500 New Jersey Avenue, NW 7 th Floor Washington, D.C. 20001 August 23, 2010 U.S. Environmental Protection Agency Docket I.D. No. EPA-HQ-OAR-2003-0119 Mail Code 6102T 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: PCA Comments on the EPA's Proposed Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units; Proposed Rule (Docket Number: EPA-HQ-OAR-2003-0119)

Sir/Madam,

Attached please find comments from the Portland Cement Association (PCA) relating to EPA’s proposed regulations for em issions from Commercial and Industrial Solid Waste Incineration (CISWI) units, as published in the June 4, 2010 issue of the Federal Register (75 FR 31938).

PCA is a trade association representing Portland cement manufacturers in the United States and Canada. PCA’s U.S. me mbership includes 28 companies operating 102 manufacturing plants in 34 states and dist ribution centers in all 50 states. PCA members account for more than 97.5 percent of Portland cement making capacity in the U.S.

Thank you for considering the views of PCA on the proposal. If you have any questions related to the attached comments, please contact Bryan Brendle at (202) 408-9494, extension 139 (or bbrendle@cement.org). Thank you.

Sincerely,

Andrew T. O’Hare Vice President, Regulatory Affairs

### Portland Cement Associations' Comments on EPA's Proposed Standard s of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units

75 Federal Register 31,938 (June 4, 2010)

Docket Number: EPA-HQ-OAR-2003-0119Table of Contents

Page

Executive Summary..................................................................................................... ES-1 I. EPA Must Re-Propose the CISWI Rule ............................................................................ 1 II. Non-hazardous secondary materials used as ingredients and fuels in cement kilns should not trigger jurisdiction unde r § 129 of the Clean Air Act ...................................... 8
A. CAA §129 Confers No Jurisdicti on Over Use of Ingredients ............................... 9 B. The RCRA Proposal Places Major Impediments on Reuse/Recycle with No Attempt to Justify Such Impe diments as Necessary to Protect Health/Environment............................................................................................. 10 C. The Function of the Proposed Rule within the Overall Implementation of RCRA is Exceedingly Narrow............................................................................. 10 III. Methodology for Determining the Floors........................................................................ 11

A. Limitations of EPA Database for Waste-burning Kilns ...................................... 12 1. Limited Representation of Emissions Variability.................................... 12 2. Limited Representation of "Solid Waste" Usage..................................... 13 3. Errors and Bias in Assembling the Emissions Database ......................... 14

4. Treatment of Non-Detections in Emissions Data .................................... 16 5. Errors in the Interpretation and Use of Dioxins/Furans TEQ Data ......... 17 6. Use of Disapproved HCl Test Methods................................................... 19 7. Improper Test Methods for PM ............................................................... 20 8. Improper Inclusion of Units in Floor Determination............................... 21

B. Inconsistent Treatment of Data for Units with In-line Raw Mills....................... 21

1. Corrected Emissions Database for EPA's Identified Floor Units ............ 21 IV. Statistical Methodology ................................................................................................... 3 1 A. Choice of Statistical Equation.............................................................................. 31 B. Improper Use of Test Runs to Represent Emissions Variability ......................... 33

C. Floors Should be Based on Anal ysis of Stack Test Results................................. 34 D. EPA Should Assume Log-Normal Distributions for Emissions.......................... 35 E. EPA Needs to Obtain More Information on Long Term Emissions Variability ............................................................................................................ 36 V. Development of Alternative CISWI Floors ..................................................................... 40

A. Alternative Floors U nder the Primary Definition of Solid Waste ....................... 41

B. Alternative Floors Unde r the Alternate Definition of Solid Waste ..................... 45Table of Contents (continued) Page

-iiC. Translation of Floors to St andards Enforced By CEMS...................................... 46 VI. Sub-Categorization of Waste-Burning Kilns................................................................... 49 VII. EPA Should Not Establish an Opacity Limit Given EPA's Proposed Stringent PM Limit.......................................................................................................................... ....... 49

VIII. EPA Has Failed to Address Certai n Critical Implementation Issues and Inadequately Clarified Others.......................................................................................... 50 A. How Will CISWI Kilns Be Regulated Under CAA § 129?................................. 50

1. The Basic Issue ........................................................................................ 50 2. Plain Language of the CAA..................................................................... 51

B. After CISWI Rules Take Full Eff ect, to What Extent Might CAA § 112 Standards Apply During Periods When CISWI Kilns Might Not Be Combusting Solid Waste?.................................................................................... 52 C. After CISWI Rules Are Promulgated, What Processes Will Be Provided for Kilns to Elect In or Ou t of CAA § 129 Coverage? ........................................ 53

D. "New" and "Modified" CISWI Sources............................................................... 53

1. What is the "Cut-off" Date?..................................................................... 54

E. Problems With Definitions .................................................................................. 56

F. Additional "Modification" Issues ........................................................................ 58 G. Monitoring and Testing Issues............................................................................. 59 H. Alkali Bypass Issues ............................................................................................ 60

I. Other Issues.......................................................................................................... 60 IX. Overview Impact of Proposed Emissi on Standards for Waste Incineration Units on Domestic Cement Capacity......................................................................................... 61

A. Overview.............................................................................................................. 61 B. Key Findings........................................................................................................ 62 C. Baseline Scenario (No Emission Policy) ............................................................. 63 1. United States' Cement Consumption Projections .................................... 63 D. United States' Cement Capacity Projections........................................................ 66

E. United States' Baseline Im ported Cement Projections ........................................ 69 F. United States' Baseline Clinker Production Projections ...................................... 71

G. United States' Kiln Fuel Composition Characteristics......................................... 71 H. Baseline Cement Plant Emission Projections ...................................................... 72 I. CISWI Compliance Scenario............................................................................... 73Table of Contents (continued) Page

-iii1. The CISWI Standard................................................................................ 73 2. Cement Plants Covered by CISWI .......................................................... 75 3. CISWI Methodology................................................................................ 75 4. Emissions Control Technology Assumptions.......................................... 76 5. Industry Capital Costs to Comply with EPA Emission Standards .......... 78 6. Industry's Financial Ability to Comply with CISWI Emission Standards.................................................................................................. 80 7. CISWI Impact on Alternative Fuel Practices by the Cement Industry .................................................................................................... 81 8. CISWI Impact on Scrap Tire Stockpiles.................................................. 82 9. CISWI Impact on United States' Construction Costs .............................. 86 10. CISWI Impact on Emission Projections .................................................. 87 X. Case Study on Unachivability of Proposed Standards..................................................... 88

XI. EPA Does Not Have Emissions Data To Impose Emissions Standards During Startup, Shutdown, and Malfunction Events ................................................................... 89 A. By Applying The Proposed Emissions Limits During SSM Events, EPA Is Proposing An Infeasible Standard Contrary To Court Directives ....................... 90 B. EPA Should Develop Work Practi ce Standards To Apply During SSM Periods.................................................................................................................. 92 XII. Setting MACT Floors on a Pollutant-by- Pollutant Basis Violates the Law and Results in MACT Floors That Bear No Re lation to Emission Limits that are Being Achieved at the Best Pe rforming Existing Sources ......................................................... 93 A. EPA's Pollutant-by-Pollutant Met hodology Is at Odds with the Plain Language and Legislative History of § 129(a)(2) and the MACT process.......... 94 B. Setting MACT Floors Based on Actual Emission Limitations Achieved at Existing Sources Supports Economic and Technological Feasibility.................. 95

C. EPA's Previous Use of a Pollutant -by-Pollutant Analysis was Based on Authorities Not Applicable to the Clean Air Act................................................. 96 D. The Proposed Standards Are Technically Interdependent................................... 96

XIII. The Kilns with the Lowest Emissions Are Not Necessarily the Best Performers........... 97 XIV. EPA Did Not Properly Consider Variab ility in Establishing The Proposed CISWI Standards...................................................................................................................... .... 99

XV. Conclusion ................................................................................................................. .... 101Table of Contents (continued) Page

-ivTables

Table A-1. Summary of Errors Identified and Corrected in Emissions Data For BestPerforming Waste-burning Kilns.......................................................................... 16

Table A-2: Table of the EPA Figures [ND=0; EMPC=0] and the Revised TEQ [ND=DL; EMPC=EMPC] for Best Performing Kilns .......................................................... 19 Table A-3. HCl Test Methods Used by Re porting Kilns (Strikethrough Indicates Tests Using Disallowed Test Methods) ......................................................................... 20

Table A-4.1: Corrected Emissions Data for Best-Performing Kilns: Cadmium (Cd) ................ 22

Table A-4.2: Corrected Emissions Data fo r Best-Performing Kilns: Carbon Monoxide (CO) ...................................................................................................................... 23

Table A-4.3: Corrected Emissions Data for Best-Performing Kilns: Hydrogen Chloride (HCl) ..................................................................................................................... 24

Table A-4.4: Corrected Emissions Data fo r Best-Performing Kilns: Lead (Pb) ........................ 25

Table A-4.5: Corrected Emissions Data for Best-Performing Kilns: Mercury (Hg).................. 26

Table A-4.6: Corrected Emissions Data for Best-Performing Kilns: Nitrogen Oxides (NO x )..................................................................................................................... 27

Table A-4.7: Corrected Emissions Data for Be st-Performing Kilns: Particulate Matter (PM, filterable)...................................................................................................... 28

Table A-4.8: Corrected Emissions Data for Best-Performing Kilns: Sulfur Dioxide (SO 2 ) ..................................................................................................................... 29

Table A-4.9. Corrected PCA Emissions Data for Best-Performing Kilns: Dioxins/Furans TMB...................................................................................................................... 30 Table A-4.10. Corrected PCA Emissions Data for Best-Performing Kilns: Dioxins/Furans TEQ ............................................................................................. 31 Table A-5: Summary of the In formation Available on Operating Variability in EPA's Emissions Database for Best-per forming Waste-burning Kilns........................... 34

Table A-6: Additional Stack Test Data on Emissions Variability of Best-Performing Waste-burning Kilns ............................................................................................. 38

Table A-7. Floor Determination based on St ack Tests and the Boiler MACT Equation: Existing Units (Primary SW Definition)............................................................... 43

Table A-8: Floor Determin ation based on Stack Tests a nd the Boiler MACT Equation: New Units (Primary SW Definition) .................................................................... 44

Table A-9. Floor Determination based on St ack Tests and the Bo iler MACT Equation: Existing Units (Alternate SW Definition)............................................................. 47

Table A-10: Floor Determina tion based on Stack Tests and the Boiler MACT Equation: New Units (Alternate SW Definition) .................................................................. 48Table of Contents (continued) Page

-vFigures

Figure 1. Example of Long-term Emissions Variability for a Best Performing Cement Kiln ....................................................................................................................... 37 Figure 2 Projected Cement Demand............................................................................................ 65 Figure 3 Capacity Expansion of Cement Industry....................................................................... 67 Figure 4 Recent Permanent Plant Closures.................................................................................. 69 Figure 5 Baseline Emissions With No Emissions Policy ............................................................ 70 Figure 6 U.S. Cement Plan Fuel Consumption 2005................................................................... 72 Figure 7 Technology Assumptions Regard ing the Recapture of Emissions................................ 78 Figure 8 Cement Plants Burning Alternative Fuels ..................................................................... 82 Figure 9 U.S.Cement Plan Fuel Consumption 2025.................................................................... 84 Figure 10 Total Scrap Tires in Stockpiles.................................................................................... 8 5 Figure 11 CISW I Scenario...................................................................................................... ..... 86

Attachments

Attachment 1 PCA Letters to EPA Regarding Deficiencies in the Docket

Attachment 2 Response Letter from EPA Re garding Deficiencies in the Docket

Attachment 3 PCA Comments filed in Proposed RCRA Rule, dated August 3, 2010

Attachment 4 PCA's Detailed Comments Rega rding Monitoring and Testing Issues

Attachment 5 PCA SSM Outline Provided to Members

Attachment 6 PCA HMIWI CommentsExecutive Summary I. Introduction

The Portland Cement Association (PCA) re spectfully submits comments on the United States Environmental Protection Agency's (EPA ) Proposed Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (CISWI), 75 Fed. Reg. 31938 (June 4, 2010) (Proposed CISWI Rule). PCA represents cement companies throughout the United States and has worked with EPA for many years on various environmental is sues. The portland cement industry is committed to outstanding environmental stewardship and welcomes the opportunity to continue working with EPA after the close of the comment period to ensure a defensible and workable regulation.

II. EPA Must Re-Propose the CISWI Rule

EPA's administrative record is seriously de ficient and EPA must supplement its record and repropose the Proposed CISWI Rule. The ad ministrative record is lacking factual data on which the Proposed CISWI Rule is based and it is impossible for the p ublic to determine the methodology used by EPA to analyze the data that was in the docket. PCA has engaged many technical consultants in an at tempt to provide meaningful comments even though EPA's docket is devoid of the necessary information to adequately comment. The following are examples of the major deficiencies in the rulemaking docket.

• In order to determine the floor values for the limits under this rule, EPA must identify the best performing units in each subcategory and determine the emissions limits which they are capable of meeting over the full range of operating conditions. EPA has not done this.

• For many of the units that EPA has identif ied as best performing units, EPA has a single stack test for the pollutant in ques tion. As set forth in the Pre-publication Portland Cement NESHAP, EPA's policy is cl ear that a single stack test cannot be used to determine, or even estimate, th e emission limit that a unit is capable of meeting over the range of its operating condi tions. Yet in its assessment of best performing waste burning kilns, EPA has only a single stack test for two thirds of the unit and pollutant combinati ons in the floor analysis.

• EPA is treating the three test runs conducte d as a single stack test as individual tests. However, the variation between test runs only captures the variability of the test method and not the variation over the normal range of operating conditions, feeds, fuels and products.

• PCA has found that the EPA data base ha s a large number of errors, omissions and inaccurate assumptions, which are fully identified in the PCA comments.

Finalizing the Proposed CISWI Rule based upo n the information currently available in the rulemaking docket would theref ore be arbitrary and capricious, an abuse of discretion and a breach of procedures required by law and in vi olation of the Clean Air Act (CAA). PCA has tried working with EPA (including communicati ons with EPA's General Counsel) to correct-ES-2- these deficiencies, but these efforts at coll aboration have failed. The result has been a rulemaking process completely lacking in transp arency. As an example, EPA has refused to make public cells in EPA's conversion calculations contained in an Excel spreadsheet, which are integral to understand ing how EPA established the proposed emission limits. Even though EPA has tried to mask the lack of info rmation in the docket through a se ries of letters, even as recent as August 20, 2010, the fact still remains that no where in the docket are the actual calculations (equation with variables filled-in) for EPA's conversion of reported emissions to the emissions used to set the standards in the Proposed CI SWI Rule. PCA has also identified pivotal implementation issues that the Proposed CISWI Rule totally fails to address. EPA must correct these deficiencies and re-propose the Proposed CISWI Rule to allow for full public involvement in this rulemaking effort.

III. Significant Flaws in the Developm ent of the Proposed Emission Limits

In support of our call for re-proposal, PCA submits detailed technical comments to inform EPA on the errors and omissions that mar the derivati on of the proposed limits and other aspects of the Proposed CISWI Rule. In addition to the it ems listed above, PCA identifies the key technical short-comings of EPA's standard setti ng process, which are the following:

• The database does not include emissions da ta representing kiln operation over the range of materials that are being cons idered "solid waste" under the Proposed RCRA Rule; 1

• EPA's interpretation of emissions data in cludes systematic biases and a large number of significant errors that cause EPA's analys is to understate actual emissions and the floors;

• EPA's data for dioxin/furans are unr eliable and incorrect and should be completely reworked;

• EPA has improperly used hydroc hloride (HCl) emissions da ta collected using test methods that have been disallowed by EPA;

• EPA has improperly based its floor analysis on individual test r uns, rather than on complete stack tests ( i.e., the average of 3 test runs), which are the basis on which the standards are stated and will be enforced.

The EPA data and floor analysis are so clearly inadequate and fall so short of providing an adequate characterization of emissions from solid waste-burni ng kilns, that EPA must restart the process of standards development.

1 "Notice of Proposed Rulemaking – Identificati on of Non-Hazardous Secondary Materials That Are Solid Waste When Combusted." (75 Fed. Reg. 31844, June 4, 2010) (the "Proposed RCRA Rule")-ES-3- IV. Demonstration of the Effect of Data and Methodology Errors on the Emission Floors

During its review, PCA attempted to reconstr uct major portions of EPA's database on the emissions of waste-burning cement kilns by reviewi ng the original stack test data and correcting the identified errors in as many cases as possi ble. We also augmented the database where additional stack tests for the best performers coul d be found. Floors were then calculated in two different ways, noted as Options A and B 2 , using a statistically sound implementation of the EPA boiler MACT equation. The charts below report the results of that exercise.

In all cases, the floors derived from our analys is are higher that thos e proposed by EPA. In many instances, denoted in the charts by as terisks, the calculated floors are too high to represent meaningful emission limitations. The purpos e of this analysis is not to argue that EPA should adopt the floors shown in th e charts, but to indicate in star k terms the inadequacy of the existing database (even after our corrections a nd extensions) to suppor t the development of correct and meaningful emission floors for this subcategory.

PCA CISWI Floor Determinations: Existing Kilns
(Primary Definition of Solid Waste)

PCA Floor Analysis
Option A Option B Pollutant Units EPA Proposed

Floor Floor Floor Cadmium mg/dscm 0.0003 * *
CO ppmvd 710 1,575 813
HCl ppmvd 1.5 * *
Lead mg/dscm 0.0027 0.0055 0.0045
Mercury mg/dscm 0.024 0.257 0.682

NO
x ppmvd 1,100 1,492 1,037
PM mg/dscm 60 * 109
Opacity % 4% not appropriate to set standard given PM limit

SO 2 ppmvd 410 * *
DF TMB ng/dscm 2.1 floor not computed pending correction of all data
DF TEQ ng/dscm 0.17 floor not computed pending correction of all data

2 Options A and B are described fully in Secti on V of the PCA Comments. Option A uses all of the data for best performers to estimate floors fo r existing and new units, while Option B uses only the data for the best performers where two or more stack tests are available to give information on emissions variability.-ES-4- * Note: Computed floor value is too high to represent a meaningful emission limitation, because of inadequate sample size and inade quate information on emissions variability.

PCA CISWI Floor Determinations: New Kilns
(Primary Definition of Solid Waste)

PCA Floor Analysis
Option A Option B Pollutant Units EPA Proposed

Floor Floor Floor Cadmium mg/dscm 0.0003 * *
CO ppmvd 710 1,575 1,615
HCl ppmvd 1.5 * *
Lead mg/dscm 0.0027 0.0055 0.0045
Mercury mg/dscm 0.024 0.257 *

NO
x ppmvd 1,100 1,492 1,725
PM mg/dscm 60 * *
Opacity % 4% not appropriate to set standard given PM limit

SO 2 ppmvd 410 * *
DF TMB ng/dscm 2.1 floor not computed pending correction of all data
DF TEQ ng/dscm 0.17 floor not computed pending correction of all data

* Note: Computed floor value is too high to represent a meaningful emission limitation, because of inadequate sample size and inade quate information on emissions variability.

If EPA disagrees and elects to proceed with the establishment of emission floors, it has no basis to set floors below the levels given in the charts above. It has no basis to set floors at any level for the pollutants that ar e flagged with asterisks to indicate the calculated floor values are not meaningful.

V. EPA's Lack of Addressing Critical Implementation Issues

EPA has not addressed many implementation issu es in this rulemaking. Important issues include the inter-play between this Proposed CISWI Rule and the Pre-Publication Portland Cement NESHAP and NSPS; what activities woul d make an existing source subject to the new source requirements; and unclear testing and mo nitoring provisions. PC A highlights many areas that should be addressed by EPA, which s hould lead EPA to re-propose this rule.

EPA also leaves many of the monitoring and testing requirements vague and unworkable given the proposed standards. It also require s continuous emissions monitoring systems to-ES-5- demonstrate compliance with the proposed mercury standard, despite that this technology is not demonstrated to work on kilns.

VI. Economic Impacts and Potential Benefits Analysis

PCA studied the potential economic impacts of the Proposed CISWI Rule and determined that to comply with CISWI standards the industry must invest at least $2 billion. This excludes potential spending by plants that will close due to the inability to meet standards or due to the excessive financial burdens. The combinat ion of the industry's pre-existing financial commitment to provide reliable and efficient supply of cement to the United States' market, coupled with sustained harsh economic and financ ial realities, and the need to comply with NESHAP standards may overwhelm the industry's financial capability to comply with the proposed CISWI standards.

The rule is also expected to result in ne gative environmental c onsenquense because the CISWI standards could force two thirds of all ex isting alternative fuel using cement plants to discontinue burning these fuels. The Proposed CISW I Rule is expected to reverses decades of environmental cleanup success and Clean Air Act (C AA) designations of tire-direved-fuels as an encouraged fuel source. The cement industry is a large consumer of sc rapped tires. With the potential partial discontinued use of alternative fuels by th e cement industry, scrapped tire stockpiles could increase to 586 million tires by 2025, compared to a baseline estimate of 110 million tires.

Cement industry decisions to invest in modern ization of older kilns to remain world-class cost competitive may be impeded by rigid CISWI standards imposed on new sources. Compared to PCA's baseline, clinker capacity could be reduced by roughly 20 million metric tons under NESHAP. High closure-risk plants suggest an a dditional 7 million metric tons of capacity could be lost. Furthermore, cement plant complian ce to proposed EPA emissi on standards could add a minimum of $26 per ton to domestic cement production costs by 2020, which would potentially lead to an overall cost to the constr uction industry of roughl y $3 billion annually.

VII. General Legal Issues

PCA also comments on various ge neral legal issues where it disagrees with the standard setting approach used by EPA in this proposal . The following are some legal issues that are generally applicable to this rulemaking effort.

First, the Proposed CISWI Rule is a compan ion proposal to EPA's Proposed RCRA Rule. The purpose of the Proposed RCRA Rule is to establish the conditions under which nonhazardous secondary materials would be deemed "solid waste" when combusted. A CISWI unit combusting such a material would be subject to the requirements as set forth in CAA § 129. As proposed, a portland cement kiln utilizing non- hazardous secondary ma terials as fuels or ingredients would be subject to these standards and requireme nts contained under the Proposed RCRA Rule.

PCA filed extensive comments strongly opposi ng many fundamental elements of that Proposed RCRA Rule. PCA believes the Propos ed RCRA rule – in co mbination with the Proposed CISWI rule – would have a seriously negative impact on the beneficial reuse and-ES-6- recycling of non-hazardous seconda ry materials in the United Stat es. Portland cement kilns successfully use in an environmentally sound manner millions of tons of alternative fuels and ingredients annually. This cons erves virgin natural resources such as fossil fuels and mined materials. Yet, our comments documented that the standards proposed by the Proposed RCRA Rule would give portland cement kilns great in centives to avoid CAA § 129 jurisdiction and such kilns would accordingly cease engaging in these beneficial reus e practices. Massive amounts of non-hazardous materials now being beneficially reused and recycled would – as EPA recognizes in its proposed rules – end up being land-filled. PCA does not believe that portland cement kilns should be subject to the Proposed CISWI Rule which would lead to a worse environmental result.

Second, EPA cannot properly set maximum ac hievable control technology (MACT) standards on a pollutant- by-pollutant basis under th e CAA. This approach results in EPA using a fictional facility to de termine the MACT floor as there is currently no source in the country meeting all of the proposed standards. Th e CAA requires that a proposed NESHAP be "achieved in practice" by the be st performing sources. In th e case of this proposal, this requirement is not met since there is no single so urce that achieves all of the proposed standards.

Third, EPA lacks any data upon which to set emissions standards during startup, shutdown, and malfunction (SSM) events. To the extent EPA determines it must address SSM emissions in this rulemaking, PCA provides a de tailed technical anal ysis of why EPA is authorized under the CAA to use work practices in lieu of emission standards to regulate SSM events. PCA presents information showing that emissions during SSM events cannot be properly monitored or assessed. PCA comm ents that EPA should allow sources to develop site-specific SSM plans as is the practice under other CAA pr ograms. In the alternative, EPA should not address SSM emissions in this rulemaking.

Lastly, EPA did not properly consider vari ability in establishing the proposed CISWI standards. Pursuant to the MACT standard set ting process in the CAA, EPA is required to set a MACT floor based on emission limitations that have alrea dy been achieved by the bestperforming 12% of existing sources. To evalua te the emissions limits achieved by existing sources, EPA is required to develop methodologies for estimating the variability associated with all factors that impact a source's emissions in cluding process, operati onal and non-technological variables. These factors may change on a freque nt basis in relation to price fluctuations and availability, such as fuel type, or may only ch ange slowly over time, such as by operational decisions regarding waste management and product specifications.

EPA has not even come close to assessing variab ility in its standard setting process in the Proposed CISWI Rule. In many circumstances, EPA uses one-time stack tests at particular sources to derive nationally applicable emi ssion limitations. EPA also makes incorrect assumptions of how kilns operate, and it incorrectly applies statis tical formulas to estimate the emission floors for this rule. EPA usually does not have this many flaws in a rulemaking docket or fails to consider key legal pr inciples, such as variability. This Proposed CISWI Rule however, is contrary to EPA's principles of using sound science in its regulatory and policy developments, and results in emission standards that are likely to be unachievabl e throughout the United States.-ES-7- VIII. Conclusion

As EPA recognizes, this regulatory effort is highly technical and complex, could drastically shape how cement is produced in the United States, and the quantity of cement imported from other countries. PCA welcomes the opportunity to comment on this proposal and looks forward to continuing to work with EPA to produce cement in an environmentally sound manner that is compliant with the CAA.I. EPA Must Re-Propose the CISWI Rule

EPA's proposal, NSPS for New Source and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (the Proposed CISWI Rule), raises a number of significant concerns with PCA, concerns that ha ve been exacerbated by the insufficiency of information provided in the public record to support the Proposed Rule. 75 Fed. Reg. 39198; (June 4, 2010). Based on our own review of the publicly-available record and on our technical consultant's review of the same, PCA believes that there is insufficient record support to sustain EPA's proposed action. Fi nalizing the rule based upon the information available in the rulemaking docket would theref ore be arbitrary and cap ricious, an abuse of discretion and without observance of procedure re quired by law and in violation of the Clean Air Act (CAA). See Administrative Procedure Act (APA), 5 U.S.C. § 706(2) and § 307(d) of the CAA. Given the issues with the information in the docket identified below and the lack of information supporting EPA's conclusions throughout the rulemaking (such as EPA's conclusions relating to its proposed approach for startup, shutdown and malfunction (SSM) limitations), EPA must correct the deficiencies a nd re-propose. PCA reaffirms and incorporates herein as Attachment 1 our previous letters to EPA's General Counsel requesting that EPA remedy the deficiencies in the docket and re-pro pose the regulation. These letters highlight the deficiencies in the docket.

The two letters (dated July 13 and July 27, 2010) show that EPA refused on July 2, 2010 to release a critical Excel spreadsheet (or spreadsheets) that woul d allow PCA and other commenters to determine how EPA had, from kiln -specific data in the record, used certain assumptions and made certain calculations to determine the emission standards in the Proposed CISWI Rule. Specifically, EPA has refused to make public cells in the appropriate Excel spreadsheet (or spreadsheets) s howing EPA's conversion calculations which are imperative in determining how EPA established the propos ed MACT floors and emission limits. The information in these cells is only known to EPA and it is imperative for the public to have access to this information so it can meaningfully comment on the Proposed Rule. To this day, the spreadsheets that EPA refused to release and place in the docket have still not been released or placed in the docket. These letters also show how EPA placed numerous documents in the docket weeks after the propos ed rule had been pub lished in the Federal Re gister, thereby further reducing the opportunity fo r meaningful comment.

On Friday, August 20, three days before the deadline for filing these comments, EPA responded to our counsel's letters of July 13 and 27. Letter from Stephen D. Page, Director of Office of Air Quality Planning an d Standards, to Richard G. St oll, August 20, 2010 (Attachment 2). It is a major effort to coordinate and pr oduce these comments on be half of PCA's members, so we have had little time over the weekend betw een August 20 and 23 to evaluate Mr. Page's letter in full. We note that nothing in EPA's lett er takes issue with our c ounsel's letters' detailed demonstration that the "court-ordered deadline" EPA has claimed applies to the CISWI rule does not in fact apply.

Included in Mr. Page's letter is at least a partial explanation of why EPA had refused on July 2 to release the spreadsheets PCA had requested (emphasis added):-2- EPA included an Adobe Acrobat version of the floor spreadsheets in the docket at the time of publication of the proposed rule because of concerns that metadata found in the Excel files contai ned deliberative information. As noted above, EPA also included in the docket memoranda that provided the information necessary to conduct the floor calculations using the Adobe Acrobat spreadsheets. Once EPA received the request for the Excel version of the floor spreadsheets, we removed the metadata and posted the Excel versions of the floor spreadsheets on our website. We also placed the Excel file s in the docket for the CISWI rule.

PCA reserves the right to seek the withheld metadata through a Freedom of Information Act (FOIA) request or other process, and we not e that it may be questionable whether metadata for an Excel file would likely contain truly deliberati ve material in the nature of internal legal or policy debate or discussion. Moreover, we also note that this Administration has issued many strong policy statements supporting transparency and open government, and material that may arguably be exempt from disclosure under FOIA Exemption 5 may still be released by EPA, and in fact often is.

EPA appears to be arguing in Mr. Page's lette r that as of June 4, 2010 – and even well before then – PCA and other commenters had a ccess to everything needed to determine how EPA had taken data from facilities and had applie d and converted that data in calculating its proposed emission standards. We re serve the right to respond to EP A's assertions in more detail, but for now we have the following reactions, sh owing our strong disagreement with EPA's new assertions.

The bottom line is that we still cannot find an ywhere in the record the actual calculation (equation with variables filled in) for the conversi on of reported emissions to the emissions used to represent each kiln in EPA's de termination of the floors. EPA' s letter states that "the reported concentration data and flue gas ch aracteristics . . . and the normali zed concentration data . . . are contained in the Access database." EPA also a ppears to argue that there is enough data in the Access database to reproduce all of its conversions. But here are the facts as we find them in the EPA emissions data base for kilns: 3

a. Fields in the data base for flow rates, oxygen concentration, etc. are often blank, even though such information is needed to perform conversions.

Examples: Holcim Midlothian K2 test dated 27-Feb-2007 for mercury (emissions reported in lb/hr and normalized emission values given, but oxygen, moisture, and fl ow rate fields are blank.) Lafarge Whitehall K3 test dated 12/13 -Jun-2007 for PM (emissions reported in lb/hr and normalized emission values given, but oxygen, mois ture and flow rate fields are blank.)

b. There are fields for emissi ons as reported and emissions as normalized, but the first is not always given (it may be blan k or zero). We are left uninfor med as to whether the normalized

3 Data on waste-burning kilns contained in CI SWI 2009 Alternative Approach Database (EPAHQ-OAR-2003-1119-0046).-3- values were reported in the standardized units or whether a conversion was performed elsewhere and its result entered into the database.

Examples: Lehigh Mason City 302.203 tests da ted 4/13-Aug-2009 for mercury (emissions as reported blank, oxygen blank, but normalized emissi on values given). As h Grove Seattle test dated 6-Aug-1996 for cadmium, Ash Grove Durkee tests dated 15-Nov-2001 for cadmium and 16-Apr-2002 for HCl (emissions as reported zer o, oxygen zero, but normalized emission values given).

c. There is no flag in the Access database to in dicate which test valu es were converted and which were used as reported.

d. There are cases where there is no value for emissions as reported (blank or zero), but oxygen values are reported at leve ls other than 7%. It is not possible to determine what the reported value was and whether or not it was converted.

Examples: Lehigh Evansville 121 test da ted 12-Jan-2006 for lead and 13-Jan-2006 for dioxin/furans. SCNorboard test dated 13-Dec-20 01 for CO. Monarch Humboldt K5 tests dated 04-Jun-2009 for dioxin/furans.

e. There are instances where the record indica tes emissions in lbs/hr or gm/hr as reported and a stack gas flow rate is given, but oxygen c ontent is not present; or the record indicates emissions in ppm as reported, but moisture content is not present. It is clear that EPA performed a conversion, but its assumptions for oxygen and mo isture are not documented. We are left uninformed as to whether a blank field means the values were assumed to be zero, or whether the values used in the conversions were not entered, or whether a conversion was not done.

Examples: Lehigh York 200 test dated 4-Jan-2 007 for mercury (gm/hr as reported, but missing oxygen). Lafarge Buffalo K1 tests dated 14-Jun-2007 and 15-Jun-2007 for PM (lb/hr as reported, oxygen missing). Mitsubishi 4-RK-1 tests dated 25-Mar-1998 for CO, NOx, and SO2 (ppm as reported, but moisture missing).

f. The database includes flow rate codes distinguishing actual cfm (acfm) from dry cfm (dscfm and scfm/1000), but nowhere do we see a code saying the flow rate was based on capacity or another assumpti on versus being an actual value taken from a filing.

We should note here that EPA has claimed in its Proposed CISWI Rule that it must issue final CISWI rules under a "court-ordered deadline." E.g ., 75 Fed. Reg. at 31943, n.2; 75 Fed. Reg. 31951-52. On June 23, 2010, EPA also denied PCA's request for extra time to file comments on the basis of this "court-ordered dead line." (See attached letters to EPA's General Counsel.) As explained in detail in these two letters, the court order to which EPA has referred does not require that EPA issue a final CISWI rule for cement kilns. The rule clearly applies to currently pending rulemaking for bo ilers under CAA § 112. We also explain in these letters that even if the court order could so mehow apply to CISWI rules, EP A cannot rely upon a deadline to excuse flawed rulemaking. Moreover, we explai n that EPA has throughout its history sought and obtained extensions to court- ordered deadlines where nece ssary to conduct responsible rulemaking, and show how the very court-order to which EPA refers has had its deadlines amended at least seven times.-4- The APA requires public notice to include "either the terms or substance of the proposed rule or a description of the subjects and issues in volved." 5 U.S.C. § 553( b) (2006). "A notice of proposed rulemaking must provide su fficient factual detail and rati onale for the rule to permit interested parties to comment meaningfully." See Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA , 372 F.3d 441, 445 (D.C. Cir. 2004)). The "promulgation of standards based upon inadequate proof. . . [defies APA's] mandate against action that is arbitrary, capriciou s, an abuse of discretio n, or otherwise not in accordance with law." National Lime Ass'n. v. EPA , 627 F.2d 416, 430-31 (D.C. Cir. 1980) (quoting 5 U.S.C. § 706 ( 1976), remanding EPA's order); State of N.Y. v. EPA , 413 F.3d 3, 43 (D.C. Cir. 2005) (EPA's actions can be found arbitrary and capricious if it has failed to "examine the relevant data and articulate a satisfactory explanation for its action" or reached a decision without the support of substantial evidence.)

The CAA provisions concerning rulemaking are more stringent and require EPA to be more transparent than the provisions of the APA. Under the CAA the EPA is required to publish, with its notice of proposed rulemaki ng, an accompanying statement of basis and purpose, which includes a summary of the factual data on which the proposed rule is based, the methodology used in obtaining and analyzing the data and the ma jor legal interpretations and policy considerations underlying the proposed rule. 42 U.S.C. § 7607(d)(2)-(3); see also Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506, 551 (D.C. Cir. 1983) (holding that "a rule without a stated reason is necessarily arbitrary and capricious"); Ne. Maryland Waste Disposal Auth. v. EPA , 358 F.3d 936, 949 (D.C. Cir. 2004) (hol ding that vague references will not satisfy the instructions of § 307(d) that require a pro posed rule be accompanied by a statement of basis and purpose).

EPA is also required to include in the docket no later than the date a proposal is published in the Federal Register "all data, information, an d documents" on which it relies in its statement of basis and purpose and "all documents which b ecome available after the proposed rule has been published and which the Administrator de termines are of central relevance to the rulemaking." 42 U.S.C. § 7607(3)(C), (4)(B)(i). Ultimately, "the final rule must be based entirely on material that has b een placed in the docket as of the date of... promulgation." Small Lead Refiner v EPA , 705 F.2d at 518-19.

In Portland Cement Association v. Ruckelshaus , 486 F.2d 375 (D.C. Cir. 1973), in which Judge Leventhal stated certain basic principles that became imbedded in CAA § 307(d) and which have been cited approvingly in dozens of D.C. Circuit cases over the last few decades. The D.C. Circuit ruled that there had been a "critical defect" in th e rulemaking based upon the petitioner's "initial inability to obtain – in a timely fashion" certain data. Id. at 392. In language directly applicable to EPA's refusal to release its data showing how it de rived it standards (see the attached letters to EPA's General Counsel ), the Court made the following observations:

Obviously a prerequisite to the ability to make meaningful comment is to know the basis upon which the rule is proposed. . . . It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data th at, critical degree, is k nown only to the agency

. . . . In order that rule-making proceedings to determine standards be conducted in orderly fashion, information should genera lly be disclosed as to the basis of a-5- proposed rule at the time of issuance. If this is not feasible, as in case of statutory time constraints, information that is ma terial to the subject at hand should be disclosed as it becomes available . . . .

Id. at 393-94 (emphasis added).

Like the APA, the rulemaking provisions of CAA protect against EPA actions that are arbitrary and capricious. One of the fundament al requirements of non-arbitrary administrative decision-making is that the agency se t forth the reasons for its actions. Ne. Maryland Waste Disposal Auth. 358 F.3d at 949; see also Motor Vehicle Mfrs. Ass'n of U.S.. Inc. v. State Farm Mut. Auto. Ins. Co ., 463 U.S. 29, 48-50. EPA has a "duty to examine key assumptions as part of its affirmative burden of prom ulgating and explaining a non-ar bitrary, non-capricious rule," which requires it to "justify its basic a ssumptions (even if no one objects)." Id. at 948 (quoting Small Refiner , 705 F.2d at 818). CAA's arbitrary and capricious test is the same as the substantial evidence test; there must be enough reliable evidence from which reasonable extrapolations can be made to justify the rulemaking. Natural Res. Def. Council v. EPA , 805 F.2d 410, 431-32 (D.C. Cir. 1986). Where there is no evidence the rule wi ll be considered arbitrary and capricious. Id. An agency rule promulgated ar bitrarily and capriciously without observing the procedure required by law can be reversed. 42 U. S.C. § 7607(d)(9)(D); see also Kennecott Corp. v. EPA , 684 F.2d 1007, 1016 (D.C. Cir. 1982) (hol ding that EPA's failure to observe the rulemaking procedures mandated by CAA by not including eligibility tests or financial tests, was arbitrary and cap ricious, and thus reversible error); Husqvarna v. EPA , 254 F.3d 195, 205 (D.C. Cir. 2001).

The courts are tasked with ensuring that the EPA's choices we re "reasonable and supported by the record." Am. Trucking Ass'n v. EPA , 283 F.3d 355, 363 (quoting Lead Indus. Ass'n v. EPA , 647 F.2d 1130, 1160 (D.C. Cir. 1980)); Kennecott Corp . 684 F.2d at 1016. In reaching its decision, the courts must ask: "were the actual parties to the rulemaking afforded genuine opportunity to present views and inform ation relevant to the agency's decision?" Natural Res. Def. Council , 805 F.2d at 437; see also Ne. Maryland Waste Disposal Auth. , 358 F.3d 936 (remanding to EPA because of its failure to e xplain adequately its decision to establish subcategories based on aggregate plant capacity).

The D.C. Circuit has consiste ntly recognized the importanc e of notice and comment for several reasons.

[First,] notice improves the quality of ag ency rulemaking by ensuring that agency regulations will be tested by exposure to diverse public comment...Second, notice and the opportunity to be heard are an esse ntial component of fa irness to affected parties. Third, by giving affected partie s an opportunity to develop evidence in the record to support their objections to a rule, notice enhances the quality of judicial review.

Natural Res. Def. Council , 805 F.2d at 437 (quoting Small Refiner , 705 F.2d at 547); see also Connecticut Light & Power Co. , 673 F.2d 525, 530 (D.C. Cir. 1982) (stating that the comment period allows interested members of the public to communicate information, concerns, and criticisms to the agency); Sprint Corp. v. FCC , 315 F.3d 369, 373 (D.C. Cir. 2003) ("notice and-6- comment also ensures fairness to all part ies and provides a well-developed record"). As with any federal agency, EPA has a legal obligation to justify its regulatory decisions with data, analysis and demonstrably rational decision-making. Motor Vehicle Manufacturers Ass'n , 463 U.S. at 43. A party's ability to criticize or formulate alternative possibilities necessarily requires analytical information be placed in the docket for public review. See Small Refiner , 705 F.2d at 548-49; Home Box Office, Inc. v. FCC , 567 F.2d 9, 36 (D.C. Cir. 1977); State of N.Y. , 413 F.3d at 78 (the ability of an agency to craft a final rule based on the comments of interested parties is central to notice-and-comment rulemaking.) Th e information provided in EPA's public docket for the Proposed Rule fails to provide the quantity and type of information for PCA or any other interested stakeholder to weigh intelligently the risks and advant ages, if any, of EPA's Proposed CISWI Rule and to provide meaningful feedback to the EPA.

Indeed, the Proposed CISWI Rule docket is (1) difficult for even those with technical expertise in the industry to understand, (2) not consistent with the 114 submittals provided to EPA by PCA members; and (3) missing key docu ments provided by PCA. CAA's rulemaking provisions require that, "promptly upon receip t by the agency, all written comments and documentary information... received from any pe rson for inclusion in the docket during the comment period ... be placed in the dock et." 42 U.S.C. § 7607(4)(B)(i); (iv).

Incomplete and untimely access to the actual da ta that EPA is using renders this public comment period an incomplete process for stakehol ders who will not be able to participate or provide input that the agency can consider before promulgating a final rule. This is the precise danger that the D.C. Circuit warns against in Connecticut Light & Power :

In order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules. To allow an agency to play hunt the peanut with technical informa tion, hiding or disguising the information that it employs, is to con done a practice in which the ag ency treats what should be a genuine interchange as me re bureaucratic sport. An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to a llow for meaningful commentary

. 673 F.2d at 530 (emphasis added). Adding informati on, vital to the promulgation of the rule, to the docket "so late as to prec lude any effective public comment ... violates the structure and spirit" of the CAA rulemaking provisions. Ne. Maryland Waste Disposal Auth ., 358 F.3d at 952 (quoting Sierra Club v. Costle , 657 F.2d 298 (D.C. Cir. 1981) (If EPA relies on documents "entered on the docket too late for any meaningf ul public comment" the "structure and spirit of section 307 [will] have been violated)).

PCA's technical experts have reviewed the publicly-available documents, in the record, and report that those documents raise more questions than they answer regard ing the Proposed CISWI Rule. Specific technical questions ste mming from the docket review are included in Section III. While PCA believes it has accurate ly assessed EPA's thought process, conversion of data, and calculations in setting MACT floors PCA still believes EPA's docket is filled with inadequacies and incomplete information and the data relied upon by EPA is rife with errors and miscalculations. Examples of the inadequacies are provided below:-7- • The database does not include emissions da ta representing kiln operation over the range of materials that are being cons idered "solid waste" under the Proposed RCRA Rule;

• For two-thirds of the best performing k iln and pollutant combinations, EPA has only one stack test, which provides no information on emissions variability;

• EPA's interpretation of emissions data in cludes systematic biases and a large number of significant errors that cause EPA's analys is to understate actual emissions and the floors;

• EPA's data for dioxin/furans are unr eliable and incorrect and should be completely reworked;

• EPA has improperly used hydroc hloride (HCl) emissions da ta collected using test methods that have been disallowed by EPA;

EPA has improperly based its floor analysis on indivi dual test runs, rather than complete stack tests ( i.e., the average of 3 test runs). Because compliance will be based on stack tests, EPA must base the floor analysis on stack tests when, as in this case, it has the data to do so.

EPA must correct these deficiencies and re -propose the Rule to allow for full public involvement in this rulemaking effort. The first step in doing so would be to remedy yet another deficiency in EPA's analysis, which is that EPA ar tificially restricted th e number of data sources that it should have considered in setting the MACT floor. Th e CAA § 112(d) requires EPA to set the MACT floor for existing sources using "the average emission lim itation achieved by the best-performing 12 percent of the existing sour ces (for which the Administrator has emissions information)." See 42 U.S.C. § 7412(d). By choosing to seek data from only the bestperforming sources from the Phase I testing, howev er, EPA seeks to put a thumb on the scale in favor of a more stringent MACT floor. EPA cannot deliberatel y avoid collecting data from sources that will provide a more accurate picture of the performance of the sources overall. Such an effort would be in derogation of EPA"s duty to look at data providing "an accurate picture of the relevant sources' actual performance." Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855, 862 (D.C. Cir. 2001). "[W]here test results are reli ed upon, it should i nvolve selection or use of test results in a manner wh ich provides some assurance of th e achievability of the standard for the industry as a whole, give n the range of variable factor s relevant to the standards' achievability." Nat'l Lime Ass'n v. EPA , 627 F.2d 416, 433 (D.C. Cir. 1980). Here, by deliberately avoiding data from certain sources, EPA has failed fairly to consider the representativeness for the industry as a whole of th e tested plants on which it relies, a procedural error where EPA's central argument is that th e standard is achievable because it has been achieved at tested plants. Id

It is possible that EPA has reasonable respons es to each of the critiques discussed above based on information that has not been provide d in the public docket, and that EPA could provide the additional data/documenta tion requested by PCA. However, a post hoc explanation of EPA's proposal and post hoc provision of relevant documents will not remedy the defects in the public comment period. "A 'notice of proposed rulemaking must provide sufficient factual-8- detail and rationale for the rule to permit interested parties to comment meaningfully.' " Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004)) (emphasis added). See also HBO Inc ., 567 F.2d at 54 ("[e]ven the possibility that there is here one ad ministrative record for the public and this court and another for the [agency] and those 'in the know' is intolerable.") The fact remains that PCA, and its technical experts, simply are not in a position to provide meaningful comment by the close of the public comment period.

Given the lack of record support, PCA resp ectfully requests that EPA respond to these concerns by posting in the docket all relevant information that supports the proposal, correcting the information provided by PCA, notifying the public of the availability of the completion of the record, providing an opportunity for the public to comment on th is data, and then considering those comments in reaching its de cision. These actions are nece ssary to cure the procedural errors in this public comment period and PCA re mains hopeful that such information will enable it and other stakeholders to pr ovide meaningful comments re garding the Propos ed Rule. See Columbia Falls Aluminum v. EPA , 139 F.3d 914, 922 (D.C. Cir. 1998) (rejecting standards that use data which "bears no rational relationship to the reality it purports to represent.")

Moreover, the proposal utterly fa ils to address severa l critical issues fo r implementation. We discuss these failures in detail in Secti on VIII below. One prime example is the many complex issues on the relationship between CAA § 112 and CAA § 129 coverage. How and when would cement kilns already subject to C AA § 112 become subject to CAA § 129 standards if they are combusting materials EPA has defined as solid waste? This issue becomes even more complex and significant in light of the newly- issued Pre-publication Portland Cement NESHAP CAA § 112 and NSPS standards. There are several widely-varying plausible resolutions to these issues, and the impacts on regulated entities co uld be dramatic depending upon the way these issues are resolved. Yet, EPA's proposal offers not a word about these issues and how they may be resolved.

In addition, numerous signifi cant issues surround the key concept of "modification." What type (or types) of activities might force an "existing" CISWI unit in to "new" unit status? The consequences could be devastating, as the pr oposed "new" source standards are in almost all instances unachievable. See Section X for case study on achievability. As we point out below, the proposal's use of existing regulatory language leaves us with a major ambiguity on one key modification issue, and the proposal simply fails to address many other issues. EPA simply has disregarded the groundwork required in this rulemaking and many other critical implementation issues described below for PCA and other intere sted parties to provide meaningful comment.

II. Non-hazardous secondary materials used as ingredients and fuels in cement kilns should not trigger jurisdiction under § 129 of the Clean Air Act

A companion proposal to the Proposed CISW I Rule is EPA's Proposed RCRA Rule. EPA proposed that rule under authority of th e Resource Conservation and Recovery Act (RCRA). The purpose of the proposed RCRA rule is to establish the conditions under which non-hazardous secondary materials would be deemed "solid waste" when combusted.-9- A unit combusting such a material would be subject to CAA § 129 requirements for CISWI units. Therefore, a portland cement kiln u tilizing non-hazardous s econdary materials as fuels or ingredients would be subject to th e standards and requirements contained in the Proposed CISWI Rule.

PCA filed extensive comments strongly opposi ng many fundamental elements of that Proposed RCRA Rule on August 3, 2010. Those comme nts (with numerous attachments) appear in the docket for that rulemaking at EPA-HQ-RCRA-2008-0329-1138. We attach those comments to these comments on the Proposed CISWI Rule as Attachment 3 and hereby incorporate them by reference.

As explained in the comment s filed above, the Proposed RCRA Rule – in combination with the Proposed CISWI Rule – would have a se riously negative impact on beneficial reuse and recycling of non-hazardous secondary materials in the United States. We explained how portland cement kilns beneficially use millions of tons of alternative fuels, including spent agricultural seed, and ingredients annually in a manner that conserves vi rgin natural resources such as fossil fuels and mined materials. Yet we showed that portland cement kilns would have great incentives to avoid CAA § 129 jurisdictio n and would accordingly cease engaging in these beneficial reuse practices. Massive amounts of non-hazardous materials now being beneficially reused and recycled would – as EPA recognizes in its proposed rules – end up being landfilled.

We further explained that it is critical to recognize that portland cement kilns are fully regulated under stringent Maximum Achievable Control Technology (MACT) standards for hazardous air pollutants under CAA § 112 and New Source Performance Standards (NSPS) under CAA § 111. If such kilns are allowed to continue to use non- hazardous secondary materials without triggering CAA § 129 jurisdic tion, there would accordingly be no concern over the impacts of air pollutant emissions from the kilns.

We explained in detail several fundamental legal flaws with the Proposed RCRA Rule, as follows:

A. CAA §129 Confers No Jurisdicti on Over Use of Ingredients

The Proposed RCRA Rule would regulate the us e of both fuels and ingredients. Yet jurisdiction under CAA § 129 is limited to units that "combust" solid waste. Under the plain meaning of the word "combust" in an industrial furnace such as a portland cement kiln a fuel is combusted but an ingredient is not. Thus EPA has no authority to regula te use of ingredients.

We also showed in this section of the comment s that nothing in the legislative history of CAA § 129 indicated any focus what soever on the use of ingredie nts. Moreover, throughout the years of rulemaking and litigation prompting the proposed rule the parties and the court never dealt with the issue of the use of ingredients by industrial furnaces. Rather, all of the focus was on boilers burning waste fuel and incinerators bur ning waste for destruction. Moreover, EPA has never explained a basis for claiming jurisdiction over use of ingredients under CAA § 129. (See pages 12-17 of attach ed PCA comments.)-10- B. The RCRA Proposal Places Major Impe diments on Reuse/Recycle with No Attempt to Justify Such Impediments as Necessary to Protect Health/Environment

RCRA's primary goals are to (1) protect human health and the environment and (2) encourage reuse and recycling. The second goal is particularly critical in the Subtitle D context, as the materials of concern are by definition non-h azardous. In fact, the first words of Subtitle D

are:
The objectives of this subchapter are to assist in developing and encouraging methods for the disposal of solid wa ste which are environmentally sound and which maximize the utilization of valuable resources including energy and materials which are recoverable from solid waste and to encourage resource conservation.

RCRA § 4001(a) (emphasis added.)

EPA has not attempted to justify its anti -reuse/recycling RCRA proposal on grounds that it is in any manner necessary to protect human h ealth and the environment. We showed through numerous examples, and citations to U.S. Suprem e Court and D.C. Circuit case law how such an approach would be vacated as arbitrary and cap ricious, and a failure of reasoned decisionmaking.

In that section we also showed how EPA ha s great latitude under RCRA, and the relevant case law to structure its Subtitle D proposal in a manner that would prom ote reuse and recycling without impairing health and environmental protec tion. We demonstrated th at neither the statute nor the case law require that Subtitle C precedents be applied in the Subtitle D context. Throughout the proposal, however, EPA imprope rly relied upon regulatory and case law precedents established for the cradle-to-grave Sub title C hazardous waste regime as a framework for its approach to Subtitle D non-hazardous materials.

Whole scrap tires are a particul arly important non-h azardous alternative fu el that has long been utilized by portland cement kilns. Using that type of fuel as an example, we showed how EPA's interpretations of such terms as "discard " and "processing," as we ll as its approach of imposing so-called "legitimacy criteria" in the non-hazardous material context, are legally unnecessary and will have adverse effects on reuse and recycle practices with no health or environmental gain. We also demonstrated that key aspects of the Pr oposed RCRA Rule treat non-hazardous materials in an even more burde nsome and stringent manner than EPA's Subtitle C regulations for hazardous waste. (See pages 18-35 of attached PCA comments.)

C. The Function of the Proposed Rule with in the Overall Implementation of RCRA is Exceedingly Narrow

Some EPA personnel have expres sed a concern that if the Proposed RCRA Rule were to provide that a certain type of material were not a solid waste (such as whole tires), this could have adverse effects on states' abi lity to regulate that t ype of material as so lid waste. This is absolutely not correct.

The purpose of the Proposed RCRA Rule, as cl early stated in the proposal's regulatory language as well as in the preamble is merely to specify under what conditions certain types of-11- materials would be deemed a solid waste "whe n combusted" for purposes of determining CAA § 129 jurisdiction. This would not affect the ability of states to classify and regulate scrap tires and other materials as solid wastes under their own solid waste laws or under RCRA Subtitle D for purposes of generation, transpor tation, taxation, management standa rds, or any other purpose.

EPA stresses this point in the preamble to the Proposed RCRA Rule, 75 Fed. Reg. 31856. Thus, just as the proposed RCRA rule's anti-reuse/ recycle approach cannot be justified on health and environmental grounds it also cannot be justified on concerns over impacts on states' ability to regulate materials as solid wastes for all purposes.

III. Methodology for Determining the Floors

PCA has conducted an extensive review of the data and statistical methodology used by EPA to set the emissions floors for waste-burning kilns in its Proposed CISWI Rule. We show throughout the following discussion and analyses th at the database, and EPA's floor analysis of the data are inadequate to set floors for thes e standards for the following major reasons:

• The database does not include emissions data representing the full range of materials that are being considered "s olid waste" under the companion Proposed RCRA Rule. EPA has, at best, limited em issions information for a few of the fuels that may be classified as solid wa ste. It has no emissions information for kilns using ingredients that are under consid eration as solid wast es and, therefore, no basis to regulate emissions when such ingredients are being used.

• For two-thirds of the best performing k iln and pollutant combinations, EPA has only one stack test, which provides no info rmation on emissions variability. In the development of the Pre-Publicati on Portland Cement NESHAP (publicly posted by EPA on Aug. 6, 2010), EPA recognize d in developing the PM floor that one stack test is an inadequate basis to characterize variability and requested more data to obtain a minimum of three st ack tests on best performing kilns.

• EPA's interpretation of emissions data in cludes systematic biases and a large number of significant errors that cause EPA's analys is to understate actual emissions thereby imposing the floor calcula tions. Two-thirds of the floor figures for best performing kilns are affected by data errors. All of the emissions data for cadmium, lead, and dioxin/furans on a to tal mass basis (TMB) and a toxicity equivalence basis (TEQ) and most of th e mercury data are affected by errors. These biases and errors cause EPA to consistently understate the floors.

• EPA's data for dioxin/furans are unreliable and incorrect. The TMB data are contaminated by many cases in which the reported values are actually emissions on a TEQ basis. All of the dioxin/furans emissions data (both TMB and TEQ) fail to treat non-detections on the basis that is proper for setting standards. These errors cause EPA's analysis to signifi cantly understate dioxin/furans emissions.

• EPA has improperly used hydroc hloride (HCl) emissions da ta collected using test methods that have been disallowed for compliance purposes. EPA has also used-12- particulate matter (PM) emissions data measured on a PM 10 basis, rather than total filterable PM. Such data must be exclude d from the floor setting process so that the floor and the resu lting emission standards are consis tent with the test methods that will be used to determine compliance.

• EPA has improperly based its floor analysis on individual test runs, rather than complete stack tests ( i.e., the average of 3 test runs). By doing so, EPA has created an incorrect interpre tation that suggests the databa se is larger, it has more information on emissions variability, a nd its analysis has less statistical uncertainty than is actually the case. Because compliance will be based on the results of complete stack tests, EPA must base the floor analysis on stack tests.

PCA believes that the EPA data and floor analys is are clearly inadequate and fall short of providing an adequate characterization of emissi ons from solid waste-burning kilns, that EPA must restart the process of data collection. We note that this would be most appropriately conducted after EPA has identified what will, and will not, be "solid waste" for the purposes of § 129. As stated previously, kilns should not be subject to the Proposed CISWI Rule.

PCA's review focused on the emissions data fo r the best performing kilns as identified by EPA and determined that there are both significan t limitations to the database and a large number of errors in assembling the emissions data. Th erefore, PCA undertook the effort and expense to review each emissions test and correct the data where possible. A corrected database (for the kilns identified by EPA as best performing) is pr esented at the end of th is section and has been augmented by the compilation of additional stack test results for those kilns. Similar errors are undoubtedly contained in the emissions data for the other kilns, and EPA should subject these data to the same level of scrutiny if they are to be used in subsequent analyses.

A. Limitations of EPA Database for Waste-burning Kilns

The database that EPA has used to set the floors in the Proposed CISWI Rule for solid waste-burning kilns is too limited to support a m eaningful assessment of kilns emissions and variability, both of which must be done to meet EP A's statutory obligation in setting standards. The database 4 has too few kilns with multiple emission tests and too limited coverage of the materials being considered for designation as "so lid waste." Without this information, EPA does not have adequate information to set emissions limits.

1. Limited Representation of Emissions Variability

EPA has only one stack test for a large majority of the units identified as best performing kilns. There are 84 kiln and pollutant combin ations that have been used in the floor determination (considering both th e primary and alternate solid wa ste definitions), and EPA has a single stack test for 56 of them (67%). One st ack test provides no information on the emissions variability that a kiln will experience over time due to variations in operating conditions, product

4 CISWI 2009 Alternative Approach Database (EPA-HQ-OAR-2003-1119-0046). Our review covered the best performing kilns classified as solid waste incinerators under the primary or alternate proposed definitions of solid waste.-13- specifications, and the characterist ics of fuels used, and raw materi als. As a result, EPA cannot meet its regulatory obligation to account for the variab ility of emissions of the best performing kilns in determining the floor for any of these 56 cases.

EPA recognized this in its Pre-publicatio n Portland Cement NESHAP. For PM emissions, EPA stated on p. 16 "... at proposal we noted that for two of the best performing facilities we had only one emissions test. We di d not think that this was enough data to fully characterize variability in emi ssions. Therefore, we requested th ese sources to submit additional PM emission test data." The emissions data us ed in that rulemaking had a minimum of 3 stack tests for each best performing kiln. The same st andard of minimum ade quacy applies in this rulemaking. One stack test is not enough to char acterize variability in emissions for best performing kilns. EPA must obtain additional st ack test data before it can characterize variability in emissions for the kilns used to set the floors for these standards.

The use of the results of a single stack test al so introduces a bias into the analysis. With only one stack test, there is no way to know whet her the kiln was tested on a day with unusually low emissions or on a day with average or high emissions. Given the me thod of selection, and the fact that 2 out of 3 best-performing kilns ha ve only a single stack test , there is a significant possibility that the identified best-perform ers were tested under conditions favoring low emissions. The actual range of normal emissions performance is wider, and without variability reflected in the analysis they are unable to meet the emissions limitations determined in the floor analysis on a continuing basis.

While the result of a single stack test is dete rmined by the average of three test runs, by design, the test runs are not designed to capture em issions variability and they are not a substitute for having multiple stack tests on each best perfo rming kiln carried out over an extended period of time. As specified by EPA, a single stack test is composed of three test runs done consecutively under essentially identical operati ng conditions and identical specifications for product, fuel and raw materials. Those three test runs capture only run to run variability and offer essentially no information on the emissions va riability of the kiln it self, which we know can be very significant. EPA must account for oper ating variability in determining an emissions limit which a best performing kiln can meet ove r the full range of operating circumstances.

The fact that EPA has developed its proposed fl oors from the statistical analysis of test run data compounds the problem by hiding the lim ited amount of information it has on emissions variability. In Section VII we present an alternative analysis of floors that highlights the limited information EPA has on emissions variability, and the impact that has on determining the emissions limitations that best-performing kilns can meet.

2. Limited Representation of "Solid Waste" Usage

The database does not include emissions data re presentative of the full range of materials that are being considered as "solid waste" under the Proposed RCRA Rule and which will trigger the applicability of the CISWI limits. While the proposed solid waste rule would classify over 1.8 million tons of fuels commonly used in ceme nt kilns as "solid waste," according to 2009 PCA data, the test data reflect only three such fu els that we have found: a number of units that were firing whole tires; a few units firing tire-derived fuel (whi ch may not be considered solid-14- waste under EPA's Proposed RCRA Rule); and a fe w firing waste oil. We have found only one unit thus far that was firing waste plastics (Hol cim Devil's Slide K1). It appears that EPA solicited emissions data without any knowledge of wh at would or would not be considered "solid waste."

EPA has no emissions data on ingredients that would be cl assified as solid waste and does not know if they were in use at the time these units were tested. Further, EPA did not solicit emissions data for units using the alternative ingredients that are now being considered for classification as "solid waste." As a result, EP A has no basis to set floors and then regulate the emissions, when these alternative ingredients are being used. In any event, as PCA has explained at length in its recently-filed co mments on the Proposed RCRA Rule, EPA does not have authority to regulate portland cement kiln s' use of materials as ingredients under CAA § 129 (see Attachment 3).

3. Errors and Bias in Assembling the Emissions Database

In assembling the emissions database used to determine the floors, EPA has used default assumptions that incorrectly results in low estimates of emission concentrations that bias the resulting floors to values below what a correct treatment of the data w ould give. A large number of other errors have been identified that result in setting in correct floors. PC A has undertaken an extensive review of the emissions data for best performing kilns. The errors are itemized in the tables located at the end of this section.

The 114 data requests issued to cement kilns did not request all of the data needed to convert reported emissions to the concentration units of the proposed standards. The proposed standards are all based on emi ssions adjusted to 7% oxygen. The concentration of oxygen (or other diluent gas) was requested in the 114 only when CO emission data were submitted, but the actual oxygen level at the time of the test is ne eded for all pollutants whenever the respondent entered emissions data on a basis other than 7% oxygen (which was acceptable and occurred frequently). In these circumstances , EPA has indicated to our contractor 5 that a default oxygen level of zero percent was assu med and then the data were ad justed to 7% oxygen. This assumption is not realistic and has no relationship to the perfor mance of any of the sources examined by EPA in setting the MACT standard.

We have reviewed the underlying stack test re ports for the 114 filings and, in almost all instances, the test reports have the information on oxygen content that EPA did not request. We have determined the actual oxygen level for almost all of the tests in question, and in no instance was the actual oxygen content zero or close to zero. Instead, typica l oxygen contents range from 4% to 9%, and a default assumption of 7% ox ygen (no correction) would have been more reasonable than EPA's default value of zero. The dilution in emissions concentration that occurs on paper when one adjusts from zero to 7% oxygen leads to a one-third reduction in emission concentrations and creates concentra tions that are biased low. This in turn results in floor levels that are grossly incorrect and biased low in a ma nner that violates the CAA. We have corrected for this error in our corrected database.

5 Email from T. Jones of EPA to R. Cheng of AEMS dated July 9, 2010.-15- For some data in the docket, stack flow was not reported, and EPA has indicated 6 that they used the capacity firing rate of the unit to calculate flow. This method does not represent the operating conditions of the s ources examined. Whenever capac ity was used, rather than the actual firing rate, it is likely that the flow was over estimated. As with the default assumption for oxygen, this assumption also result s in unrealistic dilution of th e emissions on paper and lower floors than should actually be established. We ha ve been able to acquire the actual flows for a number of these facilities and have computed the proper emissions concentrations in our corrected database.

Further, EPA appears to have made a pervasiv e error in assembling the dioxin/furans data on a TMB. From our review of th e data for the best pe rforming kilns, we know that the recorded data are actually dioxin/furans emissions on a TEQ basis for 4 kilns (out of 9 best performers): Ash Grove Durkee, Ash Grove Seattle, Holcim Devil's Slide K1, and La farge Joppa K2 (see Table A-4.9). For other kilns, we have verified (or corrected) the numerical value taken from the 114 filings, but due to time limitations, we have not obtained the stack test reports needed to determine whether the reported values are on a TMB or TEQ basis. In only two instances (Lehigh Evansville 121 and Mitsubishi 4-RK1) are we certain that the re ported values are on a TMB basis.

It appears that EPA made the classification as to TMB or TEQ based on how the pollutant was named in the 114 filings. Values reported as "Dioxin/Furans" (D/F) were treated as being on a TMB basis (even if comments else where in the 114 filings indicated otherwise), while values reported as "Dioxin/Furans (TEQ)" we re treated as being on a TEQ basis. Only the latter identification is unambiguous, while th e former identification is subject to easy misinterpretation.

EPA should review all of the D/F TMB data in its database to eliminate instances in which TEQ values have been erroneously record ed. Because D/F TEQ values are much smaller numerically than D/F TMB values, we believe th at a pervasive bias exists in EPA's DF TMB data that invalidates its analysis and floor values. While PCA has corrected the errors where they have been identified, it has not conducted a complete review of the TMB data for best performing kilns. This is EPA's responsibility under § 307(d) of the CAA and applicable case law. Because of this attribution error, we be lieve that none of the TMB or TEQ are reliable enough to be used in analyses of any kind, un til such time as the dioxin/furans data are completely reviewed and reworked.

Separate from these systematic biases and gaps in the data base, we have identified a number of errors in EPA's use of the data subm ittals. Examples include mistaking the units of measure and making improper conversions to the standardized basis (Lafarge Whitehall K2 for DF TEQ), incorrectly identifying th e reporting kiln in the database (labeling tests from Monarch Humboldt K4 and K5 for DF TMB as belonging to K5), entry of data for another pollutant (for metals), and various data entry errors. EPA ha s also excluded stack tests at higher emission values (IP Springfield for PM). We cannot expl ain a number of these errors. We requested, but were not provided, the calculations behind each floor concentration, showing both the equation

6 Email from T. Jones to H. Ybanez dated July 8, 2010.-16- and the inputs to the equation for each emissions calculation. This information is necessary to properly assess these errors. Once again, EPA is acting in violation of § 307(d) of the CAA by not providing this information a nd developing this MACT standard in such a secretive manner.

All of the errors in the docket emissions test s for best performing kilns that we were able to identify are documented in the ta bles at the end of this secti on. Table A-1 presents a summary tabulation of the known errors as an indication of the extensive nature of these problems. Overall, two-thirds of the database is affected by one or more data erro rs. One-seventh of the database is affected by applying the default oxygen concentration of ze ro that results in understating emission concentrations by 33%. A significant fraction of the data for each pollutant is also affected by errors. For D/F TMB and TEQ, every test is affected by an incorrect treatment of non-detections that understates emi ssions. All tests for cadmium and lead are also affected by one or more errors. For mercury, all but one test is affected by errors. The net effect of the errors is to cause the database th at EPA used to set the floors to understate actual emissions of the best performing kilns.

Table A-1. Summary of Errors Identi fied and Corrected in Emissions Data For Best-Performing Waste-burning Kilns
Stack Tests with Identified Errors in Emissions Values Total Stack Tests Total Error in Oxygen Concentration Error in Stack Flow Rates Other Errors

Cadmium 13 13 7

— 6 CO 24 10 2 1 7 HCl 12 9 4

— 5 Lead 13 13 4

— 9 Mercury 11 10 2 1 7 NOx 22 5 0

— 5 PM 19 12 3 2 7 SO2 16 5 0

— 5 Dioxin/Furans TMB 14 14

— — 14 Dioxin/Furans TEQ 12 12

— — 12 Total 156 103 22 4 77

4. Treatment of Non-Detections in Emissions Data

The interpretation of emissions below the detection limits (ND), or the estimated maximum possible concentration (EMPC), in the emissions tests used by EPA has created incorrect estimates of actual emissi ons that are biased low. If a stack test measurement is below the detection limit, the actual emissions value ca n be anywhere between zero and the detection limit. The proper interpretation of test results in this regard must differ when demonstrating compliance with a standard versus when the data are being used to set a standard. One must be conservative in the interpretation of data, but the approach is different in these two instances.-17- EPA correctly specifies in the compliance demonstration protocol, 7 such as the one for dioxin and furans under the cement kiln MACT rule , that any non-detect should be read as zero emissions. This is completely appropriate for a compliance demonstration, because an assumption of any higher level would potentially show non-compliance when compliance has actually occurred. However, just the opposite protocol must be followed when setting a standard. In this instance, non-detects must be interpreted as emissions levels equal to the detection limit, because the emission result might actually be that high. To set a non-detection result to zero (as is proper when performing a compliance test) during standard setting will clearly create a standard below the actual emissions of the units used to set the floor. By taking this approach, EPA is guessing about what is actually "achieved in pr actice," which is not allowed as outlined in the previous legal comments.

All of the emissions data for kilns derives from compliance testing or from applicability testing, compiled using procedures for compliance testing. In our review of the data, we note that EPA has properly recorded emissions values below the detection limit whenever the 114 filings or stack test report used the terminol ogy "< value." In thes e cases, the value given reflects the detection limit of the test method and EPA has treated the emissions as being equal to the detection limit. However, EPA does not appear to have systematically screened the emissions data for cases where a detection limit should be applied, and it has erroneously recorded zero values for emissions where those are reported in the original test reports (for example Lafarge Whitehall K2 and K3 for dioxin/furans TEQ).

EPA should review all of its emissions data fo r best performers and correct wherever this problem occurs. The treatment of non-detects a ccording to the practice of compliance testing is a major problem in the dioxin/furans data, wh ere non-detections may occur for any of the congeners measured in the testing. Because of the attribution errors in the TMB data, PCA conducted a detailed review of the non-detecti on problem using the D/F TEQ data (where attribution errors should not occur).

