FREDRICK J. DINDOFFER 

FDINDOFFER@BODMANLAW.COM 

313-393-7595 

BODMAN PLC 

6TH FLOOR AT FORD FIELD 

1901 ST. ANTOINE STREET 

DETROIT, MICHIGAN 48226 

313-393-7579 FAX 

313-259-7777 

bodman ATTORNEYS & COUNSELORS 

January 17, 2013 

Ms. Lisa Jackson, Administrator 

Brenda Mallory, General Counsel 

Gina McCarthy, Assistant 

Administrator, Air and Radiation 

U. S. Environmental Protection Agency 

Headquarters 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Mr. George Czerniak, Acting Director 

Ms. Jane Woolums, Esq. 

Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief and 

Mr. John Summerhays 

Air and Radiation Division 

U. S. Environmental Protection Agency 

Region 5 

77 W. Jackson Boulevard 

Chicago, Illinois 60604-3590 

Re: Petition for Reconsideration of Appro?Jal and Promttlgation ~fAir Qttaliry 

Implementation Plans; Michigan; Regional Haze State Implementation Plan; Federal 

Implementation P/anfor Regional Haze, 

Docket Number EPA-R05-0AR-2010-0954, 77 FR 71533 (Dec. 3, 2012) 

Dear Madams and Sirs: 

Enclosed please find a Petition for Reconsideration of the above-captioned rule, 

submitted by St. Marys Cement, Inc. (U.S.) under 42 U.S.C. 7607(d)(7)(B). 

We would be happy to discuss this with you at your convenience. Please advise us 

of the next steps. 

Sincerely, 

Fredrick J. Dindoffer 

FJD/ndd 

Enclosure 

DETROIT TROY ANN ARBOR CHEBOYGAN DALLAS 
BEFORE THE UNITED STATES 

ENVIRONMENTAL PROTECTION AGENCY 

In re: 

ST. MARY'S CEMENT, INC. 

EPA Docket#: EPA-R05-0AR-2010-0954 

Petitioner 

Fredrick J. Dindoffer 

Nathan D. Dupes 

BODMANPLC 

61

h Floor at Ford Field 

1901 St. Antoine Street 

Detroit, Michigan 48226 

PETITION FOR RECONSIDERATION 

Telephone: (313) 259-7777 

Facsimile: (313) 393-7579 

fdindoffer@bodmanlaw. com 

ndupes@bodmanlaw. com 

Counsel for St. Mary's Cement, Inc. 

Dated: January 17, 2013 

Detroit_l266564_ 4 
TABLE OF CONTENTS 

INTRODUCTION .......................................................................................................................... 1 

EXECUTIVE SUMMARY ........................................................................................................... 1 

BACKGROUND ............................................................................................................................ 3 

ARGUMENT .................................................................................................................................. 6 

I. The Standards For Granting A Petition For Reconsideration ...................................... 7 

II. The SMC Letter Conclusively Demonstrates That The Charlevoix Facility Is 

Not BART -Eligible ............................................................................................................. 8 

A. The Standards For Granting A Petition for Reconsideration, Based On 

The SMC Letter, Have Been Met ............................................................................... 8 

B. EPA Should Have Independently Made A BART -Eligibility 

Determination ............................................................................................................. 11 

C. The MDEQ Letter Confirms That BART Requirements Do Not Apply, It 

Should Have Been Docketed, And It Forms An Independent Basis For 

Reconsideration .......................................................................................................... 15 

CONCLUSION ............................................................................................................................ 17 

Detroit_l266564_ 4 
INTRODUCTION 

St. Marys Cement, Inc. (U.S.) ("SMC") petitions the United States Environmental 

Protection Agency ("EPA"), pursuant to 42 U .S.C. 7607( d)(7)(B), to convene a proceeding for 

reconsideration of the following final rule: Approval and Promulgation of Air Quality 

Implementation Plans; Michigan; Regional Haze State Implementation Plan; Federal 

Implementation Plan for Regional Haze, Docket Number EPA-R05-0AR-2010-0954, 77 FR 

71533 (Dec. 3, 2012) (the "Rule"); and accordingly SMC requests that EPA determine that 

SMC's Charlevoix, Michigan plant ("Charlevoix Plant") is not subject to the requirements of the 

Best Available Retrofit Technology ("BART") provisions of the Clean Air Act ("CAA'') and 

associated emissions limits, and that EPA: (1) vacate the Rule; and (2) disapprove the portions of 

the Michigan SIP that sought to impose BART emissions limits on that facility. 

EXECUTIVE SUMMARY 

This Petition is being filed to protect SMC's substantive and procedural rights to 

challenge the application of BART emissions limits established by the Rule. 

Under the CAA and EPA's regulations, BART requirements only apply to a major source 

if it "was not in operation prior to August 7, 1962, and was in existence on August 7, 1977" 

["BART-eligible."] 40 CFR 51.308(e), 51.301; 42 U.S.C. 7491(b)(2)(A). It is this 15-year 

BART eligibility period that is the subject of this Petition. 

The Rule was signed on November 26, 2012 and published on December 3, 2012. More 

than five weeks earlier, SMC notified EPA that the Charlevoix Plant was not subject to BART 

requirements because the plant emissions sources had been reconstructed after August 7, 1977. 

This was reiterated to EPA at a meeting with George Czerniak, Acting Director of the EPA 

Region 5 Air and Radiation Division, on November 2, 2012. As suggested by Director Czerniak 

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this was confirmed again by a November 12, 2012 letter from SMC ("SMC Letter". See Exhibit 

A). EPA acknowledged this submission in the final Rule. (See, 77 FR 71537, n.1). After the 

Rule was signed, but before it was published, the Michigan Department of Environmental 

Quality separately determined that the Charlevoix Plant is not BART -eligible, and informed EPA 

of that determination in a November 29, 2012letter to EPA ("MDEQ Letter". See Exhibit B). 

EPA acknowledged that SMC had raised the issue of BART eligibility and placed the 

SMC Letter in the public docket for the rulemaking. However, EPA chose not to delay 

promulgation of the Rule. EPA's footnote in the final Rule states that it will carefully consider 

the BART eligibility question and take any action warranted. SMC is confident that EPA will do 

so. Unfortunately, any judicial challenge to the Rule must be filed within 60 days after its 

publication. EPA originally stated that it would be able to act on the BART eligibility question 

before the 60-day period ended. However, in later discussions, EPA stated that may not occur. 

Therefore, because the time deadline for seeking judicial review is quickly approaching, SMC 

seeks to protect is rights through this formal Petition for Reconsideration. 

EPA should convene a proceeding to reconsider and vacate the Rule because the BART 

eligibility issues were impracticable to raise before the close of the public comment period and, 

more importantly, because the issues raised are centrally relevant because they show that the 

EPA lacks authority to impose regional haze BART emissions limitations on SMC's Charlevoix 

Plant. 

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BACKGROUND 

On November 5, 2010, Michigan submitted a revision to its State Implementation Plan 

("SIP") to address the regional haze requirements under CAA section 169A (42 U.S.C. 7491) 

and under the EPA's Regional Haze Rule (40 CFR 51.308) See Document ID: EPA-R05-0AR2010-0954-0002.1 

Under the CAA and EPA's regulations, BART requirements only apply to a major source 

if it "was not in operation prior to August 7, 1962, and was in existence on August 7, 1977" 

["BART-eligible."] 40 CFR 51.308(e), 51.301; 42 U.S.C. 7491(b)(2)(A). It is this 15-year 

BART eligibility period that is the subject of this Petition. 

As required by EPA's regulations, Michigan identified a number of stationary sources 

within its border that it thought might be "BART-eligible." One of those sources identified in 

Michigan's SIP submission was SMC's Charlevoix Plant.2 Michigan then determined that the 

existing permitted emissions limits for PM, NOx, and S02 at the Charlevoix Plant represented 

BART emissions limits required by EPA's Regional Haze Rule. Accordingly, under Michigan's 

SIP submittal, SMC's current operations and emissions satisfied the BART limits that Michigan 

determined were appropriate. From a practical view, SMC therefore had no need or incentive to 

investigate the matter further. It was in compliance with the BART limits in Michigan's SIP 

submittal. 

On August 6, 2012, EPA published a proposed rule to approve in part Michigan's SIP 

revision, disapprove the revision in part, and to implement a Federal Implementation Plan 

I References to Document IDs throughout this petition are to identification numbers the EPA assigned to documents 

it placed on the public docket for the Michigan regional haze rulemaking. 

2 By its November 29, 2012 letter, MDEQ informed EPA that the listing of the Charlevoix Plant was erroneous. See 

Exhibit B. 

3 

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("FIP") that would, among other things, set much more stringent BART emissions limits for 

SMC's Charlevoix Plant. 77 FR 46912. The proposed rule established a month-long public 

comment period ending on September 5, 2012. !d. On September 5, 2012, SMC filed comments 

on the proposed rule and asked that they be placed in the public record, which they were. SMC's 

initial comments challenged EPA's technical decision to reject Michigan's BART determination 

for the Charlevoix Plant and also challenged EPA's proposed BART FIP emissions limits. 

On October 10, 2012, EPA and the MDEQ met with SMC at the EPA Region 5 

Headquarters in Chicago to discuss the BART matters addressed in the proposed rule, and then 

followed up that meeting with several exchanges of emails, written correspondence and several 

telephone conference calls. A further meeting was held among EPA, MDEQ and SMC on 

November 2, 2012 at the Region 5 Headquarters. SMC requested that all of that subsequent 

correspondence and related documents also be placed in the public record docket, which they 

were. See, e.g., Document ID: EPA-R05-0AR-2010-0954-0053. 

