500 New Jersey Avenue, NW 

7th 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 emissions 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. membership includes 28 companies operating 

102 manufacturing plants in 34 states and distribution 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 Standards 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-2003-0119 
Table 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 under § 129 of the Clean Air Act ...................................... 8 

A. CAA §129 Confers No Jurisdiction Over Use of Ingredients ............................... 9 

B. The RCRA Proposal Places Major Impediments on Reuse/Recycle with 

No Attempt to Justify Such Impediments 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 ................................................................................................... 31 

A. Choice of Statistical Equation.............................................................................. 31 

B. Improper Use of Test Runs to Represent Emissions Variability ......................... 33 

C. Floors Should be Based on Analysis 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 Under the Primary Definition of Solid Waste ....................... 41 

B. Alternative Floors Under the Alternate Definition of Solid Waste ..................... 45 
Table of Contents 

(continued) 

Page 

 -iiC. Translation of Floors to Standards 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 Certain 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 Effect, 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 Out 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 Emission 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 Imported 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............................................................................... 73 
Table 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 Practice 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 Relation to Emission Limits that are Being 

Achieved at the Best Performing Existing Sources ......................................................... 93 

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.......... 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 Variability in Establishing The Proposed CISWI 

Standards.......................................................................................................................... 99 

XV. Conclusion ..................................................................................................................... 101 
Table 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 Reporting 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 for 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 for 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 

(NOx)..................................................................................................................... 27 

Table A-4.7: Corrected Emissions Data for Best-Performing Kilns: Particulate Matter 

(PM, filterable)...................................................................................................... 28 

Table A-4.8: Corrected Emissions Data for Best-Performing Kilns: Sulfur Dioxide 

(SO2) ..................................................................................................................... 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 Information Available on Operating Variability in EPA's 

Emissions Database for Best-performing 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 Stack Tests and the Boiler MACT Equation: 

Existing Units (Primary SW Definition)............................................................... 43 

Table A-8: Floor Determination based on Stack Tests and the Boiler MACT Equation: 

New Units (Primary SW Definition) .................................................................... 44 

Table A-9. Floor Determination based on Stack Tests and the Boiler MACT Equation: 

Existing Units (Alternate SW Definition)............................................................. 47 

Table A-10: Floor Determination based on Stack Tests and the Boiler MACT Equation: 

New Units (Alternate SW Definition) .................................................................. 48 
Table 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 Regarding 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.................................................................................... 85 

Figure 11 CISWI Scenario........................................................................................................... 86 

Attachments 

Attachment 1 PCA Letters to EPA Regarding Deficiencies in the Docket 

Attachment 2 Response Letter from EPA Regarding Deficiencies in the Docket 

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

Attachment 4 PCA's Detailed Comments Regarding Monitoring and Testing Issues 

Attachment 5 PCA SSM Outline Provided to Members 

Attachment 6 PCA HMIWI Comments 
Executive Summary 

I. Introduction 

The Portland Cement Association (PCA) respectfully 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 issues. 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 deficient and EPA must supplement its record 

and repropose the Proposed CISWI Rule. The administrative record is lacking factual data on 

which the Proposed CISWI Rule is based and it is impossible for the public to determine the 

methodology used by EPA to analyze the data that was in the docket. PCA has engaged many 

technical consultants in an attempt 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 identified as best performing units, EPA has a 

single stack test for the pollutant in question. As set forth in the Pre-publication 

Portland Cement NESHAP, EPA's policy is clear that a single stack test cannot be 

used to determine, or even estimate, the emission limit that a unit is capable of 

meeting over the range of its operating conditions. 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 combinations in the floor analysis. 

• EPA is treating the three test runs conducted 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 has a large number of errors, omissions 

and inaccurate assumptions, which are fully identified in the PCA comments. 

Finalizing the Proposed CISWI Rule based upon the information currently available in 

the rulemaking docket would therefore be arbitrary and capricious, an abuse of discretion and a 

breach of procedures required by law and in violation of the Clean Air Act (CAA). PCA has 

tried working with EPA (including communications with EPA's General Counsel) to correct 
 -ES-2- 

these deficiencies, but these efforts at collaboration have failed. The result has been a 

rulemaking process completely lacking in transparency. As an example, EPA has refused to 

make public cells in EPA's conversion calculations contained in an Excel spreadsheet, which are 

integral to understanding how EPA established the proposed emission limits. Even though EPA 

has tried to mask the lack of information in the docket through a series of letters, even as recent 

as August 20, 2010, the fact still remains that nowhere 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 CISWI 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 Development 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 derivation of the proposed limits and other aspects of 

the Proposed CISWI Rule. In addition to the items listed above, PCA identifies the key technical 

short-comings of EPA's standard setting process, which are the following: 

• The database does not include emissions data representing kiln operation over the 

range of materials that are being considered "solid waste" under the Proposed 

RCRA Rule;1

• EPA's interpretation of emissions data includes systematic biases and a large 

number of significant errors that cause EPA's analysis to understate actual 

emissions and the floors; 

• EPA's data for dioxin/furans are unreliable and incorrect and should be 

completely reworked; 

• EPA has improperly used hydrochloride (HCl) emissions data collected using test 

methods that have been disallowed by EPA; 

• EPA has improperly based its floor analysis on individual test runs, 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-burning kilns, that EPA must restart 

the process of standards development. 

 1

 "Notice of Proposed Rulemaking – Identification 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 reconstruct major portions of EPA's database on the 

emissions of waste-burning cement kilns by reviewing the original stack test data and correcting 

the identified errors in as many cases as possible. We also augmented the database where 

additional stack tests for the best performers could be found. Floors were then calculated in two 

different ways, noted as Options A and B2

, 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 analysis are higher that those proposed by EPA. 

In many instances, denoted in the charts by asterisks, the calculated floors are too high to 

represent meaningful emission limitations. The purpose of this analysis is not to argue that EPA 

should adopt the floors shown in the charts, but to indicate in stark terms the inadequacy of the 

existing database (even after our corrections and extensions) to support 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 

NOx ppmvd 1,100 1,492 1,037 

PM mg/dscm 60 * 109 

Opacity % 4% not appropriate to set standard given PM limit 

SO2 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 Section V of the PCA Comments. Option A uses all of 

the data for best performers to estimate floors for 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 inadequate 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 * 

NOx ppmvd 1,100 1,492 1,725 

PM mg/dscm 60 * * 

Opacity % 4% not appropriate to set standard given PM limit 

SO2 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 inadequate 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 are 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 issues 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 would make an existing source subject to the new 

source requirements; and unclear testing and monitoring provisions. PCA highlights many areas 

that should be addressed by EPA, which should 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 requires 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 combination 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 financial 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 negative environmental consenquense because the 

CISWI standards could force two thirds of all existing alternative fuel using cement plants to 

discontinue burning these fuels. The Proposed CISWI Rule is expected to reverses decades of 

environmental cleanup success and Clean Air Act (CAA) designations of tire-direved-fuels as an 

encouraged fuel source. The cement industry is a large consumer of scrapped 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 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 additional 7 million metric tons of capacity could 

be lost. Furthermore, cement plant compliance to proposed EPA emission 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 construction industry of roughly $3 billion annually. 

VII. General Legal Issues 

PCA also comments on various general 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 companion 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 materials as fuels or 

ingredients would be subject to these standards and requirements contained under the Proposed 

RCRA Rule. 

PCA filed extensive 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 
 -ES-6- 

recycling of non-hazardous secondary materials in the United States. Portland cement kilns 

successfully use in an environmentally sound manner millions of tons of alternative fuels and 

ingredients annually. This conserves 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 incentives to avoid CAA § 129 jurisdiction and 

such kilns 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 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 achievable control technology (MACT) 

standards on a pollutant-by-pollutant basis under the CAA. This approach results in EPA using a 

fictional facility to determine the MACT floor as there is currently no source in the country 

meeting all of the proposed standards. The CAA requires that a proposed NESHAP be 

"achieved in practice" by the best performing sources. In the case of this proposal, this 

requirement is not met since there is no single source 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 detailed technical analysis 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 comments that EPA should allow sources to develop site-specific 

SSM plans as is the practice under other CAA programs. In the alternative, EPA should not 

address SSM emissions in this rulemaking. 

Lastly, EPA did not properly consider variability in establishing the proposed CISWI 

standards. Pursuant to the MACT standard setting process in the CAA, EPA is required to set a 

MACT floor based on emission limitations that have already been achieved by the bestperforming 12% of existing sources. To evaluate 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 including process, operational and non-technological 

variables. These factors may change on a frequent basis in relation to price fluctuations and 

availability, such as fuel type, or may only change slowly over time, such as by operational 

decisions regarding waste management and product specifications. 

EPA has not even come close to assessing variability 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 emission limitations. EPA also makes incorrect 

assumptions of how kilns operate, and it incorrectly applies statistical 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 principles, 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 unachievable 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 have 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. Finalizing the rule based upon the information 

available in the rulemaking docket would therefore be arbitrary and capricious, an abuse of 

discretion and without observance of procedure required 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 and 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-propose 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 would 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) showing EPA's conversion calculations which are imperative in 

determining how EPA established the proposed 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 proposed rule had been published in the Federal Register, thereby further 

reducing the opportunity for 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 and Standards, to Richard G. Stoll, August 20, 2010 (Attachment 

2). It is a major effort to coordinate and produce these comments on behalf of PCA's members, 

so we have had little time over the weekend between August 20 and 23 to evaluate Mr. Page's 

letter in full. We note that nothing in EPA's letter takes issue with our counsel'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 contained 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 files 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 note that it may be questionable whether metadata 

for an Excel file would likely contain truly deliberative 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 letter that as of June 4, 2010 – and even well 

before then – PCA and other commenters had access to everything needed to determine how 

EPA had taken data from facilities and had applied and converted that data in calculating its 

proposed emission standards. We reserve the right to respond to EPA's assertions in more detail, 

but for now we have the following reactions, showing our strong disagreement with EPA's new 

assertions. 

The bottom line is that we still cannot find anywhere in the record the actual calculation 

(equation with variables filled in) for the conversion of reported emissions to the emissions used 

to represent each kiln in EPA's determination of the floors. EPA's letter states that "the reported 

concentration data and flue gas characteristics . . . and the normalized concentration data . . . 

are contained in the Access database." EPA also appears 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 flow 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, moisture and flow rate fields are blank.) 

b. There are fields for emissions as reported and emissions as normalized, but the first is 

not always given (it may be blank or zero). We are left uninformed as to whether the normalized 

 3

 Data on waste-burning kilns contained in CISWI 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 dated 4/13-Aug-2009 for mercury (emissions as 

reported blank, oxygen blank, but normalized emission values given). Ash 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 zero, oxygen zero, but normalized emission values 

given).

c. There is no flag in the Access database to indicate which test values 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 levels 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 dated 12-Jan-2006 for lead and 13-Jan-2006 for 

dioxin/furans. SCNorboard test dated 13-Dec-2001 for CO. Monarch Humboldt K5 tests dated 

04-Jun-2009 for dioxin/furans.

e. There are instances where the record indicates emissions in lbs/hr or gm/hr as reported 

and a stack gas flow rate is given, but oxygen content 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 moisture 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-2007 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 assumption 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 deadline." (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 boilers under CAA § 112. We also explain in these letters that 

even if the court order could somehow apply to CISWI rules, EPA cannot rely upon a deadline to 

excuse flawed rulemaking. Moreover, we explain that EPA has throughout its history sought and 

obtained extensions to court-ordered deadlines where necessary 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 involved." 5 U.S.C. § 553(b) (2006). "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)). The "promulgation of standards based upon inadequate proof. . . [defies APA's] 

mandate against action that is arbitrary, capricious, an abuse of discretion, 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 rulemaking, 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 major 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) (holding that vague references will 

not satisfy the instructions of § 307(d) that require a proposed 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, and documents" on which it relies in its statement 

of basis and purpose and "all documents which become available after the proposed rule has 

been published and which the Administrator determines 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 been 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 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 refusal to release its data showing how it derived 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 that, critical degree, is known only to the agency. . . . 

In order that rule-making proceedings to determine standards be conducted in 

orderly fashion, information should generally 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 material 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 fundamental requirements of non-arbitrary administrative 

decision-making is that the agency set 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 promulgating and explaining a non-arbitrary, non-capricious rule," 

which requires it to "justify its basic assumptions (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 will be considered 

arbitrary and capricious. Id. An agency rule promulgated arbitrarily 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) (holding that EPA's failure to 

observe the rulemaking procedures mandated by CAA by not including eligibility tests or 

financial tests, was arbitrary and capricious, 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 were "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 information 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 explain adequately its decision to establish 

subcategories based on aggregate plant capacity). 

The D.C. Circuit has consistently recognized the importance of notice and comment for 

several reasons. 

[First,] notice improves the quality of agency 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 essential component of fairness to affected 

parties. Third, by giving affected parties 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 parties 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.) The 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 advantages, 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 documents provided by PCA. CAA's rulemaking 

provisions require that, "promptly upon receipt by the agency, all written comments and 

documentary information... received from any person for inclusion in the docket during the 

comment period ... be placed in the docket." 42 U.S.C. § 7607(4)(B)(i); (iv). 

Incomplete and untimely access to the actual data that EPA is using renders this public 

comment period an incomplete process for stakeholders 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 information, hiding or disguising the information 

that it employs, is to condone a practice in which the agency treats what should be 

a genuine interchange as mere 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 allow for meaningful commentary. 

673 F.2d at 530 (emphasis added). Adding information, vital to the promulgation of the rule, to 

the docket "so late as to preclude 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 meaningful 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 regarding the Proposed 

CISWI Rule. Specific technical questions stemming from the docket review are included in 

Section III. While PCA believes it has accurately 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 data representing kiln operation over the 

range of materials that are being considered "solid waste" under the 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's interpretation of emissions data includes systematic biases and a large 

number of significant errors that cause EPA's analysis to understate actual 

emissions and the floors; 

• EPA's data for dioxin/furans are unreliable and incorrect and should be 

completely reworked; 

• EPA has improperly used hydrochloride (HCl) emissions data collected using test 

methods that 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). 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 artificially restricted the number of data sources 

that it should have considered in setting the MACT floor. The CAA § 112(d) requires EPA to 

set the MACT floor for existing sources using "the average emission limitation achieved by the 

best-performing 12 percent of the existing sources (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, however, EPA seeks to put a thumb on the scale in 

favor of a more stringent MACT floor. EPA cannot deliberately 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 relied upon, it should involve selection or 

use of test results in a manner which provides some assurance of the achievability of the standard 

for the industry as a whole, given the range of variable factors 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 the tested plants on which it relies, a procedural 

error where EPA's central argument is that the standard is achievable because it has been 

achieved at tested plants. Id

It is possible that EPA has reasonable responses to each of the critiques discussed above 

based on information that has not been provided in the public docket, and that EPA could 

provide the additional data/documentation 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 administrative 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 respectfully 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 this data, and then considering 

those comments in reaching its decision. These actions are necessary to cure the procedural 

errors in this public comment period and PCA remains hopeful that such information will enable 

it and other stakeholders to provide meaningful comments regarding the Proposed 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 fails to address several critical issues for implementation. 

We discuss these failures in detail in Section 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 CAA § 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 could 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 significant issues surround the key concept of "modification." 

What type (or types) of activities might force an "existing" CISWI unit into "new" unit status? 

The consequences could be devastating, as the proposed "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 interested 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 CISWI Rule is EPA's Proposed RCRA Rule. 

EPA proposed that rule under authority of the 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 utilizing non-hazardous secondary materials as 

fuels or ingredients would be subject to the standards and requirements contained in the 

Proposed CISWI Rule. 

PCA filed extensive comments strongly opposing many fundamental elements of that 

Proposed RCRA Rule on August 3, 2010. Those comments (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 comments filed above, the Proposed RCRA Rule – in combination 

with the Proposed CISWI Rule – would have a seriously 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 virgin natural resources 

such as fossil fuels and mined materials. Yet we showed that portland cement kilns would have 

great incentives to avoid CAA § 129 jurisdiction 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 jurisdiction, 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 Jurisdiction Over Use of Ingredients 

The Proposed RCRA Rule would regulate the use 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 regulate use of ingredients. 

We also showed in this section of the comments that nothing in the legislative history of 

CAA § 129 indicated any focus whatsoever on the use of ingredients. 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 burning 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 attached PCA comments.) 
 -10- 

B. The RCRA Proposal Places Major Impediments 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-hazardous. 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 waste 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 health and the environment. We showed through 

numerous examples, and citations to U.S. Supreme Court and D.C. Circuit case law how such an 

approach would be vacated as arbitrary and capricious, and a failure of reasoned decisionmaking. 

In that section we also showed how EPA has great latitude under RCRA, and the relevant 

case law to structure its Subtitle D proposal in a manner that would promote reuse and recycling 

without impairing health and environmental protection. We demonstrated that neither the statute 

nor the case law require that Subtitle C precedents be applied in the Subtitle D context. 

Throughout the proposal, however, EPA improperly relied upon regulatory and case law 

precedents established for the cradle-to-grave Subtitle C hazardous waste regime as a framework 

for its approach to Subtitle D non-hazardous materials. 

Whole scrap tires are a particularly important non-hazardous alternative fuel 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 well 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 Proposed RCRA Rule treat 

non-hazardous materials in an even more burdensome 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 within the Overall Implementation of RCRA 

is Exceedingly Narrow

Some EPA personnel have expressed 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' ability to regulate that type of material as solid waste. This is 

absolutely not correct. 

The purpose of the Proposed RCRA Rule, as clearly 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 "when 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, transportation, taxation, management standards, 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 that the database, and EPA's floor analysis of 

the data are inadequate to set floors for these standards for the following major reasons: 

• The database does not include emissions data representing the full range of 

materials that are being considered "solid waste" under the companion Proposed 

RCRA Rule. EPA has, at best, limited emissions information for a few of the 

fuels that may be classified as solid waste. It has no emissions information for 

kilns using ingredients that are under consideration as solid wastes and, therefore, 

no basis to regulate emissions when such ingredients are being used. 

• For two-thirds of the best performing kiln and pollutant combinations, EPA has 

only one stack test, which provides no information on emissions variability. In 

the development of the Pre-Publication Portland Cement NESHAP (publicly 

posted by EPA on Aug. 6, 2010), EPA recognized 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 stack tests on best performing kilns. 

• EPA's interpretation of emissions data includes systematic biases and a large 

number of significant errors that cause EPA's analysis to understate actual 

emissions thereby imposing the floor calculations. 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 total mass basis (TMB) and a toxicity 

equivalence basis (TEQ) and most of the 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 significantly understate dioxin/furans emissions. 

• EPA has improperly used hydrochloride (HCl) emissions data collected using test 

methods that have been disallowed for compliance purposes. EPA has also used 
 -12- 

particulate matter (PM) emissions data measured on a PM10 basis, rather than total 

filterable PM. Such data must be excluded from the floor setting process so that 

the floor and the resulting emission standards are consistent 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 interpretation that suggests the database is larger, it has more 

information on emissions variability, and 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 analysis are clearly inadequate and fall short of 

providing an adequate characterization of emissions 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 for the best performing kilns as identified by 

EPA and determined that there are both significant limitations to the database and a large number 

of errors in assembling the emissions data. Therefore, 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 presented at the end of this 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 meaningful assessment of kilns emissions and 

variability, both of which must be done to meet EPA's statutory obligation in setting standards. 