5. Errors in the Interpretation and Use of Dioxins/Furans TEQ Data

PCA obtained the assistance of an outside expert to review the engineering and laboratory reports for best perf orming kilns, in order to esta blish how non-detections were factored into the proposed floor . The review made an effort to verify how the TEQ were computed by stack testing firms, and the inform ation in the stack test reports was used to compute TEQs using an alternative approach th at is better suited for setting an emissions performance floor.

It was verified that non- detected targ et compounds ( i.e., the 17 2,3,7,8-substituted PCDD/F TEF congeners) were treated with a zero c oncentration in all of the stack test reports. Similarly, target compounds repor ted by the laboratory as an EM PC were treate d with a zero concentration for TEQ calculati ons. Thus, EPA used TEQs which treated both non-detected

7 40 CFR Part 63, Appendix A. Method 23 - Determ ination of Polychlorinated Dibenzo-p-dioxins and Polychlorinated Dibenzofurans from Muni cipal Waste Combustors. Section 9.9.-18- target compounds, as well as those reported as an EMPC, with a zero concentration ( i.e., ND=0; EMPC=0).

Several issues arise when using this prac tice of [ND=0; EMPC=0]. First, such an approach is not consistent with EPA's direc tion for a performance-based measurement system (PBMS). Indeed, poor la boratory performance ( i.e., elevated detection limits) is camouflaged ( i.e., the laboratory's responsibility for quality results is unaccount ed for because the detection limits of the current analytical methodology). A dditionally, if poor performance for detection limits occurs, other performance aspects of these complex assays may be undermined. Second, such a practice biases low the computation of the TEQ for low-emitting facilities where nondetected target compounds are fr equent, where i on statistics ( i.e., low signal-to-noise ratios) play a significant role in EMPC reporting, and where b ackground contributions fr om either the stack testing firm or the laboratory (or both) can influence the TEQ in a ma nner that distorts reality. It is possible that these issues are the basis for EPA experiencing unrealistic situations where the ratio TEQ/TMB was calculated as one or above one , leading EPA to disregard some of the data.

Therefore, an alternative approach, suited fo r setting standards based on the performance of low-emitting facilities, was considered. The appr oach consists of treating non-detected target compounds with a concentration corresponding to the sample- a nd analyte-specific detection limits (as currently defined in EPA Methods 23 and 8290), as well as treating EMPC values at actual concentrations. For the 12 individual tests (Table A-2) and by using the information contained in the stack test repor ts, new TEQs were calculated a nd expressed in picograms/dscm. The new values range from a minimum of 0.2 to a maximum of 9.2, with an average of 4.7 (RSD of 57 percent; i.e., 2.5 times better than the RSD associ ated with determination of the 0.078 TEQ/TMB ratio). The ratio TEQ [ND=DL; EMPC=EMPC] / TEQ [ND=0; EMPC=0] for nine of the data points averages to 3.9. The first three data points in the table were excluded from the calculation, since the ratios were obvious outliers (a lthough the revised TEQs were c onsistent with the others).

EPA's incorrect assessment of dioxin/furnaces emissions (whether TMB or TEQ) can be corrected to the basis suitable for use in standa rds setting using the more detailed information contained in the underlying stack test reports . The TEQ data for EPA's identified best performers were corrected during our review and one additional stack test was added to the database. However, before a valid floor anal ysis can be conducted on either the TMB or TEQ basis, the following data review and correction tasks must be completed:

• All of EPA's TMB data must be correct ed for improper incl usion of emissions data actually on a TEQ basis.

• All TMB and TEQ emissions data (for both best performing and other kilns) must be corrected to give the prope r treatment of non-detections.

Until these errors are corrected, it is not possible to determine the appropriateness of subcategories for kilns based on design or mate rials used, to rank kilns correctly based on emissions, or to identify properl y the best performing kilns.-19- Table A-2: Table of the EPA Figures [ND=0; EMPC=0] and the Revised TEQ [ND=DL; EMPC=EMPC] for Best Performing Kilns

Revised Concentrations Data Sources EPA Floor Data ND=DL & EMPC=EMPC

SW Def. Kiln ID Test Date pg/dscm @ 7% O2 pg/dscm @ 7% O2 Revised to EPA Ratio

Docket Tests Base, Alt IDAshGroveInkom Kiln 2 6-Apr-06 1.490 4.388 2.9
Alt TXAshGroveMidlothian K1 23-Jan-07 2.000 4.705 2.4
Alt FLCemexBrooksville Kiln #1 4-Jan-07 3.000 8.341 2.8 Base, Alt TXCemexBalconesPlant 1 29/31-Jul-08 0.008 6.692 804 Base, Alt FLFloridaRock Kiln Line 1 7/9-Jan-08 0.430 5.151 12.0

8-Jan-08 2.330 9.243 4.0 Base, Alt PALafargeWhitehallPlant K2 13/14-Jun-07 0.00 0 3.560 > 10,000 Base, Alt PALafargeWhitehallPlant K3 13/15-Jun-07 0.00 0 2.154 > 10,000 Base, Alt SCLafargeHarleyville 2 2-Oct-06 0.080 0.197 2.5
4-Oct-06 2.320 5.369 2.3 Base, Alt CALehighSouthwestRedding 28/31-Aug-07 0.150 1.959 13.1 27/31-Aug-07 2.540 4.584 1.8 Average 1.196 4.695 3.9

Additional Stack Tests
Alt AG Midlothian K1 15-Jun-09 n/a 3.217 n/a

6. Use of Disapproved HCl Test Methods

The HCl emissions data contained in EPA's database are based on four different test methods and include two test methods that EPA has disapproved. EP A Method 26 and CARB Method 421 for HCl are disapproved, and all HCl da ta that are based on those methods should be removed from the floor determination. PCA's review found that EPA Me thod 26 or CARB 421 instead of EPA Method 321 or ASTM D6348 were us ed for 5 of the 9 best performing kilns for HCl. Table A-3 demonstrates that one-half of EPA's HCl database consists of data obtained used disapproved (or undocumented) test methods. These te sts should be put aside. In our later floor analysis, the lowest ranked 7 kilns of those that remain in the table become best performers (lowest ranked 9 under the altern ative solid waste definition).-20- Table A-3. HCl Test Methods Used by Reporting Kilns (Strikethrough Indicates Tests Using Disallowed Test Methods)

Best Performers Kiln ID Average HCl (ppmvd) HCl Test Method

Base, Alt IDAshGroveInkom Kiln 2 0.13 Method 320/321 Base, Alt TXAshGroveMidlothian Kiln 2 0.25 Method 321 Base, Alt PALehighCementYork 200 0.27 EPA Method 321 Alt SCNorboard CB 0.28 Method 26A Base, Alt PALehighCementEvansvil le 121 0.49 EPA Method 26A Base, Alt PALehighCementEvansville 122 0.64 EPA Method 26A
Base, Alt FLCemexMiami Soil Treatment Facility 0.68 EPA Method 26
Base, Alt FLCemexMiami Cement Kiln 0.73 EPA Method 26 Alt ORAshGroveDurkee Kiln 0.85 FTIR Method 320/321

TXAshGroveMidlothian Kiln 1 0.93 Method 321 IDAshGroveInkom Kiln 1 0.94 Method 320/321 CACAPortlandCementColton K

- 1 0.96 CARB Method 421 TXLoneStarMaryneal Kiln 3 1.19 Method 321 WAAshGroveSeattle Kiln 1.27 FTIR Method 320/321 IALehighCeme ntMasonCity 302.203 1.35 EPA Method 26A UTAshGroveLeamington Kiln 1.58 Not Given TXHolcimMidlothianPlant Kiln 1 2.67 ASTM D6735 SCLafargeHarleyville 2 4.49 EPA Method 26A PALafargeWhitehallPlant Kiln 2 6.44 USEPA Method 26A CAMitsubishiCement 4

- R K

- 1 6.73 Not Given TXHolcimMidlothianPlant Kiln 2 7.22 ASTM D6735 IALafargeBuffalo Kiln 1 16.89 EPA Method 26 UTHolcimDevilsSlide Kiln 1 30.31 ASTM D6735 KSMonarchCementCoHumboldt Kiln 5 35.69 EPA Method 26A

7. Improper Test Methods for PM

In three instances, EPA has used PM emissi ons data based on Method 201A that measure PM 10 concentrations instead of total filterable PM. These are the tests dated 12-Jan-2006, 31- Oct-2006, and 1-Nov-2006 for the Lehigh Evansville 121 kiln. EPA should replace these test data with the total PM concentr ations or drop the tests from th e database. The brief period allowed for comment on this rulemaking has precluded PCA from doing so, and the floor analysis reported in the next section retains the three data points as repor ted to and used by EPA.-21- 8. Improper Inclusion of Units in Floor Determination

The Cemex Miami Soil Treatment Facility is a uni que facility. It is so different from the nominal kiln being regulated, th at it does not belong in the floor determination. The unit is permitted to treat soil contaminated with petrol eum and coal tar and was processing petroleum contaminated soil at a rate of 40 tons/hr during its emissions tests. As noted elsewhere, "treating" is not "combusting". This kiln does not "combust" anything except traditional fossil fuel. It is equipped with a natural gas or oil-fired burner, a 99.9% efficient baghouse and a 99.5% efficient gas or oil-fired afterburner. It doe s not fire coal or tires, and the configuration and operation of the unit are unlik e any kiln producing clinker. Furthermore, the maximum soil dryer temperature is under 1400° F as opposed to the 2700° F of a cement kiln. EPA should exclude this unit from the floor determination as we have done in the a lternative floor analysis presented below.

B. Inconsistent Treatment of Data for Units with In-line Raw Mills

EPA is unclear in its proposed rule how it will handle the raw mill status of wasteburning kilns for compliance purposes. The Proposed CISWI Rule is not clear whether kilns will be required to demonstrate compliance with th e mill both on off. The Proposed CISWI Rule states that compliance will be demonstrated for me rcury with the raw mill on and off, but it does not specify compliance procedures for the othe r pollutants. 75 Fed. Reg. 31977. Based on past practice, we believe that EPA may determine that compliance must be demonstrated under the more-adverse operating condition, meaning a pre-select ed raw mill state (on or off) that gives the higher emissions.

EPA has been inconsistent in how it has handled emissions data relative to raw mill status in assembling the database, and its proposed floor s may not be consistent with how compliance will be determined. EPA's database contains a number of instances where kilns have two stack tests on successive days, representing raw mill on and raw mill off conditions. Examples of this include: Ash Grove Durkee (Cd, Pb, PM, and DF TMB) and Monarch Hu mboldt K5 for DF TMB. In other instances, EPA has selected emissions representing only one of the raw mill states for inclusion in the data base – in the ca ses we have seen, the raw mill state (either on or off) that gives higher emissions. If EPA will determine that compliance must be demonstrated under the more-adverse condition, the inclusi on of tests with raw mill both on and off inappropriately includes emissions data taken u nder more favorable conditions and will lead to emissions floors that are biased low.

PCA has not had the time to complete the review of mill status in the corrected database presented below, which has not been corrected for this issue. If EPA e xpects to require that compliance be determined under the more adverse operating state, then it should re-examine all instances in which the database contains tests wi th raw mill on and raw mill off for the same kiln and exclude the mill state that gives the lower emissions value.

1. Corrected Emissions Database for EPA's Identified Floor Units

PCA's review has identified and corrected as many of the errors as possible in the emissions data for best performing units in the limited time allowed for comment on the-22- Proposed CISWI Rule. Tables A-4.1 through A-4.10 below document the errors in the EPA database that have been identified and the corr ected emissions values based on our review. The floor analysis in the next secti on includes corrected EPA data and da ta for additional facilities to more properly capture emissions variability.

Table A-4.1: Corrected Emissions Data for Best-Performing Kilns: Cadmium (Cd) Stack Test Average (mg/dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Durkee 15-Nov-01 0.00019 0.00011 1
Durkee 16-Nov-01 0.00011 0.00006 1 Ash Grove Inkom K1 29-Sep-00 0.00013 0.00020 1, 2 Ash Grove Inkom K2 10-Oct-00 0.00017 0.00004 1, 2
Ash Grove ML K1 8/9-Mar-2001 0.00056 0.00021 1
Ash Grove ML K2 8/9-Mar-2001 0.00052 0.00020 1 Ash Grove Seattle 6-Aug-96 0.00013 a/ 0.00006 1 Lafarge Seattle Kiln 18-Jul-07 0.00015 0.00011 3
Seattle Kiln 19-Jul-07 0.00015 0.00011 3
Seattle Kiln 6-Dec-07 0.00015 0.00012 3
Seattle Kiln 1-Oct-08 0.00061 0.00048 3 Lafarge Whitehall K3 12/13-Jun-2008 Unknown Kiln 0.00009 4
Mitsubishi 4-RK1 24-Mar-98 0.00008 0.00009 5

a/ O 2 concentration not available. Corrected to 7% O 2 based on typical value for kiln.
1. EPA assumed 0% O 2 in exhaust (kilns typically operated at 4-9% O 2 during tests).
2. Includes correction of miscellaneous errors in source data.
3. EPA converted to standard conditions, when data were already given as mg/dscm @ 7% O 2
. 4. Testing was not performed at WH3 in June of 2008—the plant was tested July 15- 18, 2008, for metals but the numbers do not match EPA's values.

5. EPA applied a wrong O 2 concentration to these tests.

Note: the symbol √ means that no error was identified during the available review time.-23- Table A-4.2: Corrected Emissions Data for Best-Performing Kilns: Carbon Monoxide (CO) Stack Test Average (ppmvd @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

CEMEX Brooksville K1 30-Jul-08 157 16 1

CEMEX Brooksville K2 30-May/2-Jun - 2008 236 a/ 27 1
Lafarge Buffalo K1 15-Jun-07 369 362 2 Lafarge Seattle Kiln 16-Jul-07 √ 203
Seattle Kiln 17/18-Jul-2007 √ 178
Seattle Kiln 17-Jul-07 √ 179
Seattle Kiln 19-Jul-07 √ 373
Seattle Kiln 19/20-Jul-2007 √ 346
Seattle Kiln 20-Jul-07 √ 314
Seattle Kiln 6-Dec-07 √ 103
Seattle Kiln 6/7-Dec-2007 √ 106
Seattle Kiln 6/7/Dec-2007 √ 105 Seattle Kiln 20-May-08 √ 124 Seattle Kiln 30-Sep-08 √ 96 Seattle Kiln 30-Sep-08 √ 97
Seattle Kiln 1-Oct-08 √ 104 Lehigh Evansville 121 13-Aug-07 67 62 5
Evansville 121 18-Dec-07 64 86 5 Lehigh Evansville 122 11-Jan-06 73 90 5 Evansville 122 10/16-Aug-2007 92 83 5 Evansville 122 10/16-Aug-2007 √ 92 Lehigh Mason City 16-Feb-06 146 139 5
Mitsubishi 4-RK1 25-Mar-98 394 395 3
Norboard CB 13-Dec-01 Unknown 144 4

a/ O 2 concentration not available for K2. Valu es for K1 were used in the conversion.
1. EPA made unknown assumptions for flow rates and assumed O 2 concentration was

zero. 2. EPA made unknown errors in assuming flow rates (or taking them from stack tests) and, in some instances, in molecular weights used in conversions.
3. EPA applied a test-run average O 2 concentration to individual test runs for 2 pollutants.
4. Unable to determine if sufficient data ar e available to convert reported emissions to standardized units.

5. EPA made an unidentified error(s) in data entry or conversion to standardized units.

Note: the symbol √ means that no error was identified during the available review time.-24- Table A-4.3: Corrected Emissions Data for Best-Performing Kilns: Hydrogen Chloride (HCl) Stack Test Average (ppmvd @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Durkee 16-Apr-02 0.252 a/ 0.117 1 Durkee 16-Apr-02 3.094 a/ 1.592 1
Ash Grove Inkom K2 1-Oct-00 0.397 a/ 0.130 1
Ash Grove ML K2 7-Mar-01 0.595 0.082 1 CEMEX Miami CK 6-Aug-09 √ 0.726 b/ CEMEX Miami SRU 2-Sep-09 √ 0.682 b/ Lehigh Evansville 121 12-Jan -06 0.482 0.485 3, b/ Lehigh Evansville 122 n/r Unknown 0.890 4, b/ Evansville 122 10-Jan-06 0.47 0.504 3, b/ Evansville 122 8-Aug-07 0.93 0.540 3, b/ Lehigh York 200 25-Apr-02 0.39 0.270 3 Norboard CB 22-Aug-06 Unknown 0.278 2, b/

a/ O 2 concentration data not ava ilable. Corrected to 7% O 2 based on typical value for kiln.

b/ Based on disallowed test method (EPA Met hod 26 or CARB 421) and should be set aside.

1. EPA assumed 0% O 2 in exhaust (the kilns typically operated at 4-9% O 2 during tests).
2. Unable to determine if sufficient data ar e available to convert reported emissions to standardized units.
3. EPA made an unidentified error(s) in data entry or conversion to standardized units..
4. Could not be verified by the company as a test of this kiln.

Note: the symbol √ means that no error was identified during the available review time.-25- Table A-4.4: Corrected Emissions Data for Best-Performing Kilns: Lead (Pb) Stack Test Average (mg/dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Durkee 15-Nov-01 0.00076 0.00038 1
Durkee 16-Nov-01 0.00066 0.00039 1 Ash Grove Inkom K2 10-Oct-00 0.00535 0.00121 1, 2 Ash Grove Seattle 6-Aug-96 0.00191 a/ 0.00090 1 Lafarge Whitehall K3 12/13-Jun-2008 unknown 0.00106 3 Lehigh Evansville 121 12-Jan-06 √ 0.00116
Evansville 121 29/30-No v-2006 unknown 0.00139 3 Lehigh Evansville 122 10-Jan-06 √ 0.00187
Evansville 122 7-A ug-07 unknown 0.00096 3
Mitsubishi 4-RK1 24-Mar-98 0.00200 0.00215 4
National Kiln 1 9-Feb-07 0.00007 0.00141 5 Dragon K006 5-Apr-05 0.00188 0.00194 6 K006 6-Apr-06 0.00163 0.00177 6

a/ O 2 concentration data not ava ilable. Corrected to 7% O 2 based on typical value for kiln.

1. EPA assumed 0% O 2 in exhaust (kilns typically operated at 4-9% O 2 during tests).

2. Includes correction of miscellaneous errors in source data.
3. Could not be verified by the company as a test of this kiln.
4. EPA applied a wrong O 2 concentration to these tests.

5. Unknown error. EPA may have entered data for another metal or misunderstood the units of measure (ug/dcsm in the stack test report).
6. Small differences (7-14% by test run) of unknown cause.

Note: the symbol √ means that no error was identified during the available review time

.-26- Table A-4.5: Corrected Emissions Data for Best-Performing Kilns: Mercury (Hg) Stack Test Average (mg/dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Inkom K1 29-Sep-00 0.00327 0.00175 1, 2 Ash Grove Inkom K2 10-Oct-00 0.00418 0.00101 1, 2
AZ Portland Rillito 25/26 Jun 1991 0.00022 0.00024 3 CEMEX Miami SRU 5-Aug-09 0.01000 0.01012 4
Holcim ML K2 27-Feb-07 0.00057 0.00575 5 Lafarge Buffalo K1 10-Sep-09 0.00411 0.00296 6 Lehigh Mason City 4/13-Aug-2009 0.00116 0.00353 8 Mason City 12/13-Aug-2009 0.00366 0.00129 8 Lehigh York 200 4-Jan-07 0.00482 0.00312 8 York 200 1/3-Sep-2009 √ 0.00156 Norboard CB 22-Aug-06 Unknown 0.00192 7

1. EPA assumed 0% O 2 in exhaust (kilns typically operated at 4-9% O 2 during tests).
2. Includes correction of miscellaneous errors in source data.
3. Unknown minor differences.
4. EPA's emissions values belong to test of Miam i Cement Kiln. Minor difference in entry of data from report.

5. Apparent data entry error (factor of 10).
6. EPA made unknown errors in assuming flow rates (or taking from stack tests) and, in some instances, in molecular weights used in conversions.

7. No emissions data reported in 114 filing, and source data used by EPA not identified.
8. EPA made an unidentified error(s) in data entry or conversion to standardized units.

Note: the symbol √ means that no error was identified during the available review time.-27- Table A-4.6: Corrected Emissions Data for Best-Performing Kilns: Nitrogen Oxides (NO x ) Stack Test Average (ppmvd @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

CEMEX Miami SRU 6-Oct-09 √ 108.3 Lafarge Harleyville K2 12-Nov-08 √ 67.9 Harleyville K2 12-Nov-08 √ 275.1 Harleyville K2 14-Nov-08 √ 103.4 Harleyville K2 14-Nov-08 √ 427.0 Lafarge Seattle Kiln 17/18-Jul-2007 √ 729.6
Seattle Kiln 20-Jul-07 √ 473.4
Seattle Kiln 17-Jul-07 √ 735.5
Seattle Kiln 19-Jul-07 √ 437.2
Seattle Kiln 16-Jul-07 √ 606.3
Seattle Kiln 20-Jul-07 √ 543.0
Seattle Kiln 6-Dec-07 682.2 721.4 1
Seattle Kiln 6-Dec-07 √ 667.9
Seattle Kiln 6-Dec-07 √ 624.4 Seattle Kiln 20-May-08 √ 838.0 Seattle Kiln 30-Sep-08 √ 738.2
Seattle Kiln 1-Oct-08 √ 807.8 Seattle Kiln 30-Sep-08 √ 746.9 Lehigh Evansville 121 13-Aug-07 413.7 382.5 3 Lehigh Evansville 122 11-Jan-06 438.1 539.4 3 Evansville 122 10/16-Aug-2007 460.1 415.9 3
Mitsubishi 4-RK1 25-Mar-98 419.9 421.0 2

1. EPA made a data entry error when input ting the values for the duplicate Run 2 tests.
2. EPA applied a test-run average O 2 concentration to individual test runs for 2 pollutants, but this has little effect on the resulting values for test-run average emissions.
3. EPA made an unidentified error(s) in data entry or conversion to standardized units.

Note: the symbol √ means that no error was identified during the available review time.-28- Table A-4.7: Corrected Emissions Data for Best-Performing Kilns: Particulate Matter (PM, filterable)
Stack Test Average (mg/dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Durkee 4-Apr-07 10.2 5.7 1
Durkee 16-Nov-01 8.4 6.1 1 Ash Grove Seattle 15-May-08 10.0 4.7 1 IP Springfield Lime Kiln 15-May-07 Unknown 9.2 2
Lime Kiln 12-Jun-06 Unknown Not Used 3
Lime Kiln 31-Oct-07 Unknown Not Used 3 Lime Kiln 22-May-08 Unknown Not Used 3 Lafarge Buffalo K1 14-Jun-07 17.5 11.9 4
Buffalo K1 15-Jun-07 18.8 9.8 4 Lafarge Whitehall K2 18-Jun-07 1.3 1.7 5 Lafarge Whitehall K3 12-Jun-07 2.6 4.7 Lehigh Evansville 121 31-Oct-06 √ 0.2 a/
Evansville 121 1-Nov-06 √ 0.5 a/
Evansville 121 12-Jan-06 √ 1.8
Evansville 121 12-Jan-06 √ 21.4 a/
Evansville 121 29/30- Nov-2006 unknown 2.2 6 Lehigh Leeds K5 30-Aug-06 √ 10.0 Leeds K5 31-Aug-06 7.2 9.6 5 National Kiln 1 23-Aug-07 0.8 0.9

a/ PM values are PM 10 concentrations measured by Met hod 210A. Should be replaced by total PM (filterable) values using Method 5.

1. EPA assumed 0% O 2 in exhaust (kilns typically operated at 4-9% O 2 during tests). 2. EPA value appears to be computed at 4.67% O 2 (by back-calculation), but the O 2 concentration is not documented and we are unable to verify the EPA conversion or the actual emissions value. 3. Additional PM tests at higher PM levels were on the 114 filing but not used by EPA. 4. EPA made unknown errors in assuming flow rates (or taking from stack tests) and, in some instances, in molecular weights used in conversions. 5. EPA made an unknown error (probably rela ted to flow rates) in converting to concentrations. 6. Could not be verified by the company as a test of this kiln.

Note: the symbol √ means that no error was identified during the available review time.-29- Table A-4.8: Corrected Emissions Data for Best-Performing Kilns: Sulfur Dioxide (SO 2 ) Stack Test Average (ppmvd @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

CEMEX Miami SRU 6-Oct-09 √ 11.0 Lafarge Harleyville K2 26-Oct-06 √ 6.9 Harleyville K2 26-Oct-06 √ 46.0 Harleyville K2 26-Oct-06 √ 55.3 Harleyville K2 26-Oct-06 √ 235.2 Harleyville K2 11-Nov-08 √ 6.5 Harleyville K2 11-Nov-08 √ 47.3 Harleyville K2 12-Nov-08 √ 5.1 Harleyville K2 12-Nov-08 √ 7.6 Lehigh Evansville 121 12-Jan-06 16.0 19.7 2 Evansville 121 13-Aug-07 32.3 29.9 2 Lehigh Evansville 122 11-Jan-06 6.8 4.5 2 Evansville 122 10-Aug-07 11.2 10.1 2
Mitsubishi 4-RK1 24-Mar-98 22.5 24.2 1
Monarch Humboldt K5 12-Dec-06 √ 1.4
CEMEX Miami SRU 6-Oct-09 √ 11.0

1. EPA applied a wrong O 2 concentration to these tests.

2. EPA made an unidentified error(s) in data entry or conversion to standardized units.

Note: the symbol √ means that no error was identified during the available review time.-30- Table A-4.9. Corrected PCA Emissions Data for Best-Performing Kilns: Dioxins/Furans TMB

Stack Test Average (ng/dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Durkee 17/18-May-2006 a/ √ but TEQ 0.0146 1 Ash Grove Seattle 13/16-Fe b-2007 0.0279 TEQ 0.0277 1 CEMEX Demopolis K1 31-Jul/1-Aug-2007 √ 0.0410 b/ Holcim DS K1 17-Oct-07 √ but TEQ 0.0001 1 Lafarge Joppa K2 29-Apr-08 3.7390 TEQ 0.0567 2 Lafarge Tulsa K2 14-Jun-07 0.0890 0.0606 3 Lehigh Evansville 121 13-Jan -06 0.0488 TMB 0.0562 6 Mitsubishi 4-RK1 24-Mar-98 1.6095 TMB 0.0222 4 4-RK1 24-Mar-98 not a test 0.0289 4 4-RK1 24-Mar-98 not a test 0.0819 4 Monarch Humboldt K5 4-Jun-09 √ 0.0020 Humboldt K5 4-Jun-09 √ 0.0003 Humboldt K5 4-Jun-09 √ but K4 0.0853 5 Humboldt K5 4-Jun-09 √ but K4 0.0023 5

a/ Test date corrected to 2006.

b/ EPA used only the first test run; runs 2 a nd 3 were reported as zero emissions and have not been corrected for proper treatment of non-detections.

1. The numerical values are entered correctly (m inor difference due to number of digits entered by EPA). However, EPA has treated this data as DF TMB, while the 114 gives units of "TEQ ng/dscm 7% O 2 ".

2. The stack test report identifies this data as DF TEQ, not DF TMB.

3. EPA did not convert from stack O 2 to 7% O 2
. 4. These are not individual tests, but measurements on 3 compartments of the baghouse that should be averaged to create a single test result.

5. These test results belong to Humboldt Kiln 4.

6. EPA made an unknown error(s) in data entr y or conversion to standardized units.
Note: the symbol √ means that no error was identified during the available review time. Except where annotated as TMB or TEQ, the underlying stack test report has not been reviewed to confirm that the reported values are actually on a TMB basis.-31- Table A-4.10. Corrected PCA Emissions Data for Best-Performing Kilns: Dioxins/Furans TEQ Stack Test Average (ng TEQ /dscm @ 7% O 2 ) Company Kiln Test Date Correct Value EPA Value EPA Errors

Ash Grove Inkom K2 6-Apr-06 0.00439 0.00149 3 Ash Grove ML K1 23-Jan-07 0.00471 0.00200 3 CEMEX Balcones K1 29/31-Jul-2008 0.00669 0.00001 3 CEMEX Brooksville K1 4-Jan-07 0.00834 0.00300 3 Florida Rock Kiln Line 1 7/9-Jan-2008 0.00515 0.00043 3 Kiln Line 1 8-Jan-08 0.00924 0.00233 3 Lafarge Harleyville K2 2-Oct-06 0.00020 0.00008 3 Harleyville K2 4-Oct-06 0.00537 0.00232 3 Lafarge Whitehall K2 13/15-Jun 2007 0.00356 0.00000 1, 3 Lafarge Whitehall K3 13/14-Jun-2007 0.00215 0.00000 2, 3 Lehigh SW Redding 28/31-Aug-2007 0.00458 0.00254 3 SW Redding 29/30-Aug-2007 0.00196 0.00015 3

1. EPA input data in wrong units (re ported in gr/dscm, not ng/dscm)
2. EPA made an unknown error (probably rela ted to flow rates) in converting to concentrations.
3. EPA did not correct non-detections of c ongeners to set ND=detection level and EMPC=detection level. Note: the symbol √ means that no error was identified during the available review time.

IV. Statistical Methodology

EPA's statistical approach to variability is technically flawed and a proper approach will show less certainty in the resu lts, much greater emissions vari ability, and higher floors. The following sections address these elements of the statistical analysis: choi ce of equation; use of test runs versus stack test av erages; normal versus log-normal st atistical distributions; and need for additional information on emissions variability.

A. Choice of Statistical Equation

In the proposed rule, EPA uses a statisti cal formula (the CISWI formula) shown in Equation 1 below to compute a 99 th percentile upper limit (UL) for th e distribution of test runs in the pool of best performing kilns. 75 Fed. Reg. 31952. EPA states that the formula was used in CISWI because it was used in the predecessor HMIWI rule. Id. at 31943. EPA also solicited comments on whether an alternative formula used in the proposed boiler MACT rule should be used instead.-32- (Eq. 1)

The CISWI formula gives an inappropriate and incomplete treatment of the variability in emissions and should not be used to develop the floors. The UL calculation treats the pool of best performing kilns as if it were a statistical po pulation, when the identifi ed kilns are actually a sample representing the best performing kilns in the industry. A UPL calculation should be used instead, in order to treat the data as a sample . Further, the CISWI e quation considers only the variability that is present in the data used to set the floor. There will be additional variability in the future stack test used to determine compliance that is not accounted for in the CISWI equation. All forms of emissions variability and uncertainty must be accounted for in the statistical equation used to develop the floors.

In place of the CISWI formula, EPA should adopt the formula used in the Proposed Boiler MACT Rule 8 (Eq. 2) (Boiler MACT formula). The Boiler MACT formula computes a UPL, using the floor data as a sample represen ting the best performers in the industry. The Moiler MACT formula considers all forms of variability that will affect a compliance determination, including the variability that is pres ent in the floor data and the variability in the future stack test that will determine a unit's co mpliance. Among the several formulas considered by EPA in recent rulemakings, the Boiler MACT form ula is the only one that allows a complete and correct accounting for variab ility, and it should be used in the Proposed CISWI Rule.

(Eq. 2)

8 National Emission Standards for Hazardous Ai r Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process H eaters; National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Comme rcial, and Institutional Boilers; Standards of Performance for New Stationary Sources and Emissi on Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units. 75 Fed. Reg. 32020 (June 4, 2010) UL = x + t(0.99,n) * s Where: x = average of the data. t(0.99,n) = t-statistic. n = number of data points in the population. s = standard deviation.

Where: x = the average emissions s = the sample standard deviation n = the number of test runs (meaning total emissions tests in the pool) m = the number of test runs in the com p liance avera g es-33- B. Improper Use of Test Runs to Represent Emissions Variability

In its floor analysis, EPA treated each test run as being an independent data point in applying the CISWI formula, and it treated the results of the floor calculation as providing the allowance for emissions variability required by the statue. If only one stack test is available for a best-performing kiln, the 3 individu al test runs are statistically independent only with respect to the run-to-run variability associat ed with the test method. The test runs (normally done back to back on the same day) provide no information on operating variability because they share the same operating conditions. If two stack tests ar e available for a best performing kiln, then the data offer two observations of the emissions prof ile due to operating variability. However, the six individual test runs that w ould be performed in those two st ack tests are not 6 statistically independent observations, but ra ther two independent sets of 3 correlated test values.

EPA has a very limited amount of information on operating variability in the database. For units with one stack test, there is no way to determine the import of operating variability on its emissions. One cannot determine whether the unit's emissions are inhe rently low or the unit was merely tested on a day when its emissions we re uncharacteristically low. Only units with two or more stack tests provide any information about emissions and operating variability. It is not possible to determine the emi ssions variability of the kilns id entified as best performers in the CISWI rulemaking, given that th e large majority (56 of 84) have only a single st ack test. As EPA did for the PM floor analysis in the Pr e-publication Portland Ce ment NESHAP, it should obtain additional data to have at least three stack test s per kiln. Although confidence limits can be computed for a dataset consisting of 2 data po ints, a minimum of three data points is the point at which one begins to obtain us eful information about variability.

Table A-5 summarizes how limited EPA's info rmation is on operati ng variability in comparison to what is implied by the count of test runs. For only four pollutants (CO, NOx, PM and SO2) does the data for best performers co ntain more than a dozen stack tests, and these counts are achieved only because certain kilns provide an extended record of tests:

• For CO, the Lafarge Seattle kiln reports 13 of the 22 stack tests

• For NOx, the Lafarge Seattle kiln reports 13 of the 22 stack tests

• For PM, the Lehigh Evansville 121 kiln reports 5 of the 13 stack tests

• For SO2, the Lafarge Harleyville 2 kiln reports 8 of the 15 stack tests.

Thus, where the sample is at least modest in size, it is because a large part of the sample comes from a single kiln, making the dataset unbalanc ed and not representative of the industry.

In all other instances, the database contains 10 or fewer stack tests. Given that there are 7 best performing kilns for each of these pollutants, only 1 to 3 kilns have multiple stack tests and the largest number of tests per kiln is only 2. In these instances, the dataset is both small and lacking in adequate information to assess emissions variability. For the metals, 4 or 5 kilns (of the 7 kilns in the floor) have onl y a single stack test depending on po llutant, while only 2 or 3 of the kilns have at least 2 stack tests.-34- Table A-5: Summary of the Informatio n Available on Operating Variability

in EPA's Emissions Database for B est-performing Waste-burning Kilns

Pollutant Number of Test Runs (EPA Count) Number of Kilns in

Floor Number of Stack Tests Kilns with 1 Stack Test Maximum Number of Tests per Kiln Cadmium 22 7 9 5 2
CO 69 7 22 4 13
HCl 23 7 8 6 2
Lead 27 7 10 4 2 Mercury 25 7 9 5 2
NOx 68 6 22 3 13
PM 38 7 13 4 5
SOx 45 6 15 3 8
DF TMB 34 7 9 5 2 DF TEQ 30 7 10 4 2

In sum, EPA does not have adequate informa tion in its database used to develop the proposed floors to adequately account for the e ffect of operating vari ability on the emission levels of the best performing kilns. Although PCA has added additional stack tests to the database, the existing emissions data for best pe rforming kilns remain too limited in quantity to permit an adequate accounting fo r variability in de veloping the emissions floors. Without adequate information, EPA has not met its statutory obligati on to set floors based on the emission limitation that the best performing kilns can meet in practice.

C. Floors Should be Based on Anal ysis of Stack Test Results

EPA's statistical method for the analysis of th e data must properly represent and account for the amount of emissions data that it has an d for the effects of both emissions variability and uncertainty. EPA's analysis of individual te st run data does not meet this requirement.

In basing its floor analysis on test runs, EPA over-estimates the amount of information it has on operating variability and gives the data the appearance of more stat istical power than it actually has. When individual test run data are used, the t-statistic is under estimated because the count of test runs is three times that of stack tests. In addition, th e standard deviation for individual test runs is understated because the test runs are more homogenous (every triplet shares the same operating conditi ons) than are stack tests (whi ch have independent operating conditions).

If EPA expects that compliance with the st andards in the Proposed CISWI Rule will be based on the result of a single stack test ( e.g., performed annually), then it must develop the CISWI floors and standards based on the analysis of the stack test results themselves (not individual test runs). The count of stack tests is the prope r measure for the amount of emissions data that EPA has in its database. The result for a stack test is also statistically independent from other stack test results. Higher floor values necessa rily result when the analysis is shifted from individual test runs to independent stack tests. These higher values more accurately represent the emissions limitation that the best performing un its can be expected to meet, given the limited-35- information that EPA has on operating variabil ity. No other basis for the analysis ( i.e., using test runs in place of stack tests) should be used when it is possible to conduct the analysis on the same basis on which compliance will be enforced.

D. EPA Should Assume Log-Normal Distributions for Emissions

EPA should also change its met hods for statistical analysis to assume that stack emissions are log-normally distributed, unless a normal (or othe r) distribution is show n to be the preferred choice by direct evidence. EPA took the revers e approach in its floor analysis, assuming that emissions were normally distributed unless the sk ewness or kurtosis tests indicated otherwise. The statistical tests for skewness and kurtosis are us eful, but (like most test s) they are not very powerful in small samples and can only reject ( not prove) a hypothesis. Selecting the correct hypothesis for the distribution of emissions data is critical to obtaini ng the correct result.

EPA's guidance document on methods for statistic al analysis notes th at emissions data are frequently right-skewed (meaning toward higher values) and that "[e]nvironmental data commonly exhibit frequency distributions that ar e non-negative and skewed with heavy or long right tails." 9 We generally see the characteristic, right -skewed distribution of values in the data for all pollutants (except for lead and NOx), 10 indicating that the data are not normally distributed. This is the natural outcome of physi cal processes that result in occasional excursions of emissions to a higher level than those typically encountered. For this reason, the hypothesis should be that emissions data are log-normally di stributed, unless the skew ness and kurtosis tests demonstrate otherwise.

Further, the correct statistical distribution should be a propert y of the pollutant and source type in question and should not change because of additions or deletions to the dataset Once EPA takes the step of adding two best performers to the pool under the a lternative definition of solid waste, its own analysis adopts the log-normal distribution for all but tw o pollutants. If the emissions data are log-normally distributed when 9 best performers are considered, then they were log-normally distributed when only 7 best performers we re considered, even if the skewness and kurtosis tests could not prove the existence of non-normality.

In the development of alternative floors, we have assumed the em issions data are lognormally distributed unless the skewness and kurto sis tests indicate ot herwise. Under the primary definition of solid waste, all pollutant s are found to be log-normally distributed except for lead and NOx which are found to be better re presented by a normal distribution. Cadmium fails the skewness test, which indicates that its distribution is more righ t-skewed than the lognormal distribution. Cadmium emissions are at l east log-normally distributed and clearly not normally distributed. We obtain the same result s for the distributional tests under the alternate definition of solid waste, substantiating that our hypothesis and approach to the distributional tests are robust.

9 U.S. Environmental Protection Agency, Offi ce of Environmental Information, Guidance for Data Quality Assessment: Practical Methods for Data Analysis, EPA/600/R-96/084, at 2-40, 4-7 (July 2000).

10 Distributional tests were not performed for D/F TMB or TEQ due to the concerns already expressed about the pervasive problems with this data.-36- Selecting the proper statistical di stribution is more than a fine point in the floor analysis, because the floors are defined on the basis of the 99 th percentile of emissions. This point lies on the far right tail of the distributi on, and it is crucial that the chosen distribution fit the data if the estimated percentile is to adequately character ize the emission limit that best performing kilns can meet. Other statistical distributions exist, an d it may be important to investigate their use for pollutants such as cadmium that are not properly fit by the log-normal dist ribution. We have not been able to do so in the limited amount of time allowed for comments.

Further, there needs to be consistency between the emissi ons distribution chosen for existing units and that for new un its, and we have retained the em issions distributions determined for existing units in the floor an alysis for new sources. The cause s for emissions data to be lognormally distributed operate in the data for indi vidual units in the same way and to the same extent they are present in data for multiple uni ts. Therefore, absent direct evidence to the contrary, the statistical distri butions should be the same for both existing and new sources.

E. EPA Needs to Obtain More Information on Long Term Emissions Variability

EPA must gather more data to have a m eaningful assessment of emissions of the population of waste-burning kilns and the variability of emissions for the best performers, which is critical to the standard setti ng process. As stated earlier, a single stack test provides no information on the emissions variability that will be experienced by the kiln over time.

The emissions variability of cement kilns is known to be significant as a result of changing operating conditions, fuels and raw materials. Stack test s taken at intervals of only a few days or few weeks give, at best, a limited pi cture of emissions variability and may lead to estimates that are too small to adequately account for the em issions variability that best performing kilns will experience over time. Fi gure 1 illustrates the variability for CO and NOx emissions for the kiln that pr ovides the longest emissions time series in the EPA database. Emissions can be consistent in closely-spaced te sts (as seen for pairs of data points of similar dates) or can be quite variable (as seen for th e August 2007 testi ng.) Moreover, emissions levels vary substantially over longer periods of time as operating conditions, fuel and raw materials change. EPA does not have emissions tests separa ted in time by at least one year except for a very small number of cases in setting the floors. This is not an ade quate basis to develop emissions limitations that the best performing k ilns can meet in practi ce. To address this limitation, PCA attempted to identify additional st ack tests on the waste-burning kilns that EPA identified as best performers. Table A-6 summ aries the additional data, which have been added to the corrected database and used to develop alte rnative floors (described in the next section). For example, the table shows that the characte rization of lead and PM emissions for National Kiln 1 (a floor unit for each of these pollutants) changes when new test data are added. EPA used only the 2007 tests, which we believe were s ecured from the local air agency. A significant error in the assessment of lead emissions is ma de by using only the 2007 tests, because the added data from the 2008 and 2009 testing show higher emissions and much gr eater variability in emissions. A significant error in the assessment is also made for PM emissions, because the added data from later testing show large variability in emissions.-37- Figure 1. Example of Long-term Emissions Variability for a Best Performing Cement Kiln

.

The same result is found in each case where we have obtained additi onal stack test data for existing kilns. The new tests often show hi gher emissions than the stack tests contained in the docket and used by EPA to develop the propos ed floors. In all cases – even when the emissions are lower – the new tests show greater emissions variability than is indicated by the data in the docket.

The docket data provide an inadequate representation of the emissions variability for best performing kilns. This remains true even when the additional test data we have collected is included in the database.-38- Table A-6: Additional Stack Test Data on Emissions Variability of Best-Performing Waste-burning Kilns Stack Test Average Pollutant Test Date Corrected Value EPA Value Units (7% O 2 ) Data Source

National Cement of CA Kiln 1 Pb 9-Feb-2007 0.00007 0.00141 mg/dscm Docket 24-Jul-2009 0.00071 mg/dscm Added 0.00039 mg/dscm Calc'd Kiln 1 PM 23-Aug-2007 0.8 0.9 mg/dscm Docket 19-Aug-2008 15.4 mg/dscm Added 14-July-2009 0.8 mg/dscm Added 5.7 mg/dscm Calc'd

Ash Grove Cement

Inkom Kiln 2 Cd 29-Sep-2000 0.00017 0.00020 mg/dscm Docket 25-Aug-1993 0.08669 mg/dscm Added 0.04343 mg/dscm Calc'd Durkee Cd 15-Nov-2001 0.00019 0.00011 mg/dscm Docket 16-Nov-2001 0.00011 0.00006 mg/dscm Docket 6/8-Jul-2001 0.04264 mg/dscm Added 6/8-Jul-2001 0.10684 mg/dscm Added 0.03745 mg/dscm Calc'd Durkee HCl 16-Apr-2002 0.252 0.117 ppmvd Docket 16-Apr-2002 3.094 1.592 ppmvd Docket 10-Jul-2001 0.789 ppmvd Added 1.378 mg/dscm Calc'd
Durkee Pb 15-Nov-2001 0.00076 0.00038 mg/dscm Docket 16-Nov-2001 0.00066 0.00039 mg/dscm Docket 6/8-Jul-2001 0.00191 mg/dscm Added 6/8-Jul-2001 0.00166 mg/dscm Added 0.00125 mg/dscm Calc'd Durkee PM 4-Apr-2007 10.2 5.7 mg/dscm Docket 16-Nov-2001 8.4 6.1 mg/dscm Docket 6-Jul-2001 10.1 mg/dscm Added 6-Aug-2008 4.3 mg/dscm Added 8.3 mg/dscm Calc'd Midlothian K2 DF TEQ 23-Jan-2007 pending 0.00200 ng/dscm Docket 15-Jun-2009 pending ng/dscm Added TBD ng/dscm Calc'd Seattle PM 15-May-2008 10.0 4.74 mg/dscm Docket 6-Mar-2008 13.0 mg/dscm Added 11.5 mg/dscm Calc'd-39- Table A-6: Additional Stack Test Data (continued) Stack Test Average Pollutant Test Date Corrected Value EPA Value Units (7% O 2 ) Data Source

Lafarge Cement Whitehall K2 PM 13/15-Jun-2007 1.3 1.7 mg/dscm Docket 174-Jul-2008 2.2 mg/dscm Added 1.8 mg/dscm Calc'd Whitehall K3 PM 13/15-Jun-2007 2.6 4.7 mg/dscm Docket 174-Jul-2008 3.1 mg/dscm Added 2.8 mg/dscm Calc'd Lehigh Cement Evansville 121 CO 13-Aug-2007 66.9 62 ppmvd Docket

18-Dec-2007 63.7 89 ppmvd Docket 12-Jan-2006 93.5 ppmvd Added 74.7 ppmvd Calc'd NOx 13-Aug-2007 413.7 382.5 ppmvd Docket 12-Jan-2006 363.6 ppmvd Added 388.7 ppmvd Calc'd
PM 31-Oct-2006 0.2 0.2 mg/dscm Docket 1-Nov-2006 0.5 0.5 mg/dscm Docket 12-Jan-2006 1.8 1.8 mg/dscm Docket 12-Jan-2006 21.4 21.4 mg/dscm Docket 29/30-Nov-2006 (unknown) 2.2 mg/dscm Docket

24-May-2006 2.7 mg/dscm Added 5.3 5.2 mg/dscm Calc'd

Mitsubishi Cement 4-RK1 Cd 24-Mar-1998 0.00008 0.00009 mg/dscm Docket 21-Oct-1993 0.05900 mg/dscm Added 22-Oct-1993 0.00320 mg/dscm Added 0.02076 mg/dscm Calc'd 4-RK1 Pb 24-Mar-1998 0.00200 0.00215 mg/dscm Docket 21-Oct-1993 0.01032 mg/dscm Added 22-Oct-1993 0.01299 mg/dscm Added 0.00844 mg/dscm Calc'd

4-RK1 SO 2 24-Mar-1998 23.4 24.2 ppmvd Docket 10-Dec-1993 134.9 ppmvd Added 78.7 ppmvd Calc'd
4-RK1 DF TMB 24-Mar-1998 1.6095 ~0.04 ng/dscm Docket 21-Oct-1993 7.6597 ng/dscm Added 22-Oct-1993 5.8852 ng/dscm Added 5.0515 ng/dscm Calc'd-40- V. Development of Alternative CISWI Floors

EPA must restart the Proposed CISWI Rule for waste-burning cement kilns to allow for the data review and development wo rk that will be required to address the many shortcomings of its current emissions database. In particular, we believe that the representation of emissions variability – even with the inclusion of the add itional tests we have obtained – is inadequate to meet its statutory obligation to establish emissions limitations that the best performing kilns can meet under reasonably foreseeable, adverse circumstances.

Our analysis uses the corrected emissions data contained in Tables A-4.1 through A-4.10, along with the additional stack te st data contained in Tables A-6. The best-performing kilns identified by EPA have been retained for each pollutant, except in cases where the correction of EPA errors resulted in demoting a kiln from the pool. From this dataset, we have stricken the HCl tests conducted with the disapproved test me thods and replaced them with other kilns for which EPA has data. However, due to time limitati ons, the emissions data for the kilns added to the pool were not reviewed and corrected in th e PCA review of data on best performers.

The assessment of floors is based on the analysis of stack test result s using the version of the boiler MACT equation that is appropriate for stack te sts, as given in Eq. 3:

(Eq. 3)

When stack tests results (with corrections and extensions to the data) and the Boiler MACT formula are used, much higher floor values are derived. These higher floors accurately reflect the most stringent emissi ons floors that can be develope d using the currently available data, considering both the limited available data on emissions variability and the uncertainty present in the analysis. Alternative floors were developed based on two different approaches, in an effort to maximize the use of the limited information on emissions variability.

Option A is a conventional application of the boiler MACT equation (Eq. 3) to the emissions stack test data available for each pollutant. For existing units, the average and standard deviation of (stack test) emissions is computed by pooling all of the data on best performers and using the boiler MACT equation to compute the 99 th percentile UPL. In taking this approach to derive the UPL 99 for the average best performer, we are implicitly assuming that operating variability, rather th an inherent emissions differe nces, are responsible for the differences seen among kilns in the pool. It is ce rtainly true that operating variability is a much larger contributor to emission differences th an any inherent difference in the emissions Where: x = the average emissions for stack tests s = the standard deviation for stack tests n = the number of stack tests in the pool m = the number of stack tests used for compliance determination ( m=1 )-41- performance among kilns. 11 Therefore, there is no basis for determining that any of the kilns in the pool are lower in emissions than the others. Given this, it is inappropriate to select any one kiln to set the floor for new sources. Instea d, EPA should recognize that all of the kilns are equivalent, within the limitations of the availabl e data, and set the new s ource floor equal to the floor for existing units.

In the event that EPA disagrees with this approach to new units, we have developed floors based on an alternative Optio n B. It should be clear that the new source floor cannot be determined by a kiln with only one stack test. In this instance, there is literally no information on the emissions variability of the kiln and no statistical limit can be placed on the 99 th percentile of its emissions distribution. In this option, the floors are deve loped using only the kilns for which two or more stack tests are available. The new source floor is set by the UPL 99 value for the lowest emitting kiln with 2 or more stack tests. The floor for existing units is set by the UPL 99 value for the average of all kiln s with 2 or more stack tests.

A. Alternative Floors Under the Primary Definition of Solid Waste

This section reports the alternative floor values developed by PCA for the best performing kilns under the definitio n of solid waste as proposed in the Proposed RCRA Rule. The floor values are given below in Tables A-6 and A-7 for existing and new units, respectively. As argued elsewhere, PCA believe s that it is not appropriate to set a standard for opacity; therefore, no floor valu e has been calculated.

For the reasons detailed in Section III, PCA believes that EPA's dioxin/furans data are unreliable and incorrect. This is due to the inclusion of TEQ data in the dataset for the TMB basis and to the improper treatment of non-dete ctions (according to methods of compliance determination, when the purpose is to set standards) . Our review of the TMB data is incomplete for the floor units, and our review of the TEQ data has been limited to the treatment of nondetections for the floor units. All of EPA' s dioxin/furans TMB and TEQ data (both best performing and other kilns) need to be review ed, correctly attribute d, and corrected for nondetections before any meaningful analysis can be conducted. Therefore, we did not compute alternative floors for dioxin/furans in the analysis.

For existing units (see Table A-7), the alternative floor values are higher, in all cases, than the floors proposed by EPA. This is as a result of removing errors and bias in the EPA database and of correctly accounting for the limite d amount of information that is available on emissions variability through the analysis of stack test (not test runs). For some pollutants, the calculated floor values are sufficiently high as to represent emissions limitations that are not meaningful. For example, the calculated floor for cadmium is nearly 400 mg/dscm, and for SO2 it is in excess of 12,000 ppmvd. In these cases, the table excludes th e calculated floor, with an asterisk and footnote indicating th at computed floors are too high to be meaningful. These cases

11 This has been verified through a components of variance analysis conducted on the stack test data for best performers. The analysis partitioned the variance in the data into components associated with variability within units (as se en in multiple stack tests for some kilns) versus variability seen across units. In all instances, the within-unit emissions variability is several to many times the variability apparent across units.-42- result from the inadequacies of the EPA database – a too-small sample of stack tests, too little information on emissions variability and, specificall y, too few kilns with 2 or more stack tests. Even where floor values are reported, the analysis suffers from the same limitations. The purpose of the analysis is not to advocate that EP A establish floors at these levels. Rather, the purpose is to emphasize that adequate emissions data do not currently exist to support the establishment of correct and meaningful standa rds. Furthermore, the only way to collect meaningful data is to first define what solid waste is for the purposes of CISWI, then collect stack test information that will inform establis hment of floors based on tests conducted while combusting solid waste.

EPA could remedy the lack of data problem by using PM as a surrogate for the regulated metals. Even though § 129 of the CAA specifically requires setting emi ssion limits for certain metals, EPA has discretion to use PM as a surr ogate and has exercised this discretion in many NSPS and NESHAP rulemakings.

For new units (see Table A-8), the Option A fl oor values have been set equal to the existing unit floors given in the table for existin g units. For Option B, the new unit floors have been determined by the lowest ranked kiln that ha s at least two stack tests, because no statistical limit can be placed on the emissions of lower ranked kilns that have only a single stack test. As can be seen in the tabl e, only for lead is Option B floor lo wer than that computed under Option A. Only for CO, lead and NOx emissions is th e new unit floor within the range of measured emission values for waste-burning ce ment kilns. In all other cases, the calculated fl oor is so high (typically far above the range of measured emission values) that it does not represent a meaningful result, much less a meaningful emissions limitation.

The extreme floor values encountered in Op tion B reflect the fact that having only two stack tests for the single best performing kiln is an inadequate basis for determining the floor because the variability in emissions has not been characterized. When N=2, the t-statistic for the UPL 99 emissions level takes on a value of 32 for N-1=1 degree of freedom and results in a multiple of 32 times the standard deviation being added to the emission level. With this little information, the uncertainty in the analysis is en ormous. Even when 4 tests are available for the floor-setting kiln, the emissions variability is still large enough that, when coupled with the certainty associated with 3 degrees of freedom, th e resulting floor values are still very large.

Again, the purpose of this anal ysis is not to argue that EPA should adopt the floors presented in the tables, but rather to indicate in stark terms the inadequacy of the existing database to support floor development. If EP A disagrees and elects to proceed with the establishment of emission floors, it has no basis to set floors for existing and new units below the Option A levels given in Tables A-7 and A-8. It has no basis to set floors at any level for the pollutants where the calculated floor values have been flagged with asterisks as not meaningful.

If EPA should reject the new source floor s computed under Option B, then it cannot bypass the Option A floors for existi ng units in order to select lo wer values from Option B. Option A is the conventional application of a UPL fo rmula to the data (in this instance the boiler MACT equation), as EPA has done in this and ot her rulemakings, and it provides the technically most-credible estimates of the floors for existin g units. That Option A sets the new unit floors equal to those for existing units merely recognizes that there is not adequate data to determine-43- floors for new units, when the lowest ranked kiln often has only 1 stack te st and few kilns have more that 2 stack tests.

Table A-7. Floor Determination based on Stack Tests and the Boiler MACT Equation: Existi ng Units (Primary SW Definition)

(Excludes HCl tests based on EPA Method 26 or CARB Method 421)

PCA Floor Analysis 1/
Option A 2/ Option B 3/ Pollutant Units EPA Proposed

Floor Number of Stack Tests Floor Number of Stack

Tests Floor

Cadmium mg/dscm 0.0003 14 * 11 *
CO ppmvd 710 23 1,575 19 813
HCl ppmvd 1.5 8 * 2 *
Lead mg/dscm 0.0027 11 0.0055 6 0.0045
Mercury mg/dscm 0.024 9 0.257 4 0.682

NO
x ppmvd 1,100 22 1,492 21 1,037
PM mg/dscm 60 20 * 20 109
Opacity % 4% 4/ not appropriate to set standard

SO 2 ppmvd 410 15 * 14 *
DF TMB ng/dscm 2.1 floor not computed pending correction of all data
DF TEQ ng/dscm 0.17 5/ floor not computed pending correction of all data

1./ Based on log-normal distribution of emissions da ta, following EPA Guidance Document for Data Quality Assessment, except lead emissions data (w hich are determined to be normally distributed based on skewness and kurtosis tests).

2/ All differences in stack emissions are attributed to operating variability. Therefore, no inherent difference in emission levels can be detected among units, and all units are assumed to be identical in performance. The new unit floor must equal the existing unit floor.

3/ Unit emissions differ due to differences in inhere nt emission levels and ope rating variability. Only units with 2 or more stack tests, for which data on operating variability exist, may be used in floor calculations. The new unit floor is determined by the unit with 2 or more tests having the lowest emissions level.

4/ Determined as 0.053 x PM in EPA analysis.

5/ Determined as 0.078 x DF TMB in EPA analysis.

* Note: Computed floor value is too high to represent a meaningful emission limitation because of inadequate sample size and inad equate information on emissions variability.-44- Table A-8: Floor Determination based on Stack Tests and the Boiler MACT Equation: New Units (Primary SW Definition)
(Excludes HCl tests based on EPA Method 26 or CARB Method 421)

PCA Floor Analysis 1/
Option B 3/ Pollutant Units EPA Proposed

Floor Option A 2/ Number of Stack Tests Rank of Kiln Setting Floor Floor

Cadmium mg/dscm 0.0003 * 2 #4 *
CO ppmvd 36 1,575 3 #1 1,615
HCl ppmvd 1.5 * 2 #7 *
Lead mg/dscm 0.00078 0.0055 2 #1 0.0045
Mercury mg/dscm 0.024 0.257 2 #2 *

NO
x ppmvd 140 1,492 4 #1 1,725
PM mg/dscm 1.8 * 2 #1 *
Opacity % 1% 4/ not appropriate to set standard

SO 2 ppmvd 3.6 * 2 #2 *
DF TMB ng/dscm 0.00035 floor not computed pending correction of all data
DF TEQ ng/dscm 0.000028 5/ floor not computed pending correction of all data

1./ Based on log-normal distribution of emissions da ta, following EPA Guidance Document for Data Quality Assessment, except lead emissions data (w hich are determined to be normally distributed based on skewness and kurtosis tests).

2/ All differences in stack emissions are attributed to operating variability. Therefore, no inherent difference in emission levels can be detected among units, and all units are assumed to be identical in performance. The new unit floor must equal the existing unit floor.

3/ Unit emissions differ due to differences in inhere nt emission levels and ope rating variability. Only units with 2 or more stack tests, for which data on operating variability exist, may be used in floor calculations. The new unit floor is determined by the unit with 2 or more tests having the lowest emissions level.

4/ Determined as 0.053 x PM in EPA analysis.

5/ Determined as 0.078 x DF TMB in EPA analysis.
* Note: Computed floor value is too high to re present a meaningful emission limitation because of inadequate sample size and inadequate information on emissions variability.-45- B. Alternative Floors Under the Altern ate Definition of Solid Waste

This section reports the alternative floor values developed by PCA using the alternate definition of solid waste. The floor values ar e given below in Tables A-9 and A-10 for existing and new units, respectively. As argued elsewhere, PCA believes that it is not appropriate to set a standard for opacity; therefore, no floor value has been calcula ted. Further, for the reasons detailed for the floor analysis under the primary solid waste definition, all of EPA's dioxin/furans TMB and TEQ data (both best performing and ot her kilns) need to be reviewed, correctly attributed, and corrected for non-detections before any meaningful analysis can be conducted. Therefore, we did not compute alternative floors for dioxin/fura ns in the analysis.

For existing units (see Table A-9), the alternativ e floor values are higher in all cases than the floors proposed by EPA, as a result of removing errors and biases in th e EPA database and of correctly accounting for the lim ited amount of information that is available on emissions variability. For some pollutants, the calculated fl oor values are sufficiently high as to represent emissions limitations that are no t meaningful and, therefore, are not shown in the tables. Even where floor values are shown, they are affected by the same limitations of inadequate data that make it impossible to compute meaningful floors for the other pollutants. The purpose of this analysis is not to advocate that EPA establish floors at these leve ls. Rather, the purpose is to emphasize that adequate emissions data do not cu rrently exist to support the establishment of correct and meani ngful standards.

For new units (see Table A-10), the Option A floor values have been set equal to the existing unit floors given in the table for existin g units. For Option B, the new unit floors have been determined by the lowest ranked kiln that ha s at least two stack tests, because no statistical limit can be placed on the emissions of lower ranked kilns that have only a single stack test. As can be seen in the table, onl y for CO is the Option B floor lower than that computed under Option A. Only for CO, lead and NOx emissions is the new unit floor within the range of measured emission values; in all other cases it is so high that it does not represent a meaningful result, much less a meaningful emissions limitation.

As for the proposed definition of solid waste, the extreme floor values encountered in Option B reflect the fact that having only two stack tests for the single best performing kiln is an inadequate basis for determini ng the floor because the variabil ity in emissions has not been characterized. When N=2, th e t-statistic for the UPL 99 emissions level takes on a value of 32 for N-1=1 degree of freedom and results in a multiple of 32 times the standard deviation being added to the average emission level. W ith this little information, the uncertainty in the analysis is enormous. Even when 4 tests are available for the floor-setting kiln, th e emissions variability, coupled with the uncertainty associ ated with 3 degrees of freedom, produces floor values that are still very large.

As stated, now several times, the purpose of th is analysis is not to argue that EPA should adopt the floors presented in the ta bles, but rather to indicate in stark terms the in adequacy of the existing database to support floo r development. If EPA disagree s and elects to proceed with the establishment of emission floors, it has no basis to set floors under the definition of solid waste below the Option A levels given in Tables A-9 and A-10. It has no basis to set floors at any level-46- for the pollutants where the calculated floor va lues have been flagged with asterisks as not meaningful.

If it rejects the new source floors computed under Option B, then it cannot bypass the Option A floors for existing units in order to select lower valu es from Option B. Option A is the conventional application of a UPL formula to the data (in this in stance the boiler MACT equation), as EPA has done in this and other ru lemakings, and it provides the technically mostcredible estimates of the floors for existing units. That Option A sets the new unit floors equal to those for existing units merely recognizes that ther e is not adequate data to determine floors for new units, when the lowest ranked kiln often has onl y 1 stack test and few kilns have more that 2 stack tests.

C. Translation of Floors to St andards Enforced By CEMS

In the Pre-Publication Portland Cement NESH AP, EPA used the statistical equation for the UPL to translate PM emissions data that had been measured using stack tests to a floor that would be enforced using PM continuous emissi ons monitoring systems (CEMS). In doing this, EPA has made the assumption that the statistical characteristics of PM CEMS measurements are identical to those of the Met hod 5 stack test for PM, although no data are presented to support this assumption. EPA has also assumed that the emissions variability introduced by start-up, shut-down, and malfunctions is ad equately allowed for in the fl oors that it establishes, but no evidence in support of this assumption is provide d in the final rule. The CEMS measurements will record emissions during these periods, yet none of the stack tests on which the floor was established were taken during such times.

In the Proposed CISWI Rule, EPA proposes to require new waste-burning kilns to demonstrate compliance with the proposed merc ury limit developed from stack tests using mercury CEMS. To the extent that compliance is to be demonstrated using CEMS for any of the pollutants considered in the Proposed CISWI Rule , EPA must have an ad equate technical basis to adjust floor values determined from stack te sts to have equivalent stringency when enforced using CEMS. The two very different sampling and measurement methods should be assumed to have different statistical characteristics until a de monstration has been made of their equivalency. Statistical differences may include bias – mean ing that the methods gi ve different numerical values on average – and differences in variance. The fact that a multi-day average determined from CEMS data will have attenuated variance because of the averaging does not in any way mean that CEMS measurements have the same (o r lower) variability compared to stack tests when put on a comparable basis.

To understand the relative performance of the two measurement methods requires data taken each way (stack test and CEMS) for compar able averaging periods (3 hours) in sufficient numbers to allow an assessment of bias and va riability. Further, EP A must make explicit adjustments in the average emissi on level and the variance to acc ount for the effect of including SSM events in CEMS data used for compliance. The best performing kilns will regularly go through start up and shut down cycles and will unavoidably experience periodic malfunctions, but these conditions have not been captured in the stack tests. EPA must take such events into explicit consideration in the translation if the be st performing kilns are to be able to meet the resulting emission limitations. The data required to c onvert from stack test to CEMS do not now-47- exist, because mercury CEMS have never been us ed on a cement kiln, let alone on the specified best performers. EPA must develop appropriate data to adjust the floors before it can require compliance based on CEMS.

Table A-9. Floor Determination based on Stack Tests and the Boiler MACT Equation: Existi ng Units (Alternate SW Definition)
(Excludes HCl tests based on EPA Method 26 or CARB Method 421)

PCA Floor Analysis 1/
Option A 2/ Option B 3/ Pollutant Units EPA Proposed

Floor Number of Stack Tests Floor Number of Stack

Tests Floor

Cadmium mg/dscm 0.0003 19 * 15 *
CO ppmvd 710 25 1,727 19 813
HCl ppmvd 1.5 12 * 5 *
Lead mg/dscm 0.0027 14 0.0050 8 0.0037
Mercury mg/dscm 0.024 11 0.491 4 0.682

NO
x ppmvd 1,100 22 1,492 21 1,037
PM mg/dscm 60 22 * 20 109
Opacity % 4% 4/ not appropriate to set standard

SO 2 ppmvd 410 15 * 14 *
DF TMB ng/dscm 2.1 floor not computed pending correction of all data
DF TEQ ng/dscm 0.17 5/ floor not computed pending correction of all data

1./ Based on log-normal distribution of emissions data following EPA Guidance Document for Data Quality Assessment, except lead emissions data (w hich are determined to be normally distributed based on skewness and kurtosis tests).

2/ All differences in stack emissions are attributed to operating variability. Therefore, no inherent difference in emission levels can be detected among units, and all units are assumed to be identical in performance. The new unit floor must equal the existing unit floor.

3/ Unit emissions differ due to differences in inhere nt emission levels and ope rating variability. Only units with 2 or more stack tests, for which data on operating variability exist, may be used in floor calculations. The new unit floor is determined by the unit with 2 or more tests having the lowest emissions level.

4/ Determined as 0.053 x PM in EPA analysis.

5/ Determined as 0.078 x DF TMB in EPA analysis.
* Note: Computed floor value is too high to re present a meaningful emission limitation because of inadequate sample size and inadequate information on emissions variability.-48- Table A-10: Floor Determination based on Stack Tests and the Boiler MACT Equation: New Units (Alternate SW Definition)
(Excludes HCl tests based on EPA Method 26 or CARB Method 421)

PCA Floor Analysis 1/
Option B 3/ Pollutant Units EPA Proposed

Floor Option A 2/ Number of Stack Tests Rank of Kiln Setting Floor Floor

Cadmium mg/dscm 0.0003 * 2 #4 *
CO ppmvd 36 1,727 3 #1 1,615
HCl ppmvd 1.5 * 2 #7 *
Lead mg/dscm 0.00078 0.0050 2 #1 0.0321
Mercury mg/dscm 0.024 0.491 2 #4 *

NO
x ppmvd 140 1,492 4 #1 1,725
PM mg/dscm 1.8 * 2 #1 *
Opacity % 1% 4/ not appropriate to set standard

SO 2 ppmvd 3.6 * 2 #2 *
DF TMB ng/dscm 0.00035 floor not computed pending correction of all data
DF TEQ ng/dscm 0.000028 5/ floor not computed pending correction of all data

1./ Based on log-normal distribution of emissions data following EPA Guidance Document for Data Quality Assessment, except lead emissions data (w hich are determined to be normally distributed based on skewness and kurtosis tests).

2/ All differences in stack emissions are attributed to operating variability. Therefore, no inherent difference in emission levels can be detected among units, and all units are assumed to be identical in performance. The new unit floor must equal the existing unit floor.

3/ Unit emissions differ due to differences in inhere nt emission levels and ope rating variability. Only units with 2 or more stack tests, for which data on operating variability exist, may be used in floor calculations. The new unit floor is determined by the unit with 2 or more tests having the lowest emissions level.

4/ Determined as 0.053 x PM in EPA analysis.

5/ Determined as 0.078 x DF TMB in EPA analysis.
* Note: Computed floor value is too high to re present a meaningful emission limitation because of inadequate sample size and inadequate information on emissions variability.-49- VI. Sub-Categorization of Waste-Burning Kilns

EPA may establish subcategories when there is evidence that the emissions performance of regulated units differs in a fundamental way as a function of unit type, size, configuration, or other relevant factors. EPA us ed this discretion to establis h a subcategory for waste-burning cement kilns for the reasons detailed in Sectio n IV.B of the preamble to the Proposed CISWI Rule. Waste-burning cement kilns differ among th emselves significantly in terms of type, size, configuration and other relevant factors that can influence emissions, and EPA should consider the further sub-categorization of kilns on this basis. For exampl e, in its evaluation of organic emissions from kilns in support of the cem ent MACT rulemaking, PCA found significant differences due to configur ation and raw materials.

PCA has not developed specific recommendations for sub-categorization of cement kilns under the Proposed CISWI Rule due to the limited data and the limited time EPA has allowed for comment in this rulemaking. Instead, our time has been used to identify and correct more basic problems in the emissions data on best performe rs and the statistical methodology that underlies EPA's proposed floors. The analysis needed to support recommendations on sub-categories will require that EPA acquire more da ta and that emissions data on other kilns (that are not best performers) be subjected to the same scrutiny and correction that we have given to the data for best performers in these comments. PCA request s the opportunity to conduct an analysis of an expanded and corrected database to develop su b-category recommendations in future comments.

VII. EPA Should Not Establish an Opacity Limi t Given EPA's Proposed Stringent PM Limit

As stated in National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry , 73 Fed. Reg. 34702, "We previously proposed use of BLD systems for PM as part of our review of the Portland Cement Standards for Performance under section 111 of the Act. Our rationale for ex tending the requirement to existing kilns is that given the stringent level of the proposed PM emissions limits, we do not believe that opacity is an accurate indicator of complian ce with the proposed PM emissions limit. As just noted, were we to adopt this requirement, we would also remove the opacity standard and opacity continuous monitoring requirements for any sour ce that uses a PM CEMS or ba g leak detector to determine compliance with a PM standard. (Some opacity requirements, such as those for materials handling operations, would remain in place.)"

EPA acknowledges in that opacity is not an accurate indicator of PM compliance. PCA questions why in this proposed rulemaking th e EPA chose to contradict their previous determination. PCA does not agree that an opacity standard is an appropriate indi cator of a PM emission limit, or that the EPA has the data to support this theory.