SMC came to the realization at the October 10 meeting and during a subsequent 

conference call on October 18 that EPA would not change its position on the technical matters of 

the BART standards. Accordingly, SMC reevaluated the situation from the beginning, including 

both technical and legal issues. Thus for the first time SMC focused attention on the BARTeligibility question, which required substantial time and effort both because SMC had only 

owned the Charlevoix Plant since 2005 and because the BART-eligibility time window required 

the location and analysis of records and MDEQ permit files from the 1960s and 1970s, many of 

which were not in SMC's possession. 

After a review of the plant records and files, MDEQ archived documents, and interviews 

with long-term employees, SMC concluded that the basic premise of both Michigan's proposed 

4 

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SIP revision and EPA's proposed rule were faulty. In fact, SMC determined that its Charlevoix 

Plant was not BART -eligible because it was a reconstructed source (as defined by EPA 

regulations) and the reconstruction began after August, 7, 1977 - outside of the BART -eligibility 

window. See 40 CFR 51.301; Appx. Y to Part 51. SMC informed EPA of its initial findings in a 

conference call on October 24, 2012. Then SMC reiterated its findings to EPA during a 

November 2, 2012 meeting with George Czerniak and others at the EPA Region 5 Headquarters. 

Director Czerniak encouraged SMC to provide any additional information on that issue to EPA 

promptly because the agency intended to issue the Rule very soon. Accordingly, within days 

SMC compiled its information and submitted its November 12, 2012 letter, which demonstrated 

that its facility was not BART -eligible. SMC reminded the EPA that it had previously agreed 

that SMC could supplement the administrative record by letter. SMC requested that the EPA 

accept the letter and exhibits as additional comments on the proposed rule, which EPA did by 

posting the comments on December 1, 2012. See Document ID: EPA-ROS-OAR-2010-0954-

0051. 

On November 29, 2012, the MDEQ sent to EPA (via U.S. Mail and electronically) a 

letter agreeing with the conclusions in the SMC Letter and confirming that the state of Michigan 

has itself reviewed the matter and determined that the SMC Charlevoix Plant is not BARTeligible. See Exhibit B. The MDEQ letter explained that previously the department had not 

analyzed the fact that reconstruction had occurred after the BART eligibility window had closed. 

To date, EPA has not entered the MDEQ Letter onto the public docket. As explained below, the 

MDEQ Letter should be entered by the EPA on the public docket. 

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Detroit 1266564 4 - -
Despite the SMC and MDEQ Letters, the EPA published its final Rule on December 3, 

2012 implementing a FIP for the Charlevoix Plant. 77 FR 71533. However, EPA included the 

following footnote with respect to the SMC Letter: 

EPA has had a number of meetings and discussions with SMC 

since proposing action on Michigan's regional haze plan and the 

FIP imposing BART limits on SMC and Escanaba Paper. On 

November 12, 2012, SMC electronically submitted additional 

comments in which it asserts that the Charlevoix plant is not 

BART -eligible because construction that took place at the plant in 

1979 constituted a "reconstruction" for BART applicability 

purposes. This issue was not raised in Michigan's SIP submittal or 

in SMC's previous written comments. Nevertheless, EPA will 

carefully review the new comments and take any action warranted. 

However, because it did not receive the comments until it was in 

the last stages of preparing this final action, well after the close of 

the comment period, EPA could not consider the comments in 

taking this action. 77 FR 71537, fn. 1. 

The effective date of the Rule is January 2, 2013. Petitions for judicial review of the Rule 

must be filed by February 1, 2013. This Petition is submitted within the time for judicial review, 

and accordingly it is timely. 

ARGUMENT 

As demonstrated by both the SMC and MDEQ Letters and their exhibits, neither the state 

of Michigan nor the EPA has the authority to impose BART requirements for SMC's Charlevoix 

Plant. Congress explicitly defined which sources could be subject to BART requirements and the 

Charlevoix Plant falls outside of the eligibility window. See 42 U.S.C. 7491(b)(2)(A). Because 

EPA docketed the SMC Letter and because the issue it raised is crucial to determination of one 

of the principal requirements imposed by the EPA's final rule, EPA acted arbitrarily and 

capriciously in failing to give a reasoned consideration of the SMC Letter before publishing the 

final Rule. The EPA also should have analyzed the BART -eligibility issue on its own because 

this was a key assumption underlying the final Rule. 

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The EPA should convene a proceeding to address this petition for reconsideration of the 

Rule .based on the objection raised in the SMC Letter because the objection is centrally relevant 

to the final Rule. The MDEQ Letter was transmitted to EPA after the Rule was signed, but 

before it was published in the Federal Register. The MDEQ Letter nonetheless should be placed 

in the public docket and considered by the EPA because it is of central relevance to the 

rulemaking. The standards for a petition for reconsideration have been met and the EPA should 

grant SMC's Petition. 

I. The Standards For Granting A Petition For Reconsideration. 

The CAA mandates that the EPA shall convene a proceeding for reconsideration where 

three requirements are met: 

(1) A person makes an objection; 

(2) It was impracticable to raise the objection during the period for public 

comment or the grounds for the objection arose after the period for public 

comment (but within the time for judicial review); 

(3) the objection is of central relevance to the outcome of the rule. 42 U.S.C. 

7607(d)(7)(B). 

The objections raised in the SMC and MDEQ Letters meet the requirements for granting 

reconsideration, as discussed below. Moreover, a petition for reconsideration of a final rule under 

the CAA may be used to challenge procedural errors committed by the EPA in the rulemaking 

process. See American Petroleum Institute v. Castle, 665 F.2d 1176, 1191 (D.C. Cir. 1981). SMC 

also challenges EPA's decision not to respond adequately to the SMC Letter and not to docket 

and respond to the MDEQ Letter. Procedural errors committed by the EPA during rulemaking 

warrant reversal of its action where "the errors were so serious and related to matters of such 

central relevance to the rule that there is a substantial likelihood that the rule would have been 

significantly changed if such errors had not been made." 42 U.S.C. 7607(d)(8). 

7 

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II. The SMC Letter Conclusively Demonstrates That The Charlevoix Facility Is Not 

BART -Eligible. 

By its November 12, 2012letter, SMC objected to the imposition of BART requirements 

for its Charlevoix Plant. After considering the SMC Letter, the EPA should have made a final 

determination that the Charlevoix Plant is not BART-eligible. 

A. The Standards For Granting A Petition for Reconsideration, Based On The 

SMC Letter, Have Been Met. 

The first statutory requirement for granting a petition for reconsideration is met because 

SMC objected to the imposition of BART-requirements and it is a "person" under the CAA. 42 

U.S.C. 7602(e). 

The second requirement for granting the petition is met because it was impracticable for 

SMC to raise the BART-eligibility objection within the 30-day time period EPA allotted for 

public comment on the proposed rule. Businesses have multiple tasks to perform and multiple 

regulatory requirements to meet. When a regulation is proposed that does not require significant 

new action or significant new investment, there is no reason to challenge it. Thus, when 

Michigan originally set BART emissions limits for the Charlevoix Plant in the Michigan SIP 

revision, SMC had no reason to investigate the facts implicating BART-eligibility for several 

reasons. First, the Charlevoix Plant already was satisfying emissions limits that the SIP proposed 

as BART limits for the Charlevoix Plant. Second, the BART limits stated in the Michigan SIP 

did not require SMC to install any new technological controls at the facility or to increase its 

expenses beyond what it already was incurring. It would have been irrational for SMC to expend 

resources investigating the issue because no operational savings would have resulted. Third, 

SMC was aware that other cement manufacturing plants that were of roughly the same vintage as 

the Charlevoix Plant had received BART limits approximately the same as those included in the 

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Michigan SIP for Charlevoix. Therefore, there was every reason to believe that the Michigan 

SIP revision would be adopted. After the EPA published its notice of proposed rulemaking 

("NPRM") on August 6, 2012 and for most of the short public comment period, SMC reasonably 

believed that the EPA was simply misinformed on the technical matters behind the BART limits 

EPA proposed to impose in a FIP. SMC believed that by educating EPA regarding the age and 

design ofthe plant, the feasibility ofthe proposed emissions controls, and the effectiveness ofthe 

existing control technology, EPA would come to understand and affirm Michigan's BART 

determination. 

In fact, it was not until the October 10, 2012 meeting with EPA (over a month after the 

conclusion of the public comment period) that SMC realized that EPA was not going to modify 

its conclusions on the technical aspects of the NPRM. SMC then investigated all aspects of 

BART relating to the Charlevoix Plant. This investigation included review of the historic 

records for the Charlevoix Plant, which was the first time SMC became aware of much of the 

history of the plant's construction, and its reconstruction in 1979. This required considerable 

time and effort given the age of the records, the need to retrieve records from the state of 

Michigan that SMC did not have, and the fact that SMC has only owned the Charlevoix Plant 

since 2005. 

SMC immediately identified historic plant information that showed the Charlevoix Plant 

likely was not BART eligible. This was brought to EPA's attention two weeks later in an 

October 24, 2012 conference call. SMC continued its review by obtaining MDEQ archived files 

that it did not possess. After SMC had analyzed the data, the records, andre-reviewed the BART 

eligibility regulations, it reiterated its findings to EPA during a November 2, 2012 meeting with 

George Czerniak and others, at the EPA Region 5 Headquarters. Director Czerniak encouraged 

9 

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SMC to provide any additional information on that issue to EPA promptly because the agency 

intended to issue the Rule very soon. Accordingly, SMC submitted its November 12, 2012 

letter. The SMC Letter is succinct, does not contain lengthy exhibits, and was submitted to EPA 

nearly a month before the EPA published the final rule. See Exhibit A. In light of the foregoing, 

it was impracticable for SMC to raise this objection during the public comment period. 