The database4

 has too few kilns with multiple emission tests and too limited coverage of the 

materials being considered for designation as "solid 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 combinations that have been used in the floor 

determination (considering both the primary and alternate solid waste definitions), and EPA has 

a single stack test for 56 of them (67%). One stack 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 characteristics of fuels used, and raw materials. As a result, EPA cannot 

meet its regulatory obligation to account for the variability of emissions of the best performing 

kilns in determining the floor for any of these 56 cases. 

EPA recognized this in its Pre-publication 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 did not think that this was enough data to fully 

characterize variability in emissions. Therefore, we requested these sources to submit additional 

PM emission test data." The emissions data used in that rulemaking had a minimum of 3 stack 

tests for each best performing kiln. The same standard of minimum adequacy applies in this 

rulemaking. One stack test is not enough to characterize variability in emissions for best 

performing kilns. EPA must obtain additional stack 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 also introduces a bias into the analysis. With 

only one stack test, there is no way to know whether the kiln was tested on a day with unusually 

low emissions or on a day with average or high emissions. Given the method of selection, and 

the fact that 2 out of 3 best-performing kilns have only a single stack test, there is a significant 

possibility that the identified best-performers 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 determined by the average of three test runs, by 

design, the test runs are not designed to capture emissions variability and they are not a substitute 

for having multiple stack tests on each best performing 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 operating 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 variability of the kiln itself, which we know can 

be very significant. EPA must account for operating variability in determining an emissions 

limit which a best performing kiln can meet over the full range of operating circumstances. 

The fact that EPA has developed its proposed floors from the statistical analysis of test 

run data compounds the problem by hiding the limited 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 representative 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 cement kilns as "solid waste," according to 2009 

PCA data, the test data reflect only three such fuels that we have found: a number of units that 

were firing whole tires; a few units firing tire-derived fuel (which may not be considered solid 
 -14- 

waste under EPA's Proposed RCRA Rule); and a few firing waste oil. We have found only one 

unit thus far that was firing waste plastics (Holcim Devil's Slide K1). It appears that EPA 

solicited emissions data without any knowledge of what would or would not be considered "solid 

waste." 

EPA has no emissions data on ingredients that would be classified 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, EPA 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 comments on the Proposed RCRA Rule, EPA does not 

have authority to regulate portland cement kilns' 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 would give. A large number 

of other errors have been identified that result in setting incorrect floors. PCA 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 emissions 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 needed 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 contractor5

 that a default oxygen 

level of zero percent was assumed and then the data were adjusted to 7% oxygen. This 

assumption is not realistic and has no relationship to the performance of any of the sources 

examined by EPA in setting the MACT standard. 

We have reviewed the underlying stack test reports 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, typical oxygen contents range from 

4% to 9%, and a default assumption of 7% oxygen (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 concentrations that are biased low. This in turn results in floor levels 

that are grossly incorrect and biased low in a manner 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 indicated6 that 

they used the capacity firing rate of the unit to calculate flow. This method does not represent 

the operating conditions of the sources examined. Whenever capacity 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 results in unrealistic dilution of the emissions on paper and lower 

floors than should actually be established. We have 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 pervasive error in assembling the dioxin/furans data 

on a TMB. From our review of the data for the best performing 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 Lafarge 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 reported 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 elsewhere in the 114 filings indicated otherwise), 

while values reported as "Dioxin/Furans (TEQ)" were treated as being on a TEQ basis. Only the 

latter identification is unambiguous, while the 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 recorded. Because D/F TEQ values are much smaller 

numerically than D/F TMB values, we believe that 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 believe that none of the TMB or TEQ are reliable 

enough to be used in analyses of any kind, until 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 submittals. Examples include mistaking the units of 

measure and making improper conversions to the standardized basis (Lafarge Whitehall K2 for 

DF TEQ), incorrectly identifying the 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 has also excluded stack tests at higher emission 

values (IP Springfield for PM). We cannot explain 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 and developing this MACT standard in such a secretive manner. 

All of the errors in the docket emissions tests for best performing kilns that we were able 

to identify are documented in the tables at the end of this section. 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 errors. One-seventh of the 

database is affected by applying the default oxygen concentration of zero 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 emissions. 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 that EPA used to set the floors to understate actual 

emissions of the best performing kilns. 

Table A-1. Summary of Errors Identified 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 emissions that are biased low. If a stack test measurement is below 

the detection limit, the actual emissions value can 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 practice," 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 terminology "< value." In these 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 for best performers and correct wherever this 

problem occurs. The treatment of non-detects according to the practice of compliance testing is 

a major problem in the dioxin/furans data, where 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-detection 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 performing kilns, in order to establish 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 information in the stack test reports was used to 

compute TEQs using an alternative approach that is better suited for setting an emissions 

performance floor. 

It was verified that non-detected target compounds (i.e., the 17 2,3,7,8-substituted 

PCDD/F TEF congeners) were treated with a zero concentration in all of the stack test reports. 

Similarly, target compounds reported by the laboratory as an EMPC were treated with a zero 

concentration for TEQ calculations. Thus, EPA used TEQs which treated both non-detected 

 7

 40 CFR Part 63, Appendix A. Method 23 - Determination of Polychlorinated Dibenzo-p-dioxins 

and Polychlorinated Dibenzofurans from Municipal 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 practice of [ND=0; EMPC=0]. First, such an 

approach is not consistent with EPA's direction for a performance-based measurement system 

(PBMS). Indeed, poor laboratory performance (i.e., elevated detection limits) is camouflaged 

(i.e., the laboratory's responsibility for quality results is unaccounted for because the detection 

limits of the current analytical methodology). Additionally, 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 frequent, where ion statistics (i.e., low signal-to-noise ratios) play 

a significant role in EMPC reporting, and where background contributions from either the stack 

testing firm or the laboratory (or both) can influence the TEQ in a manner 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 for setting standards based on the performance 

of low-emitting facilities, was considered. The approach consists of treating non-detected target 

compounds with a concentration corresponding to the sample- and 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 reports, new TEQs were calculated and 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 associated 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 (although the revised TEQs were consistent 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 standards 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 analysis 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 corrected for improper inclusion 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 proper 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 materials used, to rank kilns correctly based on 

emissions, or to identify properly 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 0.000 3.560 > 10,000 

Base, Alt PALafargeWhitehallPlant K3 13/15-Jun-07 0.000 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. EPA Method 26 and CARB 

Method 421 for HCl are disapproved, and all HCl data that are based on those methods should be 

removed from the floor determination. PCA's review found that EPA Method 26 or CARB 421 

instead of EPA Method 321 or ASTM D6348 were used 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 tests 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 alternative 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 PALehighCementEvansville 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 

 IALehighCementMasonCity 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-RK-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 emissions data based on Method 201A that measure 

PM10 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 concentrations or drop the tests from the 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 reported to and used by EPA. 
 -21- 

8. Improper Inclusion of Units in Floor Determination 

The Cemex Miami Soil Treatment Facility is a unique facility. It is so different from the 

nominal kiln being regulated, that it does not belong in the floor determination. The unit is 

permitted to treat soil contaminated with petroleum 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 does not fire coal or tires, and the configuration 

and operation of the unit are unlike 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 alternative 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 the mill both on off. The Proposed CISWI Rule 

states that compliance will be demonstrated for mercury with the raw mill on and off, but it does 

not specify compliance procedures for the other 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-selected 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 floors 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 Humboldt 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 cases 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 inclusion of tests with raw mill both on and off 

inappropriately includes emissions data taken under 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 expects 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 with 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 corrected emissions values based on our review. The 

floor analysis in the next section includes corrected EPA data and data 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% O2) 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 0.00013a/ 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/ O2 concentration not available. Corrected to 7% O2 based on typical value for kiln. 

1. EPA assumed 0% O2 in exhaust (kilns typically operated at 4-9% O2 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% O2. 

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 O2 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% O2) 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 236a/ 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/ O2 concentration not available for K2. Values for K1 were used in the conversion. 

1. EPA made unknown assumptions for flow rates and assumed O2 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 O2 concentration to individual test runs for 2 pollutants. 

4. Unable to determine if sufficient data are 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% O2) Company Kiln Test Date Correct 

Value 

EPA 

Value 

EPA 

Errors 

Ash Grove Durkee 16-Apr-02 0.252a/ 0.117 1 

 Durkee 16-Apr-02 3.094a/ 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/ O2 concentration data not available. Corrected to 7% O2 based on typical value for kiln. 

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

1. EPA assumed 0% O2 in exhaust (the kilns typically operated at 4-9% O2 during tests). 

2. Unable to determine if sufficient data are 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% O2) 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 0.00191a/ 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-Nov-2006 unknown 0.00139 3 

Lehigh Evansville 122 10-Jan-06 √ 0.00187 

 Evansville 122 7-Aug-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/ O2 concentration data not available. Corrected to 7% O2 based on typical value for kiln. 

1. EPA assumed 0% O2 in exhaust (kilns typically operated at 4-9% O2 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 O2 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% O2) 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% O2 in exhaust (kilns typically operated at 4-9% O2 during tests). 

2. Includes correction of miscellaneous errors in source data. 

3. Unknown minor differences. 

4. EPA's emissions values belong to test of Miami 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 (NOx) 

Stack Test Average 

(ppmvd @ 7% O2) 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 inputting the values for the duplicate Run 2 tests. 

2. EPA applied a test-run average O2 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% O2) 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 PM10 concentrations measured by Method 210A. Should be replaced by 

total PM (filterable) values using Method 5. 

1. EPA assumed 0% O2 in exhaust (kilns typically operated at 4-9% O2 during tests). 

2. EPA value appears to be computed at 4.67% O2 (by back-calculation), but the O2

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 related 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 (SO2) 

Stack Test Average 

(ppmvd @ 7% O2) 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 O2 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% O2) Company Kiln Test Date 

Correct 

Value 

EPA 

Value 

EPA 

Errors 

Ash Grove Durkee 17/18-May-2006a/ √ but TEQ 0.0146 1 

Ash Grove Seattle 13/16-Feb-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 and 3 were reported as zero emissions and have not 

been corrected for proper treatment of non-detections. 

1. The numerical values are entered correctly (minor 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% O2". 

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

3. EPA did not convert from stack O2 to 7% O2. 

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 entry 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% O2) 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 (reported in gr/dscm, not ng/dscm) 

2. EPA made an unknown error (probably related to flow rates) in converting to 

concentrations. 

3. EPA did not correct non-detections of congeners 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 results, much greater emissions variability, and higher floors. The 

following sections address these elements of the statistical analysis: choice of equation; use of 

test runs versus stack test averages; normal versus log-normal statistical distributions; and need 

for additional information on emissions variability. 

A. Choice of Statistical Equation

In the proposed rule, EPA uses a statistical formula (the CISWI formula) shown in 

Equation 1 below to compute a 99th percentile upper limit (UL) for the 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 population, when the identified 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 equation 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 Rule8

 (Eq. 2) (Boiler MACT formula). The Boiler MACT formula computes a 

UPL, using the floor data as a sample representing 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 present in the floor data and the variability in the 

future stack test that will determine a unit's compliance. Among the several formulas considered 

by EPA in recent rulemakings, the Boiler MACT formula is the only one that allows a complete 

and correct accounting for variability, and it should be used in the Proposed CISWI Rule. 

(Eq. 2) 

 8

 National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, 

Commercial, and Institutional Boilers and Process Heaters; National Emission Standards for Hazardous 

Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers; Standards of 

Performance for New Stationary Sources and Emission 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 compliance averages 
 -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 individual test runs are statistically independent only with respect to 

the run-to-run variability associated 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 are available for a best performing kiln, then the 

data offer two observations of the emissions profile due to operating variability. However, the 

six individual test runs that would be performed in those two stack tests are not 6 statistically 

independent observations, but rather 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 inherently low or the unit 

was merely tested on a day when its emissions were 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 emissions variability of the kilns identified as best performers in 

the CISWI rulemaking, given that the large majority (56 of 84) have only a single stack test. As 

EPA did for the PM floor analysis in the Pre-publication Portland Cement NESHAP, it should 

obtain additional data to have at least three stack tests per kiln. Although confidence limits can 

be computed for a dataset consisting of 2 data points, a minimum of three data points is the point 

at which one begins to obtain useful information about variability. 

Table A-5 summarizes how limited EPA's information is on operating 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 contain 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 unbalanced 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 only a single stack test depending on pollutant, while only 2 or 3 of 

the kilns have at least 2 stack tests. 
 -34- 

Table A-5: Summary of the Information Available on Operating Variability 

in EPA's Emissions Database for Best-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 information in its database used to develop the 

proposed floors to adequately account for the effect of operating variability 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 performing kilns remain too limited in quantity to 

permit an adequate accounting for variability in developing the emissions floors. Without 

adequate information, EPA has not met its statutory obligation to set floors based on the 

emission limitation that the best performing kilns can meet in practice. 

C. Floors Should be Based on Analysis of Stack Test Results

EPA's statistical method for the analysis of the data must properly represent and account 

for the amount of emissions data that it has and for the effects of both emissions variability and 

uncertainty. EPA's analysis of individual test 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 statistical 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, the standard deviation for 

individual test runs is understated because the test runs are more homogenous (every triplet 

shares the same operating conditions) than are stack tests (which have independent operating 

conditions). 

If EPA expects that compliance with the standards 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 proper 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 necessarily 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 units can be expected to meet, given the limited 
 -35- 

information that EPA has on operating variability. 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 methods for statistical analysis to assume that stack emissions 

are log-normally distributed, unless a normal (or other) distribution is shown to be the preferred 

choice by direct evidence. EPA took the reverse approach in its floor analysis, assuming that 

emissions were normally distributed unless the skewness or kurtosis tests indicated otherwise. 

The statistical tests for skewness and kurtosis are useful, but (like most tests) 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 obtaining the correct result. 

EPA's guidance document on methods for statistical analysis notes that emissions data 

are frequently right-skewed (meaning toward higher values) and that "[e]nvironmental data 

commonly exhibit frequency distributions that are 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 physical 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 distributed, unless the skewness and kurtosis tests 

demonstrate otherwise. 

Further, the correct statistical distribution should be a property 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 alternative definition of 

solid waste, its own analysis adopts the log-normal distribution for all but two 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 were 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 emissions data are lognormally distributed unless the skewness and kurtosis tests indicate otherwise. Under the 

primary definition of solid waste, all pollutants are found to be log-normally distributed except 

for lead and NOx which are found to be better represented by a normal distribution. Cadmium 

fails the skewness test, which indicates that its distribution is more right-skewed than the lognormal distribution. Cadmium emissions are at least log-normally distributed and clearly not 

normally distributed. We obtain the same results 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, Office 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 distribution is more than a fine point in the floor analysis, 

because the floors are defined on the basis of the 99th percentile of emissions. This point lies on 

the far right tail of the distribution, and it is crucial that the chosen distribution fit the data if the 

estimated percentile is to adequately characterize the emission limit that best performing kilns 

can meet. Other statistical distributions exist, and it may be important to investigate their use for 

pollutants such as cadmium that are not properly fit by the log-normal distribution. 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 emissions distribution chosen for 

existing units and that for new units, and we have retained the emissions distributions determined 

for existing units in the floor analysis for new sources. The causes for emissions data to be lognormally distributed operate in the data for individual units in the same way and to the same 

extent they are present in data for multiple units. Therefore, absent direct evidence to the 

contrary, the statistical distributions 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 meaningful 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 setting 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 tests taken at intervals of only a 

few days or few weeks give, at best, a limited picture of emissions variability and may lead to 

estimates that are too small to adequately account for the emissions variability that best 

performing kilns will experience over time. Figure 1 illustrates the variability for CO and NOx 

emissions for the kiln that provides the longest emissions time series in the EPA database. 

Emissions can be consistent in closely-spaced tests (as seen for pairs of data points of similar 

dates) or can be quite variable (as seen for the August 2007 testing.) Moreover, emissions levels 

vary substantially over longer periods of time as operating conditions, fuel and raw materials 

change. EPA does not have emissions tests separated in time by at least one year except for a 

very small number of cases in setting the floors. This is not an adequate basis to develop 

emissions limitations that the best performing kilns can meet in practice. To address this 

limitation, PCA attempted to identify additional stack tests on the waste-burning kilns that EPA 

identified as best performers. Table A-6 summaries the additional data, which have been added 

to the corrected database and used to develop alternative floors (described in the next section). 

For example, the table shows that the characterization 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 secured from the local air agency. A significant 

error in the assessment of lead emissions is made by using only the 2007 tests, because the added 

data from the 2008 and 2009 testing show higher emissions and much greater 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 additional stack test data 

for existing kilns. The new tests often show higher emissions than the stack tests contained in 

the docket and used by EPA to develop the proposed 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% O2) 

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% 

O2) 

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 SO2 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 work 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 additional 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 test 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 methods and replaced them with other kilns for 

which EPA has data. However, due to time limitations, the emissions data for the kilns added to 

the pool were not reviewed and corrected in the PCA review of data on best performers. 

The assessment of floors is based on the analysis of stack test results using the version of 

the boiler MACT equation that is appropriate for stack tests, 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 emissions floors that can be developed 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 99th percentile UPL. In taking 

this approach to derive the UPL99 for the average best performer, we are implicitly assuming that 

operating variability, rather than inherent emissions differences, are responsible for the 

differences seen among kilns in the pool. It is certainly true that operating variability is a much 

larger contributor to emission differences than 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. Instead, EPA should recognize that all of the kilns are 

equivalent, within the limitations of the available data, and set the new source 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 Option 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 99th percentile of 

its emissions distribution. In this option, the floors are developed using only the kilns for which 

two or more stack tests are available. The new source floor is set by the UPL99 value for the 

lowest emitting kiln with 2 or more stack tests. The floor for existing units is set by the UPL99

value for the average of all kilns 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 definition 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 believes that it is not appropriate to set a standard for opacity; 

therefore, no floor value 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-detections (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 reviewed, correctly attributed, 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 limited 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 the calculated floor, with an 

asterisk and footnote indicating that 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 seen 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, specifically, 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 EPA 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 standards. 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 establishment 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 emission limits for certain 

metals, EPA has discretion to use PM as a surrogate and has exercised this discretion in many 

NSPS and NESHAP rulemakings. 

For new units (see Table A-8), the Option A floor values have been set equal to the 

existing unit floors given in the table for existing units. For Option B, the new unit floors have 

been determined by the lowest ranked kiln that has 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, only for lead is 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 for waste-burning cement kilns. In all other cases, the calculated floor 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 Option 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 

UPL99 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 enormous. 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, the resulting floor values are still very large. 

Again, the purpose of this analysis 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 EPA 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 floors computed under Option B, then it cannot 

bypass the Option A floors for existing units in order to select lower values from Option B. 

Option A is the conventional application of a UPL formula to the data (in this instance the boiler 

MACT equation), as EPA has done in this and other rulemakings, and it provides the technically 

most-credible estimates of the floors for existing 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 test and few kilns have 

more that 2 stack tests. 

Table A-7. Floor Determination based on Stack Tests 

and the Boiler MACT Equation: Existing Units (Primary SW Definition) 

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

PCA Floor Analysis1/

Option A2/ Option B3/

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 

NOx ppmvd 1,100 22 1,492 21 1,037 

PM mg/dscm 60 20 * 20 109 

Opacity % 4% 4/ not appropriate to set standard 

SO2 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 (which 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 inherent emission levels and operating 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 inadequate 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 Analysis1/

Option B3/

Pollutant Units 

EPA 

Proposed 

Floor Option A2/ 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 * 

NOx ppmvd 140 1,492 4 #1 1,725 

PM mg/dscm 1.8 * 2 #1 * 

Opacity % 1% 4/ not appropriate to set standard 

SO2 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 (which 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 inherent emission levels and operating 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 inadequate information on emissions variability.
 -45- 

B. Alternative Floors Under the Alternate Definition of Solid Waste

This section reports the alternative floor values developed by PCA using the alternate 

definition of solid waste. The floor values are 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 calculated. 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 other 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/furans in the analysis. 

