MEMORANDUM

TO: CISWI Reconsideration Rule Docket

FROM: Steven Silverman , Attorney OGC

RE: Discussions with Representatives of PCA regarding regulatory language dealing with when 

combustion occurs in a cement kiln

On May 9, 2012, I spoke with Richard Stoll, counsel for PCA, regarding regulatory language 

defining when combustion occurs in a cement kiln. Paul Versace, also of EPA’s office of General 

Counsel, was on the call as well. This call followed several earlier discussions between us on the same 

issue when I explained that the provision should be drafted without referring to “ingredients” to avoid 

any issues as to what an “ingredient” is and whether recycling must be legitimate in order for a 

secondary material to be an ingredient. We were otherwise in agreement that the final rule should 

codify the principles set out in an EPA memorandum of April 25, 2011 and discussed at 76 FR 28322 

(May 17, 2011). The proposed CISWI reconsideration had attempted to codify the principles set out in 

the memorandum and May 17, 2011 preamble, but had failed to do so completely.

To assure that regulatory language reflected these intentions, we sent draft rule and preamble 

language to Mr. Stoll on May 9 for his clients’ review for technical accuracy. His replies are appended 

below, along with the e mails to which he was replying. 

1. E mail from Richard Stoll to Steven Silverman; cc; Andy O’Hare, PCA

Steve and Paul -- I have checked with Andy and this preamble language looks 

fine to us. Please let us know what you think about the suggested edit to the 

draft regulatory language I forwarded to you earlier today.

Thanks very much, Dick

From: Steven Silverman [mailto:silverman.steven@epamail.epa.gov] 

Sent: Wednesday, May 09, 2012 3:32 PM

To: Stoll, Richard G.

Cc: Andrew; O'Hare@epamail.epa.gov; Paul Versace

Subject: draft preamble language: suggestions welcome
9. Definition of “Waste-burning Kiln”

In the December 23, 2011 reconsideration proposal, we proposed 

revisions to the definition of “waste-burning kiln” to indicate 

that the term “does not include a kiln that is feeding nonhazardous secondary ingredients exclusively into the cold end of 

the kiln.” In proposing this language, EPA intended to codify 

principles set out in a previous action granting and denying 

reconsideration of the NESHAP for Portland cement kilns. See 76 

FR 28318, 28322 (May 17, 2011); see also Memorandum “Revised 

Floors Without Kilns That Would Have Been CISWI Kilns Had the 

Solid Waste Definition Applied” (EPA, April 25, 2011) (which 

memorandum is summarized in the May 17 Federal Register notice). 

The May 17 notice and April 25 memorandum state in essence that 

combustion does not occur in any region of a cement kiln except 

the hot end, and that cement kiln dust added to the hot end of a 

cement kiln also is not combusted since it is inorganic and 

essentially inert.

The language used at proposal captured some but not all of these 

principles, since it referred only to the “cold end” of a cement 

kiln, as pointed out by a number of commenters. EPA is revising 

the definition in the final rule to accurately reflect the May

17 preamble and April 25 Memorandum discussion of when 

combustion occurs in a cement kiln.

One further clarification is appropriate. The May 17 preamble 

contains one reference to legitimacy criteria for determining 

when a secondary material is being recycled. 76 FR at 28322/1-2. 

The threshold issue for determining if a unit is subject to 

section 129 is whether it “combusts” solid waste material (see 

section 129 (g)(1)). For cement kilns, this determination does 

not turn on legitimacy of recycling, but rather on the nature of 

the cement kiln process. Consequently, if combustion of solid 

waste is not occurring, a unit is not a CISWI whether or not 

legitimate recycling is occurring. 

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2. Letter from Richard Stoll to Steve Silverman replying to EPA e mail (attached)

Steve and Paul -- please see Andy's suggested alternative below and our 

reasoning behind it. Recall when we started out with the original Keith Barnett 

"cold end" memo (which preceded the 4/25/11 Barnett memo that is posted on 

the web) all our efforts were geared to trying to describe what is part of the 

"cold" end and the precalciner issues came into play. Now that the focus of 

your draft language turns this around and focuses on the flame zone, which is 

a good idea, we no longer need the clarification regarding precalciner (or riser 

burner) because there is no flame there at all.

I suggest that further discussions involving technical issues might best be 

between Keith and Andy.

Thanks, Dick

From: O’Hare, Andrew [mailto:AOhare@cement.org] 

Sent: Wednesday, May 09, 2012 1:13 PM

To: Stoll, Richard G.

Subject: ingredients language

Dick, 

Thank you for sharing the draft ingredients language. I have reviewed it and pasted in below my 

suggested alternative. My alternative would be simpler and not make reference to the precalciner or 

“riser burner.” The logic for such is that there is no flame in a precalciner or riser burner. The reactions 

taking place in these vessels are endothermic (heat adsorbing) rather than exothermic (heat releasing), 

which is what occurs in the flame zone.

Please let me know if you have any questions. 

Regards,

Andy 
EPA Proposal:

Waste-burning kiln means a kiln that is heated, in whole or in part, by 

combusting solid waste (as that term is defined by the Administrator pursuant 

to Subtitle D of RCRA). Secondary materials used in Portland cement kilns 

shall not be deemed to be combusted unless they are introduced into the flame 

zone in the hot end of the kiln or into the into the flame zone of the precalciner 

or riser burner (if installed). 

My preferred alternative:

Waste-burning kiln means a kiln that is heated, in whole or in part, by 

combusting solid waste (as that term is defined by the Administrator pursuant 

to Subtitle D of RCRA). Secondary materials used in Portland cement kilns 

shall not be deemed to be combusted unless they are introduced into the flame 

zone in the hot end of the kiln.

1.

The preceding email message may be confidential or protected by the attorney-client 

privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If 

you have received this message in error, please (i) do not read it, (ii) reply to the sender 

that you received the message in error, and (iii) erase or destroy the message. Legal 

advice contained in the preceding message is solely for the benefit of the Foley & 

Lardner LLP client(s) represented by the Firm in the particular matter that is the subject 

of this message, and may not be relied upon by any other party. 

Internal Revenue Service regulations require that certain types of written advice include a 

disclaimer. To the extent the preceding message contains advice relating to a Federal tax 

issue, unless expressly stated otherwise the advice is not intended or written to be used, 

and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding 

Federal tax penalties, and was not written to support the promotion or marketing of any

transaction or matter discussed herein.