The third requirement for granting a petition - that the objection is centrally relevant to 

the outcome of the final rule - is self-evident. EPA impliedly already recognized this because it 

docketed the SMC Letter even though it was received after the public comment period. The CAA 

provides the following with respect to docketing comments in a rulemaking: 

Promptly upon receipt by the agency, all written comments and 

documentary information on the proposed rule received from any 

person for inclusion in the docket during the comment period shall 

be placed in the docket. The transcript of public hearings, if any, 

on the proposed rule shall also be included in the docket promptly 

upon receipt from the person who transcribed the hearings. All 

documents which become available after the proposed rule has 

been published and which the Administrator determines are of 

central relevance to the rulemaking shall be placed in the docket as 

soon as possible after their availability. 42 U.S.C. 7607(d)(4)(B)(i) 

(emphasis added). 

The SMC Letter was submitted to the EPA after the close of the public comment period. 

EPA understood that it was centrally relevant to the rule and placed it in the public docket. EPA 

has adopted this interpretation of the statute: 

This provision draws a distinction between comments and other 

information submitted during the comment period, and other 

documents which become available after the publication of the 

proposed rule. The former are docketed irrespective of their 

relevance or merit, while the latter must be docketed only if a 

higher hurdle of central relevance to the rulemaking is met. See 

EPA's Denial of the Petitions to Reconsider the Endangerment and 

Cause or Contribute Findings for Greenhouse Gases Under Section 

202( a) of the Clean Air Act ("EPA Endangerment Petitions 

Denial"), 75 FR 49561. 

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It cannot be seriously disputed that the facts and conclusions in the SMC Letter are 

centrally relevant to the outcome of the rule. 3 EPA has interpreted "centrally relevant" to mean 

that the objection "provides substantial support for the argument that the regulation should be 

revised." EPA Endangerment Petitions Denial, 7 5 FR 49561. The visibility section of the CAA 

gives the EPA and the States authority to impose BART requirements on a major stationary 

source "which is in existence on August 7, 1977, but which has not been in operation for more 

than fifteen years as of such date." 42 U.S.C. 7491(b)(2). As demonstrated in the SMC Letter, 

the Charlevoix Plant was reconstructed after August 7, 1977. And, according to EPA's 

regulations: 

The "in operation" and "in existence" tests apply to reconstructed sources. If an 

emissions unit was reconstructed and began actual operation before August 7, 1962, it is not 

BART-eligible. Similarly, any emissions unit for which a reconstruction "commenced" after 

August 7, 1977, is not BART-eligible." 40 CFR Part 51, Appx. Y, Section II(4) (emphasis 

added). 

Because the Charlevoix Plant is not BART-eligible, neither the EPA nor Michigan has 

the authority to impose BART emissions limits. It is difficult to conceive of a more centrally 

relevant objection to the final rule. All the requirements have been met to grant the petition and 

the EPA must "convene a proceeding for reconsideration of the rule and provide the same 

procedural rights as would have been afforded had the information been available at the time the 

rule was proposed." 42 U.S.C. 7607(d)(7)(B). 

B. EPA Should Have Independently Made A BART -Eligibility Determination. 

3 A complete analysis of the BART-eligibility issue is presented in the SMC Letter. See Exhibit A; Document ID: 

EPA-R05-0AR-20 10-0954-0051. 

11 

Detroit_l266564_ 4 
EPA appears to have taken the position that because it did not receive the SMC Letter 

until it had begun to finalize its final rule, it did not need to analyze and respond to the issues 

raised by the SMC Letter. That position is untenable because it is foreclosed by the statutory 

requirements. As discussed above, the CAA mandates that EPA convene a proceeding for 

reconsideration of a rule where the statutory requirements are met. There is no discretion 

involved. Those requirements have been met because SMC objected to the imposition of BART 

emissions limits, it was impracticable to raise that objection during the public comment period, 

and the objection is centrally relevant because if SMC is not BART-eligible, there is no authority 

under the CAA to impose BART requirements on SMC's Charlevoix Plant. 

The visibility sections of the Clean Air Act also impose an independent duty to respond 

to significant comments. Northeast Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936, 950 

(D.C. Cir. 2004) (interpreting CAA section 307(d)(6)(B)). Although these sections explicitly 

apply to comments submitted during the comment period, the EPA also should have responded 

substantively to the SMC Letter, which was docketed before the final rule was published and 

therefore determined to be centrally relevant by the EPA. The EPA's footnote in the final rule 

stating that it will consider the SMC Letter at some point in the future, after the rule becomes 

effective, does not discharge the agency's duty to "examine the relevant data and articulate a 

satisfactory explanation for its actions." Portland Cement Ass 'n v. EPA, 665 F.3d 177, 187 (D.C. 

Cir. 2011). 

Moreover, the SMC Letter presented the EPA with crucial new information that should 

have been considered before final action was taken. Agencies "have an obligation to deal with 

newly acquired evidence in some reasonable fashion * * * or to reexamine their approaches if a 

significant factual predicate changes." !d. Put another way, the EPA must "respond in a reasoned 

12 

Detroit_l266564_ 4 
manner to the comments received, to explain how the agency resolved any significant problems 

raised by the comments, and to show how that resolution led the agency to the ultimate rule." 

Navistar Intern. Transp. Corp. v. EPA, 941 F.2d 1339, 1360 (6th Cir. 1991). Based on the 

evidence put forward by the SMC Letter, the factual predicate for EPA's imposition of BART 

requirements on the Charlevoix Plant was changed -the plant is not BART-eligible in the first 

instance. 

The EPA also should have, sua sponte, examined in detail the BART -eligibility issue 

before taking action on Michigan's SIP submittal, irrespective of the SMC or MDEQ Letters. 

"EPA retains a duty to examine key assumptions as part of its affirmative burden of 

promulgating and explaining a nonarbitrary, non-capricious rule and therefore [] EPA must 

justify that assumption even if no one objects to it during the comment period." Appalachian 

Power Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998). In Appalachian Power, the court held 

that a statutory compliance date for a particular rule was clearly a key assumption for the rule 

that EPA should have examined regardless of what objections were offered during the public 

comment period. !d. The assumption that a source is BART-eligible and therefore potentially 

subject to BART emissions limits is likewise a key assumption underlying EPA's final Rule. 

Given the very specific definition of a BART -eligible source and EPA's detailed regulations 

explaining how to determine whether a source is BART -eligible, the EPA should have conducted 

its own investigation of the Charlevoix Plant's history to determine in the first instance whether 

there was authority to impose BART requirements. 

This is especially true where Michigan's SIP submittal did not provide any detail on its 

BART-eligibility determination for the Charlevoix Plant. See Document ID: EPA-R05-0AR2010-0954-0002. With respect to BART, the Michigan submittal stated "The DNRE 

13 

Detroit 1266564 4 - -
[Department of Natural Resources] identified 35 non-EGU facilities with a total of 84 emissions 

units within the state that were potentially subject to BART (i.e., BART-eligible) based on dates 

of installation and commencement of operations (see Table 1 in Appendix 9B)." Id. at 24. Table 

1 of Appendix 9B to the submittal lists purported BART-eligible sources in Michigan, but 

without stating any supporting facts. Id. Appx. 9B. There is no discussion of when the 

Charlevoix Plant went into operation, no discussion of the late 1970s reconstruction, and no 

discussion of the permitting history. There is therefore no way for the EPA (or anyone else) to 

make a reasoned determination on the basic question underlying the controls imposed - whether 

the Charlevoix Plant meets the specific definition of a BART -eligible source. The EPA erred 

when it failed to critically examine the BART-eligibility issue and the error is significant because 

had it not been made, there is a "substantial likelihood that the regulations would have been 

significantly changed." Kennecott Corp. v. EPA, 684 F.2d 1007, 1019 (D.C. Cir. 1982); see also 

42 U.S.C. 7607(d)(8). 

SMC recognizes that the EPA is under time constraints based on a consent decree 

entered in the case National Parks Conserv. Assoc. v. Jackson, 11-cv-01548, (D.C. Cir. Nov. 9, 

2011). Under that order, EPA was to sign a final rule by November 15, 2012 for Michigan's 

regional haze program. Nevertheless, the EPA has a duty to reconsider its rule where new 

information challenges the basis for the EPA's action. See Portland Cement Ass'n, 665 F.3d at 

187-188 (holding that deadline for rulemaking in settlement agreement not a justification for 

dispensing with the rulemaking requirements). In fact, EPA has altered and extended those dates 

when it believed such actions were appropriate. For example, EPA dispensed with the time 

limitations in the consent decree in this rulemaking by publishing the final rule after the 

November 15 deadline. The EPA also extended those time limits in the context of the Arizona 

14 

Detroit_l266564_ 4 
regional haze submittal. The consent order requires that the EPA take final action on the Arizona 

regional haze program by the same date as required for Michigan, November 15,2012. However, 

EPA did not take final action on the Arizona program until December 5, 2012. 77 FR 72512. The 

proposed rule on the Arizona program was published July 20, 2012 (outside of the consent 

decree window) and initially set the deadline for public comments at August 31, 2012. 77 FR 

42834. Later, the EPA gave notice that it was extending the public comment period to September 

18, 2012. 77 FR 45326. Moreover, the terms of the consent decree provide that the time 

limitations imposed may be modified by stipulation of the parties or by leave of the court. In 

short, the deadlines in the consent decree could have been extended to address this seminal 

BART -eligibility issue, and do not excuse EPA's failure to convene a proceeding to reconsider 

the rule. 