For existing units (see Table A-9), the alternative floor values are higher in all cases than 

the floors proposed by EPA, as a result of removing errors and biases in the EPA database and of 

correctly accounting for the limited amount of information that is available on emissions 

variability. For some pollutants, the calculated floor values are sufficiently high as to represent 

emissions limitations that are not 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 levels. Rather, the purpose is to 

emphasize that adequate emissions data do not currently exist to support the establishment of 

correct and meaningful 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 existing units. For Option B, the new unit floors have 

been determined by the lowest ranked kiln that has 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, only 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 determining the floor because the variability in emissions has not been 

characterized. When N=2, the t-statistic for the UPL99 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. With this little information, the uncertainty in the analysis is 

enormous. Even when 4 tests are available for the floor-setting kiln, the emissions variability, 

coupled with the uncertainty associated with 3 degrees of freedom, produces floor values that are 

still very large. 

As stated, now several times, the purpose of this analysis 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 EPA disagrees 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 values 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 values from Option B. Option A is the 

conventional application of a UPL formula to the data (in this instance the boiler MACT 

equation), as EPA has done in this and other rulemakings, 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 there is not adequate data to determine floors for 

new units, when the lowest ranked kiln often has only 1 stack test and few kilns have more that 2 

stack tests. 

C. Translation of Floors to Standards Enforced By CEMS

In the Pre-Publication Portland Cement NESHAP, 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 emissions 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 Method 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 adequately allowed for in the floors that it establishes, but no 

evidence in support of this assumption is provided 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 mercury 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 adequate technical basis 

to adjust floor values determined from stack tests 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 demonstration has been made of their equivalency. 

Statistical differences may include bias – meaning that the methods give 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 (or 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 comparable averaging periods (3 hours) in sufficient 

numbers to allow an assessment of bias and variability. Further, EPA must make explicit 

adjustments in the average emission level and the variance to account 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 best performing kilns are to be able to meet the 

resulting emission limitations. The data required to convert from stack test to CEMS do not now 
 -47- 

exist, because mercury CEMS have never been used 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: Existing Units (Alternate SW Definition) 

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

PCA Floor Analysis1/

Option A2/ Option B3/

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 

NOx ppmvd 1,100 22 1,492 21 1,037 

PM mg/dscm 60 22 * 20 109 

Opacity % 4% 4/ not appropriate to set standard 

SO2 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 (which 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 inherent emission levels and operating 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 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 Analysis1/

Option B3/

Pollutant Units 

EPA 

Proposed 

Floor Option A2/ 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 * 

NOx ppmvd 140 1,492 4 #1 1,725 

PM mg/dscm 1.8 * 2 #1 * 

Opacity % 1% 4/ not appropriate to set standard 

SO2 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 (which 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 inherent emission levels and operating 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 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 used this discretion to establish a subcategory for waste-burning 

cement kilns for the reasons detailed in Section IV.B of the preamble to the Proposed CISWI 

Rule. Waste-burning cement kilns differ among themselves 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 example, in its evaluation of organic 

emissions from kilns in support of the cement MACT rulemaking, PCA found significant 

differences due to configuration 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 performers 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 data 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 requests the opportunity to conduct an analysis of an 

expanded and corrected database to develop sub-category recommendations in future comments. 

VII. EPA Should Not Establish an Opacity Limit 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 extending 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 compliance 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 source that uses a PM CEMS or bag 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 the EPA chose to contradict their previous 

determination. PCA does not agree that an opacity standard is an appropriate indicator of a PM 

emission limit, or that the EPA has the data to support this theory. 

EPA's proposal to develop a ratio of opacity to PM emission limits is technically 

unsound. Studies have shown that it is impossible to create an industry 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, and 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 based 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 Critical 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 inadequacy, the proposal fails to 

address several critically important implementation 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 interested parties would have had no opportunity to comment on 

them, in contravention of CAA § 307(d) and well-established case law. Moreover, even though 

we offer suggestions below on how certain issues might be addressed, 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 discussing 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 future. These implementation issues 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 waste incineration unit subject to performance 

standards under this section and 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 subject to the requirements of the Proposed CISWI Rule, that same 

source would not be subject to NSPS Subpart F. The structure of § 111 and Part 60 is clear that 

only one NSPS applies to each affected facility. EPA must clarify this point in this rulemaking. 

If EPA agrees with this interpretation, 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 effective and enforceable by August or September of 

2013 (depending upon the Federal Register publication 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 waste-burning kiln no longer be 

subject to § 112 standards? Even though this is a fundamentally critical issue for subject 

facilities, the interested public, EPA, and the States, EPA has totally failed to address this and 

related issues in its Proposed CISWI Rule. Perhaps this is another reflection 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 standards. Therefore, even right now, a kiln burning solid waste 

cannot be regulated by § 112 standards. 

EPA has stated its interpretation in prior 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 being 

proposed 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 comply with the section 129 regulations as 

long as it continued to combust 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 subject to section 129 standards, 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 step. 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 revise 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 after EPA promulgates a final CISWI rule. 

PCA believes that it would be inconsistent with the CAA for CISWI kilns planning to be 

regulated under § 129 to continue 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 standards 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 survive 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 Kilns 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 hazardous waste fuel (HWF) as a partial fuel substitute 

are regulated by MACT standards codified at 40 C.F.R. part 63, Subpart EEE. These kilns will 

be referred to as "EEE kilns." Second, kilns 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 has taken care in both its EEE and LLL regulations to 

specify in detail how the two sets of standards may or may not apply depending upon whether a 

kiln is burning HWF at any particular 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 regulated 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 elects to be regulated under EEE 

will continue to be subject to EEE standards during 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 statements 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 that 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 kiln does not happen to be feeding solid waste to 
 -53- 

the combustion chapter. We urge EPA to develop rules (for further public 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 applicable to portland cement kilns, "new" CISWI 

sources will have 6 months to come into compliance with the CISWI standards 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 CISWI standards will be 

vastly different than the LLL standards. 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 such 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 and regulations would not allow such a source to 

be treated as a "new" or "modified" CISWI source because the obvious focus 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 existing 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 (as defined in the upcoming 40 

C.F.R. part 241 regulations) now, or as of the date EPA issues final CISWI rules, but may wish 

to stop combusting solid waste before the regulations might actually 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 source elects to stop utilizing solid 

waste? It would seem logical that this source could elect to be regulated under the PrePublication Portland Cement NESHAP (again, as an existing source). We urge EPA to affirm 

this point and take public comment 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 for 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 the proposed rulemaking, EPA proposes in many 

places to add new language in Subparts CCCC and 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 existing language; sometimes it would leave existing 

language intact. 

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

(b) If the owner or operator of a CISWI unit makes changes that meet the 

definition of modification or reconstruction on or after June 1, 2001, the CISWI 

unit becomes subject to subpart CCCC of this part and the State 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 Subpart CCCC, 75 FR at 31987, entitled "Emission 

Limitations for Waste-Burning Kilns that Commenced Construction after June 4, 2010 or that 

Commenced Reconstruction or Modification after [the Date 6 Months after Publication of the 

Final Rule]. 

It would of course be highly inappropriate and 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 similar 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 the "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 reference the "reconstruction" date to June 1, 2001. 

2. What Type of Modification Would 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 and subpart DDDD for existing sources). In the 

general provisions to part 60, the definition of "modification" states: 

Modification means any physical change in, or change in the method of operation 

of, an existing facility which increases the 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 physical change or change in method of 

operation that "increases the amount" of emissions of a pollutant would be considered a 

"modification." Thus, literally, an increase of a few pounds of pollutant 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 paragraphs (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 always 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. First, EPA has not included any 

new definition of "modification" in either its 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 currently-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 meets 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 installing the CISWI unit (not including the 

cost of land) updated to current costs (current dollars). To determine what systems 

are within the boundary of the CISWI unit used to calculate these costs, see the 

definition of CISWI unit. 

(2) Any physical change in the CISWI unit 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 clarify this in its final rule. We also note there 

is no confusion in the regulations regarding the "reconstruction" portion of the definition 

(respecting cumulative costs exceeding 50%). 

There is nothing in parts CCCC or DDDD, however, that reflects the permitted "hourly 

rate" qualification of 60.14. And there is absolutely nothing in the Proposed CISWI Rule about 

any of this. EPA proposes no amendments or clarifications 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 CCCC 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" qualification 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 EPA to add language in subparts CCCC and DDDD to 

make this clear and propose its final decision through notice and comment. 

EPA should also specify in this rulemaking what would constitute a physical change or 

change in the method of operation. At a minimum, EPA should make clear that changing of 

ingredients and routine changes to accommodate specialty products or different types of cement 

are not physical changes or changes in the method of operation. Kilns are constructed to 

manufacture many types of cement 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 conditions and its availability. It is possible that a material is not 

used for a few years before being used again. Kiln operators should continue to be allowed to 

operate kilns to meet normal consumer demands without the fear of triggering 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 terms 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. Without clarification, provisions would make the proposed CISWI 

rule for cement kiln operators at best difficult, if not impossible 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 proposed Subpart CCCC and Table 8 of Subpart 

DDDD). The terms "ash", "fugitive ash", and "fugitive ash sources" are 

undefined in the rules. Furthermore, portland cement kilns do not produce ash. 

• Given the above, EPA should strike all references to fugitive 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 applied to CISWI kilns where a commercial product 

is being manufactured in intimate contact with ingredients and fuels 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 incinerator operation, which bypass pollution 

control devices during upset conditions in order to protect the equipment. CISWI kilns are not 

generally equipped with bypass devices 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 gases directly to the 

atmosphere. 

4. Commercial and industrial solid waste incineration unit. The definition 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 potentially overlapping § 111 or § 112 emissions 

standards to avoid regulatory applicability confusion. PCA believes the boundary should begin 

with the NHSW injection location into the kiln, include the kiln system, and end at the clinker 

discharge point from the kiln. The boundary should exclude all pollution control devices, kiln 

stacks, CKD handling, recycling, clinker coolers and 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 startup period and shutdown as defined in 

the current 40 CFR 60.2265 regulations are ambiguous to kiln operation and, again, EPA has 

failed to account for how such terms would apply 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 and shutdown activities for a cement kilns are not 
 -58- 

relevant to NHSW usage. Therefore, the existing 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 several complications to CISWI units that may 

not continuously combust solid waste and/or make 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 modification trigger will be implemented must be 

clarified by EPA in the final rules. Again, EPA appears to have failed to account for these 

significant aspects that CISWI kiln 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 difference with the implementation of the term 

"modification" in the CISWI rules is that EPA has defined certain modification or reconstruction 

activities as exempt (see 40 CFR 60.2015(b) under Subpart CCCC). These exemptions 

principally relate to projects designed to bring units into compliance with CISWI requirements. 

Below is an illustration of some of the potential scenarios that kiln operators could face 

that result in regulatory ambiguity in CISWI applicability 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 quality requirements that is new to the 

kiln). And, this change increases the hourly emissions of a CISWI regulated 

pollutant. Based on the current definitions, it appears that the CISWI kiln may 

become subject to the new source Subpart CCCC requirements without 

undertaking any change whatsoever related to NHSW usage or emissions from 

usage of those materials. 

• An existing non-CISWI kiln adds a NHSW fuel after June 4, 2010 that decreases 

the hourly emissions of a CISWI regulated pollutant. In this case, the cement kiln 

could be considered a "new" CISWI kiln despite reducing CISWI regulated 

pollutants and possibly without making any expenditures. This outcome seems 

wholly in contradiction with the object of § 129 of the CAA in how modifications 

or new sources should be subject 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 increase but it is possible that the portion of 

the CISWI regulated emissions attributable to the NHSW fuel did increase on an 

hourly basis. Under the current regulatory structure, it appears that this source 

may be subject to Subpart CCCC requirements – 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 will result in an increase 

of a CISWI pollutant. This may constitute 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 definition 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 the 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 required to comply with any other federally 

required air pollutant control programs (e.g., NESHAP LLL or NSPS Subpart F). 

• Modifications in volume, amount, or type of NHSW that do not increase hourly 

potential emissions above permitted levels from the CISWI kiln. 

• Modifications that meet the exemptions 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 for kiln operators. PCA recommends that EPA 

align monitoring and testing conditions consistent with the recently-issued Pre-Publication 

Portland Cement NESHAP and NSPS 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 proposed 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 for 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 monitoring and testing requirements are included 

with these comments as Attachment 4. 

H. Alkali Bypass Issues

In what can only be characterized 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 (other 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 does not believe EPA can properly remedy these 

significant omissions directly in a final rulemaking and, therefore, 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 approval process before their use. The list only 

includes wet scrubber, activated carbon injection, selective noncatalytic reduction, and 

electrostatic precipitator. We believe that baghouses have been inadvertently omitted from this 

list. In addition, the requirement to petition alternative control technologies should not apply to 

inherent process controls or other proven pollution control techniques 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 regulatory 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 from setting a wide variety testing-based operating 

limits on processes and controls when applying a CEMS. A regulatory construct that maintains 

operational restrictions is simply unnecessary when using a CEMS to demonstrate compliance as 

it does not achieve material additional emission reduction or further enhance compliance 

assurance. For example, if a CISWI subject kiln were to use SNCR for NOx control and utilize a 

CEMS for NOx, the requirement to monitor and reset limits reagent flow values is unnecessary. 

3. The Proposed CISWI Rule incorporates a series of operator training and qualifications 

requirements (75 Fed. Reg. 31974, 31990) as statutorily required under § 129 of the CAA. Kiln 

operators are highly trained and qualified individuals 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 incorporate language into the 

final rule that allow operators of CISWI kilns 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 Standards for Waste Incineration Units on 

Domestic Cement Capacity 

A. Overview

Economic Research, Inc. has been tasked to provide a rough estimate regarding the 

potential impact on domestic cement production resulting from emission standards contained in 

the Proposed CISWI Rule EPA. PCA assumes the EPA 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). 

• Particulate Matter (PM) emissions 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 considerably more severe for "new solid waste 

burning kilns." New greenfield plants that are 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 emission limits for new sources are as follows: 

• Mercury emissions are limited to .024 milligrams per dry standard cubic meter 

(mg/dscm). 

• Hydrochloric Acid emissions are limited 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. According to EPA's definition of solid waste, PCA estimates that as many 

as two thirds of all domestic cement plants could 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 subject to the more rigid CISWI standards. 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 across 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 States 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 from 3,807 mg/dscm to 2,342 mg/dscm. 

 Nitrogen Oxide declines from 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 from 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 potential spending by plants PCA estimates will 

close due to the inability to meet standards or due to the excessive financial 

burdens. 

• The combination 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 financial realities, and the need to comply with the 

Pre-publication Portland Cement NESHAP standards may overwhelm the 

industry's financial capability to comply with the Proposed CISWI Rule. 

• The Proposed CISWI Rule could force two thirds of all existing alternative fuel 

using cement plants to discontinue burning these fuels. 

• The Proposed CISWI Rule standard potentially 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 scrapped 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 older kilns to remain 

world-class cost competitive may be impeded 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-publication 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 could 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 Consumption 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 economic recovery, cement consumption is expected 

to reach 116 million metric tons in 2015, 131 million 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 decline in cement volumes of nearly 59 million 

metric tons – the worst in United States' history. 

Tightened lending standards, weak labor markets and rising foreclosures continue to 

hamper an oversupplied residential construction market. Nonresidential 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. Public 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 determining the industry's outlook. These underlying 

fundamentals suggest a recovery in cement consumption 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 residential and nonresidential construction is also 

expected to record significant gains. By 2013 it is likely that all three construction sectors 

(public, residential and nonresidential) will record 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 the United States' population ages, slower economic 

growth may materialize. The argument for slower, future long-term economic growth rates is 

anchored in future demographic changes and its likely impact on spending habits among age 

groups. The persistent and sustained aging of the population will slow consumer spending. PCA 

calculates that the aging of America will result in a 50 basis point reduction in growth of 

consumer spending and overall economic activity 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 construction 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 cement 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 consumption are driven by projected economic 

activity at the state level and measured by real gross state product. 

The anticipated increase in population will result in additional demand for housing, 

commercial buildings, public buildings and infrastructure – all boosting 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 estimated at almost 302 million persons and is 

 12 The projected per capita growth rate is exaggerated 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 per 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 consumption 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 conditions at the state level, and higher expected 

return on real investments – leading to higher levels of residential, public, and nonresidential 

construction activity. Stronger long-term economic growth will encourage 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 estimates also include assumptions regarding the 

continued retirement of older wet kilns as well as estimates regarding plant closures not covered 

by the Proposed CISWI Rule resulting from rigorous 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 clinker 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 currently estimated at 105 million metric tons. 

Nearly three million metric tons of new clinker 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 expansions 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 dominate ownership of the United 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 distress caused by low utilization rates and an uncertain regulatory 

environment could reduce expected returns on investments in the United States and contribute to 

corporate decisions to wait-and-see before making further investments 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 this 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%. PCA 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 since 2008 have reduced domestic capacity by 10.3 

million metric tons. 

Some, but not all, of these capacity displacements may be permanent. Of the closure 

announcements, seven plants are considered permanent, 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 capacity, 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 nearly 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 clinker capacity will decline to 2.7 million metric tons in 2020 and 

beyond compared to 12 million metric tons in 2007. This assumption suggests a 9.3 million ton 

reduction in existing wet-kiln 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 the 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 investment required may not be justified on a financial 

basis. In either case, PCA assumes 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. These closures represent roughly 11 million metric tons 

of clinker capacity, or roughly 12% of current capacity. Of these plants, 7 burn alternative fuels 

and would be subject to the standards in the Proposed CISWI Rule. Each of these alternative 

fuel burning plants would require 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, have 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 temporary – not permanent closures. It is 

likely that the prospect of tight emission standards, coupled with 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 forced 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 roughly 97 million metric tons in 2015 and 95 million 

metric tons in 2025. With gypsum and limestone additives this translates into 107 million metric 

tons. 

E. United States' Baseline Imported Cement Projections 

Aside from domestic supply, the industry operates roughly 125 import terminals with an 

estimated capacity of 45 million metric tons. The ability and willingness to import cement is 

determined by demand conditions, prevailing global shipping rates, and the availability of ships 

to carry cement. Imports are viewed as swing supply, with volume increasing and decreasing 

depending upon the shortfall between 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 context of weak demand conditions and low domestic 

utilization rates, PCA expects imports share will decline to 8.4% market share in 2010, compared 

to 28.2% market share in 2006. With a gradual economic 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 accrued to the Pre-publication Portland Cement 

NESHAP, a recovery in utilization rates is expected 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 expansions 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 Consumption (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 tons) 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 Consumption (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 Consumed (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 decline 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 estimates 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 efficiency 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 alternative fuel sources, approximately one-third were tirederived, almost 40% were from solvents, 3% were from oil, and 25% were from other solid 

wastes and miscellaneous alternative fuel sources. TDF is a significant energy source due to its 

relatively higher BTU value. A decrease in its use would 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/epawaste/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 the 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 across the nine pollutants 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 old and covered only 13 

plants. Analysis of cadmium emissions, therefore 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 Portland Cement Pyroprocessing, (4) PCA SN3050 - 

Air Emissions Data Summary for Portland Cement 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 sources often did not map directly to emission limit 

units in the Proposed CISWI Rule, therefore conversions 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 plants. Historical benchmarks on plant-by-plant 

Hg emissions reflect the most recently 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 meter) or tons to ppmv (parts per million volume). 