EPA's proposal to develop a ra tio of opacity to PM emission limits is technically unsound. Studies have shown that it is impossible to create an i ndustry wide ratio to correlate opacity with an actual PM emission limit for a group of facilities. The ratio of opacity to PM is very site specific, participle size dependent, an d relies on steady state conditions. Even when using the most accurate prediction modeling software from numerous single site specific studies the error is 3-8% opacity. This error increases in the 0-10% opacity range which is presently-50- 50% of the NESHAP opacity standard, and 75% of the CISWI proposed standard. The EPA cannot set a ratio for the cement industry base d on the correlation between stack tests and opacity. The PCA disagrees with this approach on the basis that this is scientifically unsound, inaccurate, and cannot be supported by any data.

VIII. EPA Has Failed to Address Certain Cr itical Implementation Issues and Inadequately Clarified Others

As explained above, we maintain that the Proposed CISWI Rule is so insufficient and defective that the only responsible and legally defensible course for EPA to follow is to develop a re-proposal. In addition to numerous defects involving data inadequac y, the proposal fails to address several critically important implementa tion issues relating to portland cement kilns. EPA could not cure this defect by crafting its final regulations in a manner that resolves these issues, because PCA and other in terested parties would have ha d no opportunity to comment on them, in contravention of CAA § 307(d) and we ll-established case law. Moreover, even though we offer suggestions below on ho w certain issues might be addr essed, this does not cure the fundamental APA problem that EPA has totally failed to identify the issues and propose resolutions for public comment.

We should note that we recognize that as both the Proposed CISWI Rule and the Proposed RCRA Rules are currently written, we have maintained that few, if any, portland cement kilns would elect to be covered by CAA § 129 and would simply stop utilizing nonhazardous secondary materials. We are disc ussing these implementation points below to reinforce our points that the current proposal is so seriously lacking that a re-proposal is necessary. In addition, in the event EPA might eventually develop more reasonable CISWI emission limitations, there is a possibility that some portland cement kilns might elect to be regulated under CAA § 129 in the fu ture. These implementation issu es would need to be clearly resolved in such an event.

A. How Will CISWI Kilns Be Regulated Under CAA § 129?

1. The Basic Issue

CAA § 129(h)(2) provides that "no solid wast e incineration unit subject to performance standards under this section a nd section 111 of this Act shall be subject to standards under section 112(d) of this Act."

As a preliminary matter, EPA should clarify in its preamble to the Proposed CISWI Rule that if an affected unit is s ubject to the requirements of the Proposed CISWI Rule, that same source would not be subject to NSPS Subpart F. Th e structure of § 111 and Part 60 is clear that only one NSPS applies to each affected facility. EP A must clarify this point in this rulemaking. If EPA agrees with this inte rpretation, EPA should identify it as such so the public will know EPA's intent.

There are several questions on the timing of changeover from § 112 controls to § 129 controls for solid waste-burning kilns. These issues are particularly critical in light of the facts that: (i) all 40 CFR Part 63, Subpart LLL kilns are now subject to currently effective § 112 standards; (ii) EPA just recently (August 6, 2010 ) issued more stringent § 112 standards, which,-51- if upheld on judicial review, would become effe ctive and enforceable by August or September of 2013 (depending upon the Federal Register publica tion date); and (iii) EPA has committed to issuing final § 129 standards applicable to solid waste-burning kilns by December, 2010, which will become effective and enforceable by December, 2015.

So at what point, under this scenario, would a solid wa ste-burning kiln no longer be subject to § 112 standards? Ev en though this is a fundamentally critical issue for subject facilities, the interested public, EPA, and the St ates, EPA has totally failed to address this and related issues in its Proposed CISWI Rule. Perh aps this is another refl ection of EPA's "rush to judgment" based on a "court-ordered deadline" it has cited that does not even apply to CISWI regulations.

2. Plain Language of the CAA

The plain language of the CAA dictates that a source subject to § 112 that is burning solid waste is "subject to" § 129 st andards. Therefore, even right now, a kiln burning solid waste cannot be regulated by § 112 standards.

EPA has stated its interpretation in prio r CAA § 129 rulemakings, stretching the plain reading and unambiguous language of the CAA when addressing the interplay between §§ 112 and 129.

Here is what EPA said in the 1998 proposed rule preamble:

If EPA elects to cover emissions under section 129, those emissions must be excluded from regulation under section 112. For example, if a cement kiln combusts only fossil fuels, it would have to comply with the regulations beingproposed today. If the kiln combusts a mixture of 50% coal and 50% nonhazardous solid waste, it would continue to comply with the regulations being proposed today until EPA promulgates regulations applicable to such kilns under section 129 of the Act. At that time, if the kiln is burning the 50% coal and 50% solid waste mixture, it would have to co mply with the section 129 regulations as long as it continued to com bust solid waste material.

63 Fed. Reg. 14186 (March 24, 1998) (emphasis added.)

This discussion drew several comments and questions during the comment period, and EPA responded as follows in the 1999 final rule preamble:

Currently, cement kilns which combust municipal solid waste, medical waste, or other waste materials (other than HW) are subject to today's rule. Since these devices currently are not s ubject to section 129 standard s, EPA is including them in this rule to avoid a situation where they aren't regulated at all. This measure, however, is potentially an interim ste p. EPA could determine that cement kilns combusting solid waste materials should be regulated under section 129 of the Clean Air Act, and if so, EPA would revi se the applicability section of these regulations accordingly at the time section 129 regulations applicable to cement kilns are promulgated

.-52- 64 Fed. Reg. 31900 (June 14, 1999) (emphasis added.) Note that under EPA's approach, kilns would be unregulated for 5 years afte r EPA promulgates a final CISWI rule.

PCA believes that it would be inconsistent w ith the CAA for CISWI kilns planning to be regulated under § 129 to cont inue to comply with the current LLL standards. Furthermore, it would be extremely burdensome, disruptive, and illegal for such kilns to be forced into compliance with the new LLL standards in August 2013 for a period of barely two years, and then forced to turn around and abandon those st andards for the totally different set of § 129 standards that will kick in some time in 2015 . PCA also believes that the Pre-Publication Portland Cement NESHAP standard will not surv ive legal challenge if EPA finds MACT floor units of the NESHAP to be subject to § 129.

B. After CISWI Rules Take Full Effect, to What Extent Might CAA § 112 Standards Apply During Periods When CISWI K ilns Might Not Be Combusting Solid Waste?

EPA has for years administered CAA NESHAP rules for portland cement kilns in two distinct categories. First, kilns that burn haza rdous waste fuel (HWF) as a partial fuel substitute are regulated by MACT standards c odified at 40 C.F.R. part 63, Subpart EEE. These kilns will be referred to as "EEE kilns." Second, kiln s that do not burn HWF are regulated by MACT standards codified at 40 C.F.R. part 63, Subpart LLL. These kilns will be referred to as "LLL kilns."

It is clear under both sets of regulations that no kiln will ever be subject to both sets of standards at the same point of time. EPA ha s taken care in both its EEE and LLL regulations to specify in detail how the two sets of standa rds may or may not apply depending upon whether a kiln is burning HWF at any partic ular point of time. For just a few examples, EPA addresses this issue in the EEE regulations in Table 1 to § 63.1200, as well as § 63.1206(b)(1)(ii) and § 63.1209(q). EPA addresses this issue in the LLL regulations at § 63.1340(b).

EPA has also explained in some detail in both EEE and LLL preambles how kilns that are regulated under EEE may or may not be regulat ed under LLL during periods when the EEE kilns happen not to be burning HWF. See, e.g., 64 Fed. Reg. 52904 , 64 Fed. Reg. 31898, 31900, 74 Fed. Reg. 21183, and 74 Fed. Reg. 21139.

The general approach is that a kiln that burns HWF and elec ts to be regulated under EEE will continue to be subject to EEE standards du ring periods when the kiln may not be burning HWF, unless the kiln files documentation affirmatively electing to convert to a different "mode of operation" and be subject to the LLL provisions rather than the EEE provisions. (See the regulations and preamble statemen ts cited immediately above.)

Nowhere in the preamble to the Proposed CISWI Rule does EPA address this critical issue. As shown in Part A above, no kiln that is subject to CAA § 129 standards can be subject to CAA § 112 standards. But one could argue th at a kiln that combusts solid waste and has elected to be regulated as a CISWI kiln might not be "subject to" CAA § 129 standards during a minute, hour, day, or other time period that the k iln does not happen to be feeding solid waste to-53- the combustion chapter. We urge EPA to devel op rules (for further p ublic comment) on this critical issue.

C. After CISWI Rules Are Promulgated, What Processes Will Be Provided for Kilns to Elect In or Out of CAA § 129 Coverage?

Once EPA finalizes CISWI standards applicab le to portland cement kilns, "new" CISWI sources will have 6 months to come into comp liance with the CISWI st andards and "existing" CISWI sources will have approximately 5 years. In what manner will kiln owners and operators be given time to "elect in" or "elect out" of CISWI coverage?

This is an extremely critical issue, for it is obvious that the CI SWI standards will be vastly different than the LLL standa rds. What if a facility that is not now combusting solid waste (as defined in upcoming 40 C.F.R. part 241), and in fact has never combusted such solid waste, decides that it wants to combust solid waste and be regulated as a CISWI source? Will any process be established to allow su ch a source to "elect in?"

An equally critical issue is whether such a source would be considered a "new" or "modified" CISWI source. We think the statute a nd regulations would not allow such a source to be treated as a "new" or "modified" CISWI s ource because the obvious fo cus of the "new" and "modified" definitions in the statute and the regulations is on whether the facility itself is "new" or "modified," not whether an exis ting facility decides for the first time to combust solid waste. See CAA § 129(g)(2), (3). We urge EPA to affirm this point in its final rules.

What about facilities that are combusting solid waste (a s defined in the upcoming 40 C.F.R. part 241 regulations) now, or as of the da te EPA issues final CISW I rules, but may wish to stop combusting solid waste before the regulations might actua lly apply to them (approximately five years in the case of existing sources)? Will any process be established to allow such a source to "elect out?" What if an existing sour ce elects to stop utilizing solid waste? It would seem logical that this source could elect to be regulatedunder the PrePublication Portland Cement NESHAP (again, as an existing source). We urge EPA to affirm this point and take public co mment on its proposed approach.

EPA's proposed rule says nothing about these critical issues. We urge EPA to develop proposed policies and procedures to be incorporated into its final rules and solicit further public comment on these critical implementation issues.

D. "New" and "Modified" CISWI Sources

It is obvious from the proposal that the emission standards applicable to "new," "reconstructed," and "modified" sources will be much more stringent than the standards applicable to "existing" sources. It will thus be critical fo r any CISWI source to be able to ascertain which standards apply to that source. We have identified two issues in need of correction and/or clarification.-54- 1. What is the "Cut-off" Date?

In the regulatory language section of th e proposed rulemaking, EPA proposes in many places to add new language in Subparts CCCC a nd DDDD that would overlay existing language in these subparts going back to the year 2000. Sometimes, the Proposed CISWI Rule would delete certain language from the existing Subparts CCCC and DDDD; sometimes the Proposed CISWI Rule would change the words in exis ting language; sometimes it would leave existing language intact.

EPA's proposal would leave untouche d the following provision (60.2550(b)):

(b) If the owner or operator of a CI SWI unit makes changes that meet the definition of modification or reconstr uction on or after June 1, 2001, the CISWI unit becomes subject to subpart CCCC of th is part and the St ate plan no longer applies to that unit.

Surely this does not accurately reflect EPA's intent as applied to waste-burning kilns. See, for example, proposed Table 7 to S ubpart CCCC, 75 FR at 31987, entitled "Emission Limitations for Waste-Burning Kilns that Comm enced Construction afte r June 4, 2010 or that Commenced Reconstruction or Modi fication after [the Date 6 Mont hs after Publication of the Final Rule].

It would of course be highly inappropriate a nd illegal for EPA to attempt to subject kilns that may have made modifications since 2001 to these new CISWI standards. We urge EPA to correct this error (and any simila r errors) in its final rule. We have found similar errors in Subparts CCCC and DDDD as follows:

CCCC –
§ 60.2265 erroneously continues to peg both th e "modification" and the "reconstruction" trigger dates for all CISWI standards to June 1, 2001.

§ 60.2075 specifies a deadline for operator training of December 3, 2001.

DDDD – (In addition to the erroneous provision already noted above -- )

§ 60.2875 erroneously continues to referen ce the "reconstruction" date to June 1, 2001.

2. What Type of Modification Woul d Make An Existing CISWI Source a "New" CISWI Source?

The proposed CISWI rules would be codified in 40 C.F.R. part 60 (subpart CCCC for new, reconstructed, and modified sources a nd subpart DDDD for existing sources). In the general provisions to part 60, the definition of "modification" states:

Modification means any physical change i n, or change in the method of operation of, an existing facility which increases th e amount of any air pollutant (to which a-55- standard applies) emitted into the atmosphere by that facility or which results in the emission of any air pollutant (to which a standard applies) into the atmosphere not previously emitted.

40 C.F.R. 60.2.

Under the wording of this provision, any ph ysical change or change in method of operation that "increases the am ount" of emissions of a pollu tant would be considered a "modification." Thus, literally, an increase of a few pounds of pollu tant per year could make an existing source into a new source.

EPA's part 60 regulations go on to provide, however (emphasis added):

§ 60.14 Modification.

(a) Except as provided under pa ragraphs (e) and (f) of this section, any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of section 111 of the Act.

. . . (b) Emission rate shall be expressed as kg/ hr of any pollutant discharged into the atmosphere for which a standard is applicable.

We understand that EPA has al ways applied the 60.14 test as controlling for CAA NSPS purposes. Thus, despite the fact that the literal wording of 60.2 would make any increase in emissions a modification, EPA has applied its part 60 regulations for NSPS purposes to be limited to increases in hourly emission rates

. The Proposed CISWI Rule is not clear on this point. Firs t, EPA has not included any new definition of "modification" in either it s proposed CCCC and DDDD regulatory sections in the Proposed CISWI Rule. EPA is thus proposing to retain the definition of "modification" that appears in the curr ently-existing subparts CCCC and DDDD.

The definitions of "modification" in the current CCCC and DDDD provide:

Modification or modified CISWI unit means a CISWI unit you have changed later than June 1, 2001 and that m eets one of two criteria:

(1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and in stalling the CISWI un it (not including the cost of land) updated to current costs (cur rent dollars). To determine what systems are within the boundary of th e CISWI unit used to calcula te these costs, see the definition of CISWI unit.

(2) Any physical change in the CISWI un it or change in the method of operating-56- it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the Clean Air Act has established standards.

60.2265 (CCCC), 60.2875 (DDDD).

First, we note that the date "June 1, 2001" appears in the definition. Once again, we assume this needs to be changed and urge EPA to cl arify this in its final rule. We also note there is no confusion in the regulations regarding the "reconstruction" por tion of the definition (respecting cumulative costs exceeding 50%).

There is nothing in parts CCCC or DDDD, ho wever, that reflects the permitted "hourly rate" qualification of 60.14. And th ere is absolutely nothing in the Proposed CISWI Rule about any of this. EPA proposes no amendments or clarif ications to the existing definitions, and never even discusses the issues.

One is thus left with this major critical question unanswered: Will CISWI units be considered modified if they do anything to increase their emissions in any way, as suggested by the current provisions in 60.2 and in CCC C and DDDD, or will the 60.14 qualification (regarding hourly emission rate) override?

We assume that the better reading of EPA' s regulations would be to apply the permitted "hourly rate" qualifica tion of 60.14 to CISWI units under subparts CCCC and DDDD. This is such a critical issue, however, that we think it is highly inappropriate for the regulations to leave this as an open question, and we urge EP A to add language in subparts CCCC and DDDD to make this clear and propose its fina l decision through notice and comment.

EPA should also specify in this rulemaking wh at would constitute a physical change or change in the method of operation. At a mini mum, EPA should make cl ear that changing of ingredients and routine changes to accommodate specialty products or different types of cement are not physical changes or ch anges in the method of operati on. Kilns are constructed to manufacture many types of ceme nt with different properties, each requiring a unique raw material mix design. The usage of raw material or NHSW changes significantly from one year to the other based on market condi tions and its availability. It is possible that a material is not used for a few years before being used again. K iln operators should continue to be allowed to operate kilns to meet normal consumer demands without the fear of tr iggering the modification provisions of the Proposed Rule as long as they remain below the permitted levels.

E. Problems With Definitions

It is apparent that EPA has not taken due care in reviewing many sections of the existing CISWI rule language in it's proposal. For example, the proposed rule fails to properly revise or address their applicability on a number of term s in the existing rules that are not properly defined, ambiguous, non-applicable or potentially confusing for kiln operators that could be subject to the CISWI rule. W ithout clarification, provisions would make the proposed CISWI rule for cement kiln operators at best difficult, if not impossi ble to comply with. We have identified the following terms that EPA has failed to properly consider or address in the proposal rule below.-57- 1. Fugitive Ash Sources.

• The proposed rule provides a limitation on fugitive ash sources from CISWI kilns (currently found in Table 7 of propos ed Subpart CCCC and Table 8 of Subpart DDDD). The terms "ash", "fugitive ash", and "fugitive ash sources" are undefined in the rules. Furthermore, por tland cement kilns do not produce ash.

• Given the above, EPA should stri ke all references to fugi tive ash sources from the rule specifically related to CISWI kilns (including, but not limited to, those found in Table 7 of proposed Subpart CCCC, Table 8 of proposed Subpart DDDD) and clearly exclude CISWI kiln operators from all requirements related to fugitive ash

sources.
2. Charge Rate. The proposed rule does not define the term "charge rate," especially how such a foreign term or concept could be a pplied to CISWI kilns where a commercial product is being manufactured in intimate contact with ingredients and fu els deemed "solid waste" by the companions solid waste identification rulemaking. Furthermore, PCA does not believe the term or related requirements apply to CISWI kilns. We request that EPA clarify this term and its nonapplicability to CISWI kilns.

3. Bypass. The term "bypass" is defined in the CISWI rule under the proposed 40 C.F.R. 60.2265 and 40 C.F.R. 60.2875 as it relates to in cinerator operation, which bypass pollution control devices during upset conditi ons in order to protect the equipment. CISWI kilns are not generally equipped with bypass devi ces in the CISWI sense of the rule. However, it could be unintentionally confused with an alkali bypass stack on cement kilns, which bypass pollution control devices during upset conditions in order to protect the equipment. EPA should clarify that "bypass" and its related requirements in the CISWI rule do not apply to CISWI kilns that possess alkali bypass stacks or other process vents that may emit kiln ga ses directly to the atmosphere.

4. Commercial and industrial solid waste inci neration unit. The de finition of CISWI unit under the proposed 40 CFR 60.2265 and 40 CFR 60.2875 does not provide an understandable unit boundary for kilns. And, given the operational differences and importance of interfaces with other federal emission standards, EPA needs to clearly define CISWI unit boundaries for kilns specifically and ensure their exemption from po tentially overlapping § 111 or § 112 emissions standards to avoid regu latory applicability c onfusion. PCA believes the boundary should begin with the NHSW injection location into the kiln, in clude the kiln system, and end at the clinker discharge point from the kiln. The boundary shoul d exclude all pollution control devices, kiln stacks, CKD handling, recycling, clinker coolers a nd transfer operations. And, as elaborated on in other areas of our comments, state that CISWI kilns have no fugitive ash sources.

5. Startup period and Shutdown. The terms st artup period and shutdown as defined in the current 40 CFR 60.2265 regula tions are ambiguous to kiln operation and, again, EPA has failed to account for how such terms would a pply to CISWI kiln operation in the Proposed CISWI Rule. Applicable and understandable definitions for these should be incorporated into the final rule by EPA. Specifically, startup an d shutdown activities for a cement kilns are not-58- relevant to NHSW usage. Therefore, the exis ting definition improperly captures what appears EPA's intent to define CISWI unit startup and shutdown periods.

F. Additional "Modification" Issues

The CISWI modification trigger possesses severa l complications to CISWI units that may not continuously combust solid waste and/or ma ke a principal product through direct firing of NHSWs ( e.g., kilns). In cement kiln operations, unlike most other CISWI units, the CISWI regulated pollutants can be emitted and can change when no solid waste is being combusted or used. As a result, understanding how the modi fication trigger will be implemented must be clarified by EPA in the final rules. Again, EP A appears to have failed to account for these significant aspects that CISWI k iln operators would be bound to comply with in this proposed rulemaking.

The CISWI modification definition under CAA § 129 generally follows the definitions contained in CAA § 111 (NSPS). One notable di fference with the implementation of the term "modification" in the CISWI rules is that EPA ha s defined certain modification or reconstruction activities as exempt (see 40 CFR 60.2015(b) under Subpart CCCC). These exemptions principally relate to projects de signed to bring units into comp liance with CISWI requirements.

Below is an illustration of some of the potenti al scenarios that kiln operators could face that result in regulatory ambiguity in CISWI app licability that EPA has failed to account for in the proposed rule:

• An existing CISWI kiln undertakes a physical change or change in the method of operation that is unrelated to an existing use of a NHSW ( e.g., a new alternate raw material is sourced to meet product qua lity requirements that is new to the kiln). And, this change increases th e hourly emissions of a CISWI regulated pollutant. Based on the current definitions , it appears that the CISWI kiln may become subject to the new sour ce Subpart CCCC requirements without undertaking any change whatsoever rela ted to NHSW usage or emissions from usage of those materials.

• An existing non-CISWI kiln adds a NHSW fuel after Ju ne 4, 2010 that decreases the hourly emissions of a CISWI regulated pol lutant. In this case, the cement kiln could be considered a "new" CISWI k iln despite reducing CISWI regulated pollutants and possibly without making a ny expenditures. This outcome seems wholly in contradiction w ith the object of § 129 of the CAA in how modifications or new sources should be subjec t to regulations under CISWI.

• An existing CISWI cement kiln wants to increase the use of a historically used NHSW fuel (and it does not have a permit restriction on its usage amount). The hourly emissions from the kiln do not increa se but it is possibl e that the portion of the CISWI regulated emissions attributab le to the NHSW fuel did increase on an hourly basis. Under the current regulatory structure, it appear s that this source may be subject to Subpart CCCC requi rements – again possibly without a expenditure and without emission increases related to combustion of solid wastes.-59- • An existing CISWI kiln undertakes a physical change to comply with other federal emissions standards ( e.g., NSPS Subpart F) that wi ll result in an increase of a CISWI pollutant. This may consti tute a modification under the current CISWI Subpart CCCC rules.

In the event EPA pursues final regulation of CISWI kilns, PCA believes that EPA should include specific exemptions from the definiti on of modification and reconstruction under the CISWI rules to avoid what PCA believes would be unintended and inappropriate application of the modification definition to CISWI kilns. This should include, but not be limited to, the following:

• Modifications that do not increase th e hourly potential emission rate above permitted levels of CISWI regulated pollutants resulting from NHSW combustion.

• Modifications related to new or increased use of NHSWs that do not result in hourly increases in CISWI regulated pollutants above permitted levels.

• Modifications to CISWI kilns that are requi red to comply with any other federally required air pollutant control programs ( e.g., NESHAP LLL or NSPS Subpart F).

• Modifications in volume, amount, or t ype of NHSW that do not increase hourly potential emissions above permitted levels from the CISWI kiln.

• Modifications that meet the exempti ons included under 40 CFR 60.14(e)(1-6).

G. Monitoring and Testing Issues

The Proposed CISWI Rule proposes a series of monitoring and testing requirements that are ambiguous or conflicting in certain areas fo r kiln operators. PCA recommends that EPA align monitoring and testing conditions consiste nt with the recently-issued Pre-Publication Portland Cement NESHAP and NS PS Subpart F requirements.

• Unclear intention to regulate CO emissions from CISWI kilns . Table 8 of Subpart DDDD and Table 7 of Subpart CCCC (75 Fed. Reg. 32002, 32003 and 31987) include specific limitations for CO , however there are no substantive requirements incorporated into the propos ed rules implementing these monitoring requirements.

• Performance Testing for D/F. The Proposed CISWI Rule is unclear if annual performance testing for D/F is required fo r kilns but the rule alludes to such a possible requirement in 40 CFR 60.2165(i) and 2730(i).

• Performance Testing for Mercury. The Proposed CISWI Rule is unclear if annual performance testing for mercury is required for kilns but the rule alludes to such a possible requirement in 40 CFR 60.2165(j) and 2730(j).-60- Detailed comments on EPA's proposed monito ring and testing requirements are included with these comments as Attachment 4.

H. Alkali Bypass Issues

In what can only be character ized as a major oversight in the Proposed CISWI Rule, EPA omits any discussion on how CISWI kilns that vent small amounts of kiln gas directly to the atmosphere through an alkali bypass stack or other process vents (oth er than a kiln's main stack) are expected to comply with the proposed rule from those emission points. This omission translates to significant questions on all elements of the proposed rule as to how a CISWI kiln operator would comply. Given the technical and regulatory complexity in trying to address the nature of these sources and issues, PCA doe s not believe EPA can properly remedy these significant omissions directly in a final rulemaking and, therefor e, we believe EPA must repropose the CISWI rule for kilns in its entirety.

I. Other Issues

1. Under 40 CFR 60.2115 and 2680, pollution control devices not specifically identified by the CISWI rule, require a petition and approva l process before thei r use. The list only includes wet scrubber, activated carbon injection, se lective noncatalytic reduction, and electrostatic precipitator. We believe that baghouses have been inadvertently omitted from this list. In addition, the requirement to petition alte rnative control technologi es should not apply to inherent process controls or other proven pollution control t echniques employed by CISWI kilns that may assist in complying with CISWI limits. EPA should exempt this unnecessarily burdensome requirement for CISWI kilns.

2. In several instances, EPA offers the regulator y alternative to install a CEMS in lieu of performance testing ( e.g., see the proposed 40 CFR 60.2165(g), (h), and (i) on page 31979). However, it appears that there is no relief fr om setting a wide variet y testing-based operating limits on processes and controls when applying a CEMS. A regulatory cons truct that maintains operational restrictions is simply unnecessary wh en using a CEMS to demonstrate compliance as it does not achieve material additional emi ssion reduction or further enhance compliance assurance. For example, if a CISWI subject kiln were to use SNCR for NO x control a nd utilize a CEMS for NO x , the requirement to monitor and reset lim its reagent flow values is unnecessary.

3. The Proposed CISWI Rule incorporates a series of operator trai ning and qualifications requirements (75 Fed. Reg. 31974, 31990) as statutorily required unde r § 129 of the CAA. Kiln operators are highly trained and qualified individua ls and subjected to specific training on kiln operations, pollution control operation, response to process upsets and malfunctions, and other relevant subject matters. This training is expected to be at least as effective as that incorporated into the current CISWI rules. Accordingly, we request that EPA incor porate language into the final rule that allow operators of CISWI kiln s to either meet the training and certification requirements of the CISWI rule or provide that CISWI kiln owner and operators be allow to conduct site-specific operator training and certification.-61- IX. Overview Impact of Proposed Emission St andards for Waste Incineration Units on Domestic Cement Capacity

A. Overview

Economic Research, Inc. has been tasked to provide a rough es timate regarding the potential impact on domestic cement production resu lting from emission st andards contained in the Proposed CISWI Rule EPA. PCA assume s the EPA emission policy commences in 2015. EPA's proposed CISWI emission limits fo r existing plants are as follows:

• Mercury (Hg) emissions are limited to .024 milligrams per dry standard cubic meter (mg/dscm).

• Hydrochloric Acid (HCL) emissions are limited to 1.5 parts per million volume (ppmv).

• Particulate Matter (PM) emissi ons are limited to 60 mg/dscm.

• Nitrogen Oxide emissions are limited to 1,100 ppmv.

• Sulfur Dioxide emissions are limited to 410 ppmv.

• Dioxin/furans emissions are limited to 2.1 nanograms per dry standard cubic meter (ng/dscm).

• Carbon Monoxide emissions are limited to 710 ppmv.

• Lead emissions are limited to .0027 mg/dscm.

• Cadmium emissions are limited to.0003 mg/dscm.

The EPA's proposed emission limits are consider ably more severe for "new solid waste burning kilns." New greenfield plants that ar e commissioned after 2015 are subject to the tighter standards. Major modifications to existing plants could force a reclassification of a plant from an existing source to a new source. EPA's proposed em ission limits for new sources are as follows:

• Mercury emissions are limited to .024 m illigrams per dry standard cubic meter (mg/dscm).

• Hydrochloric Acid emissions are limite d to 1.5 parts per million volume (ppmv).

• Particulate Matter emissions are limited to 1.8 mg/dscm

• Nitrogen Oxide emissions are limited to 140 ppmv

• Sulfur Dioxide emissions are limited to 3.6 ppmv-62- • Dioxin/furans emissions are limited to .00035 nanograms per dry standard cubic meter (ng/dscm).

• Carbon Monoxide emissions are limited to 36 ppmv

• Lead emissions are limited to .00078 mg/dscm

• Cadmium emissions are limited to .0003 mg/dscm

The EPA's emission limits contained in the Proposed CISWI Rule apply to cement kilns that burn solid waste. Accordi ng to EPA's definition of solid wa ste, PCA estimates that as many as two thirds of all domestic cement plants coul d be forced to comply with the EPA's CISWI emission limits. While the EPA has been vague in defining the issue, PCA assumes all solid waste burning plants will first be su bject to the more rigid CISWI st andards. If these plants opt to stop burning solid waste, they would then be subject to Pre-publication Portland Cement NESHAP standards.

B. Key Findings

• Emission data on a plant-by-plant basis ac ross the nine pollutants covered by CISWI is often dated, partial and in some cases, the quality of data is suspect. PCA's search for cadmium emissions data for cement kilns was more than 10 years old and covered only 13 plants.

• Compared to baseline estimates, United St ates total emissions at cement plants that burn alternative fuels decline in 2020 as follows under the Pre-publication Portland Cement NESHAP:

 Mercury declines from 2.90 mg/dscm to 1.84 mg/dscm.

 Hydrochloric Acid declines from 510 ppmv to 348 ppmv.

 Particulate Matter declines fr om 3,807 mg/dscm to 2,342 mg/dscm.

 Nitrogen Oxide declines fr om 36,817 ppmv to 26,188 ppmv.

 Sulfur Dioxide declines from 17,200 ppmv to 8,062 ppmv.

 Dioxins/Furans declines from 2.73 ng/dscm to 2.37 ng/dscm.

 Carbon Monoxide declines fr om 38,807 ppmv to 26,751 ppmv.

 Lead declines from 4.38 mg/dscm to 2.19 mg/dscm.

• To meet the standards in the Proposed CISWI Rule, PCA estimates that 87% of all alternative fuel burning cement plants will be forced to invest in baghouses to meet particulate matter, lead and cadmium standards. This includes investments to existing baghouses and in some cases the construction of new baghouses. To comply with the combined Hg, SOx and HCL standards, PCA estimates that 22% of all plants will be required to invest in a stand alone wet scrubber system, 62% of all plants will be required to invest in wet scrubber-ACI systems, 22% of all plants will be required to invest in SNCR systems and 39% will be required to invest in burner systems.-63- • To comply with standards in the Proposed CISWI Rule the industry must invest at least $2 billion. This excludes potentia l spending by plants PCA estimates will close due to the inability to meet sta ndards or due to the excessive financial burdens.

• The combination of the industry's pre-ex isting financial commitment to provide reliable and efficient supply of cement to the United States' market, coupled with sustained harsh economic and financial realit ies, and the need to comply with the Pre-publication Portland Cement NE SHAP standards may overwhelm the industry's financial capability to co mply with the Proposed CISWI Rule.

• The Proposed CISWI Rule could force two th irds of all existing alternative fuel using cement plants to discontinue burning these fuels.

• The Proposed CISWI Rule standard potential ly reverses decades of environmental cleanup success and CAA designations of tire-derived fule (TDF) as an encouraged fuel. The cement industry is a large consumer of sc rapped tires. With the potential partial discontinued use of alternative fuels by the cement industry, scrapped tire stockpiles could increase to 586 million tires by 2025, compared to a baseline estimate of 110 million tires.

• Cement industry decisions to invest in modernization of olde r kilns to remain world-class cost competitive may be impe ded by rigid standards in the Proposed CISWI Rule imposed on new sources.

• Compared to PCA's baseline, clinker capacity could be reduced by roughly 20 million metric tons under the Pre-public ation Portland Cement NESHAP. High closure-risk plants suggest an additional 7 million metric tons of capacity could be lost.

• Cement plant compliance to proposed EPA emission standards could add a minimum of $26 per ton to domestic cement production costs by 2020.

• The increases in cement production costs coul d potentially lead to an overall cost to the construction industry of roughly $3 billion annually.

C. Baseline Scenario (No Emission Policy)

1. United States' Cement C onsumption Projections

United States' cement consumption is expected to reach 70 million metric tons in 2010. This is compared to near record levels of 128 million metric tons recorded in 2005. This decline reflects current economic adversities. With ec onomic recovery, cement consumption is expected to reach 116 million metric tons in 2015, 131 millio n metric tons in 2020 and 147 million metric tons in 2025.-64- All market segments and all regions recorded significant declines in cement consumption through 2009. This reflects a peak-to-trough dec line in cement volumes of nearly 59 million metric tons – the worst in United States' history.

Tightened lending standards, weak labor mark ets and rising foreclosures continue to hamper an oversupplied residential constructi on market. Nonresiden tial construction is experiencing the brunt of the financial credit crisis as many projects have been delayed or canceled. Coupled with rising vacancy rates and long project planning timelines, a long recovery for commercial construction is expected. P ublic construction markets have demonstrated dramatic weakness as state governments struggle with soaring fiscal deficits from falling tax revenues. With public construction accounting for roughly 50% of cement consumption, this sector will play an important role in dete rmining the industry's outlook. These underlying fundamentals suggest a recovery in cement c onsumption during 2010-2012 could be extremely modest.

Beyond 2012 volume gains in cement consumption are expected to become more robust. A new highway bill is expected for 2013. In addition, substantive job gains during 2009-2012 will improve state fiscal conditions – leading to a revival in state construction spending. In the context of sustained economic growth residen tial and nonresidential construction is also expected to record significant gains. By 2013 it is likely that all th ree construction sectors (public, residential and nonresidential) will reco rd strong positive growth. Even with this, PCA believes the peak-to-peak recovery period (past peak 2005) will take eleven to twelve years.

Longer term, PCA expects the United States' economic growth rate will underperform consensus projections of 3% annually. As th e United States' population ages, slower economic growth may materialize. The argument for slow er, future long-term economic growth rates is anchored in future demographi c changes and its likely impact on spending ha bits among age groups. The persistent and sustained aging of the population will slow consumer spending. PCA calculates that the aging of America will resu lt in a 50 basis point re duction in growth of consumer spending and overall economic ac tivity by 2020. PCA's long-term cement consumption projections are based on 2.4% real GDP growth. Upside risks are contained in PCA projections.

While economic adversities have depressed the near-term outlook dramatically, PCA's most recent long-term construc tion projections have been calibrated to discount the housing bubble encountered throughout much of the last decade. The excessive growth in the housing market increased cement demand in all sectors which artificially skewed long-term growth estimates. By discounting this growth, the long-term projections beyond 2015 are much less optimistic than previous long term projections.

PCA projects long-term cement consumption will reach 131 million metric tons by 2020 – reflecting growth of 17 million tons compared to 2007 levels and growing at a 1.0% compound annual rate. Roughly 78% of the growth in ce ment consumption is driven by growth in population. The remaining 19% is driven by gains in growth in per capita cement-65- consumption. 12 In comparison, during 1994-2007, cement consumption grew 29 million metric tons at a compound annual growth rate of 2.3%. During 1994-2007, 83% of the market growth was driven by population gains and 17% by gains in cement consumption per capita.

TM 

# Projected Cement Demand – U.S.

(000) Metric Tons

40,000 60,000 80,000 100,000 120,000 140,000 160,000

2005 2010 2015 2020 2025 Figure 2 Projected Cement Demand

Long-term cement projections are calculated by combining Bureau of Census' (BOC) population projections with per capita cement consumption estimates to yield total cement consumption. Changes in per capita cement c onsumption are driven by projected economic activity at the state level and measur ed by real gross state product.

The anticipated increase in population wi ll result in additiona l demand for housing, commercial buildings, public buildings and in frastructure – all boos ting demand for cement consumption. Population in the United States is expected to grow by 35 million persons by 2020 and 48 million persons by 2025 compared to 2007 levels. According to the BOC April 2005 forecast, United States' 2007 population is esti mated at almost 302 million persons and is

12 The projected per capita growth rate is exagge rated by the current depressed market, lowering the jump-off point.-66- expected to reach 344 million persons by 2020 and 348 million persons by 2025 – reflecting a 16% increase over 2007 levels.

Nationally, per capita cement consumption is expected to reach .392 metric tons per capita by 2020, compared to .382 pe r capita recorded in 2007. This reflects an increase of slightly more than 3%. The projections fall well below those experienced during the previous 13 year period when per capita cement consump tion grew by nearly 17. 2%. Economic growth directly impacts growth in per capita cement consumption. Stronger economic activity leads to higher household formation, stronger fiscal conditi ons at the state level, and higher expected return on real investments – leadin g to higher levels of resident ial, public, and nonresidential construction activity. Stronger long-term economic growth will encourag e greater construction activity and hence cement consumption per capita . According to PCA estimates, per capita cement consumption grows 0.5% for every one percent increase in real GDP growth.

D. United States' Cement Capacity Projections

Domestic cement capacity is expected reach roughly 107 million metric tons in 2015 and beyond. These estimates reflect planned expansions. PCA assumes no new capacity is added beyond these announced plans. Capacity estima tes also include assu mptions regarding the continued retirement of older wet kilns as well as estimates regarding plant closures not covered by the Proposed CISWI Rule resulting from rigor ous standards contained in the Pre-publication Portland Cement NESHAP.

The portland cement industry in the United States is currently comprised of more than 30 producers operating more than 167 kilns with an estimated domestic clinke r capacity of nearly 92 million metric tons. Gypsum is mixed with clinker to form portland cement. Gypsum/limestone currently accounts for 7.5% of the mix. Including gypsum and limestone additions, domestic cement capacity is curren tly estimated at 105 million metric tons.

Nearly three million metric tons of new c linker capacity is expected to come on-line during 2010. Further expansions are planned in the out years, bringing the total clinker 2006- 2015 capacity expansion to 21 million metric tons by the end of 2015. By itself, this investment increases capacity over 21% compared to 2007 levels. The expansion affects 26 plants with a mix of greenfield sites (8) as well as expa nsions at existing facilities. Beyond 2013, no new additions are expected. This assumption may have merit. During 1980-1996, for example, United States cement capacity was largely unchanged.

Large multinational companies do minate ownership of the Unite d States cement industry. Within a multinational company each geographic region, such as the United States, competes for scarce corporate investment dollars (keep in mind, expanding cement capacity is extremely expensive – a two million metric ton plant now costs upwards of $600 million). The rate of return on new capacity investment in the United States are compared against returns in other countries. Current financial dist ress caused by low utilization rates and an uncertain regulatory environment could reduce expected returns on invest ments in the United Stat es and contribute to corporate decisions to wait-and-s ee before making further investme nts in the United States.-67- In addition to clinker capacity expansions, changes in U.S. specifications allowing for increased use of limestone in portland cement could increase the potential domestic supply. Further changes in U.S. specifications occurred th is year allowing for increased use of inorganic cementitious materials such as fly ash and slag. How much these specification changes increase cement capacity depends on how plants elect to exercise these options. Gypsum/limestone allowances currently add 7.5%. PC A expects that total additions will grow to 9.5% by 2025. By 2025 these additions could add 2.2 million metric tons to domestic cement supply.



### Connect With Concrete 

# Capacity Expansion

Thousand Metric Tons

0 2,000 4,000 6,000 8,000 10,000

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Potential Increases From Specification Changes (including

Fly Ash and Slag) Stated Capacity

Expansions

Figure 3 Capacity Expansion of Cement Industry

Expansions in cement supply are expected to be largely offset by displacements of capacity. Economic stress and declining cement consumption have resulted in commissioning delays and slower planned ramp-ups for new plants . Two planned "greenfield" plants have been postponed indefinitely. Permanent or temporary shutdowns at 16 plants have been announced or are planned. Clinker plant shutdowns si nce 2008 have reduced domestic capacity by 10.3 million metric tons.

Some, but not all, of these capacity displacem ents may be permanent. Of the closure announcements, seven plants are considered perman ent, reflecting nearly 4 million metric tons. Of the remaining temporary closures, PCA assumes these plants will remain closed until stronger market conditions may dictate reopening.-68- In addition to cyclical displacement of cap acity, the cement industry has been gradually phasing out its wet kiln clinker capacity – reducing its clinker capacity by approximately one million metric tons annually during the past ten years. The wet kiln process is an older process and is typically less energy efficient. 13 During the past two years, the phase-out of wet kilns has accelerated – reducing wet kiln clinker capacity by ne arly 5.6 million metric tons. In the context of current economic distress, the potential for higher energy prices in the future, and impending climate change legislation, this accelerated pace of wet kiln retirement is expected to continue. PCA assumes total wet kiln cli nker capacity will decline to 2.7 million metric tons in 2020 and beyond compared to 12 million metric tons in 20 07. This assumption suggests a 9.3 million ton reduction in existing wet-k iln clinker capacity by 2020-2025.

Finally, the Pre-Proposal Portland Cement NESHAP emission standards will force cement plants to close. Closures are expected to result in two forms. First, some plant's emissions are sufficiently high that even with th e installation of emission capture systems they will not be able to meet those NESHAP standards. Second, even if a plant can technically meet those NESHAP standards, the compliance investme nt required may not be justified on a financial basis. In either case, PCA a ssumes closure of the plant.

PCA estimates that 18 plants could be forced to close due to the inability to meet the PrePublication Portland Cement NESHAP standards or because the compliance investment required may not be justified on a financial basis. Thes e closures represent roughly 11 million metric tons of clinker capacity, or roughly 12% of current capacity. Of thes e plants, 7 burn alternative fuels and would be subject to the standards in the Pr oposed CISWI Rule. Each of these alternative fuel burning plants would requir e at least as much compliance investment to meet the more comprehensive and harsher standards in the Proposed CISWI Rule. These 7 alternative fuel burning plants are assumed to be shut down and excluded in the CISWI analysis.

Unfortunately, the process of plant closures in light of prospect of tight emission standards may have already begun. Since August 2008, seven plants with an estimated annual capacity of nearly 4 million metric tons, ha ve been announced for permanent closure. Undoubtedly, the harsh recession contributed to the decision to close these plants. Weak cyclical demand conditions, however, would likely dictate te mporary – not permanent closures. It is likely that the prospect of tight emission standards, coupled w ith expectation for a slow recovery in demand, contributed to decisions to permanently close these plants. According to ISIS model runs, each of these plants would have been fo rced to close under the EPA's Pre-Publication Portland Cement NESHAP standards. These plants are not included in PCA's estimate of NESHAP closures. If included, NESHAP expected closures would equate to 25 plants and 15 million metric tons. These plant closures include:

13 Note: the last wet kiln was installed 35 years ago.-69- Recent Permanent Plant Closures

Buzzi Unicem: Independence, Kansas

o Capacity: 324,000 metric tons annually

o Employment estimated at 108 workers Cemex: Davenport, California

o Capacity: 842,000 metric tons annually

o Employment estimated at 114 workers

Essroc: Frederick, Maryland

o Capacity: 308,000 metric tons annually

o Employment estimated at 82 workers Essroc: Bessemer, Pennsylvania

o Capacity: 605,000 metric tons annually

o Employment estimated at 111 workers

Holcim: Clarksville, Missouri

o Capacity: 948,000 metric tons annually

o Employment estimated at 164 workers Holcim: Dundee, Michigan

o Capacity: 830,000 metric tons annually

o Employment estimated at 155 workers

Texas Industries: Riverside, California

o Capacity: 86,000 metric tons annually

o Employment estimated at 88 workers

Figure 4 Recent Permanent Plant Closures

Combining estimates of capacity expansion, changes in specification standards, the structural shutdown of wet kilns and the impact of NESHAP on cement plants translates into domestic clinker capacity estimates at rough ly 97 million metric tons in 2015 and 95 million metric tons in 2025. With gypsum and limestone addi tives this translates into 107 million metric
tons.

E. United States' Baseline Imported Cement Projections

Aside from domestic supply, the industry op erates roughly 125 import terminals with an estimated capacity of 45 million metric tons. Th e ability and willingness to import cement is determined by demand conditions, prevailing global sh ipping rates, and the av ailability of ships to carry cement. Imports are viewed as swing supply, with volume increa sing and decreasing depending upon the shortfall betwee n domestic capacity and total United States consumption.

Imports have declined since 2006 from 36 million metric tons to roughly 6.9 million metric tons in 2009. The combination of weak demand and high international freight rates are largely responsible for this decline. In the cont ext of weak demand conditions and low domestic utilization rates, PCA expects im ports share will declin e to 8.4% market sh are in 2010, compared to 28.2% market share in 2006. With a gradual ec onomic recovery, higher utilization rates will emerge slowly and import shares are expected to remain near 5% through 2012. In the context of sustained growth and plant shutdowns accr ued to the Pre-publication Portland Cement NESHAP, a recovery in utilization rates is exp ected to materialize, prompting import market shares to increase. From expected 2010 levels of 5.7 million metric tons, imports are expected to reach 20 million metric tons in 2015 (17% market share), 38 million metric tons in 2020 (29%) and 54 million metric tons in 2025 (nearly 37%). Such high import volumes will exceed current import capabilities and mandate an increase the import capacity equating to 42 new import terminals at prevailing terminal characteristics. Given increased port congestion and available port space, these potential expansio ns could carry high cost premiums.-70- Baseline: No Emissions Policy

2005 2010 2015 2020 2025

US Cement Industry

US Cement Consumption (000 tons ) 128,035 70,157 116,034 131,388 147,112

US Cement Capacity (000 tons) 94,693 96.877 97,874 95,604 95,604

US Production (000 tons) 87,400 59,474 87,781 85,431 85,219 Imports (000 tons) 27,305 5,900 20,000 38,000 54,000

Total Fuel Consumption (billion BTU, bbtu) 341,999 237,896 351,126 341,724 340,877 Primary Fuel Consumption (bbtu) 307,009 211,345 308,906 291,232 281,781 Alternative Fuel Consumpti on (bbtu) 34,989 26,551 42,220 50,492 59,096

Alternative Fuel Plants (AFP)

Capacity at AFP (000 tons) 48,209 49,923 55,370 54,941 54,941 Production at AFP (000 t ons) 44,496 30,649 49,660 49,094 48,973

Total Fuel Consumption (bbtu) 177,984 122,595 198,641 196,378 195,893 Primary Fuel Consumption (bbtu) 142,995 96,043 156,421 145,886 136,797 Plant Alternative Fuel Consum ption (bbtu) 34,989 26,551 42,220 50,492 59,096 Plant Tire Derived Fuel (bbtu) 12,143 8,762 12,233 11,906 11,876 Scrapped Tires Co nsumed (millions) 58 39 63 68 72 Scrapped Tire Stockpile (millions) 188 246 312 274 110

Emissions

Hg (mg/dscm) 2.53 1.71 2.95 2.90 2.89 HCL (ppmv) 309 315 511 510 508 PM (mg/dscm) 3,281 2,299 3,830 3,807 3,795 NOx (ppmv) 29,418 22,275 37,132 36,817 36,694 SOx (ppmv) 14,527 9,889 17,382 17,200 17,142 Dioxins/Furans (ng/dscm ) 2.09 1.39 2.74 2.73 2.72 CO (ppmv) 34,219 23,271 38,991 38,807 38,677 Pb (mg/dscm) 4.08 2.76 4.43 4.38 4.37 Cd (mg/dscm) ---- ---- ---- ---- ----

Sources: PCA, USGS, Various EPA emissions documents. Note: No credible Cadmium emissions data for cement kilns could be found and is omitted from analysis.

Figure 5 Baseline Emissions With No Emissions Policy-71- F. United States' Baseline Clinker Production Projections

Domestic clinker production is expected to de cline from 90 million metric tons in 2006 to less than 60 million metric tons in 2010. With the economic recovery, cement production is expected to reach 88 million metric tons in 2015 and 85 million metric tons annually during 2020-2025. These projections reflect PCA's es timates regarding domestic capacity, cement consumption, import volume, exports, and probable inventory changes.

G. United States' Kiln Fuel Composition Characteristics

The cement industry has made large strides in improving fuel efficiency over the past two decades. On average, the industry currently uses roughly 4.1 million BTUs of fuel per equivalent metric ton. This compares to roughly 4.5 million BTUs per equivalent metric ton in 2000, indicating an improvement in fuel efficien cy of roughly 9% over the past decade.

During 2007-2009, an average of 12% of total fuel consumption in BTUs was composed of alternative fuel sources. Of these alternativ e fuel sources, approximate ly one-third were tirederived, almost 40% were from solvents, 3% we re from oil, and 25% were from other solid wastes and miscellaneous alternative fuel source s. TDF is a significant energy source due to its relatively higher BTU value. A decrease in its use w ould most likely lead to lower fuel efficiency and higher emissions rates. 14

As for primary fuels during this period, coal and coke represented over 80% of total fuel consumption in BTUs, whereas natural gas represented around 3.5%. These are supplemented by middle distillates, gasoline, residual oil, and liquefied propane gas (LPG).

14 The EPA states on its website (epa.gov/epawast e/conserve/materials/tires/tdf.htm#cement) “based on over 15 years of experience with more than 80 individual facilities, EPA recognizes that the use of tire-derived fuels is a viable alternative to the use of fossil fuels. EPA testing shows that TDF has a higher BTU value than coal. The Agency supports th e responsible use of tires in portland cement kilns and other industrial facilities.-72- Figure 6 U.S. Cement Plan Fuel Consumption 2005

H. Baseline Cement Plant Emission Projections

Emission data on a plant-by-plant basis ac ross the nine polluta nts covered by the Proposed CISWI Rule is partial, and in some cases , the quality of data is suspect. PCA's search for cadmium emissions data for cement kilns was more than ten years ol d and covered only 13 plants. Analysis of cadmium emissions, theref ore has been omitted from this report. Other CISWI emissions data used in this report were compiled from several sources including: (1) EPA's ISIS model used for NESHAP, (2) EPA's National Emission Inventory database, (3) PCA SN3048 - Air Emissions Data Summary for Port land Cement Pyroprocessing, (4) PCA SN3050 - Air Emissions Data Summary for Portland Ceme nt Pyroprocessing Operations Firing TireDerived Fuels, (5) PCA's annual Labor/Energy Input Survey. Units of measurement for the toxic air pollutants available from these various source s often did not map directly to emission limit units in the Proposed CISWI Rule, therefore conv ersions were required. These conversions used an estimated exhaust gas flow rate. 15 For mercury emissions, PCA used the EPA plant-by-plant study on Hg emissions from the cement industry, reflecting 2006 information, for 100 cement plants. (EPA: The Toxics Release Inventory (TRI) 2006). 16 A follow-up study was performed reflecting 2007 information for some 50 cement plan ts. Historical benchm arks on plant-by-plant Hg emissions reflect the most recentl y available data for each plant.

15 Source: PCA’s Innovations in Portland Cement Manufacturing). Conversion examples include pounds to mg/dscm (milligrams/dry standard cubic me ter) or tons to ppmv (parts per million volume).

16 EPA: The Toxics Release Inventory (TRI) 2006.-73- Total emissions are largely driven by dom estic production. With the decline in production arising from economic a dversity, emissions for all categor ies are expected to decline in 2010 as compared to 2005 levels. With th e revival of cement production, total cement emissions for all categories in crease through 2020. PCA combin es capacity, EPA emission data, utilization rates, and production estimates to calc ulate potential emissions. Using the EPA's data on individual cement plant emissions, PCA converts total plant emissions to a per ton of cement production basis. The convers ion is performed using exis ting 2005 and 2007 plant capacities and applying national utilization rates that prev ailed in 2005 (93.8%). A ll plants were assumed to operate at the same national utilization rate. National averages of emi ssions per ton of cement production were assumed for all plants not in existence in 2005. Projected emissions by plant were derived by applying the emission per metric t on produced at each plant and then applying the projected national capacity utilization rate fo r each plant. Emissions from all plants were then summed. This analysis was performed fo r all emissions covered by the Proposed CISWI Rule.

I. CISWI Compliance Scenario

1. The CISWI Standard

EPA's CISWI standard targets solid waste in cineration. CISWI compliance standards are aimed at units that combusts an y commercial or industrial solid wa ste material at all, regardless of whether the material is bei ng burned for energy recovery, to be regulated as a solid waste incineration unit. These rules were developed under the guidan ce of § 129 in the RCRA. Under this rule, some cement kilns coul d be classified at solid waste incinerators. The rule reverses decades of environmental cleanup success and CAA designations of TDF as an encouraged fuel CAA § 112.

The EPA uses a methodology called MACT to set compliance limits. According to the methodology where control of the feed of HAP was f easible and technically assessable, it ranked sources by their ability to control HAP feed and their abil ity to control emissions of HAP that are fed to the combustion device (m easured as system removal efficiency). In doing so, this methodology assessed the efficiency of controlli ng both the HAP inputs to a hazardous waste combustion unit, and the efficiency of control of the unit's output s. The EPA then selected the best performing achievable practic e as standard in setting the MACT floor for emissions. EPA applies the "achieve in practice" stan dard on a pollutant-by-pollutant basis.

EPA application of the MACT approach on a pollutant-by-pollutant basis fails to consider emissions limitation achieved in prac tice and is based on a control technology that works reasonably well for one source of emissions but that may not exert firm degree of control for another emission within the kiln under re alistic operating conditions. EPA's pollutant-bypollutant methodology results in a final standard that has never been achieved by any cement kiln facility.

PCA assumes all alternative fuel burning plan ts will first be subject to the more rigid Proposed CISWI Rule standards rather than the recently imposed Pre-publication Portland Cement NESHAP standards. The CISWI emission compliance scenario includes all assessments regarding cement consumption and capacity cha nges contained in the baseline scenario.-74- Potential impacts on cement capacity, domestic cement production, imports, and total U.S. cement emissions are estimated in the contex t of an assumed EPA imposed policy. PCA assumes the Proposed CISWI emission policy commences in 2015. EPA's proposed CISWI emission limits for existing plants are as follows:

• Mercury (Hg) emissions are limited to .024 milligrams per dry standard cubic meter (mg/dscm).

• Hydrochloric Acid (HCL) emissions are limited to 1.5 parts per million volume (ppmv). 17

• Particulate Matter (PM) emissi ons are limited to 60 mg/dscm.

• Nitrogen Oxide (NOx) emissions are limited to 1,100 ppmv.

• Sulfur Dioxide (Sox) emissi ons are limited to 410 ppmv.

• Dioxin/furans (D/F) emissions are lim ited to 2.1 nanograms per dry standard cubic meter (ng/dscm).

• Carbon Monoxide (CO) emissi ons are limited to 710 ppmv.

• Lead (Pb) emissions are limited to .0027 mg/dscm.

• Cadmium (Cd) emissions are limited to.0003 mg/dscm.

The EPA's proposed emission limits are consider ably more severe for "new solid waste burning kilns". New greenfield plants that are commissioned after 2015 are assumed to be subject to the tighter standards. Major m odifications to existing plants could force a reclassification of a plant from an existing so urce to a new source. EPA's proposed emission limits for new sources are as follows:

• Mercury (Hg) emissions are limited to .024 milligrams per dry standard cubic meter (mg/dscm).

• Hydrochloric Acid (HCL) emissions are limited to 1.5 parts per million volume (ppmv).

17 EPA’s own NESHAP report suggests the lowest measureable level for HCl is 3.0 ppmvd. “In order to account for measurement variability, we mu ltiplied the highest reported minimum detection level for the analytic method by a factor of three which results in a level of 0.9 ppmv. This represents the lowest level that can be reliably measured using this test method, and we therefore believe that it is the lowest level we can set as the MACT limit taking the appropriate measurement variability into account. Converting this level to a dry basis at 7 percent ox ygen results in a floor of 3 ppmvd for both new and existing sources.” - EPA Method 321 Detection Lim its and Minimum Quantification Limit, July 26, 2010-75- • Particulate Matter (PM) emissi ons are limited to 1.8 mg/dscm

• Nitrogen Oxide (NOx) emissions are limited to 140 ppmv

• Sulfur Dioxide (Sox) emissi ons are limited to 3.6 ppmv

• Dioxin/furans (D/F) emissions are lim ited to .00035 nanograms per dry standard cubic meter (ng/dscm).

• Carbon Monoxide (CO) emissi ons are limited to 36 ppmv

• Lead (Pb) emissions are limited to .00078 mg/dscm

• Cadmium (Cd) emissions are limited to .0003 mg/dscm

2. Cement Plants Covered by CISWI

According to PCA's Labor/Ener gy data, sixty one plants used alternative fuels in their kilns on a sustained basis during 2006-2008. Of these, 16 plants' alternative fuel usage accounted for less than one percent of their total fuel consumption and are excluded from the analysis in this report. This report includes only the rema ining 45 plants that burn alternative fuels accounting for more than 1% of their total fuel usage. In the context of regulation uncertainty, PCA assumes no additional cement plants will begin burning alternative fuels. Alternative fuels include scrap tires, solvents, waste oil and other solids. Coal, petroleum c oke, middle distillates, residual oil, liquids/gases and gasoline are cons idered primary fuels a nd plants burning only these fuels are not considered subject to CISWI standards.

3. CISWI Methodology

The Proposed CISWI Rule must be analyzed in the context of the Pre-publication Portland Cement NESHAP. The Proposed CISWI Rule presents cement pl ant executiv es with two options including; (1) cont inue to burn alternative fuels and invest in compliance technologies, or (2) discontinue the burning of alternative fuels, avoid CISWI compliance, and then become subject to NESHAP standards.

Which option is chosen will be based on cement industry executives weighing the potential marginal change in compliance costs compared to NESHAP compliance costs against the potential fuel costs savings resulting from th e continued burning of alternative fuels.

Several layers of analysis were performed to determine emission control policy impacts on the domestic cement industry. First, emissi on control technologies were applied to each plant's expected emissions. Expected emissions by plant were calculated using the same method identified in the baseline scen ario. Five emission control tec hnologies were ap plied to bring plants into compliance including enhanced bag house/ESP controls, ACI systems, wet scrubber systems, selective non-catalytic reduction systems (SNCR), and kiln burner design enhancements. Technology efficiencies were assumed in the capture of emissions by each system. Regardless of costs, if a plant failed to meet the standard, it was assumed to be forced to-76- stop burning alternative fuels and would then fall under the Pre-publication Portland Cement NESHAP.

In the second layer of analysis, plants ca pable of meeting the CISWI standard were subjected to cost analysis. PCA assumes a 15 y ear horizon for the capitalization of fixed costs. For plants with less than an estimated 15 years left in quarry life, fixed emission compliance costs are capitalized over the longest period po ssible. Annual operating costs for the compliance systems were also included in the analysis. Finally, these estimates are based on a 90% utilization rate.

Next, PCA compares the compliance costs in the Proposed CISWI Rule against the compliance costs of the Pre-Publication Port land Cement NESHAP. This results in the incremental increase in investment to comply with CISWI over the existing NESHAP standards. Finally, these incremental changes in CISWI compliance costs were weighed against the potential fuel cost savings arising from alterna tive fuel usage. If the marginal increase in compliance costs to comply with the Proposed CISWI Rules are more than offset by fuel savings, then plants are assumed to continue bu rning alternative fuels and comply with CISWI. Plants lacking this return are assumed to disc ontinue burning alternativ e fuels and would then fall under NESHAP rules.

4. Emissions Control Technology Assumptions

Sparse evidence exists regarding the actual e ffectiveness of emission control technologies applied to cement kilns. Due to uncertainties regarding emission contro l efficiencies, PCA has assigned its own estimates regard ing emission capture efficiencies . Considerable effort was undertaken by PCA to yield fair and realistic em ission capture efficiencies. PCA's emission capture assumptions are typically less op timistic than those assumed by the EPA.

Technology assumptions were made regardin g the effectiveness of various emission control systems, including activated carbon injection (ACI), wet scrubbers, baghouse/ESP systems, selective catalytic re duction systems (SNCR) and regene rative thermal oxidizer systems (RTO). Cooling and burner design reconfiguration of existing syst ems is also included for the reduction of Dioxin/furan and carbon monoxide em issions. No other systems or technology measures are considered in the context of this analysis.

Please note that the emissions captured by th e various technologies are often based on theoretical estimates of capture efficiencies an d may not reflect actual operating efficiencies. Furthermore, it should be noted th at the emission capture efficien cies used in this report may differ from the estimates indicate d elsewhere in the PCA comments.

Mercury (Hg) Emission Control Assumptions : The bulk of mercury em ission capture is likely to occur through the use of AC I systems, wet scrubber systems, or a combination of both. According to some experts, ACI systems are pr eferred. PCA estimates that ACI systems can potentially capture 75% of Hg emissions. The EP A estimates the capture efficiency at 90%. Wet scrubber systems alone are believed to be less eff ective than ACI systems. PCA estimates that wet scrubber systems could potentially capture 50% of Hg emissions. The EPA estimates the capture efficiency at 80%. Use of an ACI syst em coupled with a wet scrubber is expected to-77- capture 85% of mercury emissions. The EPA estimat es the capture efficiency at 98%. Keep in mind, most research regarding Hg emission control and capture has been targeted at coal burning utilities and form the basis of EPA's high emi ssion capture assumptions. The chemical dynamics inside a cement kiln, however, are far diffe rent than those of a utility furnace.

Particulate Matter (PM) Emission Control Assumptions : The bulk of particulate matter emission capture is likely to occur through the use of baghouses and enhancements to existing baghouses. Baghouse systems potentially capture nearly all particulate matter emissions. Although PCA accepts the EPA's estimate of 99% emission capture it notes this optimal efficiency can only be achieved during stable kiln operations.

Hydrochloric Acid (HCl) Emission Control Assumptions : The bulk of hydrochloric acid emission capture is likely to o ccur through the use of wet scr ubber systems. PCA and the EPA agree that wet scrubber system s will likely capture 99.9% of all hydrochloric acid emissions. PCA notes that the EPA has not considered that the capture of mercury in a wet scrubber may result in the added concentration of mercur y in the by-products generated by wet scrubbers.

Sulfur Dioxide (SOx) Emission Control Assumptions : Several strategies could be employed to address SOx emissions including the use of wet scrubber systems, lime injection and hydration systems, as well as calcinatory slip steam sy stems. PCA assumes the bulk of sulfur dioxide capture is likely to occur th rough the use of wet scrubber systems. PCA assumes that wet scrubber systems will likely capture 80% of all sulfur dioxide.

Nitrogen Oxide (NOx) Emission Control Assumptions : The bulk of nitrogen oxide emission capture is likely to occur through the use of SNCR. PCA assumes that SNCR systems will capture at most 90% of all nitrogen oxide emissi ons. It should be noted, the performance of an SNCR system is very variable, almost as variab le as the pyroprocessing systems on which they are installed. NOx reduction is dependent on how much NOx is generated. The more NOx available, the more NOx is reduced. In a perv erse way, a plant with relatively low NOx may have less reduction than a plant with a higher NOx. Observed NOx reductions at US cement plants range from 65-90%.

Carbon Monoxide (CO) Emi ssion Control Assumptions : The bulk of carbon monoxide emission capture is likely to occur through enhancements to burner systems and strict adherence to good combustion practices. PCA assumes that thes e enhancements will li kely capture 99% of all carbon monoxide emissions.

Dioxin/Furan (D/F) Emission Control Assumptions : The bulk of dioxin/furan emission capture is likely to occur by achieving cool er exhaust temperatures to the baghouse. Enhancements to baghouse design including the use of ACI will likely capture 99% of all dioxin/furan emission.-78- Technology Assumptions Regardi ng the Recapture of Emissions

HG HCL D/F PM NOx SOx CO Pb Cd

Baghouse -- -- -- 99% -- -- -- 99% 99%

SNCR -- -- -- -- 90% -- -- -- --

Web Scrubber 50% 99% -- -- -- 80% -- --

ACI 75% -- 80% -- -- -- -- --

Wet Scrubber-ACI 85% 99% -- -- -- -- -- --

Cooling & Burning Design -- -- 99% -- -- -- 90% -- --

Source: PCA Figure 7 Technology Assumptions Regarding the Recapture of Emissions

Lead (Pb) Emission Control Assumptions : The bulk of lead emission capture is likely to occur through the use of baghouses and enhancements to existing baghouses. Baghouse systems capture nearly all lead emissions. PCA assu mes 99% of all lead emission are captured.

Cadmium (Cd) Emission Control Assumptions : PCA's search for cadmium emissions data for cement kilns was more than ten years old and c overed only 13 plants. Analysis of cadmium emissions, therefore has been omitted from this report. It is likely that the bulk of cadmium emission (99%) will be captured through the use of baghouses and enhancements to existing baghouses. Since nearly all CISWI plants w ill require investment in baghouse systems to capture other emissions, omission of cadmium in this analysis is unlikely to result in any significant skewing of the conclusions.

5. Industry Capital Costs to Comply with EPA Emission Standards

Total industry investments to comply with the Proposed CISWI Rule are estimated at $2.0 billion. This excludes potential spending by plants PCA estimates will discontinue burning alternative fuels due to the inability to meet stan dards or due to the exce ssive financial burdens. These estimates only apply to alternative fuel burning cement kilns.

No cement plant burning alternative fuels can currently meet all standards in the Proposed CISWI Rule. As a result, all cement plants that intend to continue burning alternative fuels will require investment in emission capture systems. PCA employs EPA and PCA kiln and plant emission information to determine whet her a plant must expend capital to reach compliance.-79- All emission data by plant, used in this re port were sourced from one of several sources including: (1) EPA's ISIS model used for NESHAP, (2) EPA's National Emission Inventory database, (3) PCA SN3048 - Air Emissions Data Summary for Portland Cement Pyroprocessing, (4) PCA SN3050 - Air Emissions Data Summa ry for Portland Cement Pyroprocessing Operations Firing Tire-Derived Fuels, (5) PCA' s annual Labor/Energy Input Survey. Units of measurement for the toxic air pollutants availabl e from these various sources often did not map directly to CISWI emission limit units, therefore conversions were required. These conversions used an estimated exhaust gas flow rate. 18 For mercury emissions, PCA used the EPA plant-byplant study on Hg emissions from the cemen t industry, reflecting 2006 information, for 100 cement plants. (EPA: The Toxics Release Inventory (TRI) 2006). 19 A follow-up study was performed reflecting 2007 information for some 50 cement plants. Histor ical benchmarks on plant-by-plant Hg emissions reflect the most recently available data for each plant.

On a plant-by-plant basis, PCA employs a ma trix solution that accounts for the plant's emissions of Hg, HCL, PM, NOx, SOx, D/F, Pb and CO and employs PCA technology emission capture assumptions to determine which emissi on systems must be employed at the plant to comply with EPA standards. A plant with ex tremely high levels of Hg, HCL, and SOx, for example, would likely be forced to invest in an ACI-wet scrubber system. Investment in the ACI-wet scrubber system, to comp ly with mercury emissions, for example, would presumably also take care of their HCL emissions at the sa me time. This investme nt for mercury control would also reduce SOx emissions by 80%. Double counting of systems required for compliance is eliminated through this process. Each plant is carefully asse ssed using this methodology.

Under the Proposed CISWI Rule, PCA estimates that 87% of all CI SWI cement plants will be forced to invest in baghouses to meet pa rticulate matter, lead and Cadmium standards. This includes investments to existing baghouses and in some cases the construction of new baghouses. To comply with the combined Hg, SO x and HCL standards, PCA estimates that 22% of all plants will be required to invest in a sta nd alone wet scrubber system, 62% of all plants will be required to invest in wet scr ubber-ACI systems, 22% of all plants will be required to invest in SNCR systems and 39% will be required to invest in burner systems.

PCA capital cost estimates for each emi ssion capture system are based on survey information from cement companies as well as equipment manufacturers and based on an average 1.2 million ton dry kiln cement plant with a precalciner and a preheater. Adjustments to this information are made to account for differences in the type of plant, such as a long dry or wet kiln. PCA assumes a 29% emission equipmen t installation cost prem ium for long dry kilns and a 143% cost premium for a wet kiln. Adjust ments to this information are also made to account for size differences among plants.

This survey information reflects current esti mated investment costs on emission systems. This information contains signifi cant upside risk in the context of likely market conditions facing emission equipment suppliers. The cement indus try will be mandated to install a massive

18 Source: PCA’s Innovations in Portland Cement Manufacturing). Conversion examples include pounds to mg/dscm (milligrams/dry standard cubic me ter) or tons to ppmv (parts per million volume).

19 EPA: The Toxics Release Inventory (TRI) 2006-80- amount of emission capture equipment to comply with both the Pre-publi cation Portland Cement NESHAP and the Proposed CISWI Rule . This equipment must be in -place within three years for NESHAP compliance and five years for CISWI compliance. There are a limited number of emission capture equipment suppliers. Keep in mind, while there are 30 or more emission equipment suppliers only 6-8 are cement kiln em ission focused. Demand for their services from the cement industry will increase dramatically. A premium will likely be placed on the urgency to install the systems over a short period of time. This dynamic is likely to be amplified as the overall economy regains traction. The likely outcome is an esca lation in the costs of these systems. A 10% to 20% premium over existing costs is possible. PCA assumes a 15% increase over the survey information. Please note that thes e adjusted equipment cost estimates may differ from the current equipment cost estimates indica ted elsewhere in the PCA comments. Based on these adjustments, PCA's estimates for a 1.2 milli on ton dry kiln with a pr ecalciner and preheater are as follows:

• Baghouse System = $9.2 million

• Activated carbon inject ion (ACI) = $17.5 million

• Wet Scrubber System = $22.1 million

• ACI system combined with a we t scrubber system = $39.6 million

• Selective catalytic reduction system s (SNCR) = $8.5 million (wet kiln), $3.5 million (dry kiln).