C. The MDEQ Letter Confirms That BART Requirements Do Not Apply, It 

Should Have Been Docketed, And It Forms An Independent Basis For 

Reconsideration. 

The MDEQ Letter lends further support for the fact that the Charlevoix Plant is not 

BART-eligible. See Exhibit B. As the MDEQ Letter states, Michigan has now determined that 

the Charlevoix Plant is not BART -eligible, based on a careful review of its files and the 

permitting history for the facility, which the state apparently did not review in making the 

original eligibility determination. It also is apparent from the MDEQ Letter that Michigan did 

not thoroughly analyze the NSPS requirements applied to the reconstruction of the Charlevoix 

Plant before making a BART -eligibility determination. Although the EPA has not entered the 

MDEQ Letter onto the public docket, it should be docketed by the EPA and forms an 

independent basis for granting SMC's petition. 

The MDEQ Letter should be docketed because it is centrally relevant to the final rule: 

15 

Detroit_l266564_ 4 
***All documents which become available after the proposed rule 

has been published and which the Administrator determines are of 

central relevance to the rulemaking shall be placed in the docket as 

soon as possible after their availability. 42 U.S.C. 7607(d)(4)(B)(i). 

The MDEQ Letter should be docketed under this statutory standard because it is crucial; 

it independently verifies the conclusions made by SMC in the SMC Letter and confirms that 

neither Michigan nor the EPA has the authority to impose BART requirements on the Charlevoix 

Plant. This is especially significant because the statutory structure of the Clean Air Act "giv[ es] 

the states broad authority over BART determinations." American Corn Growers Ass'n v. EPA, 

291 F .3d 1, 8 (2002). The states are tasked in the first instance with reviewing all potential 

BART-eligible sources and determining which of those sources are BART-eligible and subject to 

BART requirements.ld. at 5. 

The MDEQ Letter also provides an independent basis for reconsideration of the rule. 

Although not phrased as such, the MDEQ Letter is an objection to the EPA's proposed approval 

of the BART-eligibility determination, therefore the first statutory requirement for granting a 

petition for reconsideration has been met. See 42 U.S.C. 7607(d)(7)(B). More importantly, the 

second requirement is met because it was impracticable for SMC to raise this MDEQ 

determination as a basis for objection to the Rule during the public comment period, because this 

letter did not exist at that time. See id. MDEQ reviewed the SMC Letter and exhibits, then 

MDEQ reviewed its own files in detail when drafting its letter. See Exhibit B. MDEQ should 

have reviewed the plant history thoroughly before proposing to designate the Charlevoix Plant as 

BART-eligible, but it did not. The MDEQ Letter is the first concrete evidence that SMC has, in 

which MDEQ admitted that it had not made the BART-eligibility determination properly. 

Accordingly, that evidence could not have been provided until after the close of the comment 

period. 

16 

Detroit 1266564 4 - -
The third requirement for granting the petition is met for the same reasons as the SMC 

Letter- both documents demonstrate that the Charlevoix Plant is not BART-eligible because it 

was reconstructed outside of the relevant time window. See 40 CFR Part 51, Appx. Y, Section 

II(4). Because the plant is not BART-eligible, the BART requirements of section 169A of the 

Clean Air Act cannot apply. See 42 U.S.C. 7491(b)(2)(A). 

Alternatively, the CAA provides that granting reconsideration is not only required where 

the objection was impracticable to raise during the public comment period, it is also required 

where "the grounds for the objection arose after the period for public comment (but within the 

time for judicial review)." 42 U.S.C. 7607(d)(7)(B). Although the final Rule was not published 

until December 3, 2012, it was signed by the EPA Administrator on November 26, 2012. The 

MDEQ sent its letter to the EPA on November 29, 2012. Importantly, the MDEQ Letter stated, 

for the first time, that the MDEQ had made a mistake. It had not fully evaluated plant history and 

did not consider whether the Charlevoix Plant was "reconstructed" outside of the BARTeligibility time window. See Exhibit B. This fact and the other statements in the MDEQ Letter, 

which support SMC's position, arose after the time for public comment but within the time 

provided for judicial review of the final Rule. See 42 U.S.C. 7607( d)(7)(B). Upon receipt of the 

MDEQ Letter, the EPA should have held a proceeding for reconsideration and permitted SMC 

and others to comment on the MDEQ Letter. The EPA's failure to do so is contrary to the CAA. 

CONCLUSION 

The EPA's desire to finalize its Michigan Regional Haze Rule does not excuse ignoring 

information that undermines the authority to impose BART requirements on the Charlevoix 

Plant. The CAA mandates that the EPA docket the MDEQ Letter and convene a proceeding for 

reconsideration based on the SMC and MDEQ Letters. Moreover, EPA should have made its 

17 

Detroit 1266564 4 - -
own initial review to determine whether the Charlevoix Plant was BART-eligible. Based on the 

available evidence and its own regulations, the EPA should make a final determination that the 

Charlevoix Plant is not BART-eligible, and accordingly should vacate the Rule and should 

disapprove the portions of the Michigan SIP that propose to impose BART emissions limits on 

the Charlevoix Plant. 

Dated: January 17, 2013. 

Respectfully submitted, 

Nathan D. Dupes 

BODMANPLC 

6th Floor at Ford Field 

1901 St. Antoine Street 

Detroit, Michigan 48226 

Telephone: (313) 259-7777 

Facsimile: (313) 393-7579 

fdindoffer@bodmanlaw. com 

ndupes@bodmanlaw. com 

Counsel for St. Mary's Cement, Inc. 

18 

Detroit 1266564 4 - -
EXHIBIT A 
FREDRICK J. DINDOFFER 

FDINDOFFER@BODMANLAW.COM 

313-393-7595 

80DMAN PLC 

6TH FLOOR AT FORD FIELD 

1901 ST. ANTOINE STREET 

DETROIT, MICHIGAN 48226 

313·393-7579 FAX 

313-259-7777 

bodman AHOHNEYS & COUNSELOHS 

November 12, 2012 

Ms. Pamela Blakley, Chief 

U. S. Environmental Protection Agency 

Control Strategies Section 

Air Programs Branch (AR-18) 

77 West Jackson Boulevard 

. Chicago, Illinois 60604 

Mr. Douglas Aburano, Chief and 

Mr. John Summerhays 

Attainment Planning and Maintenance Section 

Air and Radiation Division 

U. S. Environmental Protection Agency 

Region 5 

77 W. Jackson Boulevard 

Chicago, Illinois 60604-3590 

Re: EPA Docket ID No. EPA-R05-0AR-2010-0954 

Supplemental Comments of St. Marys Cement, Inc. (U.S.) Regarding Notice 

of Proposed Rulemaking, Published at 77 Fed. Reg. 46912-46928, Dated 

Monday, August 6, 2012 

Dear Ms. Blakley, Mr. Aburano and Mr. Summerhays: 

As you are aware, St. Marys Cement, Inc. (U.S.) ("SMC") ftled comments to the 

above-captioned NPRM on September 5, 2012, asking that they be placed in the 

public record and be considered by USEPA in its deliberations concerning the 

referenced NPRM. 

Subsequently, on October 10, 2012, USEP A and MDEQ met with SMC at the 

Region 5 Headquarters in Chicago to discuss the BART matters addressed in the 

NPRl\tl, and then followed up that meeting with exchanges of email and other 

correspondence and a telephone conference call on October 24, 2012. Then, a 

further meeting was held among USEPA, MDEQ and SMC on November 2, 2012 

at the Region 5 Headquarters in Chicago. SMC requests that all of that subselJuent 

correspondence and related documents also be placed in the public record docket 

for this NPRM and be considered by USEP A in arriving at its final action on the 

matter. 

This letter is submitted to USEP J\. as further supplemental comments to the same 

NPRM to assure that the administrative record for this NPRlvl is complete. These 

c01mnents should be considered additional Lo and not in place of earlier comments 

DETROIT TROY ANN ARBOR CHEBOYGAN DALLAS 
Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief 

Mr. John Summerhays 

November 12, 2012 

Page 2 

submitted by SMC. During our conference call and meetings, USEPA agreed that 

SMC m.ay supplement the record in this way. 

Executive Summary 

As explained and demonstrated below, SMC's Charlevoix facility is not BARTeligible. Therefore, because the BART requirements do not apply to the subject 

facility, USEP A should take a final action on the subject NPRM which does both of 

the following: (1) Disapproves the portions of the Michigan State Implementation 

Plan (S1P) that sought to impose BART emissions limits on SMC's Charlevoix 

facility; and (2) Determines not to impose the proposed BART emissions limits 

under a federal Implementation Plan on SMC's Charlevoix facility. 

Discussion 

1. The BART requirements do not apply to the Charlevoix, Michigan 

cement plant- key dates. 

As we have discussed with USEPA previously, SMC acquired the cement 

manufacturing plant in Charlevoix, MI in 2005 frorn CEMEX. CEMEX previously 

acquired the plant from Southdown, which had purchased the plant from Medusa 

Cement Company. The following is based on a review of Charlevoix plant records 

and ftles, documents obtained from the state of Michigan, interviews of long term 

plant employees and the public record concerning the Clean Air Act and its 

regulations. 