16 EPA: The Toxics Release Inventory (TRI) 2006. 
 -73- 

Total emissions are largely driven by domestic production. With the decline in 

production arising from economic adversity, emissions for all categories are expected to decline 

in 2010 as compared to 2005 levels. With the revival of cement production, total cement 

emissions for all categories increase through 2020. PCA combines capacity, EPA emission data, 

utilization rates, and production estimates to calculate 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 conversion is performed using existing 2005 and 2007 plant capacities 

and applying national utilization rates that prevailed in 2005 (93.8%). All plants were assumed 

to operate at the same national utilization rate. National averages of emissions 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 ton produced at each plant and then applying 

the projected national capacity utilization rate for each plant. Emissions from all plants were 

then summed. This analysis was performed for all emissions covered by the Proposed CISWI 

Rule. 

I. CISWI Compliance Scenario

1. The CISWI Standard 

EPA's CISWI standard targets solid waste incineration. CISWI compliance standards are 

aimed at units that combusts any commercial or industrial solid waste material at all, regardless 

of whether the material is being burned for energy recovery, to be regulated as a solid waste 

incineration unit. These rules were developed under the guidance of § 129 in the RCRA. Under 

this rule, some cement kilns could 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 feasible and technically assessable, it ranked 

sources by their ability to control HAP feed and their ability to control emissions of HAP that are 

fed to the combustion device (measured as system removal efficiency). In doing so, this 

methodology assessed the efficiency of controlling both the HAP inputs to a hazardous waste 

combustion unit, and the efficiency of control of the unit's outputs. The EPA then selected the 

best performing achievable practice as standard in setting the MACT floor for emissions. EPA 

applies the "achieve in practice" standard 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 practice 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 realistic 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 plants 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 changes 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 context 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) emissions are limited to 60 mg/dscm. 

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

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

• Dioxin/furans (D/F) emissions are limited to 2.1 nanograms per dry standard 

cubic meter (ng/dscm). 

• Carbon Monoxide (CO) emissions 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 considerably 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 modifications to existing plants could force a 

reclassification of a plant from an existing source 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 multiplied 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 oxygen results in a floor of 3 ppmvd for both new and 

existing sources.” - EPA Method 321 Detection Limits and Minimum Quantification Limit, July 26, 

2010 
 -75- 

• Particulate Matter (PM) emissions are limited to 1.8 mg/dscm 

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

• Sulfur Dioxide (Sox) emissions are limited to 3.6 ppmv 

• Dioxin/furans (D/F) emissions are limited to .00035 nanograms per dry standard 

cubic meter (ng/dscm). 

• Carbon Monoxide (CO) emissions 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/Energy 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 remaining 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 coke, middle distillates, 

residual oil, liquids/gases and gasoline are considered primary fuels and 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 plant executives with 

two options including; (1) continue 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 the continued burning of alternative fuels. 

Several layers of analysis were performed to determine emission control policy impacts 

on the domestic cement industry. First, emission control technologies were applied to each 

plant's expected emissions. Expected emissions by plant were calculated using the same method 

identified in the baseline scenario. Five emission control technologies were applied to bring 

plants into compliance including enhanced baghouse/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 capable of meeting the CISWI standard were 

subjected to cost analysis. PCA assumes a 15 year 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 possible. 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 Portland 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 alternative 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 burning alternative fuels and comply with CISWI. 

Plants lacking this return are assumed to discontinue burning alternative fuels and would then 

fall under NESHAP rules. 

4. Emissions Control Technology Assumptions 

Sparse evidence exists regarding the actual effectiveness of emission control technologies 

applied to cement kilns. Due to uncertainties regarding emission control efficiencies, PCA has 

assigned its own estimates regarding emission capture efficiencies. Considerable effort was 

undertaken by PCA to yield fair and realistic emission capture efficiencies. PCA's emission 

capture assumptions are typically less optimistic than those assumed by the EPA. 

Technology assumptions were made regarding the effectiveness of various emission 

control systems, including activated carbon injection (ACI), wet scrubbers, baghouse/ESP 

systems, selective catalytic reduction systems (SNCR) and regenerative thermal oxidizer systems 

(RTO). Cooling and burner design reconfiguration of existing systems is also included for the 

reduction of Dioxin/furan and carbon monoxide emissions. No other systems or technology 

measures are considered in the context of this analysis. 

Please note that the emissions captured by the various technologies are often based on 

theoretical estimates of capture efficiencies and may not reflect actual operating efficiencies. 

Furthermore, it should be noted that the emission capture efficiencies used in this report may 

differ from the estimates indicated elsewhere in the PCA comments. 

Mercury (Hg) Emission Control Assumptions: The bulk of mercury emission capture is likely 

to occur through the use of ACI systems, wet scrubber systems, or a combination of both. 

According to some experts, ACI systems are preferred. PCA estimates that ACI systems can 

potentially capture 75% of Hg emissions. The EPA estimates the capture efficiency at 90%. Wet 

scrubber systems alone are believed to be less effective 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 system coupled with a wet scrubber is expected to 
 -77- 

capture 85% of mercury emissions. The EPA estimates 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 emission capture assumptions. The chemical dynamics 

inside a cement kiln, however, are far different 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 occur through the use of wet scrubber systems. PCA and the EPA 

agree that wet scrubber systems 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 mercury 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 systems. PCA assumes the bulk of sulfur dioxide 

capture is likely to occur through 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 emissions. It should be noted, the performance of an 

SNCR system is very variable, almost as variable 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 perverse 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) Emission 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 these enhancements will likely 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 cooler 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 Regarding 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 assumes 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 covered 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 will 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 standards or due to the excessive 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 whether a plant must expend capital to reach 

compliance. 
 -79- 

All emission data by plant, used in this report 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 Summary 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 available 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 cement 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. Historical 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 matrix 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 emission systems must be employed at the plant to 

comply with EPA standards. A plant with extremely 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 comply with mercury emissions, for example, would presumably 

also take care of their HCL emissions at the same time. This investment 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 assessed using this methodology. 

 Under the Proposed CISWI Rule, PCA estimates that 87% of all CISWI 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. 

PCA capital cost estimates for each emission 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 equipment installation cost premium for long dry kilns 

and a 143% cost premium for a wet kiln. Adjustments to this information are also made to 

account for size differences among plants. 

This survey information reflects current estimated investment costs on emission systems. 

This information contains significant upside risk in the context of likely market conditions facing 

emission equipment suppliers. The cement industry 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 meter) 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-publication 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 emission 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 escalation 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 these adjusted equipment cost estimates may differ 

from the current equipment cost estimates indicated elsewhere in the PCA comments. Based on 

these adjustments, PCA's estimates for a 1.2 million ton dry kiln with a precalciner and preheater 

are as follows: 

• Baghouse System = $9.2 million 

• Activated carbon injection (ACI) = $17.5 million 

• Wet Scrubber System = $22.1 million 

• ACI system combined with a wet scrubber system = $39.6 million 

• Selective catalytic reduction systems (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 million per plant. 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 standards or due to the excessive financial burdens. 

6. Industry's Financial Ability to Comply 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 ability 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 aggressive 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 carriers impacting freight rates, and in recognition of the longterm demographic trends that suggest strong 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 economic hardships were clearly understood. 

Capitalization and financial commitment to these projects 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. Utilization 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. PCA estimates that total 2009 

cement industry revenues at less than $7 billion. For CISWI covered cement plants revenues are 

estimated at roughly $3 billion. For 2009-2011, total industry revenues are estimated at $9.5 

billion. The $2 billion in investment required to comply CISWI standards equates to more than 

20% of industry revenues accumulated during the next three years. 

The combination 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 financial realities, investment needed 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 thirds of all cement plants to eventually 

discontinue the use of alternative 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 standards. Second, even if a plant can technically 

meet the CISWI standards, the compliance investment 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/Energy 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. 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 alternative 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 compliance 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 these plants cannot meet "existing 

facilities" emission standards in the Proposed CISWI Rule based on assumptions regarding 

existing technology and the ability 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 and modification to insure efficiency and remain "world-class" 

competitive. Such investments could result in existing 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 well as industry compliance costs could be 

underestimated if this impact is not taken into consideration. PCA assumes that all plants require 

a major upgrading or maintenance investment within 35 years of initial plant launch. This 

suggests that all plants commissioned between before 1985 could be subject to a major 

reinvestment – and could result in an EPA reclassification of the plant as a "new source" within 

five years after the CISWI standard has been imposed. This represents 24 plants and nearly 25 

million metric tons of capacity. Plants originally 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 analysis 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 effective emission standard is lowered from 1,100 

ppmv to 140 ppmv by 2020 – representing a dramatic tightening of the 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 CISWI "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 scrapped annually is determined 

by the number of vehicles on the road and vehicle miles travelled. Historically, 1.24 tires are 

scrapped per vehicle on the road. Based on United States Census projections of population 

growth, licensed drivers and the number of vehicles 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 used 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. Totaling these uses equates to 112% and is explained 

by a reduction in stockpiled tires. In 2005 stockpiled 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 nearly 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 TDF consumption. As the economy recovers, cement 

production and its consumption of TDF will recover. 

The recovery in cement consumption of TDF attributed 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 sustained recovery in world economic conditions 

leading to synchronized world growth is expected to emerge in 2013 and beyond. Much of this 

growth will be fueled by conditions among lesser developed economies. Indeed, the Energy 

Information Agency (EIA) expects world economic 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 will reach $105 per barrel in 2015, $132 per barrel in 

2020 and $156 in 2025. Given these increases and potential substitution effects, all fossil fuel 

prices, including coal, are expected to increase. PCA uses EIA fuel price projections. Lacking 

EIA guidance, PCA employs rough cross-elasticity of demand estimates to project other fossil 

fuel prices. 

While alternate fuels are influenced by overall fuel prices, supply of these fuels are 

dictated by producer and consumer activity of end-products, (e.g., such as tires). The disparity in 

price drivers between fossil fuels and alternative fuels suggests a change in the relative fuel costs 

– favoring alternative fuels. Such a potential implies an incentive for change in kiln fuel 

characteristics in favor of alternative 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 prices 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 between primary and alternative kiln fuels suggests 

cement companies will increasingly rely upon alternative 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 alternative fuel usage will increase in proportion to 

primary fuels. In 2008, alternative fuels accounted 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 long 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 reducing stockpiles to 312 million tires in 2015, 274 

million in 2020, and 110 million in 2025. The cement industry's consumption of scrapped tires 

plays an important role in reducing the scrapped 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 significantly reduce the amount of scrapped tires 

consumed by the cement industry. Under the Proposed CISWI Rule, PCA estimates cement 

industry scrapped tire consumption would decline 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 357 million tire in 2015 nearly 530 million tires in 

2020 and nearly 590 million tires in 2025. The Proposed 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 Consumption (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 tons) 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 Consumption (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 Consumed (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 cement industry's compliance to CISWI standards 

could increase domestic production costs by a minimum of $26 per ton. This assessment 
 -87- 

includes capital compliance investments 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 alternative fuels. These estimates are based on a 

90% utilization rate. 

The ability of the cement industry to pass along costs to consumers of concrete is high. 

The price elasticity of demand for cement is extremely 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, sewer and conservation projects. 

Of public construction activity, 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 construction industry is estimated at roughly $3 billion annually. 

10. CISWI Impact on Emission Projections 

The Proposed CISWI Rule will lower emissions from alternative fuel burning cement 

kilns. These reductions are achieved by use of emission capture control technologies as well as 

from decisions by cement producers to discontinue burning alternative fuels. Compared to the 

baseline scenario, reflecting no emission controls and a sustained strategy to increase alternative 

fuel usage in the context of rising fossil fuel 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 baseline 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. 
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• 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 for 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, blending silos, and cooler systems to replace the 

existing systems. A PSD permit to construct was issued in December 2009 after an extensive 

BACT review and Class I modeling analysis. Since the beginning, this project has been greatly 

complicated by the fact that NESHAP and NSPS regulations 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 recent Proposed RCRA Rule and Proposed CISWI 

Rule has jeopardized the new kiln project because NCCA is uncertain 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 investments, 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 expansion 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 regulate 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 continual basis based on current BACT technology. 

The new kiln limit for CO is so unreasonably low that basic combustion would not be possible 

using any fuel. It is very difficult to project compliance with continuous monitoring 

requirements for naturally occurring constituents, which vary significantly over 50 to 100 years 

of limestone reserves. 

Monitoring and compliance using CEMS in the 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 numerous technical issues that have never been addressed or 

resolved by the EPA. PS-15 has also been dismissed 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 operation 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 
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these technologies. NCCA cannot be certain that these technologies 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 discourages beneficial re-use, and NCCA is greatly 

concerned that alternative fuels and materials will 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 contributes 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 should be based on what has been achieved in 

the sector. Each of the foregoing EPA proposed regulations jeopardize the feasibility of the new 

kiln project. The net result of the proposed regulations discourage investment in capital projects 

and thus upgrades, efficiency improvements, alternative material and fuel use, effectively 

locking industry into existing 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 countries 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 exemption 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 emission 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 legality of source category-specific SSM provisions 

adopted in the 2000 CISWI rule, the decision calls into question the legality of those provisions." 

75 Fed. Reg. at 31964. Instead of closely examining 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 operation without an ounce of data showing that 

the emissions limits have been achieved in practice 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 emission limits to address SSM issues. 

 20 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Commercial and Industrial Solid Waste Incinerator Units, 65 Fed. Reg. 75338 (Dec. 1, 2000). 
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PCA does not agree that the Sierra Club decision applies to source category-specific 

SSM provisions. There is nothing in the Court's decision that would make it apply to regulations 

promulgated under § 129 of the CAA. The Court did 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 Court'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 performance of the best performing sources must be 

established by including emissions data during SSM. EPA proposes that the variability 

calculations it performed for the data set of normal operating sources is sufficient to account for 

periods of SSM. This assertion by EPA is incorrect 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 operations. EPA is basically 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 once the unit has reached combustion temperatures," 

and that "emissions during periods of shutdown are also generally significantly lower than 

emissions during normal operations because the materials 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 extended period regardless of the type or amount of 

fuel being fed. 75 Fed. Reg. at 31964. These statements by EPA ignore the fact that (1) many of 

the pollution control technologies do not begin to operate until normal operations are maintained, 

(2) pollution controls must be shutdown before the units are shutdown, and (3) emissions can 

routinely be higher during times of SSM, even though waste may not be combusted. 

EPA's descriptions, cited here, demonstrate that EPA has its facts wrong. Clean oil or 

natural gas applies to the narrow application of incinerators. EPA gives no consideration to kilns 

where initial fuel is used for heating, then the kiln introduces conventional fuels, then introduces 

raw materials; all before producing a product and reaching "normal" operations. 

EPA addresses periods of malfunction by stating, again with no information on how 

many malfunctions have occurred within the MACT floor units, that "best performing" sources 

operate in a manner to avoid malfunctions. Id. This assertion is totally unsupported as there is 

absolutely no analysis of malfunction occurrences at the MACT floor units in the record. 

Malfunctions at industrial sites can be extremely dangerous and can easily result in the loss of 

property and life. The fact is that they occur 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 setting an arbitrary MACT floor without any 

information and forcing sources to choose between complying with the proposed emission limits 
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and risking property and life. Not only is EPA acting arbitrarily in its establishment of the 

MACT floors; it is acting irresponsible in regards to the safety of plant personnel and 

malfunctions. 

EPA's method of addressing malfunction 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 required of technology-based standards such as those in the Clean 

Water Act. Most importantly, EPA 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 should 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 variability that occurs during SSM events and the 

technological limitations of emission controls, EPA has established unrealistic emission floors 

based on data only from when a plant 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 meet 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 11th Circuit found that 

where a developer took extensive steps to manage stormwater runoff he was not held liable for 

violations where the court found the 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 were 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 9th Circuit Court of Appeals previously held that "EPA cannot require a level of 

control technology that is technologically and economically infeasible." Bunker Hill Co. v. EPA, 

572 F.2d 1286, 1293 (9th Cir. 1977). "The proposed technology 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 required technology is feasible, not merely possibly 

feasible." Id. at 1301. Establishing an emission limit that assumes that emissions will be 

curtailed without showing the feasibility of reducing those emissions is arbitrary and capricious. 

Id. at 1299. Here, at best, EPA establishes that the available technology is possibly feasible to 

meet the emissions standards during SSM by stating that "most units use natural gas or clean 

distillate oil to start the unit and add waste once the unit has reached combustion 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 proposing 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 proposing to provide relief from civil 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 penalties. EPA approach in the 

preamble seems to only apply to enforcement actions by EPA, and EPA should clarify how its 

approach applies to possible citizen suits addressing malfunctions. 

There is a strong presumption that the process for setting an emission limit will 

demonstrate that it is not feasible to prescribe 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 temperature 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 during 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 position where they need to choose between 

protecting workers and complying with emissions limits. 

The lack of data does not excuse the EPA from its affirmative obligation to set floor 

levels that are indicative of the level of performance 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 levels, 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 Standards To Apply During SSM Periods

PCA believes the best way to require compliance during SSM events is to require work 

practice standards that would apply during such periods. Particularly given the lack of data on 

emissions during periods of SSM, as well as the variety of circumstances that may be presented 

during SSM events, it would be exceedingly difficult to craft separate emissions standards for 

these events. If EPA wishes to have the same emission standards apply, the level of those 

standards would need to account for emissions during periods of SSM, which are unavoidable. 

Thus, work practice standards appear to be the best solution. Because § 129 of the CAA 

emissions standards are promulgated as NSPS under § 111 of the CAA, EPA has clear statutory 

authority to use work practice standards 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 reasonable 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 consideration. The first option is to develop a 

work practice standard based on the fact that it is not practicable to apply a measurement 
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methodology during SSM events. The second option is to put regulation of SSM emissions on a 

separate track from this overall rulemaking to ensure that there is enough time to assemble 

preliminary modeling data to determine the feasibility of establishing an emission floor during 

SSM. 

The appropriate work practices that will apply 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 owner. This was accomplished in the other 

regulations, and PCA recommends that each affected facility be required to prepare an SSM 

"work practice plan" containing certain required components. The work practices plan should 

address: 

• Preventive maintenance activities intended to minimize malfunctions and 

unplanned shutdowns of air emissions control systems. 

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

planned shutdowns. 

• Procedures for detecting and remedying malfunctions that result in excess 

emissions. This will include a determination of the cause and taking corrective 

actions. 

In developing these work practice plans, PCA is prepared to work closely with EPA to 

achieve the correct balance between accountability and the flexibility to deal with the wide range 

of conditions as they vary between kilns, control 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 Violates the Law and 

Results in MACT Floors That Bear No Relation to Emission Limits that are Being 

Achieved at the Best Performing Existing Sources 

Pursuant to § 129(a)(2) of the CAA, EPA uses the MACT standard setting method to 

derive the applicable emission standards under § 129 of the CAA. 75 Fed. Reg. at 31941. EPA 

recognizes that the two-step process 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 setting 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). Section 112(d) of the CAA has 

been the subject of various court interpretations 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 previous court decisions. Most importantly, the 

MACT process is clear that emission standards must be "achieved in practice" before finalizing 

the regulation. EPA, however, applies the "achieve in practice" standard on a pollutant-bypollutant" basis, which results in a final standard that has never been achieved by any subject 
 -94- 

facility or best performer. EPA took this approach in the Pre-publication Portland Cement 

NESHAP. PCA submitted comments adverse to this approach in that rulemaking. 