• Burner Enhancements = $1 million

Every alternative fuel burning cement plant in the United States will be forced to spend tens of millions to comply – averaging $48 mill ion per plant. Total industry investments to comply with the Proposed CISWI Rule are estima ted at $2.0 billion. This excludes potential spending by plants PCA estimates will discontinue burning alternative fuels due to the inability to meet standards or due to th e excessive financial burdens.

6. Industry's Financial Ability to Comp ly with CISWI Emission Standards

This expenditure is magnified in the context industry investment requirements needed to comply with EPA's Pre-publication Portland Cement NESHAP. Further, this expenditure comes at a time when the financial abil ity of the industry to meet these investment requirements has been greatly reduced by current economic conditions.

The cement industry is still in the midst of a ggressive investment in domestic capacity to modernize and expand its kilns. The commitment to these investments were made in response to domestic shortage conditions that materialized during 2003-2006, an understanding that dependence on the free flow of foreign supply is dictated by uncertain international logistic conditions surrounding dry bulk carrie rs impacting freight rates, and in recognition of the longterm demographic trends that suggest stro ng demand requirements by the United States' economy. Furthermore, the $6.7 billion commitment to expand and modernize in the domestic-81- industry was undertaken before the current ec onomic hardships were clearly understood. Capitalization and financial commitment to these pr ojects are already in-place.

Furthermore, harsh demand conditions currently face the industry. Since 2005, cement consumption has declined by 53 million metric tons – or roughly 41%. These conditions are unlikely to abate soon. Utilizati on rates are likely to remain depressed for some time and hence the industry's financial performance will remain depressed. EPA's short three year compliance period suggests that compliance investments must begin soon. PC A estimates that total 2009 cement industry revenues at less th an $7 billion. For CISWI cove red cement plants revenues are estimated at roughly $3 billi on. For 2009-2011, total industry revenues are estimated at $9.5 billion. The $2 billion in investme nt required to comply CISWI standards equates to more than 20% of industry revenues accumulated duri ng the next three years.

The combination of the industr y's pre-existing financial commitment to provide reliable and efficient supply of cement to the United States' market, coupled with sustained harsh economic and financial realities, investment need ed to comply with Pre-Publication Portland Cement NESHAP may overwhelm the industry's financial capability to comply the Proposed CISWI Rule.

7. CISWI Impact on Alternative Fuel Practices by the Cement Industry

The Proposed CISWI Rule will force two thir ds of all cement plants to eventually discontinue the use of alternat ive fuels. The Proposed CISWI Rule's emission standards will force cement plants to opt between compliance or discontinue alternative fuel usage. The decision to discontinue the use of alternative fuels is expected to be based on two factors. First, some plant's emissions are sufficiently high that even with the installation of emission capture systems they will not be able to meet CISWI sta ndards. Second, even if a plant can technically meet the CISWI standards, the compliance i nvestment required may not be justified on a financial basis. In either case, PCA assumes the discontinued use of alternative fuels.

According to PCA's Labor/Ener gy data, sixty one plants used alternative fuels in their kilns on a sustained basis during 2006-2008. Of these, 16 plants' alternative fuel usage accounted for less than one percent of their total fuel c onsumption. Since the reliance of these plants are relatively small, each of these plants are assumed to discontinue burning alternative fuels rather than incur CISWI compliance costs.

Among the remaining 45 plants that burn altern ative fuels PCA estimates that 18 plants could be forced to discontinue the use of alternative fuels due to the inability to meet "existing facilities" CISWI standards or because the comp liance investment required may not be justified on a financial basis. Fifteen of these plants are estimated to discontinue the use of alternative fuels due to financial criteria . An additional, three of thes e plants cannot meet "existing facilities" emission standards in the Proposed CISWI Rule based on assumptions regarding existing technology and the abil ity to capture emissions.

A total of 52% of all cement kilns covered by CISWI are at least 35 years old and may require substantial investment a nd modification to insure efficiency and remain "world-class" competitive. Such investments could result in ex isting plants being reclassified as new sources-82- and subject to more severe emission standards. Given this, the technical ability to meet the standards in the Proposed CISWI Rule as we ll as industry compliance costs could be underestimated if this impact is not taken into consideration. PC A assumes that all plants require a major upgrading or maintenance investment w ithin 35 years of initia l plant launch. This suggests that all plants comm issioned between before 1985 c ould be subject to a major reinvestment – and could result in an EPA recla ssification of the plant as a "new source" within five years after the CISWI standard has been impos ed. This represents 24 plants and nearly 25 million metric tons of capacity. Plants orig inally commissioned during this time period, but which have had significant capacity changes have been excluded from this analysis. Even with no new greenfield plants, our an alysis suggests the effective emission standards facing the industry will be tightened as the industry pursues normal investment to maintain efficiency and competitiveness. For NOx, as an example, the e ffective emission standard is lowered from 1,100 ppmv to 140 ppmv by 2020 – representing a drama tic tightening of th e standard facing the industry. Among these plants, PCA estimates an additional 7 plants will discontinue burning alternative fuels.

Cement Plants Burning Alternative Fuels

2015 2025

Total Cement Plants Burning Alternative Fuels in 2010 61 61

- Less: Marginal Burners 16 - Less: Failure to Meet CISW I "Existing Facilities" 3 - Less: Failure to Meet ROI under CISWI "Existing Facilities" 15 - Less: Failure to Meet CISWI "New Facilities" 7

Total Cement Plants Burning Alternative Fuels 27 20 - Percent Reduction 55.7% 67.2%

Source: PCA Figure 8 Cement Plants Burning Alternative Fuels

8. CISWI Impact on Scrap Tire Stockpiles

Three hundred and eleven million scrap tires were generated in 2009 according to the Rubber Manufacturers Association (RMA). The amount of tires sc rapped annually is determined by the number of vehicles on the road and vehicl e miles travelled. Historically, 1.24 tires are scrapped per vehicle on the road. Based on Un ited States Census projections of population growth, licensed drivers and the number of vehicl es per driver, PCA estimates the number of scrap tires produced annually will increase by an average of roughly 2.8 million each year - reaching over 356 million scrapped tires per year by 2025.

Scrapped tires generated are us ed as alternative fuel, used in products or placed in landfills. Since 2005 roughly 55% of scrapped tires were used as alternative fuels, 33% used in other products and 24% used in landfills. Totali ng these uses equates to 112% and is explained by a reduction in stockpiled tires. In 2005 stockp iled tires was estimated at 188 million by the RMA. PCA estimates 2009 stockpiles as 125 million tires.-83- The cement industry is the largest consumer of TDF, consuming ne arly 60 million tires annually and accounting for nearly 40% of all scrapped tires used as fuel. Recent adverse economic conditions has forced a decline in domestic cement production and as a result prompted a temporary cyclical decline in TD F consumption. As the economy recovers, cement production and its consumption of TDF will recover.

The recovery in cement consumption of TDF at tributed to stronger production levels is expected to be supplemented by changes in cement kiln fuel characteristics in the years ahead – favoring alternative fuels. A gradual and sust ained recovery in world economic conditions leading to synchronized world gr owth is expected to emerge in 2013 and beyond. Much of this growth will be fueled by conditions among le sser developed economies. Indeed, the Energy Information Agency (EIA) expects world ec onomic growth will average 3.2% during 2010-2030. In the context of these world growth conditions, it is likely that oil prices will record sustained gains. Indeed, the EIA expects oil prices wi ll reach $105 per barrel in 2015, $132 per barrel in 2020 and $156 in 2025. Given these increases and poten tial substitution effects, all fossil fuel prices, including coal, are expected to increase. PCA uses EIA fuel pric e projections. Lacking EIA guidance, PCA employs rough cross-elasticity of demand estimates to project other fossil fuel prices.

While alternate fuels are influenced by overa ll fuel prices, supply of these fuels are dictated by producer and consum er activity of end-products, ( e.g., such as tires). The disparity in price drivers between fossil fuels and alternative fu els suggests a change in the relative fuel costs – favoring alternative fuels. Such a potential im plies an incentive for change in kiln fuel characteristics in favor of alterna tive fuels at the expense of coal.-84- Figure 9 U.S.Cement Plan Fuel Consumption 2025

PCA estimates the current average fuel cost differential between primary and alternative kiln fuels at roughly $15 per ton. As fossil fuel pr ices increase, the cost differential margin will increase to an estimated $16 per ton in 2015, $18 per ton in 2020 and $20 per ton in 2025. The potential widening in price differentials betwee n primary and alternative kiln fuels suggests cement companies will increasingly rely upon alternat ive fuels. This point has been borne out by long term trends in cement kiln alternative fuel usage.

Based on the likelihood of the eventual widening in the differential between primary and alternative cement kiln fuels, PCA expects altern ative fuel usage will in crease in proportion to primary fuels. In 2008, alternative fuels accounte d for nearly 11% of total cement kiln fuel consumed. This share is expected to reach 12% in 2015, nearly 15% in 2020 and nearly 17% in 2025. These gains are expected to come at the expense of coal.

With the economic slowdown resulting in production declines, TDF usage for all industries is expected to decline. This suggests the proportion of tires going into landfills will increase and the stockpile of scrapped tires will increase as well. PCA estimates the stockpile of tires will increase from 188 million tires in 2005 to 243 million tires in 2010, with further increases in tire stockpiles materializing as lo ng as industrial production remains depressed – reaching a cyclical peak of 330 million tires in 2012. Sustained declines in tire stockpiles are expected materialize during 2015-2025 reducin g stockpiles to 312 million tires in 2015, 274 million in 2020, and 110 million in 2025. The cemen t industry's consumption of scrapped tires plays an important role in reducing the scrapp ed tire stockpile. According to this scenario, existing cement kilns using TDF fuel continue - allowing 63 million scrapped tires would be consumed by the cement industry in 2015, 78 million in 2020 and nearly 75 million in 2025.-85- 

## Connect With Concrete 

# Total Scrap Tires in Stockpiles

(Millions)

0 100 200 300 400 500 600 700 800 900 1,000 1,100

BASELINE CISWI

Figure 10 Total Scrap Tires in Stockpiles

The Proposed CISWI Rule would significan tly reduce the amount of scrapped tires consumed by the cement industry. Under the Proposed CISWI Rule, PCA estimates cement industry scrapped tire consumption would dec line to 29 million tires in 2015 and roughly 23 million tires during 2020-2025. Holding all other assessments included in our baseline analysis constant, scrapped tire stockpiles would reach 35 7 million tire in 2015 nearly 530 million tires in 2020 and nearly 590 million tires in 2025. The Pr oposed CISWI Rule potentially reverses decades of environmental cleanup success and CAA designations of TDF as an encouraged fuel.-86- CISWI Scenario

2005 2010 2015 2020 2025

US Cement Industry

US Cement Consumption (000 tons ) 128,035 70,157 116,034 131,388 147,112

US Cement Capacity (000 tons) 94,693 96.877 97,874 95,604 95,604

US Production (000 tons) 87,400 59,474 87,781 85,431 85,219 Imports (000 tons) 27,305 5,900 20,000 38,000 54,000

Total Fuel Consumption (billion BTU, bbtu) 341,999 237,896 351,126 341,724 340,877 Primary Fuel Consumption (bbtu) 307,009 211,345 322,381 325,415 321,789 Alternative Fuel Consumpti on (bbtu) 34,989 26,551 18,745 16,309 19,088

Alternative Fuel Plants (AFP)

Capacity at AFP (000 tons) 48,209 49,923 22,465 22,465 20,219 Production at AFP (000 t ons) 44,496 30,649 15,975 15,975 14,377

Total Fuel Consumption (bbtu) 177,984 122,595 198,641 196,378 195,893 Primary Fuel Consumption (bbtu) 142,995 96,043 179,896 180,069 176,805 Plant Alternative Fuel Consum ption (bbtu) 34,989 26,551 18,745 16,309 19,088 Plant Tire Derived Fuel (bbtu) 12,143 8,762 5,880 4,636 4,913 Scrapped Tires Co nsumed (millions) 58 40 28 23 22 Scrapped Tire Stockpile (millions) 188 246 357 528 586

Emissions

Hg (mg/dscm) 2.53 1.71 1.85 1.84 0.76 HCL (ppmv) 309 315 349 348 185 PM (mg/dscm) 3,281 2,299 2,348 2,341 1,462 NOx (ppmv) 29,418 22,275 26,276 26,188 12,387 SOx (ppmv) 14,527 9,889 8,089 8,062 3,187 Dioxins/Furans (ng/dscm ) 2.09 1.39 2.39 2.37 0.53 CO (ppmv) 34,219 23,271 26,841 26,751 13,421 Pb (mg/dscm) 4.08 2.76 2.19 2.19 1.13 Cd (mg/dscm) ---- ---- ---- ---- ----

Sources: PCA, USGS, Various EPA emissions documents. Note: No credible Cadmium emissions data for cement kilns could be found and is omitted from analysis. Figure 11 CISWI Scenario

9. CISWI Impact on United States' Construction Costs

By itself, costs associated with the cemen t industry's compliance to CISWI standards could increase domestic production costs by a minimum of $26 per ton. This assessment-87- includes capital compliance invest ments dispersed over a 15 year time horizon, includes annual operating costs associated with the emission capture systems, and includes the increase in fuel costs for plants forced to stop burning cheaper al ternative fuels. These estimates are based on a 90% utilization rate.

The ability of the cement industry to pass al ong costs to consumers of concrete is high. The price elasticity of demand for cement is ex tremely low. The EPA's ISIS model confirms this. PCA and the EPA's NESHAP ISIS model generally agree that a large portion of CISWI compliance costs will be passed onto cement/concrete consumers.

The largest consumer of cement/concrete is the public sector – accounting for 50% of cement consumption. High cement consuming public construction efforts include new highways, bridges, schools, public building as well as water, se wer and conservation projects. Of public construction ac tivity, more than 90% are undertaken by state and local governments. PCA estimates that CISWI compliance costs could add as much as $1 to $1.2 billion annually to state and local governments' expenditures just to maintain existing roadways and bridges. The potential overall cost to the c onstruction industry is estimated at roughly $3 billion annually.

10. CISWI Impact on Emi ssion Projections

The Proposed CISWI Rule will lower emissions from alternative fuel burning cement kilns. These reductions are achieved by use of em ission capture control technologies as well as from decisions by cement producers to discontinue burning alternative fuel s. Compared to the baseline scenario, reflecting no emission controls and a sustained strategy to increase alternative fuel usage in the context of rising fossil fu el prices emissions are reduced as follows:

• HCl emissions are reduced from an estimated 511 ppmv in 2015, 510 ppmv in 2020 and 508 ppmv in 2025 in the base line to 349 ppmv in 2015, 348 ppmv in 2020 and 185 ppmv in 2025.

• PM emissions are reduced from an estimated 3830 mg/dscm in 2015, 3807 mg/dscm in 2020 and 3795 mg/dscm in 2025 in the baseline to 2348 mg/dscm in 2015, 2341 mg/dscm in 2020 and 1462 mg/dscm in 2025.

• NOx emissions are reduced from an estimated 37,132 ppmv in 2015, 36,817 ppmv in 2020 and 36,694 ppmv in 2025 in the baseline to 26,276 ppmv in 2015, 26,188 ppmv in 2020 and 12,387 ppmv in 2025.

• SOx emissions are reduced from an estimated 17,382 ppmv in 2015, 17,200 ppmv in 2020 and 17,142 ppmv in 2025 in the baseline to 8,089 ppmv in 2015, 8,062 ppmv in 2020 and 3,187 ppmv in 2025.

• Dioxins/Furans emissions are reduced from an estimated 2.74 ng/dscm in 2015, 2.73 ng/dscm in 2020 and 2.72 ng/dscm in 2025 in the baseline to 2.39 ng/dscm in 2015, 2.37 ng/dscm in 2020 and .53 ng/dscm in 2025.-88- • CO emissions are reduced from an estimated 38,991 PPMV in 2015, 38,807 PPMV in 2020 and 38,677 PPMV in 2025 in the baseline to 26,841 PPMV in 2015, 26,751 PPMV in 2020 and 13,421 PPMV in 2025.

• Pb emissions are reduced from an estimated 4.43 mg/dscm in 2015, 4.38 mg/dscm in 2020 and 4.37 mg/dscm in 2025 in the baseline to 2.19 mg/dscm in 2015, 2.19 mg/dscm in 2020 and 1.13 mg/dscm in 2025.

X. Case Study on Unachivability of Proposed Standards

National Cement Company of Alabama (NCCA ) is a portland cement plant located in Ragland, Alabama that has been in operation fo r 102 years at the same location. In 2005, NCCA began the process of designing and permitting a new state-of-the-art new kiln system, raw material storage, alternative fuel storage, bl ending silos, and cooler systems to replace the existing systems. A PSD permit to construct wa s issued in December 2009 after an extensive BACT review and Class I modeling analysis. Si nce the beginning, this project has been greatly complicated by the fact that NESHAP and NSPS regul ations were in the process of being revised and the limits being proposed by those rules were possibly unattainable. Uncertainty about the NESHAP and NSPS rules combined with the re cent Proposed RCRA Rule and Proposed CISWI Rule has jeopardized the new kiln project because NCCA is uncer tain that it can successfully comply with the new kiln limits using the best available control technologies based on the 100 year future plan for local raw materials. These proposed rules when combined create an environment that discourages capital investment s, kiln upgrades, new technology, and the use of alternative materials and fuels. Multinational conglomerates own more than 80% of the US cement industry, making it difficult to justify expans ion here when regulatory certainty is much greater in other areas of the world.

During the permitting process engineering analysis, vendor guarantees for PM, THC, SO2, CO, and NOx were designed, and solicited to comply with the current NESHAP and NSPS limits. NCCA also examined the control of mercury and HCL based on the information provided from the EPA of their intention to regulat e these pollutants. Based on current vendor information to NCCA, there is no guarantee that the new kiln limits for SO2, CO, HCl, mercury or NOx can be achieved on a short term, or cont inual basis based on current BACT technology. The new kiln limit for CO is so unreasonably lo w that basic combustion would not be possible using any fuel. It is very difficult to project complian ce with continuous monitoring requirements for naturally occurr ing constituents, which vary si gnificantly over 50 to 100 years of limestone reserves.

Monitoring and compliance using CEMS in th e proposed rule requires the installation and successful operation of a PM, HCl, multi-metal, and mercury CEMS. HCl has never been monitored using FTIR for 30-day compliance at a cement facility, or any other known operation. EPA's PS-15 for FTIR CEMS has nu merous technical issues that have never been addressed or resolved by the EPA. PS-15 has also been dism issed by State agencies that have replaced FTIR CEMS with proven monitoring technologies such as IR for HCl. There is currently no mercury, PM, or multi-metal CEMS presently in operati on at a cement facility for compliance purposes and reliability is known to be site specific based on experience of the utility boilers with some of-89- these technologies. NCCA canno t be certain that these technol ogies will be successful at a cement facility.

The new kiln system was also designed and engineered to use 40% alternative fuels replacing traditional fossil fuels, and promoting beneficial re-use and recycling of raw material ingredients. The Proposed CISWI Rule discoura ges beneficial re-use, and NCCA is greatly concerned that alternative fuels and materials w ill not be allowed unless a facility is subject to unattainable new source CISWI limits. Eliminating viable proven alternative resources results in a greater reliance on coal, and further cont ributes to ambiguity in kiln upgrades.

No company or industry sector can invest major resources in technology and operations when future compliance with the limits, and the ability to even monitor these limits is in doubt and unproven. Regulations and their application s hould be based on what has been achieved in the sector. Each of the foregoing EPA proposed re gulations jeopardize the feasibility of the new kiln project. The net result of the proposed regula tions discourage investment in capital projects and thus upgrades, efficiency improvements, a lternative material and fuel use, effectively locking industry into exis ting operations. Over time, this will result in economic losses and risks associated with a transition of the U.S. to reliance on increased imports. In addition, imports predominantly come from unregulated countr ies and thus not only will there be no net environmental improvement, there will likely be a environmental detriment.

XI. EPA Does Not Have Emissions Data To Impose Emissions Standards During Startup, Shutdown, and Malfunction Events

The 2000 CISWI Rule provided for an exempti on from the emission limits during periods of SSM. 20 The Proposed CISWI Rule notes that the December 19, 2008 decision by the U.S. Court of Appeals in Sierra Club v. EPA vacated the 40 C.F.R. part 63 "General Provisions" exemption from compliance with emissi on standards during periods SSM. Sierra Club v. EPA

, 551 F.3d 1019 (D.C. Cir. 2008). EPA states in the Proposed CISWI Rule that "while the Court's ruling did not specifically address the legalit y of source category-specific SSM provisions adopted in the 2000 CISWI rule, the decision calls in to question the legality of those provisions." 75 Fed. Reg. at 31964. Instead of closely examin ing the emission limits and actual operations of the various sources subject to the Proposed CISWI Rule, EPA takes the drastic step of applying the proposed emissions limits to all periods of op eration without an ounce of data showing that the emissions limits have been achieved in practi ce or even achievable by any particular source during periods of SSM.

Furthermore, EPA improperly established emission limits during SSM in the Prepublication Portland Cement NESHAP by imposing restrictions on start-up fuels and connecting emissions limits to concentration-based limits. This was done without allowing the public to comment. EPA has not provided an adequate opportunity in this rulemaking for PCA to comment on establishing enforceable alternative emission limits for periods of SSM and has not proposed any methods for converting emi ssion limits to address SSM issues.

20 Standards of Performance for New Stationa ry Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Inci nerator Units, 65 Fed. Re g. 75338 (Dec. 1, 2000).-90- PCA does not agree that the Sierra Club decision applies to s ource category-specific SSM provisions. There is nothing in the Court's d ecision that would make it apply to regulations promulgated under § 129 of the CAA. The Court di d not rule that the same emission limits must apply at all times, but the D.C. Circuit emphasized in Sierra Club that EPA never defended its decision. Id. at 1028. Even if this decision would apply to § 129 regulations, EPA must still comply with the MACT setting process. The Co urt's decision does not excuse EPA from having to set emission limits based on those achieved in practice, and promulgate an achievable standard.

A. By Applying The Proposed Emissions Limits During SSM Events, EPA Is Proposing An Infeasible Standard Contrary To Court Directives

Because EPA is proposing to apply the MACT floors that were set by examining normal operating conditions to periods of SSM, the perfor mance of the best performing sources must be established by including emissions data durin g SSM. EPA proposes th at the variability calculations it performed for the da ta set of normal ope rating sources is suffi cient to account for periods of SSM. This assertion by EPA is incorre ct because no statistical analysis of the normal operating data can account for emissions during SSM events as the emissions during SSM events are completely different from those in normal ope rations. EPA is basica lly proposing an apples to oranges comparison.

EPA further states, without any supporting facts, that "most units use natural gas or clean distillate oil to start the unit and add waste onc e the unit has reached co mbustion temperatures," and that "emissions during periods of shutdown are also genera lly significantly lower than emissions during normal operations because the mate rials in the incinerator will be almost fully combusted before shutdown occurs." EPA also ignores that kilns are not the same as incinerators. During unplanned S/S events, there continues to be raw material in the kiln and chemical reactions continue to occur for an ex tended period regardless of the type or amount of fuel being fed. 75 Fed. Reg. at 31964. These statem ents by EPA ignore the fact that (1) many of the pollution control technologies do not begin to operate until nor mal operations are maintained, (2) pollution controls must be shutdown before the units are shutdown, and (3) emissions can routinely be higher during tim es of SSM, even though waste may not be combusted.

EPA's descriptions, cited here, demonstrate th at EPA has its facts wrong. Clean oil or natural gas applies to the narrow a pplication of incinerators. EPA gives no consideration to kilns where initial fuel is used for h eating, then the kiln introduces c onventional fuels, then introduces raw materials; all before producing a product and reaching "normal" operations.

EPA addresses periods of malfunction by st ating, again with no information on how many malfunctions have occurred within the MA CT floor units, that "best performing" sources operate in a manner to avoid malfunctions. Id. This assertion is tota lly unsupported as there is absolutely no analysis of malf unction occurrences at the MACT floor units in the record. Malfunctions at industrial sites ca n be extremely dangerous and can easily result in the loss of property and life. The fact is that they occu r even at the best performer and best operated facilities. EPA's rationale is contrary to the definition of malfunction, which requires malfunctions to be unavoidable. EPA is se tting an arbitrary MA CT floor without any information and forcing sources to choose betwee n complying with the proposed emission limits-91- and risking property and life. Not only is EPA acting arbitrarily in its establishment of the MACT floors; it is acting irre sponsible in regards to the safety of plant personnel and malfunctions.

EPA's method of addressing malfun ction is not a true affirmative defense. It is solely a characterization of its enforcement discretion. EPA's malfunction approach does not meet the legal standard courts have requ ired of technology-based standard s such as thos e in the Clean Water Act. Most importantly, EP A does not apply its discretion to injunctive relief. This in itself makes EPA's assertion that it is providing an affirmative defense false. EPA only grants relief to civil penalties. Furthermore, EPA should clarify whether this "affirmative defense" could be used in a ____ suite. The preamble to the Proposed CISWI Rule is unclear on this important issue and EPA shoul d characterize its intent.

By not considering emissions during periods of SSM in the MACT floors, EPA is effectively establishing a standard that will be impossible to achieve. See Nat'l Lime Ass'n v. EPA , 627 F.2d 416, 443 (D.C. Cir. 1980) ("EPA has a statutory duty to promulgate achievable standards."). The floors were developed with emissions data gathered only during times of steady state operations. By ignoring the variab ility that occurs duri ng SSM events and the technological limitations of emission controls, EPA has established unrealistic emission floors based on data only from when a pl ant is operating optimally with no factual basis to demonstrate that such a floor could be achieved when SSM events are taken into account. Thus, EPA has provided no basis to justify that the established floor accurately depicts what the best-performing sources actually achieve during the entire course of their operations, and the established emission floors will almost certainly be impossible to me et on a continuous basis by even the very best performing sources.

In Hughey v. JMS Dev. Corp., 78 F.3d 1523 (11th Cir. 1996), the 11 th Circuit found that where a developer took extensive steps to manage stormwater runoff he was not held liable for violations where the court found th e statutory requirements impossible to achieve. In that case the developer took substantial steps to mitigate his pollution yet the statute's effluent limitations were so low that the court found that they we re factually impossible to achieve, and thus unenforceable. Id. Likewise, in the case at hand, by ignoring SSM events, EPA's proposed emission floors will likely be unachievable by even those best-performing kilns that serve as the basis for the proposed limits.

The 9 th Circuit Court of Appeals previously he ld that "EPA cannot require a level of control technology that is technologica lly and economically infeasible." Bunker Hill Co. v. EPA

, 572 F.2d 1286, 1293 (9th Cir. 1977). "The proposed t echnology must not be 'at a level that is purely theoretical.'" Id. at 1294 (quoting Essex. Chem. Corp. v. Ruckelshaus , 486 F.2d 427, 433 (1973)). The "record must establish that the requ ired technology is feasible, not merely possibly feasible." Id. at 1301. Establishing an emission limit that assumes that emissions will be curtailed without showing the feas ibility of reducing those emissions is arbitrary and capricious. Id. at 1299. Here, at best, EPA estab lishes that the available techno logy is possibly feasible to meet the emissions standards during SSM by sta ting that "most units use natural gas or clean distillate oil to start the unit and add waste onc e the unit has reached com bustion temperatures." 75 Fed. Reg. at 31964. However, demonstrating that "possibly feasible" technology exists is not a sufficient basis to impose otherwise unattainable emission standards. Bunker Hill Co. , 572-92- F.2d at 1301. As to malfunctions, EPA is proposi ng an enforcement discretion scheme that is not consistent or in accordance with the case law dictating how technology standards must be established. While EPA is propos ing to provide relief from civi l penalties, the standard would continue to apply for injunctive relief purposes. EPA is not proposing an affirmative defense as it suggests. It is simply providing a framework where sources would continue to have liability for malfunction events, but provide possible relief from civil penal ties. EPA approach in the preamble seems to only apply to enforcement ac tions by EPA, and EPA should clarify how its approach applies to possible citi zen suits addressing malfunctions.

There is a strong presumption that the process for setting an emission limit will demonstrate that it is not feasible to prescr ibe emissions floors during SSM events due to the inherent technological limitations that exist during these events. Thus far, no pollution controls work effectively during SSM, as the flue gas temp erature is not within the range required by the control technologies. Additionally, the industry has concerns that applying emission floors to SSM events could have safety implications, as duri ng these events the safety of kiln operators is a paramount concern, which might ultimately come into conflict with efforts to continuously achieve emissions limits. Unavoidable emergencies sometimes do occur at industrial facilities and EPA should not place plant operators in a pos ition where they need to choose between protecting workers and complying with emissions limits.

The lack of data does not excuse the EPA fr om its affirmative obligation to set floor levels that are indicative of the level of pe rformance actually achieved by the best performing sources throughout a range of operations. EPA cannot simply use the lack of data as an excuse to set overly stringent floor leve ls, particularly when general engineering principles strongly suggest that at least during SSM events emissions will be different than during normal operations.

B. EPA Should Develop Work Practice St andards To Apply During SSM Periods

PCA believes the best way to require complia nce during SSM events is to require work practice standards that would appl y during such periods. Particularly given the lack of data on emissions during periods of SSM, as well as the va riety of circumstances that may be presented during SSM events, it would be exceedingly difficu lt to craft separate emissions standards for these events. If EPA wishes to have the sa me emission standards a pply, the level of those standards would need to account for emissions during periods of SSM, which are unavoidable. Thus, work practice standards ap pear to be the best soluti on. Because § 129 of the CAA emissions standards are promul gated as NSPS under § 111 of the CAA, EPA has clear statutory authority to use work practice standard s to address SSM events under § 111(h).

In the case at hand however, EPA did not attempt to collect SSM data. Lack of information by the EPA is not an excuse. Even where information is difficult to come by or uncertain, EPA must still make a reasona ble effort to develop the facts. Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506, 531 (D.C. Cir. 1983) (quoting Ethyl Corp. v. EPA , 541 F.2d 1, 28 (D.C. Cir. 1976)).

PCA suggests two options to EPA for consider ation. The first opti on is to develop a work practice standard based on the fact that it is not practicable to apply a measurement-93- methodology during SSM events. The second option is to put regulation of SSM emissions on a separate track from this overa ll rulemaking to ensure that th ere is enough time to assemble preliminary modeling data to determine the feas ibility of establishing an emission floor during SSM.

The appropriate work practices that will a pply during SSM events will vary between facilities and the control technologies they apply. Therefore, the rule should call for the creation of an SSM Work Practices Plan by source ow ner. This was accomplished in the other regulations, and PCA recommends th at each affected facility be required to prepare an SSM "work practice plan" containing cer tain required components. Th e work practices plan should address:

• Preventive maintenance activities in tended to minimize malfunctions and unplanned shutdowns of air em issions control systems.

• Procedures to be followed to minimize emissions during kiln start up and during planned shutdowns.

• Procedures for detecting and remedyi ng malfunctions that result in excess emissions. This will include a determin ation of the cause and taking corrective actions.

In developing these work practi ce plans, PCA is prepared to work closely with EPA to achieve the correct balan ce between accountability and the flexib ility to deal with the wide range of conditions as they vary between kilns, cont rol strategies and operating conditions. PCA has already engaged with its members on the development of plant SSM plans, as can be seen by the sample SSM plan outline provided by PCA to its members, attached as Attachment 5.

XII. Setting MACT Floors on a Pollutant-by- Pollutant Basis Viol ates the Law and Results in MACT Floors That Bear No Rela tion to Emission Limits that are Being Achieved at the Best Performing Existing Sources

Pursuant to § 129(a)(2) of th e CAA, EPA uses the MACT standard setting method to derive the applicable emission standards unde r § 129 of the CAA. 75 Fed. Reg. at 31941. EPA recognizes that the two-step pro cess it describes in the preamble to the proposed rule is "the similarly required 'two-stage' approach under CAA §§ 112(d) and (f)." Id. While there may be some differences between the emission setti ng process in § 112 and § 129 of the CAA, both sections require that the MACT be based on the "emission control that is achieved in practice be the best controlled similar unit." See § 112(d) and § 129(a)(2). Se ction 112(d) of the CAA has been the subject of various court interpretatio ns over the years, and many of those cases are applicable in the emission limit setting process of the § 129 of the CAA. However, EPA has misinterpreted many of those cases and is proposing to set a MACT standard that is inconsistent with the legal principles established under prev ious court decisions. Most importantly, the MACT process is clear that emissi on standards must be "achieved in practice" before finalizing the regulation. EPA, however, ap plies the "achieve in practic e" standard on a pollutant-bypollutant" basis, which results in a final standard th at has never been ac hieved by any subject-94- facility or best performer. EPA took this approach in the Pre-pub lication Portland Cement NESHAP. PCA submitted comments advers e to this approach in that rulemaking.

EPA's pollutant-by-pollutant approach to se tting a MACT floor vi olates § 129(a)(2) of the CAA. See 42 U.S.C. § 7429(a)(2). The CAA require s a two-step process to set a MACT standard: First, EPA identifies a MACT floor for each pollutant and source category based on emission limitations that have already been achieved by the best-performing 12% of existing

sources. Natural Resource Defense Council v. EPA , 479 F.3d 875, 877 (hereinafter Brick MACT ); Northeast Maryland Waste Di sposal Authority v. EPA , 358 F.3d 936, 954 (D.C. Cir. 2004) (stating that "[t]o satisfy this requirement, EPA must 'd emonstrate with substantial evidence – not mere assertions' that the chosen floors 'represent a reasonable estimate of the performance of the [best-performing] units.'" (citing Cement Kiln Recycling Coalition v. EPA

, 255 F.3d 855, 866 (D.C. Cir. 2001)). Second, the CA A then requires EPA to determine whether stricter standards—beyond the floor limits—are achievable, ta king into account cost and feasibility factors. Id. In this CISWI rulemaking, the EPA has chosen to establish the MACT floor by assessing the best-performing sources on a pollutant-by-pollutant ba sis, rather than by identifying the overall best-performing sources ta king into account all pollutants. This method violates the plain language and in tent of MACT setting process, and the effect is a MACT floor that reflects a standard that no one plant in existence currently achieves.

A. EPA's Pollutant-by-Pollutant Methodology Is at Odds with the Plain Language and Legislative History of § 129(a)(2) and the MACT process

The plain language of MACT process require s EPA to set a MACT floor for existing sources that is not less stri ngent than "the average emission limitation achieved by the bestperforming 12 percent of the existing sources." Natural Resources Defense Council v. EPA , 489 F.3d 1250, 1254 (D.C. Cir. 2007) (emphasis added). Sections 129(a)(2) and 112(d)'s use of the terms "best-performing" and "exist ing" clearly means that sources in a category or subcategory that are used to set the MACT floor are to be real, not theoretical or hypothetical sources. See Northeast Maryland Wast e Disposal Authority , 358 F.3d at 954. Indeed, § 129(a)(2) instructs that the MACT floor "shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source." Id. (emphasis added). The phrase "achieved in practice" can only mean that Congress intend ed actual sources, performing under real-life conditions, to be the benchmark for determining th e MACT floors. Furthermore, the language of the statute does not speak in terms of the best -performing source or sources for each listed pollutant or group of pollutants. See 42 U.S.C. § 7429(a)(2). Rather, the focus is on the best existing source or sources for all pollutants, and what these sources truly can achieve on an overall basis. Id. If Congress wanted EPA to establish se parate MACT floor levels for different pollutants, it would have worded § 129(a)(2) to allow this result by referring to the bestperforming sources "for each pollutant" or "for each group of pollutants." See Bluewater Network v. EPA , 370 F.3d 1, 18 (D.C. Cir. 2004) (rejecting EPA's interpretation of § 213(a)(2) of the CAA as running counter to the plain language of the statute, reasoni ng that "[h]ad Congress intended the meaning and result which EPA urges, it would have said so more clearly."); Chevron U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 842-43 (1984) (holding that if Congress has spoken directly to th e disputed issue of statutory c onstruction, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.")-95- EPA's pollutant-by-pollutant methodology is al so at odds with the legislative history underlying the MACT setting process. See S. Rep. No. 228, 101st Cong., 1st Sess. 169 (1989). As the Senate report on the 1990 Amendments ma de clear, Congress required "the selection of emissions limitations which have been achieved in practice (rather than those which are merely theoretical ) by sources of a similar type or character. An emissions limitation achieved in practice is one based on control technology that works reasonably we ll (doesn't require frequent and extensive modification or repair) under realistic operating conditions." Id. (emphasis added).

The focus on overall performance is not surprising because in the 1990 CAA Amendments Congress abandoned the MACT proce ss' previous focus on individual pollutant standards, and adopted the technology-based multi- pollutant approach to regulating emissions in use under the Clean Water Act (CWA). See S. Rep. No. 228, 101st Cong., 1st Sess. 133-34 (1989). Thus, if one s ource can achieve a firm degree of c ontrol for one pollutant but not for another there may be no justification for including it in the set of sources from which the floor is calculated. See, e.g., Tanners' Council of America v. Train , 540 F.2d 1188, 1193 (4th Cir. 1976) (deeming CWA effluent limitations guidelines not achievable wher e plants in EPA's database were "capable of meeting the limitations for so me, but not all, of the pollutant parameters").

B. Setting MACT Floors Based on Actual Emission Limitations Achieved at Existing Sources Supports Economic and Technological Feasibility

By analyzing pollution cont rol measures on a pollutant -by-pollutant basis, EPA establishes a MACT floor that no plant in existence currently meets. This was not the intended goal of setting the MACT floor; rather, the CAA a llows that once EPA develops an appropriate floor, the Agency may consider whether it is appropriate to go "beyond the floor" and make the standard more stringent. In doing so, EPA must c onsider "the cost of achieving such emission reduction, and any non-air quality health, environm ental impacts and energy requirements . . .." CAA § 129(a)(2). In comparison, EPA's propos ed pollutant-by-pollutant methodology is in effect an end-run around the CAA mandate to weigh economics and othe r factors in setting MACT standards.

In evaluating the economic cost of achie ving emission reductions and looking at one plant's emission control of only one pollutant to the exclusion of all other em ission controls produces a disjointed view of cost implications and compliance feasibility. While an individual MACT floor for one pollutant might not appear cost-prohibitive, th e total cost implications when combined with all of the other MACT floors fo r other pollutants, could become especially onerous, potentially forcing some regulated partie s out of business, and barring the market entry for other potential entities. This absurd result is compounded wh en the proposed emission limits cannot be met even after the installation and proper operation of MACT hardware such as scrubbers and baghouses. Some facilities cannot ope rate certain types of control devices due to local operational constraints and feed material co mposition. Such a result violates the court's declaration in Nat'l Lime Ass'n 627 F.2d at 443 that under the CAA "EPA has a statutory duty to promulgate achievable standards."

While the CAA was authored with the intent of reducing air pollution, Congress did not intend to disrupt the "productive capacity" of the United States through the promulgation of economically unachievable standards. 42 U.S. C. § 7401(b)(1). By setting MACT floors-96- individually and ignoring the co llective cost implications of the entire rule, EPA would effectively disregard the CAA's requirement th at air pollution control be advanced while promoting the nation's "productive capacity." Id. Emissions standards are to be established by taking costs into consideration. 42 U.S.C. § 7429(a)(2). By consid ering hypothetical sources and promulgating MACT standards that are unach ievable, EPA is nullifying these statutory provisions.

C. EPA's Previous Use of a Pollutant-b y-Pollutant Analysis was Based on Authorities Not Applicable to the Clean Air Act

EPA previously used a pollutant-by-polluta nt methodology to set MACT floors in the context of the Prop. Nat'l Emissions Stds for Haz. Air Pollutants for Hazardous Waste Combustors, 69 Fed. Reg. 21198 (Apr. 20, 2004) (hereinafter HWC NESHAP .) Several parties submitted public comments questioning EPA's appro ach and pointing to the fact that EPA had failed to cite a single existing source which met the various MACT floor standards. See EPA's Response to Comments on April 20, 2004 HWC NESHAP Proposed Rule , Volume 1: MACT Issues, 126 (Oct. 2008). In response, EPA atte mpted to defend its prac tice of establishing pollutant-by-pollutant MACT standards by citing Chemical Mfr. Ass'n. v EPA , 870 F.2d 177, 239 (1989), clarified 885 F.2d 253, 264 (5th Cir. 1989) , cert. denied, 495 U.S. 910, (1990), a Fifth Circuit case where the court held that, under the CWA, "bes t available technology" (BAT) referred to the single best-performing plan t on a pollutant-by-pollutant basis.

EPA's reliance on Chemical Mfr. Ass'n is misplaced as the CAA's procedure regarding the selection of MACT technol ogies differs on a textual basis from the CWA's procedure for identifying best available techno logy. Under the CWA, BAT sta ndards are to be set based on "the best practicable control te chnology currently ava ilable." 33 U.S.C. § 1311(b)(1)(A)(i). The Court in Chemical Mfr. Ass'n read this provision to allow for pollutant-by-pollutant determinations finding no statutory requirement that all of the BATs actually be achieved by an existing plant, just that each technology be demons trated available. 885 F.2d at 264. The CAA, on the other hand, more narrowly limits the basi s for MACT designation to what has been achieved at existing sources, not what could be hypothetically achievable on a per-pollutant basis, as discussed above.

D. The Proposed Standards Are Technically Interdependent

In the HWC NESHAP , EPA also attempted to support its use of the pollutant-by-pollutant methodology by stating that "EPA believes that b ecause all our standards are not technically interdependent ( i.e., implementation of one emission c ontrol technology does not prevent the source from implementing another control technology) , the fact that source s are not achieving all the standards simultaneously does not indicate a flaw in the methodology." EPA's Response to Comments on April 20, 2004 HWC MACT Proposed Rule, Volume 1: MACT Issues, 126 (Oct. 2008). EPA's conclusion in the HWC NESHAP is inapplicable to the Proposed CISWI Rule. As an example, a problem that has been observed in the municipal solid waste industry using ACI (an EPA-identified technology to reduce mercury em issions) that could also occur in the cement industry has been the formation of additional solid-phase dioxins /furans, thus increasing the-97- emissions of dioxin/furans (which are regulated under the MACT standard s). It was reported by Chang and Lin 21 that the total dioxin/furan concentrati ons exiting a municipal incinerator were 2.4 times higher than the input level when implementing ACI. This phenomenon was also reported by Schreiber for cement plants burning hazardous waste. 22 These findings call into question EPA's legal justification that contro l requirements for one pollutant do not impact another.

EPA's use of a pollutant-by- pollutant method to set MACT floors violates the plain language and intent of the CAA. The result is a MACT standard base d on no set of emission limitations in use at a single existing source. Congress did not design MA CT standards to be unachievable or to be forced upon regulated so urces regardless of eco nomic or technological feasibility. See Nat'l Lime Ass'n , 627 F.2d at 443 (stating that, under the CAA, "EPA has a statutory duty to promulgate achievable standards"). Rather, the Act recognizes the competitive nature of business, and only requ ires emission standards to be set relative to what other operating plants achieve. Accordingly, EPA should comp ly with § 129(a)(2) and the court directives relating to the MACT setting process, and set the MACT floor on the emissions limitations for all pollutants achieved by the best-per forming 12% of real, existing plants.

XIII. The Kilns with the Lowest Emissions Are Not Necessarily the Best Performers

EPA has established its propos ed floors by equating the best performing sources with those that have the lowest emissions for partic ular pollutant. These sources, even though there are other ways to measure performance, and in some cases other methodologies may comply with the statute were the "lowest emitter" approa ch does not. EPA apparently bases its action on a parenthetical phrase in Brick MACT , referring to the best performe rs as "those with the lowest emission levels." 479 F.3d at 879. This parent hetical is only dictum , however; it is not a necessary underpinning of the court's decision.

In addition, equating the lowest emitting sources with the best performers for the cement industry would contravene a congressional direc tive that in developing MACT standards EPA cannot require the substitution of raw materials in mineral pro cessing industries such as cement manufacturing. The Joint Explanatory Statemen t of the Committee of Conference for the 1990 CAA Amendments states:

For categories and subcategories of s ources of [HAPs] engaged in mining, extraction, beneficiation, and processing of nonferr ous ores, concentrates, minerals, metals, and related in-process materials, the Administrator shall not consider the substitution of, or other cha nges in, metal- or mineral- bearing raw materials that are used as feedstocks or material inputs . . . in setting emission standards, work practice standards, opera ting standards or other prohibitions or

21 Zygarlicke, C.J.; Galbreath, K.C.; Toman, D.L. Coal Combustion Mercury transformations. In Proceedings of the Air Quality II: Mercury, Trace El ements, and Particulate Matter Conference; McLean, VA, Sept 19–21, 2000.

22 Schreiber, R.J., Jr.; Kellet, C.D; Joshi, N. Inherent Mercury Controls Within the Portland Cement Kiln System; PCA R&D Serial No. 2841, Por tland Cement Association, Skokie, Illinois, USA, 2005, 24 pages.-98- requirements or limitations under this section for such categories and subcategories.

H.R. Rep. No. 101-952, at 339 (1990), quoted from Sierra Club v. EPA , 353 F.3d 976, 988 (D.C. Cir. 2004). This legislative history has a st rong policy underpinning because, as a practical financial matter, cement facilities cannot rely on raw materials othe r than the raw material found in the quarries located on or very close to the facility property. Moreover, these quarries are generally developed to provide 50 to 100 years of limestone.

Congress recognized this in the drafting of the Joint Ex planatory Statement of the Committee of Conference for the 1990 CAA Am endments. H.R. Rep. No. 101-952, at 339. While it was not necessary for the D.C. Circuit to rely on this legislative history in reaching its decision in Sierra Club (involving the primary copper sme lter MACT standards), then-Judge Roberts noted that "[t]he Joint Explanatory Stat ement may be helpful in determining Congress's intent . . .." 353 F.3d at 988, n. 1. The Joint E xplanatory Statement demonstrates congressional recognition that sources processing minerals cannot rely on raw ma terials not found at or very close to the facility. Because limestone with hi gh mercury or organic emissions will result in higher emissions, and it is not cost-effective to import limestone from far away, equating the lowest emitters with the best performing sour ces makes no sense in the context of cement facilities. It also would be squarely in opposition to the Joint Explanatory Report.

Moreover, in its MACT decisions the D.C. Circuit has never required that the best performing sources be considered to be the lowest emitters. As noted above, the parenthetical in Brick MACT is only dictum. In fact, in its review of the 1999 Portland cement MACT standards the court endorsed a "technology approach" to sett ing the standards, in which EPA selects the best performing sources based on the relative pe rformance of air pollution control technology. In rejecting Sierra Club's argument that EP A must only look to cement kiln emissions in selecting the best performing s ources, the D.C. Circuit stated:

According to the Sierra Club, section 7412(d)(3 ) requires EPA to set new source floors at the lowest recorded emission level for which it has data and existing source floors at the average of the lowest twelve percent of recorded emission levels for which it has data. Nothing in the statute, the Sierra Club argues, permits the Agency to set floors based on the performance of technology as opposed to the recorded performance of plants.

In resolving this issue, we do not writ e on a clean slate. EPA's technology-based approach to setting new source emission st andards has already faced and survived

a Chevron one challenge. In Sierra, 334 U.S. App. D.C. 421, 167 F.3d 658 , we reviewed a new source emission standard for solid waste combustion that EPA promulgated pursuant to section 7429, wh ich establishes emission requirements virtually identical to section 7412's. Ther e, as here, the Sierra Club argued that EPA's MACT technology approach to setting emission standards is unambiguously forbidden by the Clean Air Act. Sierra rejected that argument, holding that EPA may estimate the performa nce of the best performing units and that it was not "impossible" that EPA's methodology constituted a reasonable estimation technique. See 167 F.3d at 665.-99- National Lime Association v. EPA , 233 F. 3d 625, 631 (D.C. Cir. 2000). Thus, the court endorsed EPA using a technology-base d approach that estimated performance rather than simply looking to the sources with the lowest emissions to set the MACT floors.

Other cases also approved EPA's use of floor-d efining methods other than selecting those sources with the lowest emissions as the best performers, as long as the methods result in a reasonable estimate of the performance of th e best controlled units. For example, in Mossville Environmental Action Now v. EPA , 370 F.3d 1232 (D.C. Cir. 2004), the court upheld EPA using regulatory/permit limits as the basis for setting fl oors, and rejected the c ontentions of the State and territorial Air Pollutions Pr ograms Administrators that EPA fa iled even to identify the best performing sources. As the cour t noted, it has a long history of upholding reasonable estimates of best performance. Id. at 1240. In Brick MACT itself, the court suggested that a particular technology appropriately served as the basis of EPA's proposed stan dards, and that EPA erred in simply basing the final standards on anothe r, less stringent tec hnology. 489 F.3d at 880 ("Because the 94th percentile (the median of the top 12 percent) of the best-performing large tunnel brick kilns used non-DLA technology, EP A—as required by Cement Kiln—proposed a floor based on this technology."), citing Prop. Nat'l Emissions Stds for Haz. Air Pollutants for Structural Clay Products , 67 Fed. Reg. 47907 at 47911 (Jul. 22, 2002).

Thus, the D.C. Circuit has e ndorsed methodologies for setting the MACT floor other than selecting sources with the lowest emissions as the best performers. Consequently, Brick MACT does not endorse a straight emissions approach; nor could it. To do so would mean that the Brick MACT court was overturning the Chevron court holding in Sierra Club and Nat'l Lime and other cases – something that it cannot do. United States v. Lawrence , 471 F.3d 135, 141 (D.C. Cir. 2006) (one three-judge panel, does not have the authority to overrule an other three-judge panel of the court); National Council of Resistance of Iran v. Dept. of State , 251 F.3d 192, 198 (D.C. Cir. 2001) (panel has no power to overrule another panel's decision, even if it was inclined to do so); United States v. Kolter , 71 F.3d 425, 431 (D.C. Cir. 1995) (panel is bound by a prior decision even if does not agree with it). Acco rdingly, and also because the interpretation would contradict the legislative history from the 1990 CAA Amendments confer ence report discussed above, EPA should not read the parenthetical in the Brick MACT decision to equate those sources with the lowest emissions as th e best performers in a source ca tegory. In addition, and as a practical matter, those facilities identified by EP A as "lowest emitters " may not always be due to the changing chemistry of raw materials.

XIV. EPA Did Not Properly Consider Variability in Establishing The Proposed CISWI Standards

Pursuant to the MACT standa rd setting process in the CAA, EPA is required to set a MACT floor based on emission limitations that have alrea dy been achieved by the bestperforming 12% of existing sources. To evalua te the emission limits achieved by existing sources, EPA is required to develop methodologies for estimating the variability associated with all factors that impact a source's emissions, in cluding process, operati onal, and non-technological variables. See Nat'l Lime Ass'n v. EPA , 627 F.2d at 443. These factors may change on a frequent basis in relation to pri ce fluctuations and availability, such as fuel type, or may only change slowly over time, such as by operationa l decisions regarding waste management and product specifications. While courts have a ffirmed EPA's authority to choose a methodology-100- designed to estimate emissions in setting the MACT floor, the courts have also made clear that the Agency's method "must 'allow a reasonable inference as to the performance of the top 12 percent of units.'" Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855, 862 (D.C. Cir. 2001) (citing Sierra Club v. EPA , 167 F.3d 658, 663 (D.C. Cir. 1999). Accordingly, the Court of Appeals for the D.C. Circuit has stated that "E PA must show not only that it believes its methodology provides an accurate picture of the re levant sources' actual performance, but also why its methodology yields the required estimate." Cement Kiln Recycling Coalition , 255 F.3d at 862 (emphasis in original).

EPA has a clear policy of considering long-term vari ability when establishing enforceable emission rates. In considering appr opriate enforceable emissions rates in Prevention of Significant Deterioration (PSD) permits unde r the CAA, the Environmental Appeals Board has held that a permitting authority is not requir ed to set the Best Av ailable Control Technology "emissions limit at the most stri ngent emissions rate that has b een demonstrated" in practice by a facility using similar emission controls. In re Newmont Nevada Energy Investment , 12 E.A.D. 429, 441-42 (EAB 2005) (citing Kendall New Century Dev ., 11 E.A.D. 40, 53 (EAB 2003)). The Board has recognized the use of "safety factor[s]" in the calculation of permit limits to take into account both the variability and fluctuation in the expected pe rformance of pollution controls, and the fact that setting emissions limitations fo r one facility at the highest control efficiency demonstrated at another facility would make violations of the permit unavoidable. Id. at 442. (citing In re Masonite Corp. , 5 E.A.D. 551, 560 (EAB 1994)). As stated by the Board:

In essence, Agency guidance and our prior decisions rec ognize a distinction between, on the one hand, measured "emissi ons rates," which ar e necessarily data obtained from a particular facility at a specific time, and on the other hand, the "emissions limitation" determined to be BACT and set forth in the permit, which the facility is required to continuously meet throughout the facility's life. Stated simply, if there is uncontrollable fluctu ation or variabilit y in the measured emission rate, then the lowest measured emission rate will necessarily be more stringent than the "emissions limitation" that is "achievable" for the pollution control method over the life of the facility.

Id. For this reason, the policy and common se nse approach used by EPA in PSD permitting should also apply in estab lishing MACT standards.

EPA should not solely rely on short-term data from similar sources and ignore the variability and long term impact of the proposed emission rates. EPA has expressed caution regarding reliance on stack test an d short-term emissions data re sults to derive a MACT floor due to the variability in operati ng conditions at any f acility. In EPA's proposed rule to set a NESHAP for mercury at coal-fired electric utilities, the agency identified a number of factors that contribute to the variability in emission test data that must be c onsidered, including the (1) emission test method; (2) analytical method; (3) design of the unit and the control device(s); (4) operating conditions of the facility and the control device(s); (5) amount of constituent being tested in the fuel; and (6) composition of the constituents in the fuel or flue gases. Prop. Nat'l Emissions Stds for Haz. Air Pollutants fo r Electric Utility Steam Generating Units , 69 Fed. Reg. 4652, 4670 (Jan. 30, 2004). EPA should consider thes e factors in this rulemaking as well.-101- Furthermore, this policy and common sense approach is recognized and required by the D.C. Circuit. Once the "similar sources" category is established, the EPA must identify the lowest emission limitation that has been "achieve d in practice" by these sources. In another MACT case, the D.C. Circuit has held that th e phrase "achieved in practice" refers to the performance of the source "under the worst foreseeable circumstances." Sierra Club v. EPA , 167 F.3d 658, 664 (D.C. Cir. 1999). The Court stated:

EPA would be justified in setting the floor s at a level that is a reasonable estimate of the performance of the "best cont rolled similar unit" under the worst reasonably foreseeable circumstances . . .. It is reasonable to suppose that if an emissions standard is as stringent as "the emissions control that is achieved in practice" by a particular unit, then that particular unit will not violate the standard. This only results if "achieve d in practice" is interpre ted to mean "achieved under the worst foreseeable circumstances." In Nat'l Lime Ass'n v. EPA, 627 F.2d 416, 431 n. 46 (D.C. Cir. 1980), we said that wher e a statute requires th at a standard be "achievable," it must be achievable "unde r most adverse circumstances which can reasonably be expected to recur." Th e same principle should apply when a standard is to be de rived from the operating characteris tics of a particular unit.

Id; see also Mossville Environmental Action Now v. EPA , 370 F.3d 1232, 1242 (D.C. Cir. 2004) (noting that "even the best pe rforming sources occasionally have spikes"). EPA should follow its own common sense approach and the directiv e of the D.C. Circuit, and develop MACT standards that consider the long term emission variations in portland cement facilities. 23

XV. Conclusion

As EPA recognizes, this regulatory effort is highly technical and complex, and could drastically shape how cement is produced in th e United States and how much cement is imported from other countries. PCA appreciates the opportunity to comment on EPA’s Proposed CISWI Rule. However, because of the inaccuracy of the data on which EPA bases its proposal, cement manufacturers believe that EPA must issue a new proposal in order to promulgate a rule that complies with the CAA. PCA has pointed out seve ral major errors in EPA's proposal. Based on our review of the publicly-available record an d our own analysis of EPA’s data, PCA believes that the record contains too many flaws to issue a final rule based on the proposal. The current rulemaking denies the public an adequate opportunity to comme nt on the Proposed CISWI Rule to the extent that EPA action would be rendered ar bitrary and capricious. A final rule would also amount to an abuse of discretion and a breach of procedures required by law in violation of the CAA. In short, the current pr ocess lacks the transparency necessa ry to implement a final rule.

As explained in the body of the comments, PC A has identified several major flaws with respect to EPA's standard setting process that ultimately renders the current process a futile exercise. At the outset, the database does not include emissions data representing the full range

23 See also Attachment 6, which PCA filed in comments on EPA's December 1, 2008 Hospital/Medical/Infectious Waste MACT proposal . The paper, entitled "Implications of the Brick MACT Decision on EPA's Discretion in Setting MACT Floors," discusses variability at some length.-102- of materials that are being c onsidered "solid waste" under the companion Proposed RCRA Rule. For two-thirds of the best performing kiln and pollutant combinations, EPA has only one stack test, which provides no information on emissions variability. EPA has improperly used HCl emissions data collected using test methods th at have been disallowed by EPA. EPA has improperly based its floor analysis on individual test runs, rather than complete stack tests ( i.e., the average of 3 test runs), which EPA has said is improper in other MACT setting rulemakings. Also, the EPA data and floor analys is are so clearly inadequate an d fall so short of providing an adequate characterization of emi ssions from solid waste-burning kiln s, that EPA must restart the process of standards development.

Because of poor data, PCA had to guess and "back-calculate" many of EPA's proposed emissions limits and methods for determining su ch emission limits. Despite these hurdles, PCA was able to perform an accurate and correct analysis in an attempt to recommend alternative CISWI emission limitations. PCA calculated th e CISWI floors two different ways, noted as options A and B. The results of that exercise ar e summarized in a chart fo und on page four of the Executive Summary.

In addition to basic implementation issues outlined in the body of the comments, the Proposed CISWI Rule would also impose complianc e burdens on an industry that is crucial to speeding up the pace of economic recovery, as the nation attempts to emerge from the most severe recession since the 1930s. To comply w ith the Proposed CISWI Rule, the industry must invest at least $2 billion. This excludes potential spending by plants PCA estimates will be forced to close due to the inability to meet stan dards or due to the excessive financial burdens. The combination of the industry’s pre-existing financial commitment to provide a reliable and efficient supply of cement to the United States ’ market, coupled with sustained harsh economic and financial realities, and the need to comp ly with the Pre-publication Portland Cement NESHAP standards, may overwhelm the industry’s financial capability to comply the Proposed CISWI Rule. The increases in ce ment production costs could potentia lly lead to an overall cost to the construction industry of roughly $3 billion annually. Not only will these compliance burdens lead to potential job losses, but it will also cause production capacity to shift to other countries, which will exacerbate th e country’s trade balances.

The Proposed CISWI Rule constitutes bad pubic policy from an economic and environmental perspective. In addition to unde rmining economic recovery, the standards in the Proposed CISWI Rule would also undermine recycli ng of used tires and other scraps used as alternative fuels by cement manuf acturers. The cement industry is a large consumer of scrapped tires. With the potential par tial discontinued use of alternative fuels by the cement industry, scrapped tire stockpiles could increase to 586 million tires by 2025, compared to a baseline estimate of 110 million tires. PCA filed ex tensive comments strongly opposing many fundamental elements of that Proposed RCRA Rule. PCA believes the Proposed RCRA Rule – in combination with the Proposed CISWI Rule – would have a seriously negative impact on the beneficial reuse and recycling of non-hazardous secondary materials in the United States. Portland cement kilns use millions of tons of alternative fuels and ingredients annually in a manner that conserves virgin natural resources such as fossil fuels and mined materials. Yet our comments documented that the standards propo sed by the Proposed RCRA Rule would give portland cement kilns great incentives to avoi d CAA § 129 jurisdiction. Those kilns would accordingly cease engaging in these beneficial reuse practices. Massive amounts of non--103- hazardous materials now being beneficially reused and recycled would – as EPA recognizes in its proposed rules – end up being land-filled and/or burned. As a matter of law and policy, PCA does not believe that portland cement kilns shou ld be subject to the Proposed CISWI Rule.PORTLAND CEMENT ASSOCIATION

ATTACHMENT 1BOSTON BRUSSELS CHICAGO DETROIT JACKSONVILLE LOS ANGELES MADISON MIAMI MILWAUKEE NEW YORK ORLANDO SACRAMENTO SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SHANGHAI SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C. July 13, 2010

V IA E-M AIL AND U.S. M AIL ATTORNEYS AT LAW

WASHINGTON HARBOUR 3000 K STREET, N.W. SUITE 600 WASHINGTON, D.C. 20007-5109 202.672.5300 TEL 202.672.5399 FAX foley.com

WRITER'S DIRECT LINE 202.295.4021 rstoll@foley.com EMAIL

Scott C. Fulton, Esquire General Counsel U.S. EPA (2310A) Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Washington, DC 20460

Re: EPA’s Refusals to (1) Include Cr itical Data in Rulemaking Docket For Public Review and Comment a nd (2) Extend Comment Deadline – Proposed Clean Air Act “CISWI” Rule, 75 FR 31938, June 4, 2010

Dear Scott:

On behalf of my client the Portland Cement Association (PCA), I am writing to request that EPA immediately release records its personne l have refused to release supporting the abovereferenced “CISWI” proposal. Also, both PCA a nd one of its member companies (Lafarge North America Inc.) recently requested additional time to comment on the pending CISWI proposal and EPA personnel have denied PCA and Lafarge this extra time. I am requesting that EPA reconsider this denial in lig ht of the points made below.

Relevant Background to CI SWI and Related Proposals

EPA published four proposals in the J une 4, 2010 Federal Register, one under the Resource Conservation and Recovery Act (RCRA ) and three under the Clean Air Act (CAA):

(1) the RCRA proposal would define “solid waste” under RCRA Subtitle D (nonhazardous waste program) for purposes of deter mining which facilities might be regulated under CAA §129 (75 FR 31844);

(2) the Commercial and I ndustrial Solid Waste Incineration Units (“CISWI”) proposal includes proposed emission limits under CAA §129 fo r units that combust non-hazardous solid waste as will be defined by the new RCRA rule; several types of facilities, including PortlandFOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 2

cement kilns and utility and industry boilers would be regulated by the CISWI standards if they combust such waste (75 FR 31938);

(3) another proposal would impose new CAA § 112 hazardous air pollutant (HAP) limits on “major source” boilers (75 FR 32006); and

(4) the last proposal would impose new CAA § 112 HAP limits on “area source” boilers (75 FR 31896).

There are two separate and unrelated judicial proceedings in the background of these four proposals. First, in NRDC v. EPA , 489 F.3d 1250 (D.C. Cir. 2007), the D.C. Circuit vacated EPA’s CAA §129 rule on the grounds that EPA had improperly excluded from its coverage facilities that combusted certain types of solid waste. The first two proposals listed above constitute EPA’s response to that Court vacatur. Importantly, there is no deadline – court order, settlement agreement, or otherwise – for EPA to issue these two rules.

Second, in Sierra Club v. Jackson , 1:01CV01537 (D.D.C. 2006), Judge Friedman has entered orders that, among other things, comp el EPA to issue CAA §112 “HAP” standards for both major source and area source boilers. Under the most recently amended version of this order (attached), the judicial d eadline for final rules is December 16, 2010. This deadline applies to the third and fourth proposals outlined above, but not the first and second.

Request for Critical Missing Data

Under the proposed CISWI rule, Portland ceme nt kilns that combust solid waste would be subject to emission standards for several pollu tants. A summary of the proposed standards for existing sources appears at 75 FR 31945, Table 1. Note that EPA expresses most of the proposed standards either in the form of c oncentration limits (“ppmv,” meaning “parts per million by volume”) or (“mg/dscm” or “milligrams per dry standard cubic meter”). Note also that all proposed emission limits ar e “measured at 7% oxygen.”

As you know, setting emissions standards fo r a category of existing sources under CAA §129 involves establishing “floor” levels based upon the best perfo rming 12% of the sources in a category. As PCA and its member companies ar e attempting to evaluate EPA’s proposed “floor” levels for purposes of filing comments, they have run into a major roadblock.

Much of the emissions information upon wh ich EPA relied in developing its proposed standards came from data PCA member compan ies submitted in response to EPA’s requests under CAA §114. Much of this da ta reported emissions in the format of pounds-per-hour, and the companies did not in their submissions (as they were not asked to) convert the pounds-perhour information into comparable concentration le vels such as ppmv or mg/dscm. Moreover, theFOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 3

companies did not report (as they were not aske d to) the oxygen levels associated with the emission results.

In its standard-setting process, however, EPA converted these pounds-per-hour data into concentration levels at 7% oxyg en. Many of EPA’s “best 12%” comparisons are in fact based on these converted numbers and the 7% oxygen le vel. One cannot rationally convert pounds-perhour emissions data into a concen tration level without factoring in key variables associated with the emissions data from each company, such as ga s flow rates, oxygen levels, and specific heat consumption. EPA has thus far, however, withhe ld from the docket the figures it has used to perform its conversions for each pr oposed floor standard where such a conversion is necessary.

We have been informed (and as you will s ee below, EPA personnel ha ve confirmed) that this critical conversion information exists in EP A’s files in Excel spreadsheet form. After PCA contractors made several reque sts for the Excel files that would demonstrate how such calculations were made, however, an EPA staffer rejected PCA’s request in a July 2, 2010 e-mail as follows:

Unfortunately, since we are well into th e comment period and given the need to allow commenters equal access to all CISWI documents, the Agency's policy is to release only the information that is currently available through the docket center; the excel files that you are requesting have not been submitted to the docket.

The EPA staffer suggested that the contractor file a FOIA request for such information.

We object to EPA’s response in the stronge st terms. PCA and its members are being denied the ability to review and comment upon th e methods EPA utilized to make conversions that are at the heart of proposed standards that would apply to their facilities. There may be mathematical errors or erroneous assumptions imbedded in such conversions. But if the conversion information and calculations are not being revealed in the docket, no one can comment on them.

I understand that since EPA denied the PC A contractor’s request, an EPA staffer has been willing in an e-mail exchange with one of PCA’s member companies to explain how certain assumptions were “in general” ma de by EPA personnel in the conversion effort. Such an e-mail response is certainly well-intended. Such a pers onal e-mail discussing how EPA generally went about making its conversions cannot, however, serv e as a substitute for the agency’s obligation to reveal the details of its c onversion methods now in its files and how they were applied on a facility-by-facility basis to support its critical fl oor determinations. PC A and its members (and in fact all interested parties) are still being denied critical information supporting EPA’s proposed standards.FOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 4

EPA’s Refusal To Post the Excel Spreadsheet In the Docket Is Inconsistent With EPA’s Recent Actions

The fundamental logic of EPA’s refusal, to the extent we can understand it, appears to be that materials that have not been placed in the docket (for whatever reason) should not now be placed in the docket. But our review of the docket for the CISWI rulemaking on Regulations.gov (EPA-HQ-OAR-2003-0119) shows th at EPA has placed at least twenty new support documents in the docket in the last few days.

On July 2, 2010, EPA posted seven new documents to the CISWI docket, and on July 6, 2010, EPA posted thirteen new documents to the doc ket. A review of th e docket entries shows that each these 20 new documents focuses on data related to the CISWI “floor calculations.” Some related specifically to Portland cement kilns.

For example, here are the titles of just two of these twenty documents posted on July 6: “MACT Floor Calculations for Proposed Approa ch – Floor Analysis Cement Kilns;” “MACT Floor Calculations for Proposed A pproach – Data Variability Cement Kilns.” (I should note that none of these postings includes the Excel spr eadsheet that EPA has refused to release.)

The logic of EPA’s actions here frankly es capes us. We simply cannot understand how EPA can maintain on July 2 that it is too late to add a document to the docket that would show how EPA personnel made certain necessary calcula tions to support its floor calculations, even though EPA posted numerous other documents suppor ting these floor calculations on July 2 and July 6.

EPA’s Actions Violate the CAA

As I am sure you are aware, CAA §307(d)(3) requires EPA’s proposed rules to include a summary of the factual data on which the proposal is based, as well as “the methodology used in obtaining the data and in analyzing the data.” This CAA paragraph then provides that “all data, information, and documents referred to in this paragraph on which the prop osed rule relies shall be included in the docket on the da te of publication of the proposed rule.” It is obvious from the e-mail rejecting PCA contractor’s request that such data and information exists, yet EPA has refused to release it and put the material into the docket.

We also should remind you of a few passages from Portland Cement Association v. Ruckelshau s, 486 F.2d 375 (D.C. Cir. 1973), in which Judge Leventhal stated certain basic principles that became imbedded in CAA §307(d) and which have been cited approvingly in dozens of D.C. Circuit cases over the last few de cades. The D.C. Circuit ruled that there had been a “critical defect” in the rulemaking based upon the petitioner’s “initial inability to obtain – in a timely fashion” certain data. Id. at 392. In language directly applicable to EPA’s currentFOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 5

refusal to release its data showing how it deri ved it standards, the Court made the following observations:

Obviously a prerequisite to the ability to make meaningful comment is to know the basis upon which the rule is proposed.

. . .
It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, critical degree, is known only to the agency

. 1

. . .
In order that rule-making proceedings to determine standa rds be conducted in orderly fashion, information should generall y be disclosed as to the basis of a proposed rule at the time of issuance. If this is not feasible, as in case of statutory time constraints, information that is ma terial to the subject at hand should be disclosed as it becomes available . . . .

Id. at 393-94 (emphasis added).

Request for Extension of Comment Deadline

For this exceedingly complex CISWI rulema king, EPA initially established a comment deadline of 45 days. Soon after the June 4 Federal Register public ation, EPA extended the comment period by 15 days, until August 3, 2010. Both PCA and Lafarge soon thereafter requested an additional 30 da ys, until September 3, 2010.

In letters dated June 23, 2010 to both PCA and Lafarge, an EPA staffer denied the requests. Both rejection letters stated the following (emphasis added):

While EPA understands your concerns and appreciates your intent to provide substantive comments, we believe it is in the overall best interest to retain the existing comment period. In particular, EPA notes that it must take final action on the proposed CISWI rule by December 16, 2010, pursuant to a court order issued by the U.S. District Court for the District of Columbia.