A. BART -Eligible Sources under the Clean Air Act. 

On August 7, 1977, visibility protection provisions, requiring emissions lirnitations 

reflecting use of the Best Available Retrofit Technology (BART) were adopted as 

part of the Clean Air Act amendments. See, 42 U.S.C. 7401, ct seq. and particularly 

sections 7491 and 7492. Specifically, 42 U.S.C. 7491Q))(2)(A) required BART 

emissions limits for each major stationary source that began operation after August 

7,1962 and was in existence on August 7,1977, if that source might reasonably be 

anticipated to cause impairment of visibility in certain class I areas. Other sources 

(that came into existence outside of that time window) arc not BART-eligible. 
Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief 

Mr. John Summerhays 

November 12, 2012 

Page 3 

At 40 CFR 51.300 - 51.309, and at Appendix Y to those regulations, USEPA's 

regulations spell out how to determine if BART will apply to a particular source 

("BART-eligible"). In particular, as provided at 40 CFR 51.301, and in Appendix Y, 

"Existing stationary facility means any of tl1e following stationary sources of air 

pollutants, including any reconstructed source, which was not in operation prior to 

August 7, 1962, and was in existence on August 7, 1977, and has the potential to 

emit 250 tons per year or more of any air pollutant. In determining potential to 

emit, fugitive em1sswns, to the extent quantifiable, must be counted." 

Furthermore, the term "in existence" in that provision is defined as follows: "In 

existence means that the owner or operator has obtained all necessaty 

preconstruction approvals or permits requited by Federal, State, or local air 

pollution emissions and air quality laws or regulations and either has (1) begun, or 

caused to begin, a continuous program of physical on-site construction of the 

facility or (2) entered into binding agreements or contractual obligations, which 

cannot be cancelled or modified without substantial loss to the owner or operator, 

to undertake a program of consttuction of the facility to be completed in a 

reasonable time." 

Appendix Y to Part 51- "Guidelines for BART Determinations Under the 

Regional Haze Rule" explains these requirements in greater detail and provides 

several key examples to help in making the determinations. As stated at section I.C. 

of Appendix Y: "***The CAA requites only sources which were put in place 

during a specific 15-year time interval to be subject to BART. The BART provision 

applies to sources that existed as of the date of the 1977 CAA amendments (that is, 

August 7, 1977) but which had not been in operation for more than 15 years (that is, 

not in operation as of August 7, 1962)." Appendix Y also states: "Major stationary 

sources which commenced constJ:uction AFTER August 7, 1977 (i.e., major 

stationaty sources which were not "in existence" on August 7, 1977) were subject to 

new source review (NSR) under the PSD program. Thus, the August 7, 1977 "in 

existence" test is essentially the same thing as the identification of emissions units 

that were grandfathered from the NSR review requirements of the 1977 CAA 

amend1nents." 

More specifically, Section II of Appendi," Y describes a detailed three-step process 

to determine if a source is "BART -eligible". Step 2 of that: process is germane to this 

discussion. The entirety of Step 2 is quoted in Exhibit A to this letter. Importantly, 

the following portions of Step 2 make clear that a Reconstructed Source for 

which reconstruction began after August 7, 1977 is not BART-eligible. The 

following are significant quotes from that section of Appendix Y: 
Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief 

Mr. John Sunm1erhays 

November 12, 2012 

Page 4 

"What is a "reconstructed source?" 

*** 

"2. Under the regional haze regulations at 40 CFR 51.301, a reconstruction has 

taken place if "the fL'\.ed capital cost of the new component exceeds 50 percent of 

the fixed capital cost of a comparable entirely new source." The rule also states that 

"[a]ny final decision as to whether reconstruction has occurred must be made in 

accordance with the provisions of §§ 60.15 (f)(1) through (3) of this title." "[TJhe 

provisions of §§ 60.15(£)(1) through (3)" refers to the general provisions for New 

Source Performance Standards (NSPS). Thus, the same policies and procedures for 

identifying reconstructed "affected facilities" under the NSPS program must also be 

used to identify reconstructed "stationary sources" for purposes of the BART 

requirement. 

*** 

"4. The "in ope1·ation" and "in existence" tests apply to reconstructed sources. If an 

emissions unit was reconstructed and began actual operation before August 7, 1962, 

it is not BART-eligible. Similarly, any emissions unit for which a reconstruction 

"commenced" after August 7, 1977, is not BART -eligible." Emphasis supplied. 

Significantly, as demonstrated in the following section, the Charlevoix plant was 

reconstructed in 1978 and therefore is not BART-eligible. 

B. Facts of Operations and late 1978 - 1979 Reconstruction at 

Charlevoix. 

At some point in the 1960s, Medusa Cement Company established a cement 

making operation in Charlevoix Michigan. That plant manufactured Portland 

cement using what is referred to as a long, wet kiln cement manufacturing process. 

In a November 3, 1977 letter [See Exhibit B], Medusa filed a permit application. 

This was filed after the August 7, 1977 date on which BART eligibility ended. This 

letter asserts that the project should not be considered a "reconstruction" under the 

Clean Air J\ct regulations because allegedly the fixed capital costs of the project 

would not exceed 50% of the costs of a new facility. No supporting documentation 

is contained in MDEQ's file to demonstrate that to be true. As stated in the letter, 

Medusa was asserting that position in order to avoid having the plant be categorized 
Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief 

Mr. John Summerhays 

November 12, 2012 

Page 5 

as an "affected facility" under 40 CFR 60.15(a). While Medusa's purpose was not 

explained further, the only logical reason for Medusa taking that position would be 

that it hoped to avoid imposition of NSPS on the plant (See, 40 CFR 60.1 and 40 

CFR 60.60- 66.] 

The Permit Application [See Exhibit C] also contains several key points. It shows 

the following: 

a. The basic manufacturing process was being changed from a long wet 

rotary kiln to an in-line kiln system consisting of a dry process with a 

calciner (or flash furnace) and a shorter rotaty kiln; 

b. The production capacity was being nearly doubled from 727,200 tons 

per year (fPY) to 1,364,000 TPY; 

c. All of the major systems of the cement manufacturing process were 

being replaced or rebuilt; 

d. The cost of this in 1978 dollars was to be $49 million; arid 

e. The cost of air pollution controls for the systems was to exceed $14 

million. 

Actual Suwannee Plant construction Costs show Medusa's position was 

incorrect. In 2002, SMC constmcted an entirely new cement plant in Suwannee 

Florida, as part of a joint venture. The actual fixed capital costs of the Suwannee 

plant clearly demonstrate that Medusa's position was not correct. Attached, as 

Exhibit D, is a series of Spread Sheets that both summarize and then detail the costs 

of the Suwannee project. These do not include either the costs of land acquisition or 

quany costs. SMC submits this Exhibit D as "Confidential Business Information" 

and requests that this information not be made publicly available, because this 

would provide a competitive advantage to others in the industry. · 

REDACTED: CONFIDENTIAL BUSINESS INFORMATION 

The $49,000,000 cost of Medusa's project 

would have been more than enough to build an entirely new cement plant in 1978! 

Subsequent sheets in this exhibit show the detail underlying the summarized 

numbers. 
Ms. Pamela Blakley, Chief 

Mr. Douglas .Aburano, Chief 

Mr. John Summe.thays 

November 12, 2012 

Page 6 

The same conclusion is reached when the fixed capital costs of only the major plant 

components that comprise the Kiln Process are considered. The Kiln Process 

includes: Raw Material Transport; Raw Material Transport Bin System; Raw Material 

Grinding; Raw Meal Transport; Raw Meal Homogenization Storage; Prcheater/Kiln 

Feed Systems; Preheater/Kiln System; Clinker Transport and Storage; Coal 

Transport & Grinding; and Electrical & Insttwnentation .. A.s shown in the same 

summary sheet of Exhibit D, the fixed capital cost for the "Kiln Process" was 

in 2002 dollars; or nearly .. million in 1978 dollars. Again, the above 

numbers show that no matter how the $49 million spent by Medusa is viewed, those 

amounts _must have exceeded SO% of the costs of a new facility. 

·_Moreover, Medusa's goal was irrelevant in light of the fact that, despite Medusa's 

hopes to the contrary, the Staff Activity Report and the Permit as issued show that 

Medusa's position was rejected; and show that the underlying facts as set out in our 

correspondence, denmnstrate that the project was indeed a· "reconsttuction". In 

February 1978, the new Permit to Install was issued to Medusa by the state of 

Michigan. A copy of the Permit is shown in Exhibit C. Subsequent pages in the 

Permit show that, before construction, it was Revised on May 15, 1979. The 

Permit in fact contains several provisions that specifically refer to compliance. 

with the federal Clean Air Act requirements concerning standards for New 

Stationary Sources. Specifically, "Special Conditions" 12, 13, 14 and 17 all 

explicitly require emissions to comply with then applicable NSPS. 

Importantly, this demonstrates that the state did not accept Medusa's 

position that the project was not a "reconstruction". If the state had accepted 

that position, the question at issue would have been whether the project constituted 

a Major Modification under the CAA, 'and if so only the incremental increase in 

emissions potential would have been subject to New Source PSD review. However, 

the NSPS in this case were applied to all of the emissions from the plant. 