EPA's pollutant-by-pollutant approach to setting a MACT floor violates § 129(a)(2) of 

the CAA. See 42 U.S.C. § 7429(a)(2). The CAA requires 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 Disposal Authority v. EPA, 358 F.3d 936, 954 (D.C. Cir. 

2004) (stating that "[t]o satisfy this requirement, EPA must 'demonstrate 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 CAA then requires EPA to determine whether 

stricter standards—beyond the floor limits—are achievable, taking 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 basis, rather than by 

identifying the overall best-performing sources taking into account all pollutants. This method 

violates the plain language and intent 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 requires EPA to set a MACT floor for existing 

sources that is not less stringent 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 "existing" 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 Waste 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 intended actual sources, performing under real-life 

conditions, to be the benchmark for determining the 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 separate 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, reasoning 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 the disputed issue of statutory construction, "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 also 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 made 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 well (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 process' 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 source can achieve a firm degree of control 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 where plants in EPA's database 

were "capable of meeting the limitations for some, 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 control 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 allows 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 consider "the cost of achieving such emission 

reduction, and any non-air quality health, environmental impacts and energy requirements . . .." 

CAA § 129(a)(2). In comparison, EPA's proposed pollutant-by-pollutant methodology is in 

effect an end-run around the CAA mandate to weigh economics and other factors in setting 

MACT standards. 

In evaluating the economic cost of achieving emission reductions and looking at one 

plant's emission control of only one pollutant to the exclusion of all other emission controls 

produces a disjointed view of cost implications and compliance feasibility. While an individual 

MACT floor for one pollutant might not appear cost-prohibitive, the total cost implications when 

combined with all of the other MACT floors for other pollutants, could become especially 

onerous, potentially forcing some regulated parties out of business, and barring the market entry 

for other potential entities. This absurd result is compounded when 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 operate certain types of control devices due to 

local operational constraints and feed material composition. 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 collective cost implications of the entire rule, EPA would 

effectively disregard the CAA's requirement that 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 considering hypothetical sources 

and promulgating MACT standards that are unachievable, EPA is nullifying these statutory 

provisions. 

C. EPA's Previous Use of a Pollutant-by-Pollutant Analysis was Based on 

Authorities Not Applicable to the Clean Air Act

EPA previously used a pollutant-by-pollutant 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 approach 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 attempted to defend its practice 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, "best available technology" (BAT) 

referred to the single best-performing plant 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 technologies differs on a textual basis from the CWA's procedure for 

identifying best available technology. Under the CWA, BAT standards are to be set based on 

"the best practicable control technology currently available." 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 demonstrated available. 885 F.2d at 264. The CAA, 

on the other hand, more narrowly limits the basis 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 because all our standards are not technically 

interdependent (i.e., implementation of one emission control technology does not prevent the 

source from implementing another control technology), the fact that sources 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 emissions) 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 standards). It was reported by 

Chang and Lin21 that the total dioxin/furan concentrations 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 control 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 based on no set of emission 

limitations in use at a single existing source. Congress did not design MACT standards to be 

unachievable or to be forced upon regulated sources regardless of economic 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 requires emission standards to be set relative to what other operating 

plants achieve. Accordingly, EPA should comply 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-performing 12% of real, existing plants. 

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

EPA has established its proposed floors by equating the best performing sources with 

those that have the lowest emissions for particular 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" approach does not. EPA apparently bases its action on 

a parenthetical phrase in Brick MACT, referring to the best performers as "those with the lowest 

emission levels." 479 F.3d at 879. This parenthetical 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 directive that in developing MACT standards EPA 

cannot require the substitution of raw materials in mineral processing industries such as cement 

manufacturing. The Joint Explanatory Statement of the Committee of Conference for the 1990 

CAA Amendments states: 

For categories and subcategories of sources of [HAPs] engaged in mining, 

extraction, beneficiation, and processing of nonferrous ores, concentrates, 

minerals, metals, and related in-process materials, the Administrator shall not 

consider the substitution of, or other changes in, metal- or mineral- bearing raw 

materials that are used as feedstocks or material inputs . . . in setting emission 

standards, work practice standards, operating 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 Elements, 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, Portland 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 strong policy underpinning because, as a practical 

financial matter, cement facilities cannot rely on raw materials other 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 Explanatory Statement of the 

Committee of Conference for the 1990 CAA Amendments. 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 smelter MACT standards), then-Judge 

Roberts noted that "[t]he Joint Explanatory Statement may be helpful in determining Congress's 

intent . . .." 353 F.3d at 988, n. 1. The Joint Explanatory Statement demonstrates congressional 

recognition that sources processing minerals cannot rely on raw materials not found at or very 

close to the facility. Because limestone with high 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 sources 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 setting the standards, in which EPA selects the 

best performing sources based on the relative performance of air pollution control technology. 

In rejecting Sierra Club's argument that EPA must only look to cement kiln emissions in 

selecting the best performing sources, 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 write on a clean slate. EPA's technology-based 

approach to setting new source emission standards 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, which establishes emission requirements 

virtually identical to section 7412's. There, 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 performance 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-based 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-defining 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 the 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 floors, and rejected the contentions of the State 

and territorial Air Pollutions Programs Administrators that EPA failed even to identify the best 

performing sources. As the court 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 standards, and that EPA erred in 

simply basing the final standards on another, less stringent technology. 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, EPA—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 endorsed 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 another 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). Accordingly, and also because the interpretation would 

contradict the legislative history from the 1990 CAA Amendments conference report discussed 

above, EPA should not read the parenthetical in the Brick MACT decision to equate those sources 

with the lowest emissions as the best performers in a source category. In addition, and as a 

practical matter, those facilities identified by EPA 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 standard setting process in the CAA, EPA is required to set a 

MACT floor based on emission limitations that have already been achieved by the bestperforming 12% of existing sources. To evaluate 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, including process, operational, 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 price fluctuations and availability, such as fuel type, or may only 

change slowly over time, such as by operational decisions regarding waste management and 

product specifications. While courts have affirmed EPA's authority to choose a methodology 
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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 "EPA must show not only that it believes its 

methodology provides an accurate picture of the relevant 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 variability when establishing 

enforceable emission rates. In considering appropriate enforceable emissions rates in Prevention 

of Significant Deterioration (PSD) permits under the CAA, the Environmental Appeals Board 

has held that a permitting authority is not required to set the Best Available Control Technology 

"emissions limit at the most stringent emissions rate that has been 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 performance of pollution controls, 

and the fact that setting emissions limitations for 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 recognize a distinction 

between, on the one hand, measured "emissions rates," which are 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 fluctuation or variability 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 sense approach used by EPA in PSD permitting 

should also apply in establishing 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 and short-term emissions data results to derive a MACT floor 

due to the variability in operating conditions at any facility. 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 considered, 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 for Electric Utility Steam Generating Units, 69 Fed. Reg. 

4652, 4670 (Jan. 30, 2004). EPA should consider these 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 "achieved in practice" by these sources. In another 

MACT case, the D.C. Circuit has held that the 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 floors at a level that is a reasonable estimate 

of the performance of the "best controlled 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 "achieved in practice" is interpreted 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 where a statute requires that a standard be 

"achievable," it must be achievable "under most adverse circumstances which can 

reasonably be expected to recur." The same principle should apply when a 

standard is to be derived from the operating characteristics 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 performing sources occasionally have spikes"). EPA should follow 

its own common sense approach and the directive 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 the 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 several major errors in EPA's proposal. Based on 

our review of the publicly-available record and 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 comment on the Proposed CISWI Rule 

to the extent that EPA action would be rendered arbitrary 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 process lacks the transparency necessary to implement a final rule. 

As explained in the body of the comments, PCA 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 considered "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 that 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 analysis are so clearly inadequate and fall so short of providing an 

adequate characterization of emissions from solid waste-burning kilns, 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 such 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 the CISWI floors two different ways, noted as 

options A and B. The results of that exercise are summarized in a chart found 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 compliance 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 with 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 standards 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 comply with the Pre-publication Portland Cement 

NESHAP standards, may overwhelm the industry’s financial capability to comply the Proposed 

CISWI Rule. The increases in cement production costs could potentially 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 the country’s trade balances. 

The Proposed CISWI Rule constitutes bad pubic policy from an economic and 

environmental perspective. In addition to undermining economic recovery, the standards in the 

Proposed CISWI Rule would also undermine recycling of used tires and other scraps used as 

alternative fuels by cement manufacturers. The cement industry is a large consumer of scrapped 

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. PCA filed extensive 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 proposed by the Proposed RCRA Rule would give 

portland cement kilns great incentives to avoid 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 should be subject to the Proposed CISWI Rule. 
PORTLAND CEMENT ASSOCIATION 

ATTACHMENT 1
BOSTON 

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 

VIA E-MAIL AND U.S. MAIL

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 Critical Data in Rulemaking Docket For 

 Public Review and Comment and (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 personnel have refused to release supporting the abovereferenced “CISWI” proposal. Also, both PCA and 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 light of the points made below. 

 Relevant Background to CISWI and Related Proposals

 EPA published four proposals in the June 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 determining which facilities might be regulated under 

CAA §129 (75 FR 31844); 

 (2) the Commercial and Industrial Solid Waste Incineration Units (“CISWI”) proposal 

includes proposed emission limits under CAA §129 for units that combust non-hazardous solid 

waste as will be defined by the new RCRA rule; several types of facilities, including Portland 
FOLEY & 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, compel 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 deadline 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 cement kilns that combust solid waste would 

be subject to emission standards for several pollutants. 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 concentration 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 are “measured at 7% oxygen.” 

 As you know, setting emissions standards for a category of existing sources under CAA 

§129 involves establishing “floor” levels based upon the best performing 12% of the sources in a 

category. As PCA and its member companies are 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 which EPA relied in developing its proposed 

standards came from data PCA member companies submitted in response to EPA’s requests 

under CAA §114. Much of this data 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 levels such as ppmv or mg/dscm. Moreover, the 
FOLEY & LARDNER LLP

Scott C. Fulton, Esquire 

July 13, 2010 

Page 3 

companies did not report (as they were not asked 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% oxygen. Many of EPA’s “best 12%” comparisons are in fact based on 

these converted numbers and the 7% oxygen level. One cannot rationally convert pounds-perhour emissions data into a concentration level without factoring in key variables associated with 

the emissions data from each company, such as gas flow rates, oxygen levels, and specific heat 

consumption. EPA has thus far, however, withheld from the docket the figures it has used to 

perform its conversions for each proposed floor standard where such a conversion is necessary. 

 We have been informed (and as you will see below, EPA personnel have confirmed) that 

this critical conversion information exists in EPA’s files in Excel spreadsheet form. After PCA 

contractors made several requests 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 the 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 strongest terms. PCA and its members are being 

denied the ability to review and comment upon the 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 PCA 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” made by EPA personnel in the conversion effort. Such an e-mail 

response is certainly well-intended. Such a personal e-mail discussing how EPA generally went 

about making its conversions cannot, however, serve as a substitute for the agency’s obligation 

to reveal the details of its conversion methods now in its files and how they were applied on a 

facility-by-facility basis to support its critical floor determinations. PCA 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 that 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 docket. A review of the 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 Approach – Floor Analysis Cement Kilns;” “MACT 

Floor Calculations for Proposed Approach – Data Variability Cement Kilns.” (I should note that 

none of these postings includes the Excel spreadsheet that EPA has refused to release.) 

 The logic of EPA’s actions here frankly escapes 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 calculations to support its floor calculations, even 

though EPA posted numerous other documents supporting 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 proposed rule relies shall 

be included in the docket on the date 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. 

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 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 current 
FOLEY & LARDNER LLP

Scott C. Fulton, Esquire 

July 13, 2010 

Page 5 

refusal to release its data showing how it derived 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 standards be conducted in 

orderly fashion, information should generally 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 material 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 rulemaking, EPA initially established a comment 

deadline of 45 days. Soon after the June 4 Federal Register publication, EPA extended the 

comment period by 15 days, until August 3, 2010. Both PCA and Lafarge soon thereafter 

requested an additional 30 days, 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 Club order in full, and now quote from the relevant 

portion of the order: 

 No later than May 14, 2010, EPA shall promulgate emission standards 

assuring that sources accounting for not less than ninety percent 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). 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) emission standards for industrial, commercial 

and institutional boilers and process heaters under section 112(d); and (2) 

emission standards for commercial 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 mentioned at the beginning of this letter. The only 

reference to CISWIs in this order is contained 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 subject 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 even 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 relating to its proposed CISWI standards relating to 
FOLEY & LARDNER LLP

Scott C. Fulton, Esquire 

July 13, 2010 

Page 7 

Portland cement kilns, we believe EPA should now be extending the comment period on the 

CISWI rule (at least as it relates to Portland cement kilns) until at least September 3, 2010 as 

previously requested. 

 The fact that EPA has just posted 20 additional documents in the docket in the last few 

days provides additional support to our request for additional time. All of these 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 certain portions of a proposed rule later than other 

portions. We are quite confident, in any event, that EPA’s continued failure 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 address indicated above if you have any 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. McCarthy 
BOSTON 

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 

VIA E-MAIL AND U.S. MAIL 

ATTORNEYS AT LAW

WASHINGTON HARBOUR 

3000 K STREET, N.W. 

SUITE 600 

WASHINGTON, D.C. 20007-5109 

202.672.5300 TEL 

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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 July 13, 2010 (copy attached) on behalf of my 

client the Portland Cement Association (PCA) regarding the 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 calculated 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 conference 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 August 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) period. 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 spreadsheets, 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 unavailable for our examination, but we are also 

continuing to find that the proposal suffers from inadequate and incomplete data, errors in 

transcription, errors in calculations, and reliance on critical assumptions that are undocumented in 
FOLEY & LARDNER LLP

Mr. Scott C. Fulton, Esquire 

July 27, 2010 

Page 2 

the record. Moreover, pivotal implementation issues 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 comply 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 calculations to derive its proposed standards. EPA cited the “courtordered deadline” as one reason. EPA made clear “the 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 confirmed that none of these documents represent 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 the 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 articulated a position that everything PCA needed to evaluate 

and comment upon the proposed emission standards was 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 assertions 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 Acrobat(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 next month, we will elaborate in detail on 

numerous serious deficiencies in the proposed rule. As we will explain, the deficiencies 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 other 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 review 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 all 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 these 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 “structure and spirit of section 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 notice and in our conference call of July 16, EPA 

personnel asserted that the record was complete as of the date of Federal Register 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 spreadsheets 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 floors 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 EPA had developed its proposed 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 divine EPA’s methods. This falls far short of the requirements of the 
FOLEY & LARDNER LLP

Mr. Scott C. Fulton, Esquire 

July 27, 2010 

Page 4 

CAA and the Administrative Procedure Act, however. “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 strewn 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 Court 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 parties 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 attached 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 compels 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, when 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 because 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 percent 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 for 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 for purposes of argument that this interpretation 
FOLEY & 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 covered 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 result in achievement of the 90 percent requirement. Similarly, EPA 

includes detailed discussion 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 various 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 somehow put it “over the top” on the 90 percent 

requirement of the court order and 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 order 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 current 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 sufficient time to conduct responsible and legally-defensible rulemaking. In 
FOLEY & 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 extensions of various deadlines related 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) (order), 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 suspend 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. McCarthy 
 

PORTLAND CEMENT ASSOCIATION 

ATTACHMENT 2 



 

PORTLAND CEMENT ASSOCIATION 

ATTACHMENT 3 
Page 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-Hazardous 

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 centers 

in all 50 states. PCA members account for more than 97.5 percent of portland 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 submitting 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. Reg. 31938, et seq. is issued pursuant to Section 

129 of the Clean 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 “CISWIs.” EPA has recently extended the deadline for public comments on the CAA 

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 great 

potential significance to portland cement manufacturing facilties. For even though a portland cement 

kiln is not an “incinerator,” under EPA’s proposal portland cement kilns will be subject to the new 

CAA § 129 incinerator standards 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 by the Agency. We look forward to working 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., 7th Floor

Washington, DC 20001

202.408.9494 Fax 202.408.0877

www.cement.org
Page 3 of 72

Please refer 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 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..................................................................................................................... 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 NonHazardous 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 Recycle and Reuse....... 21
Page 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 Recognized as “Traditional Fuels”.................................... 34

VII. EPA’S COST ASSESSMENT IS INADEQUATE, INCOMPLETE, AND 

ARBITRARY ........................................................................................................................ 35

VIII. PCA’S RESPONSES TO SPECIFIC 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 Register page 31868. ............................. 50

H. Coal Combustion Residual Contaminant Changes, Federal Register page 

31869........................................................................................................................... 50

I. Levels of Contaminants in Fuels, 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-processing 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...................................... 60
Page 5 of 72

R. Btu Limit, Federal Register page 31882. ................................................................ 62

S. Scope of Contaminants, Federal Register page 31883........................................... 63

T. Bright-line Level of Contaminants, Federal Register page 31883........................ 65

U. Comparison of Total 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....................................................................................... 71
Page 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 appreciate PCA’s concerns with 

the proposed rule, EPA first needs to understand how portland cement manufacturers make beneficial 

use of secondary materials in their manufacturing operations. 

Portland1 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 cement 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 buildings, dams, and water resource systems and facilities. The 

low cost, durability, and universal availability of portland cement ensures that concrete remains one 

of the world’s most essential and widely used construction materials. 

PCA’s member companies 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, our member companies are leaders in the effort to be responsible 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, undertaking voluntary efforts to reducing waste disposal through 

the use of scrap tires, used motor oils, petroleum sludge and other reusable materials as alternative 

fuels and raw materials in the production of cement. Indeed, the environmental benefits of these 

efforts were 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 portland cement manufacturing facilities. 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 requirements codified at 40 C.F.R. Part 63, Subpart EEE. HWF is being utilized as an 

alternative fuel at eleven portland cement manufacturing facilities in the U.S.

At a far greater number of facilities, portland cement companies are using non-hazardous 

secondary 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 describe a specific type of cement. 

2 Cement Sector Trends 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 portland cement manufacturing facilities 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, portland cement manufacturers’ use of non-hazardous 

secondary materials conserves virgin non-renewable 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 

necessary to extract virgin materials, but (as explained further below) can also reduce air pollution 

such as greenhouse gases and other conventional pollutants from the portland cement manufacturing 

process. 

Many cement plants are capable of beneficially utilizing 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 alternative 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 tires as an 

alternative fuel to coal. In the United States, where more than 300 million scrap tires are generated 

annually, portland cement plants use more than 50 million tires a year – thereby diverting those 

materials from landfills. 

As explained in more detail in Section VI below, the environmental benefits of utilizing scrap 

tires as a supplemental fuel in the portland cement manufacturing 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 portland 

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 materials 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 “solid waste” for purposes of CAA § 129 is to be “established by the Administrator” 

under RCRA. CAA § 129(g).

As EPA explains on page 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 issued 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 units 

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 regulated 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 control 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 that 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 this 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, actually 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 RCRA Subtitle D. Neither is EPA proposing to amend its definition of 

solid waste for Subtitle C hazardous 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 section 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., (emphasis 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: . . . 

Proposed § 241.3(b) (emphasis added).

