 compliance costs imposed by the new regulatory requirements, 

it is likely that Petitioners’ members will no longer be able to thermally reclaim foundry sand to 

facilitate reuse of the sand within the foundry and will have to purchase additional sand and find 

disposal/beneficial use options for used sand. However, the May 20, 2011, deadline gives 

Petitioners members no time to address these issues. Due to increased demand for the sand by

the natural gas industry for hydraulic fracturing, the supply of sand available to foundries has 

decreased significantly. If member companies are forced to stop using their thermal sand 

reclamation units, they will incur substantial costs associated with sand purchases and sand 

disposal of approximately one million tons of foundry sand a year that are currently being 

thermally reclaimed at foundries across the United States. The additional costs for a typical

foundry to buy new sand and dispose of its used sand would be approximately $1,000,000 

annually. Given that over 100 foundries currently thermally reclaim their sand, the costs to the 

industry could exceed $100,000,000 a year. 

Both the impossibility of planning for these consequences by May 20, 2011, and the additional 

costs imposed on members companies constitute irreparable harm. Irreparable injury is injury 

for which a party will not be adequately compensated through money damages or other 

corrective relief if ultimately 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 unrecoverable from an 

immune federal agency and losses threatening a company’s viability both constitute irreparable 

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 “entirely reasonable”); see also 

Cal. Pharms. v. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009); Kan. Health Care Ass’n v. 

Kan. Dep’t of Soc., 31 F.3d 1536, 1543 (10th Cir. 1994). 

Even facilities that do not face shutdown face irreparable harm as a result of wasted 

expenditures. The D.C. Circuit recently granted a motion for expedited consideration 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 “must 
The Honorable Lisa P. Jackson

May 19, 2011

Page 14

demonstrate that the delay will cause irreparable injury.” D.C. Cir. Handbook at 34. In that 

case, petitioners argued that they faced irreparable injury from having to commit resources to 

implement a MACT rule that was subject to challenge and potential change. By granting the 

motion, the D.C. Circuit clearly indicated that the harms in question constituted irreparable harm. 

It necessarily follows that the impact the CISWI Rule will have on the Petitioner’s members, 

combined with the significant legal uncertainty similarly constitutes irreparable harm and 

warrants a stay. 

3. A stay of the 2000 CISWI Rule will not harm any other party. 

A stay of the applicability of the 2000 CISWI Rule to thermal sand reclamation units at foundries 

will not cause harm to any person because these units already are regulated under applicable 

federal and state air permitting requirements, 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 is not granted and the lack of harm 

to any other person if a stay is granted, it is clear that the public interest requires a stay of the 

applicability of section 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 

application of section 129 of the CAA to thermal sand reclamation units used by foundries. In 

addition, to avoid irreparable harm to the Petitioner’s members, EPA must stay the applicability 

of section 129 to such units pending reconsideration. 
The Honorable Lisa P. Jackson

May 19, 2011

Page 15

On behalf of the American Foundry Society, we look forward to working with you on these 

requests. If you have questions or need additional information, please contact Jeff Hannapel in 

our Washington office at 202-257-3756 or jhannapel@thepolicygroup.com. 

Respectfully submitted,

Jerry Call

Executive Vice President

American Foundry Society

cc: Gina McCarthy

Janet McCabe

Richard Ossias

Peter Tsirigotis

Robert Wayland

Toni Jones

Charlene Spells