The MDNR Staff Activity Report supporting dus permit [See Exhibit E] further 

supports the conclusion that this was treated as a "reconstruction". It shows that, 

in the end, all of the emissions from the plant were required to be significantly lower 

than had been true before the reconstruction. In other words, this was not a case in 

whlch only the incremental emissions caused by the project were required to be 

controlled by BACT controls. 'NSPS were applied across the board. The Prevention 

of Sigruficant Deterioration (PSD) regulations were not explicitly referenced. 

However, it is clear that MDNR's staff considered the PSD requirements and 

concluded that all requirements had been satisfied. Pages 2 and 3 of that report 

make clear that (1) NSPS were applied (certainly a more than adequate substitute if 
Ms. Pamela Blakley, Chief 

Mr. Douglas Aburano, Chief 

Mr. John Summerhays 

November 12, 2012 

Page 7 

BACT otherwise might have applied); (2) all plant emissions will be lower than 

before the plant reconstruction; (3) dispersion modeling was performed that showed 

lower impacts on air quality (addressing any concerns with use of air quality 

increments); and (4) the report concluded-- "Based on our evaluation, staff is of the 

opinion that the installation of the proposed equipment will not have a significant 

impact on maintaining air quality standards nor cause substantial deterioration of 

the air quality." This is clearly a refetence to the "Prevention of Significant 

Deterioration" requirements of the Clean Air Act. Based on this analysis, MDNR 

determined that there would not be any such deterioration. 

Actual plant reconstruction began later, and ultimately the dry kiln replacement for 

the entire long wet kiln process was completed. The old plant was then shut down 

in October 1979. The new dry process kiln then began operation on December 17, 

1979. 

As shown in the Permit, the cost of the new dry process system was $49 million in 

1978. By contrast, as shown in the news article, attached as Exhibit F, the entire 

cost of the original wet process plant had been $25 million. Moreover, as shown by 

SMC's actual costs in Suwannee, the amount spent by Medusa in 1978 was enough 

to physically replace the entire plant. This project was a Reconstruction under the 

Clean Air Act, both because the entire plant was physically replaced and because the 

financial tests were met. Moreover, as noted, the Permit explicitly applied New 

Source Performance Standards of the Clean Air Act. 

Conclusion 

Based on the above, the SMC Charlevoix plant is not a BART-eligible facility. 

Accordingly, USEPA should take a final action on the subject NPRM which does 

both of tl1e following: (1) Disapproves the portions of the Michigan State 

Implementation Plan (SIP) that sought to impose BART emissions limits on SMC's 

Charlevoix facility; and (2) Determines not to impose the proposed BART 

emissions limits on SMC's Charlevoix facility under a federal Implementation Plan. 
Ms. Pamela Blakley, Ch.ief 

Mr. Douglas A burano, Chief 

Mr. John Summerhays 

November 12, 2012 

Page 8 

Please inform me if you have any questions. 

Sincerely, 

~f ~~,r;;c~ 

Fredrick]. Dindoffcr 

f<JD/ttv 

Enclosure 
EXHIBIT A 
Excerpt from Appendix Y to 40 CFR Part 51 -

Step 2 from Section II. "How To Identify BART -Eligible Sources" 

2. Step 2: Identify the Start-Up Dates of the Emission Units 

1. Emissions units listed under Step 1 are BART-eligible only if they were "in existence" 

on August 7, 1977 but were not "in operation" before August 7, 1962. 

What docs "in existence on August 7, 1977" mean? 

2. The regional haze rule defines "in existence" to mean that: 

"the owner or operator has obtained all necessary preconstruction approvals or permits 

required by Federal, State, or local air pollution emissions and air quality laws or regulations and 

either has (1) begun, or caused to begin, a continuous program of physical on-site construction of 

the facility or (2) entered into binding agreements or contractual obligations, which catmot be 

canceled or modified without substantial loss to the owner or operator, to undertake a program of 

construction of the facility to be completed in a reasonable time." 40 CPR 51.301. 

As this definition is essentially identical to the definition of "commence construction" as 

that term is used in the PSD regulations, the two terms mean the same thing. See 40 CPR 

51.165(a)(l)(xvi) and 40 CPR 52.21(b)(9). Under this definition, an emissions unit could be "in 

existence" even if it did not begin operating until several years after 1977. 

Example: The owner of a source obtained all necessary permits in early 1977 and entered 

into binding construction agreements in June 1977. Actual on-site construction began in late 

1978, and construction was completed in mid-1979. The source began operating in September 

1979. The emissions unit was "in existence" as of August 7, 1977. 

Major stationary sources which commenced construction AFTER August 7, 1977 (i.e. , 

major stationary sources which were not "in existence" on August 7, 1977) were subject to new 

source review (NSR) under the PSD program. Thus, the August 7, 1977 "in existence" test is 

Dctroit_J238489 _I 
essentially the same thing as the identification of emissions units that were grandfathered fi·om 

the NSR review requirements of the 1977 CAA amendments. 

3. Sources are not BART-eligible if the only change at the plant during the relevant time 

period was the addition of pollution controls. For example, if the only change at a copper smelter 

during the 1962 through 1977 time period was the addition of acid plants for the reduction of 

S02 emissions, these emission controls would not by themselves trigger a BART review. 

What does "in operation before August 7, 1962" mean? 

An emissions unit that meets the August 7, 1977 "in existence" test is not BART-eligible 

if it was in operation before August 7, 1962. "In operation" is defined as "engaged in activity 

related to the primary design function of the source." This means that a source must have begun 

actual operations by August 7, 1962 to satisfy this test. 

Example: The owner or operator entered into binding agreements in 1960. Actual on-site 

construction began in 1961, and construction was complete in mid-1962. 111e source began 

operating in September 1962. The emissions unit was not "in operation" before August 7, 1962 

and is therefore subject to BART. 

What is a "reconstructed source?' 

1. Under a number of CAA programs, an existing source which is completely or 

substantially rebuilt is treated as a new source. Such "reconstructed" sources are treated as new 

sources as ofthc time of the reconstruction. Consistent with this overall approach to 

reconstructions, the definition of BART-eligible facility (reflected in detail in the definition of 

"existing stationary facility") includes consideration of sources that were in operation before 

August 7, 1962, but were reconstructed during the August 7, 1962 to August 7, 1977 time period. 

2. Under the regional haze regulations at 40 CFR 51.301, a reconstruction has taken place 

if "the fixed capital cost of the new component exceeds 50 percent of the fixed capital cost of a 

comparable entirely new source.'' The rule also states that "[a]ny final decision as to whether 

reconstruction has occurred must be made in accordance with the provisions of§§ 60.15 (f)(1) 

through (3) of this title." "[T]he provisions of§§ 60.15(f)(l) through (3)" refers to the general 

2 

Dctroit_1238489 _I 
provisions for New Source Perfom1ance Standards (NSPS). Thus, the same policies and 

procedures for identifying reconstructed "affected facilities" under the NSPS program must also 

be used to identify reconstructed "stationary sources" for purposes of the BART requirement. 

3. You should identify reconstructions on an emissions unit basis, rather than on a 

plantwide basis. That is, you need to identify only the reconstructed emission units meeting the 

50 percent cost criterion. You should include reconstructed emission units in the list of emission 

units you identified in Step 1. You need consider as possible reconstructions only those 

emissions units with the potential to emit more than 250 tons per year of any visibility-impairing 

pollutant. 

4. The "in operation" and "in existence" tests apply to reconstructed sources. If an 

emissions unit was reconstructed and began actual operation before August 7, 1962, it is not 

BART-eligible. Similarly, any emissions unit for which a reconstruction "commenced" after 

August 7, 1977, is not BART-eligible. 

How are modifications treated under the BART provision? 

1. The NSPS program and the major source NSR program both contain the concept of 

modifications. In general, the term "modification" refers to any physical change or change in the 

method of operation of an emissions unit that results in an increase in emissions. 

2. The BART provision in the regional haze rule contains no explicit treatment of 

modifications or how modified emissions units, previously subject to the requirement to install 

best available control teclmology (BACT), lowest achievable emission rate (LAER) controls, 

and/or NSPS are treated under the rule. As the BART requirements in the CAA do not appear to 

provide any exemption for sources which have been modified since 1977, the best interpretation 

of the CAA visibility provisions is that a subsequent modification does not change a unit's 

construction date for the purpose of BART applicability. Accordingly, if an emissions unit began 

operation before 1962, it is not BART-eligible if it was modified between 1962 and 1977, so 

long as the modification is not also a "reconstruction." On the other hand, an emissions unit 

which began operation within the 1962-1977 time window, but was modified after August 7, 

1977, is BART-eligible. We note, however, that if such a modification was a major modification 

that resulted in the installation of controls, the State will take this into account during the review 

process and may find that the level of controls already in place are consistent with BART. 

3 

Detroit_ I 238489 _I 
EXHIBITS 
MEDUSA CEMENT COMPANY DIVISION OF MEDUSA CORPORATION 

LEE AND MONTICELLO CLEVELAND HEIGHTS, OHIO 

S. L. STILES VICE PRESIOENl' ~ ENOINEEf!ING 

November 3, 1977 

Air Pollution Con/rol 

NOV 0 8 1977 

Air Quality Division 

Michigan Department. of Natural Resources 

P. o. Box 30028 

Lansing, Michigan 48909 

Attention: Mr, Richard Johns 

Chief, Permit Section 

Subject: Application to the Air Pollution Control Commission 

Charlevoix Plant, Nichigan 

Gentlemen: 

2161371-4000 

MAIL. Ab0R£SS 

P.O. BOX 5668 

CLEV£LANO ~4101 

Attached per our discussions in your office on October 20, 1977 is an application in triplicate for our Charlevoix project and applicable Exhibit A 

materials in duplicate. 