1 Apparently the official Federal Reporter omitted the words “to a” immediately before “critical degree.”FOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 6

As I indicated above, the December 16, 2010 court order deadline simply does not apply to the CISWI rule. I have attached the Sierra Cl ub order in full, and now quote from the relevant portion of the order:

No later than May 14, 2010, EPA sh all promulgate emission standards assuring that sources accounting for not le ss than ninety percent of the aggregate emissions of each of the hazardous air po llutants enumerated in Section 112(c)(6) are subject to emission standards under sec tion 112(d)(2) or (d)(4). This deadline shall be extended until December 16, 2010 if:

a. no later than April 15, 2010, the Agency signs a notice of proposed rulemaking proposing emission standards for gold mining production processes and;

b. no later than April 29, 2010, the Agency signs a notice(s) of proposed rulemaking proposing (1) emissi on standards for industrial, commercial and institutional boilers and process heaters under section 112(d); and (2) emission standards for comme rcial and industrial solid waste incineration units under section 129.

Thus, the only deadline for a final rulemaking in this order relates to the CAA §112 standards for major and area source boilers mentione d at the beginning of this letter. The only reference to CISWIs in this order is contai ned in part (b) quoted immediately above, and it provides only that EPA’s obligation to issue final CAA §112 standards for boilers could be extended if EPA proposed CISWI standards by April 29, 2010.

We note that EPA was clear on this point when it released the four proposals. In the “fact sheets” for both the major source boiler and area source boiler proposals, EPA stated: “The schedule for completing this rule is part of a court order, which requires the EPA Administrator to complete a final rule by December 16, 2010.” In the “fact sheets” for the CISWI proposal and the RCRA definition proposal, EPA made no reference to this court order or deadline. All four “fact sheets” appear at http://www.epa.gov/airquality/combustion/actions.html

.
Finally, EPA may believe it needs to finalize the CISWI rule on the same track as the major and area source boiler rules under CAA §112, so that boiler owner/operators will be on notice as to which standards they will be subj ect to – either CAA §112 or §129 – depending upon whether they choose to burn solid waste. This concern is totally irrelevant with respect to Portland cement kilns, however.

There is absolutely nothing in any court decision or order that compels EPA to issue CISWI standards for Portland cement kilns by any particular date, or ev en to include Portland cement kilns in the same CISWI rulemaking that addresses boilers. Especially in light of EPA’s failure thus far to provide critical data rela ting to its proposed CISWI standards relating toFOLEY & LARDNER LLP
Scott C. Fulton, Esquire July 13, 2010 Page 7

Portland cement kilns, we belie ve EPA should now be extending the comment period on the CISWI rule (at least as it rela tes to Portland cement kilns) until at least September 3, 2010 as previously requested.

The fact that EPA has just posted 20 additi onal documents in the docket in the last few days provides additional support to our request for additi onal time. All of thes e documents relate to MACT floor calculations, and many of them relate in whole or in part to the floor calculations that would be applicable to PCA members. We note that these documents were placed in the docket more than a month after the deadline mandated by CAA §307(d)(3).

There Is No Legal Impediment to Delaying Final CISWI Rulemaking for Portland Cement Kilns

If acceding to our requests were to mean that the CISWI final rule would be “split” so that a final rule for Portland cement kilns were to follow a final rule for other CISWI units, there is no legal impediment whatever to this result. EPA has many times over the course of its history followed just such a path and finalized ce rtain portions of a proposed rule later than other portions. We are quite confident, in any event, that EPA’s continued failu re to provide the data from its files necessary for PCA and its member companies to provide meaningful comment on the proposed CISWI emission limits would be deemed reversible error in the D.C. Circuit.

* * * * * * * * * * * * *

We would appreciate your prompt attention to our requests. Please contact me at the phone number or e-mail addr ess indicated above if you have an y questions or need any further information.

Very truly yours,

Richard G. Stoll

Attachment

cc ( via e-mail): Ignacia S. Moreno, Esquire Letitia J. Grishaw, Esquire Richard B. Ossias, Esquire Ms. Gina A. McCarthyBOSTON BRUSSELS CHICAGO DETROIT JACKSONVILLE LOS ANGELES MADISON MIAMI MILWAUKEE NEW YORK ORLANDO SACRAMENTO SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SHANGHAI SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C. July 27, 2010

V IA E-M AIL AND U.S. M AIL ATTORNEYS AT LAW

WASHINGTON HARBOUR 3000 K STREET, N.W. SUITE 600 WASHINGTON, D.C. 20007-5109 202.672.5300 TEL 202.672.5399 FAX foley.com

WRITER'S DIRECT LINE 202.295.4021 rstoll@foley.com EMAIL

Scott C. Fulton, Esquire General Counsel U.S. EPA (2310A) Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Re: Proposed Clean Air Act “CISWI” Rule – 75 Fed. Reg. 31938, June 4, 2010

Dear Scott:

I am following up on the letter I sent you Ju ly 13, 2010 (copy attached) on behalf of my client the Portland Ceme nt Association (PCA) regarding th e above-referenced proposed “CISWI” rule under the Clean Air Act (CAA). In that letter I requested that EPA reconsider its refusals to (1) extend the public comment deadline for the pending CISWI proposal and (2) release an Excel spreadsheet that would show how EPA calcula ted proposed emission limits for Portland cement kilns. At this point, I have received no written response to my letter although (as explained further below) on July 16, 2010, my clients and I held a c onference call with EPA personnel to discuss the points I had raised.

In a notice published July 22, 2010 (75 FR 42676), EPA has (1) extended the public comment deadline for the CISWI proposal until Au gust 23, 2010, and (2) referred to certain Excel spreadsheets that have been “added to the docket. ” We appreciate the fact that EPA has extended the comment deadline by a short (20-day) peri od. EPA has, however, not released the Excel spreadsheets we were seeking.

At this point EPA’s intentions are unclear regarding those spreadsheets. Regardless of whether and when EPA might release those sp readsheets, however, we now raise a more fundamental point. As we have continued to delve into the issues surrounding the proposed CISWI rule and the current state of the record, we believe that a re-proposal is the only responsible way for EPA to proceed – at least for those portions of the CISWI rule that would be applicable to Portland cement kilns.

Not only are key Excel spreadsheets still unava ilable for our examination, but we are also continuing to find that the proposal suffers from inadequate and incomp lete data, errors in transcription, errors in calcula tions, and reliance on critical assu mptions that are undocumented inFOLEY & LARDNER LLP
Mr. Scott C. Fulton, Esquire July 27, 2010 Page 2

the record. Moreover, pivotal implementation issu es are simply unaddressed in the proposal. We will comment in detail on these basic deficiencies and omissions when we submit our written comments for the record.

Review of Time-Line

I will first briefly review the events leading up to and following my July 13 letter to you.

a. June 23. 2010 – EPA rejected PCA and Lafarge’s request for a CISWI comment deadline extension beyond August 3, citing a need to comp ly with a “court-ordered deadline” of December 16, 2010.

b. July 2, 2010 – EPA rejected PCA’s request for the Excel spreadsheets showing how EPA had made key conversion calculati ons to derive its proposed sta ndards. EPA cited the “courtordered deadline” as one reason. EPA made clear “t he excel files that you are requesting have not been submitted to the docket.”

c. July 2-6, 2010 – EPA added 20 support documents to the CISWI docket. PCA technical consultants have confir med that none of these documents re present the Excel spreadsheets EPA refused to release on July 2.

d. July 13, 2010 – I sent my letter to you protesting EPA’s denial of the Excel spreadsheets and arguing for more time to comment. My letter asserted (quoting from th e relevant court order) that the “court-ordered deadline” applies to two other pending proposed rules but not to the CISWI proposal.

e. July 16, 2010 – PCA representatives held a conference call with EPA OGC lawyers and OAQPS personnel. EPA personnel artic ulated a position that everythi ng PCA needed to evaluate and comment upon the proposed emission standards wa s available in the docket as of June 4, 2010 (the Federal Register publication date).

f. July 22, 2010 -- EPA published a Federal Register notice extending the CISWI comment deadline to August 23, 2010. EPA made these two a ssertions at the end of the notice (75 FR at 42677):

[1] – “At the time of publication of the proposed rules [June 4, 2010], the docket contained Adobe Ac robat(copyright) versions of the spreadsheets used in the MACT floor calculations, as well as associated memoranda describing in detail EPA’s calculation of the MACT floor for each proposed set of emissions standards.”

[2] – “Since the publication date, EPA has added to the docket the same spreadsheets in Excel format.”FOLEY & LARDNER LLP
Mr. Scott C. Fulton, Esquire July 27, 2010 Page 3

EPA’s Record Is Legally Deficient

As noted above, in our written comments ne xt month, we will elaborate in detail on numerous serious deficiencies in the proposed rule. As we will ex plain, the defici encies are so serious that EPA is legally required to re-propose a CISWI rule for Portland cement kilns based upon a record in the docket that will give PCA and ot her parties a technical, legal, and policy basis upon which to provide meaningful comment. For now, we will focus on one major deficiency: the failure to include all relevant supporting materials in the docket – both as of the date of Federal Register proposal, and even now.

Even though EPA states on its July 22 Federal Register notice (signed July 16) that it “has added to the docket” certain spreadsheets, our revi ew of the docket (which we are continuing to monitor on a daily basis) shows that no new support documents other than hearing transcripts have been added since July 6. Our technical consultants advise us that the materials added by July 6 do not include the missing spreadsheets, and our conference call with EPA personnel on July 16 confirmed that the Excel spreadsheets we were seeking had not at that time been added to the docket.

As explained in my July 13 letter to you, CAA §307(d) requires that a ll data and information upon which a proposed rule is based must be placed in the docket by the date the proposed rule is published in the Federal Register. Even if these missing spreadsheets are placed in the docket in the next few days, they will be placed there weeks later than required by the CAA. Time is now running short for PCA and its consultants to review th ese critical conversion calculations and have a meaningful opportunity to comment upon them. If EPA relies on documents “entered on the docket too late for any meaningful public comment” the “str ucture and spirit of sec tion 307 [will] have been violated.” Sierra Club v. Costle , 657 F.2d 298, 398 (D.C. Cir. 1981).

Both in EPA’s July 22 Federal Register noti ce and in our conference call of July 16, EPA personnel asserted that the record was complete as of the date of Federal Re gister publication. They also asserted that PCA had everything it needed in the record as of that date to evaluate and comment upon the basis of EPA’s proposed rule. We disagree.

First, as explained above, the Excel spreadsh eets that would show how EPA made critical conversion calculations remain unreleased. Second, EPA added twenty support documents to the docket with certain information on how MACT floor s were calculated several weeks after June 4. This certainly calls into question the assertion that everything that was needed was in the docket June 4.

Our technical consultants assure us that as of June 4, the docket simply did not contain sufficient material for them to discern how EP A had developed its propos ed standards. EPA’s claims of sufficiency appear to be based upon a theory that if someone knew where to look, and could do some sort of “reverse engineering” by assuming EPA staff and contractors’ thought patterns, one might be able to di vine EPA’s methods. This falls fa r short of the requirements of theFOLEY & LARDNER LLP
Mr. Scott C. Fulton, Esquire July 27, 2010 Page 4

CAA and the Administrative Procedure Act, howev er. “A notice of proposed rulemaking must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully.” See Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA , 372 F.3d 441, 445 (D.C. Cir. 2004)).

Even if all the data required to recreate EPA’s calculations were somehow discoverable within the docket, that information could be stre wn throughout any of the sixty-five (65) supporting materials currently posted. Asking PCA to guess at the data EPA examined, to try and recreate EPA’s methodology, and to discover the basis of EPA’s proposed standards is exactly the kind of “hunt the peanut” exercise the D.C. Circuit has strongly disapproved. Connecticut Light and Power v. NRC , 673 F.2d 525, 530-31(D.C. Cir. 1982). As the C ourt explained, “[i]f the notice of proposed rule-making fails to provide an accurate picture of the reasoning that has led the agency to the proposed rule, interested partie s will not be able to comment meaningfully upon the agency's proposals.” Id. at 530, emphasis added.

The Alleged “Court-Ordered Deadline”

In my July 13 letter, I quoted from and atta ched the “court order” EPA claims compels issuance of a final CISWI rule by December 16, 2010. Sierra Club v. Jackson , 1:01CV01537 (D.D.C. 2006). I showed how the order compel s issuance of regulations under CAA § 112 (for major source and area source boilers) by that date , but does not compel issuance of final CISWI standards by any date. I also showed how, wh en EPA issued the “fact sheets” for the four companion proposals published on June 4, 2010, the fact sheets for the two boiler rules stated that they were required by the Sierra Club order whereas the fact sheet for the CISWI rule made no such claim.

We continue to maintain that the current court order does not compel EPA to issue final CISWI rules applicable to Portland cement kilns by December 16, 2010 – or by any date. In a conversation with EPA personnel, we were told that EPA believes it is in effect obligated to issue the CISWI standards by the court-ordered deadline becau se of the reference to CAA § 112(c)(6) in the order.

More particularly, the order requires EPA to “promulgate emission standards assuring that sources accounting for not less than ninety percen t of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under section 112(d)(2) or (d)(4).” As we understand it, even though the order (and CAA § 112(c)(6) itself) refers only to CAA §112 standards and not CAA § 129 standards, EPA believes it can satisfy this 90 percent requirement if it is allowed to take credit fo r sources covered by CAA § 129 standards.

We express no opinion at this time as to whether this is a sustainable interpretation of the plain words of CAA § 112(c)(6). Even assuming fo r purposes of argument that this interpretationFOLEY & LARDNER LLP
Mr. Scott C. Fulton, Esquire July 27, 2010 Page 5

might be sustained, we can find nothing in the CISWI proposed rulemaking preamble or the RIA accompanying it – or even the two companion boiler MACT proposed rulemaking preambles or the RIAs accompanying them – that purports to explain how and why coverage of CISWI sources is necessary to meet the ninety percent requirement.

The CISWI preamble discusses CAA § 112(c)(6) at some length at pp. 31969-70. In this discussion, EPA explains how and why it believes it can take credit for CISWI sources under this subsection, and EPA explains how certain of the proposed CISWI standards will provide controls over the seven pollutants cove red by CAA § 112(c)(6).

EPA does not, however, include any finding or claim that its coverage of CISWI sources through this proposed rule will re sult in achievement of the 90 percent requirement. Similarly, EPA includes detailed discu ssion of CAA § 112(c)(6) requirements in both of the proposed CAA § 112 boiler rules proposed along with the CISWI proposal. See 75 FR 31898 (June 4, 2010) (area sources) and 75 FR 32008 (June 4, 2010) (major sources).

Once again, EPA includes no claim or finding in these proposed rules that it will achieve the 90 percent mandate by accounting for CISWI source coverage. Interestingly, EPA disclaims the need to regulate CISWIs to reach the 90 percent requirement for mercury: “based on the information we have learned to date as we are developing standards for vari ous source categories, such as [CISWI among others] we believe that we only need coal-fired area source boilers to meet the 90 percent requirement set forth in section 112(c)(6) for mercury.” Id. at 31904-105, emphasis added.

Following fundamental rulemaking precepts, we would think that if EPA were taking the position that its coverage of CISWI units some how put it “over the top” on the 90 percent requirement of the court order a nd the statute, the proposed rules would explain this, provide the data, calculations, and information to support the conclusion, and allow for comment on the conclusion and its supporting data . Again, we have found nothing in the three proposed rule preambles or the RIAs supporting them in which EPA attempts to explain (or assert) this conclusion.

A Court-Ordered Deadline Does not Relieve the Agency of its Rulemaking Obligations

Assuming solely for purposes of argument that the current court or der could somehow be interpreted to require issuance of CISWI rules by December 16, 2010, this deadline would in no way cure the significant legal deficiencies of the cu rrent proposal regarding Portland cement kilns. It should be obvious that EPA cannot claim that a court-ordered deadline excuses it from complying with notice-and-comment rulemaking requirements under the CAA and APA. See, e.g.

, American Mining Congress v. EPA , 907 F.2d 1179, 1191 (D.C. Cir. 1990) (“a court order cannot excuse [EPA’s] obligation to engage in reasoned decisionmaking under the APA”).

Furthermore, it has been quite common over the years for EPA to seek and obtain extensions to court orders to allow sufficien t time to conduct responsib le and legally-defensible rulemaking. InFOLEY & LARDNER LLP
Mr. Scott C. Fulton, Esquire July 27, 2010 Page 6

fact, in the very case that EPA claims requires promulgation of the CISWI rule by December 16, 2010, EPA has obtained seven extensi ons of various deadlines relate d to the required rulemaking
process. See , in reverse chronological order, Sierra Club v. Jackson , No. 1:01CV01537 (D.D.C. Apr. 13, 2010) (order), No. 1:01CV01537 (D.D .C. Sept. 10, 2009) (order), No. 1:01CV01537 (D.D.C. June 30, 2009) (order), No. 1: 01CV01537 (D.D.C. Nov. 13, 2008) (order), No. 1:01CV01537 (D.D.C. Sept. 19, 2008) (orde r), No. 1:01CV01537 (D.D.C. Nov. 15, 2007) (stipulation), and No. 1:01CV01537 (D .D.C. Oct. 17, 2006) (order).

Conclusion

We continue to protest EPA’s failure to release to the docket the Excel spreadsheets that have been thus far withheld. And for all the foregoing reasons (which will be expanded and elaborated upon in our written comments), we urge EPA to su spend work on the current proposed CISWI rule as it applies to Portland cement kilns and develop a re-proposal for public comment.

Very truly yours,

Richard G. Stoll

Attachment

cc ( via e-mail): Ignacia S. Moreno, Esquire Letitia J. Grishaw, Esquire Richard B. Ossias, Esquire Wendy L. Blake, Esquire Susmita Dubey, Esquire Ms. Gina A. McCarthyPORTLAND CEMENT ASSOCIATION

ATTACHMENT 2PORTLAND CEMENT ASSOCIATION

ATTACHMENT 3Page 1 of 72 August 3, 2010

Docket ID Number EPA

- HQ

- RCRA

- 2008

- 0329 FRL

- 9148

- 2; RIN 2050

- AG4

Mail Code: 28221T 1200 Pennsylvania Avenue, NW Environmental Protection Agency Washington, DC 20460

RE: Notice of Proposed Rulemaking

– “Identification of Non

- Hazar dous Secondary Materials That Are Solid Waste” (75 Fed. Reg. 31844 et seq ., June 4, 2010)

To Whom It May Concern:

The Portland Cement Association (PCA) is a trade association representing portland cement manufacturing companies in the United States and Canada. PCA’ s U.S. membership consists of 28 portland cement companies operating 102 manufacturing plants in 34 states and distribution center s in all 50 states . PCA m embers account for more than 97.5 percent of p ortland cement

- making capacity in the United States

.
In the Federal Register of June 4, 2010, EPA published two companion notices of proposed rulemakings (NPRMs) of great significance to PCA members. The first EPA NPRM is referenced above and is the subject of the comments we are su bmitting today. In this first NPRM, EPA is proposing to add a new “Part 241” to its regulations for non

- hazardous solid waste under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § § 6901, et seq

.
EPA’s second NPRM, published at 75 Fed. R eg. 31938, et seq . is issued pursuant to Section 129 of the C lean Air Act (CAA), 42 U.S.C. § 7429. In that NPRM, EPA proposes emission standards and other requirements under CAA § 129 for “Commercial and Industrial Solid Waste Incineration Units,” or “CIS WIs.” EPA has recently extended the deadline for public comments on the CA A CISWI proposal until August 23 , 2010, and PCA will be submitting comments on the CISWI proposal at that time.

As will be explained in greater detail below, the two proposals are linked in a manner of g reat potential significance to p ortland cement manufacturing facilties. For even though a p ortland cement kiln is not an “inci nerator,” under EPA’s proposal p ortland cement kilns will be subject to the new CAA § 129 incinerator sta ndards whenever any kiln “combusts” a non

- hazardous secondary material that EPA defines as “solid waste” in this “Part 241” RCRA rulemaking.Page 2 of 72 We appreciate the opportunity to provide comments on the important questions related to this proposed rulemaking b y the Agency. We look forward to work ing with the Agency as consideration of these issues continues. Please do not hesitate to contact us should you have any questions regarding PCA’s perspectives on this matter. We can be reached at (202) 408

- 9494.

Best Regards,

Andrew T. O’Hare Vice President Regulatory Affairs

500 New Jersey Avenue, N.W., 7 th Floor Washington, DC 20001 202.408.9494 Fax 202.408.0877

www.cement.orgPage 3 of 72 Please ref er to the following outline for key arguments raised in PCA’s comments:

CONTENTS

Opening

................................ ................................ ................................ ................................ ................. 1

I. BACKGROUND

................................ ................................ ................................ ..................... 6 A. The Portland Cement Industry and Its Use of Non

- Hazardous Secondary Materials

................................ ................................ ................................ ...................... 6 B. Statutory and Judicial Background to Proposed Rule

................................ ............ 8 C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts Could Be Severe

................................ ................................ ................................ .......... 8 D. The Potentially Damaging Impacts on PCA’s Members

................................ ....... 10 E. A Portland Cement Kiln is Not a Boiler or Incinerator

................................ ........ 10

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A SUMMARY

................................ ................................ ................................ ........................... 11

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY MATERIALS AS INGREDIENTS UNDER CAA 129

................................ ..................... 12 A. Plain words of statute

– “combust”

................................ ................................ ......... 12 B. Legislative History

................................ ................................ ................................ .... 13 C. EPA’s Own Word Usages

................................ ................................ ......................... 14

IV. NOTHING IN THE D.C. CIRCUIT’S 200 7 NRDC OPINION, OR IN ANY OF THE RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS THE SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE INGREDIENTS

................................ ................................ ................................ ..................... 15 A. Energy Recovery the Only Focus

................................ ................................ ............ 15 B. Rulemaking Preceding the 2007 NRDC Opinion

................................ ................... 15 C. The NRDC Briefing and Opinion

................................ ................................ ............ 16 D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients

............ 17

V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED DECISIONMAKING

................................ ................................ ................................ ........... 18 A. Supreme Court “State Farm” and D.C. Circuit Precedent

................................ .. 18 B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals

.......... 19 1. Rationale for Subtitle C DSW Approach

................................ ........................ 19 2. The Subtitle C DSW Approach Was Never Intended to Apply to Non

Hazardous Materials

................................ ................................ ....................... 20 C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D Solid Waste Definition Without Justification

................................ ........................ 20 D. EPA’s Proposal Would Impose Unjustified Barriers to Recycl e and Reuse

....... 21Page 4 of 72 E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary and Inappropriate

................................ ................................ ................................ ............ 22

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT FUNDAMENTAL FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL

....... 24 A. The Portland Cement Industry’s History of Beneficially Using Whole Scrap Tires

................................ ................................ ................................ ................. 24 B. The Proposal Will Strongly Discourage Portland Cement Kiln Utilization Of Used Tires With No Resulting Benefits to Health and the Environment

....... 26 C. EPA’s Interpretations of “Discard” and “Processing” Are Misguided and Harmful

................................ ................................ ................................ ...................... 28 1. Discard

................................ ................................ ................................ ............ 28 2. Processed

................................ ................................ ................................ ......... 30 D. EPA’s Importation of “Legitimacy Criteria” from RCRA Subtitle C is Unwarrantedand Unproductive, Particularly as Applied to Portland Cement Kilns.

................................ ................................ ................................ ............ 32 E. Used Tires Should Be Re cognized as “Traditional Fuels”

................................ .... 34

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND ARBITRARY

................................ ................................ ................................ ........................ 35

VIII. PCA’S RESPONSES TO SPE CIFIC REQUESTS FOR COMMENT AND INFORMATION IN EPA’S PREAMBLE

................................ ................................ ......... 40 A. Additional Information on non

- hazardous secondary material (“NHSM”), Federal Register page 31850.

................................ ............................... 40 B. Information on Additional Traditional Fuels, Federal Register page 31856.

................................ ................................ ................................ .......................... 41 C. Petition Process for Designating Traditional Fuel, Federal Register page 31856

. ................................ ................................ ................................ .......................... 45 D. Definition of Processing, Federal Register pages 31861, 31876, 31878

. ............... 45 E. Additional Information on Levels of Contaminants, Federal Register page 31863.

................................ ................................ ................................ ................. 48 F. Sewage Sludge Approach, Federal Register page 31866.

................................ ...... 49 G. CCR Ingredient or Fuel Value, Federal Re gister page 31868

. ............................. 50 H. Coal Combustion Residual Contaminant Changes, Federal Register page 31869

. ................................ ................................ ................................ .......................... 50 I. Levels of Contaminants in Fu els, Federal Register page 31872.

.......................... 51 J. Record Maintenance and Notification, Federal Register page 31874.

................. 52 K. Inventory Management, Federal Register page 31874.

................................ ......... 52 L. Discard Definition for Newly Generated Tires, Federal Register pages 31874.

................................ ................................ ................................ .......................... 53 M. Metal in Tires

- pr ocessing Definition, Federal Register page 31877

- 78.

.............. 55 N. Processing

- Determination Versus Self Implementing Approach, Federal Register page 31878

- 31879

. ................................ ................................ ...................... 56 O. Non

- waste Determination, Federal Register page 31880

. ................................ ..... 58 P. Storage Timeframes, Federal Register page 31880

- 31881.

................................ ... 59 Q. Definition of “Contained”, Federal Register page 31881.

................................ ..... 60Page 5 of 72 R. Btu Limit, Federal Register page 31882.

................................ ................................ 62 S. Scope of Co ntaminants, Federal Register page 31883

. ................................ .......... 63 T. Bright

- line Level of Contaminants, Federal Register page 31883

. ....................... 65 U. Comparison of Tot al Constituents, Definition of “Comparable” Federal Register page 31883

. ................................ ................................ ................................ . 66 V. Qualitative Comparison (Emissions), Federal Register page 31883

. ................... 66 W. Useful Contribution, Federal Register page 31884.

................................ ............... 67 X. Contaminant Comparison

- Ingredients, Federal Register page 31885

. ................ 68 Y. Alternative Approach, Federal Register page 31886.

................................ ............ 68

IX. CONCLUSION

................................ ................................ ................................ ..................... 69

LIST OF Attachments to PCA’s Comments

................................ ................................ ....................... 71Page 6 of 72 I. BACKGROUND

A. The Portland Cement Industry and Its Use of Non

- Hazardous Secondary Materials

As a preliminary matter, in order for EPA to understand and apprec iate PCA’s concerns with the proposed rule, EPA fi rst needs to understand how p ortland cement manufacturers make beneficial use of secondary materials in their manufacturing operations.

Portland 1 cement is the powder that acts as the glue or bonding agent that, when mixed with water, sand, gravel and other materials, forms concrete. Portland cement is produced from various naturally abundant raw materials, including limestone, shale, clay, and silica sand. The four key elements in cement making include calcium, iron, silica and aluminum. Portland c ement is an essential construction material and a basic component of our nation’s infrastructure. It is utilized in numerous markets, including the construction of highways, streets, bridges, airports, mass transit systems, commercial and residential buil dings, dams, and water resource systems and facilities. The low cost , durability, and universal availability of p ortland cement ensure s that concrete remains one of the world’s most essential and widely used construction materials.

PCA’s member companie s support efforts to increase our nation’s use of safe and compatible energy efficient alternative fuels and raw materials in order to reduce reliance on fossil fuels and virgin materials

. Indeed, o ur member companies are lead ers in the effort to be respo nsible stewards of our Nation ’s energy and natural resources by , among other things, combining advanced technology and innovative manufacturing practices

. PCA’s members continue to be at the forefront of sustainable industrial ecology, under taking volunta ry efforts to reducing waste disposal through the use of scrap tires, used motor oils, p etroleum sludge and other reusable materials as alternative fuels and raw materials in the production of cement. Indeed, the environmental benefits of these efforts we re chronicled in a recent study underwritten by EPA’s Office of Policy, Economics, and Innovation’s Sector Strategies Division. 2

Some PCA members burn “hazardous waste fuel” (HWF) as a replacement for fossil fuels at one or more of their p ortland cement manufacturing f acilities. HWF

- burning is fully regulated under the hazardous waste “cradle

- to

- grave” regime of RCRA Subtitle C. HWF

- burning kilns are also subject to Clean Air Act (CAA) maximum achievable control technology (“MACT”) emission control requ irements codified at 40 C.F.R. Pa rt 63, S ubpart EEE. HWF is being utiliz ed as an alternative fuel at eleven p ortland cement manufacturing facilities in the U.S.

At a far greater number of facilities, p ortland cement companies are using non

- hazardous

se condary materials as a replacement for traditional materials used in the manufacturing process.

1 “Portland cement” is not a brand name. It is a generic term used to descri be a specific type of cement. 2 Cement Sector Tren ds in Beneficial Use of Alternative Fuels and Raw Materials, Revised Draft October 2008, included as Attachment K, posted on EPA’s website at http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html.Page 7 of 72 Non

- hazardous secondary materials are being used both as ingredients and fuels. These manufacturing facilities (like all p ortland cement manufacturing facil i ties that do not utilize HWF), are subject to comprehensive CAA MACT standards codified at 40 C.F.R. part 63, subpart LLL.

As EPA recognizes in the NPRM, p ortland cement manufacturers’ use of non

- hazardous secondary materials conserves virgin non

- ren ewable raw materials and fuels and provides great benefits to the environment

. One of the principal benefits is an opportunity to reuse materials that would otherwise be discarded. This type of recycling not only reduces the pollution and energy

necessar y to extract virgin materials, but (as explained further below) can also reduce air pollution such as greenhouse gases and other conventional pollutants from the p ortland cement manufacturing
process.

Many cement plants are capable of beneficially util izing a wide range of non

- hazardous secondary materials including both alternative ingredients and fuels. PCA estimates that in the U.S., over 12 million tons of non

- hazardous secondary materials are used annually by the cement industry. Among common alt ernative ingredient materials , which contain one of more of the four essential cement ingredients, include foundry sand, mill scale, and steel furnace slag. Among alternative fuels, scrap tires provide the best example, due to the industry’s long

- standing use of this secondary material. Over 40 percent of U.S. cement plants have invested in technology to use scrap t ires as an alternative fuel to coal. In the United States, where more than 300 million scrap tires are generated annually, p ortland cement pl ants use more than 50 million tires a year

– thereby diverting those materials from landfills.

As explained in more detail in Section VI below, t he environmental benefits of utilizing scrap tires as a supplemental fuel in the p ortland cement manufactur ing process are multifold. When whole tires are combusted in cement kilns, the steel belting becomes a component of the clinker, an intermediate product, replacing some or all of the iron required by the manufacturing process. Pound for pound, tires have more fuel value than coal and the use of tires as fuel can actually reduce certain emissions. EPA states that tire

- derived fuel contains about the same amount of energy as oil and 25 percent more energy than coal. This means that each ton of tire derived fuel used by a p ortland cement plant has the potential to replace 1.25 tons of coal. This practice reduces impacts of coal mining, processing, and transportation and reduces the industry’s greenhouse gas emissions. Moreover, tires contain biogenic materi als and thus when combusted are carbon neutral for that biogenic portion.

Additional background on the benefits associated with these practices is described in PCA’s comments on the “Advance Notice of Proposed Rulemaking” (ANPRM) EPA published on January 2, 2009 as a pre

- cursor to the instant proposal (74 Fed. Reg. 41 et seq .). PCA’s ANPRM comments also attach several EPA and industry studies and reports demonstrating such benefits. PCA’s ANPRM comments appear in the docket for this rulemaking at EPA

- HQ

- RCRA

- 2008

- 0329

- 0352.1[1] and are incorporated into these comments by reference.Page 8 of 72 B. Statutory and Judicial Background to Proposed Rule

Section 129 of the Clean Air Act (CAA) directs EPA to issue emission standards for “solid waste incineration units.” The statute defines such units as those that “combust any solid waste material” from commercial or industrial units. The CAA does not define “solid waste”

– rather it provides that “sol id waste” for purposes of CAA § 129 is to be “established by the Adm inistrator” under RCRA. CAA § 129(g).

As EPA explains on p age 31848 of its preamble , the instant proposal is prompted by the Court’s decision in NRDC v. EPA , 489 F.3d 1250 (D.C. Cir. 2007) (“ NRDC ”) . In that case, the Court rejected EPA’s regulations is sued under CAA § 129. No RCRA regulations were at issue in that

case.

In EPA’s CAA § 129 regulations that were under judicial review in NRDC , EPA had provided that certain types of facilities would be exempt from regulation as CAA § 129 units if the uni ts combusted solid wastes of certain types for certain purposes. The Court rejected EPA’s rules, holding that the CAA unambiguously provided that “any” facility that combusted “any” solid waste

– regardless of the purposes of the combustion

– must be regu lated under CAA § 129.

EPA is now undertaking to define “solid waste” under RCRA for purposes of determining which units will be subject to CAA § 129. Nothing in the NRDC case guides or restrains EPA’s discretion in this RCRA rulemaking, for the issue of how the Administrator may define “solid waste” under RCRA was simply not before the Court in NRDC

.
RCRA defines “solid waste” as being:

[A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution co ntrol facility and other discarded material . . . resulting from industrial, commercial, mining, and agricultural operations, and from community activities . . .

RCRA § 1004(27).

C. The Proposed Rule’s Scope Under RCRA is Narrow, But Its Impacts Could Be Severe

We should make clear at the outset what is at issue in the instant rulemaking and what is not at issue. First, EPA has no constraints placed on it by the 2007 NRDC case. While the D.C. Circuit held that any facility that combusts anything tha t EPA defines as “solid waste” under RCRA regulations must be regulated under CAA § 129, the Court’s opinion did not in any manner speak to how EPA should go about defining “solid waste” under RCRA. EPA is thus left with discretion to determine through th is rulemaking that, to effectuate the purposes of RCRA, some materials will not be deemed “solid wastes” when they are combusted in CAA § 129 units.Page 9 of 72 Second, the scope of EPA’s proposal is, consistent with the scope of the Court’s vacatur in NRDC , actuall y quite narrow in the context of the overall administration of RCRA. EPA is not proposing to define “solid waste” for general purposes of its (and the States ’ ) solid waste management programs under R CRA Subtitle D. Neither is EPA proposing to amend its d efinition of solid waste for Subtitle C hazard ous waste purposes (40 C.F.R. § 261.2).

Rather, the narrow purpose of the proposed regulations is stated quite clearly in the regulatory provisions of the proposed rule. In the proposed new Part 241 to the C.F.R., Subpart B would be entitled:

Identification of Non

- Hazardous Secondary Materials That Are Solid Wastes When Used As Fuels or Ingredients in Combustion Units

75 Fed. Reg. 31892 ( emphasis added )

.
Similarly, proposed § 241.3, the regulatory secti on that includes the proposed provisions for making such identifications, is entitled:

Standards and procedures for identification of non

- hazardous secondary materials that are solid waste when used as fuels or ingredients in combustion units

.

Id

., ( emp hasis added )

.
And the operative language in the proposed rule leads with the following:

The following non

- hazardous secondary materials are not solid wastes when combusted : . . .

Pro posed § 241.3(b) ( emphasis added )

.
Moreover, the proposed regulat ory language is clear that material determined to be (or not to be) a solid waste when combusted is solely within the context of determining whether a uni t will be regulated or not under CAA § 129. See proposed § 241.1.

Accordingly, a material that EPA may declare through this rulemaking not to be a solid waste when combusted fo r purposes of determining CAA § 129 applicability may still be considered and regulated as a solid waste for other purposes under State or federal regulations. For instance , assu me EPA were to follow PCA’s recommendations below and structure its Part 241 rules so that whole scrap tires used as fuel in p ortland cement kilns are not a solid waste when combusted. This would

not affect the ability of States to classify and regulate t hose scrap tires as solid wastes under their own solid waste laws or under RCRA Subtitle D for purposes of generation, transportation, taxation, management standards, or any other purpose. As EPA states in its preamble:Page 10 of 72 CAA Section 129 states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste Disposal Act.” Id . at 7429(g)(6). Accordingly, the state’s definitions of solid waste would not be applicable in determining whether the section 129 standards apply. . . . Likewise, non

hazardous secondary materials that are exempted from being a solid waste by EPA's proposed rule, if finalized, would be exempt from the CAA section 129 standards, even though the state standards may define the non

- haza rdous secondary material as a solid waste.

74 Fed. Reg. 31888 ( emphasis added )

.

D. The Potentially Damaging Impacts on PCA’s Members

As explained in the immediately preceding section

, the fact that EPA might provide in the Part 241 regulations that a who le tire is not a solid waste when combusted in a CISWI unit would not in any manner impede a State’s ability to regulate whole tires as solid wastes if they are placed in a landfill or managed in any other manner. T he only issue in this rulemaking is what materials, when combusted in certain types of units, will trigger the applicability of CAA § 129. While this issue is quite narrow in the overall scheme of the RCRA program , it is of profound significance to PCA’s members.

The problem lies in the bas ic fact that facilities will have strong incentives to avoid combusting materials that would subject them to regulat ion as incinerators under CAA § 129. EPA recognizes this in its proposed CISWI preamble. See 75 Fed. Reg. 31965

- 66. Many p ortland cement facilities would be unable to meet the CISWI emission standards that EPA has proposed for “existing” sources for one or more parameters without undertaking retrofits with enormous costs that could not be justified. More importantly, the CISWI standards fo r “new” sources

– which would also be applicable to “modified” sources

– are so excessively stringent that no facility can meet them on a continuous basis. Because p ortland cement kilns could through many types of necessary operational changes be deemed “modified” and thus trigger applicability of the “new source” standards, p ortland cement kilns would have no rational choice but to avoid combusting those materials EPA declares to be “solid wastes” in the part 241 rule. This would be most unfortunate ind eed, as explained throughout these comments.

E. A Portland Cement Kiln is Not a Boiler or Incinerator

As demonstrated below (Parts III and IV), in enacting CAA § 129, Congress was focused exclusively on “incinerators.” Incinerators burn waste materials so lely for the purposes of destruction. They do not use “ingredients,” and they make no product.

Moreover, in all the rulemaking and litigation that prompted this proposed rule

– culminating in the NRDC case discussed in part I(B) above

– EPA, the parti es, and the Court were focused exclusively on incinerators and boilers. Like incinerators, boilers do not use “ingredients.” UnlikePage 11 of 72 incinerators, boilers may burn waste materials for energy recovery purposes. But the only product they make is steam, and the steam that they make never comes in contact with the fuel they burn.

A p ortland cement kiln is significantly different from an incinerator or a boiler in key respects. First, it is one type of “industrial furnace” which, unlike boilers and inc inerators, make a marketable product. All materials that are placed in the kiln

– including fuels

– come into mutual contact in the manufacturing process. The product the kilns produce must meet strict quality standards. EPA’s RCRA regulations have lon g recognized these key distinctions among industrial furnaces, boilers, and incinerators. See 40 C.F.R. § 260.10.

Despite the fact that there was absolutely no issue with p ortland cement kilns producing ingredients in the development of CAA § 129 or the rulemaking and litigation leading to this rulemaking, p ortland cement kilns have been included in this proposal in a manner that could have very adverse impacts on kilns’ ability to use non

- hazardous materials beneficially. As will be explained further b elow, a significant flaw in the proposal i s its failure to recognize key differences between p ortland cement kilns as compared to incinerators and boilers.

For instance, whole tires (un

- shredded and without metal removed) serve as a useful and bona fide fuel and ingredient in p ortland cement kilns but not in boilers or incinerators. And “legitimacy criteria” for non

- hazardous materials that might possibly be appropriate for boilers and incinerators cannot properly be applied to furnaces that are in busin ess to make a quality product.

We will explain these points further throughout these comments. We urge EPA to recognize, however, just as its regulations have long provided, that key differences in these types of units require distinctions in the way th ey are controlled.

II. SIGNIFICANT AND FUNDAMENTAL FLAWS IN THE PROPOSAL: A SUMMARY

We now turn to our attention to the current proposal. There is a bottom

- line message that will resonate throughout these comments :

I

n imple menting RCRA , EPA must balan ce the statute’s two primary goals of (1) protecting human health and the environment and (2) encouraging reuse and recycling. The second goal is particularly critical in the Subtitle D context. Yet EPA openly recognizes that its proposal, coupled with t he proposed CISWI rule, would result in the landfilling of great volumes of non

- hazardous secondary materials now being beneficially reused. EPA has not attempted to justify its anti

reuse/ recycling proposal on grounds that such an approach is necessary t o protect human health and the environment. As EPA clearly has discretion under RCRA and the case law to structure its Subtitle D proposal in a manner that would promote reuse and recycling without impairing health and environmental protection, EPA ’s prop osal as applied to p ortland cement kilns is fatally arbitrary and capricious and a failure of reasoned decision making.Page 12 of 72 In Section III below, we explain why, as a legal matter, EPA has no authority under CAA § 129 to regulate the use of secondary mater ials as ingredients. In Section IV, we show that nothing in the rulemaking proceedings or the case law leading to this proposal contained any hint that regulation of ingredients was ever at issue. In Section V, we explain why we believe the proposal repr esents a failure of reasoned decisionmaking.

In Section VI, we focus on the proposal’s treatment of waste tires as the prime example of its numerous fundamental flaws, and show how EPA’s approach to key concepts such as “discard,” “processing,” and “le gitimacy criteria” as applied to p ortland cement kilns are unnecessary and unsupportable. In Section VII we show how EPA’s assessment of the costs and benefits of this proposal are flawed. In Section VIII we will respond to specific issues on which EPA h as solicited comment in its preamble.

III. EPA HAS NO AUTHORITY TO REGULATE USE OF SECONDARY MATERIALS AS INGREDIENTS UNDER CAA 129

A. Plain words of statute

– “combust”

The purpose of the RCRA part 241 proposal is to identify materials that would be deemed

“ solid wastes” for purposes of triggering CAA § 129 jurisdiction. See 75 Fed. Reg. 31892 (proposed § 241.1)

.

EPA’s CAA § 129 authority is limited to “solid wast e incineration units,” which the statute defines as units that “combust” solid waste. CAA § 1 29(g)(1). This statutory definition does not say EPA can regulate units that “treat” solid waste (as provided in RCRA Subtitle C). Nor does it say that EPA can regulate units that “use” solid waste.

The act of “combustion” is thus necessary to trigge r CAA § 129 jurisdiction, and materials that are used as ingredients in an industrial process are not “combusted.” Even though temperatures in a kiln are extremely high, the feedstock for clinker that is placed into the kiln is not “combusted”

– rather, i t is incorporated into the clinker product. Similarly, secondary materials that may be used as substitutes for mined or virgin feedstock become incorporated into the clinker product and are not “combusted.”

Neither the CAA nor RCRA define the words “com bust” or “combustion.” One must accordingly turn to t he plain meaning, dictionary, sta ndard usage among engineers, definitions. The McGraw

- Hill Science and Engineer ing Dictionary, Third Edition 1984, defines “combustion” as follows (emphasis added): The burning of gas, liquid, or solid, in which the fuel is oxidized evolving heat and often light.” Similarly, a well

- respected engineering text defines “combustion” in this manner: “ the conversion of a substance called a fuel into chemical compounds known as products of combustion by combination with an oxidizer. The combustion process is an exothermic chemical reaction, i.e., a reaction that releases energy as it occurs. ” Weston, Energy Conversion , chapter 3, p.Page 13 of 72 85 (emphasis added)

, included at Attach ment A , and available at http://www.personal.utulsa.edu/~kenneth

- weston/chapter3.pdf

.
As will be discussed in detail below, EPA’s proposal explicitly addresses two distinct types o f secondary material use: (1) burning materials as fuels; and (2) using materials as ingredients. As these common dictionary definitions show, a unit “combusts” fuels but not ingredients. EPA accordingly has no authority under the plain terms of CAA § 1 29 t o regulate p ortland cement kiln s ’ use of secondary materials as ingredients.

B. Legislative History

T he legislative history shows that the drafters of the CAA indicated no intent to include use of materials for ingredients when they specified the word “combust.” The legislative history of CAA § 129 in fact shows there is no mention of the use of secondary materials for ingredients. Rather, the entire focus of the legislative history reflects a concern in the late 1980s that municipal and hospital inci nerators were coming on line (or planned) in large numbers and the then

- existing CAA controls at the federal level for such units were perceived to be inadequate.

The only analysis and explanations of the CAA § 129 language in the legislative history appear in the two Senate Environment and Public Works Committee Reports leading up to the final enactment of the 1990 Clean Air Act Amendments. One Report accompanied the 1 989 version of the Senate Bill, Senate Repor t 101

- 228, accompanying S. 1630 (the “1 989 Senate Report,” Attachment B ). T he other accompanied the 1987 version of the Senate Bill

, Senate Repor t 100

- 231, accompanying S. 1894 (the “1987 Senate Report,” Attachment C ).

One will search in vain for any concern or reference to

– even obliquel y

– use of secondary materials as ingredients. As explained on page 8593 of the 1989 Senate Report, the driving force for CAA § 129 was a study EPA had prepared (as directed by 1984 RCRA amendments from Congress) on the health risks of “municipal solid wa ste incinerators.” See Attachment B

. The 1987 Senate Report further explains that the concern driving Congress related to the fact that “111 municipal incineration facilities are currently in operation in the United States, and at least 210 more are in t he planning or permitting phase .” See Attachment C at 9450

.

The 1987 Senate Report explains that citizen concerns over potential health risks have made “permitting for municipal incineration units difficult or impossible in some communities,” and that

t he purpose of the legislation was to insure that such units would be subject to protective emission standards to alleviate such concerns. Id

.

The 1987 Senate Report goes on to explain that there are three types of incinerator technology: “mass burn” facilities that take “garbage” untreated and burn it in a simple process to produce heat, steam, or electricity; “refuse derived fuel (RDF), ” which is fed to “specialized boilers;” and “modular” units, which are “small pre

- fabricated” units that burn waste in a “two

- chamber
process .” See Attachment C at 9451

- 52.Page 14 of 72 Thus, the types of units the drafters th ought they were covering with CAA § 129 most certainly did not include industrial furnaces that might be using secondary materials as ingredients. This is strongly reinforced by the fact that there are unequivocal (and lengthy) statements in the legislative history to the effect that the byproduct of the “incinerators” covered by the legislation is “fly ash” and “bottom ash.” For example, the 1989 Senate Report states: “Pollutants which are trapped by control devices before entering the air become incinerator fly ash. Managing incinerator ash, therefore, is inextricably linked to controlling air emissions from municipal waste incinerators.” See Attachme nt B at 8494

.
Industrial furnaces such as cement kilns produce cement kiln dust (CKD). This is a material that is wholly distinguishable from fly ash, not only physically and chemically, but legally. Compare RCRA § 3001(b)(3)(A)(i) (fly ash) with RCR A § 3001(b)(3)(A)(iii) ( CKD ).

And the 1987 Senate Report states with respect to the units that would be regulated under CAA § 129: “It is necessary to regulate air emissions and ash simultaneously because the control technologies required to limit emiss ions trap pollutants, which then become part of the fly ash.” See 1987 Senate Report, Attachment C at 9451

.
Under the assumptio n that the units regulated by CAA § 1 2 9 would be producing this “incinerator ash” or “fly ash,” Congress included a special pr ovision in the 1990 CAA Amendments (along with CAA § 129) specifying that “ash from solid waste incineration units” could not be regulated as a hazardous waste under RCRA for two years. 42 U.S.C. § 6921 ( note )

.

Thus all the legislative history shows no indication of any Congressional intent to cover materials used as ingredients in industrial furnaces, and

, in fact

, consistently points the oth er way. I t strongly reinforces the point that the statutory word “combust” can and should be given its plain En glish, unambiguous meaning.

C. EPA’s Own Word Usages

EPA’s own phraseology in its proposed part 241 preamble underscores this point. As EPA stated in its preamble summary:

EPA is proposing a definition of non

- hazardous solid waste that would be used to identify whether non

- hazardous secondary materials burned as fuels or used as ingredients in combustion units are solid wastes.

75 Fed. Reg. 31844 (emphasis added).

Moreover, in its definition of “contaminant” in the proposed regulatory provisions , EPA provided : “. . . when secondary materials are burned as fuel or used as ingredients . . . “ 75 Fed. Reg. 31892 (emphasis added). There are several additional places in the preamble where EPA draws this distinction: fuels are “burned” whereas ingredient s are “used.” Of course, “combustion” equates with “burn” but not “used.”Page 15 of 72 We found no place in the preamble where EPA stated that ingredients are “burned.” In fact, quite remarkably, there is no place we could find in the January 2, 2009 ANPR or the n ew part 241 proposal where EPA even attempted to stake out a theory as to how its authority to regulation “combustion” could extend to regulation of materials used as ingredients.

The closest EPA comes is (very indirectly) to say several times that it is being guided by Subtitle C principles and precedents in crafting the proposed part 241 provisions. But of course, as

not ed above, the relevant word is “treatment” in Subtitle C

– which is much broader than “combustion.”

IV. NOTHING IN THE D.C. CIRCU IT’S 2007 NRDC OPINION, OR IN ANY OF THE RULEMAKING OR ADVOCACY LEADING UP TO IT, CONTAINS THE SLIGHTEST HINT THAT EPA COULD OR SHOULD REGULATE INGREDIENTS

A. Energy Recovery the Only Focus

As discussed earlier, t he part 241 proposal is EPA’s response to t he Court’s remand in NRDC v. EPA , 489 F.3d 1250 (D.C. Cir. 2007). Starting with EPA’s first CISWI rule of December 1, 2000 (65 Fed. Reg. 75338), there were several rounds of rulemakings, administrative petitions, and judicial challenges culminating in the 2007 NRDC decision.

Throughout these administrative and judicial proceeding s, there was an ongoing dispute regarding whether EPA should regulate burning for energy recovery under CAA § 129. The focus was not only 100 percent on energy recovery, but als o overwhelmingly on boilers ( not industrial furnaces). N othing in the petitions, comments, or judicial briefs filed by NRDC or other parties ever mentioned the issue of using secondary materials for ingredients

.

B. Rulemaking Preceding the 2007 NRDC Opin ion

EPA’s first CISWI rule (December 1, 2000) contained exemptions from CAA § 129 coverage for units burning fuels for energy recovery. EPA did this by defining “commercial and industrial waste” to mean “solid waste combusted in an enclosed device using controlled flame combustion without energy recovery . . .” 65 Fed. Reg. 75359.

Even though EPA used the terms “s olid waste combusted,” EPA’s 2000 rule and preamble said nothing about use of materials as ingredients in an industrial process. Moreover, it could not be clearer from the rule and the preamble, and the types of units that EPA’s rule was intended to cover, that the rule did not cover use of ingredients.

Earthjustice (on behalf of the Louisiana Environmental Action Network (LEAN) and the Nat ional Wildlife Federation (NWF)) filed an administrative reconsideration petition with EPA on Janu ary 30, 2001. See Attachment D . Earthjustice’s objection focused solely on the fact that EPAPage 16 of 72 had excluded units burning solid waste for energy recovery pu rposes , maintaining that such exclusion vi olated the clear terms of CAA § 129. Earthjustice’s petition made no mention whatever of use of materials as ingredients. See generally id.

EPA granted Earthjustice’s petition on the procedural ground that the issue of excluding energy recovery burning had not been raised with sufficient specificity in the proposed rule preceding the 2000 final rule, and EPA undertook a new round of public comment. On February 17, 2004, EPA proposed amendments to the CISWI rule , once again taking the position that burning secondary materials as fuels for energy recovery w ould not be regulated under CAA § 129. 69 Fed. Reg. 7390.

Earthjustice once again strenuously objected to EPA’s proposed defi nitions in its comments on EPA’s February 2004 proposal ( “Earthjustice 2004 Comments” at Attachment E )

. T he comments made no mention of materials used as ingredients and included no objection to the fact that the rule did not cover ingredients. All of the objection was directed to the energy recovery issue.

Moreover, it is quite clear from Earthjustice’s comments that the overwhelming focus of its concerns related to the issue of area source boilers

. See Attachment E at pages 1

- 2. Earthjustice’s primary fear was that EPA would “e xpl oit” the provisions in CAA § 112 allowing “area sources” to be regulated under less stringent “Generally Available Control Technology” (GACT) requirements. Id

. Boilers, of course, do not utilize secondary materials as ingredients.

EPA issued its fina l CISWI rule September 22, 2005. 70 Fed. Reg. 55568. EPA’s rule once again exempted energy recovery burning, and did not purport in any manner to regulate use of ingredients or even mention ingredients. EPA made clear in this preamble that p ortland ceme nt kilns would not be regulated under CAA § 129 if they burned fuels for energy recovery. E.g. , 70 Fed. Reg. 55571.

C. The NRDC Briefing and Opinion

NRDC, the Sierra Club, and the Environmental Integrity Project sought judicial review of EPA’s September 2 005 final rule. This resulted in the Court’s 2007 opinion remanding EPA’s CISWI rule that EPA is now responding to with its June 4, 2010 proposed rules.

Similar to their comments on the 2004 CISWI proposed rule, the overwhelming focus of the NRDC part ies’ concern was on boilers, and the issue of whether and to what extent EPA’s rules could allow smaller “area source” boilers burning waste fuels for energy recovery to be covered by more lenient “GACT” standards under CAA § 112. The entire thrust of the N RDC par ties brief was that EPA could not exempt units burning solid waste for energy recovery from CAA § 129

. See NRDC Brief

, at Attachment F. If the NRDC parties prevailed on that issue, then such units would be subject to CAA § 129, which does not pr ovide for less stringent standards for area sources.

NRDC ’s brief said nothing about the issue of whether industrial furnaces using secondary materials as ingredients should be regulated. And from the very first sentence of the NRDC Brief “Statement of Facts,” it is clear that the issue was never considered :Page 17 of 72 This matter concerns the highly toxic air emissions from more than 50,000 incinerators and boilers nationwide. Widely used to dispose of on

- site waste and to generate heat or electricity, incinera tors and boilers operate at virtually every imaginable industrial site, including chemical plants, refineries, pulp and paper mills, lumber mills, agribusinesses, and smelters.

Id. at 6.

This becomes further evident from the following key point in the N RDC Brief:

That is, although section 129 directs EPA to regulate sources that combust “ any solid waste material from commercial or industri al establishments,” 42 U.S.C. § 7429(g)(l) (emphasis added), the agency instead regulates only sources that combust solid waste from “ commercial or industrial establishments ... without energy recovery. ” This leaves the excluded, so

- called “energy recovery units” to be regulated under EPA’s boilers rules.

Id. at 19.

Note especially the last phrase, “under EPA’s boi lers rules.” This strongly reinforces the point that no thought was being given in this litigation to issues involving industrial furnaces using secondary materials as ingredients. The only issue in the case was EPA’s attempt to exclude units burning sol id waste for energy recovery from CAA § 129

.
For further reinforcement of this point, one can review the numerous “standing” declarations attached to the NRDC Brief, where various members of NRDC and its co

- petitioning organizations explained how they co uld be adversely affected if EPA excluded such units from CAA § 129. See Id.

at 69

- 98. In every one of these declarations, the declarant states that he or she lives in close to proximity to an industrial boiler or an on

- site incinerator. Not a single dec larant states that he/she would be affected by emissions from an industrial furnace such as a p ortland cement kiln.

Thus, not surprisingly, the D.C. Circuit opinion in the 2007 NRDC case makes absolutely no mention of any issue involving the use of secon dary materials as ingredients. The Court held only that EPA’s regulation that exempted solid waste combusted for energy recovery was “inconsistent with the plain lang uage of section 129,” because CAA § 129(g)(1) defined the affected facilities as

“ any fac ility which combusts any solid waste material.” 489 F.3d at 1254, 1255.

D. EPA Never Explains Why It Believes CAA § 129 Regulates Ingredients

EPA made clear at the beginning of its January 2, 2009 ANPR that it was initiating the new part 241 rulemaking f or the purpose of complying with the remand in the 2007 NRDC case. 74 Fed. Reg. at 4 3. But as shown above, the NRDC case had nothing whatever to d o with ingredients. EPA never explains

– either in the ANPR or the June 4, 2010 part 241 proposal

– why it chose to include ingredients within the scope of this rulemaking

.Page 18 of 72 V. EPA’s PROPOSAL REPRESENTS A FAILURE OF REASONED DECISIONMAKING

A. Supreme Court “State Farm” and D.C. Circuit Precedent

Judicial review of agency rulemakings often focuses on two fundament al issues: (1) whether the agency’s interpretation of a statutory provision is sustainable; and (2) whether the agency engaged in “reasoned decisionmaking” in reaching that interpretation. The reviewing court may vacate a regulation on either ground. I n its bedrock decision Motor Vehicle Mfrs. Ass’n v. State Farm , 463 U.S. 29 (1983) (“ State Farm ”) , the Supre me Court elaborated upon the federal Administrative Procedure Act ’s (APA) “arbitrary or capricious” standard with the phrase “reasoned decisionmakin g,” and this terminology is used frequently by the D.C. Circuit and other courts

.

In CMA v. EPA , 217 F.3d 861 (D.C. Cir. 2000), the Court reviewed an EPA rule issued under the Clean Air Act in which EPA had imposed a so

- called “early cessation” requireme nt. Many facilities had been burning a certain type of waste under emission limitations established under RCRA. EPA had imposed more stringent requirements under the CAA that were to take effect in three years, and EPA specified in those new rules that f aci lities failing to affirmatively commit to coming into compliance with those new more stringent standards by the three

- year deadline would have to cease burning that type of waste much earlier than the three

- year compliance deadline.

Petitioners before the C ourt pointed out that if any facility was forced to stop burning that type of waste before the new deadline, the same waste would simply be burned by other facil i ties under the same older RCRA standards, and EPA did not dispute this. Also, EPA maint ained generally that such a rule would have health and environmental benefits, but did not explain how it would.

The Court said the CAA’s purpose was to protect and enhance air quality so as to promote the public health and welfare. Id . at 866. But si nce EPA could not explain any environmental benefits to its ear ly cessation requirements, the C ourt held that it was unreasonable for EPA to impose “ costly obligations on regulated entities without regard to the [CAA’s] purpose. ” Id . at 867. In fact, the C o urt took special note that environmental harm might be increased by EPA’s rule because more movement of wastes could increase the chances of leakage or spillage. Id . at 865. The Court concluded that EPA’s actions represented a “ classic case of arbitra ry and capricious rulemaking.” Id

. at 865.

Similarly, the D.C. Circuit in API v. EPA

, 216 F.3d 50 (D.C. Cir. 2000) rejected an EPA interpretation that a certain material had been “discarded,” and was therefore a solid waste in the Subtitle C context. C iting State Farm

, the Court ruled that EPA had failed to provide a “rational explanation” for its decision. Id . at 56

- 58. (We note that EPA cites this case as “ API II ” in its preamble. 75 Fed. Reg. at 31851. ) Other recent D.C. Circuit cases in which th e D.C. Circuit has relied upon State Farm “reasoned decisionmaking” principles to reverse EPA rules include Am. FarmPage 19 of 72 Bureau Fedn v. EPA , 559 F.3d 512 , 523

- 24 (D.C.Cir. 2009) and New York v. EPA , 413 F.3d 3, 10

- 11 (D.C. Cir. 2005).

B. EPA Has Latitude to Define “Solid Waste” to Effectuate RCRA’s Goals

For over thirty years EPA has been attempting to define

– in its Subtitle C hazardous waste regulations codified at 40 C.F.R. § 261.2

– which secondary material management and handling practices trigger t he definition of solid waste (DSW). EPA has always claimed discretion to “draw lines” in this regard under the statutory definition of solid waste (RCRA § 1004(27)). As EPA stressed in its first final Subtitle C DSW rule: “the extent of the Agency’s aut hority is not explicit on the face of the statute” when addressing the issue of whether materials destined for recycling may be deemed solid wastes. 50 Fed. Reg. at 614, 615, January 4, 1985.

A primary goal of RCRA is protection of human health and the environment. E.g ., RCRA § § 3001, 3002, 3003, 3004, 3005. Another primary goal of RCRA is to promote resource conservation and recovery, including energy recovery. E.g., RCRA § 1002, 1003. Throughout its various rounds of Subtitle C DSW rulemakings, EP A has used its discretion to “draw lines” in an attempt to effectuate and accommodate these primary statutory goals.

1. Rationale for Subtitle C DSW Approach

EPA’s DSW for Subtitle C purposes involves a complex “line drawing” matrix in which hazardous seco ndary materials destined for recycling may or may not be deemed a solid waste. EPA’s most recent revisions to the Subtitle C DSW appear in a final rulemaking published at 73 Fed. Reg. 64668 on October 30, 2008. In the preamble to these revisions, EPA sum marized and reviewed some of the most fundamental reasons why it has used its discretion to regulate some materials destined for recycling as solid waste in the Subtitle C context.

One major factor is that the secondary material in question in the Subtit le C context is by definition “hazardous,” and presents the same risks to health and the environment as hazardous wastes. 73 Fed. Reg. at 64671. EPA cites the fact that hazardous material destined for recycling was involved in (a) one

- third of the first 60 RCRA waste site “imminent and substantial endangerment” actions EPA initiated before the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA ) became law in 1980, and (b) 20 of the initial 100 sites on the CERCLA National Priorit ies List (NPL). Id. EPA stresses that many additional “damage cases” have been documented more recently. Id

.
Another major factor is the “cradle to grave” regulatory regime mandated by RCRA Subtitle C. EPA has reasoned that allowing classification of hazardous materials as solid wastes depending only on what persons handling the materials “intended to do with them” would be inconsistent with the cradle to grave scheme of Subtitle C. Id

.Page 20 of 72 2. The Subtitle C DSW Approach Was Never Intended to Apply to Non

Hazardous Materials

Despite the complexity of EPA’s ever

- evolving DSW in the Subtitle C context, one thing has always been crystal clear: the definition applies only in the Subti tle C context. EPA has t aken great care to distinguish between the def inition of solid waste for Subtitle C purposes (40 C.F.R. § 261.2) and the definition for Subtitle D purposes.

EPA’s Subtitle C regulations, in fact, could not be more explicit on this point: “ The definition of solid waste contained in this part appli es only to wastes that also are hazardous for purposes of the regulations implementing subtitle C of RCRA . For example, it does not apply to materials (such as

non

- hazardous scrap, paper, textiles, or rubber) that are not otherwise hazardous wastes and th at are recycled.” 40 C.F.R. § 261.1(b)(1). In issuing this provision, EPA cited to RCRA legislative history calling for this result, so that the Subtitle C definition could not be used in “unintended contexts” for

non

- hazardous Subtitle D materials. 50 Fed. Reg. 614, 627 (January 4, 1985), citing H.R. Rep. 98

- 198 at 47.

C. EPA Relies Upon Subtitle C DSW Principles for Its Proposed Subtitle D Solid Waste Definition Without Justification

In its Part 241 proposed preamble, EPA says that to define solid waste under Subtitle D, it is “appropriate to use the same general framework” it has u sed under Subtitle C, “noting that the same statutory definition of solid waste applies to both RCRA Subtitles D and C.” 75 Fed. Reg. 31858. The fact that the “same sta tutory definition” appl ies to both Subtitles C and D can not be a valid justification , however. As explained in the section immediately above, ( a ) EPA’s regulations have long specified that the Subtitle C DSW does not appl y in the Subtitle D context and ( b ) EPA has stressed , cit ing legislative history, that the Subtitle C DSW should not be the same as a solid waste definition under Subtitle D.

Yet EPA has not only borrowed heavily from its Subtitle C DSW approach in crafting its Subtitle D part 241 prop osal, but in some regards the part 241 proposal is significantly more stringent than the Subtitle C DSW. The most striking example is the contrasting approach to ingredients.

Under § 261.2 (Subtitle C DSW), a hazardous secondary material that is recycle d by being “used or reused as ingredients in an industrial process to make a product” is exempt from the DSW so long as the material is not being reclaimed. § 261.2(e)(1)(i). Under proposed § 241.3(b)(2), however,

a non

- hazardous secondary material being recycled for use as an ingredient will be exempt only if it meets several “legitimacy criteria” as specified in proposed § 241.3(d)(2).

Among the most notable of these criteria is the fourth:

The non

- hazardous secondary material used as an ingredient must result in products that contain contaminants at levels that are comparable or lower in concentration toPage 21 of 72 those found in traditional products that are manufactured without the non

- hazardous secondary material.

Proposed § 241.3(d)(2)(iv), 75 Fed. Reg

. 31893.

Thus, w hile non

- hazardous secondary materials would be subject to this product comparison testing under EPA’s proposal, under EPA’s Subtitle C hazardous waste regime hazardous secondary ingredient m aterials are exempt from the definition of sol id waste regardless of how much those materials may influence contaminant le vels in the resulting product. O ne would assume that ( a ) if EPA has leeway under the statute to define solid waste (which it does); ( b ) if EPA has authority to define solid waste for purposes of Subtitle C differently than for purposes of Subtitle D (which it does); and ( c ) if secondary materials under Subtitle C are hazardous and secondary materials under Subtitle D are non

- hazardous (which is the case), then EPA should not

– unle ss it can demonstrate a rationale for doing so

– be regulating secondary materials under Subtitle D as stringently as under Subtitle C. Yet inexplicably, EPA’s proposed part 241 regulations treat non

- hazardous secondary ingre dient materials more stringen tly than hazardous secondary ingredient materials

.
We note that the two fundamental grounds EPA has cited to support the lines it has drawn in the Subtitle C context are, as discussed above, the innate hazardousness of the material (with the “damage cas e” examples going back for decades) and the “cradle to grave” mandate of RCRA Subtitle C. EPA cites no damage cases to support its part 241 proposal, however (and it is hard to see how it could when dealing with material that is by definition non

- hazardou s). And, of course, there is no “cradle to grave” system under RCRA Subtitle D. Thus, the grounds EPA relies upon in using its discretion to draw lines in its Subtitle C DSW simply do not apply in the Subtitle D context.

And EPA’s approach in this pr oposal appears even more illogical and “unreasoned” when one

con siders (as explained in part I(C) above), that the only function of the proposed part 241 definition is to determine wh at materials will trigger CAA § 129 applicability when combusted . Materi als that may be excluded from the part 241 definition will not be excluded from the definition of solid waste for all other purposes.

This is in stark contrast to the function of EPA’s Subtitle C definitio n of solid waste in 40 C.F.R. § 261.2. If a mate rial is excluded from the definition under that section, it may also be excluded from RCRA control when stored, transported, or otherwise managed or discarded. Considering that the materials at issue under the Subtitle C definition are hazardous, the

cons equences of excluding a material are obviously much more serious from a health and environmental perspective.

D. EPA’s Proposal Would Impose Unjustified Barriers to Recycle and Reuse

EPA’s line drawing efforts in the Subtitle C recycling context over the y ears have endeavored to balance two fundamental RCRA goals: protection of human health and the environment, and the promotion of recycle/reuse of secondary materials. In the context of dealing with hazardous secondary materials in the Subtitle C definiti on, EPA has accordingly often drawn lines that might discourage some forms of recycle/reuse on grounds that such a choice was necessary to protect healthPage 22 of 72 and the environment. There is at least a rational basis for this, as materials that would qualify a s hazardous wastes may warrant special precautions. Moreover, Congress repeated the mandate to protect human health and the environment incessantly in various key Subtitle C provisions. E.g

., RCRA § § 3001, 3002, 3003, 3004, 3005.

As we will demonstrate with numerous examples throughout these comments, in the RCRA Subtitle D non

- hazardous material context, EPA’s part 241 proposal (along with the CISWI proposal) draws many lines that would impose major impediments on recycle/reuse. Yet EPA never attempts to justify these choices dealing with non

- hazardous materials on grounds of protecting human health and the environment. One key example that will be developed below: how could keeping whole tires in landfills and waste piles be better for public health and the environment than having these tires used as coal replacement in a p ortland cement kiln regulated under CAA § 112 and other CAA standards?

We note that the RCRA policy favoring recycle/reuse is expressed in the strongest terms in the Subtitle D context. Here are the very first words of Subtitle D (in RCRA § 4001) (emphasis added):

The objectives of this subchapter are to assist in developing and encouraging methods for the disposal of solid waste which are environmentally sound and which max imize the utilization of valuable resources including energy and materials which are recoverable from solid waste and to encourage resource conservation.

There is no doubt that EPA envisions the part 241 proposal would result in far less solid waste bein g recycled/reused and that waste materials would be landfilled instead. The CISWI proposal is quite clear on this in many places, as is the RIA for the part 241 proposal. E.g

., 75 Fed. Reg. 31965

- 66.

So the question becomes, why does EPA’s part 241 pro posal at practically every turn draw lines that will discourage recycle/reuse of non

- hazardous material when an over

- arching Subtitle D goal is to maximize recycle/reuse of non

- hazardous materials? If EPA believes this approach is necessary to protect hea lth and the environment, EPA never asserts this, nor explains how or why. We believe the D.C. Circuit would find this, just as it found EPA’s rules in the CMA case sited above, a “classic case of arbitra ry and capricious rulemaking .” 217 F. 3d at 865. A nd it is clear that EPA cannot remedy this def ect by developing and articulating post

- hoc rationalizations in its final rule.

“ A ‘ notice of proposed rulemaking must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully. ’ ” Cement Kiln Recycling Coalition v. EPA , 493 F.3d 207, 225 (D.C. Cir. 2007) (quoting Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004)) ( emphasis added )

.

E. EPA’s Reliance Upon RCRA Subtitle C Caselaw Is Unnecessary a nd Inappropriate

EPA attempts to justify some of its positions based on several D.C. Circuit cases that have judicially reviewed various versions of EPA’s Subtitle C DSW. See 75 Fed. Reg. 31850

- 51. But \Page 23 of 72 again, those decisions have been limited to rul ings on a Subtitle C definition that EPA has consistently maintained has no application to the Subtitle D context.

For example, EPA has cited American Petroleum Institute v. EPA , 906 F.2d 729 (D.C. Cir. 1990 (“API I”) for the proposition that the Court h as disapproved the concept that a material that may have once been thrown away could nevertheless “cease to be a solid waste” if it were being beneficially reused, as it would no longer at that point be considered a “discarded material.” 75 Fed. Reg. 3185 0; 74 Fed. Reg. 51.

But EPA has overlooked a critical element of the Court’s ruling. In remanding the rule to EPA for a further explanation of its position, the Court stressed it believed it would be “unlikely” EPA could successfully maintain the positi on that a discarded material could cease to be a solid waste when recycl ed because :

To reach such a conclusion, EPA would have to reconcile this position with RCRA’s acknowledged objective to establish a cradle

- to

- grave regulatory structure for the safe h andling of hazardous wastes.