Moreover, the proposed regulatory 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 unit 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 for 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, assume 

EPA were to follow PCA’s recommendations below and structure its Part 241 rules so that whole 

scrap tires used as fuel in portland cement kilns are not a solid waste when combusted. This would 

not affect the ability of States to classify and regulate those 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, nonhazardous 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-hazardous 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 whole 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. The 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 basic fact that facilities will have strong incentives to avoid 

combusting materials that would subject them to regulation as incinerators under CAA § 129. EPA 

recognizes this in its proposed CISWI preamble. See 75 Fed. Reg. 31965-66. Many portland 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 for “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 portland cement kilns could through many types of necessary operational 

changes be deemed “modified” and thus trigger applicability of the “new source” standards, portland 

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 indeed, 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 solely 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 parties, and the Court were focused 

exclusively on incinerators and boilers. Like incinerators, boilers do not use “ingredients.” Unlike 
Page 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 portland 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 incinerators, 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 long 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 portland cement kilns producing 

ingredients in the development of CAA § 129 or the rulemaking and litigation leading to this 

rulemaking, portland 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 below, a significant flaw in the proposal is its failure to recognize key differences 

between portland 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 portland 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 business 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 they 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:

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 critical 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. EPA has not attempted to justify its antireuse/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, EPA’s proposal as applied to portland 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 materials 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 represents 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 “legitimacy criteria” as applied to portland 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 has 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 waste incineration units,” which the statute 

defines as units that “combust” solid waste. CAA § 129(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 trigger 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, it 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 “combust” or “combustion.” One must 

accordingly turn to the plain meaning, dictionary, standard usage among engineers, definitions. The 

McGraw-Hill Science and Engineering 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 Attachment 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 of 

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 § 129 to regulate portland cement kilns’

use of secondary materials as ingredients.

B. Legislative History

The 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 

incinerators 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 1989 version of the 

Senate Bill, Senate Report 101-228, accompanying S. 1630 (the “1989 Senate Report,” Attachment 

B). The other accompanied the 1987 version of the Senate Bill, Senate Report 100-231, 

accompanying S. 1894 (the “1987 Senate Report,” Attachment C). 

One will search in vain for any concern or reference to – even obliquely – 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 waste 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 the 

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 

the 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 thought 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 Attachment 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 RCRA § 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 emissions trap pollutants, which then become part of the fly ash.” See 

1987 Senate Report, Attachment C at 9451.

Under the assumption that the units regulated by CAA § 129 would be producing this 

“incinerator ash” or “fly ash,” Congress included a special provision 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 other way. It 

strongly reinforces the point that the statutory word “combust” can and should be given its plain 

English, 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 ingredients 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 new 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 

noted above, the relevant word is “treatment” in Subtitle C – which is much broader than 

“combustion.” 

IV. NOTHING IN THE D.C. CIRCUIT’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, the part 241 proposal is EPA’s response to the 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 proceedings, 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 also overwhelmingly on boilers (not industrial 

furnaces). Nothing 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 Opinion

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 “solid 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 

National Wildlife Federation (NWF)) filed an administrative reconsideration petition with EPA on 

January 30, 2001. See Attachment D. Earthjustice’s objection focused solely on the fact that EPA 
Page 16 of 72

had excluded units burning solid waste for energy recovery purposes, maintaining that such exclusion 

violated 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 would not be regulated under CAA § 129. 69 Fed. Reg. 7390.

Earthjustice once again strenuously objected to EPA’s proposed definitions in its comments 

on EPA’s February 2004 proposal (“Earthjustice 2004 Comments” at Attachment E). The 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 “exploit” 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 final 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 portland cement 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 2005 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 parties’ 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 NRDC parties 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 provide 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, incinerators 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 NRDC Brief:

That is, although section 129 directs EPA to regulate sources that combust “any solid 

waste material from commercial or industrial 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 boilers 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 solid 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 could 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 declarant states that he/she 

would be affected by emissions from an industrial furnace such as a portland 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 secondary materials as ingredients. The Court held only 

that EPA’s regulation that exempted solid waste combusted for energy recovery was “inconsistent 

with the plain language of section 129,” because CAA § 129(g)(1) defined the affected facilities as 

“any facility 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 for the purpose of complying with the remand in the 2007 NRDC case. 74 Fed. 

Reg. at 43. But as shown above, the NRDC case had nothing whatever to do 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 fundamental 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. In its bedrock decision Motor Vehicle Mfrs. Ass’n v. State Farm, 463 

U.S. 29 (1983) (“State Farm”), the Supreme Court elaborated upon the federal Administrative 

Procedure Act’s (APA) “arbitrary or capricious” standard with the phrase “reasoned 

decisionmaking,” 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” requirement. 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 facilities 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 Court 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 facilities 

under the same older RCRA standards, and EPA did not dispute this. Also, EPA maintained 

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 since EPA could not explain any environmental benefits to 

its early cessation requirements, the Court 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

Court 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 arbitrary 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. Citing 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 the D.C. Circuit has 

relied upon State Farm “reasoned decisionmaking” principles to reverse EPA rules include Am. Farm 
Page 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 the 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 authority 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, EPA 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 secondary 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 summarized 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 Subtitle 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 Priorities 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 NonHazardous 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 Subtitle C context. EPA has taken great 

care to distinguish between the definition 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 applies 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 that 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 used 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 statutory definition” applies to both Subtitles C and D cannot 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 apply in the Subtitle D context and (b) EPA has 

stressed, citing 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 proposal, 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 recycled 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 to 
Page 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, while 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 materials are exempt from the definition of solid waste regardless of how much those 

materials may influence contaminant levels in the resulting product. One 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 – unless 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 

ingredient materials more stringently 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 case” 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-hazardous). 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 proposal appears even more illogical and “unreasoned” when one 

considers (as explained in part I(C) above), that the only function of the proposed part 241 definition 

is to determine what materials will trigger CAA § 129 applicability when combusted. Materials 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 definition of solid waste in 40 

C.F.R. § 261.2. If a material 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 

consequences 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 years 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 definition, EPA has accordingly often drawn lines that might 

discourage some forms of recycle/reuse on grounds that such a choice was necessary to protect health 
Page 22 of 72

and the environment. There is at least a rational basis for this, as materials that would qualify as 

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 portland 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 maximize

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 

being 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 proposal 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 health 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 arbitrary and capricious rulemaking.” 217 F. 3d at 865. And it is clear that EPA 

cannot remedy this defect 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 and 

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 rulings 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 has 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. 31850; 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 position that a discarded material could cease to be a solid waste 

when recycled 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 

handling of hazardous wastes.

906 F.2d at 741 (emphasis added and internal citations and 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 been discarded to cease to 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” definition show that the Court 

understood the Subtitle C hazardous waste context to be quite distinct from RCRA Subtitle D. In its 

preamble at page 31850, EPA cites American Mining Congress v. EPA, (“AMC I”) 824 F.2d 1177 

(D.C. Cir. 1987). The Court in that case 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. at 1179 (emphasis added). Nothing in the Court’s opinion speaks to the issue of defining 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 31851 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 authority 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 congressionally 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 Industry’s History of Beneficially Using Whole Scrap 

Tires

The most dramatic adverse impact on the portland cement industry from EPA’s proposed part 

241 rule (as it would work together with the proposed CISWI rule) is in regard to the proposed rule’s 

approach 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. Scrap 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 themselves, but because they take up precious landfill space that is in short supply 

and present risks of fires, draw rodents and pests, mosquitoes, etc.;

b. Over 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. Whole tires serve as a useful substitute for virgin fuel at cement kilns, and the metal in 

these tires serves as a useful substitute 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 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.

d. There is no increase in air pollutant emissions from portland cement kilns burning 

these non-hazardous materials. In 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, scrap tires were simply landfilled, like most other waste 

materials. They were not perceived as a disposal problem nor available in a quantity attractive to 

cement plants. Two factors changed that situation. The first factor was diminishing landfill capacity. 

With fewer landfills 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. 

Secondly, scrap tires were no longer considered as part of the municipal solid waste stream, 

and therefore not collected or disposed of by municipalities. This, in turn, caused the generators of 

scrap tires to use the services of scrap tire collectors and transporters. These entrepreneurs typically 

found 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 

subsequently 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 nuisances 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 portland 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 poor 

public perception of tire combustion, continued use of whole tires by portland 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, permitting, or waiting to use scrap tires.5 A PCA report shows data starting in 1998, when 

35 plants (of those reporting) were already 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 355,000 tons of tires annually.

7

B. The Proposal Will Strongly Discourage Portland Cement Kiln Utilization Of 

Used Tires With No Resulting Benefits to Health and the Environment

The data available indicates that emissions from TDF-firing kilns have 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 (SO2) 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 (NOx) emissions. NOx can be 

reduced by over 30 percent depending on the kiln type, age, fuel combustion location, and the plant’s 

ability to optimize the manufacturing process. An EPA-sponsored study on NOx reductions reported 

that TDF added to the raw material feed end of some preheater or precalciner kilns can reduce NOx

emissions over 30 percent, and EPA also found that when mid-kiln injection of whole scrap tires was 

used, there was an average NOx 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 results in lower NOx emissions when 

compared 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 NOx.

13 EPA’s own emission-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 labor-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, John 

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, Incorporated, 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, EPA600/R-97-115, October 1997. Included as Attachment S. 11 NOx Control Technologies 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. Code Chs. 121, 129 and 145, Control of NOx 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 as 
Page 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 May 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 emissions 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 from 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 MTCO2E per 

MMBtu. Based upon an estimated 20,328,000 MMBtu value for lost TDF,18,19 the resulting increase 

in GHG emissions from cement kilns would be 264,424 MTCO2E. 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 the TDF. Using the same heat amount and 

EPA’s value of 0.006 MTCO2E per MMBtu, the increase in GHG from the supply of coal would be 

121,968 MTCO2E.

The change to coal from TDF would also result in additional PM emissions. Based upon the 

total annual replaced 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, Final Environmental Assessment: Proposed Amended 

Rule 1112.1 – Emissions of Particulate Matter and Carbon Monoxide from Cement Kilns, SCAQMD No. 091027JJI, 

November 13, 2009. Included as Attachment Y. 14 Industrial Sector Integrated Solutions Model, EPA, prepared by ARCADIS U.S., Inc., December 23, 2008, EPA-HQOAR-2002-0051-2007.pdf. Included as Attachment Z. 15 74 Fed. Reg. 21138. 16 Materials Characterization Paper 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 Proposed 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

Under the structure of EPA’s part 241 proposal, portland 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 the 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 portland cement kilns under the part 241 proposal 

would be for portland 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 

would 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 petition process. See 75 Fed. Reg. 31879.

In effect, EPA’s proposal would strongly discourage portland cement kilns from continuing 

the highly beneficial practice of using whole tires from landfills and waste piles. This presents not 

only the most notable adverse impact on the portland 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 Misguided and 

Harmful

EPA bases its regulatory construct on certain legal theories involving the words “discard” 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 counterproductive.

1. Discard

EPA says that RCRA’s definition of solid waste centers 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 considered 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 logical leap to defy 

common sense, and not in any manner compelled by the statutory language or judicial precedent. As 

this interpretation produces results that impede reuse and recycling of non-hazardous materials with 

no benefit to health and the environment, we believe it is arbitrary and capricious and a failure of 

reasoned decisionmaking.
Page 29 of 72

a. Plain Meaning

If 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. As long as that 

material remains where it was abandoned or dumped, 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 

takes 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. She takes the chest of drawers and places it in a guest bedroom, and it now sits 

there full of clothes. To say the chest sitting in that room is now a “discarded” 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 reject 

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 reconcile 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 cradleto-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

Nothing in the RCRA definition of solid waste (§ 1004(27)) or any other provision of RCRA 

suggests that a material that is once discarded must be deemed discarded forever and therefore 
Page 30 of 72

forever remain 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 material 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 resources and reduce the deficit in its balance of payments.

RCRA § 1002(c) (emphasis added).

This statutory provision directly contradicts the premise that a once-discarded material must 

forever be deemed a solid waste, for it states that material that has been 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 landfills incapable of being 

exempt from the part 241 definition of solid waste without some form of “processing” (which it 

should not, as explained immediately above), the proposed rule’s approach on the requisite degree of 

“processing” for waste tires is wholly inappropriate and illogical, at least as applied to portland 

cement kilns.

EPA begins its analysis by explaining:

The 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 wastederived 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 processing20

 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 then says that used tires cannot be considered sufficiently “processed” unless they are physically 

shredded and undergo metals removal processing. See 75 Fed. Reg. 31877. 
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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 portland cement kilns. But all logic goes against EPA 

on this point. In two different passages in the same Federal Register page, EPA states (a) used tires 

must go through “various processing steps to meet certain specifications that are necessary for a 

particular end use,” including TDF, and (b) portland 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 processed to a sufficient degree to meet 

the specifications to serve a particular bona fide end use;

b. the specifications for tires used by portland cement kilns in a bona fide end use do not 

include shredding or metal removal; and

c. tires used by portland 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 reuse 

of significant amounts of non-hazardous material 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 sufficiently “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 would otherwise be a hazardous waste may then be sent into high-temperature 

environments such as electric arc furnaces at steel mills and aluminum smelters entirely free of 

RCRA controls.

EPA’s only explanation for the discrepancy in the way it treats scrap 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 portland cement kilns is:

We believe this is a good example of where the level of processing 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 reasoned decision

making. EPA is discouraging reuse and recycle practices of non-hazardous materials in portland 

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 nonhazardous 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 portland cement kilns 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 

portland cement kiln combusting such material will be subject to CAA § 129. The rule as thus 

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 “Legitimacy Criteria” from RCRA Subtitle C is 

Unwarrantedand Unproductive, Particularly as 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 “legitimacy criteria” and that ingredients meet four 

such criteria. 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 assuring 

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 the 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 will 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 that whatever 

restrictions are appropriate for hazardous wastes 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 under CAA § 129. (See Section III above). But to the extent EPA might nevertheless 

erroneously include the ingredient provisions in its final 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 attempted to justify) on grounds of health and environmental protection.
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Much the same can be said for EPA’s legitimacy criteria approach for fuels as applied to 

portland cement kilns. The portland cement industry simply cannot afford to jeopardize its product 

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 (reflected in the earlier Subtitle C 

rulemaking and policy documents it cites) that unscrupulous parties seeking to avoid the expensive 

Subtitle C cradle-to-grave regime had incentives to claim that the hazardous waste they were burning 

was a bona fide fuel. At that stage in the RCRA Subtitle C development (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 regulated 

industrial furnaces such as portland cement kilns.

Ironically, EPA has long recognized that products from portland cement kilns burning 

hazardous waste fuel (HWF) are not adversely affected in any manner. In 1995, after reviewing 

exhaustive data 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 cement 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 portland cement 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 product 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, we take particular exception to the third criterion for fuels and the similar fourth criterion 

for ingredients as applied to portland 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 products 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.

Proposed §§ 241.3(d)(1)(3), 241.3(d)(2)(4).

As emphasized throughout these comments, a portland 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 will interfere with that 

product quality, and when 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, ingredients, 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 portland cement quality is not adversely 

affected in terms of contaminant levels when hazardous waste is being burned. There 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 portland cement kilns 

burning hazardous waste to any legitimacy criteria (nor 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 subject product from portland cement kilns using nonhazardous secondary materials to legitimacy criteria.

In addition, as we will be elaborating upon in our comments on the CISWI proposal, there are 

major complex implementation issues regarding portland cement 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 suddenly 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 subjective criteria would inevitably invite disputes between and 

among regulated 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 reuse 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 classified 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 fuels 
Page 35 of 72

such as TDF can also be considered traditional. As explained earlier, the industry goals since 1991 

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 predominant that the data used to 

establish MACT standards under CAA § 112 for portland cement kilns contained significant 

information on kilns that were already using alternative fuels and raw materials 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 for 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 traditional 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, portland cement kilns will, 

of necessity, be forced to stop using non-hazardous secondary materials because the compliance 

costs which they would have to incur under CAA § 129 and EPA’s pending (and future) regulations 

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 scientific 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 

manufacturers 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, and 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 order 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 of 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 discuss 

below, PCA has a number of concerns with EPA’s assessment of the costs that this rulemaking will 
Page 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 arbitrary 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 regulatory 

impact analyses prepared in support of the CAA proposed rules,” id., referring to the Boiler MACT 

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-RCRA2008-0329-0528. This cost review document states in relevant 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 considered 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 with 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-RCRA2008-0329-0528. 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 specific 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 inadequate 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 would 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 the 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-HQRCRA-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”).
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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, there 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, necessitate. 

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 define, 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 on 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 the 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 of the petition process, EPA refers to the petition process as “voluntary” but 

 25 The “Section” being 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 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”). 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 certain 

market, human and environmental health, and other factors.” EPA-HQ-RCRA-2008-0329-0528 at 21.
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goes on to immediately acknowledge 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 environmental 

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 needs 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 petition 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-RCRA-2008-0329-0528 at 22.27

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-RCRA-2008-0329-0528 at 22, the cost review 

provides no details of analytical methodology and thus “failed to provide an opportunity 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 

 

 27Even assuming there are similarities between the processes, as EPA asserts, EPA has not claimed they are identical. 

Thus, by failing to provide a substantive 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 to comments filed by the public in opposition to a petition, the cost of a an 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, therefore, 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 calculating 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 petition 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 costs 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 in 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 currentlyproposed rule, there clearly will 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 specificity28

EPA has, effectively, three courses of action which it can take with respect to the 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 final 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 costs 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: 

designating 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 The NPRM, in fact, concedes 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 eliminate 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 instance, 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 should 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 portland 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 concession 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 preamble, 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 fuels 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 considered 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 potential 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 

increases 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 been 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, such 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, SO2 and dioxin/furans.

B. Information 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 technology 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 Fed. Reg. 31853 (emphasis added).

In this proposal, EPA “...recognizes that traditional 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 Fed. Reg. 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., petroleum 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 Emissions 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 burned as a fuel.” 75

Fed. Reg. 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 considered 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 generated 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 other 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 fuels. 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 

appropriate 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 materials 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 wastes, 

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, consumption 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 (of 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 

illustrated 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 Alternative 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 

Alternative 

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 303,330 275,385 326,158 383,221 441,102 450,267 463,794 478,858 475,948 355,918 

* 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 1999 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 Alternative 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 type of alternative fuel

 Source: PCA U.S. and Canadian Labor-Energy Input Survey
Page 45 of 72

C. Petition Process for Designating Traditional Fuel, Federal Register page 

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 unnecessary 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 previously 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 principles 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 manufacturing.

D. Definition of Processing, Federal Register pages 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 definition 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 § 129 versus § 112 regulation). Many materials are not 

only similar to “traditional 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 not 

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/ingredients 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 processing 

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 nonwaste, 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 nonsolid waste fuels, or there should at least be a subcategory for whole tires 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 TDF 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 acknowledging 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 metal 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 efficiently 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 20% 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 

process 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 metal 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 if 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 as 
Page 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 

emissions, such as greenhouse gases, particulate matter, NOx, SO2 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 sufficiently 

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 

materials 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, rather 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 existing 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 

processed. 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 removal 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 they 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 removed 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 for 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 the 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 standard 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 the 
Page 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 transport 

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 

contaminants 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, 

the 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 Creosote is a coal tar oil derived from the distillation of coal tar. Wood timbers are 

typically treated with creosote for 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 3400o

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 

from 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 common “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 thicknesses 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 other 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 of coal from this database:

 32 Recycling 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

Maximum 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 landapplication of sludge due to contaminate build-up. So cement kilns should be the logical 

destination for positive use of a material which would otherwise become an increasingly 

challenging disposal issue.

There are examples where cement kilns are using sewage sludge in the cement 

manufacturing process. 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 NOx control, and that material has no significant heating 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 comparable to many alternative fuels. We 
Page 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 the health of humans 

and animals.