In response to the question you raised at our October 20, 1977 conference 

regarding the Federal concept of "reconstruction" as defined in Section 

60.15 (b) of Title 40 - Code of Federal Regulations, we are submitting, as 

an attachment to this letter, a cost comparison in duplicate covering (a) new 

vs converted kiln and (b) new vs modified cooler. It should be noted that 

each cost comparison clearly demonstrates that the fixed capital cost of the 

converted kiln and cooler components does not exceed 50 per cent of the 

fixed capital cost that would be required to construct comparable entirely 

new kiln and cooler facilities. Therefore, the proposed conversion and 

expansion of our Charlevoix plant does not constitute "reconstruction" and 

the existing Charlevoix plant facilities which are the subject of this 

Application do not become "affected facilities" under 40 CFR, Section 60.15 (a), 

We again offer to provide a slide presentation on the converted Charlevoix 

process for the DNR Regional Engineers at their convenience. 

Thank you for your cooperation and the conference on October 20, 1977. We 

are available to meet again or provide further information for the application 

if necessary. 

Sincerely, 

).J.~ s. L. Stiles 

Vice President, Engineering 

SLS/mc 
EXHIBITC 
. '/ 

/ 

AIR QUALllY UlVlSIOH 

MICHIGAN DEPARTMENT OF NATURAL RESOURCES 

P.O. BOX 30028,.LANSING, MICHIGAN 48909 A1r Pollution Control 

A.PiGUCATit»> TO THE AIR POLLUTION cownoL COWI$SIOM 

l01 oulh&il)i.' lo con•lluc?, ;.,.~.,II ""' oh<W ·HUV 0 8 1977 

OM 

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EXHIBIT A-1 
SUPPLEMENT TO PERMIT No. 700-77 

Medusa Cement Company 

Charlevoix, Michigan· 

(Revised May 15, 1979) 

GENERAL COND11IONS 

1. Applicant shall demonstrate compliance with all Commis~ion rules and w\th all 

specific conditions of this permit prior to issuance of the Permit to 0perate. 

2. The restrictions and conditions of this Permit to Install shall apply to any 

person or legal entity which now or shall hereafter O'!ofl'l o.r operate the facilities for which this Permit to Install is issued. The Applicant shall 1mm€diately notify the Commission of such change in ownership or principal operator status 

of this facility. 

3. Act No. 53- Applicant shall notify any public utility of any excavation, tunr.eling and discharging of explosives or demolition of buildings which may affect 

said utility's facilities in accordance with Act No. 53 of the Public Acts of 

1974, being Sections 460.70\ to 460.718 of the Hichigar. Compiled Laws and comp1y 

with each of the requirements of that Act. 

4. Rule 21(4) - Trial operation of the equipment is permitted until the Commission 

acts upon the Permit to Operate. 

5. Rule 29(2) - Hot more than 30 days after completion of the installation, the 

Applicant shall apply, in writing, to the Commission for a Permit to Operate. 

Completion of the installation is deemed to occur not later than commencement 

of a trial operation pursuant. to Rule 21(4). Written application should be 

sent to: Chief; Permit UDit, Air Quality Division, Department of Natural Resources, P.O. Box 30028, Lansing, Michigan 48909. 

6. Rule 29(3b) - Operatfon of this facility shall not interfere with the attainment or maintenance of the air quality standard for any air contaminant. 

7. Rule 29(3d) -Operation of this facility shall not result in substantial deterioration of air quality. 

8. Rule 46 - Operation of this facility shall not result in the emission of an air 

contaminant which causes or will cause detriment to the safety, health, welfare 

or comfort of any person or which causes or will cause damage to property or 

business. 

9. Rule 21 -Applicant shall not reconstruct, alter, modify, expand or relocate 

this faci11ty unless plans, specifications and an application for a Permit to 

Install are submitted to and approved by the Commission. 

10. Approval of this permit does not obviate the necesstty of obtaining such permits 

or approvals from other units of government as required by law. 

11. Notification of any ~]function of process or control equipment resulting in 

, 'b!..,emissions in violation of the Cocrmission rules or of any permH cond1tions 

t.LRetf,~P should be rode to the District Engineer. Such notice should be Nde as soon ~t)-f,·l., ·~'- as possible but not l~ter than 9:00 A.H. of the next \>IOrking day. The notice ''v ~ shall include a program of corrective action and shall be confirmed in writing ~H1 ' 

(po.-\-r....\ to'.~._ ..,_!,_\,>'\...--- \,.,_~ 
Medusa Cement Company 

Permit No: 700-77 

Page 2 

SPECIAL CONDITIONS 

12. The particulate emission rate from the clinker cooler shall not 

exceed 0.10 pounds per ton of dry feed. This limit is based on 

the federal Standards of Performance for New Stationary Sources, 

40 CFR, Part 60, Subpatt F. 

13. The particulate emission rate from the dry process kiln and preheater shall not exceed 0.30 pounds per ton of dry feed. This limit is 

based on the federal Standards of Performance for New Stationary Sources. 40 CFR, Part 60, Subpart F. 

14. Federal Standards of Performance for New Stationary Sources limit 

visible emissions to an opacity of less than 20% for the dry process kiln and preheater and 10% for all other dry process sources as 

specified in 40 CFR, Part 60, Subpart F. ~~ 

~U The total sulfur dioxide emissions from the dry process kiln and ~ 

I 

i 

(jy)!J-; ::;:;---·preheater sha11 not exceed 250 pounds per hour. ;:;----1/IM-t 

Rules 51, 52 & 54 - Verification of partic~late and sulfur dioxide te/o~f ' 

emission rates by testing, at owner~s expense, in ac.cordance with Me4""• "'1 

17. 

Commission requirements will be required for operating approval. Stack testing procedures and the location of stack testing ports 

must be approved, in writing, by the Commission or its authorized 

representative. 

18. Applicant shall not operate this facility unless a program which 12 

describes the abatement measures and reporting procedures to be ~_:_~-"i undertaken in the event of an ESP malfunction has been submitted 

to and approved, in writing, by the District Engineer. 

19. All source operating data shall be kept on file and made available 

to the District Engineer upon request. 

20. The dry process kiln and preheater exhaust gases shall be discharged unobstructed vertically upwards to the atmosphere from stacks with 

maximum diameters of 6.5 and 11.0 feet, respectively, and at exit 

points not less than 225 and 323 feet above ground level, respectively. 

21. Applicant shall not operate this facility unless opacity monitoring 1nstrument(s) are installed on the kiln and preheater exhaust stacks. 

These monitors must conform to specifications outlined in 40 CFR, 

Part 60, Appendix B, Performance Specifications. A report on occurrences 

and conditions responsible for opacities in excess of the allowable 

limits of 20X shall be submitted, in writing, to the District Engineer 

on a monthly basis. 13 ~L'- ~.,_\\.-
\: 

Medusa Cement Company Permit No. 700-77 

Page 3 

MAY 1 5 1979 

22. 

23. 

24. 

25. 

25. 

27. 

28. 

Applicant shall not operate this facility unless a Malfunction· . , ~ --~ 

emission 

Abatement 

equipment limitation failures 

Plant to 

resulting 

prevent, 

has been 

detect, 

submitted 

in emissions 

and 

to 

correct 

exceeding 

and approved, 

malfunctions 

any applicable 

in writing, 

or ~ 

by the Commission or its authorized representative. 

Applicant 

maintaining 

shall 

aggressive 

not operate yard maintenance this facility and unless 

roadway 

a program 

stabilization~-~ 

for ~ ~ 

to minimize wind borne dust emission has been submitted, in writing, and approved by the District Engineer. 

All boat material transfer operations are to be carried out in ~ 

a manner to prevent re-entrained fugitive dust emissions by means 

of pressure al1eviation system(s) controlled by dust collection 

equipment. 

Data 

Applicant 

Sulfur 

from 

(TRS) 

this 

shall 

analyzer 

monitor 

not operate 

is 

shall 

installed 

this 

be maintained 

facility 

on the ,kiln 

unless 

at the 

exhaust 

a 

plant 

Total 

stack. 

and 

Reduced 

available 

~' ~ 

for inspection by the staff upon request. 

Applicant shall not operate this facility unless the oil firing, 

combustible analyzing, and related equipment described in Appendix A have been installed. · · 

Within six months after start-up of this facility, the applicant sh~ll 

complete testing of the combustion analyzer instrumentation and 

shall implement the start-up procedures outlined in Appendix B. 

For the period irrrnediately after start-up of the new facili~y (not 

to exceed six months) the applicant shall attempt to minimize excessive 

emissions during a start-up of the kiln by following the prqcedures outlined in Appendix C. · 

GLA:mb 
Medusa Cement Company 

Permit No. 700-77 

Page 4 

APPENDIX A 

1. 30,000 gallon oil storage tank 

2. 

3. 

4. 

Unloading pump 200 gprn - Truck to tank -

Transfer pump - Tank to Burners - 60 gpm 

Oil distribution system 

Instrumentation 

- 0 2 & combustibles analyzers at 

stage I exit (vJoT 'j oot:\) 

kiln exit, stage IV exit, and 

l__[e\eJ..'1v..E> o.J 

- Temperature sensors at kiln exit, stage IV exit, and stage I exit ~ 

5. Flash furnace system 

-2 oil burners - 90 rnm BTU/hr, 10 gpm each 

-2 primary air blowers 

-controls - pressure regulator 

6. Kiln System 

burner control valves 

safety shut-off valve 

manual shut-off valves 

pressure switches and gauges 

primary air damper 

\ - Combination coal and oil burner - 225 rnm BTU/hr 25 gprn oil 

- Primary air blower for oil 

- Controls - pressure regulator 

January 22, 1979 

burner control valve 

safety shut-off valve 

manual shut-off valves 

pressure switches apd gauges 

primary air damper · 

y: 
Medusa Cement Company 

Permit No. 700-77 

Page 5 

APPENDIX B 

A No. 2 oil torch will be used to preheat and start the kiln system. 