906 F.2d at 741 ( emphasis added and internal citations a nd quotation marks omitted )

.

Thus, this Subtitle C case in no way impairs EPA’s ability to craft a Subtitle D rule that could allow for materials once deemed to have b een discarded to cease t o be a solid waste when reused

. And no other case cited by EPA (or any that we have found) has ruled that EPA is unable to do this in the Subtitle D context.

In fact, other D.C. Circuit cases reviewing EPA’s “solid waste” definit ion show that the Court understood the Subtitle C hazardous waste context to be quite distinct from RCRA Subtitle D. In its preamble at p age 31850 , EPA cites American Mining Congress v. EPA

, (“ AMC I ” ) 824 F.2d 1177 (D.C. Cir. 1987)

. The Court in that cas e stated: “RCRA includes two major parts: one deals with

non

- hazardous solid waste management and the other with hazardous waste management. Under the latter , EPA is directed to promulgate regulations establishing a comprehensive management system.” Id

. a t 1179 ( emphasis added )

. Nothing in the Court’s opinion speaks to the issue of de fining solid waste for Subtitle D purposes. The Court correctly recognized, however, that it is Subtitle C

– and not D

– that establishes a “comprehensive management system .”

Similarly, American Mining Congress v. EPA

, (“ AMC II ” ), which EPA cites on page 31850 of its preamble

, was limited to an examination of issues under RCRA Subtitle C, which the Court noted “requires EPA to create a comprehensive regulatory scheme for the treatment, storage, and disposal of hazardous wastes.” 907 F.2d 1179 , 1182 (D.C. Cir. 1990) ( emphasis added )

.

EPA also cites American Petroleum Institute v. EPA

, (“ API II ”) 216 F.3d 50 (D.C. Cir. 2000) on page 318 51 of its preamble. But again, the Court’s opinion could not be clearer that it was limiting its ruling to Subtitle C issues, and not considering how solid waste might be defined in the “less stringent” Subtitle D regime:Page 24 of 72 RCRA is a comprehensive environmental statute granting EPA authori ty to regulate solid and hazardous wastes. “Solid wastes” are governed by Subtitle D of RCRA, and are generally subject to less stringent management standards than “hazardous wastes” which are regulated under Subtitle C.

...
In pursuit of its congressional ly conferred duty and authority to regulate solid waste under RCRA, the EPA has adopted regulations defining solid waste for purposes of its hazardous waste regulations

.

Id . at 54 (emphasis added).

Thus none of these cases purport to circumscribe

, or in any manner limit, EPA’s authority to define solid waste either for purposes of RCRA Subtitle D in general or for purposes of triggering CAA § 129 in particular. EPA remains free to craft its definition in the instant rulemaking to effectuate the purposes of RCRA Subtitle D

– the primary purpose of which is to “maximize” the use of non

- hazardous secondary materials. RCRA § 4001.

VI. FUNDAMENTAL FLAWS REGARDING USED TIRES REFLECT FUNDAMENTAL FLAWS RUNNING THROUGH THE ENTIRE PROPOSAL

A. The Portland Cement Ind ustry’s History of Beneficially Using Whole Scrap Tires

The most dramatic adverse impact on the p ortland cement industry from EPA’s proposed part 241 rule (as it would work together with the proposed CISWI rule) is in regard to the pr oposed rule’s
approa ch to used tires. EPA already has extensive documentation in the record on the following basic points, and we will further elaborate on some of them below:

a

. S crap tires that have been buried in landfills or stacked in piles throughout the U.S. present a major environmental problem

– not because of any inherent hazard of the tires t hemselves, but because they take up precious landfill space that is in short supply and p resent risks of fires, draw rodents and pests, mosquitoes, etc.;

b

. O ver the last two decades, portland cement kilns have been able to provide a great source of relief for states and communities seeking environmentally responsible outlets for the removal of these tires from landfills and piles;

c

. W hole tires serve as a useful substitute for virgin fuel at cement kilns, and the metal in these tires serves as a useful substitu te for virgin raw materials . As EPA states in its proposed rule preamble:Page 25 of 72 We note that most cement kilns use whole tires as fuels, as opposed to TDF chips, because t heir process does not require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since they use the metal as an ingredient).

75 Fed. Reg. 31877, n. 62.

d. T here is no increase in air pollutant emissi ons from p ortland cement kilns burning these non

- hazardous materials. I n fact

, data in EPA’s record shows that if anything, there is improvement in the emission performance on key pollutants of concern.

Prior to approximately 1990, s crap t i res were simp ly landfilled, like most other waste

m aterials. They were not perceived as a disposal problem nor available in a quantity attractive to cement plants

. Two factors chan g ed that situation. The f irst fact or was diminishing la n dfill capacity. With fewer la ndfills available, scrap tires, which do not decompose or compact easily, had been phased out as an acceptable material. In certain cases this was a decision by the landfill operator, in other cases, a decision due to changes in state regulations.

Sec ondly, scrap ti res were no longer considered as part of the municipal solid waste stream, and therefore not collected or d isposed of by municipalities

. This, in tu rn , caused the g enerators of
scrap t i res to use the se rv ices of scrap t i re collectors and tr ansporters

. These entrepreneurs typically f

ound inexpensive ways to dispose of their cargo; usually by stock piling the tires in a remote location. Until 1985, this form of disposal was the accepted practice. It is these large stockpiles that subsequent ly became public nuisances due to fires and other issues. Thus other markets and opportunities for use of scrap tires were explored, including the use of tires in cement kilns as fuel.

These old landfills and piles are menaces (as they are attractive nu isances drawing rats, breeding mosquitoes, creating hazardous smoke from uncontrolled fires, etc) and there has been great support by local

, county and state governments for kilns to take these tires and use them as fuel. 3 Approximately 87 percent of the old tire piles have been cleaned up since 1990. 4 But major environmental messes linger, and p ortland cement kilns are practically the only place where they can be reused as whole tires. While uncontrolled tire fires with thick black smoke have caused poo r public perception of tire combustion , continued use of whole tires by p ortland cement kilns as fuel will materially help prevent the occurrence of these uncontrolled fires.

In 1990, 6 million tires (of 223 million scrap tires generated that year ) were used as fuel in cement plants. By 1992, 14 cement plants were using tire

- derived fuel (TDF) with another 24

3 Report of Pennsylvania Joint State Government Commission, Waste Tire Recycling and Reuse in Pennsylvania, October, 2007. Included as Attachment J.
4 Scrap Tire Markets In The United States, 9th Biennial Report, May 2009, Rubber Manufacturers Association. Included as Attachment L.Page 26 of 72 planning, permi tt ing , or waiting to use scrap tires. 5 A PCA report shows data starting in 1998, when 35 plants (of those reporting) were alre ady using tire as fuels (53 of 93 reporting plants were using alternative fuel). 6 By 2009, 40 of 90 plants reporting were using tire as fuels representing a total of

over 35 5 ,000 tons of tires annually

. 7

B. The Proposal Will Strongly Discourage Portland Ce ment Kiln Utilization Of Used Tires With No Resulting Benefits to Health and the Environment

The data available indicate s that emissions from TDF

- firing kilns ha ve lower emissions of nitrogen oxides, sulfur dioxide, and most metals. 8 EPA recognizes that the use of TDF in cement kilns results in emissions that are often less and generally within the same range as emissions from the use of fossil fuels

. 9 Also, data that show decreases of sulfur dioxide ( SO 2 ) emissions by 20 to 50 percent or more has been found. 10 Of course actual emission results can vary on a site

- specific basis,

The use of TDF can actually result in lower nitrogen oxide ( NO x ) emissions. NO x can be reduced by over 30 percent depending on the kiln type, age, fuel combustion location, an d the plant’s ability to optimize the manufacturing process. An EPA

- sponsored study on NO x reductions reported that TDF added to the raw material feed end of some preheater or precalciner kilns can reduce NO x emissions over 30 percent , and EPA also found that when mid

- kiln injection of whole scrap tires was used, there was an average NO x reduction of 33 percent and 40 percent for selected long dry and wet kilns, respectively. 11 EPA has also agreed that the use of TDF r esults in lower NO x emissions when

com pared to many U.S. coals, particularly the high

- sulfur coals. 12 In fact, in some instances, the use of TDF has been incorporated into cement plants’ air permits or within state or local regulations as a listed control mechanism for NO x . 13 EPA’s own emissio n

- reduction strategies model incorporates TDF as a method for NOx reduction. 14

5 The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal

, World Cement

, December 1992

. Included as Attachment M.

6 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association , ER395, Table 44. Included as Attachment N.

7 US & Canadian lab or

- Energy Input Survey, 2010, Portland Cement Association . Included as Attachment O

. 8 Air Emissions Data Summary for Portland Cement Pyroprocessing Operations Firing Tire

- Derived Fuels, J ohn Richards; David Goshaw; Danny Speer, and Tom Holder, PCA, 2008. Included as Attachment P
9 Tire

- Derived Fuel Frequent Questions, http://www.epa.gov/wastes/conserve/materials/tires/faq.htm . Included as Attachment Q
10 Health Consultation

- CEMEX, I ncorporated , Lyons, Boulder County, Colorado, Agency for Toxic Substances and Disease Registry, Table 2, Page A

- 3. Included as Attachment R; Air Emissions From Scrap Tire Combustion , EPA

600/R

- 97

- 115, October 1997. Included as Attachment S

. 11 NOx Control T echnologies for the Cement Industry , U.S. EPA, Office of Air Quality Planning and Standards, Ozone Policy and Standards Group, September 19, 2000. Included as Attachment T.
12 Management of Scrap Tires, EPA website, http://www.epa.gov/wastes/conserve/materials/tires

. Included as Attachment U.
13 Mojave Desert Air Quality Management District, Rule 1161(C)(1)(a)(iv), Portland Cement Kilns. Included as Attachment V; Proposed Rulemaking, 25 PA. Cod e Chs. 121, 129 and 145, Control of NO
x Emissions from Cement Kilns , 38 Pa.B. 1838, April 19, 2008. Included as Attachment W; South Coast Air Quality Management District, Best Available Retrofit Control Technology Assessment, TXI Riverside Cement, Revised Draft, August 8, 2008. Included asPage 27 of 72 In addition, EPA has found that hazardous air pollutants( HAP ) emissions are not impacted by alternative fuels, including tires. In its proposed Subpart LLL rule preamble of Ma y 6, 2009 , EPA states: “ EPA notes, however, that the combustion of secondary materials as alternative fuels did not have any appreciable effect on the amount of HAP emitted by any source. ” 15

Replacement of TDF with coal also may influence cement kiln emi ssions and costs for control of mercury. The average bituminous coal used for fuel exhibits higher levels of mercury than TDF, as shown below. 16 Thus, increases of mercury emissions may occur with the loss of the use of TDF as fuel.

Fuel Hg ppm by Weight Coal 0.1 TDF

-

The preamble to this rule also notes the possible negative impacts due to the loss of the use of TDF. EPA has mentioned both the greenhouse gas ( GHG ) and additional particulate matter ( PM ) impacts in the preamble. 17

A direct impact fr om the loss of TDF in cement kilns would be the change in GHG emissions from cement kilns. As noted above, the net increase in GHG emissions would be 0.013 MTCO 2 E per MMBtu. Based upon an estimated 20,328,000 MMBtu value for lost TDF, 18

, 19 the resulting in crease in GHG emissions from cement kilns would be 264,424 MTCO 2 E. In addition to the direct change in GHG emissions from the cement kilns, additional GHGs will be generated because of the extraction and processing emissions from the coal that replaces th e TDF. Using the same heat amount and EPA’s value of 0.006 MTCO 2 E per MMBtu, the increase in GHG from the supply of coal would be 121,968 MTCO 2 E.

T he change to coal from TDF would also result in additional PM emissions. Based upon the total annual repl aced heat value and 0.246 lbs/MMBtu of PM from extraction and processing of coal, an increase in PM emissions would amount to 2,500 tons per year.

Attachment X.; South Coast Air Quality Management District, F inal Environmental Assessment: Proposed Amended Rule 1112.1

– Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI

, Nov ember 13, 2009. Included as Attachment Y.
14 Industrial Sector Integrated Solutions Model , EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA

- HQ

OAR

- 2002

- 0051

- 2007.pdf

. Included as Attachment Z.
15 74 Fed. Reg. 21138.
16 Materials Characterization P aper In Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste

– Scrap Tires, April 6, 2010. Included as Attachment AA.
17 75 Fed. Reg. 31849.
18 Materials Characterization Paper in Support of the Propos ed Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste

– Scrap Tires, EPA, April 6, 2010. Included as Attachment AA

. 19 In 2007, 48.4 million tires were used as fuel for cement kilns. This represents 20,328,000 MMBtu/year of fuel, assuming each tire weighs 30 lbs and has 14,000 Btu/lb heat value.Page 28 of 72 U nder the structure of EPA’s part 241 proposal, p ortland cement kilns would not be allowed to continue this highly environmentally beneficial practice of burning whole tires from landfills and waste piles unless they were willing to subject themselves to being regulated and permitted as an incinerator under the CISWI regime. This is despite the fact that t he record is replete with demonstrations and showings that sources will for good reason choose not to enter the CISWI regime, and EPA’s CISWI proposal explicitly and affirmatively projects that sources will choose not to do so.

The only “way out” of this dilemma for p ortland cement kilns under the part 241 proposal would be for p ortland cement kilns to burn TDF that has gone through the “processing” steps of chipping/shredding and metal removal. For kilns to use such processed TDF, however, the costs

wou ld escalate greatly and there would be additional air pollution and other adverse environmental impacts associated with the “processing.” We should note here that the “non

- waste determination” petition process

– in addition to all its other infirmities as explained later in these comments

– does not provide a “way out” under EPA’s proposal. This is because EPA makes quite clear in its proposed preamble that in its view, tires from landfills or waste piles could never qualify for relief under this petitio n process. See 75 Fed. Reg. 31879.

In effect, EPA’s proposal would strongly discourage p ortland cement kilns from continuing the highly beneficial practice of using whole tires from landfills and waste piles. This presents not only the most notable adv erse impact on the p ortland cement industry, but also the most dramatic example of how EPA’s proposal is wholly unsupportable under “arbitrary/capricious” and “reasoned decisionmaking” standards.

C. EPA’s Interpretations of “Discard” and “Processing” Are Mis guided and Harmful

EPA bases its regulatory construct on certain legal theories involving the words “d iscard” and “processing.” We will show below that EPA’s interpretations of “discard” and “processing” for purposes of this Subtitle D RCRA proposal are wholly unnecessary and counte rproductive

.

1. Discard

EPA says that RCRA’s definition of solid waste cen ters on the concept of “discard. ” 75 Fed. Reg. at 31850. But then EPA asserts in its preamble that any material that is discarded by anybody must be c onsidered forever discarded (and therefore remain a solid waste) no matter what value or use it may have to another person who may retrieve the material. We find this logic al leap to defy common sense, and not in any manner compelled by the statutory lang uage or judicial precedent. As this interpretation produces results that impede reuse and recycling of non

- hazardous materials with no benefit to health and the environm ent, we believe it is arbitrary and capricious and a failure of reasoned decisionmakin g.Page 29 of 72 a. Plain Meaning

I f Party A abandons or dumps a material that Party A no longer wants or no longer has any use for, it may logically be concluded that Party A has “discarded” that material . A s long as that material remains where it was abandoned o r dump ed, it logically can continue to be considered “discarded” material. But it is illogical and nonsensical to hold that a material must be considered forever “discarded” if Party B comes upon the material, removes it from its “discarded” venue, and

ta kes it with him or her for a bona fide use.

Suppose a woman walks by a town dump and spies a chest

- of

- drawers that someone has thrown away (i.e., abandoned, discarded). The piece of furniture is old, but it is perfectly usable for a room in her house

. S he takes the chest of drawers and places it in a g uest bedroom , and it now sits there full of clothes . T o say the chest sitting in that room is now a “discar ded” material simply defies the plain meaning of the word.

b. Case Law

As explained in Section V(E) above, EPA cites one D.C. Circuit case (“ API I ”) as having rejected a previous EPA interpretation that a material once discarded need no longer be considered a solid waste when recycled. But as we show in the discussion above, that decision did not r eject EPA’s rule, but rather remanded it to EPA for further explanation. And while the Court stated that it believed it “unlikely” EPA could sustain its original position on remand, the Court explained:

To reach such a conclusion, EPA would have to recon cile this position with RCRA’s acknowledged objective to establish a cradle

- to

- grave regulatory structure for the safe handling of hazardous wastes.

906 F.2d at 741 ( emphasis added and internal citations and quotation marks omitted )

.
Thus, the case EPA relies upon is clearly a RCRA Subtitle C case and its logic and rationale is expressly limited to Subtitle C, as the lines to be drawn between solid waste and exempt material involve hazardous material in a cradle

- to

- grave regulatory regime. In this part 241 rulemaking, EPA is defining solid waste for non

- hazardous materials in the Subtitle D setting where there is no cradle

to

- grave regime. EPA cites no case law, and we are aware of none, in which a court has ruled that a discarded non

- hazardous material must forever be deemed discarded no matter what beneficial use it may subsequently be put to.

c. RCRA Provisions

N othing in the RCRA definition of solid waste ( § 1004(27)) or any other provision of RCRA suggests that a material that is once discarded m ust be deemed discarded forever and thereforePage 30 of 72 forever re main a “solid waste.” In fact, language in RCRA strongly supports the opposite conclusion:

(c) Materials. The Congress finds with respect to materials, that

—

(1) millions of tons of recoverable ma terial which could be used are needlessly buried each year;

(2) methods are available to separate usable materials from solid waste ; and

(3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resourc es and reduce the deficit in its balance of payments

.

RCRA § 1002(c) (emphasis added).

This statutory provision directly contradi cts the premise that a once

- discarded material must forever be deemed a solid waste , for it states that material that has be en buried (hence initially discarded) can , if usable, be considered “ separate ” from solid waste.

2. Processed

Even if EPA felt compelled to deem tires in waste piles and land fills incapable of being exempt from the part 241 definition of solid waste witho ut some form of “processing” (which it should not, as explained immediately above), the proposed rule ’s approach on the requisite degree of “proc essing” for waste tires is who lly inappropriate and illogical, at least as applied to p ortland cement kilns.

EPA begins its analysis by explaining:

T he Agency believes that sufficient processing of the secondary material (e.g., changing the mass, chemical make

- up, or removing particular components from the secondary material) must be undertaken to transform a waste

- derived fuel or waste

derived ingredient into a fuel or ingredient product.

75 Fed. Reg. 31861.

EPA never explains why it believes this, however, in the context of a material that does not need processing

– or perhaps needs only minimal processi ng 20

20 We note that whole tires that have long been buried or stacked in aging piles may need minimal processing for use in cement kilns, such as removal of excess water and dirt, mud, and debris. Whole tires from newer stacks or piles often need no physical processing whatever. – to serve as a wholly bona fide fuel. EPA t hen says that used tires cannot be considered sufficiently “processed” unless they are physically shredded and undergo metals removal processing. See 75 Fed. Reg. 31877.Page 31 of 72 EPA never explains why it thinks this much processing is necessary for tires to escape the “discard” rubric and serve as bona fide fuels in p ortland cement kilns. But all logic goes against EPA on this point . In two different passages in the same Federal Register page, EPA states ( a ) u sed tires must go through “various processing steps to meet certain specifications that are necessary for a particular end use,” including TDF, and ( b ) p ortland cement kilns use whole tires as fuels “because their process does not require the TDF to be in the form of small chips to use it as a fuel, and does not require removal of the metal (since they use the metal as an ingredient).” 75 Fed. Reg. 31877, & n. 62.

The logic to be divined from this is:

a. a once

- discarded secondary material must be proce ssed to a sufficient degree to meet the specifications to serve a particular bona fide end use;

b

. the specifications for tires used by p ortland cement kilns in a bona fide end use do not include shredding or metal removal; and

c

. tires used by p ortland cement kilns will not be considered sufficiently processed unless they are processed by shredding and metal removal.

We submit this simply makes no sense. The result of this faulty logic is that beneficial reu se of significant amounts of non

- hazardous m aterial will be greatly discouraged, and there will be no health or environmental benefits (only detriments). We believe it is obvious that EPA’s proposal represents a “classic case or arbitrary and capricious rulemaking .” CMA

, supra Section V(A) , 217 F. 3d at 865.

EPA points to its approach to “scrap metal” under Subtitle C on page 31876 of the preamble. In the Subtitle C hazardous waste context, EPA’s regulations provide that scrap metal that would otherwise be a RCRA hazardous waste will be deemed s ufficiently “processed” to escape the definition of solid waste under extremely minimal conditions. As EPA states in its preamble, under 40 C.F.R .§ § 261.1 and 261.4, such minimal steps as baling or sorting are all that are necessary. This material that w ould otherwise be a hazardous waste may then be sent into high

- temperature environments such as electric arc furnaces at steel mill s and aluminum smelters entirely free of RCRA controls.

EPA’ s only explanation for the discrepancy in the way it treats scr ap metal going to thermal processing under the Subtitle C hazardous waste regime so much more leniently than its proposed approach for non

- hazardous scrap tires going to p ortland cement kilns is:

We believe this is a good example of where the level of pro cessing necessary to convert a waste material to a non

- waste material is dependent on the material itself.

75 Fed. Reg. 31876.Page 32 of 72 We submit that this entire train of logic simply cannot be sustained as reason ed decision making. EPA is discouraging reuse a nd recycle practices of non

- hazardous materials in p ortland cement kilns in a manner that it has not attempted to justify (nor could it) on grounds of health and environmental protection. To make matters worse, the stringency of the discouragement for the non

hazardous reuse practices is much more pronounced when compared to EPA’s approach to a Subtitle C hazardous material

.
A point we explained in Section I(C) above bears repeating in conclusion. If EPA excludes whole tires burned in p ortland cement ki lns from its part 241 definition of solid waste, all it will be saying is that such tires are not solid wastes when combusted for purposes of determining whether the
p ortland cement kiln combusting such material will be subject to CAA § 129. The rule as t hus constructed

, would have absolutely no impact on the States’ ability to define waste tires as solid wastes for any purpose, including disposal, generation, transport, taxation, or any other management requirement mode.

D. EPA’s Importation of “Legitimac y Criteria” from RCRA Subtitle C i s Unwarrantedand Unproductive, Particularly a s Applied to Portland Cement Kilns

.

Once a non

- hazardous material is run through the tests involving “discard” and “processing,” EPA’s proposal still requires that fuels meet three “le gitimacy criteria” and that ingredients meet four such crite ria . EPA introduces the concept of legitimacy criteria in its part 241 proposal with an extended discussion of why and how such criteria are necessary in the Subtitle C context in assuri ng proper management of hazardous materials. As EPA explains, the point is to “guard against hazardous secondary materials being discarded in the guise of recycling.” 75 Fed. Reg. 31851.

After EPA explains why legitimacy criteria are so important in th e hazardous materials context, EPA summarily concludes that it “believes” the concept is “important” in the non

- hazardous material context as well. 75 Fed. Reg. 31851. The only ground EPA offers in support of this “belief” is that legitimacy criteria wil l help determine whether a “non

- hazardous secondary material being recycled is truly being recycled or is, in fact, being discarded through sham recycling.” 75 Fed. Reg. 31852. EPA appears again to adopt the ill

- founded and wholly unjustified approach th at whatever restrictions are appropriate for hazardous waste s under Subtitle C are appropriate for non

- hazardous waste issues under Subtitle D.

We have already explained why EPA does not have jurisdiction to regulate materials used as ingredients unde r CAA § 129. (See Section III above)

. But to the extent EPA might nevertheless erroneously include the ingredient provisions in its fina l rule, we must strongly object to the inclusion of the legitimacy criteria for ingredients

. EPA has not even imposed legitimacy criteria for ingredients in its Subtitle C definition of solid waste rule. See Section V(C) above. Once again, EPA would be placing burdens on reuse and recycle of non

- hazardous materials that cannot be justified (and which EPA has not attemp ted to justify) on grounds of health and environmental protection.Page 33 of 72 Much the same can be said for EPA’s legitimacy criteria approach for fuels as applied to
p ortland cement kilns. T he p ortland cement industry simply cannot afford to jeopardize its pr oduc t by using alternate fuels that affect cement quality. As EPA recognizes in its preamble, the controversy over “sham recycling” relating to fuels arose in the hazardous waste context years ago. See 75 Fed. Reg. 31871. EPA justifiably had a concern (refl ected in the earlier Subtitle C rulemaking and policy documents it cites) that unscrupulous parties seeking to avoid the expensive Subtitle C cradle

- to

- grav e regime had incentives to claim that the hazardous waste they were burning was a bona fide fuel. A t that stage in the RCRA Subtitle C develop ment (mid 1980s), burning of hazardous materials for bona fide energy recovery purposes was exempt. This concern simply does not apply to the situation in which non

- hazardous materials are being burned in fully r egulated industrial furnaces such as p ortland cement kilns.

Ironically, EPA has long recognized that products from p ortland cement kilns burning hazardous waste fuel (HWF) are not adversely affected in any manner. In 1995, after reviewing exhaustive dat a presented in a petition filed under the Toxic Substances Control Act (TSCA) , EPA rejected the petitioners’ request that products from HWF kilns carry warning labels because EPA found there was no difference in contaminant levels (or risks) in the product . 60 Fed. Reg. 39169 et
seq. , August 1, 1995. As recently as 2007, EPA’s Assistant Administrator for Solid Waste and Emergency Response (OSWER) stated in a letter to the Center for Maximum Potential Building Systems that “there is no difference in the ce ment from kilns burning hazardous waste compared to cement produced by kilns not burning hazardous waste.” See “Letter from OSWER Assistant Administrator”, included as Attachment G

.
Moreover, NSF International has reviewed data from several p ortland ce ment kilns burning HWF to assess whether product from such kilns could be safely used in concrete water pipes and water storage tanks. These studies have uniformly concluded that there is no statistical difference in contaminants between clinker or produc t made from kilns burning HWF as compared to kilns using only fossil fuels. 21

Aside from our general opposition to the proposed legitimacy criteria for non

- hazardous materials, w e take particular exception to the third criterion for fuels and the similar fourth criterion for ingredients as applied to p ortland cement kilns :

(iii) [ Fuels ] The non

- hazardous secondary material must contain contaminants at levels comparable or lower to those in traditional fuels which the combustion unit is designed to burn. Such comparison is to be based on a direct comparison of the contaminant levels in the non

- hazardous secondary material to the traditional fuel itself.

. . .

21 E.g ., “A Comparison of Metal and Organic Concentrations in Cement and Clinker Made with Fossil Fuels to Cement and Clinker Made with Waste Derived Fuels,” NSF International (1993). Included as Attachment BB

.Page 34 of 72 (iv) [ Ingredients ] The non

- hazardous secondary material used as an ingredient must result in p roducts that contain contaminants at levels that are comparable or lower in concentration to those found in traditional products that are manufactured without the

non

- hazardous secondary material.

Prop osed § § 241.3(d)(1)(3), 241.3(d)(2)(4).

As emphasi zed throughout these comments, a p ortland cement kiln (unlike a boiler or an incinerator) is an industrial furnace that manufactures a product to quality specifications. Portland cement manufacturers simply cannot afford to use fuels or ingredients that w ill interfere with that product quality, and w hen dealing with non

- hazardous secondary materials, it simply seems pointless to attempt to monitor (assuming one accurately and meaningfully could do so ) parameters such as contaminant levels in fuels, ingredi ents, and products when the variability of such levels could be just as great when dealing with different traditional fuels and ingredients.

As noted above, EPA has long maintained that p ortland cement quality is not adversely affected in terms of contam inant levels when hazardous waste is being burned. T here can be no justification for imposing such criteria, therefore, when non

- hazardous secondary materials are at issue. Most ironically, nothing in EPA’s regulations subjects product from p ortland ceme nt kilns burning hazardous waste to any legitimacy criteria (no r should they be , based upon all the data and findings that have accumulated over the years). It would in our view be supremely arbitrary and capricious, therefore, for EPA’s regulations to su bject product from p ortland cement kilns using non

hazardous secondary materials to legitimacy criteria.

In addition, a s we will be elaborating upon in our comments on the CISWI proposal, there are major complex implementation issues regarding p ortland c ement kilns’ coverage under the CAA § 112 MACT rules and the upcoming CAA § 129 CISWI rules. One such issue is how, when, and why a kiln may move from one regime to another, either voluntarily or involuntarily. If a regime is established by which a kiln could remain under CAA § 112 only if its secondary material fuel met certain contaminant level requirements, but the kiln could be challenged in the future on the ground that its fuel no longer met those requirements so that a State agency or EPA could sud denly declare that the kiln was covered by CAA § 129, the kiln would have every incentive to avoid burning the alternative fuel in the first place.

Finally , imposition of such sub jective criteria would inevitably invite disputes between and among regulat ed parties, regulators, and potentially citizens groups and greatly increase the burdens and transaction costs of attempting to operate under the system. It would thereby be an additional disincentive for parties to engage in the practice of beneficial re use and recycling of non

- hazardous secondary materials. Moreover, EPA has not articulated any reason for creating these obligations.

E. Used Tires Should Be Recognized as “Traditional Fuels”

Under EPA’s proposal as currently structured, materials classi fied as “traditional fuels” would not be deemed solid waste. Although EPA describes coal and petroleum coke as traditional, based on the extensive use developed over the last 20

- 30 years in the industry, many of the alternative fuelsPage 35 of 72 such as TDF can also be consider ed traditional. As explained earlier , the industry goals since 199 1 have emphasized use of alternate fuels and raw materials based on the industry increasing their reliance on this type of material since the 1980s. The practice is so predomina nt that the data used to

es tablish MACT standards under CAA § 112 for p ortland cement kilns contained significant information on kilns that were already using alternative fuels and raw mat erials as a standard practice.

Thus, use of TDF is a long

- standing and customary practice now characteristic of cement manufacturing fuel options. The number of cement plants utilizing TDF as a supplemental fuel has risen dramatically over the last 19 years. In 2009

, the cement industry consumed 355,000 tons of tires f or energy recovery which is a significant portion of the tires used for such purposes

. Furthermore, as of 2006, state and local environmental agencies have approved the use of TDF in 21

states. We believe these facts justify consideration for TDF as a tr aditional fuel for the cement industry as well as for other sectors.

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND ARBITRARY

Throughout these comments PCA has endeavored to demonstrate that, if EPA elects to go forward with the proposed part 241 RCRA rule as it has been proposed, p ortland cement kilns will, of necessity, be forced to stop using non

- haz ardous secondary materials because the compliance costs which they would have to incur under CAA § 129 and EPA’s pending (and future) regulation s implementing § 129.

For example, although it may not be what EPA intends, PCA’s members have advised us that the materials processing requirements which EPA would mandate under this rule, for purely arbitrary and not demonstrated environmental or sc ientific reasons, will, at the very least, cause them to stop using whole tires as an alternative fuel. As we discuss below, EPA has failed to conduct any meaningful analysis of this impact of the proposed rule on the operating costs of cement manufacture rs and other members of the regulated community, or the environmental impacts that EPA will cause by needlessly forcing industry to abandon the use, in whole or in part, of secondary materials as fuels and ingredients and burn more coal and other fossil, a nd mine more virgin materials for fuels and ingredients. As we discuss below, EPA has instead avoided, or attempted to downplay, the significance of the costs that, of necessity, the proposed rule would require be incurred by the regulated community in or der to prevent the secondary materials we use legitimately as a fuel (or an ingredient, if the final rule does not exclude ingredients), from being designated by EPA as a “solid waste” and thereby causing the unit in which that fuel (or ingredient) is used from becoming subject to § 129.

The NPRM asserts that the action proposed in this rulemaking “does not directly invoke any costs or benefits” and, therefore, that there was no need for EPA to have “prepared a separate economic assessment in support o f this proposal.” 75 Fed. Reg. 31889 (emphasis added). Several paragraphs later, however, the NPRM also states that compliance with the proposed rule will impose “costs and benefits indirectly associated with this action.” Id. (emphasis added). As we d iscuss below, PCA has a number of concerns with EPA’s assessment of the costs that this rulemaking willPage 36 of 72 impose on the regulated community, including the distinction EPA has sought to draw between “direct” and “indirect” costs. Aside from being a purely ar bitrary distinction, as we explain below, it is factually incorrect.

While PCA acknowledges that EPA did review costs “indirectly associated with this action,” 75 Fed. Reg. 31899, as part of its review of the “corresponding impacts assessed in the regul atory impact analyses prepared in support of the CAA proposed rules,” id., referring to the Boiler M AC T and CISWI rules, 22 we have significant concerns with both the substance of the analysis as well as its thoroughness in identifying the costs likely to be incurred. 23

The source for the preamble’s claim, that there are no direct costs, appears to be EPA’s cost review document which is contained in the rulemaking docket and identified as EPA

- HQ

- RCRA

2008

- 0329

- 0528 . This cost review document states in rele vant part :

The proposed NHSM, on its own, will not result in any of the costs, benefits, or other impacts described in this section. 24 As explained above, the proposed NHSM rule specifies criteria under which non

- hazardous secondary materials are consider ed solid wastes. Although the rule will determine which Section of the CAA under which a given combustion unit is regulated, the rule does not include emission standards and does not require changes in the management or use of secondary materials . Only w ith the promulgation of the air rules would society realize the costs and benefits and other impacts estimated with the methods described in this section. EPA therefore attributes these impacts entirely to the air rules.

22 The NPRM did not provide the identification number of the specific costing document to which the NPRM was referring. However, PCA assumes that the specific document being referred to by the NPRM was EPA

- HQ

- RCRA

2008

- 0329

- 0528. For the remainder of our comments in this section, therefore, when we refer to EPA’s “cost review” or “cost assessment,” we are referring to document EPA

- HQ

- RCRA

- 2008

- 0329

- 0528.
23 The NPRM’s description of the specific factors EPA actually assessed is both vague and, PCA submits, misleading (“These independent regulatory analyses measure, among other factors, the estimated net change in social welfare associated with these actions,” 75 Fed. Reg. at 31899) . Regardless of why the spe cific wording may have been chosen, the wording used nonetheless provides support for our concerns regarding the incorrectness of EPA’s belief that this rulemaking imposes no direct costs, as well as supports our contention that EPA’s cost analysis is inad equa te and incomplete . As written by EPA, the NPRM ’s costs and benefits discussion at 75 Fed. Reg. 31889, infers that this rulemaking will

, at worst, impose only a small number of minimal costs on the regulated community

, independent of what other costs w ould be incurred if, because of how EPA defines secondary material in this rulemaking, a unit becomes subject to § 129. Additionally, in light of the preamble’s discussion, and seeming downplay, of costs, a concern also arises over whether, by virtue of t he preamble, a court would conclude that the regulated community has not been given the full opportunity to comment on the EPA’s assessment of costs. See, e.g., Owner

- Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007).

24 The “section” the authors were referring to in this sentence is Section 3 of EPA’s cost review document. Section 3 is entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document (EPA

- HQ

RCR A

- 2008

- 0329

- 0528) and consists of five subparts: 3.1 (“Engineering Cost Methodology”); 3.2 (“Social Cost Methodology”); 3.3 (“Job Effects”); 3.4 (“Costs of Petition Process for Non

- Waste Determination”); and, 3.5 (“Benefits Methodology”).Page 37 of 72 EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 18 (emphasis added). 25 Other than making the assertion that the proposed rule “does not require changes in the management or use of secondary materials ,” neither the preamble’s discussion of the costs and benefits of the proposed rule, 75 Fed. Reg. 31889,

nor its source document, EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 , provide any explanation or other evidence to support the claim. Thus, EPA appears to be asking the public to accept its claim on good faith.

However, EPA’s claim has no merit. As we discuss below, the re are a host of costs which the regulated community will have to incur if the rule, as proposed, is adopted, including costs due to changes in the management or use of secondary materials which the proposed rule would, on an individualized basis, necessit ate.

Although neither the preamble nor cost review states so expressly, it appears that the rationale for EPA’s claim

– that there would be no changes in the management or use of secondary materials

– is that the intent of this rulemaking is solely to de fine, or identify, what non

- hazardous secondary materials are solid wastes for purposes of CAA § 129. In other words, excluding the proposed petition process (which we will address in a moment), EPA appears to believe, and therefore to have only focused o n what actions the regulated community will be required to do, and their costs, only if and after a secondary materials is deemed to be a solid waste for purposes of CAA § 129. For unexplained reasons, EPA has erroneously concluded, and therefore ignored, that the proposed rule clearly contemplates a range of activities, in addition to the proposed petition process, which the regulated community will, on an individualized basis, have to engage to preclude a secondary material from being designated a solid waste and thereby avoid the triggering of § 129. 26 For purposes of our comments, PCA will refer to the cost of the petition process and such other activities as “pre

- designation costs.”

The fact that EPA recognized, and therefore attempted to quantify th e petition process costs, in its cost review document while at the same time contending in the preamble that the regulated community will not incur any pre

- designation costs, is not only a contradiction but also a clearly erroneous and arbitrary assertion; especially when EPA has failed to provide any factual support or reasoned explanation to back up its claim. However, before we discuss pre

- designation costs that EPA has failed to consider, we first want to discuss the inadequacy of EPA’s analysis of the costs of the petition process.

As a preliminary matter concerning the petition process, PCA takes note of the fact that, in cost review ’s analysis o f the petition process, EPA refers to the petition process as “voluntary” but

25 The “Section” b eing referred to in the above

- quoted statement is Section 3 of EPA’s cost review document. Section 3 is entitled “METHODS FOR ASSESSING IMPACTS.” It begins on page 18 of the cost review document and consists of five subparts: 3.1 (“Engineering Cost Metho dology”); 3.2 (“Social Cost Methodology”); 3.3 (“Job Effects”); 3.4 (“Costs of Petition Process for Non

- Waste Determination”); and, 3.5 (“Benefits Methodology”).
26 PCA takes note of the fact that, in its cost review of the petition process, EPA refers to the petition process as “voluntary,” while also acknowledging that EPA “requires [petitioners engaging in the process] to provide information describing how the secondary materials satisfy the legitimacy criteria described above, along with analysis of cer tain market, human and environmental health, and other factors.” EPA

- HQ

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- 0329

- 0528 at 21.Page 38 of 72 goes on to immediately ackn owledg e that the proposed petition process “ requires [petitioners engaging in the process] to provide information describing how the secondary materials satisfy the legitimacy criteria described above, along with analysis of certain market, human and envir onmental health, and other factors.” EPA

- HQ

- RCRA

- 2008

- 0329

- 0528 at 21 (emphasis added). PCA infers that EPA agrees that the costs incurred to comply with the petition process and other pre

- designation activities are costs which should be considered and, therefore, that EPA’s use of the term “voluntary” was intended to be purely descriptive. As neither the preamble, nor the cost review, make any further mention of the term “voluntary,” PCA assumes that EPA is not claiming that, because such activities are engaged in “voluntarily,” there is no need for EPA to conduct a thorough cost analysis of all such pre

- designation activities. If, on the other hand, EPA is asserting (or will assert) this is its rationale for not conducting a thorough analysis, EPA need s to state this and give the public an opportunity to respond. PCA certainly does not believe EPA can rely upon such reasoning, and EPA’s analysis of the costs of the petition process would support our view. Turning, then, to EPA’s review of the cost of the petition process. As we previously stated, PCA contends that EPA’s analysis is inadequate and incomplete. In fact, the cost review effectively agrees with PCA’s assessment, by pointing out the following deficiencies: The costs associated with this pe tition option are uncertain, both nationally and at the level of the facility. Nationally, the costs of the petition process will depend largely on the number of facilities that submit petitions. Due to the uncertainty surrounding the number of petitions likely to be submitted to EPA under this rule, we do not include the total costs of the petition process in the primary cost estimates presented in this document. The costs of the petition process are also uncertain at the facility level, but EPA already has in place certain petition processes whereby parties may request exclusions similar to the non

- waste determinations established in the proposed rule.

EPA

- HQ

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- 0329

- 0528 at 2 2. 27
While EPA’s foregoing statement evidences the inadequacy of EPA’ s cost assessment, it also falls short in recognizing the extent of the inadequacy and incompleteness of EPA cost assessment. For example, while EPA’s cost review uses the 40 C.F.R. 260.22 delisting petition and a subpart of the petition for variance from classification as a solid waste as analogues to estimate the costs of the petition process being proposed in this rule, EPA

- HQ

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- 0329

- 0528 at 2 2, the cost review provides no details of analytical methodology and thus “failed to provide an opportun ity for comment on the methodology .” Owner

- Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 , 206 (D.C. Cir. 2007). Among other things, it is impossible to tell whether the costs estimates EPA presented on page 22 of its review reflect only the costs that would be incurred to prepare and file a petition with EPA, or also include all of the related

27 Even assuming there are similarities between the processes, as EPA asserts, EPA has not claimed they are identical. Thus, by failing to provide a substanti ve analysis of the process and their specific similarities, and also differences, EPA has not provided the public an opportunity to comment on the merits of its claim and the accuracy of the specific cost estimates it has put forth.Page 39 of 72 costs which would be incurred in order to prosecute a petition to conclusion; such as, the cost to respond t o comments filed by the public in opposition to a petition, the cost of a a n administrative appeal by the denial of a petition by EPA or an administrative appeal initiated by an environmental group of EPA’s grant of the petition, and the cost of a judicial appeal of a denial of a petition or an appeal initiated by an environmental group of EPA’s grant of a petition. Given that amount of the dollar values presented on page 22 of EPA’s cost review, it is highly unlikely that EPA’s published estimates include these additional costs. Further, the failure to consider all such additional costs, given that EPA’s proposed petition process would allow for the public to comment on each petition, makes it extremely more likely that such costs will be incurred and, th erefore, that much more arbitrary for EPA to fail to consider such additional costs. PCA also assumes that EPA’s cost estimates only include the direct out

- of

- pocket costs of such petitions, and that no consideration has been given to identifying and cal culating the costs that might be incurred, or the dollar amount of the operating efficiencies lost, or the lost jobs, while a petition is pending. Such costs would be incurred, for example, if a facility has to purchase more expensive fuel while its petit ion to use a less expensive, secondary material as an alternative fuel is pending, or being appealed. The potential for this and other such lost operating efficiencies to occur is quite real under the EPA’s proposed petition process and such additional co sts should be recognized and taken into account by EPA as part of its cost assessment. In addition to the cost of the petition process, which is the only pre

- designation cost factor EPA did attempt to analyze, the proposed rule will necessitate changes i n the management or use of secondary materials as a result of the proposed rule’s requirement that, to avoid being designated a “solid waste,” secondary materials will have to be “sufficiently processed.” Under the currently

proposed rule, there clearly w ill be processing costs that will need to be incurred, including by cement manufacturers. However, because of EPA’s current indecisiveness on this issue and the NPRM’s insufficient specificity 28

EPA has, effectively, three courses of action which it can take with respect to t he deficiencies in its cost review. One option is simply to ignore the concerns we have expressed here and proceed to final rule without addressing the defects we have identified. However, PCA believes that the courts would overturn and remand EPA’s fina l rule should it choose this path. A second option is for EPA to agree with the concerns we have raised with respect to the inadequacy and incompleteness of its cost review and cure the defects by conducting a meaningful and comprehensive review of the co sts associated with this proposed rule and republishing the rule with the revised cost analysis for public comment. A third option available to EPA is to amend the proposed rule by adopting the revisions PCA is recommending in these comments, including: d esignating scrap tires as a traditional fuel; excluding ingredients from the scope of the rulemaking; , only EPA can realistically assess what the cost, or range of costs, of the processing to be required might be. To date it has not. Here again is an additional reason why EPA’s cost review and analysis is inadequate and incomplete.

28 T he NPRM, in fact, c oncedes PCA’s point, wherein it state admits that “there is a question whether the definition of processing is sufficiently clear so the regulated community can appropriately apply the definition.” 75 Fed. Reg. 31878. The NPRM goes on, then, to compound EPA’s failure to identify and calculate the proposed rule’s costs, and the regulated community’s ability to respond in any meaningful way, by requesting public to offer comment and suggestions on what the final rule’s specific requirements should be. See, e.g., 75 Fed. Reg. 31878

- 79.Page 40 of 72 and eliminating the proposed rule’s processing requirements for scrap tires. EPA’s adoption of these revisions PCA is recommending would not only elimina te costs that the current proposed rule would impose as well as the need for EPA to have to analyze such costs, but would also, as we discuss in greater detail elsewhere in these comments, further RCRA’s goal of promoting beneficial material recycling and reuse.

VIII. PCA’S RESPONSES TO SPECIFIC REQUESTS FOR COMMENT AND INFORMATION IN EPA’S PREAMBLE

In the remainder of these comments, we will respond to various requests for comments and/or information as set forth in EPA’s preamble. It is important to note that in some of the responses below, we are providing comments and information only as a “backup” in the event EPA were to decide to issue a final rule with certain provisions that we have shown should not be included earlier in our comments.

For i nstance, we explain earlier in our comments that EPA does not have the authority to regulate ingredients under CAA § 129. The fact that we may offer some comments, suggestions, and/or information regarding ingredients below in response to EPA’s request sh ould in no way be regarded as any concession on our part regarding our basic legal position. For another example, we explain both above and below why we believe “legitimacy criteria” have no place in this rule for non

- hazardous materials as applied to an industrial furnace producing a product, such as a p ortland cement kiln. The fact that we offer certain comments, suggestions, and/or information in response to EPA’s request for comments on legitimacy criteria below should in no way be regarded as any con cession on our part regarding our basic position that no legitimacy criteria should be included.

A. Additional Information on non

- hazardous secondary material (“NHSM”), Federal Register page 31850

. EPA defined a list of NHSMs known to be in use in the prea mble, and asked for additional information to describe beneficially used materials.

In addition to information provided throughout our comments, PCA offers the following information with respect to TDF:

• Used tires have been utilized historically as fue ls and have been managed as a valuable

resource ; particularly tires that are collected directly from retailers or other tire changing facilities or through state or local tire collection programs with respect to handling from the point of generation

.

• The EPA should allow the same consideration for tires that is allowed for biomass, wood from forest fires, and crop residuals

– that is if the materials are properly managed and have a meaningful heat value then they are traditional fuels and are not considere d solid waste.Page 41 of 72 • The EPA points out that zinc may be present at higher concentrations in TDF than in coal, but does not provide supporting data in the preamble

. Data available from the USGS database indicates that the average bituminous coal concentration for zinc is 73 ppm. Note that this coal data includes concentrations of zinc as high as 51,000 ppm. 29 Zinc in tires is typically around 2% (20,000 ppm). Thus, zinc concentrations in TDF could be similar to coal. However, what is important is the potenti al for air emissions if used tired are burned. EPA conducted a study in which tires were burned in a test incinerator without the aid of any emission control devices

. 30 The study concluded that, with the exception of zinc, there were no significant increa ses in air emissions when tires were substituted for coal. Zinc is not defined as a hazardous air pollutant (HAP) which is a criterion to be considered a “contaminant” under this proposed rule. However, the EPA stated that the zinc emissions would have b een effectively eliminated if an appropriate control technology had been used

, which would be the case for any cement plant burning used tires. EPA should focus more on the fact that tires have lower concentrations of other metals with greater toxicity, s uch as mercury. Furthermore, there is significant environmental benefit from burning used tires in place of coal due to the typical reduction found for numerous other emissions, such as greenhouse gases, particulate matter, NOx, SO 2 and dioxin/furans.

B. In formation on Additional Traditional Fuels, Federal Register page 31856

. EPA requests comment on whether other fuels in use today should be classified as traditional fuels, and for supporting information.

PCA believes that the traditional fuels category should be broadened, as described throughout our comments. In the ANPRM, EPA acknowledged that “...there are secondary materials that may not have been traditionally used as fuels, but that are nonetheless legitimate fuels today because of changes in techno logy and in the energy market

. In cases where these legitimate alternative fuels have not been discarded, EPA said that it would not consider them to be solid wastes.” 75 F ed. R eg. 31853 (emphasis added).

In this proposal, EPA “...recognizes that traditio nal fuels are not solid wastes when burned in a combustion unit.” In the following sentence, EPA states that “... [t]raditional fuels are those fuels that have been historically managed as valuable fuel products rather than being managed as waste materials. ” 75 F ed. R eg. 31856

.
Yet, EPA limits the definition of “traditional fuels” to a very narrow universe of materials, namely “...fossil fuels ( e.g., coal, oil, including used oil meeting on

- specification levels, natural gas) and their derivatives ( e.g., pet roleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas). Clean

29 USGS Nat'l Coal Resources, US Coal Quality Database, available at: http://energy.er.usgs.gov/coalqual.htm . Included as Attachment CC.
30 Referenced from the TNRCC “Air E missions Associated with the Burning of Tire

- Derived Fuel”, Waste Tire Recycling Program, March 2001 . Included as Attachment DD.Page 42 of 72 cellulosic biomass materials are also traditional fuels rather than wastes when burne d as a fuel.” 75 F ed. R eg. 31856

.
By their very nature, some of these “traditional fuels” are secondary materials (used oil, petroleum coke), yet they are defined as traditional fuels in this proposal. There are many other materials that might be consi dered as secondary materials, but because of their energy content, have been identified as viable fuels for industries such as cement manufacturing, particularly as the cost of fossil fuels have increased over time. These “changes in... the energy market”, as well as systems designed and installed by cement plants in order to manage these materials (“changes in technology”), would suggest that materials such as plastics, paper and paper residues, and tires should qualify under this definition of “traditional fuels

. ”

There are other fuels used by cement kilns such as glycerin, a by

- product of biodiesel production, that are not specifically mentioned as "traditional fuel

. " It is generated from agricultural seed or fast growing grass, but can also be generate d from vegetable grease or oils. There is no way to distinguish which source was used as feedstock or for that matter, other potential new sources being evaluated today, such as algae, etc. Since the only difference is the source (all biomass), and all o ther aspects are identical, it is not intuitive that some materials should be arbitrarily identified as “traditional fuels

, ” but others as “secondary materials

. ” It is our contention that all biomass

- derived materials may be classified as traditional fuel s. We also believe that if a material is capable of being used for its energy value to replace fossil fuels, then that objective meets the individual company goals, our national goals, and international goals for sustainability. We do not believe it is

a ppropriate to use our U.S. solid waste regulations to inhibit the vast strides we have made on reuse of these non

- hazardous materials in the energy intensive cement manufacturing industry

.
The cement industry has integrated alternative fuels and raw mate rials in its fuel consumption strategies for more than 20 years. The following table illustrates the use of alternative fuels in the cement industry in the last decade. As this table illustrates, very large quantities of alternative fuels are being used. The major growth category is “other alternative fuels.” This includes a wide variety of alternative fuels including wood wastes (sawdust, planer shavings), paper/cardboard, spent pot liners, off

- spec products/packaging, plastics, biomass, biodiesel wast es, glycerin, vegetable oils, etc.

The decline in utilization of alternative fuels in the past 2 years is primarily due to the construction and cement consumption downturn the industry has experienced, although even in the midst of this downturn, consu mption of “other alternative fuels” increased. Cement production has been severely impacted by the recession and has resulted in numerous plant closures as well as temporary shutdowns. This suggests that the total amount of fuel burned by the industry (o f all types) has dropped significantly. Thus, alternative fuel consumption of waste oil, solvents, and tire derived fuels would also be reduced accordingly.Page 43 of 72 Nonetheless, the number of plants that have used alternative fuel strategies has grown as illust rated by the second table. 31

31 North American Cement Industry, Annual Yearbook 2009, Portland Cement Association , ER395, Table 44. Attachment N. This shows the use of alternative fuels by the number of plants from 1998 through 2009. Given the percentage of plants using alternative fuels, the importance of alternative fuels cannot be understated.Page 44 of 72 Quantities of Alternat ive Fuels Burned in Cement Kilns

Alternative Fuel Units 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Waste Oil gallons 7,519,371 5,327,494 8,312,276 6,709,055 7,075,863 10,739,071 9,386,766 22,635,768 10,675,288 7,168,381 Other Alternati ve Fuel * tons 83,815 225,514 244,077 310,589 842,418 493,761 494,063 645,376 719,478 855,376

Solvents tons 840,388 824,198 829,166 809,299 813,116 728,338 736,279 691,862 743,888 579,636

TDF tons 303,330 275,385 326,158 383,221 44 1,102 450,267 463,794 478,858 475,948 355,918 * This includes such other alternative fuels such as biomass, plastics, wood wastes of various types, paper, spent pot liners, and off

- spec products/packaging, etc.

Alternative Fuels Utilized 1998 199 9 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Total Reporting Plants 93 93 95 95 98 97 96 96 98 98 97 90 Plants using Alternative fuel 53 51 54 54 55 56 62 64 65 64 66 63
Percent 57 54.8 56.8 56.8 56.1 57.7 64.6 66.7 67 65.3 68 70 Types of Altern ative Fuels Used* Tire Derived Fuel 35 35 38 38 37 41 44 52 47 41 43 40 Waste Oil 6 8 11 10 10 13 16 17 16 15 18 18 Solvents 14 12 12 10 12 13 12 11 10 10 11 11 Other 19 17 18 24 23 22 28 36 40 39 42 43

* Plants may use more than one typ e of alternative fuel

Source: PCA U.S. and Canadian Labor

- Energy Input SurveyPage 45 of 72 C. Petition Process for Designating Traditional Fuel, Federal Register p age 31856

. EPA requests comment on whether the rule should include a petition process to demonstrate that a non

- hazardous fuel qualifies as a traditional fuel.

We believe that the petition process would be too slow and cumbersome to be effective. In addition, adding yet another layer of public participation and notice to the existing regulatory structure is unnecessary and burdensome to industry without providing any real benefit, environmental or economical, to stakeholders or the general public.

PCA believes this type of process, like the non

- waste determination, would be an unpredictable and unnecessa ry process that would not only be more costly to producers and thus consumers but would certainly be a disincentive to utilizing NHSM . The process includes an initial decision by the EPA which may later be overturned or changed based on public comments. This will not only slow the process but also make it unduly political where a scientific approach would be more beneficial to the environment and to the public.

Also, as described elsewhere in PCA’s comments

, the concept of “traditional” as used by EPA in the proposed rule seems arbitrary and inconsistent. We object to the way it is applied as a key term to make a decision that may result in a significant negative influence on the long

- term reuse program in our industry for the sake of using a previous ly poorly designed (RCRA) component of the regulations. In Europe, what EPA considers “non

- traditional” fuels have been used for decades. We are concerned that the petition process will be too slow, and that clear decisions that allow sustainability prin ciples to stay in place will be difficult to obtain . Along the same lines we are concerned that the process will not be dependable to make operating decisions on the timely basis necessary to continue to incorporate these types of programs into manufactur ing.

D. Definition of Processing, Federal Register p ages 31861, 31876, 31878

. EPA has proposed a definition of “processing” for determining if a once discarded material can be used without it being considered a solid waste, and requests comments on the defin ition and on adopting an additional definition for processing tires where the metal would not be required to be removed

. ..

PCA objects to the concept of processing in determining whether a material that can be used is a solid waste (for purposes of § 12 9 versus § 112 regulation). M any materials are not only similar to “traditiona l fuels” but also are bona fide fuels without any further processing. We feel in fact that even if a fuel is not similar to a “traditional fuel” it should still be considered n ot a solid waste since its management, use and impact on the environment are similar or the same as that of a traditional fuel , as has been demonstrated by the cement industry through years of program implementation

.Page 46 of 72 PCA believes the EPA should consider NHSM that is used in a manner no different from other non

- waste fuel /ingredient s in use today to be considered a non

- waste fuel/ingredient product even though they may have been discarded in the first instance

. One other way to look at processing, however , is for EPA to recognize that in a cement kiln; the process inherently works to “process” the materials in the kiln as opposed to creating extra steps that must be implemented preceding the kiln. Hence, the cement kiln eliminates the need for the process ing step(s). We therefore believe that EPA could and should recognize that processing “in” the cement kiln system inherently meets the definition of processing.

In demonstrating why processing is not a good option for defining waste versus non

waste, the use of TDF in cement kilns can provide an easy to understand example. This example illustrates why there should be no criteria on processing of tires to be used as legitimate non

solid waste fuels, or there should at least be a subcategory for whole t ires and TDF with metal for use in cement kilns as legitimate non

- solid waste fuels. EPA discusses the processing of tires to meet requirements for a specific combustion unit design, and references ASTM Standard 6700

- 01 as describing practices for using T DF as fuel, including the size and metal content in order to optimize combustion. EPA proposes that to be sufficiently processed

, the TDF meet the ASTM standard for “relatively wire free” while also acknowledg ing that cement kilns benefit from the wire as an ingredient for producing cement clinker.

• While tires may be processed to size and metal content specifications for certain combustion units, it should be recognized that for cement kilns

, the specification would be whole tires or tire chips without me tal being removed. Therefore, in the case of cement kilns

, whole and chipped tires without the metal removed already meet the specifications for use in cement kilns as legitimate non

- solid waste fuels.

• Cement kilns can utilize tires with metal more effic iently than units where specifications require metal to be removed. In the process of removing the metal, a certain amount of rubber agglomerated to the metal does not become part of the TDF. Based on the Rubber Manufacturers Association, approximately 2 0% of the tire weight is lost to metal, fluff and agglomerated rubber.

• The need to remove the metal component of the tires to reduce metal content in ash is not applicable to the cement industry as the metal is a legitimate secondary material in the
proce ss of making cement. Metals are captured by being chemically incorporated into the product during the chemical reaction that takes place in the kiln. Furthermore, it is conceivable (and likely) that if it were necessary to shred tires and remove the meta l to make a non

- solid waste TDF for use in a cement kiln, the removed metal would meet the requirement of a sufficiently processed NHSM that would also go to the cement kiln. This would result in the same materials being introduced to the kiln system as i f whole tires or shredded tires with metal were used, and the only thing accomplished would be a tremendous waste of energy and money to “process” the tires.

• With regards to removing metals to reduce metals in emissions, EPA should focus more on the fact that tires have lower concentrations of certain metals, such as mercury asPage 47 of 72 compared to “ traditional ” fuels. Furthermore, there is significant environmental benefit from burning used tires in place of coal due to the typical reduction of numerous other emi ssions, such as greenhouse gases, particulate matter, NOx, SO 2 and dioxin/furans.

• Even though EPA only cites the ASTM Standard 6700

- 01 as an example, it later relies on the criteria of “relatively wire free” from the standard to define what is sufficientl y processed. This wrongly implies that TDF that does not meet the ASTM standard is not legitimate fuel and references the ASTM standard out of its narrow context.

i. The context of the ASTM standard is the practice for processing tires into chipped materi als with or without metal being removed to meet a specification necessary for use in existing solid fuel combustion units with minimal adjustments or retrofitting. The ASTM standard excludes whole tires not because whole tires are not a legitimate fuel, r ather because whole tires do not require processing to be used as a fuel in a cement kiln, and as no processing is required, there is no basis for a standard practice. Whole tires certainly meet the intent of the ASTM standard

– that is to be used in an e xisting combustion unit (i.e., a cement kiln) with minimal adjustments or retrofitting. ii. The proposed solid waste rule preamble states that only TDF meeting the “relatively wire free” definition per ASTM (<1% bead wire and <2% total wire) is sufficiently
pr ocessed. This is arbitrary. The ASTM standard states that metal content can range from wire free to no wire removed. As stated in the ASTM standard: “TDF tolerable wire content is determined by a combustion unit’s design consideration. TDF’s wire remo val is determined by production process capabilities. Some combustion units such as cement kilns can tolerate all inherent wire, so no removal is
necessary .” iii. The ASTM standard discusses the need to remove wire based on various processing problems as the y generally relate to boilers (e.g

. , fuel feed systems, grate maintenance, ash circulation/handling, and ash disposal). It also discusses issues for the amount of ash if wire is left in and the metal content of the ash. Therefore, metal that may be remov ed to meet other combustion unit specifications or because of concerns for metals content of the ash is not a concern for a cement plant. An example of a combustion device that would need “wire free” fuel would be a boiler or a fluidized bed boiler unit f or power generation. In those units, the wire builds up and the unit would require shut down on regular intervals to clean out the ash and accumulated wire. However, in the case of a cement kiln, the wire is used beneficially as iron incorporated into th e product and does not remain in the combustion unit, the cement kiln. Therefore, the wire is not detrimental to the process but replaces virgin iron raw materials and inherently becomes part of the product.

Most references to chip size in the ASTM stan dard are with respect to handling and conveying as well as residence time and combustion efficiency in boilers. It goes on to say that to be economical

, the existing unit should have the ability to use TDF without modification, and that a supplier must be able to economically collect, process and transport TDF to thePage 48 of 72 combustion unit. In the case of cement plants, the existing units can utilize whole tires without (or minimal) modification and it is economically feasible for a supplier to collect and trans port whole tires, as these delivery systems have been in place for many years at many of the plants.

E. Additional Information on Levels of Contaminants, Federal Register page 31863

. EPA discusses the amount of uncertainty associated with the level of

contam inants in NHSMs in comparison to traditional fuels, and requests commenters to provide additional data on this topic , and specifically on creosote treated lumber

.

While PCA does not have specific data on contaminant levels in creosote treated lumber, th e level of polycyclic aromatic hydrocarbons (“PAH”) in alternate fuel has been shown not be an issue when these materials are managed in cement kilns, and therefore we do not believe the level of PAH should be an issue in the Solid Waste rules. Destruction efficiencies of the primary organic preservative constituents in treated wood have been demonstrated to be in the range of 99.99%

. 32 C reosote is a coal tar oil derived from the distillation of coal tar. Wood timbers are typically treated with creosote fo r its wood preservative characteristics. Coal tar oil is a derivative of coal and thus should be considered a traditional fuel. Therefore, creosote treated wood is a combination of two traditional fuels

– wood and coal tar oil.

Cement kilns, with flame

- zone temperatures in excess of 3400 o F and residence times in excess of 2 seconds have routinely shown that organic constituents are destroyed at 99.99%+ from a wide range of use of fuels that includes both fossil and alternative fuels. If constituents fr om all types of fuels in a kiln have consistently shown to be destroyed, we contend that this fact would certainly apply to the range of non

- hazardous fuels that EPA is addressing in this proposal.

Data is available that shows the variation in the most c ommon “traditional” fuel used, coal. The USGS generated data on more than 13,000 samples collected by the USGS and cooperative state geological surveys . The USGS database contains coal quality data for 7,430 coal samples that represent complete

- bed thick nesses at various localities throughout the U.S. This is the most complete dataset for coal available.

In order to provide the most complete picture of the variability of the coal, all bituminous coal data analyses were used to prepare averages and ot her statistical data. Since cement plants use a number of different sources of bituminous coals (Appalachian, Midwest, and West), the use of the entire database was chosen. The following is data for sulfur, Btu, mercury, cadmium and lead concentrations o f coal from this database:

32 Recycli ng Waste Treated Wood As Fuel; An Environmental Responsible Option, Stephen Smith, P.E. April 2005

. Included as Attachment EE.Page 49 of 72 Coal Data

- National Coal Resources Data System US Coal Quality Database

- All Bituminous Coal Analyses

Sulfur % Heat Value Btu/lb Hg
ppm Cd
ppm Pb
ppm Average 2.18 12,456 0.19 0.49 11.49
Minimum 0.04 5,030 0 0 0.17
M aximum 17.3 15,247 44.0 160 520
Standard Deviation 1.80 1,447 0.85 5.31 23.7

As indicated by the above table, the range of minimum and maximum values for all of these important parameters is quite large. The standard deviation also indicates that the variability can be quite significant. The above represents what is most likely the worst

- case in terms of variability, but it does emphasize the fact that even traditional fuels cannot be assumed to have a consistent level of sulfur or mercury. While the content may be much more consistent from a single source, facilities almost always source traditional fuels from multiple sources.

F. Sewage Sludge Approach, Federal Register page 31866.

EPA requests comments on the proposed approach for sewage sludge with respect to redundancy between a solid waste definition and section 405 of the CWA.

Sewage sludge that has been treated in thermal drying systems and other processes for the purpose of primary fuel replacement in cement and other industries should not be considered a solid waste. Utilizing the inherent fuel content of this material for heat recovery and energy consumption demonstrates that this material has not been discarded and is a legitimate fuel. There are also other industry uses of these biosolids (note that “wet” and “dry” sludge have the same general composition and there is no reason to expect varying emission results

. )

This is again an issue of a better use of a material. Many States are ending land

application of sludge due to contaminate bu ild

- up. So cement kilns should be the logical destination for positive use of a material which would otherwise become a n increasingly challenging disposal issue

.
There are examples where cement kilns are using sewage sludge in the cement manufacturing pr ocess. For example, Lafarge is currently using sewage sludge as a fuel, on a limited basis, in a kiln in Austria. Mitsubishi Cement Corp (MCC) in California has been using a wet biosolid material as NO x control, and that material has no significant heati ng value because of the high water content . We are also aware that a limited number of U.S. facilities have recently begun testing/using a dried/processed sewage as a supplemental fuel. This sludge is dried and pelletized and has a heating value compar able to many alternative fuels. WePage 50 of 72 understand that these trials are still in the stage of testing the logistics

, and that the supply may be limited

.

The following points are provided as additional information :

• It may be useful to note that approximately 60% of the biosolids produced are land applied, composted or used as landfill cover, 22% are used for energy recovery, and the remaining 17% are disposed of in landfills. Source: National Biosolids Partnership (2002) A guide to understanding biosolids issues. http://biosolids.org/docs/Guide_to_Understanding_Biosolids_Issues_052506. pdf

• Although useful as a fertilizer and soil conditioner, sewage sludge, if applied inappropriately can be potentially harmful to the environment and th e health of humans and animals.

• If agricultural land is flooded, frozen or covered with snow, biosol ids cannot be applied due to the chance of runoff.

• An advantage to consuming biosolids for energy recovery is that it is a sustainable fuel that helps to move society towards a carbon neutral footprint. Zero ash is generated when these materials are bene ficially used in a cement kiln, unlike other energy recovery uses where an ash is created that must ultimately be disposed.

G. CCR Ingredient or Fuel Value, Federal Register p age 31868

. EPA solicits comment on whether the use of CCRs is primarily used for t heir ingredient value as opposed to their fuel value.

PCA believes that CCRs are utilized as ingredients instead of fuels, and as such can satisfy the legitimacy criteria for ingredients. Air emission controls in place regulate maximum emissions which inherently limit the types of materials that are acceptable based on the established regulatory framework. We are currently not aware o f CCRs that are being used for purposes of fuel rather than ingredients and should be handled as such if this distinctio n is so key to t he final regulations.

H. Coal Combustion Residual Contaminant Changes , Federal Register p age 31869

. EPA discusses coal combustion residuals (CCR) use and requests comment on whether advanced emission control technologies are or are expected to result in increased levels of contaminants in a manner that CCR will not satisfy EPA’s legitimacy criteria.Page 51 of 72 There is no data and no way for the cement industry to predict the result of new or future technology on the character of fly ash because of t he use of advanced pollution control technology. It should be noted though that there is no current information available that has proven that advanced emission control technologies directly result in increased contaminant levels. This future scenario al so helps make the point that alternative materials (fuels and ingredients) have and will continue to change in nature . For example, when activated carbon injection ( ACI ) is incorporated for emission control

, the impact this process may have is already add ressed as part of the future LLL MACT standards. Therefore, to implement these types of sustainability programs in manufacturing, the flexibility to work with the changes over time is key. The existing regulatory controls are in place to regulate emissio ns. As with other comments PCA is offering, the bottom line is that we do not believe that EPA working to find definitions that lock beneficial materials into a “waste” versus no

- waste designation to prohibit their future reuse is in line with sustainabil ity goals of industry

, EPA , or industry

.

I. Levels of Contaminants in Fuels, Federal Register p age 31872.

EPA requests comment on comparing the level of contaminants in alternative fuels to traditional fuels.

PCA contends that this comparison is not neces sary or pertinent with respect to the cement industry for purposes of establishing legitimate fuel criteria. Cement kilns are already regulated under multiple rules that have been put in place to ensure that facility emissions don’t adversely impact human health and the environment ( See PCA C lean A ir A ct Permitting Manual, Attachment H ) on permitting that describes the CAA permitting process). We believe that the current regulations already in place governing cement kilns and the range of fuel s they use a re sufficient to protect human health and the environment. Therefore, we recommend that EPA not include any contaminant comparisons of NHSM to “traditional fuels” out of this regulation since they already do not escape regulation under Clean Air Act and/o r state permitting with respect to emissions. Such action by EPA would only serve to duplicate current permitting and/or Clean Air Act regulations.

Further, we do not believe that there is an efficient or practical approach to comparing 187 HAPs plus 9 Section 129 constituents bet ween an appropriate alternative material and “traditional” material. The variability inherent to any material, whether naturally occurring or man

- made complicates a direct comparison. Further, the real intent, as noted by EP A several times in the preamble is protection of human health and the environment. First, a comparison of constituents does not deal with actual environmental impact. As noted by EPA in the LLL proposed standards “the combustion of secondary materials as alternative fuels (in cement kilns) did not have any appreciable effect on the amount of HAP emitted by any source.” 33

33 74 Fed. Reg. 21138

. The proposed approach by EPA ignores that in many if not most instances, cement has contributions of contaminants from raw materials as well as fuels. Further, the contributions from raw materials outweigh that of fuels. As a result, the fuel contaminant level in some cases can be high but not high enough to significantly change the total input rate

– to materially affect the emission ra te.Page 52 of 72 A number of facilities in our industry have performed studies over the last two decades showing the same results with respect to the lack of negative environmental impact. The segment of the industry which uses hazardous materials as alternative f uel has conducted multi

- pathway risk assessments as part of the RCRA permitting process to demonstrate that emissions from operations do not pose unacceptable risk to human health and the environment. The studies address operations from cement manufacturi ng while using a wide range of alternative fuel and raw materials (including non

- hazardous and hazardous waste), thus can be viewed as representative of the industry alternate fuel and raw material use as a whole. As the agency approved permits for each f acility that conducted the assessments, this action demonstrates that the operations reflected protection of human health and the environment. Therefore,

w e believe that adding a Solid Waste driven regulation that adds complexity to the rules already in p lace for protection of emissions is unnecessary and not pertinent when applied to the cement manufacturing
process.