• If agricultural land is flooded, frozen or covered with snow, biosolids 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 beneficially 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 page 31868.

EPA solicits comment on whether the use of CCRs is primarily used for their 

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 of CCRs that are being used for purposes of fuel rather than ingredients and 

should be handled as such if this distinction is so key to the final regulations. 

H. Coal Combustion Residual Contaminant Changes, Federal Register page 

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 the 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 also 

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 addressed 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 emissions. 

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 sustainability goals of industry, EPA, or industry.

I. Levels of Contaminants in Fuels, Federal Register page 31872.

EPA requests comment on comparing the level of contaminants in alternative 

fuels to traditional fuels. 

PCA contends that this comparison is not necessary 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 Clean Air Act 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 fuels they use are 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/or 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 between 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 EPA 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 rate. 
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 fuel 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 manufacturing 

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 facility that conducted the assessments, this action 

demonstrates that the operations reflected protection of human health and the environment. Therefore, 

we believe that adding a Solid Waste driven regulation that adds complexity to the rules already in place 

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 notification 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 in 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 receiving materials from generators 

do not have sufficient incentive to manage the materials as useful products (page

31875). EPA also points to over-accumulation of materials by middlemen who 

may also lack incentive. 

With materials which are sent directly 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 material 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 alternative 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 proposed rule, in fact, EPA 

quotes from a recent D.C. Circuit opinion stating that a secondary material “transferred to 
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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, Federal 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 as examples. 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) notes, “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 42951-42956).

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 California). 

In addition, tires 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 has 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 TAC 328.55) before any collection, storage, transportation or 

processing of used or scrap tires may take place. Transportation of used and scrap tire is under a 

manifest and detailed records retention system (30 TAC 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 not 
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allowed disposal in a landfill (Reg 14.704, 14.708 and 14.1301). It is illegal to dispose of whole 

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). 

Recordkeeping 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 

Administrative 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 or 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 rules 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. Landfilling 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 NOx control technology. As an example, Tennessee has 

incorporated using TDF for NOx control into their NOx 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 Pennsylvania report35

 34 Scrap Tire Laws and Regulations. Scrap Tire News Legislative Report data as it appeared in 2010 Scrap Tire and 

Rubber Users Directory. Included as Attachment I.

(Attachment J) describes 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 

longer 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 Modified 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 designated “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 

“discarded” 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, 

“processing” 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 and 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 

collected 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 sized 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 prescribed 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 page 6, Section 4 of our comments to the 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 previously 
Page 56 of 72

discarded non-hazardous secondary materials would 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 used tires undergo various processing 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 for 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 simply 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 page 31878-31879.

EPA further requests comment with respect to processing regarding the selfimplementing approach versus a determination approach, and whether a general 

rulemaking provision should be available for EPA to evaluate various processing 

activities generally versus on a site-by-site basis. 

 36 Rubber Manufacturers Association, Scrap Tire Management Counsel: 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 understands this rule applies to multiple types of 

combustion devices but the fact is 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. The 

amount 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 NHSMs are already 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 have 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 NHSMs are either already shredded or they are

sized 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 typically 

shredded and as bulk materials, they are good fuels. In addition, there are carmanufacturing by-products like trunk liner trimmings, bumper trim remnants and 

packaging materials that are shredded and ready for use as fuels. Finally, off 

specification 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 NHSMs

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 

separate 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 pollutant 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 

eliminates 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 defining 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 impact on human health or the environment, thus the industry considers 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 sufficient value to the TDF product to make it a legitimate "fuel product". 

•
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• In the preamble EPA discusses other NHSMs and what constitutes "sufficient 

processing". In particular, a discussion of scrap metal describes that “baling” or “sorting”

of scrap metal 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 shredded 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. 

Construction and pallet wood are two other specific examples of materials that could be 

considered 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 should) 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 prerequisite 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 states to provide in their Title V 

programs 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 implementable at the state 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 represent 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. Although 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 nonwaste 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 acceptable 

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 it 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 intent 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, working 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 page 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 (NHSM) 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. Due to 

natural variability in naturally occurring 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 times when an alternate 

material is used less, depending 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 being 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 cement. 
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 NHSMs are generated after long periods of 

accumulation and may be 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) must 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 generated 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 generated 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 trickled 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 accumulating 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. There are existing regulations for fugitive air 

emissions and stormwater 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 page 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 lead 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 piles 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, but also 

to the following areas:
Page 61 of 72

• quarrying

• raw material, and intermediate and final products (clinker, portland cement) processing

• fuel processing

• storage of raw materials and fuels (including alternatives), intermediate and final 

products (clinker, portland cement)

• transportation/conveyance of raw materials and fuels (including alternatives), and 

intermediate and final products (clinker, portland 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 OOO, 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 requirements. 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 industrial 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 the state authorized permits are based on the previous 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 silos/ 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 stormwater 

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 facilities 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 into 

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 that 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 described 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 beneficial 
Page 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 thus 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 community. 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, Federal 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 explained above, the industry cannot afford to 

jeopardize our product by using alternate materials 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 

fuels 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 burned – 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, yielding environmental benefit. Emissions generated by such use are controlled 

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 value 

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 Btu 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-industrial 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 guidance 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 ingredients 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 considered 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. Based on 

stack testing data and risk assessments 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 testing 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 naturally 

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 fuels 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) and stack testing to determine how much of these POHCs are then 
Page 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 

incinerability 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 organic 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 standard. 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 show 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 diminished 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 for 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, since 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 manufactured 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 required 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 unacceptable health risks associated with the facility emissions as 

documented by the facilities receiving final permits

 37 70 Fed. Reg. 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 environment. 

The concept of comparative contaminant concentration is inappropriate as applied to nonhazardous 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. Similarly, 

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 impractical (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 replace 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 protection 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 approach 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 duplicative 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-case 
Page 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 page 31883.

EPA requested comments on basing a comparison on total constituents, and the 

definition 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 to the regulated community. As described above, we do not believe that a 

comparison of constituents is appropriate. Further, criterion 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 “comparable” in its definition (75 Fed. Reg. 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”, “higher” or “lower.”

Furthermore, EPA attempts to justify the criterion for contaminant levels in the description of 

legitimacy criteria (75 Fed. Reg. 31882). In the text, EPA states that establishing such a criterion is 

necessary to ensure that the non-hazardous 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 numerous 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 and 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 because 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 emissions. 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 consistently 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 focus 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 industry 
Page 67 of 72

emissions 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 nonhazardous 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 manufacturing. 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 this applies to fuels as well as ingredients, for (unlike boilers) in a portland 

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 material 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 

material 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 the material components is dependent on the manufacturing or equipment type. For 

example, as the cement industry utilizes major raw material constituents and minor constituents to 

manufacture quality 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 contribution 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% 30 – 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 page 31885.

EPA requests comment on establishing a comparison 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 permitted 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 Congress 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 identify 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 sustainability 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 is 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 materials 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. single 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 variability 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 presented. 
Page 69 of 72

As expressed throughout PCA’s comments, we do not agree with EPA’s approach to use 

the Solid Waste 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 to 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 

alternative 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 critical 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 antireuse/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 purport 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 portland 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 use 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 tires in portland cement 

kilns);
Page 70 of 72

c. Delete the “legitimacy criteria” at least as applicable to portland 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 working 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

LIST 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 Earthjustice 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

Attachment 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 Yearbook 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 Fuels, 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, Boulder 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, Office 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 District, Rule 1161(C)(1)(a)(iv), 

Portland Cement Kilns.

Attachment W Proposed Rulemaking, 25 PA. Code Chs. 121, 129 and 145, Control of NOx

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 Materials 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 

Made 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 TNRCC 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, available at 

http://www.energyjustice.net/tires/files/scrapchn.html

Attachment GG Report on Sustainable Manufacturing, PCA, 2009
 

PORTLAND CEMENT ASSOCIATION 

ATTACHMENT 4 
ATTACHMENT 4 

THE PROPOSED MONITORING REQUIREMENTS ARE PROBLEMATIC AND 

NEED TO BE RECONSIDERED 
Table 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 Reference 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 Specification 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 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............................................................................................ 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 promulgate Performance Specifications 

and Quality Assurance procedures for BLDs as it has for COMS 

and all other CEMS.................................................................................. 27 

4. Appropriate design and performance specifications 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 .............................................................. 28 

5. EPA should remove the requirement that the BLD should activate 

an audible alarm....................................................................................... 28 
Table 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 Europe and other countries does not 

constitute a valid basis for application 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 ..................................................................................................... 32 
 

I. Mercury Monitoring Requirements 

EPA has inappropriately specified undemonstrated and unproven continuous compliance 

monitoring provisions for the proposed mercury standards without considering the limitations of 

the proposed monitoring methods or the differences 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 standards 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 systems as installed on cement plants, 

• provided no analysis to demonstrate that the 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, malfunction, or "out-of-control" periods, and 

• provided no consideration of the allowed measurement bias for mercury CEMS or 

sorbent tube monitoring programs on the achievability of the emission standards. 

EPA must consider the measurement variability, bias and measurement system 

limitations of the proposed compliance demonstration method and the relationship of these 

factors to methods used to acquire data for standard 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 Methods 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-and-see mode as far as Hg CEMS are concerned. Prior to the rule 
 -2- 

being vacated, approximately 650 continuous mercury 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 cancelled, but clearly, most utilities 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 are 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 released by NIST in July 2009. The major vendors of Hg 

CEM are just now advertising NIST-certified calibration sources. Therefore, none of the Hg 

CEMs that have been previously installed are certified. 

NIST does not currently directly certify oxidized mercury calibrations. The Interim EPA 

Traceability Protocols now in place provide for certification of evaporative 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 calibration 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 elemental mercury. The elemental 

mercury vapor is passed over a heated catalyst and mixed with chlorine gas to convert the 

elemental mercury to oxidized mercury. It should be noted that this calibrator is not 100% 

efficient. However, prior to CAMR being vacated, EPA had eliminated the language that 

required a very high conversion (Hg0 to Hg2+) efficiency for the calibrators (>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 Industry – 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 difficulty in getting them to work and keeping them 

working. The EERC is currently working with one plant that has been trying to get a monitor 

operating consistently since the spring of 2007. During 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. The 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 highly 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 experience at this plant is somewhat extreme, it 

is not the only plant that has problems. 

Another example was at the Lewis & Clark Station in Sidney, Montana. 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 system passed the relative accuracy test audit 

(RATA) and began producing good data. They started with "a game cube"-type probe system, 

but in a 3-month period, they have had to replace them twice. Other problems that have occurred 

at the Lewis & Clark Station include severe plugging and destruction of O-rings. In addition, 

there have been problems associated with the heated umbilical line that transfers the mercury 

sample from the stack to the analyzer in the control room. After 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, this 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 pounds. The Lewis & Clark 

Station has also experienced problems with short mercury lamp life in its instrument. 

Other plants have also reported similar experiences in vendor user group meetings. Based 

on personal discussions with several large power companies, because of these problems and 

others like it, they have 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 stacks 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 developed different probe systems, such as 

ThermoScientific's so-called "Game Cube" for these 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, these parts of the analyzer are required to 

be made of very expensive Hastalloy to withstand 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 after 1 month in a wet acid stack showing substantial 

corrosion. These probes were made with 316 stainless steel. If the flue gas/water entering the 

stack is basic in nature, corrosion is not as much of a concern. However, under these conditions, 

substantial buildup of solids occurs around the probe and stinger that can make it almost 

impossible to remove the stinger from the sample 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 their increased use it is likely that 

many of these same problems with Hg CEMS potentially 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 oxidized Hg NIST calibration source. 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 form). However, there is a discrepancy between the 

oxidized and elemental mercury calibrators of about 7% in both the Tekran and 

ThermoScientific instruments. The cause of this discrepancy is still unknown. 

4. Data Output Requirements 

Both the Tekran and ThermoScientific monitors were designed to measure mercury on a 

wet basis at 20°C because CAMR required the mercury be reported on a wet basis. The same 

approach would be applicable in the cement industry because the effluent flow rate must be 

measured on a wet basis. There is no need for dry basis measurements and language in the 

Subpart should be included to provide an exemption from this requirement for cement plants or 

PS 12A should be revised. 

A commonly used practice in the cement industry 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 basis, 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 option that a continuous 

water vapor monitor be incorporated with the Hg CEM. Changes to the instrument design will 

be based entirely on how the vendors perceive the market for their instruments: cement industry 

demands versus those of the utility industry. The 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 needs to be clarified by EPA. 

5. Hg CEMs Compared to Reference Methods for Mass Balance 

Calculations 

Under the proposed rule, the MACT floor was 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 using 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 assumption 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 purchase and to maintain. An estimated cost is 

shown in Tables 4 and 5. These costs were developed 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 included in the tables below. Assuming Hg CEMs were 

to be installed on all cement kilns (167) for non-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 sampling and analysis is based on EPA's own 

conclusions about monitoring costs, lacks any technical 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 best 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 considered in addition to cost such as: the reliability 

of the monitoring approach, risk of data loss, ability to adapt existing plant-specific feed and fuel 

monitoring programs to include sampling for mercury, etc. 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 dust 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 choosing this option in conjunction with solid material sampling to 

determine total mercury input would subtract the documented mercury removed to demonstrate 

compliance with the mercury standards. The optimal sampling location and approach must be 

determined on a site-specific basis. For example, while frequent sampling and compositing of 

baghouse dust during in-line mill off would be very 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, sampling methods, sampling frequencies, compositing 

procedures, sample preservations, analysis procedures, 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 should be consistent over 

time. 

Similarly, sources with add-on controls should be allowed to implement material 

sampling and analysis procedures to quantify the mass of mercury removed and subtract the 

documented mercury removed to determine compliance with mercury standards. For example, 

sources with wet-scrubbers for SO2 removal may be able to demonstrate mercury removal by 

sampling and analyzing the scrubber sludge at the point it is removed from the process or 

disposed. Again, site-specific sampling and analysis protocols would 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 evaluated 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 performance of these measurement 

systems and the adequacy of the technical specifications cannot be 

determined.

EPA is requiring mercury CEM having undertaken no investigation or field studies 

assessing the technical performance of mercury CEMS at cement plants. Accordingly, EPA has 

no basis to accept the proposed mercury CEMS performance specifications and quality assurance 

procedures (as well as anticipated mercury CEMS performance) as they are based entirely upon 

speculation. EPA should undertake the necessary technical investigations, identify the 

monitoring problems, develop solutions, and then re-propose its mercury monitoring 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 cement 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) demonstrate 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 mercury 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 basis. 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 mercury CEMS problems are not resolved for the 34 monitors in 

Germany. He states: 

"Due to tremendous efforts that have been undertaken by the German cement 

industry over the last years, 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 monitoring of mercury as a best available 

technique (BAT) for the cement industry. This is a clear statement made in the 

revised BREF document." 

Martin Oerter provides a journal article describing many of the problems previously encountered 

(including major cross-sensitivity due to SO2 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 Manufacturing, 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 Commission7

 includes important statements about the status of mercury CEMS in 

"Chapter 1 Cement Industry," "1.7 Conclusions and recommendations," 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 according to the European standard EN 14181 

is a challenge. In the case of mercury CEMs, 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 order to make general quantitative 

statements on the continuous measurement of mercury emissions." 

• "The ongoing research process should be followed and investigations should be made in 

terms of improvements and further developments. 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 order to make general quantitative statements 

on the continuous measurement of mercury emissions." 

These statements clearly indicate there is much work 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 procedures that are necessary to maintain acceptable 

performance. 

Mercury CEMS operating in Germany are subject 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 manufacturers, 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 nor offers any detailed analysis of actual CEMS operation and 

quality assurance data and offers no valid comparison of the applicable technical requirements. 

Therefore, direct comparisons between the German mercury CEMS program and that proposed 

for U.S. cement plants cannot be made. 

e. EPA should not revert to 2004 CEMS performance specifications 

and should not require any specifications that are more restrictive 

 

7

 This document reflects an information exchange carried out under 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 industry 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 Rule. These efforts were critical in the 

development and subsequent revision of the technical 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 comprehensive and up-to-date set of specifications for Hg 

CEMS and are consistent with current measurement 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 mercury CEMS at all facilities, including cement 

plants. EPA provides no technical justification for these actions and appears to ignore the 

comments and results of subsequent rulemaking. 

f. After field validation, and promulgation 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 for purchase, installation and startup of CEMS and a one-year trial implementation period before 

requiring the use of monitoring data 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 certified elemental mercury gas generators to the 

levels required to monitor kiln and kiln/in-line 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 and installation of mercury CEMS or STMS. 

It is expected that the capital cost for purchase and installation of a single mercury CEMs 

alone will be in the range of $300,000 – $500,000 (depending on type selected), and that start-up 

and certification of the CEMS will be very costly. 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 with dilution extractive 

monitors) and manufacturers have 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 continuously 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 downstream of wet scrubbers in the presence of water droplets, 

gypsum and cement residue; 

• monitoring very low concentration levels of reactive condensable 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 establish detailed performance specifications or 

QA requirements for these CEMS. There is no legitimate 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 (including the 34 systems in Germany that 

supposedly provide "acceptable performance") are entirely undemonstrated and unproven 

for any use at Portland cement plants to demonstrate 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 monitor kiln emission at Portland cement plants. 

Furthermore, there have been no long-term trials of such systems at cement plants. As 

demonstrated in the well known multi-year Electric Power Research Institute (EPRI) Trimble 

County Hg CEMS test program, a variety of Hg CEMS (including those provided by European 

manufacturers) failed to meet the then applicable Part 75 Hg CEMS performance specifications 

and failed to operate reliably. The only monitors that are judged to have exhibited provisionally 
 -14- 

acceptable performance were the Thermo Fisher Scientific "Mercury Freedom System" and 

Tekran Hg Monitoring system. Only these two manufacturers have achieved any significant 

market share of the approximate 600 Hg CEMS purchased by the electric utility industry. Only 

these two manufactures participated in the EPRI and EPA field demonstration program to 

establish NIST/EPA traceability protocol requirements 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 appears to be the only viable technology. Both 

of these systems provide wet basis Hg measurements, are capable of operation in speciation 

mode to quantify both total Hg and HgCl2, 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 procedures that are described below. There is 

insufficient information to determine if the suggested procedures could be applied to other 

designs. Further, both of these manufacturers have elemental Hg and HgCl2 calibration gas 

generation systems that have been evaluated by EPA, NIST and evaluated extensively during 

field testing by the utility industry. 

In view of the lack of reliable information about Hg CEMS in EPA's docket, together 

with the evolving state of this immature technology, the PCA and its members reserve the right 

to amend and supplement these comments and provide 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 continuously monitor mercury. 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 proposed 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 averaging 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 account. 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 period not 24-hour blocks. 

EPA has proposed that CEMS would be installed and operated according to either PS12A or the vacated Part 75 procedures for adsorbent 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 certification 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 certification 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 worse) 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 portion of the plant operating time, 

c. Potential invalidation of Hg monitoring data when emissions exceed the span 

value, and 

d. Widely varying and inconsistent interpretations 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 provisions: (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 corresponding effluent gas flow rate (wet 

basis) should be used to calculate the wet basis Hg concentration that is equivalent to the 

emission standard for the operational conditions representing 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 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.” 

• 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 calibrations, as well as quarterly gas audits and 

system integrity tests. The span value will 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 that 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 during 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 demonstrated operating range 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 “direct calibrations” of the Hg analyzer bypassing the 

dilution module. (Because the Thermo and Tekran 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 would 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 for 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 and Tekran systems to verify periodically the 

performance of the elemental Hg calibration gas generator. See also EPA Interim Traceability 

Protocols for Elemental and Oxidized Hg Calibration Gas Generators.]) 