J. Record Maintenance and Notification, Federal Register page 31874.

EPA requested comments on the need for record maintenance and notificatio n for self

- implementing rule components.

PCA agrees with the EPA determination that any additional regulatory notification and record keeping imposed under this proposal would be duplicative and therefore an unnecessary burden. As described elsewhere i n our comments, the level of regulatory approvals in place for the use of alternative materials at cement manufacturing facilities is already significant.

K. Inventory Management, Federal Register page 31874.

In Section D.2, EPA states that third parties rec eiving materials from generators do not have sufficient incentive to manage the materials as useful products (p age 31875). EPA also points to over

- accumulation of materials by middlemen who may also lack incentive.

With materials which are sent directl y from a generator to a cement kiln, there is sufficient incentive to distinguish the facility from the scenarios cited. The value of the material to the user is the same as that for the generator.

The user has absolutely no reason to maintain the mater ial in inventory. In fact, the longer it sits in storage, the more its value degrades (e.g. weathering can diminish fuel/ingredient value) and the more virgin material must be used. PCA therefore believes EPA should allow direct use of non

- hazardous alter native materials to be treated the same as material under the control of the generator, as we believe the regulations as written add a cumbersome and unnecessary regulatory approach. In addition, we believe that the automatic designation of a material as a solid waste if it is out of the control of the original generator is not a legitimate argument since there is potentially no difference between materials whether the original generator has control over this material or not. In the preamble to this propos ed rule, in fact, EPA quotes from a recent D.C. Circuit opinion stating that a secondary material “transferred toPage 53 of 72 another firm or industry for subsequent recycling” is not automatically a solid waste. See 75 Fed. Reg. 31851.

As we have pointed out many times throughout these comments, assumptions EPA makes regarding hazardous material handling and management simply cannot be logically carried over to non

- hazardous materials. This is one more example.

L. Discard Definition for Newly Generated Tires, Fede ral Register pages 31874.

EPA requests comments on the definition of discard with respect to tires in a state collection program.

PCA rejects EPA’s application of “discard” to newly generated scrap tires. Comments on several state tire regulations are included a s example s. California law (PRC Section 42870

- 42871) prohibits landfills from disposal of whole tires and prohibits dumping tires or storing them in non

- permitted locations. In fact, California Public Resources Code (PRC) Section 42861(d) note s, “Used tires represent a valuable state resource which should be reclaimed and recycled whenever possible.” The used tires must be transported by a State

- licensed hauler and all shipments are manifested on a “Comprehensive Trip Log ” (PRC Section 42951

- 4 2956)

. Landfills also set tires aside for transport to facilities with further use for these tires. Landfills in California may accept chipped tires or chip tires on

- site, but very few landfills do that (Azuza landfill is the only one in Southern Califor nia).

In addition, t ires that are abandoned illegally must be transported to a proper usage facility , thus they are not discarded, and rather they are “temporarily misplaced”

. Therefore, by law, tires are not discarded, but are moved through a process to a further use. This procedure is exclusive to tires; no other materials are included with these documents. It is clear that California regards used tires as a separate commodity. Similarly, Florida’s Waste Tire Rule states that “Collection or storage of waste tires a permitted waste tire processing facility or waste tire collection center prior to processing or use does not constitute disposal, provided that the collection and storage complies with Rule 62

- 711.540, F.A.C.”

The state of Texas also ha s stringent waste tire tracking systems. Texas State Regulations (Texas Administrative Code (TAC) Title 30 Chapter 328F) concerning the management of used or scrap tires (tires that are not are not identified as industrial solid waste) also have stringent waste tire transportation, manifest and storage requirements. Scrap tire storage sites, facilities and transporters must register with the Texas Commission on Environmental Quality (30 T A C 328.55) before any collection, storage, transportation or
process ing of used or scrap tires may take place. Transportation of used and scrap tire is under a manifest and detailed records retention system (30 T A C 328.57

- 58). Whole tires are prohibited from being placed below ground (30 TAC 328F.66(e)).

Arkansas state regulation set forth by the Arkansas Pollution Control and Ecology Commission prohibits the landfilling of whole tires. Whole tires that are not split are notPage 54 of 72 allowed disposal in a landfill (Reg 14.704, 14.708 and 14.1301). It is illegal to dispose of w hole or portions of used or waste tires at any facility that is not authorized to accept waste tires (Reg 14.703)

. Alternate use of used tires is encouraged by the prohibition of any new monofills for used tires, unless it is demonstrated that there is no feasible recycling alternative (Reg 14.705)

.
Waste tire transporters must be also be licensed as a waste tire transporter by the Arkansas Department of Environmental Quality (ADEQ) (Reg 14.1103)

. Each waste tire collection, transportation activity and delivery activity is required to be recorded (Reg 14.1111)

. For Arkansas facilities with capacity for waste tires over a certain level, permitting for waste tire storage, collection or processing activities is required by ADEQ (Reg 14.901 and 14.1201)

. R ecordkeeping and regular reporting on waste tire activities is required.

In much the same manner, Kansas has established a system of permit for waste tire processors, processing facilities, transporters and collection centers (KSA 65

- 3424b). Kansas Admi nistrative Regulations KAR 28

- 29 establish many specific requirements for management, design, pest control, storage and recordkeeping for these various entities. Kansas regulations require processing (i.e. use of a volume

- reducing technique of shredding o r cutting) of tires before they can be placed into landfills (KAR 28

- 29

- 29).

Oregon law establishes a permitting system for waste tire carriers and storage sites, and also imposes a landfill ban on disposal of whole tires. Oregon Revised Statute (ORS 459 .247) describes landfill bans. Statutes and Rules describing Oregon's waste tire program include: ORS 459.705 Waste Tire Storage and Disposal; Oregon Administrative Rules (OAR) 340 Chapter 64 Waste Tire Program.

Although only a small sampling of states r ules are discussed here, many states have rules and procedures in place for the handling, transportation, storage and usage of tires. As can be seen on Attachment I

, 34 several states have regulations prohibiting the placement of tires in landfills. Landfi lling is not usually an attractive options because as the landfill reaches capacity, the permitting of new landfills faces both public and political resistance. States are also recognizing the use of TDF as effective NO x control technology. As an example , Tennessee has incorporated using TDF for NO x control into their NO x State Implementation Plan and the Texas Commission of Environmental Quality has defined mid

- kiln firing as a mechanism for decreasing nitrogen oxides emissions (§117.3101(7)).

A 2007 P ennsylvania report 35

34 Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap T ire and Rubber Users Directory. Included as Attachment I

. (Attachment J ) describe s the negative impacts of and problems with mismanaged used tires and provides an overview of the market for products created from used tires which exist in each state. It is recognized that when an item can no l onger be used as a tire, the item still has value. The tire commodity can be recycled or reused with the purpose of conserving virgin materials and energy and to reduce waste. The report

35 Waste Tire Recycling and Reuse in Pennsylvania: An Analysis of the Industry, Markets, and State Use, Including Rubber Modifi ed Asphalt, October 2007. Joint State Government Commission. Included as Attachment J.Page 55 of 72 recommends that state policy and regulations further encourage and expand the recycling and use of tires. In fact, the report specifically recommends (recommendation #18.) for Pennsylvania to explicitly regulate tires as a commodity and not as a waste.

Historically state tire programs have come into existence because for a number of decades used tires destined for “discard” were taken to a landfill and “discarded or “thrown away” , and there were also certain individuals that mismanaged these materials prior to “discard” , and they were not taking tires to the designate d “discard” location. In addition, tires have been and are used for erosion control

, so just saying that a tire on the ground or in a ditch is “discarde d” is not a correct assumption.

M. Metal in Tires

- processing Definition, Federal Register page 31877

- 78.

EPA discusses an option for an additional definition for processing tires where metals belts and wire would not need to be removed (where it serves a useful purpose).

As an overall comment PCA rejects EPA’s definition and approach to the term, “processi ng” as described above. However, if EPA does include the definition, we believe that language such as stated in this comment request that recognizes units such as cement kilns where materials serve a useful purpose without other processing is productive a nd will help implement an otherwise quite troublesome rule.

The definition of processing should also include, for flexibility, the idea that sorting of the tires or other materials for size and quality is legitimate processing. For example, tires are

co llected in one central location where they are sorted and usable tires are resold, retreadable tires are sent for retreading and resale, selected tires are evaluated for use in crumb rubber, some are set aside for use as whole tire fuel and others are size d for use as fuel in cement kilns with the remainder shredded or chipped for fuel or landfill.

Regarding whole scrap tires used as alternative fuel, the cement industry’s interpretation of “processing” entails a broad definition not relegated to a prescr ibed approach that only recognizes physical practices such as shredding or chipping. While our industry acknowledges that a handful of cement plants utilize chipped or shredded tire scraps as a fuel, the overwhelming majority use whole tires. Regarding “ processing,” the industry believes that this term encompasses sorting, segregation, cleaning, culling, racking, transportation, or other systematic procedures directed toward an established way of making scrap tires (in whole form) ready for use as TDF in a cement kiln. We view such “non

- mechanical processing” as an effective reclamation protocol, so long as the outcome results in sufficient examination and sorting of the whole scrap tires as a cement kiln fuel.

On p age 6, Section 4 of our comments to t he docket (EPA

- HQ

- RCRA

- 2008

- 0329

- 0352.1) in response to the January 2, 2009 ANPRM, we stated that “while we agree that legitimate fuel products that have been extracted, processed, or reclaimed from previouslyPage 56 of 72 discarded non

- hazardous secondary materials wo uld not generally be considered solid waste,” it is also our view that “it should not be imperative that such fuel products undergo prescribed processing prior to utilization as legitimate fuels.”

As discussed above u sed tires undergo various processi ng steps to meet certain specifications that are necessary for a particular end use. In cement manufacturing, both shredded and whole tires can be fed to the kiln as fuel sources based on the kiln type and its design. The iron in the wire (approximately 98.5% iron content) is a necessary ingredient for manufacturing cement. The steel used by the tire industry is AISI 1070 and above tire cord quality wire rod to manufacture new tires. 36 In addition to the iron, the following is the content of the steel in tires:

Steel Belts Bead Wire Carbon 0.67

- 0.73% 0.60% min. Manganese 0.40

- 0.70% 0.40

- 0.70% Silicon 0.15

- 0.03% 0.15

- 0.30% Phosphorus 0.03% max. 0.04% max. Sulfur 0.03% max. 0.04% max. Copper Trace Trace Chromium Trace Trace Nickel Trace Trace

Therefore, removal of the wire from the tire and then adding it back to the process is not warranted. In addition, the TDF processing required in the ASTM standard referenced above is mainly for the use of TDF in boilers and is not applicable fo r cement manufacturing. Therefore, we are requesting that for cement manufacturing sorting and/or sizing be considered the required TDF processing. Ultimately the form the TDF enters the kiln should be dictated by the kiln system. Processing should simp ly be considered as making the material amenable to meet the quality objectives of the manufacturing process. Anything more is an unnecessary waste of energy and resources.

N. Processing

- Determination Versus Self Implementing Approach, Federal Register p a ge 31878

- 31879

. EPA further requests comment with respect to processing regarding the self

implementing approach versus a determination approach, and whether a general rulemaking provision should be available for EPA to evaluate various processing activiti es generally versus on a site

- by

- site basis.

36 R ubber Manufacturers A ssociation, S crap T ire M anagement C ounsel: Scrap Tire Characteristics. Included as Attachment FF

, and available at http://www.energyjustice.net/tires/files/scrapchn.html

.Page 57 of 72 We oppose the agency’s definition and application of the term “processed” to the use of

non

- hazardous secondary fuels. PCA understand s this rule applies to multiple types of combustion devices but the fact i s a cement kiln operator will always endeavor to sufficiently and efficiently process any NHSM or traditional fuel before using it, and the actual processing happens in the kiln. In the case of some fuels that is an easy task and some not so easy. T he

am ount of processing may limit how much of a fuel can be used but producing a quality cement product is the driving force in a cement production facility. The following points address and illustrate comments and concerns in this area :

• Many NHSM s are alread y sufficiently processed as they are generated. A good example is whole tires. A whole tire that is complete, the correct size and containing little water inside the tires is a good fuel and relatively the same as shredded tires. Tires do not need to ha ve the steel wire removed since iron is a raw material used in the cement making
process. The same is true for wood, paper and plastics in that they need little or no processing to become a good fuel. Many NHSM s are either already shredded or the y are si ze d in the process as they are generated, and they are already sufficiently small to be used for good combustion. Some other examples are packaging materials from receiving facilities, manufacturing and consumer product warehouses. These wastes are typica lly shredded and as bulk materials, they are good fuels. In addition, there are car

manufacturing by

- products like trunk liner trimmings, bumper trim remnants and packaging materials that are shredded and ready for use as fuels. Finally, off specificatio n product or trim wastes from manufacturing products like diapers, paper towels, and other paper products are currently collected and shredded. All of the previously mentioned materials could be pelletized but the extra energy expended consumes power and creates additional emissions with no benefit. In the case of NHSM s that contain moisture, the least efficient approach for combustion of those materials is to dry them in a separate drying system before sending them to a facility for combustion. A
separa te drying system will have innate inefficiencies and will create additional emissions from combustion to produce drying air. This will require separate transportation, storage, material handling and combustion which will certainly increase multiple pollut ant and greenhouse gas emissions. The most efficient approach for combustion of those materials is to use the combustion process (cement kiln) to dry them in a system that is designed and operated to run as efficiently as possible. This approach eliminat es the need for separate transportation, storage, material handling and combustion which will ensure lower overall emissions and energy consumption.

• The term “sufficient processing” may on its face sound logical and appropriate but when it comes to defini ng the term and offering an analogy the EPA uses the example of whole tires as NHSM not sufficiently processed. This provides confusion since whole tires have been successfully and efficiently used in the cement industry for decades without negative impac t on human health or the environment, thus the industry consider s tires a “traditional” fuel. The effort and resources expended in obtaining TDF from the generators and transferring them to the cement kilns requires investment and, therefore, imparts suff icient value to the TDF product to make it a legitimate "fuel product".

•Page 58 of 72 • In the preamble EPA discusses other NHSMs and what constitutes "sufficient processing". In particular, a discussion of scrap metal de scribes that “baling” or “sorting” of scrap meta l constitutes sufficient processing. This directly contradicts EPA’s definition of sufficient processing of fuels in this proposed rule

.
It is inappropriate for EPA to single out tires or other fuels and require a prescribed amount of processing when they may not require further processing to be efficiently used as fuels. In fact, more whole tires are used in the cement industry than shredded tires because certain kiln technologies are more amenable to whole tires while some can better utilize shredde d tires. In the case of facilities that can use whole tires, further processing is energy intensive with little if any added benefit to the process or environment

. C onstruction and pallet wood are two other specific examples of materials that could be

co nsidered processed if removed, shredded and metal removed, much like TDF processing

.

O. Non

- waste Determination, Federal Register page 31880

. With respect to the non

- waste determination process, EPA solicits comment as to whether the Agency can (and if so sh ould ) allow a state, for example, under a state’s beneficial use program, to also make case

- specific determinations without EPA’s approval.

Regarding a petition process for a non

- waste determination, PCA does not support making this a mandatory prerequis ite for a source to use a NHSM material as a fuel or ingredient. Under the current regulations, sources always have the ability to seek regulatory guidance or a formal interpretation by a regulator of a rule as applied to specific facts. EPA should make clear in the rulemaking, however, that such determinations must be obtained from the applicable permitting authority, which in almost all cases will be the State. It is important to permitted sources that EPA require s tates to provide in their Title V
pro grams knowledgeable CAA staff to implement this rule, and not require sources to separately seek a determination or assistance from RCRA staff regarding their CAA permits. Therefore, we believe that approval for use of alternative materials is implementab le at the s tate level, based on the existing regulatory pathways as emphasized above. We support allowing states to grant petitions under existing beneficial use programs and encourage EPA to allow the existing regulatory structure in stay in place.

We also think it is important to point out that we believe the process designed by EPA in the proposed rule will be cumbersome and difficult to implement. We are concerned about EPA and/or the states’ ability to make timely and reasonable decisions under the proposed rule. Our industry has past experience with waste management driven air standards and trying to rectify issues such as the purpose of burning, discard, constituent levels, Btu, etc. We have found the process to have so many decisions that repr esent gray areas that many times the agency response is no decision at all. Other times the decision making process is a difficult and lengthy one. Either scenario results in a lost opportunity for the facility to secure an alternative material . Althoug h permitting alternate fuels and raw materials has not necessarily been an easy or timely process in the past, we are concerned that the newly envisioned process will stifle industry’s sustainability initiatives that we have been working toward for decades

.Page 59 of 72 \ We also believe the process will require the petitioner to demonstrate that the material is non

waste is unduly repetitive. It must be demonstrated that the material has not been discarded and meets legitimacy criteria. If the petitioner makes the first demonstration that the material has not been discarded, than by definition the material is not a solid waste. Similarly, if the petitioner can make the second demonstration (legitimacy) on a previously discarded material, then it should be acceptabl e since, when used, it is no different than a material that had not been previously discarded.

The requirement of the fifth criterion for a non

- waste determination, as described in the preamble, allows a petitioner to provide case

- specific information. This may be misinterpreted that a person does not have the right to present such information with the first four criterion. We assume it is not EPA’s intent to be compelled to ignore such information if submitted with the first four criterion. We think i t is important to include language to clarify that information the applicant believes “appropriate to demonstrate that the material as used in the combustion unit is not a solid waste” is necessary. Without such language, agencies may misunderstand the in tent and use this to demand information not directly related to the petition.

In the cement industry, many of the plants have already worked through the process to gain acceptance of alternate fuels and/or raw materials through detailed technical work, w orking with the regulatory agencies, and with the public. To use an even more arduous process now for materials that are by definition non

- hazardous flies in the face of common sense.

P. Storage Timeframes, Federal Register p age 31880

- 31881

. EPA requested comment on defining a specific timeframe or range of timeframes, and on a typical management for fossil fuels.

PCA believes that a defined storage timeframe should not be among the criteria used for determining if a non

- hazardous secondary material ( NHS M ) is a valuable commodity. PCA strongly recommends that EPA not define a specific timeframe or range of timeframes as part of this criterion but rather leave it to the facilities to choose an appropriate timeframe for the NHSM based on how frequently the material is used and the amount of reasonable storage space that is available

.
To run a consistent program that allows for the process changes, a cement plant needs to be allowed to have continuous and unrestricted storage of NHSM. Materials to be used in the process have been managed throughout the history of cement manufacturing. The main operating driver in the industry is to maintain strict chemistry requirements necessary to produce quality products. D ue to natural variability in naturally occurr ing substances, such as the raw materials supplied from the quarries where the cement facilities are located, storage of alternate materials is necessary to balance production requirements. There may be times when an alternate material is used more and ti mes when an alternate material is used less, depend ing predominantly on the cement quality criteria.

Both the use of fuels and materials in a cement facility can vary depending on the availability of the raw materials and the type of cement product bei ng manufactured. When alternate fuels or materials become available a cement facility has the ability to store these materials in the event they are not regularly available, which is the standard practice for fuels and raw materials in manufacturing cemen t.Page 60 of 72 A cement facility ideally runs continuously and with a steady feed of materials. To operate in this fashion

, large quantities of raw materials, fuels, and NHSM are necessary and need to be stockpiled

.
As another factor, the storage period of NHSM may be related to the amount and timing of generation of the specific NHSM. If a NHSM is generated continuously, then use and storage is predictable and can be kept consistent. However, some NHSM s are generated after long periods of accumulation and may b e removed only once or twice per year. For example, foundry sands can typically be received year round. However, in some instances if the material becomes wet, it can form lumps since some foundry sands include clays to help bind the sand grains together in the manufacturing process. In colder portions of the U.S., these lumps can then freeze and may plug storage bins or otherwise cause problems within conveyance systems. Thus, for some locations, these materials (both virgin and alternate materials) mu st either accumulate only when it is dry or not be received during the winter. Similarly, alumina

- bearing raw materials are often clay

- like and can absorb water easily. These may also freeze in winter and need to be stored under cover.

When a NHSM is g enerated once or twice per year, it will require a longer storage period at the user’s site as they receive a large shipment at one time but use it on a consistent basis over a long period. In the case of most agricultural byproducts, they may be generate d in total once or twice per year. The same may apply for manufacturing by

- products such as process catalysts or other process reaction agents that are removed annually or semi

- annually. Typically, coal, the most widely used traditional fuel, is not tric kled in on a daily basis but large shipments are received on a semi

- monthly or monthly basis.

In summary, we do not believe that over accumulation of non

- hazardous secondary materials should be of concern; good business sense does not allow excessive ac cumulating to avoid tying up capital and cash. Alternate materials in the cement industry are managed as a useful commodity, the

same as the naturally occurring ingredients and fuels. T here are existing regulations for fugitive air emissions and stormwat er pollution prevention that provide adequate oversight of management practices, ensuring that they are protective of human health and the environment (as described below ).

Q. Definition of “Contained”, Federal Register p age 31881.

EPA requested comment on whether the definition of “contained” as applied to

non

- hazardous secondary materials is appropriate. EPA goes on to address other approaches including potentially imposing specific containment standards.

PCA believes imposing specific standards could le ad to unnecessarily stringent containment standards especially considering the non

- hazardous status of the materials. The cement industry already is regulated under current air (primarily Title V permits that incorporate emission standards for storage pil es and material handling) and stormwater regulations (40 CFR 122.26 and analogous state requirements) that address the issue of containment

. Cement facilities are required to comply with air permitting regulations that apply not only to the main stack, bu t also to the following areas:Page 61 of 72 • quarrying

• raw material, and intermediate and final products (clinker, p ortland cement) processing

• fuel processing

• storage of raw materials and fuels (including alternatives), intermediate and final products (clinker, p ortlan d cement)

• transportation/conveyance of raw materials and fuels (including alternatives), and intermediate and final products (clinker, p ortland cement)

All of the above air permitting and compliance requirements are contained within each facilities’ Title V permit. This permit describes all of the numerous applicable regulations, including applicable MACT regulations (Part 63 Subpart LLL) and NSPS regulations (Part 60 Subpart OO O, Subpart Y). In addition, many other requirements are incorporated that are mandated per each state’s SIP. In short, the Title V permitting process is very detailed and incorporates emission limitations on each process and storage unit and each material transfer point.

Also, each facility must meet other non

- air regulatory requ irements. USEPA’s stormwater permitting regulations are applicable to cement manufacturing facilities. All but four of the states are authorized to issue national pollutant discharge elimination system ( NPDES ) permits for stormwater discharges from indus trial activities. These permits are generally based on the federal Multi

- Sector General Permit (MSGP) and as such, contain many of the MSGP’s components as they are applicable to the cement industry. EPA recently issued a new MSGP in 2008, but most of th e state authorized permits are based on the previo us MSGP issued in 2000. That permit requires the prevention of exposure of fine granular solids (cement, fly ash, kiln dust, etc. ) to storm water where practicable, by storing these materials in enclosed s ilos/ hoppers, buildings or under other covering [Section 6.E.3.2]

. The general permit also requires benchmark monitoring of Total Suspended Solids (TSS) (Section 6.E.4).

Industrial facilities in the four states that are not authorized to manage their st ormwater programs are currently operating under the 2008 MSGP which requires stormwater discharges from material storage piles at cement manufacturing facilities to be monitored for Total Suspended Solids (TSS) and pH (Section 78.E.5).

For those facilit ies that store and utilize oil and/or oil products, the Oil Pollution Prevention regulations establish procedures, methods, equipment, and other requirements to prevent the discharge of oil from non

- transportation

- related onshore and offshore facilities in to or upon the navigable waters of the United States or adjoining shorelines (40 CFR Part 112.1(1)). Per these requirements, facilities that manage oil and oil products must prepare a Spill Prevention, Countermeasure, and Control (SPCC) Plan to ensure tha t discharges of oil are prevented. The management of oil

- bearing AFR is covered by this requirement.

Also, in addition to the Solid Waste/tire state

- specific rules d escribed elsewhere in our comments, the state Solid Waste rules also often deal with non

- hazardous material management. The state rules range from acknowledging use in industrial processes as a non

- regulated activity (i.e. no additional requirements above the CAA and other rules described), to having a beneficialPage 62 of 72 use determination process, to permitting Solid Waste processing actions if processing is conducted on site). Most often, the rules acknowledge, as do the RCRA hazardous waste rules, that reuse of an otherwise waste material in an industrial process is akin to normal processing and th us they do not add yet another layer of regulation to the framework already in place. This rule does not need to further address containment so that it becomes burdensome

. The ability to handle the materials in a manner that is protective of human health and the environment must already be addressed when bringing any of these materials onsite.

We believe EPA’s current “contained standard” as defined in this proposal, which is a general performance standard, provides sufficient direction to the regulated c ommunity. In fact, typical industry practices are already using this as a general guideline for safe handling and storage of NHSM and meeting or exceeding these standards. Further specific definitions or other approaches would not be beneficial since the current guidance provides clear and sensible direction. It is unlikely that EPA would be able to quickly draft standards addressing all possible NHSMs, both current and future. No additional program is needed to regulate containment.

R. Btu Limit, Federa l Register page 31882.

EPA requested input on whether a bright line Btu limit should be established.

PCA objects to establishing any type of Btu/lb threshold and believes it is not necessary for materials to be considered a “legitimate” fuel. As explain ed above, t he industry cannot afford to jeopardize our product by using alternate materia ls that negatively affect cement quality, and this applies to fuels as well as ingredients. We note that the entire controversy over “sham recycling” relating to fuel s arose in the hazardous waste context years ago, when EPA justifiably had a concern that unscrupulous parties might seek to avoid the expensive Subtitle C cradle

- to

- grave regime. Those with material that could be a hazardous waste had incentives to claim that the hazardous waste they were burning was a bona fide fuel (because at that stage in the RCRA Subtitle C development, bona fide fuel burning was exempt). This concept has no relevance to the situation in which non

- hazardous materials are being burne d

– the incentives to avoid RCRA Subtitle C simply do not exist.

Any heating value is “ meaningful

. ” The ability to use NHSMs with any heating value reduces fossil fuel dependency

, yield ing environmental benefit . E missions generated by such use are cont rolled through CAA standards. In addition, regardless of the Btu value EPA would select, the number would be arbitrary with respect to some future potential fuel. This would stifle continuing advancements in combustion design and operations that presently fulfill the RCRA goals of pollution source reduction, energy recovery and the most environmentally beneficial disposal methods possible for any byproduct material that is still generated. EPA should not only avoid impeding the use of even lower heating va lue fuels that provide useful heat energy and displace fossil fuels, but they should implement standards and guidelines that encourage their continued and increased use.

Specifically for the cement industry, it has been shown many times over history that it is possible to effectively recover the energy of low heat value materials in a cement kiln. Historically, the RCRA hazardous waste rules did not address Btu, but an EPA guidance document (Sham Recycling Policy

–Page 63 of 72 March 16, 1983) documented the 5,000 Bt u criteria as a guideline, especially for less efficient boilers. The policy was published as enforcement guidance that set forth general criteria for energy value, and it directed enforcement personnel to high priority misuse scenarios (e.g. non

- industri al boilers burning low

- Btu waste). As the bright line did not take into account industry specific technical abilities, the cement industry worked for years to demonstrate the abilities of the process to utilize fuel value at varying and lower Btu values

. As an example, many of the facilities that use hazardous waste fuel have successfully demonstrated through permitting and/or technical documentation the ability for their device to utilize lower Btu materials for their fuel value

. To date, none of the gu idance documents have ever resolved the original misconstrued bright line Btu issue at a national level for hazardous waste fuel

. However, the process of making a determination on a site

- specific and manufacturing type specific basis is working and should be left in place due to the range of units being addressed under this rule versus establishing a bright line

.
One additional point that the PCA thinks it is important to note is with respect to alternate raw materials or ingredients. In the event that i ngredients are not excluded from the final rule, we believe it is important to recognize that some ingredients do contain minor Btu content. As long as the primary intent for the secondary material is as an ingredient, then the material should be consider ed an ingredient versus being considered a fuel for the purposes of this rule.

S. Scope of Contaminants , Federal Register page 31883

. EPA requests comment on the proposed approach for establishing the contaminants to be compared, or whether the list should be narrower or broader.

In addition to disagreeing with the criteria for contaminant comparison, PCA disagrees with broadening the scope of contaminants discussed by EPA . Using the definition of “contaminants” as “constituents in non

- hazardous secondary materials that will result in emissions of the air pollutants identified as HAP listed under CAA section 112(b) and the nine pollutants listed under CAA section 129(a)(4) when such secondary materials are burned as fuel” is excessive and unnecessary . Bas ed on stack testing data and risk assessment s performed in the cement industry previously described , it is accepted that organics in fuels do not survive intact to exit a cement kiln or cause harm to human health and the environment. In addition, stack tes ting comparing different fuels (tires, waste derived fuel, coal, coke, etc.) on a single kiln system under normal operating conditions supports that same conclusion. Based on the same data, hydrocarbon emissions in a cement kiln stack are from traces of na turally occurring organic materials (roots, limestone, clay, etc.) and evolve from the incoming raw materials in

a non

- combustion atmosphere. This fact has been recognized previously by EPA, and the organic emissions, regardless of their source, are being regulated under the soon to be finalized LLL NESHAP standards.

Extensive testing has also been conducted on kilns that burn hazardous waste fuel with respect to organic emissions. This testing has shown that nearly all of the organic content in the fue ls does not survive in the kiln. These kilns have been required to conduct destruction and removal efficiency (DRE) testing for nearly 20 years. These tests involve the injection of difficult to destroy Principal Organic Hazardous Constituents (POHCs) an d stack testing to determine how much of these POHCs are thenPage 64 of 72 emitted. These POHCs are selected based upon how difficult they are to destroy. Because of the stringency of the hazardous waste burning requirements, compounds that rank near the top of the i ncinerability rankings are chosen to prove the efficacy of the kiln’s DRE capabilities. Thus, if a kiln can demonstrate destruction of the most difficult to destroy compound, then any other organic compound must also be likewise destroyed. Many of these tests were conducted under worst case conditions for kiln combustion to further indicate they can perform under the whole operational range.

Kilns first had to demonstrate compliance with a RCRA standard for DRE of 99.99%. That is, at least 99.99% of o rganic hazardous constituents must be destroyed when used as a fuel. Once MACT standards were promulgated for hazardous waste burning kilns, the same DRE standard was used as

non

- dioxin/furan organic hazardous air pollutants are controlled by the DRE stan dard

. In promulgating the HWC MACT standard, EPA noted that kilns always destroy organic compounds. EPA’s DRE data base of operating [hazardous waste

- burning] cement kilns includes results from approximately 25 DRE tests and nearly 200 runs. All data sh ow compliance with the DRE standard. 37 In fact, many tests showed destruction efficiencies one or two orders of magnitude higher than the standard. Based on the consistent results showing the high level of destruction is inherent in a cement kiln, EPA di minished the frequency requirement for DRE testing

.
Applying the type of comparison proposed by EPA for the original list of contaminants or an expanded list would empower EPA to require expensive and lengthy material and/or stack sampling for any and all additional NHSM considered for use. This arduous process would likely eliminate many materials based on the cost hurdle and how long it would take to schedule, conduct and evaluate this type of analysis . Further, as noted above, the air emissions fo r cement kilns, including use of alternate fuels and raw materials is regulated in accordance with existing Clean Air Act regulations. Therefore, an additional level of scrutiny is not a wise use of resources.

As described elsewhere in these comments, si nce metals are chemically incorporated into the cement and resulting concrete, EPA should not place restrictions on the product quality. In a study conducted by NSF International ( see Attachment BB & supra note 25 ) it was determined that when cement manuf actured from the combustion of hazardous waste fuels is used to construct pipes and infrastructures for water treatment purposes there is no impact on concrete quality or threat to public health or the environment. It is also discussed in the “Definition of Processing” section of our comments how metals (such as those contained in tires) are vital ingredients for the manufacture of cement and must be added in order to produce a quality product.

As noted above, (hazardous waste burning) kilns have been re quired to perform multipathway human health risk assessments (HRAs). Each HRA included evaluation of a number of organic compounds and metals that were required to be emission tested at each facility. All of the HRAs demonstrated that there was no unacce ptable health risks associated with the facility emissions as documented by the facilities receiving final permits

37 70 F ed. R eg. 59500.Page 65 of 72 T. Bright

- line Level of Contaminants , Federal Register page 31883

. In response to EPA’s request for comment on establishing bright

- line levels of contaminants, PCA disagrees with any action toward establishing bright

- line levels or any other levels aimed at any of the various traditional fuels that are burned; doing so would provide no benefit to the regulated community or human health and the e nvironment.

The concept of comparative contaminant concentration is inappropriate as applied to non

hazardous byproduct materials used as fuel for energy recovery or for materials used for ingredient value. The same standard that applies to traditional fuels should apply to any new (non

- traditional) fuels regardless of the extent to which they are familiar or widely used. The fact that certain fuels have been traditionally used does not make the levels of contaminants in them an appropriate standard. S imilarly, the fact that certain fuels have not been traditionally used should not exclude them from being used, even if some of their levels of contaminants are higher than traditional fuels. A comparison process would be unnecessarily costly and impracti cal (note this is not a one time analysis; rather an opportunity for new alternative fuels is an ongoing process).

Further, requiring that the constituent concentrations of these materials not be “significantly higher” than the fossil fuels they replac e is misguided since emissions, which is the real issue at hand

, are already controlled under the Clean Air Act ( § 112 standard for manufacturers). Indeed, that is the purpose of § 112

– to require sources to control HAP emissions that are related to the specific manufacturing processes.

Whether those materials are regulated under § 112 or § 129, the emissions will be regulated and owners/operators will need to comply with pertinent emission limits that will have been established with consideration of pr otection of human health and the environment. The cement industry has previously shown that a wide range of fuels can be utilized with essentially complete destruction of organic HAPs. Further, risk results mentioned above demonstrate the lack of impact on human health and the environment based on over two decades of study. As noted in each study, for organic constituents, the environmental impacts are predominantly orders of magnitude lower than health based thresholds and thus do not pose a health risk concern. Most metals included in risk studies also have a negligible impact on any potential health risks.

As a final but critical point with respect to the cement industry, imposing these types of requirements would also result in elimination of some (and potentially significant quantities of ) materials from use as legitimate alternative energy or ingredient sources, against the intended national goals of energy independence. Similarly, use of a comparable fuel approach or equivalent concentrations ap proach is detrimental to continued/increased useful utilization of byproduct materials that can avoid increased fossil fuel use and the associated environmental impacts.

Therefore, our conclusion is that these rules are inappropriate, arbitrary and dupl icative of Clean Air Act regulations and permits already in place, do not provide any improved environmental benefit and discriminate against the use of non

- traditional fuels. All qualifications should be on a case

- by

- casePage 66 of 72 basis, allowing for flexibility in each facility’s determination process in accordance with existing regulations.

U. Comparison of Total Constituents, Definition of “Comparable” Federal Register p age 31883

. EPA requested comments on basing a comparison on total constituents, and the defi nition of “comparable

. ”

PCA reiterates that we disagree with any action toward establishing bright

- line levels or any other levels for contaminants that are aimed at any of the various traditional fuels that are burned; doing so would provide no benefit t o the regulated community. As described above, we do not believe that a comparison of constituents is appropriate. Further, c riterion for contaminant levels per Btu would also be impractical and unrelated to protecting human health and the environment. Generally, non

- hazardous secondary materials used as fuels will be similar or lower in heat value, so the normalized basis would not be appropriate. With regard to the term, “comparable,” EPA attempts to define the term by using the actual word “comparabl e” in its definition ( 75 F ed. R eg. 31856). Such usage does not clarify what is actually meant by the term. PCA points out that the term “comparable” should not be solely interpreted as “equal” or “same .” The term comparable can also mean “similar”, “hig her” or “lower.”

Furthermore, EPA attempts to justify the criterion for contaminant levels in the description of legitimacy criteria ( 75 F ed. R eg. 31882). In the text, EPA states that establishing such a criterion is necessary to ensure that the non

- haz ardous secondary material is not being burned for disposal. This implies that because the contaminants may be different, then the material cannot possibly be a valuable fuel. This reasoning is flawed and PCA objects to this rationale by EPA. There are n umerous examples of so

- called traditional fuels that exhibit variability with respect to certain constituents. For example, there is plenty of sulfur variability in coal and limestone. Another example is the difference in mercury content found in coal an d coke

. Data showing the type of variability in “traditional” fuels is presented elsewhere in our comments. Using an alternative fuel as an example, plastic

- derived fuel has much lower mercury content than coal. PCA believes EPA’s logic is flawed becaus e it would imply

– in the case of coal

– that the material is being burned for disposal purposes. EPA goes on to discuss how constituents must be comparable to guard against increased risk of adverse effect on human health and environment resulting from e missions. These issues are already addressed through the air permitting program where facilities already have to obtain air quality regulatory approvals to use alternative materials. Further, the cement industry, as described above, has demonstrated cons istently that the use of alternatives does not adversely impact human health and the environment

.

V. Qualitative Comparison (Emissions ), Federal Register page 31883

. EPA also requests comment on a qualitative approach to comparison, taking into account the f ocus on emissions versus fuel contaminant inputs.

Although the intent of this qualitative approach certainly makes more sense than the other approaches for a comparison, PCA also believes this action is not necessary. Again, the cement industryPage 67 of 72 emission s limits already contemplate a wide range of fuels and raw materials in the inherent manner by which the LLL MACT standards have been established.

W. Useful Contribution, Federal Register page 31884.

EPA requested comment on quantitatively defining how much of the non

hazardous secondary material must provide a useful contribution.

PCA objects to the establishment of limits. Our alternate material programs have been used for decades, and are driven by cement quality criteria that are a normal part of manuf acturing. The industry cannot afford to jeopardize our product by using alternate materials that negatively affect cement quality , as we are ultimately responsible to supply a quality product to our customers

. It is important for EPA to recognize that th is applies to fuels as well as ingredients, for (unlike boilers) in a p ortland cement kiln the fuels and ingredients are all inserted into the same manufacturing device where the clinker product is produced. Therefore, if the non

- hazardous secondary mater ial can be used safely and produce products that have continually been shown safe for public use, then the actual content of the useful components is irrelevant.

The Agency should not “quantitatively define how much of the non

- hazardous secondary materi al must provide a useful contribution, or alternatively, how much constituents or components in a

non

- hazardous secondary material there would need to be, before the material would not be considered to provide a useful contribution.” In most cases, a NHSM has several contributing components, and the ability to use th e material components is depende nt on the manufacturing or equipment type. For example, as the cement industry utilizes major raw material constituents and minor constituents to manufacture qu ality cement, those specific components are typically fit together using a variety of materials

. The traditional use of raw materials to supplement the quarried calcium and silica sources come from a variety of materials that have the necessary chemical c ontribution for that process need. The cement chemist is responsible for using materials that are stored on

- site, supplemented by alternative materials, to proactively determine which materials are used to meet quality needs.

The following are examples of common alternative raw materials that contain more than one constituent necessary to manufacture cement and in various concentration ranges:

Material Calcium Oxide Aluminum Oxide Iron Oxides Silica Oxide

Waste refractory 5

– 15% 40

– 50% 0.5

– 1.5% 3 0

– 40% Paint sludge 5

– 15% 5

– 10% 0

– 25% 5

– 10% Steel plant slag 1

– 2% 0

– 0.5% 90

– 95% 1

– 2% Waste alumina 0

– 1% 95

– 98%

- 0

– 1%

Acknowledging that various industries/equipment have differing needs, it is also unclear what standard would be used to set a limit even if the useful contribution was measurable. The fact is, the incentive of using a NHSM is that it does provide a useful contribution. It is in the user’s best interest to maximize that useful contribution aside from any other incentives or disincentives that may or may not exist. Therefore, PCA is against quantitatively defining what constitutes a “ useful contribution .”Page 68 of 72 X. Contaminant Comparison

- Ingredients, Federal Register p age 31885

. EPA requests comment on establishing a c omparison method for contaminants in ingredients, where the approach would address comparing contaminants in the product not being significantly higher than “traditional” product.

PCA opposes setting limits of contaminants in ingredients. As described above, our industry is already regulated on the emissions at the exhaust point as opposed to the content of the material going into the feedstock or the product. Cement manufacturing facilities operate in compliance with the Clean Air Act standards as per mitted through the Title V program which includes the Federal MACT standards and the full state implementation of the Clean Air Act. The results of facility risk studies are consistent with EPA’s comment in the preamble; “. . . in a recent Report to Congr ess that addressed the use of these secondary materials as ingredients in cement and concrete applications, the overall conclusion reached with respect to the perceived safety health risk barriers was a positive one, in that the risk analyses did not ident ify significant risks to human health and the environment associated with these uses.”

The burden of testing and deciding if the contaminants contained in a NHSM should be left to the current manufacturing and regulatory processes through our ongoing s ustainability programs, and not subject to standards set forth in this regulation. The ASTM cement quality standards guide the operations of cement manufacturing, and making a quality product is the absolute goal of every manufacturer.

Portland cement i s manufactured to meet strict chemical and performance specifications under such organizations as ASTM and AASHTO. These specifications dictate, to a large degree, the ingredients that can be used in cement manufacturing. There are a wide range of raw ma terials and fuels that can be used to meet cement manufacturing quality objectives. The levels of contaminants in these traditional raw materials and fuels can vary significantly. These variations occur within material taken from the same source (e.g. si ngle quarry) and also between multiple sources. For the purpose of comparing levels of contaminants found in NHSMs with levels found in traditional materials, the NHSM contaminant should be allowed to be compared to multiple sources of the traditional raw materials that are available across the market to the facility. Such a comparison should be allowed regardless of whether or not the traditional material is being used by the facility at that time of the comparison. Doing so would allow for the variabil ity of constituent levels to be properly accounted for when going through the comparison process. Variability needs to be considered because multiple sources of a single traditional material are typically available to a facility. Furthermore, the natural variability inherent in sampling events needs to be considered.

Y. Alternative Approach, Federal Register page 31886.

EPA requests comments on the alternative approach presented in the preamble. In response, PCA does not agree with the alternative EPA has p resented.Page 69 of 7 2 As expressed throughout PCA’s comments, we do not agree with EPA’s approach to use the Solid W aste rule to unnecessarily “label” the wide range of alternative fuels and ingredients that have and can continue to be used in the cement industry. EPA should finalize the rule in a manner that recognizes the cement industry’s operating approach and not further burden the
process. We therefore do not agree with the alternative approach.

IX. CONCLUSION

In closing, PCA’s member companies support efforts t o increase our nation’s use of safe and compatible energy efficient alternative fuels and raw materials. PCA’s members have been on the forefront of undertaking voluntary efforts to contribute to a cleaner environment through the use of scrap tires, used motor oils, petroleum sludge and other waste materials as alternative fuels and raw materials in the production of cement. Many cement plants are capable of beneficially utilizing a wide range of non

- hazardous secondary materials including both alternativ e ingredients and fuels.

However, we reiterate that in implementing RCRA, EPA must balance the statute’s two primary goals of (1) protecting human health and the environment and (2) encouraging reuse and recycling. The second goal is particularly critic al in the Subtitle D context. Yet EPA openly recognizes that its proposal, coupled with the proposed CISWI rule, would result in the landfilling of great volumes of non

- hazardous secondary materials now being beneficially reused. This would increase the burden upon the existing landfill capacity in the US and change the timeline for requiring new landfill capacity. EPA has not attempted to justify its anti

reuse/recycling proposal on grounds that such an approach is necessary to protect human health and the environment. As EPA clearly has discretion under RCRA and the case law to structure its Subtitle D proposal in a manner that would promote reuse and recycling without impairing health and environmental protection, we believe EPA’s proposal is fatally arbitrary and capricious and a failure of reasoned decisionmaking.

For all of the reasons developed throughout these comments, we urge EPA to take the following basic steps in structuring its final rule:

a. Remove all portions of the rule that would pur port to regulate use of non

- hazardous secondary materials as ingredients;

b. With respect to non

- hazardous secondary fuels, make numerous revisions that would encourage rather than discourage reuse and recycle by p ortland cement kilns, such as

–

(i) provide that materials suitable for use as fuel without the need for processing are not solid wastes when combusted even if they have previously been discarded;

(ii) provide that if “processing” may be needed to make a discarded material suitable for us e as fuel, that material will not be a solid waste when combusted so long as the material has been rendered suitable for use as fuel in the type of device in which it will be used (thus, neither shredding nor metal removal would be necessary for whole tire s in p ortland cement kilns);Page 70 of 72 c. Delete the “legitimacy criteria” at least as applicable to p ortland cement kilns.

* * * * * We appreciate the opportunity to provide comments on the important questions related to this proposed rulemaking by the Agency . We look forward to work ing with the Agency as consideration of these issues continues. Please do not hesitate to contact us should you have any questions regarding PCA’s perspectives on this matter. We can be reached at (202) 408

- 9494.Page 71 of 72 L IST OF ATTACHMENTS TO PCA’S COMMENTS

Attachment A Weston, Energy Conversion, chapter 3, p. 85, http://www.personal.utulsa.edu/~kenneth

- weston/chapter3.pdf. Attachment B 1989 Senate Report Excerpt

Attachment C 1987 Senate Report Excerpt.
Attachment D E arthjustice Petition January 30, 2001.
Attachment E Earthjustice 2004 Comments
Attachment F NRDC Brief, NRDC v. EPA 489 F.3d 1254 (2007)
Attachment G Letter from OSWER Assistant Administrator
Attachment H PCA (Trinity) AFR CAA permitting manual
Att achment I Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap Tire and Rubber Users Directory Attachment J Report of Pennsylvania Joint State Government Commission, Waste Tire Recycling and Reuse In PA, Oct. 2007

Attachment K Cement Sector Trends in Beneficial Use of Alternative Fuels and Raw Materials, Revised Draft October 2008, posted on EPA’s website at http://www.epa.gov/sectors/sectorinfo/sectorprofiles/cement.html. Attachment L Scrap Tire Markets In The United States, 9th Biennial Report, May 2009, Rubber Manufacturers Association. Attachment M The Use of Scrap Tyres in the US Cement Industry, Michael Blumenthal, World Cement, December 1992. Attachment N North American Cement Industry, Annual Ye arbook 2009, Portland Cement Association, ER395

, Table 44 Attachment O US & Canadian labor

- Energy Input Survey, 2010, Portland Cement Association Attachment P Air Emissions Data Summary for Portland Cement Pyroprocessing Operations Firing Tire

- Derived F uels, John Richards; David Goshaw; Danny Speer, and Tom Holder, PCA, 2008. Attachment Q Tire

- Derived Fuel Frequent Questions, http://www.epa.gov/wastes/conserve/materials/tires/faq.htm Attachment R Health Consultation

- CEMEX, Incorporated , Lyons, Boulde r County, Colorado, Agency for Toxic Substances and Disease Registry, Table 2, Page A

- 3. Attachment S Air Emissions From Scrap Tire Combustion , EPA

- 600/R

- 97

- 115, October 1997. Attachment T NOx Control Technologies for the Cement Industry , U.S. EPA, Offic e of Air Quality Planning and Standards, Ozone Policy and Standards Group, September 19, 2000.Page 72 of 72 Attachment U Management of Scrap Tires, EPA website, http://www.epa.gov/wastes/conserve/materials/tires Attachment V Mojave Desert Air Quality Management Distr ict, Rule 1161(C)(1)(a)(iv), Portland Cement Kilns. Attachment W Proposed Rulemaking, 25 PA. Code Chs. 121, 129 and 145, Control of NO x Emissions from Cement Kilns, 38 Pa.B. 1838, April 19, 2008. Attachment X South Coast Air Quality Management District, Best Available Retrofit Control Technology Assessment, TXI Riverside Cement, Revised Draft, August 8, 2008. Attachment Y South Coast Air Quality Management District, Final Environmental Assessment: Proposed Amended Rule 1112.1

– Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI, November 13, 2009. Attachment Z Industrial Sector Integrated Solutions Model , EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA

- HQ

- OAR

- 2002

- 0051

- 2007.pdf

Attachment AA Material s Characterization Paper In Support of the Proposed Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste

– Scrap Tires, April 6, 2010. Attachment BB “A Comparison of Metal and Organic Concentrations in Cement and Clinker Ma de with Fossil Fuels to Cement and Clinker Made with Waste Derived Fuels,” NSF International (1993) Attachment __. Attachment CC USGS Nat'l Coal Resources, US Coal Quality Database, available at: http://energy.er.usgs.gov/coalqual.htm Attachment DD TNR CC Air Emissions Associated with the Burning of Tire

- Derived Fuel, Waste Tire Recycling Program, March 2001 Attachment EE Stephen Smith, P.E. “Recycling Waste Treated Wood as a Fuel,” April 2005

Attachment FF RMA STMC Scrap Tire Characteristics, availabl e at http://www.energyjustice.net/tires/files/scrapchn.html Attachment GG Report on Sustainable Manufacturing, PCA, 2009PORTLAND CEMENT ASSOCIATION

ATTACHMENT 4ATTACHMENT 4

THE PROPOSED MONITORING REQU IREMENTS ARE PROBLEMATIC AND NEED TO BE RECONSIDEREDTable of Contents

Page

I. Mercury Monitoring Requirements ................................................................................... 1 A. Difficulties in the Use of CEMS in the Utility Industry Are Well Documented ........................................................................................................... 1

1. Number of Installations in the Utility Industry.......................................... 1

2. NIST Certification ..................................................................................... 2

3. Installation on "Wet Stacks" ...................................................................... 3 4. Data Output Requirements......................................................................... 6 5. Hg CEMs Compared to Refere nce Methods for Mass Balance Calculations................................................................................................ 6

6. Cost ............................................................................................................ 7 7. Instrumental Mercury CEMS Monitoring Issues..................................... 13 B. Compliance Demonstration Requirements .......................................................... 14

1. Introduction.............................................................................................. 14 2. Comments on Performance Sp ecification 12A and Appendix F, Procedure 5 .............................................................................................. 15 3. Performance Specification 12B (PS 12B) Comments ............................. 22

II. HCl........................................................................................................................ ........... 24

III. Particulate Matter........................................................................................................ ..... 24 A. Bag Leak Detector Monitoring Provisions .......................................................... 26 1. EPA has not demonstrated acceptable performance of BLDs to monitor kiln, kiln/ in-line raw m ills at cement plants and has not developed necessary guidance for or technical requirements that will be necessary for a BLD to meet the requirements in the proposed rule............................................................................................ 26 2. The requirement to submit site-specific BLD monitoring plans to the Administrator or delegated authority should be removed.................. 27 3. EPA should develop and promulga te Performance Specifications and Quality Assurance procedures for BLDs as it has for COMS and all other CEMS.................................................................................. 27 4. Appropriate design and performan ce specifications are needed so that manufacturers can certify th at their BLDs meet applicable criteria in order that the regulated users of such devices can rely on the manufacturer's certifications .............................................................. 28 5. EPA should remove the requirement that the BLD should activate an audible alarm....................................................................................... 28Table of Contents (continued)

Page

-iiiB. PM CEMS Issues ................................................................................................. 29 1. EPA has not addressed nor resolved the primary technical issues limiting the effective application of PM CEMS at cement plants. .......... 29

2. Valid PM CEMS correlations cannot be established for PM CEMS at cement plants due to limitations of process operation and control equipment in conjunction with the proposed emission limitation ........... 29 3. The requirements in Appendix A, Performance Specification 11 for the PM CEMS correlation and in Appendix F, Procedure 2 do not provide a sufficiently reliable means to determine compliance with emission limitations ......................................................................... 31

4. The use of PM CEMS in Eur ope and other countries does not constitute a valid basis for appl ication of PM CEMS at cement plants in the United States........................................................................ 31 5. Monitoring PM emission concentrations downstream of wet scrubbers is not possible at cement plants ............................................... 31

IV. NOx and SO2................................................................................................................ ... 32 V. Monitoring Frequency ..................................................................................................... 32I. Mercury Monitoring Requirements

EPA has inappropriately specified undemons trated and unproven continuous compliance monitoring provisions for the proposed mercury sta ndards without considering the limitations of the proposed monitoring methods or the diffe rences between the methodology used by EPA to establish the standards and that proposed to demonstrate compliance. EPA should properly consider these factors and re-propose emission st andards and compliance monitoring provisions. It is apparent that EPA:

• has no information regarding the actual measurement variability of instrumental Hg CEMS or sorbent tube monitoring syst ems as installed on cement plants,

• provided no analysis to demonstrate that th e variability of data provided by the proposed emission monitoring methods would be equivalent to the variability of the solid material sampling and analysis,

• provided no consideration for the effects of missing data due to CEM (or sorbent tube monitoring) downtime, ma lfunction, or "out-of-control" periods, and

• provided no consideration of the allowed measurement bias for mercury CEMS or sorbent tube monitoring programs on the ach ievability of the emission standards.

EPA must consider the measurement variability, bias and measurement system limitations of the proposed compliance demonstr ation method and the relationship of these factors to methods used to acquire data for standa rd setting to determine the achievability of the emission standard.

A. Difficulties in the Use of CEMS in the Utility Industry Are Well Documented

Overall, difficulties with Hg CEM systems in the utility industry have been welldocumented and are discussed below in the following general areas:

• Number of Installations in the Utility Industry

• NIST Certification

• Difficulties Encountered in the Utility Industry

• Installations on "Wet Stacks"

• Discrepancies Between Calibration Sources

• Data Output Requirements

• Hg CEMs Compared to Reference Met hods for Mass Balance Calculations

• Cost

Each of these issues is evaluated below.

1. Number of Installations in the Utility Industry

Because of the Court of Appeals for the D.C. Circuit vacature of CAMR, the U.S. utility sector is generally in a wait-an d-see mode as far as Hg CEMS are concerned. Prior to the rule-2- being vacated, approximately 650 continuous merc ury monitors (CMMs) (one-third Tekran and two-thirds Thermo systems) were ordered, but many were not installed. 1 Based on discussions with RMB Consulting, which has been tracking Hg CEMS for the electric utility industry, there are only about 35–40 CMMs installed and certified to date (not yet with a National Institute of Standards and Technology (NIST) traceable calibration source). 2 It does not yet appear that a substantial number of orders have been cancell ed, but clearly, most u tilities have slowed down their overall mercury-monitoring programs. In fact, at the 2009 Electric Utility Environmental Conference, there was a paper on how to mothball Hg CEMS. 3

2. NIST Certification

It is stated in the proposed rule that there ar e numerous utility boilers that have installed and certified mercury CEMs. This statement is simply not true. The Hg CEM certification requirements outlined in PS-12A state that all calibration and "span" gases must be NISTcertified. The draft protocols were just releas ed by NIST in July 2009. The major vendors of Hg CEM are just now advertising NIST-certified ca libration sources. Theref ore, none of the Hg CEMs that have been previously installed are certified.

NIST does not currently directly certify oxi dized mercury calibrations. The Interim EPA Traceability Protocols now in place provide for certification of evapor ative generators by certification of the individual components of the calibrator. Therefore, the language used in Section 7.0 that refers to a NIST trace oxidized mercury calibrator needs to be clarified or changed. The method for providing an oxidized mercury calibration gas is different for the two major vendors. Tekran oxidized mercury calibrators are designed to vaporize a known quantity of HgCl2 solution. This vapor is then diluted to the required oxidized mercury concentration. This method results in an oxidized mercury cal ibration gas that is very near 100% HgCl2. The method used by ThermoScientific is considerably different. ThermoScientific uses its elemental mercury calibrator to generate a known concentration of el emental mercury. The elemental mercury vapor is passed over a heated catalyst and mixed with chlorine gas to convert the elemental mercury to oxidized me rcury. It should be noted that this calibrato r is not 100% efficient. However, prior to CAMR being v acated, EPA had eliminated the language that required a very high conversion (Hg0 to Hg2+) efficiency for the ca librators (>90%). The eventual language only required the majority of the calibration gas be oxidized mercury. This does not appear to be the case in PS-12A.

Difficulties Encountered in the Utility Indus try – The utility industry experience with these monitors has been mixed. There have been some plants that have had good experiences,

1 Personal Discussions with Tekran and Thermo Scientific, Aug 2008.

2 Personal Discussions with Richard McRanie, of RMB Consulting, Aug 2008.

3 Marsh, T. How to "Mothball" Your Hg CEMS. In Proceedings of EUEC Energy & Environmental Conference; Phoenix, AZ, Feb 2009.-3- but others have had a very high degree of difficu lty in getting them to work and keeping them working. The EERC is currently working with one plant that has been tr ying to get a monitor operating consistently since the spring of 2007. Duri ng this period, the vendor has been on-site to repair the monitor six to eight times each year for about a week per time (at the plant's expense). Usually the technician gets it to work, but within 2 weeks to a month, the monitor again becomes highly erratic and does not calibrate properly. Th e vendor has made numerous changes to the monitor but without much success. One problem that appears to occur on a regular basis at this plant is rapidly decreasing lamp intensity. This will causes erratic operation. As a result, the plant has replaced lamps approximately every 3 months . Although this is high ly unusual, the vendors have indicated that there are problems associated with the mercury lamps and are working on the quality control of the vendors. These lamps were meant to last 2–3 years and are relatively expensive and difficult to replace. Although the expe rience at this plant is somewhat extreme, it is not the only plan t that has problems.

Another example was at the Lewis & Clark Station in Sidney, M ontana. The Results Engineer for the plant stated that installation of a ThermoScientific system began in the spring of 2006. It was not until October of 2008 that the sy stem passed the relative accuracy test audit (RATA) and began producing good data. They starte d with "a game cube"-type probe system, but in a 3-month period, they have had to replace them twice. Ot her problems that have occurred at the Lewis & Clark Station include severe pl ugging and destruction of O-rings. In addition, there have been problems associat ed with the heated umbilical line that transfers the mercury sample from the stack to the an alyzer in the control room. Afte r the initial installation of the umbilical line, the analyzer began receiving a grease-like substance that damaged the system. The umbilical line was replaced with a new one , and the problem occurred again. This problem has also been acknowledged by the vendor as a manufacturing problem with Teflon lines and not something unique to this plant. As a result, th is plant and others are required to flush the umbilical line with acetone at least every 6 months to eliminate the problem. This is a difficult task, as these lines can be up to 500 ft long and weigh hundreds of pou nds. The Lewis & Clark Station has also experienced problems with short mercury lamp life in its instrument.

Other plants have also reported similar expe riences in vendor user group meetings. Based on personal discussions with several large powe r companies, because of these problems and others like it, they ha ve estimated that for every Hg CEM on their sites about one-half 1⁄2 time is required for a technician.

3. Installation on "Wet Stacks"

Installing a Hg CEM on a "wet" stack (those st acks located after a wet scrubber without reheat) has been a major problem that has not been totally resolved. The problems encountered depend on whether the flue gas/water entering the stack is acidic (pH <6.0) or basic (pH >8.0). Under both conditions, there have been significant plugging and major problems with probes and dilutions systems. Although the vendors have de veloped different probe systems, such as ThermoScientific's so-called "Game Cube" for thes e applications that have helped somewhat, the problem still persists and has to be dealt with by the plants that have wet stacks. For those stacks that are acidic, there is serious corrosion of the stingers and probes (the portion of the analyzer that is directly in contact with the flue gas). As a result, thes e parts of the analyz er are required to be made of very expensive Hastalloy to withstan d the conditions that occur in a wet acidic stack.-4- The problem is clearly demonstrated in Figures 1 and 2. Figure 1 is a photograph of a new probe, and Figure 2 is a picture of the same probe afte r 1 month in a wet acid stack showing substantial corrosion. These probes were made with 316 stainl ess steel. If the flue gas/water entering the stack is basic in nature, corrosion is not as mu ch of a concern. However, under these conditions, substantial buildup of solids o ccurs around the probe and stinger that can make it almost impossible to remove the stinger from the sa mple port without damaging it. A photograph in Figure 3 shows this situation.

Figure 1. Photograph of a new 316 stainless steel probe.-5- Figure 2. A Hg CEM probe after 1 month of installation in an acidic wet stack.

Figure 3. A photograph of a probe installed in a stack where the flue gas/water was of a basic nature.-6- Although wet scrubbers are not currently common in the cement industry, under the proposed rule, they may be required to a greater extent. With thei r increased use it is likely that many of these same problems with Hg CEMS pote ntially could occur for the cement industry as well.

Discrepancies Between Calibration Sources – PS-12A, as did Part 75 under CAMR, will require a system integrity check using an oxidize d Hg NIST calibration s ource. This is designed to ensure the convertor portion of the Hg CEM is converting all of the mercury to elemental Hg (the analyzer portion of these monitors only measure elemental mercury, so a convertor is necessary to ensure all the mercury is in that fo rm). However, there is a discrepancy between the oxidized and elemental mercury calibrators of about 7% in both the Tekran and ThermoScientific instrument s. The cause of this di screpancy is still unknown.

4. Data Output Requirements

Both the Tekran and ThermoScientific monito rs were designed to measure mercury on a wet basis at 20°C because CAMR required the me rcury be reported on a wet basis. The same approach would be applicable in the cement indus try because the effluent flow rate must be measured on a wet basis. There is no need fo r dry basis measurements and language in the Subpart should be included to provide an exemp tion from this requirement for cement plants or PS 12A should be revised.

A commonly used practice in the cement industr y is to apply a factor to the PCL/data acquisition system (DAS) using as a basis 1) stack test moisture data and 2) material mass balance and vapor releases. However, if the language in PS-12A is taken literally, i.e., that the Hg CEMs must be capable of measuring on dry ba sis, these practices may not be acceptable. In that case there are only two options. The first is that Hg CEM vendors redesign the monitors such that the data are reported on a dry basis or as a potential second op tion that a continuous water vapor monitor be incorporat ed with the Hg CEM. Changes to the instrument design will be based entirely on how the vendo rs perceive the market for thei r instruments: cement industry demands versus those of the utility industry. Th e second option will require the cement plant purchase, install, and maintain a continuous water vapor monitor. Software will also have to be written such that the data from both CEMs can be incorporated into the data acquisition systems at the plants. This language n eeds to be clarified by EPA.

5. Hg CEMs Compared to Refere nce Methods for Mass Balance Calculations

Under the proposed rule, the MACT floor wa s set based on a mass balance approach. However, compliance emission measurements will need to be made based on continuous measurements. There is not a substantial amount of data in the utility industry comparing mercury mass balance calculations to mercury emissions measured usi ng a reference method (such as ASTM International D6784-02 "Ontario Hydro Method"), but there is none for the cement industry. There is no basis for EPA's assu mption that mass balance data calculations made for the cement industry correlate with the emission measurements that may be made in the future with Hg CEMs.-7- 6. Cost

These monitors are very expensive both to pur chase and to maintain. An estimated cost is shown in Tables 4 and 5. These costs were de veloped by the EERC in discussion with vendors and utilities that currently are using Hg CEMs. The analyzer portion of the monitor requires constant temperature or there is substantial calibration drift. Therefore, temperature control housing is needed. The cost of this is not incl uded in the tables below. Assuming Hg CEMs were to be installed on all cement kilns (167) for no n-waste-burning U.S. cement facilities, based on the costs provided above, the total capital costs would be approximately $45 million, with annual operating costs being about $25 million.

Table 1. Capital Equipment Costs (2007 $)

Cost Item CMM
Purchased Equipment (PE)

Instrument/Console/Probes....................................... $ 165,370

CEMS Shelter with aux equip including N2 generator ............................................................ 60,000

Elemental Hg Calibration Unit ................................. 35,000

Oxidized Calibration Unit......................................... 35,000

Field Reference Cal Unit .......................................... 35,000

Equipment Installation

Labor......................................................................... 12,500

Materials ................................................................... 10,500

Overhead................................................................... 2,500

Certification RATA .................................................. 35,000

Total Capital Requirement........................................ $ 390,870-8- Table 2. Operating and Maintenance Costs (2007 $/yr)

Cost Item CMM
Training........................................................................... $ 24,000

Maintenance and Operating Labor.................................. 13,130

Supervision Labor........................................................... 1,830

Replacement Parts (10% of PE)...................................... 15,740

Utilities............................................................................ 9,510

Depreciation.................................................................... 20,040

Overhead (20% of labor) ................................................ 6,350

Annual RATA................................................................. 35,000

Reporting and Bookeeping ............................................. 12,700

Total Annual O&M Costs............................................... $ 138,480

a. EPA should allow cement plants to use solid material sampling and analysis to demonstrate compliance with the final mercury standards because: (a) EPA relied on this approach to establish the mercury standards; and (b) EPA' s rejection of solid material sampling and analysis based on cost is incorrect and inappropriate.

EPA's rejection of solid material samp ling and analysis is based on EPA's own conclusions about monitoring costs, lacks any techni cal basis, and fails to consider other issues. Nowhere in the proposed rule does EPA offer any technical basis for not allowing solid material sampling and analysis for low level mercury emitting facilities that can comply with the standards without add on controls . For these facilities, only the solid material sampling and analysis approach meets EPA's stated desire to implement the standard in a manner consistent with its development. Cost considerations are be st estimated on a facility specific basis. Costs for implementing mercury CEMS at cement plants meeting EPA's technical requirements are not yet known because it has never been done. Therefore, EPA' s basis for cost comparison is unclear. Furthermore, other factors must be consid ered in addition to cost such as: the reliability of the monitoring approach, risk of data loss, ability to adapt exis ting plant-specific feed and fuel monitoring programs to include sampling for mercury, et c. Clearly, there is no "one size fits all" solution.-9- b. Facilities that control mercury emissions from cement kilns should be allowed to use solid or liquid material sampling and analysis to demonstrate mercury removal as an optional monitoring approach.

Facilities that waste CKD or implement dus t management programs (such as wasting bag house dust collected during in-line raw mill off periods) to minimize mercury emissions should be allowed to implement solid material sampling and analysis procedures to quantify the mass of mercury removed. Sources choosi ng this option in conjunction w ith solid material sampling to determine total mercury input would subtract the documented mercury removed to demonstrate compliance with the mercury standards. The op timal sampling location and approach must be determined on a site-specific basis. For exam ple, while frequent sampling and compositing of baghouse dust during in-line mill off would be ve ry difficult, sampling the wasted CKD from transport trucks or at the point of disposal may be quite simple at some facilities. Site-specific protocols describing sampling locations, samp ling methods, sampling frequencies, compositing procedures, sample preservations, analysis pro cedures, etc. would need to be developed. Because the averaging period of the standard is at least 30 days, the exact timing of the mercury removal and mercury input sampling programs need not be exact, but shoul d be consistent over time.

Similarly, sources with add- on controls should be allowe d to implement material sampling and analysis procedures to quantify the mass of mercury removed and subtract the documented mercury removed to determine complia nce with mercury standards. For example, sources with wet-scrubbers for SO 2 removal may be able to demonstrate mercury removal by sampling and analyzing the scrubber sludge at th e point it is removed from the process or disposed. Again, site-specific sa mpling and analysis protocols w ould be required to ensure the accuracy of the mass of mercury removed which would be subtracted from the total mercury input determined by other solid material sampling and analysis procedures.

c. Mercury CEMS have not been ev aluated through long-term field trials at cement plants in the U. S. in accordance with the proposed performance specifications and quality assurance procedures. Therefore, the reliability and pe rformance of these measurement systems and the adequacy of the technical specifications cannot be determined.

EPA is requiring mercury CEM having undertak en no investigation or field studies assessing the technical performa nce of mercury CEMS at cement plants. Accordingly, EPA has no basis to accept the proposed mercury CEMS perf ormance specifications and quality assurance procedures (as well as anticipated mercury CEMS performance) as they are based entirely upon speculation. EPA should undertake the necessa ry technical investig ations, identify the monitoring problems, develop solutions, and then re-propose its mercury m onitoring regulations for cement plants, if warranted.-10- d. Actual experience does not indicate that issues with mercury monitors at cement plants in Europe are resolved.

Direct communication with a world-wide cemen t manufacturer representative who is an expert in CEMS and has attempted multiple mercury CEMS applications in Europe (including three CEMS certified by the German TUV) dem onstrate the problems with mercury CEMS. He found that none of the commercially available CEMS operated reliably as originally designed. Much work was devoted to improvements and the accuracy problems during direct operation (mill off) for plants with in-line raw mills for me rcury CEMS installed at European plants have not been resolved. He reported major problems due to interferences by iodine, sulfur dioxide and ammonia on a plant- and monitor-specific ba sis. He concludes that one cannot predict whether a mercury CEMS will work or not at a particular plant. 4

Information provided by Martin Oerter (Environmental Monitoring Department, FIZ GmbH) explains that the merc ury CEMS problems are not reso lved for the 34 monitors in Germany. He states:

"Due to tremendous efforts that have been undertaken by the German cement industry over the last y ears, currently indeed 34 of these mercury CEMs are operated in the German cement industry. But it has to be pointed out that there are still difficulties concerning the reliable, long-lasting operation of these devices. This, by the way, was also the reason why the Technical Working Group (TWG) which was responsible for the revision of the current cement and lime BREF did not yet consider the continuous monito ring of mercury as a best available technique (BAT) for the cement industry. Th is is a clear statement made in the revised BREF document."

Martin Oerter provides a journa l article describing many of the pr oblems previously encountered (including major cross- sensitivity due to SO 2 interference sometimes resulting in negative mercury concentrations) 5 and an executive summary of an upcoming presentation. 6

Most recently, "Best Available Techniques Reference Document on The Cement, Lime and Magnesium Oxide Manufactur ing, Industry Final" (CLM BREF) May 2009 prepared for the

4 Communication with Josef Waltisberg dated December 10, 2006.

5 “Limiting and Determining Mercury Emissions in the Cement Industry” M. Schneider, M. Oerter ZKG International No. 3 2000.

6 Monitoring of Mercury and its Behavior in the Clinker Burning Process, August 2009.-11- European Commission 7 includes important statements about the status of mercury CEMS in "Chapter 1 Cement Industry," "1.7 Conclusions and recommendati ons," including the following:

• "Conclusions on the long term stability of these devices are not yet available. Intervals for a periodic maintenance of CEMs have to be adjusted based on future experiences."

• "Furthermore, proper calibration of CEMs accord ing to the European standard EN 14181 is a challenge. In the case of mercury CE Ms, this calibration procedure needs greater effort than for CEMs for other emissions, e.g., dust or NOx."