• The ability of the CEMS to quantitatively transport high concentration levels of oxidized 

Hg through the probe, filter, filter cake, sample 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 calibration gas standard at the sample probe, 

upstream of the PM filter. This high level system integrity test should be performed at a 

concentration approximating the maximum hourly 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 response 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 calibration 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 response but which will not affect the 30-day 

averages measured by the CEMS system and calculated by the DAS. This 

specification would be implemented by timing the duration of the HgCl2 injection 

and calculating the mass injected as the product of: the calibration concentration 

(μg/m3) x injection rate (m3/min) x duration (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 considered in establishing 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 audit (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 reference method following the procedures 

described in Procedure 5. 

The definition of “span value” must be changed, 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.” Alternatively, 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 LLL) 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 CEMS 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-number of site-specific ranges is neither practical nor possible. 
 -18- 

The PS 12A requirements at “6.1.1 Data Recorded Scale” are misleading, ambiguous and 

obsolete and should be replaced by a relevant specification for data recording 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 requirement from long past era of analog instrument 

outputs and chart recorders. It provides no useful direction relative for contemporary systems. If 

EPA requires specifications for the range, resolution, or other data 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. This raises the same questions as selection of the 

span value. More importantly, 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 Reference Gas Delivery System” are ambiguous, 

subject to interpretation, unlikely to be achieved 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 flow 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 results in small differences in the generated gas 

flow rate, but the EPA requirement allows no tolerance in the phrase “is the same.” Furthermore, 

certain quenching effects due to varying residual oxygen concentration for nitrogen dilution 

extractive CEMS have driven one equipment supplier to change its approach so that only the 

head space flow rate is varied (for a particular 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 techniques. If specifications to limit 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) generators is inconsistent with the procedures and requirements of the 

“Interim EPA Traceability Protocol for Qualification 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 levels,” 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 approximately the same (i.e., ± 20%) at each challenge 

level.” 

PS 12A Section 7.1 requires the use of NIST certified or NIST Traceable standards for 

both elemental Hg and oxidized Hg (HgCl2), which are not currently available, 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 standards for both elemental Hg and oxidized Hg. Hg CEMS 
 -19- 

designed to meet EPA’s technical requirements 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 compressed 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 project, 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 for Qualification and Certification of 

Elemental Mercury Gas Generators” dated July 1, 2009, as well as statistical procedures for 

calculation of uncertainty and standardized 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 certify the NIST Prime Generator, subsequently used by NIST to 

certify Vendor Prime Generators, subsequently used by Vendors to certify Reference Generators, 

that are ultimately used to certify User generators in the field. (Only Thermo and Tekran have 

certified Vendor Prime generators.) The entire NIST traceability is constrained by the exact 

concentration points established by NIST for the 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 anticipated 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 considered technically 

feasible by knowledgeable experts from both Tekran and Thermo. However, certification of the 

NIST Prime Generator at NIST will require modification of the ID-ICP-MS interface and/or 

development and validation of a new reference measurement. This work has not yet begun and 

will likely require at least several years to complete. 

b. “Interim EPA Traceability Protocol for 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 certified HgCl2 solutions, and (b) use of certified 

elemental Hg generators for those that convert elemental Hg to HgCl2. For the later type of 

generator, the effective range is again limited to 50 μg/m3 because of the concentration 

limitations for NIST certification of elemental generators. For evaporative 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 generator manufacturers are allowed to apply a software 

correction to account for bias. The work to resolve this issue has been discussed for several 

years, but at least several additional 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 integrity checks (suggested in 1 above) for kilns with in-,inline raw 

mills.), 

d. If EPA makes further substantive changes to the Interim Traceability Protocols or 

changes in the Final Traceability Protocols, all issues regarding the certification and use of the 

calibration standards must be revisited. Such changes 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 for Hg or alternatively, SO2 and NOx through 

concentration measurement traverses for those gases.” 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 stratification, especially because 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 criteria for what might constitute 

stratification, this is merely a suggestion, and subject to different interpretations. The three-point 

traverse required for the relative accuracy tests is sufficient to ensure that the reference 

measurements are representative of emissions and therefore stratification would adversely affect 

the RATA result and thereby, be detected. No further stratification testing is necessary and it 

should not be required. 

The PS12A criteria for the linearity test procedures are more restrictive than the Part 75, 

Appendix A criteria, are inconsistent with the uncertainty 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 reference 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 January 2008) for linearity checks specified that 

the measurement error be less than 10% of span at any level. These regulations also included an 

absolute specification which stated the results were acceptable if the difference between the 

average monitor response and the average reference value does not exceed 0.8 μg/m3. The Part 

75 Appendix A and B requirements for Hg CEMS are certainly the most comprehensive and upto-date set of specifications for Hg CEMS and are consistent with current measurement 

technology as reflected by their revision and publication in the Federal Register in January 2008. 

EPA offers no explanation or justification in proposing linearity test specifications that are twice 

as restrictive. 

The “Interim EPA Traceability Protocol 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 value, 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 having 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 Qualification 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 Traceability Protocol also allows a software 

adjustment to compensate for an unresolved discrepancy between elemental and 

oxidized Hg measurements. (Tekran currently applies a 9% correction factor and 

this is not reflected in the calculated 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 for 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 inconsistent with the uncertainty of 

calibration materials defined by EPA draft interim traceability protocols, and should be relaxed. 

PS12A, Section 8.4 requires challenging the entire 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 January 2008) for linearity checks specified that 

the calibration error be less than 10% of span, but for CEMS with spans of 0-10 μg/m3, an 

absolute tolerance of ± 1 μg/m3 was also applied. The Part 75 Appendix A and B requirements 

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 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 specify 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 cement 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 EPA 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 Standardization [Reserved] Quality Control procedures 

and Calibration and Standardization procedures must be considered 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 accuracy 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 measurement (RM) is less than 10 μg/m3, the relative 

accuracy must be no greater than 20%. Alternatively, if the mean RM is less than 5 μg/m3, the 

results are acceptable if the absolute value of the mean difference 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 specification applies when the RM is greater than 

10 μg/m3and is twice as restrictive as the Part 75 Appendix A and B specification at levels above 

10 μg/m3 The Part 75 Appendix A and B requirements 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 revision and publication in the Federal Register in 

January 2008. EPA offers no explanation or justification 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 periodic 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 components. The STMS will need to have additional 

components data handling components (among other things) that will differentiate it from 

Method 30B. Therefore a declaration that the STMS is simply 30B is greatly oversimplified. 

PS-12B differs from other performance specifications 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 spike trap requirement for daily use. 

Section 6.1.1. The substitution of three-section 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 problems 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 (see comments above), the procedure should allow 

the use of liquid standard spikes that are traceable to NIST. Section 6.1.3 Gaseous Hg0 Sorbent 

Trap Spiking System does not allow for liquid spikes. 

The liquid “spike” is the procedure used to prepare the calibration 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 calibration curve. Multiple repetitions at different mass levels 

comprise the “curve”. Therefore, 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 the 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 monitoring system’s performance over an 

extended period of time nor does it identify 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 selected. We agree that SO2 and NOx (as well as 

CO2) traverses are sufficient to indicate potential stratification. However, since PS12B contains 

no specific procedures for conducting stratification tests and no criteria for what might constitute 

stratification, this is merely a suggestion, and subject to different interpretations. The intent 

should be that the sampling location must be representative of the source Hg emissions. If a 

point of average Hg concentration can be selected 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 comparing 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 another reference method train. erefore, the RATA 

procedure should be deleted from PS 12B, and spike traps used to certify and evaluate the 

system. PS 8A is similar in that calibration 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 conducted 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 proposing 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 inconsistent with past regulations and data collection 

activities involving HCl and the cement industry. 

It is unclear why EPA has chosen 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 detection limit is about 0.2 ppm (v) wet and calibration 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 naturally 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 for existing plants which is equivalent to 

0.026 gr/dscf. Most well maintained baghouses and 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 new 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 need 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 continuous basis. EPA should be consistent in its 

units of the compliance standard for PM. 

EPA proposes that compliance with the PM limits 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 requires installation and operation of a Bag Leak 

Detector (BLD) and development (and submission 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, Procedure 2) as an alternative to the other PM 

monitoring requirements and solicits comments making the use of a PM CEMS a requirement. 

The proposed PM monitoring provisions appear to be based on an incomplete 

understanding and outdated knowledge regarding PM monitoring technology and approaches. 

There is no indication that EPA did anything other than reiterate previous positions without any 

technical investigation or evaluation. 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 inappropriate and inadequate for use under the 

varying effluent matrix and conditions, especially at kilns/in-line raw mills. EPA makes no 

mention of these issues and offers no relevant guidance. EPA continues to rely on a single 

outdated and inadequate guidance document applicable to a single BLD vendor and single fabric 

filter configuration/cleaning cycle that is not representative 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 discussions, the actual regulation, or under its 

review obligations relative to the National Technology Transfer 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 monitoring requirements for cement plants that burn 

hazardous waste (40 C.F.R. Part 63, Subpart EEE (2008)) thereby creating confusion and 

inconsistent requirements. EPA makes no mention of and includes no provisions to allow use of 

Particulate Matter Detectors (PMDs) as are allowed for both ESP and fabric filter controlled 

cement plants that burn hazardous waste under the promulgated requirements of Subpart EEE. 

By this omission, EPA eliminates options to use better PM monitoring practices that have 

already been promulgated for cement plants and demonstrated in practice. 

 

8

 "Office of Air Quality Planning and Standards (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 consider 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 encountered for kilns and kilns/in-line raw mills in 

order to address the applicability of particular instrument designs and the effects of crosssensitivities and measurement interferences. 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 installed on cement kilns or kilns/in-line raw mills. 

When such information becomes available, EPA should re-consider and re-propose its PM 

monitoring requirements. Until such information becomes available and legitimate technical 

evaluation is completed, all monitoring approaches 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, properly selected and applied specifically for 

cement kiln and clinker cooler systems, can provide a valid PM monitoring approach and can 

provide useful tools to indicate the need for inspection of a baghouse/fabric 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. EPA's proposed rule requires the development (and 

submission for approval) of a site-specific BLD monitoring plan addressing all of these issues. 

Yet EPA has provided no guidance on these matters and relevant validated procedures are not 

available 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 "triboelectric" or "probe electrification" or "charge transfer" devices) 

are unsuitable for use on kilns/in-line raw mills because the responses of these devices are 

proportional to the square or to the cube of the 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 investigated and evaluated for monitoring kiln and kiln/inline raw mills will it be possible for to develop appropriate technical requirements and quality 

assurance procedures for BLDs and site-specific BLD monitoring plans. 
 -27- 

2. The requirement to submit site-specific BLD monitoring plans to the 

Administrator or delegated authority should be removed. 

EPA has failed to provide technical specifications, installation procedures, 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 develop 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 technical requirements, criteria or guidance, then it certainly has 

no basis to review the site-specific plans for approval. With no established criteria or guidance, 

review by different regional offices or states as "delegated authorities" will likely result in 

different requirements, different interpretations, 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 sufficient that site-specific monitoring plans be 

available for review. The requirement to submit 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 developed performance specifications for BLDs such 

as those found in Appendix B of Part 60. Similarly 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 are 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 the device's detection limit, but there are no 

other quantitative performance requirements. Without adequate design and performance 

specifications for BLDs the measurement systems cannot be relied upon for their intended 

purpose by either the plant operator or the EPA and there is no consistent basis to evaluate 

expected performance, or actual performance of installed measurement systems. There is no 

initial basis to determine if an instrument is performing properly, and no basis to determine if it 

continues to perform acceptably on an on-going basis. 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 personnel. 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 share and quick sales by unscrupulous instrument 

vendors. 

4. Appropriate design and performance specifications 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 specifications 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 are such tests to be conducted? How are other 

factors that affect BLD response such as measurement principle, flow velocity, actual and 

aerodynamic particle size, particle size distribution, particle density, dielectric constants, effluent 

conditions, etc. taken into account in this certification? Are the tests to be performed for each 

instrument or a particular model? Is the certification a one-time test or must it be repeated 

periodically? Can the certification be based simply on the judgment of the instrument developer 

without conducting any tests at all? There are no means available to the cement plant operator to 

verify claims made by the BLD vendor or manufacturer regarding detection capability. Plant 

operators cannot be responsible for the design or performance of these systems and cannot be 

expected to able to determine the technical validity of vendor claims, especially where there are 

in effect no regulatory or technical requirements. 

Other than the previously discussed detection limit capability, the only explicit 

requirements are (a) that BLDs "must provide an output of relative PM loading," and (b) that the 

devices include an alarm system that activates above a preset (and qualitatively set and 

adjustable) alarm set-point. One might assume, (all other things and effects held constant) that 

the output of the BLDs should increase monotonically with increasing PM concentration. 

However, the output of "triboelectric" 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 temperature, effluent pressure, effluent relative 

humidity, ambient temperature, etc. All of these factors are likely to change 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 cannot be controlled by the operator nor are the 

changes known to the operator. Thus, the output of the BLD device is a qualitative indication of 

PM concentration. There is no limit or constraint to the effects of changing effluent velocity or 

other parameters known to affect the measurement output. 

5. EPA should remove the requirement that 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-of-date and applies to only one type of 

monitoring device and one type of fabric filter cleaning configuration. More general and up-todate guidance can be found in Appendix 2 to ASTM D7392-07 which applies to settling alarm 

levels for the full range of BLDs and fabric filter 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) requires the alarm to be activated when the system detects an 
 -29- 

increase in the "relative PM loadings" over the 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 reflect 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 incorrect as the sensitivity is not the range, and one should adjust the 

time constant not the averaging period. In addition, 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 service. These parameters are not necessarily 

directly related to "PM loadings" which in fact are not quantitatively measured by the BLD. 

Finally, the requirement that the BLD continuously record the output from the BLD using a strip 

chart recorded or data logger is overly simplistic and inappropriate. The BLD alarm is properly 

based on the very rapid analysis of variations in output intensity over very short time periods by 

internal micro-processors and permanently recording 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 provides 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 range of PM concentrations to establish an 

acceptable correlation (i.e., "calibration"), 

• accuracy and precision limitations of reference method at PM levels necessary to 

generate valid correlation, and 

• subsequent changes in effluent matrix and/or PM (i.e., particle size distribution, refractive 

index, particle density, etc.) that 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 the proposed emission limitation. 

EPA is well aware of the need to consider emissions variability over the full range of 

fuel, process, and APCD operation, including the maintenance periods required to maintain 

equipment performance at high levels, as well as the uncertainty associated with the compliance 

demonstration method in order to establish the appropriate emission limit, averaging period, and 
 -30- 

other components of an emission standard. Extensive efforts were undertaken 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. Similar efforts have been undertaken 

to develop other long term emission standards for other source categories. Even in the 

development of the proposed mercury standard for this rulemaking, EPA evaluated 30 days of 

data from 89 kiln systems. While 30 days of data cannot possibly characterize the full range of 

mercury emissions variability, it is at least a meager start. However, no such evaluation has ever 

been performed for PM standards. 

EPA encountered the various technical difficulties in their field studies conducted to 

develop the PM CEMS performance specifications. Similarly, the electric utility industry has 

continued to encounter these problems for PM CEMS installed under 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 compliance with emission standards. Each consent 

decree for operating units specifies periodic performance 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 concentrations. Cement plants 

operate over a narrow range of operation and there is no way to vary emissions by varying the 

process rate. Many cement plants will need to install high efficiency fabric filters (membrane 

coated bags) to meet the applicable emission standard. There is no means to vary the collection 

efficiency of the fabric filter and hence, no way to vary the PM concentration. Measures such as 

creating a hole in a bag or other 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 spiking PM has been developed. The correlation of PM CEMS, as 

further demonstrated by work in the electric utility industry, demonstrates that the PM CEMS 

correlations do not pass through the origin (i.e., "zero-zero"). For these reasons, there is no 

appropriate procedure to develop the PM CEMS correlation at many cement plants. (These 

issues at fabric filter controlled electric utilities with PM CEMS requirements required by 

consent decrees have necessitated attempts to spike 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 correlation is established through extensive testing, it is unknown for 

how long it will remain valid. Variations in limestone characteristics over the life of the quarry 

will certainly occur and will affect the PM emissions and characteristics. Variations in other 

feed components, fuels, process conditions and the 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 applications 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, 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. 

The basic PS 11 regression requirements are a correlation coefficient of ≥0.85, a 95% 

confidence coefficient of ± 10% of the emission standard, and a tolerance interval 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 emission standard. Rather than "bright line" 

compliance demonstrations, the variability associated with the correlation, renders the PM 

CEMS as only a general indicator of PM concentrations. Coupled with the uncertainties in 

measurement and quantification of the effluent volumetric 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 continuous 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 emissions are maintained below the applicable 

emission limit. 

4. The use of PM CEMS in Europe and other 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 Europe for many years. There is no debate 

that the light scattering, light transmission, and extractive beta attenuation instruments have a 

proven record of operation and can reliably measure the parameters that these devices sense. 

However, since all of these devices are inferential 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 (especially at low concentrations corresponding to the 

proposed emission limitations) and the uncertainty of the statistical 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 European monitoring standard (EN 14181) these 

uncertainties are explicitly considered. In contrast with the EPA approach, emissions are not 

considered to exceed the allowable limit until the lower bound of the confidence interval and/or 

tolerance interval exceed the emission limit. Furthermore, emission standards may contain 

different averaging periods requiring different levels of conformance. Finally, when a problem 

is encountered, the emphasis is on resolving the emission problem rather than direct enforcement 

and collection of financial penalties. All of these considerations place the European monitoring 

program in an entirely different regulatory context than the proposed PM monitoring in the 

United States. 

5. Monitoring PM emission concentrations downstream of wet scrubbers is 

not possible at cement plants. 

Monitoring locations downstream of wet scrubbers at cement plants are often observed to 

contain water droplets and during scrubber upsets will also contain gypsum slugs (very large 

particles often referred to as "mud balls.") Heated extractive systems (either Beta gage or light 

scattering are used at monitoring locations downstream of wet scrubbers at electric utilities. 
 -32- 

However, none of these devices can operate reliably in the presence of gypsum spray or very 

large particles. They will simply provide erratic non-representative data or completely fail to 

operate. Monitoring in the presence 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 consistent with the PC NESHAP (40 CFR part 63 

Subpart LLL) which are in units of lb/ton clinker measured on a continuous basis for new kilns. 

EPA has proposed a standard of 1100 ppm and 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 revision requires that new kilns install continuous monitors for NOx 

and SO2 with standards in units of lb/ton clinker. The lb/ton clinker values correspond roughly 

to in-stack concentration levels of about 80 ppm and 50 ppm for NOx and SO2 on a 30-day 

rolling average. 

It is unclear how there can be two completely 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 that 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 current performance testing requirements. PCA 

supports this proposal. 

EPA is also proposing to allow annual PM, HCl and opacity testing 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 pollution 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 the
Portland Cement NESHAP SSM Plan Outline

DRAFT Page 2 of 5

30th day following the end of each calendar half (i.e., January 30th and July 30th of each

year). For existing sources, these requirements 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, Clinker, 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 pollution 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, facility, 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. Procedures for affected facilities at Major 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 during SSM events or to resolve issues
Portland 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 6 
500 New Jersey Avenue, NW 

7th 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/Medical/Infectious Waste Incinerators (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 the 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 disastrous 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 held 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 authority 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 variability 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 factors 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 require 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 also 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 methodologies 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 implement 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 how 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 related 
3 

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