• "The ongoing development process should be followed. The outcome should be taken into consideration for the next review of this CLM BREF document and information and data regarding this issue should be collected in orde r to make general quantitative statements on the continuous meas urement of mercury emissions."

• "The ongoing research process should be followe d and investigations should be made in terms of improvements and further developm ents. The outcome s hould be taken into consideration for the next review of this CLM BREF document and information and data regarding this issue should be collected in order to make general quantitative statements on the continuous measurement of mercury emissions."

These statements clearly indicate there is much wo rk left to do before it can be concluded that performance issues with mercury CEMS at cement plants in Europe have been resolved and to determine the appropriate quality assurance proce dures that are necessary to maintain acceptable performance.

Mercury CEMS operating in Germany are subj ect to monitoring regulations that are far different than the US regulations and are used in an entirely different regulatory context than that proposed by EPA. It is emphasized that none of the monitors used in Germany, or those that are available from other European or Asian manuf acturers, were able to demonstrate acceptable performance in the EPRI Trimble County Mercury CEMS study. It is also noted that the brand of monitors alleged to perform "acceptably" in Germany at cement plants are not among the 600 mercury CEMS that have recently been purchased by the electric utility industry in the United States. EPA has not collected no r offers any detailed analysis of actual CEMS operation and quality assurance data and offers no valid compar ison of the applicable t echnical requirements. Therefore, direct comparisons between the Ge rman mercury CEMS program and that proposed for U.S. cement plants cannot be made.

e. EPA should not revert to 2004 CE MS performance specifications and should not require any specifica tions that are more restrictive

7 This document reflects an information ex change carried out unde r Article 17(2) of Council Directive 2008/1/EC (IPPC Directive) of the European Parliament and the Council concerning integrated pollution prevention and control (IPPC).-12- than the 40 CFR 75, Appendix A and B requirements promulgated in January 2008.

It is well known that the U.S. utility industr y spent millions of dollars of research and development funds over many years in efforts to implement mercury CEMS for their cap-andtrade application under the now vacated CAMR Ru le. These efforts were critical in the development and subsequent revision of the tec hnical requirements contained in 40 C.F.R. Part 75, Appendix A and B for mercury CEMS. The Part 75 Appendix A and B requirements for mercury CEMS are certainly the most comprehensiv e and up-to-date set of specifications for Hg CEMS and are consistent with current measurem ent technology as reflected by their revision and publication in the Federal Register in January 2008. Yet in the recent proposal of Performance Specification 12A, EPA reverts to 2004 regulations and seeks to require more restrictive and more difficult technical specifications for merc ury CEMS at all facilities, including cement plants. EPA provides no technical justificatio n for these actions and appears to ignore the comments and results of subsequent rulemaking.

f. After field validation, and promul gation of instrumental CEMS and technical specifications and after NIST traceable calibration standards at the necessary concentrations are available, EPA should allow at least one year fo r purchase, instal lation and startup of CEMS and a one-year tria l implementation period before requiring the use of monitoring da ta to demonstrate compliance with emission limits.

As described in detail in the specific comments that follow, there are various technical issues which need to be addressed, evaluated during field trials, and then the performance specifications finalized through proposal and promulgations. Additional work is required by EPA and NIST to resolve outstanding issues with NIST Traceability for oxidized mercury gas generators and to expand the range of NIST cer tified elemental mercury gas generators to the levels required to monitor kiln and kiln/in-lin e raw mill emissions. Only after the technical specifications are finalized and when calibration standards are available can the cement industry begin the process of selection, purchase a nd installation of mercury CEMS or STMS.

It is expected that the capital cost for pur chase and installation of a single mercury CEMs alone will be in the range of $300,000 – $500,000 (depe nding on type selected), and that start-up and certification of the CEMS will be very cost ly. Extensive training and manufacturer support will be needed for operating and maintaining these technically challenging devices as the cement industry has no experience with their use (and most have no experience w ith dilution extractive monitors) and manufacturers ha ve not sold any mercury CEMS in the cement industry. Ongoing operation will require dedicated personnel at each plant and very high operating expenses. There are many challenges that will need to be addressed for mercury monitoring systems, including:

• very complicated hardware required to conti nuously sample in the presence or reactive particulate matter, consistently convert oxidized mercury to elemental mercury, quantitatively dilute the extracted sample and transport, and analyze mercury;-13- • complex equipment necessary to generate elemental and oxidized mercury calibration standards for each CEMS;

• high concentration spikes expected during raw mill off conditions for plants having an inline raw mill configuration;

• resolution of issues associated with combined effluent streams to the main kiln stack ( i.e., clinker cooler, coal mill, etc.);

• difficulties of monitoring downstr eam of wet scrubbers in the presence of water droplets, gypsum and cement residue;

• monitoring very low concentr ation levels of reactive conde nsable compounds of oxidized mercury; and,

• natural inherent variability of mercury compounds in the limestone and other feed materials.

7. Instrumental Mercury CEMS Monitoring Issues

• The potential use of Thermo and Tekran Hg CEMS is at best speculative. There is no legitimate technical basis on which to establis h detailed performance specifications or QA requirements for these CEMS. There is no le gitimate technical basis to conclude that these CEMS could meet such requirements over any extended period when installed and operated at a cement plant.

• The potential use of all other Hg CEMS (i ncluding the 34 systems in Germany that supposedly provide "acceptable performance") are entirely undemons trated and unproven for any use at Portland cement plants to de monstrate compliance with Hg emission limits in the USA in accordance with EPA technical requirements.

• An evaluation of the performance of Hg CEMS at cement kiln systems must be conducted to acquire the information necessary to serve as the basis for technical specifications and requirements. After such information is available and analyzed, EPA should re-propose appropriate and demonstrated performance specifications and quality assurance procedures for Hg CEMS to monitor kiln and kiln/in-line raw mill Hg emissions.

It is emphasized that there are no Hg CEMS installed at Portland cement plants in the United States and that there is no long term demonstration that contemporary Hg CEMS can meet requirements such as those proposed in Performance Specification 12A and Appendix F, Procedure 5 when installed and operated to m onitor kiln emission at Portland cement plants

. Furthermore, there have been no long-term tria ls of such systems at cement plants. As demonstrated in the well known multi-year Electr ic Power Research Institute (EPRI) Trimble County Hg CEMS test program, a variety of Hg CEMS (including thos e provided by European manufacturers) failed to meet the then appli cable Part 75 Hg CEMS performance specifications and failed to operate reliably. The only monitors that are judged to ha ve exhibited provisionally-14- acceptable performance were the Thermo Fisher Scientific "Mercury Freedom System" and Tekran Hg Monitoring system. Only these tw o manufacturers have ach ieved any significant market share of the approximate 600 Hg CEMS pur chased by the electric ut ility industry. Only these two manufactures particip ated in the EPRI and EPA field demonstration program to establish NIST/EPA traceability protocol require ments for elemental and oxidized Hg calibration gas generators. Based on these facts, the only potentially viable Hg CEMS for use at cement plants as of this writing are the Thermo and Tekran Hg CEMS. It is noted that both of these systems are extractive dilution Hg CEMS which a ppears to be the only vi able technology. Both of these systems provide wet basis Hg measur ements, are capable of operation in speciation mode to quantify both total Hg and HgCl 2 , and are capable of direct calibration of the elemental Hg analyzer. Each of these characteristics is important to the potential implementation of appropriate certification and quality assurance pro cedures that are described below. There is insufficient information to determine if the s uggested procedures could be applied to other designs. Further, both of these manuf acturers have elemental Hg and HgCl 2 calibration gas generation systems that have been evaluated by EPA, NIST and evaluated extensively during field testing by th e utility industry.

In view of the lack of reliable informati on about Hg CEMS in EPA's docket, together with the evolving state of this immature tec hnology, the PCA and its members reserve the right to amend and supplement these comments and provi de additional information to EPA during this rulemaking, and any future rulemakings involving re-proposed regulations.

B. Compliance Demonstration Requirements

1. Introduction

EPA is proposing that kilns burning waste c ontinuously monitor merc ury. The proposed limit is 24ug/dscm at 7% oxygen for new and existing kilns. The units of the standard are not consistent with the PC NESHAP (40 CFR part 63 Subpart LLL) which are in units of lb Hg/Mton clinker. Furthermore, EPA has propose d a 24-hr block average as compared to a 30 day rolling average in the PC NESHAP.

Having the two standards in different units with different av eraging periods is cumbersome for the data handling system and reporting. It will also require in addition to the Hg CEMS input into the DAS, oxygen CEM system data (for correcting to 7%), flow monitor (for calculating lb/hr and thus lb/ton), and data from the clinker scale.

In the PC NESHAP, EPA promulgated a 30 -day rolling average to account for the inherent variability of the stone, the fact that there were no continuous Hg emissions data, and the effects of the raw mill operation on Hg emissions. Obviously a 24-hour block average does not take these factors into acc ount. EPA should be consistent in its units of the standard for Portland cement plants that also burn alternate waste fuels. A 30-day rolling average should be used as the averaging pe riod not 24-hour blocks.

EPA has proposed that CEMS would be inst alled and operated acco rding to either PS12A or the vacated Part 75 procedures for adso rbent tube systems. EPA should allow also PS--15- 12B (as amended below) for use with sorbent tube based monitors (as Part 75 for Hg CEMS is vacated). The following are comments on the procedures in PS-12A, Procedure 5 and PS-12B.

2. Comments on Performance Specification 12A and Appendix F, Procedure 5

Establishing the span value at twice the concentration corresponding to the emission limitation is acceptable for cement plants provided that reasonable provisions are included for certification and quality assurance of the Hg CEMS when emissions exceeding the span value are periodically encountered (such as for plants with in-line raw mills during mill off operation). Selection of the span value is a critical element in the CEMS certi fication and quality assurance.

EPA recognizes that the emissions will sometimes exceed the span value for some kiln systems and configurations. Yet the proposed PS 12A and Procedure 5 make no mention of what is to be done when concentrations exceed the span value, nor how varied emission levels are to be addressed during the initial certifica tion or during ongoing quality assurance of the Hg CEMS. Without further guidance, plant-specific determinations will need to be made by EPA or the delegated authority for each of the following issues:

a. Need for and/or use of dual range Hg CEMS, or (even wors e) duplicate low and high range Hg CEMS,

b. Need to re-span or re-calibrate Hg CEMS at elevated Hg concentrations to accommodate temporary high levels during “mill off” operation which will result in the substantial reduction in monitoring accuracy during “mill on” operation which represent a far greater porti on of the plant operating time,

c. Potential invalidation of Hg monitori ng data when emissions exceed the span value, and

d. Widely varying and inconsistent inte rpretations of how best to conduct the relative accuracy test at facilities with varying and unstable Hg emissions.

The result is that the regulations are ambiguous and subject to wide interpretation by each control agency for each affected source..

The following amendments to the Hg CEMS requirements for cement plants are provided as an example of reasonable provi sions: (Something similar should be validated by field trials and then re-proposed by EPA for inclusion in the Subpart LLL monitoring provisions.)

• For kiln systems with in-line raw mills (or other kilns with fluctuating emission levels) the span value should be specified as the Hg concentration corresponding to two times the emission limit.

• The normal clinker production rate and the co rresponding effluent gas flow rate (wet basis) should be used to calculate the wet basi s Hg concentration that is equivalent to the emission standard for the operati onal conditions repres enting greater than 85% of the kiln operating time (i.e., in-line mill on).-16- • The definition of “span value” in PS 12A and Procedure 5 must be changed to reflect the addition of underlined phrase “Span va lue means the upper limit of intended measurement range during normal mill on operation which may be exceeded during mill off operation or other short-term conditions lasting less than 24 consecutive kiln operating hours.”

• The span value will be used as prescribed in PS 12A and Procedure 5 for the selection of the calibration gas concentrations used for daily upscale calibration gas checks, linearity checks for elemental and oxidized Hg calibrati ons, as well as quar terly gas audits and system integrity tests. The span value wi ll also be used for determining the acceptable tolerance for all calibration error and linearity specifications expressed as “percentage of span” and similar requirements.

• PS12A and Procedure 5 should explicitly state th at the relative accuracy test for the initial certification and annual verification of accuracy will be performed while the in-line raw mill is operating or while emissions are within the range bounded by the span value. (A relative accuracy test cannot be completed duri ng the relatively short mill off period and emissions are not stable during such periods . Furthermore, effluent gas temperatures during mill off conditions may exceed the dem onstrated operating ra nge for EPA Method 30B at some facilities.)

• If emissions exceed the span value for more than 5% of the kiln operating time, the CEMS operator shall conduct “d irect calibrations” of the Hg analyzer bypassing the dilution module. (Because the Thermo and Te kran Hg CEMS operate on a dilution ratio of 30 or 40 to 1, the calibrated range of the Hg analyzer will be 30 or 40 times the upscale calibration value. Hence, for a system calibrated to measure 0-10 μg/m3 through the entire measurement system, the analyzer w ould be calibrated accurate to between 0 and 300 to 400 μg/m3.

[Note: This “direct calibration adds little or no burden to the CEMS operator because (1) these direct calibrations are automatically performed fo r the Tekran system to facilitate comparisons with the internal Hg permeation source (performed weekly as a “lamp intensity check”), and (2) are required to be performed for both Thermo a nd Tekran systems to ve rify periodically the performance of the elemental Hg calibration ga s generator. See also EPA Interim Traceability Protocols for Elemental and Oxidized Hg Calibration Gas Generators.])

• The ability of the CEMS to quantitatively transport high con centration levels of oxidized Hg through the probe, filter, filter cake, sa mple lines, and the ability of the CEMS converter to reduce the oxidized Hg to elemental Hg should be confirmed initially and quarterly by injecting a high level HgCl2 ca libration gas standard at the sample probe, upstream of the PM filter. This high level sy stem integrity test should be performed at a concentration approximating the maximum hour ly average emission concentration during the preceding month, or other representative high level concentration. The high level system integrity check is acceptable if:-17- o The stable Hg CEMS res ponse is within ± XX% (to be determined) of the reference value, and the system returns to the normal operating level within 30 minutes of ceasing the ca libration gas injection, or

o The time integrated Hg CEMS response is equivalent to the total mass of HgCl2 injected within ± ZZ% (to be determined). (Note: This allows for temporary adsorption/desorption on the filter cake or other CEMS transport components which may affect the short –term respons e but which will not affect the 30-day averages measured by the CEMS system and calculated by the DAS. This specification would be imple mented by timing the durati on of the HgCl2 injection and calculating the mass injected as the product of: the calibration concentration (μg/m3) x injection rate (m3/min) x dura tion (min). The CEMS response would be determined by integrating the area under the response curve and multiplying by the CEMS sampling rate. The uncertainty in the calibration gas injection rate and CEMS sampling rate would need to be c onsidered in establis hing an appropriate specification tolerance. )

• As an alternative to the high level system integrity checks, the CEMS operator may elect to demonstrate the accuracy of Hg CEMS measurements exceeding the span level by conducting a three-run relative accuracy audi t (RAA) on a quarterly basis, where sitespecific sampling conditions permit the use of this approach. The three-run RAA would be performed using Method 30B as the re ference method following the procedures described in Procedure 5.

The definition of “span value” must be cha nged, explicit procedures for its calculation should be added, and the value should be rounded to established ranges. PS12A, states, “3.5 Span Value means the upper limit of the intended Hg concentration range. The span value is a value equal to two times the emission standard.”

EPA states in the preamble, (as discussed above) that it is aware the Hg concentrations at cement plants will exceed the span value, so the stated definition obviously does not work. It could be modified as described in 1 above, by addition of underlined phrase “Span value means the upper limit of intended measurement range during normal “mill on” operation which may be exceeded during “mill off” operation or other short-term conditions lasting less than 24 consecutive kiln operating hours.” Alternativ ely, the first sentence in the EPA proposed definition could be eliminated. Perhaps a better solution is to state that the span value is specified in the applicable Subpart (Subpart L LL) where the specific requirements are more appropriately addressed.

Specific procedures should be provided in Subpart LLL for the calculation of the emission concentration equivalent to the 43 lb /million ton clinker (existing sources) or 14 lb/million ton clinker (new sources). The calculated span value should be rounded to the nearest 10 μg/m3 level as has been the practice for Hg CE MS because of technical limitations associated with the elemental Hg gas generators and specific requirements to establish NIST traceability. (See also EPA Interim Traceability Protocols for Elemental and Oxidized Hg Calibration Gas Generators.) An infinite-num ber of site-specific ranges is neither practical nor possible.-18- The PS 12A requirements at “6.1.1 Data Reco rded Scale” are misl eading, ambiguous and obsolete and should be replaced by a relevant specif ication for data record ing and an appropriate definition, (consistent with Span Value) for the “high level value.” The only thing 6.1.1 says relative to the data recorder is: “The Hg CEMS data recorder output range must include zero and a high level value.” This is an obsolete require ment from long past era of analog instrument outputs and chart recorders. It pr ovides no useful direction relative for contemporary systems. If EPA requires specifications for the range, resolution, or other da ta recording parameters they should be specified explicitly. The remainder of this paragraph discusses the “high level value” selected as a function of the emission standard. Th is raises the same questions as selection of the span value. More impo rtantly, it contradicts the explicit statements in section 7.1 that prescribe selection of each reference gas level as a function of the span value.

The PS 12A requirements at “6.2 Refere nce Gas Delivery System” are ambiguous, subject to interpretation, unlikely to be achie ved exactly in practice, and without means of verification.” The section states, “The reference gas delivery system must be designed so that the flowrate (sic: flow rate) of reference gases introduced to the CEMS is the same at all three challenge levels specified in Section 7.1, and, at all times exceeds the fl ow requirements of the CEMS.” The last phrase is not needed because the CEMS would fail all calibrations if the reference gas generator flow does not exceed the CEMS sampling rate.

EPA is well aware that saturated headspace elemental Hg generators produce different flow rates to generate different Hg concentrations by varying either the dilution gas flow rate or the saturated head space flow rate. The later re sults in small differences in the generated gas flow rate, but the EPA requirement allows no tole rance in the phrase “is the same.” Furthermore, certain quenching effects due to varying resi dual oxygen concentration for nitrogen dilution extractive CEMS have driven one equipment supp lier to change its appr oach so that only the head space flow rate is varied (for a particul ar measurement range). However, this does not justify the proposed EPA requirements as the same issue would not affect air dilution systems and/or other analytical techni ques. If specifications to lim it the effects of background oxygen quenching are needed they should be specific to that issue.

EPA is well aware that the maintenance of the same flow rate for each challenge level for oxidized Hg (i.e., HgCl2) generato rs is inconsistent with the procedures and requirements of the “Interim EPA Traceability Protocol for Qualificat ion and Certification of Oxidized Mercury Gas Generators” for both evaporative gas generators and generators that convert elemental Hg to HgCl2. Achieving the same flow rate at each gas level is unnecessary and complicates the procedures. The subject requirement includes no tolerance that defines what is meant by “gas flow rate is the same at all three challenge leve ls,” and it includes no test to verify that the specification is met. The specification should be changed from “must” to “should be designed” ... so that the referenced gas flow rate is appr oximately the same (i.e., ± 20%) at each challenge level.”

PS 12A Section 7.1 requires the use of NIST certified or NIST Tr aceable standards for both elemental Hg and oxidized Hg (HgCl2), whic h are not currently ava ilable, and may not be available in the future at the specified levels, depending on EPA’s resolution of the “span value.” Section 7.1 requires zero level (0-20% of span), mid-level (50-60% of span), and high-level (80- 100% of span) calibration sta ndards for both elemental Hg and oxidized Hg. Hg CEMS-19- designed to meet EPA’s technical requirement s must include elemental and oxidized gas generators. (Note: Elemental Hg calibration gas standards are not yet available as stable compressed gas standards, and even if available at some future date as compressed gases their use would be unaffordable as a cylinder costing $2,500 would be exhausted in a few days due to the high sampling rate of Hg CEMS (e.g., 40-50 liters per minute) and the long equilibration times that are needed. Oxidized mercury comp ressed gas standards cannot be produced.) For more than three years, EPA, NIST, EPRI and others have worked to develop and validate through a field demonstration projec t, protocols to ensure the NIST traceability of the calibration gas standards. Interim EPA Traceability Protocols are available, but final protocols will not likely be available for several years due to unresolved technical issues, such as:

a. “Interim EPA Traceability Protocol fo r Qualification and Certification of Elemental Mercury Gas Generators” dated July 1, 2009, as well as statis tical procedures for calculation of uncertainty and stan dardized spreadsheet packages are available from EPA. This protocol is explicitly limited to CEMS with spans of 5 μg/m3 or greater. It establishes the NIST traceability of elemental gas generators via direct Hg concentration measurements made at NIST by isotope dilution ICP-MS, to cer tify the NIST Prime Generator, subsequently used by NIST to certify Vendor Prime Generators, subsequently us ed by Vendors to certify Reference Generators, that are ultimately used to certify User generato rs in the field. (Only Thermo and Tekran have certified Vendor Prime generators.) The entire NI ST traceability is co nstrained by the exact concentration points established by NIST for th e ID-ICP-MS which are from 0.5 to 38 μg/m3. Based on the flexibility included in the Interim Protocol procedures, User generators having spans of 50 μg/m3 could be certified. It is an ticipated that Hg CEMS will need to measure concentrations exceeding 50 μg/m3 and that some plants will have short term periods necessitating quantification of 1-minute Hg concentrations between 50 and 150 μg/m3. Generation and certification of higher elemental Hg concentrations is c onsidered technically feasible by knowledgeable experts from both Tekran and Thermo. However, certification of the NIST Prime Generator at NIST will require m odification of the ID-ICP-MS interface and/or development and validation of a new reference m easurement. This work has not yet begun and will likely require at least several years to complete.

b. “Interim EPA Traceability Protocol fo r Qualification and Certification of Oxidized Mercury Gas Generators” dated July 1, 2009 is available from EPA. Strict NIST traceability is not possible because NIST has no fundamental measurement method for oxidized Hg. EPA’s traceability protocol relies on (a ) certification of the inputs for evaporative generators that create gas standards from cer tified HgCl2 solutions, and (b) use of certified elemental Hg generators for those that convert el emental Hg to HgCl2. For the later type of generator, the effective range is again limite d to 50 μg/m3 because of the concentration limitations for NIST certification of elemental generators. For evapor ative generators, the concentration is not limited by the protocol. However a major discrepancy between elemental Hg and oxidized Hg measurements of 9% has been observed and is acknowledged by EPA. Until this issue is resolved, evaporative generato r manufacturers are allowed to apply a software correction to account for bias. The work to reso lve this issue has been discussed for several years, but at least several additi onal years will be required to resolve the issue after the work actually begins.-20- c. CEMS operators would not be able to comply with the proposed specifications until higher level NIST traceable standards are available (at least several years) if EPA (a) changes its position on setting the span value at the concentration equivalent to twice the emission limit, (b)requires dual range instruments, or (c) requires NIST traceable materials used for the high level system integr ity checks (suggested in 1 above) for kilns with in-,inline raw mills.),

d. If EPA makes further substantive change s to the Interim Traceability Protocols or changes in the Final Traceability Protocols, all i ssues regarding the certification and use of the calibration standards must be revisited. Such ch anges should be subject to rulemaking including formal proposal and comment.

PS12A Section 8.1.1 includes a vague requirement to “use a sampling location that has been shown to be free of stratification fo r Hg or alternatively, SO2 and NOx through concentration measurement traverses for those ga ses.” This requirement should be changed to a suggestion or guidance. We agree that SO2 and NOx (as well as CO2) traverses are sufficient to indicate potential stra tification, especially b ecause the severe practical limitations of Method 30A prohibit its use for conducting stratification tests. However, since PS12A contains no specific procedures for conducting stratification tests and no crite ria for what might constitute stratification, this is merely a suggestion, and subject to different interpretations. The three-point traverse required for the relative accuracy test s is sufficient to ensure that the reference measurements are representative of emissions a nd therefore stratification would adversely affect the RATA result and thereby, be de tected. No further stratificati on testing is necessary and it should not be required.

The PS12A criteria for the lineari ty test procedures are more restrictive than the Part 75, Appendix A criteria, are inconsistent with the un certainty of calibration materials defined by Interim EPA Traceability Protocols, and should be relaxed. PS12A , Section “8.3 Linearity Test Procedure” requires challenging the entire CEMS measurement system by injecting calibration standards in the sample probe upstream of the PM filter. The linearity tests must be performed using both elemental Hg standards and HgCl2 standards. At least three injections at each of three levels must be performed. For each refere nce gas, the absolute value of the difference between the CEMS response and reference value shall not exceed 5% of the span value. (See also Section 13.1.)

The Part 75 Appendix A criteria (revised Janua ry 2008) for linearity checks specified that the measurement error be less than 10% of span at any level. These regu lations also included an absolute specification which stated the results were acceptable if the difference between the average monitor response and the average refere nce value does not exceed 0.8 μg/m3. The Part 75 Appendix A and B requirements for Hg CEMS ar e certainly the most comprehensive and upto-date set of specifications for Hg CEMS a nd are consistent with current measurement technology as reflected by their re vision and publication in the Fede ral Register in January 2008. EPA offers no explanation or justification in propos ing linearity test specifications that are twice as restrictive.

The “Interim EPA Traceability Pr otocol for Qualification and Certification of Elemental Mercury Gas Generators” states:-21- a. At each concentration level, the results of the bracketing certification procedure are acceptable if the expanded uncertainty of the elemental mercury generator concentration, calculated in accordance with Section 6.3 above, does not exceed 5.0 percent of the certified valu e, or is not more than 2.0 percent above the Vendor Prime uncertainty at the closest set point, whichever is less restrictive.

For the high-level elemental reference gas, the uncertainty is 5% of the certified value and (because the high-level value is 80-100% of the span value) the uncertainty can approach 5% of span. Clearly, a standard having an uncertainty of 5% of span is not sufficient to be used to determine conformance with a linearity specification havi ng an acceptable tolerance of 5% of span. Because better standards are not yet available, the linearity specification must be relaxed to be no more restrictive than 10% of span.

b. “Interim EPA Traceability Protocol for Qualificati on and Certification of Oxidized Mercury Gas Generators” does not contain an uncertainty specification, and instead states that an uncertainty target of 10% is believed to be achievable. In addition, the Interim EPA Traceabilit y Protocol also allows a software adjustment to compensate for an unresolved discrepancy between elemental and oxidized Hg measurements. (Tekran current ly applies a 9% co rrection factor and this is not reflected in the calculate d uncertainty. Hence, the oxidized Hg calibration standards are less certain than the elemental Hg standards. These standards are not of adequate quality to determine conformance with the 5% of span linearity specification fo r oxidized Hg measurements.

The PS12A criteria for the calibration drift (CD) test procedure omit the absolute CD specification included in the Part 75, Appendix A criteria, are inconsis tent with the uncertainty of calibration materials defined by EP A draft interim traceability protocols, and should be relaxed. PS12A, Section 8.4 requires challenging the en tire CEMS measurement system by injecting calibration standards in the sample probe upstream of the PM filter for seven days using either elemental Hg standards or HgCl2 standards. Again, the difference between the CEMS response and reference value shall not exceed 5% of the span value. (See also Section 13.2.)

The Part 75 Appendix A criteria (revised Janua ry 2008) for linearity checks specified that the calibration error be less than 10% of spa n, but for CEMS with spans of 0-10 μg/m3, an absolute tolerance of ± 1 μg/m3 was also app lied. The Part 75 Appendix A and B requirements for Hg CEMS are certainly the most comprehens ive and up-to-date set of specifications for Hg CEMS and are consistent with current measurem ent technology as reflected by their revision and publication in the Federal Register in January 2008. EPA offers no explanation or justification for omitting the absolute specification from the CD criterion or for reducing the tolerance from 10% to 5%.

The selection of a 5% of span criteria for the CD tests is inconsistent with the uncertainty of the high-level calibration gas (5% of the certified value) which is approximately the same as 5% of the span value.-22- The proposed revisions to Subpart LLL and PS12A fail to specify the conditions under which the relative accuracy test is performed which will lead to inconsistent interpretations and implementation requirements. Subpart LLL should sp ecify that the CEMS relative accuracy test be performed at the most prevalent operating condition (i.e., “mill on” for plants with in-line raw mills). PS12A, 8.5.1 states, “Conduct the RA test ... while the affected facility is operating at normal full load, or as specified in an applicable subpart.” Full load would apply to power plants and industrial boilers but does not apply to cemen t plants. Subpart LLL says nothing about this matter. In Comment 1 above, recommendations are provided to ensure the accuracy of data at levels exceeding the span value. A relative accuracy test cannot be performed during mill off operation because the mill off period is not of sufficient duration (tests over multiple weeks would be required), emissions are changing with time and are not in equilibrium, and for some sources the effluent temperature is incompatible with Method 30B. If EP A takes a course other than that recommended above, the new requirements should be re-proposed for comment.

When completed, EPA should re-propose PS12A for public comment. §9.0 Quality Control [Reserved] 10.0 Calibration and Standardiz ation [Reserved] Quality Control procedures and Calibration and Standardizatio n procedures must be consider ed to determine the overall validity and reasonableness of the performance specification. Without these integral sections, an evaluation of the acceptability of this specification cannot be made.

The PS12A proposes to make the relative ac curacy specification stricter for certain CEMS than is required by Part 75, Appendix A and B. Section 13.3 proposes a three-level relative accuracy specification. Two of the specifications are the same as Part 75, Appendix A. For CEMS where the mean reference measuremen t (RM) is less than 10 μg/m3, the relative accuracy must be no greater than 20%. Alternativ ely, if the mean RM is less than 5 μg/m3, the results are acceptable if the abso lute value of the mean differen ce between the RM and CEMS is less than 1 μg/m3. However, EPA has added an additional specification that the relative accuracy must be no greater than 10%. This speci fication applies when the RM is greater than 10 μg/m3and is twice as restrictive as the Part 75 Appendix A and B specifi cation at levels above 10 μg/m3 The Part 75 Appendix A and B require ments for Hg CEMS are certainly the most comprehensive and up-to-date set of specifications for Hg CEMS and are consistent with current measurement technology as reflected by their revisi on and publication in th e Federal Register in January 2008. EPA offers no explanation or justif ication in proposing a more restrictive relative accuracy specification for sources with Hg concentrations above 10 μg/m3.

3. Performance Specification 12B (PS 12B) Comments

PS 12B is used to evaluate the acceptability of sorbent trap monitoring systems (STMS) used to monitor total vapor-phase Hg emissions. STMS involve continuous repetitive in-stack sampling using paired sorbent media traps with period ic analysis of the time-integrated samples.

Method 30B is a reference method used over a period of 1⁄2 hour to 2-3 hours, and PS12- B is specifying its use as the STMS. A continuous monitoring system is not the same as a test method even though they consist of similar component s. The STMS will n eed to have additional components data handling components (among other things) that will differentiate it from Method 30B. Therefore a declara tion that the STMS is simply 30B is greatly oversimplified. PS-12B differs from other performance specifica tions in that it specifies the equipment and-23- procedures to be used in the sorbent trap monitoring system (STMS). EPA has mixed a Performance Specification with on-going quality assurance procedures making this procedure unnecessarily complicated. EPA should develop an Appendix F type procedure for on-going QA and eliminate the three section spik e trap requirement for daily use.

Section 6.1.1. The substitution of three-sectio n traps in place of two-section traps is totally unnecessary. The addition of the third section is used for quality assurance (QA)
purposes.

As is stated in section 6.1.2, “Section 3 is designated for QA/QC purposes where this section shall be spiked with a known amount of gaseous Hg0 prior to sampling and later analyzed to determine recovery efficiency.” This added requirement adds unnecessary complexity of spiking Section 3 (see section 6 .1.3) and the inherent pr oblems with analytical variations.

This requirement should be moved to the Appendix F procedure that EPA needs to develop for sorbent trap systems.

The third section spike trap should only be required when the duplicate trains do not meet the RD specification, during the initial relative accuracy test and for on-going QA such as quarterly audits. When spikes are required (s ee comments above), the procedure should allow the use of liquid standard spikes that are trac eable to NIST. Section 6.1.3 Gaseous Hg0 Sorbent Trap Spiking System does not allow for liquid spikes.

The liquid “spike” is the proced ure used to prepare the calib ration curve used in thermal desorption analyses (i.e., Ohio Lumex Analyzer). The analyst adds a known mass of mercury to the adsorbent using a calibrated pipette, followed by thermal desorption and analyses to comprise a data point as part of the ca libration curve. Multiple repeti tions at different mass levels comprise the “curve”. Th erefore, if this procedure is “ good enough” to prepare the calibration curve, it should also allow for the preparation of spike traps.

The third section spike and analyses procedure does not account for any mercury sampling system issues; it is merely a check of th e recovery efficiency. Therefore a liquid spike can accomplish this very same task without the added expense of purchasing a 50K elemental generator, very expensive calibration gases and regulators, or some homemade sparger set-up to generate gaseous mercury.

The following reference sentence in Section 1.2.2 should be deleted:

Section 1.2.2. “This specification is not designed to evaluate an installed sorbent trap monitori ng system’s performance over an extended period of time nor does it id entify specific techniques and auxiliary procedures to assess the system's performance,” .

The statement is incorrect. The fact that paired sampling trains meeting a relative deviation (RD) specification are required is a means for determining on-going evaluation over extended period of time.-24- Section 8.1.1 should be changed to read “select a location that is representative of Hg emissions”. The wording “Locations shown to be free of stratification” indicates that only locations that are free of stratification must be se lected. We agree that SO2 and NOx (as well as CO2) traverses are sufficient to indicate potentia l stratification. However, since PS12B contains no specific procedures for conducting stratification tests and no criter ia for what might constitute stratification, this is merely a suggestion, and subject to differe nt interpretations. The intent should be that the sampling location must be repr esentative of the sour ce Hg emissions. If a point of average Hg concentration can be select ed in a location where the gases are stratified, such a point should be acceptable.

Section 8.3 should be deleted because the RATA procedure is redundant and totally unnecessary. The RATA procedure calls for comp aring the STMS to a reference Method (30B) that is practically a redundant measurement technology (i.e., carbon traps to carbon traps). This procedure is essentially already what is being done with the duplicate trains – one reference method train is being compared against anothe r reference method train. erefore, the RATA procedure should be deleted from PS 12B, and sp ike traps used to cert ify and evaluate the system. PS 8A is similar in that calibra tion gases are used for the relative accuracy determination so comparisons of “FID – FID” are not done.

II. HCl

EPA is proposing that annual testing be c onducted for HCl using EPA Method 26A, as opposed to the continuous monitoring requirement for HCl contained in the PC NESHAP. The proposed limit is 1.5 ppm (v) dry at 7% O2. EPA is inconsistent in pr oposing that EPA Method 26A be used for compliance as they have forbid its use in this industry for the last 10 years. Furthermore, it is expected that most data used in the MACT Floor analyses were collected using infrared based methods such as 320, 321 or ASTM D6348. Therefore, compliance demonstrations using Method 26A is totally inconsis tent with past regulations and data collection activities involving HCl a nd the cement industry.

It is unclear why EPA has c hosen to regulate the same industry with two completely different standards for the same pollutant. EPA's proposed a compliance limit of 1.5 ppm HCl dry at 7% O2 will be difficult to demonstrate compliance with using FTIR based methods since the analytical detecti on limit is about 0.2 ppm (v) wet and ca libration gases are only available down to 5 ppm. Compliance demonstrations at 1.5 ppm (v) dry at 7% O2 using EPA Method 26A would be possible as the method is natura lly biased low by EPA's own acknowledgement, and the sampling rate and time can be adjusted to collect enough volume.

III. Particulate Matter

EPA has proposed a standard of 60 mg/dscm fo r existing plants whic h is equivalent to 0.026 gr/dscf. Most well maintained baghouses a nd ESPs can meet this standard. A one-hour Method 5 test combined with Method 29 in the back half would be used to demonstrate compliance with both the PM and the Cd and Pb standards.

The proposed standard of 1.8 mg/dscm for ne w kilns is equivalent to 0.0008 gr/dscf. This would be difficult to meet today in most plants even using the best baghouse filtration-25- media. Compliance testing would be using the Method 5/29 combination; however, for demonstrating compliance at this level one would n eed to test for at least three hours. The units of the standard are not consistent with the PC NESHAP (40 CFR part 63 Subpart LLL) which are in units of lb/ton clinker measured on a con tinuous basis. EPA should be consistent in its units of the compliance standard for PM.

EPA proposes that compliance with the PM lim its shall be demonstrated by PM source tests unless the facility elects to install a PM CEMS. For kilns and kiln/in-line raw mills controlled with fabric filters, EPA's proposal re quires installation and operation of a Bag Leak Detector (BLD) and development (and submi ssion for approval) of a site-specific BLD monitoring plan. EPA proposes to allow the use of PM CEMS (meeting the requirements of Performance Specification 11, and Appendix F, Proce dure 2) as an alternative to the other PM monitoring requirements and soli cits comments making the use of a PM CEMS a requirement.

The proposed PM monitoring provisions app ear to be based on an incomplete understanding and outdated knowle dge regarding PM monitoring technology and approaches. There is no indication that EPA did anything other than reiterate previous positions without any technical investigation or evalua tion. EPA conducted no studies or evaluations of BLDs, or any other PM monitoring devices, on cement kiln or kiln/in-line raw mill emissions. EPA fails to recognize that many BLD designs are entirely in appropriate and inadequate for use under the varying effluent matrix and conditions, especia lly at kilns/in-line raw mills. EPA makes no mention of these issues and offers no relevant guidance. EPA continue s to rely on a single outdated and inadequate guidance document appli cable to a single BLD ve ndor and single fabric filter configuration/cleaning cycle that is not repr esentative of the range of configurations for kilns/in-line raw mills. 8 EPA fails to develop performance specifications and quality assurance requirements for the compliance monitoring techniques it specifies.

EPA does not acknowledge in its preamble disc ussions, the actual regu lation, or under its review obligations rela tive to the National Technology Transf er and Advancement Act, that technically superior and far more practical PM monitoring approaches have been developed for cement plants that burn hazardous waste. Furthermore, the proposed PM monitoring provisions are inconsistent with the promulgated PM mon itoring requirements for cem ent plants that burn hazardous waste (40 C.F.R. Part 63, Subpart EEE (2008)) thereby creating confusion and inconsistent requirements. EPA makes no menti on of and includes no provi sions to allow use of Particulate Matter Detectors (PMD s) as are allowed for both ESP and fabric filter controlled cement plants that burn hazardous waste under th e promulgated requirements of Subpart EEE. By this omission, EPA eliminates options to us e better PM monitoring practices that have already been promulgated for cement plan ts and demonstrated in practice.

8 "Office of Air Quality Planning and Sta ndards (OAQPS) Fabric Filter Bag Leak Detection Guidance" EPA-454/R-98-015, September 1997.-26- EPA should conduct a legitimate analysis of all the applicability, installation, design, performance, certification, quality assurance and alarm level setting procedures for each PM monitoring approach. This evaluation must c onsider the use of BLDs, PMDs, COMS and any other viable approach. At an minimum, this evaluation must include specific consideration of the full range and variability of the effluent conditions, effluent matrix, and particle characteristics that can be expected to be enc ountered for kilns and kilns/in-line raw mills in order to address the applicability of particularinstrument designs and the effects of crosssensitivities and measurement inte rferences. Until the results of such evaluations are confirmed by actual field tests and experience, there is no valid basis to establish the performance of BLDs, PMDs or other monitoring technologies as insta lled on cement kilns or kilns/in-line raw mills. When such information becomes available, EP A should re-consider and re-propose its PM monitoring requirements. Until such information becomes available and legitimate technical evaluation is completed, all monitoring approach es including BLDs, PMDs and COMS must be allowed.

A. Bag Leak Detector Monitoring Provisions

1. EPA has not demonstrated acceptable performance of BLDs to monitor kiln, kiln/ in-line raw mills at cement plants and has not developed necessary guidance for or technical requirements that will be necessary for a BLD to meet the requirements in the proposed rule.

PCA and its members agree that BLDs, proper ly selected and applied specifically for cement kiln and clinker cooler systems, can pr ovide a valid PM monitoring approach and can provide useful tools to indicate the need for inspection of a baghouse/fa bric filter, and when needed corrective action. However, much work remains to be done to determine which types of measurement devices will perform acceptably at cement kilns kilns/in-line raw mills and to develop appropriate alarm setting procedures, installation, operation, and quality assurance procedures and corrective action procedures. EP A's proposed rule requires the development (and submission for approval) of a site-specific BLD m onitoring plan addressing all of these issues. Yet EPA has provided no guidance on these matters and relevant validated procedures are notavailable from the measurement system suppliers for installations on cement kilns and kilns/inline raw mills. For example, in the selection of BLD devices it is clear that the most widely used probe type BLDs (such as "triboele ctric" or "probe electrification" or "charge transfer" devices) are unsuitable for use on kilns/in-line raw mill s because the responses of these devices are proportional to the square or to the cube of th e local gas velocity and are also affected by changes in effluent temperature, moisture content, and resistivity of the dust. All of these factors change when the raw mill operational status changes. Furthermore, many of these type devices provide the operator with no automated means to check the performance of the installed device, nor any means to conduct external audits when the device is believed to be malfunctioning. Only after the many BLD issues are investigatedand evaluated for monitoring kiln and kiln/inline raw mills will it be possible for to develo p appropriate technical requirements and quality assurance procedures for BLDs and site-specific BLD monitoring plans.-27- 2. The requirement to submit site-speci fic BLD monitoring plans to the Administrator or delegated aut hority should be removed.

EPA has failed to provide technical specifi cations, installation pr ocedures, operation and maintenance procedures, quality assurance procedures, or alarm setting procedures or any relevant guidance for these issues for BLDs used to monitor kiln or kiln/in-line raw mill emissions, and instead places the burden to devel op this information to the user. The proposed language for § 63.1350(k)(2) states , "You must develop and submit to the Administrator or delegated authority for approval a site-specific monitoring plan for each bag leak detection system." If EPA cannot provide t echnical requirements, criteria or guidance, then it certainly has no basis to review the site-specific plans for appr oval. With no established criteria or guidance, review by different regional offices or states as "delegated authorities" will likely result in different requirements, different interpreta tions, and more confusion. The deadline for submission of the site-specific BLD plan is not explicitly stated. More importantly, there is no time limit for EPA's approval, no obligation for EPA to render an opinion as to the acceptability of the plan, no instruction to the user as to monitoring prior to receipt of approval, and no indication of the consequences in the event the plan is not approved. The submittal for approval requirement appears to be nothing more than a bluff or slightly veiled threat. Until legitimate guidance and criteria and developed, it is suffi cient that site-specific monitoring plans be available for review. The requirement to subm it the site-specific plans for approval should be removed.

3. EPA should develop and promulgate Performance Specifications and Quality Assurance procedures for BLDs as it has for COMS and all other CEMS.

The BLD requirements contained in the proposed regulations are not adequate to ensure that the devices are reliable. EPA has not deve loped performance specifications for BLDs such as those found in Appendix B of Part 60. Si milarly there are no daily calibration check requirements and there are no other on-going quality assurance requirements. There are also no external audit techniques for these devices which ar e available to users or to regulatory agencies. There are some very brief requirements for these devices found in the subject regulations. These include a mention of a manufacturer 's certification of th e device's detection lim it, but there are no other quantitative performance requirements. Without adequate design and performance specifications for BLDs the measurement syst ems cannot be relied upon for their intended purpose by either the plant opera tor or the EPA and there is no consistent basis to evaluate expected performance, or actual performance of installed meas urement systems. There is no initial basis to determine if an instrument is pe rforming properly, and no ba sis to determine if it continues to perform acceptably on an on-going basi s. In practice, the distinction between appropriate alarms indicating the need for corrective action for fabric filters and false alarms due to the misapplication of certain types of BLDs or instrument malfunctions (especially for a new application such as kilns and kilns/in-line raw mills ) is left to subjective interpretation of the user and novice regulatory pers onnel. The cement plant purchaser is left only to the claims of manufacturers which are often incorrect (due to inexperience with the particular type of application) or unfounded (based on confusion or misinformation) or nothing more than marketing claims. This situation is simply " buyers beware" followed by a race to the lowest-28- possible instrument quality to gain market sh are and quick sales by unscrupulous instrument vendors.

4. Appropriate design and performance sp ecifications are needed so that manufacturers can certify that their BLDs meet applicable criteria in order that the regulated users of such devices can rely on the manufacturer's certifications.

There are absolutely no procedures or speci fications for conducting tests to make the necessary EPA certification. This raises numerous questions. For example, are tests of the actual device required? Under what conditions ar e such tests to be conducted? How are other factors that affect BLD response such as meas urement principle, flow velocity, actual and aerodynamic particle size, particle size distribution, particle density, dielectric constants, effluent conditions, etc. taken into account in this certifica tion? Are the tests to be performed for each instrument or a particular model? Is the certifi cation a one-time test or must it be repeated periodically? Can the ce rtification be based simply on the j udgment of the instrument developer without conducting any test s at all? There are no means availa ble to the cement plant operator to verify claims made by the BLD vendor or manuf acturer regarding det ection capability. Plant operators cannot be responsible for the design or performance of these systems and cannot be expected to able to determine the technical valid ity of vendor claims, especially where there are in effect no regulatory or technical requirements.

Other than the previously discussed de tection limit capability, the only explicit requirements are (a) that BLDs "must provide an output of relative PM load ing," and (b) that the devices include an alarm system that activat es above a preset (and qualitatively set and adjustable) alarm set-point. One might assume, (a ll other things and effects held constant) that the output of the BLDs should increase monotoni cally with increasing PM concentration. However, the output of "triboelect ric" devices (often used as BLDs) are subject to influences from changing PM composition (density and dielectric constants), effluent velocity, particle size distribution, aerodynamic shape, effluent temperat ure, effluent pressure , effluent relative humidity, ambient temperature, etc. All of thes e factors are likely to ch ange at a cement plant over time and certainly change dramatically when the raw mill operational status changes (i.e. mill on and mill off operation). These factors ca nnot be controlled by the operator nor are the changes known to the operator. Thus, the output of the BLD device is a qua litative indication of PM concentration. There is no limit or constraint to the effects of changi ng effluent velocity or other parameters known to aff ect the measurement output.

5. EPA should remove the requirement t hat the BLD should activate an audible alarm.

EPA's only published guidance for setting BLD alarms (Fabric Filter Bag Leak Detection Guidance, EPA-454/R-98-015, September 1997) is out-o f-date and applies to only one type of monitoring device and one type of fabric filter cleani ng configuration. More general and up-todate guidance can be found in Appendix 2 to AS TM D7392-07 which app lies to settling alarm levels for the full range of BLDs and fabric filte r configurations that are encountered at cement kilns and kilns/in-line raw mills at plants that burn hazardous waste. The Proposal contains language for § 63.1350(k)(1)(iii) requ ires the alarm to be activated when the system detects an-29- increase in the "relative PM loadings" over th e alarm set point established by (k)(1)(iv) which specifies adjustment of the "sensitivity (range ) and averaging period of the device." The Proposal at 21,188. These statements again refl ect bias to a particular manufacturer and particular approach which is not applicable to all cement kilns kiln/in-line raw mills. These statements are technically incorr ect as the sensitivity is not th e range, and one should adjust the time constant not the averaging period. In addi tion, some BLDs alarms should be set based on changes in the baseline emissions, some on changes in the peak heights, some on the changes in the "rms" emission levels, and even others based on changes in the rate of peak decay after an off-line cleaned compartment is returned to se rvice. These parameters are not necessarily directly related to "PM loadings" which in fact are not quantitatively measured by the BLD. Finally, the requirement that th e BLD continuously record the out put from the BLD using a strip chart recorded or data logger is overly simplistic and inappropriate. Th e BLD alarm is properly based on the very rapid analysis of variations in output intensity over very s hort time periods by internal micro-processors and permanently reco rding the data at the frequency necessary to provide a meaningful record is not practical . (See ASTM D 7392 for detailed examples.)

B. PM CEMS Issues

1. EPA has not addressed nor resolved the primary technical issues limiting the effective application of PM CEMS at cement plants.

Even though EPA proposing to have PM CEMS as an option monitoring method in the Proposed CISWI Rule, PCA believes that PM CEMS are not capable of being used for compliance purposes at cement kilns. PCA provi des these comments to EPA so that EPA has the correct information in case it deliberates whether to require PM CEMS in the possible final rule. EPA has not addressed nor resolved the primary technical issues limiting the effective application of PM CEMS at cement plants including:

• inability to generate a sufficiently wide ra nge of PM concentrations to establish an acceptable correlation ( i.e., "calibration"),

• accuracy and precision limitations of refere nce method at PM levels necessary to generate valid correlation, and

• subsequent changes in effl uent matrix and/or PM ( i.e., particle size distribution, refractive index, particle density, etc.) th at influence the stability of the correlation and hence, the relationship between the output of the inferential measurement device relative to actual PM concentration.

2. Valid PM CEMS correlations cannot be established for PM CEMS at cement plants due to limitations of process operation and control equipment in conjunction with th e proposed emission limitation.

EPA is well aware of the need to consider emissions variability over the full range of fuel, process, and APCD operati on, including the maintenance pe riods required to maintain equipment performance at high levels, as well as the uncertainty associat ed with the compliance demonstration method in order to establish the appropr iate emission limit, averaging period, and-30- other components of an emission standard. Extens ive efforts were undert aken to acquire data from CEMS over long periods of operation to establish the SO2 and NOx variability and emission standards in the original Subpart Da regulations. Si milar efforts have been undertaken to develop other long term emission standards for other source categories. Even in the development of the proposed me rcury standard for this rulemaking, EPA evaluated 30 days of data from 89 kiln systems. While 30 days of data cannot possibly charact erize the full range of mercury emissions variability, it is at least a meag er start. However, no such evaluation has ever been performed for PM standards.

EPA encountered the various t echnical difficulties in thei r field studies conducted to develop the PM CEMS performance specifications. Similarly, the electric utility industry has continued to encounter these pr oblems for PM CEMS installed unde r consent decrees. Neither of these efforts has demonstrated sufficiently stable correlations to facilitate use of PM CEMS for direct compliance. None of the utility industry consent decrees for any operating units require that PM CEMS be used to determine co mpliance with emission standards. Each consent decree for operating units specifies periodic perf ormance tests ("stack tests") to demonstrate compliance with emission limits.

The regression analysis required to establish the PM correlation ( i.e., PM CEMS calibration) necessitates collecting data over a wide range of PM concentra tions. Cement plants operate over a narrow range of operation and ther e is no way to vary emissions by varying the process rate. Many cement plants will need to in stall high efficiency fabric filters (membrane coated bags) to meet the applicable emission sta ndard. There is no means to vary the collection efficiency of the fabric filter and hence, no way to vary the PM concentra tion. Measures such as creating a hole in a bag or ot her bypass of the fabric filter do not maintain the same PM characteristics. PM spiking is mentioned and allowed under PS 11, but as of yet no valid and representative means of spiki ng PM has been developed. Th e correlation of PM CEMS, as further demonstrated by work in the electric utility industry, demonstrat es that the PM CEMS correlations do not pass through the origin ( i.e., "zero-zero"). For these reasons, there is no appropriate procedure to deve lop the PM CEMS correlation at many cement plants. (These issues at fabric filter cont rolled electric utilities with PM CEMS requirements required by consent decrees have necessitated attempts to sp ike baghouse dust into the effluent stream, and comparison of the PM CEMS and reference test method while sampling ambient air, and other obviously extreme attempts to generate a correlation).

Even if an initial correla tion is established through exte nsive testing, it is unknown for how long it will remain valid. Vari ations in limestone characterist ics over the life of the quarry will certainly occur and will aff ect the PM emissions and characteristics. Variations in other feed components, fuels, process conditions and th e air pollution control device will also affect the PM characteristics. Insufficient experience has been gained to determine the stability of PM CEMS correlations in the electric utility industry a pplications for coal-fired boilers. Variations in limestone characteristics and other parameters will pose even greater challenges to the stability of PM CEMS correlations at cement plants.-31- 3. The requirements in Appendix A, Perf ormance Specification 11 for the PM CEMS correlation and in Appendix F, Procedure 2 do not provide a sufficiently reliable means to dete rmine compliance with emission limitations.

The basic PS 11 regression requirement s are a correlation coefficient of ≥ 0.85, a 95% confidence coefficient of ± 10% of the emission sta ndard, and a tolerance inte rval of ±25% of the emission standard. In lay terms, the tolerance interval indicates that 75% of future PM measurements should be within ±25% of the em ission standard. Rather than "bright line" compliance demonstrations, the variability asso ciated with the correlation, renders the PM CEMS as only a general indicator of PM concen trations. Coupled with the uncertainties in measurement and quantification of the effluent vol umetric flow rate and clinker production rate, the combined uncertainty of the PM measurements in units of lb/ton clinker is very substantial. Promulgation of a regulation requiring contin uous demonstration of compliance using PM CEMS would be unfair to the cement industry due to the high levels of uncertainty, and would result in endless citizen suits even though em issions are maintained below the applicable emission limit.

4. The use of PM CEMS in Europe and ot her countries does not constitute a valid basis for application of PM CEMS at cement plants in the United States.

PM CEMS have been used in Germany and Eu rope for many years. There is no debate that the light scattering, light transmission, and extractive be ta attenuation in struments have a proven record of operation and can reliably measure the parameters that these devices sense. However, since all of these devices are inferen tial measurement devices, and a correlation must be established to relate the output of the device to the actual PM concentration, then the accuracy and bias of the reference test method (especia lly at low concentratio ns corresponding to the proposed emission limitations) and the uncertainty of the statisti cal correlation, as well as the stability of the correlation must be considered. Under the long-standing program administered by the German TUV, and the current Europ ean monitoring standard (EN 14181) these uncertainties are explicitly considered. In c ontrast with the EPA approach, emissions are not considered to exceed the allowable limit until th e lower bound of the confidence interval and/or tolerance interval exceed the emission limit. Furthermore, emission standards may contain different averaging periods requiri ng different levels of conformance. Finally, when a problem is encountered, the emphasis is on resolving the emission problem rather th an direct enforcement and collection of financial penalti es. All of these considerations place the European monitoring program in an entirely different regulatory co ntext than the proposed PM monitoring in the United States.

5. Monitoring PM emission concentrati ons downstream of wet scrubbers is not possible at cement plants.

Monitoring locations downstream of wet scrubbe rs at cement plants are often observed to contain water droplets and durin g scrubber upsets will also c ontain gypsum slugs (very large particles often referred to as "mud balls.") Heat ed extractive systems (either Beta gage or light scattering are used at monitoring locations downstream of wet sc rubbers at electric utilities.-32- However, none of these devices can operate relia bly in the presence of gypsum spray or very large particles. They will simply provide errati c non-representative data or completely fail to operate. Monitoring in the presen ce of small changes in particle size distribution is challenging enough, monitoring downstream of wet scrubbers used in the cement industry is not possible. During malfunctions, upsets of the PM APCD, or during period of bypass, the wet scrubber will collect a large portion of the PM. However, because PM monitoring downstream of the wet scrubber is not feasible, credit for these emission reductions cannot be obtained. Hence, monitoring upstream of the wet scrubber may overstate actual PM emissions.

IV. NOx and SO2

The units of the standard are again not cons istent with the PC NE SHAP (40 CFR part 63 Subpart LLL) which are in units of lb/ton clinke r measured on a continuous basis for new kilns. EPA has proposed a standard of 1100 ppm an d 410 ppm for NOx and SO2 respectively for existing plants. A one-hour Method 7E, 6C test combined would be used to demonstrate compliance.

EPA has proposed a standard of 140 ppm and 3.6 ppm for NOx and SO2 respectively for new plants. The PC NSPS revisi on requires that new kilns instal l continuous monitors for NOx and SO2 with standards in units of lb/ton clinke r. The lb/ton clinker values correspond roughly to in-stack concentration leve ls of about 80 ppm and 50 pp m for NOx and SO2 on a 30-day rolling average.

It is unclear how there can be two complete ly different standards for NOx and SO2 when the same data base (or one similar) must have been used to set the standard. EPA should be consistent in its units of the compliance standard for NOx and SO2.

V. Monitoring Frequency

EPA proposes to require annual testing all non-D/F constituents, which is excessive. In discussing energy recovery units, EPA indicates th at a reduction in the testing frequency is available, but it is not clear whether this applies to kilns. This reduction option should be made available to any unit demonstrating an adequate margin of compliance.

EPA seeks comment on whether it is appropriate to allow the use of performance tests conducted within the past 2 years to satisfy cu rrent performance testing requirements. PCA supports this proposal.

EPA is also proposing to allow annual PM, HCl and opacity testi ng requirements to be relaxed to every 3 years if the source shows that they are less than or equal to 75% of the applicable standard. Annual testing is unnecessarily burdensome and once every 3 years is adequate. However, if EPA were to require annual testing, PCA would support EPA's proposed testing reduction option.PORTLAND CEMENT ASSOCIATION

ATTACHMENT 5

## Portland Cement NESHAP Sample Startup, Shutdown, and Malfunction Plan Outline

DRAFT Page 1 of 5 Introduction This document provides an outline of the requirements and sample table of contents for a Startup, Shutdown, and Malfunction Plan (SSM Plan) required under 40 CFR 63.6(e)(3) et seq. and 40 CFR 63.1340. The SSM Plan is a separate requirement from the O&M Plan required as part of the Portland Cement NESHAP. Although the Portland Cement NESHAP, Subpart LLL, does not contain specific provisions as to SSM Plans, it is incorporated by reference in Table 1 to Subpart LLL from the NESHAP General Provisions under Subpart A (see 40 CFR 63.6(e)(3)).

Our inquiry has not identified any specific EPA guidance on the contents of an SSM Plan as of the time that this outline has been assembled. Further, as site-specific legal requirements, plant operations, and state regulations will affect the contents of individual SSM Plans, this outline should not be relied as a complete or approved guidance document.

Summary of the Requirements Each affected source is required to develop and implement a SSM Plan that describes, in detail, procedures for operating and maintaining the source during periods of startup, shutdown, and malfunction. Additionally, a program is to be developed for corrective action of malfunctioning processes and air po llution control equipment used to comply with the standard. The SSM Plan is to be developed by the affected source’s compliance date for that relevant standard and incorporated by reference into the source’s title V permit.

Unlike the O&M Plan, this document is not required to receive approval by regulatory agencies under Federal requirements. The SSM Plan and related documentation must be available for regulatory inspection and the EPA reserves the right to request a copy of the SSM Plan.

Specifically, the purpose of the SSM Plan is to minimize hazardous air pollutants by the following:

A. Ensuring that affected sources and associated air pollution equipment are operated in a manner consistent with good air pollution control practices; B. Ensuring owners and operators are prepared to correct malfunctions as soon as practicable; and C. Reduce the reporting burden associated with periods of startup, shutdown, and malfunction.

During periods of startup, shutdown, or malfunction, the regulations require the owner or operator to keep records of actions taken to demonstrate that the procedures specified in the SSM Plan were followed. A Startup, Shutdown, and Malfunction Report shall be submitted at least semiannually if a startup, shutdown, or malfunction occurred during the reporting period and actions taken were consistent with the SSM Plan. This report is to be included with the semi-annual Summary Report which is to be submitted by thePortland Cement NESHAP SSM Plan Outline

DRAFT Page 2 of 5 30 th day following the end of each calendar half (i.e., January 30 th and July 30 th of each year). For existing sources, these requ irements will be required following the compliance date of June 14, 2002. For new and reconstructed sources, these requirements become effective upon startup.

If actions taken were not consistent with the SSM Plan, the owner or operator needs to record and report these actions by phone or facsimile to the Administrator within 2 working days after commencing actions inconsistent with the SSM Plan. This report is to be followed by a letter within 7 working days after the end of the event and signed by the Responsible Official.

Definitions The definitions provided are key terms used in the regulation for the development and implementation of the SSM Plan. These definitions are provided in 40 CFR 63.2.

Affected Source for the purposes of this part, means the stationary source, the group of stationary sources, or the portion of a stationary source that is regulated by a relevant standard or other requirement established pursuant to section 112 of the Act. Each relevant standard will define the affected source for the purposes of that standard. The term “affected source” as used in this part, is separate and distinct from any other use of that term in EPA regulations such as those implementing title IV of the Act. Sources regulated under part 60 or part 61 of this chapter are not affected sources for the purposes of part 63.

{Under the Portland Cement NESHAP, the operations at cement plants that are considered affected sources include the following (see 40 CFR 63.1340): Affected sources for cement plants designated as an area source include: Kiln System(s) and Greenfield Raw Material Dryers. Affected sources designated as a major source include: Affected sources for area sources; Clinker Cooler(s); Raw and Finish Mill Systems; Raw Material, Clinke r, Or Finish Product Storage; Conveying System Transfer Point; Bagging System(s); and Bulk Loading or Unloading.}

Continuous Monitoring System (CMS) is a comprehensive term that may include but is not limited to, continuous emission monitoring systems, continuous opacity monitoring systems, continuous parameter monitoring systems, or other manual or automatic monitoring that is used for demonstrating compliance with applicable regulation on a continuous basis as defined by regulation.

{Under the Portland Cement NESHAP, CMS include COMs and continuous temperature monitoring systems.}

Emission Standard means a national standard, limitation, prohibition, or other regulation promulgated in a subpart of part 63 pursuant to sections 112(d), 112(h), or 112(f) of the act.Portland Cement NESHAP SSM Plan Outline

DRAFT Page 3 of 5 {For the Portland Cement NEHSAP, these specific limitations any include, but are not limited to PM, D/F, opacity, and kiln air po llution control device inlet temperature.}

Malfunction means any sudden, infrequent and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.

Shutdown means the cessation of operation of an affected source for any purpose.

Startup means the setting in operation of an affected source for any purpose.

Stationary Source means any building, structure, fa cility, or installation which emits or may emit any air pollutant.

Visible Emission means the observation of an emission of opacity or optical density above the threshold of vision.Portland Cement NESHAP SSM Plan Outline

DRAFT Page 4 of 5 SSM Plan Example Table of Contents

A. Introduction

1. Plan Scope

• Major/Area Source Status

• Affected Source List and Identification 2. Definitions 3. Plan Contents

B. Summary Responsibilities of Plant Personnel

1. A brief description of the basic job descriptions and responsibilities for personnel involved that are potentially involved with SSM activities could be summarized here. For example, control room persons, plant manager, shift supervisors, maintenance manager, environmental manager, etc.

C. Procedures (and/or Checklists) for Startup, Shutdown, and Malfunctions

1. For each type of process unit or operation that is an affected source, use existing and/or develop new procedures to address operator responsibilities during Startup, Shutdown, and Malfunction occurrences. Interpreting the terms Startup, Shutdown, and Malfunction should be reviewed in preparation of specific procedures. Proced ures for affected facilities at Ma jor and Area Source will include, but are not limited to:

Affected sources for Area and Major Sources:

• Kiln System(s)

• Greenfield Raw Material Dryers

Affected sources at Major Sources:

• Clinker Cooler(s)

• Raw and Finish Mill Systems

• Raw Material, Clinker, or Finish Product Storage;

• Conveying System Transfer Points;

• Bagging System(s); and

• Bulk Loading or Unloading.

2. Careful attention to creating procedures for SSM events should be taken as to ensuring that the procedure development covers various possible SSM events. Poorly tailored procedures can result in a significant amount of SSM Plan deviation reporting. Keep in mind that procedures should focus on steps to mitigate excess emissions associated or du ring SSM events or to resolve issuesPortland Cement NESHAP SSM Plan Outline

DRAFT Page 5 of 5 that indicate an SSM event is occurring (e.g., failure of a COM or continuous temperature monitoring).

D. Recordkeeping, Reporting, and Notification Requirements and Document Control

1. SSM Event Documentation. Location of completed checklists or other records should be maintained in assigned locations, suitable for inspection by the regulatory agencies.

2. SSM Plan Deviation Notification. Procedure for ensuring that if a non-conforming SSM response occurred, that the facility make the proper notifications within the 2 and 7 day periods should be defined. This should include internal/external notification assignments.

3. Document Control. Each form or version of this SSM Plan should be assigned with a version and date as to ensure obsolete procedures or plans are not inadvertently used.

4. Plan or Form Revision. Authority and steps for the Plan or Document revisions should be defined.

5. Reporting Requirements. A summary of the required semi-annual reports should be included.PORTLAND CEMENT ASSOCIATION

ATTACHMENT 6500 New Jersey Avenue, NW 7 th Floor Washington, D.C. 20001 (202) 408-9494 February 17, 2009

Office of Environmental Information Docket U.S. Environmental Protection Agency Headquarters EPA Docket Center EPA West Building, Room B102 1301 Constitution Avenue, N.W. Washington, D.C. 20460

Re: Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Med ical/Infectious Waste Incinerato rs (HMIWI) - Docket ID No. OAR-2006-0534

Dear Sir or Madam:

The Portland Cement Association (PCA) appreciates the opportunity to comment on the above referenced proposed rule published in th e Federal Register on December 1, 2008 (73 Fed. Reg. 72962). Founded in 1916, the Portland Cement Association is a membership association consisting of about 30 companies operating 115 plants in over 35 states. While the HMIWI proposed NESHAP standards are not directly applicable to the portland cement manufacturing industry, the Agency’s discussion of the legal requirements for setting MACT standards under several provisions of the Clean Air Act (CAA)—i.e., Sections 111, 112 and 129—as interpreted by recent court decisions has the potential to affect applicable regulatory standards for other industries, including the portland cement industry.

In particular, EPA is currently in the process of reconsidering the mercury and total hydrocarbon floors for portland cement plants (“National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry: Notice of Reconsideration,” 71 Fed. Reg. 76553 (Dec. 20, 2006). PCA is concerned that the floor setting approach in the HMIWI proposed rule, which sets standards based on the lowest reported emissions from sources with only minimal adjustment for variability, would have disa strous results if applied in the portland cement reconsideration.

The agency’s HMIWI approach appears to result from the agency’s reactions to a March 2007, D.C. Circuit Court of Appeals opinion which he ld that EPA’s recent approach to determining the “floor” for new source and existing source MACT rules was unlawful. Sierra Club v. EPA , 479 F3d 875 (“ Sierra Club” or “ Brick MACT” ). In response to that decision, EPA has taken a very restrictive and stringent interpretation of its aut hority under Section 112 to set floors based on best performing sources’ emissions, as demonstrated in the HMIWI proposed floors. Essentially, the proposed rule uses only test-to-test or run-to-run variability which minimally adjusts raw emissions data of the best performing sources. EPA appears to read the court’s decision in Brick MACT as requiring such a limited approach to viewing variab ility of sources even though EPA recognizes that factors such as raw material inputs, variations in performance, alternative operational conditions, and other factors have a direct impact on the performance of the best performing sources.2 The narrow interpretation of Brick MACT demonstrated in the HMIWI proposal is practically unsound: it leads to unrealistically stringent MACT floors that are inconsistent with Congressional statements regarding the MACT provisions and could have severe adverse consequences on individual industries as well as the nation’s economy, energy and natural resources, and environment because of the failure to address relevant factor s in the methodology. Congress did not intend that MACT standards would result in such severe adverse effects. Moreover, such a restrictive interpretation is legally unsound: it is not required by Brick MACT and violates other generally applicable provisions of Section 112 that requi re the agency to take economic and adverse environmental and energy consequences into consideration when setting MACT standards. We urge the agency to consider carefully the implications of going forward with the approach in the HMIWI proposal not only for the HMIWI industry, but al so for all other industries subject to MACT regulatory standards to be promulgated in the future. We urge the agency instead to recognize the need to develop reasonable, data-based methodologi es for appropriately estimating the impact of the many factors that affect the variability of reported emissions data, including non-technological factors.

The PCA is pleased to submit for your consideration a legal analysis that supports such an approach for reasonably setting MACT floors consistent with both Brick MACT and the CAA. The analysis demonstrates that, while Brick MACT unquestionably constrains the agency’s historical approach in some key ways, it does not limit the agency’s fundamental discretion to develop reasonable, record-based methodologies to implem ent the statutory requirements for setting MACT floors as specified in Section 112(d)(3) and more generally in Section 112(d)(2). While Brick MACT has reiterated the agency’s obligation to set floors based on emissions control achieved by best performing sources, it also acknowledges the obligation to base those floors on emissions control levels that actually are “achieved in practice.” As has long been affirmed by the D.C. Circuit, in setting floors EPA must appropriately estimate factors that affect the emissions reported from sources and adjust reported emissions appropriately so that the data upon which standards are based reasonably estimate the emissions control achieved in practice by the relevant sources.

Moreover, Brick MACT also makes clear that in setting floors the agency has an obligation to take into account the role of nontechnological factors, including material inputs such as fuel and raw materials, that impact emissions from sources. Again, however, the court did not eliminate the agency’s authority and obligation to exercise discretion regarding the most appropriate way to assess and take into account the role of such factors. As the attached paper details, the agency’s discretion with regard to both variability methodologies and ho w to assess the impact of raw material inputs in setting floors, like the agency’s discretion to subcategorize as appropriate, remains available to the agency to ensure that it sets MACT floors consistent with law and with reason.

We recognize that the agency may not in this current rulemaking possess information to conduct such analyses, but EPA has an obligation to at least provide an opportunity for regulated or other interested parties who do possess such information to share it with the agency. At a minimum, where EPA lacks data or resources to collect data, EPA can use the rulemaking regulatory process to inform regulated parties and other interested stakeholders of the data needs of the agency and seek input to ensure the most legally defensible and best HAP emissions control standards possible.

One approach for collecting such data would be for EPA to indicate in proposed MACTs that the proposed floors are based preliminarily on the emissions data and variability information available to the agency and ask that stakeholders provide further refining data and related3 methodologies in comments. We respectfully request that, both with respect to the HMIWI proposal and any upcoming MACT promulgations, EPA include language encouraging interested parties to collect and provide EPA with relevant data and analytical tools to enable the agency to develop the kind of variability analyses required to set lawful floors under Brick MACT —that is, floors based on reasonable estimates of the emissions control “achieved in practice” by best performing sources.

Thank you for considering the views of the cement industry on these matters. I may be reached at (202) 408-9494 or aohare@cement.org to address any questions you may have on these perspectives.

Sincerely,

Andrew T. O’Hare Vice President, Regulatory Affairs