Once the kiln system is stabilized, the oil feed will be reduced and coal 

feed started at a low rate. The coal feed will be increased while 

simultaneously reducing the oil feed until the kiln is operating entirely 

on coal. The precipitator will remain in operation during the entire start 

up except for a brief period when the No. 2 oil torch is initially ignited to 

start the preheat. 

However, to prevent a fire or explosion in the precipitator during start up 

or during normal operation, combustible analyzers will be installed at the 

kiln exits, stage rv exit and stage I exit. The analyzers will be preset to 

alarm at a level of combustibles concentration in the gases. (Initially this 

value will be approximately 0.6~ but may be adjusted after some experience 

has been gained in operation.) When the alarm sounds, the kiln operator will 

take immediate.action to reduce the combustible concentration. 

Should the concentration of combustibles increase further to a preset value 

{initially, this value will be approximately 0.8% but may be adjusted after 

some experience has been gained in operation), the precipitator will be 

automatically de-energized to prevent a fire or explosion. 

The kiln operator will restart the precipitator within 2 minutes after the 

combustible analy~ers indicate that combustibles are no longer present in 

the gases. The operator will have the ability to start the precipitator from 

the central control room in order to minimize the precipitator off time. 

\ 

January 22, 1979 
.• Medusa Cement Company 

Permit No. 700-77 

Page 6 

APPENDIX C 

1. Precipitator to be energized no later than two minutes after t~e 

kiln oil torch is lit (using the existing No. 2 oil light-off 

torch), the flame is stabilized and the instrumentation shows the kiln 

system is purged of combustibles. (Time off not to exceed 25 minutes) 

2. Precipitator will be energized during the several hours required to 

get the kiln hot.· There will be no feed to the kiln durin~ this period. 

The kiln will be rotated as required to provide proper heat distribution 

to prevent kiln thermal distortion. 

3. Precipitator will remain energized a·s kiln feed is started. 

4. Precipitator to be de-energized while the precalciner No. 2 oil burner 

is lit and. stabilized •. Precipitator will be again energized two minutes 

after the instrumentation shows the kiln system is purged of combustibles. 

(Total time off not.to exceed 15 minutes.) 

5. Precipitator will continue to be energi~ed as kiln feed is increased and 

kiln operation is stabilized. 

6. Precipitator will be de-energized while the coal fired burners are ignited 

and stabilized. Precipitators will be again energized two minutes after 

the instrumentation shows the kiln system is purged of combustibles. 

(Total time off not to exceed 10 minutes each for kiln burner and 

precalciner burner.) 

7. Precipitator will not be de-energized except by.automatic safety controls 

while kiln sys~em is brought to full production levels, run, an~ shutdown. 

8. The entire period of time that the precipitator is de-energized during 

start-up will range from 15 minutes to one hour. 

January 22, 1979 
EXHIBIT D 

ACTUAL COSTS OF 2002 

CONSTRUCTION OF SUWANNEE, 

FLORIDA PLANT; AND WITH 

SUMMARY REDUCED TO 1978 

DOLLARS FOR COMPARISON 

(WITHOUT LAND ACQUISITION COSTS AND QUARRY COSTS) 

REDACTED: 

CONFIDENTIAL 

BUSINESS 

INFORMATION 
EXHIBITE 
MICHIGAN DEPARTM~NT OF NATURAL RESOURCES 

AIR QUALITY DIVISION 

STAFF ACTIVITY REPORT 

fuJ_pJj cant 

Medusa Ceinent Company . 

Division of Medusa Corporation Charlevoix Township 

Charlevqix County, Michigan 

Permit to Install No. 700-77 

-~_iJlDj_fj cant .QE.te.~-

February 21. 1978 

November 80 1977 ··-- Application receiv~d. 

December 6, 1977 

January 3. 1978 

Proposed Facilities 

District Engineer approved site loc~tion. 

Applicant submitted a waiver of the 60-day time limit 

for permit action. 

The applicant is proposing to install the equipment necessary to convert the existing plant from the 1~et to the dry process. ·This new equipment consists of shortening the kiln and install·ing a preheater with a new electrostatic ptecipitator, 

modifications to the clinker cooler and the installation of a gravel bed filter, 

one new roller mi11, several new raw material storage silos, one new blending silo, 

one clinker storag~ dome, the conversion of the wet raw ball mill to a finish mill. 

arid sever~d new cement storage s i1 os. I he materia 1 handling and storage equi pnient 

w111 be contra 11 ed by bag filter co 11 ectors, 

"This conversion w111 increase the cement production rate from 2,400 tons per day 

to 4,800 tons per day and the coa1 usage will increase from 20 tons per day to 24 l/2 

tons per day. I herefo1·e, this conversion wi 11 increase the production and decrease 

the energy usage per ton of product produced. 

Analysis of Impact 

The following list gives the allowed emission rates fo1~ the major pollutants for 

the existing and proposed equipment: 

', .. : 
.. ,. 

Staff Activity Report - page two 

IYledusa Cement Company 

February 21 , 1978 

Existing Equipment Proposed Equipment 

Emissions Emissions Emissions Emissions 

Equipment Pollutant Pounds/Hour Tons/Year Pounds/Hr. Tons/Year 

Kiln and proposed Particulate 288 1 ,071 gg· 368 

preheater - Sulfur dioxide 1 '184 4,404 250·;,-- 930 

Nitrogen oxides 580 2,158 237 882 

Clinker cooler Particulate 173 758 33 145 

Proposed storage and 

hand11ng equipment - (not appl1cab1e) 65 285 

Staff's evaluation indicates that the two electrostatic precipitators for the exist-

·ing kiln and proposed preheater and roller mi1l are adequate to control particulate 

emissions so as to comply with the Federal New Source Performance Standard (NSPS) of 

0.30 pounds of particul&te per ton of dry feed with one of the five fields not functioning and that the gravel bed filter will be adequate to control the particulate 

.emissions from the clinker cooler to less than 0.10 pounds of particulate per ton of 

dry feed which is also the NSPS limit. Staff's evaluation also indicates that the 

two .precipitators, the gravel bed filter and the proposed bag filter collectors for 

the miscellaneous material handling and storage equipment will be suitable to comply 

with the New Source Performance Standards for opacity emissions. There are no by-

·passes for any of the collectors. 

The expected sulfur dioxide and nitrogen dio)cide emissions aY'e based on test data 

submitted by the applicant for similar dry process ceme~t plants located in Japan. 

Existing ~mission rate data is also based on stack test data. 

rhe staff's dispersion analysis indicates that the ground. level concentrations of 

particulate, sulfur dioxide and nitrogen dioxide resulting from the proposed equipment wifl be significantly less than the existing concentrations due to ·the large 

reduction in the emissions of these pollutants. The location of the existing p'lant 

has been proposed as attainment for all pollutants. 

rhe applicant has estimated that the modifi.cations should decrease the potential 

odor emissions from that plant by 75% or more. Wh'ile the staff has beer. unable 

to quantify the potential odor reduction, the staff do2s agree \.Vith the applicant 

that there should be a reduction in the odor emissions since (a) the preheater and roller mill will act as a dry scrubber for the sulfur compounds, (b) a larger 

pe;"cEmtage of the combustion gasses wil1 be exhausted from a higher stack and (c) 

since the new process should be more stable than the conventional wet process. At 

present, staff does not consider the cement plant to be causing an odor problem. 

Based on our evaluation, staff is of the opinion that the installation of the pro- posed equipment will not have a significant impact on maintaining air quality stan-

·dards nor cause substantial deterioration of the air quality. 
Staff Activity Report - page three 

Medusa Cement Company 

February 21 2 1978 

Staff Recommendations 

Staff recommends approval of Permit to Install No. 700-77 subject to the conditions 

specified in the attached supplement. 

Submitted by: Jerry Avery 

January 23, 1978 

JA:jh 

Attachment 
EXHIBITF 
~~r . 

( 

t 

Ko 

[ 

N 

D 

t 

H 

us ts$ 

CHARlEVOIX: Medosa Corp. otfidz!s announced here Thursday night' that they are doubling t':"leir original 

$25 million investment iO Charlevoix's South Point plant with a SSO million conversion to dry-cement 

manufacwre. From let'. are Scott 1;\ogers; corporation president; E!ery Sedgwich, member of the boa!d o( 

directors who was instrument<;~ I in locating the plant at Charlevoix 12 years ago; Jack'lrmschet, president of 

ihe Cement Division; and Elbert K~iser, plant managef, !NEWS photo by Bob Clack) 

. Vol. 101 No. 245 

illi nExpan 

Charlevoix Plant 

Converted to Dry 

By BOB CLOCK Furt.~ermore, su

0i-ARLEVOIX- Medusa.Corp. cu:nounced Thursday night that offensive to Charlev

it is doubling its investmen~ in 9flarlevoix 'with a $SO r;illlioJl will be cut in hal£ 

construction project that. will change the method of manufa~ plume at the moU

turtng·~ement from the wet_process to the dry process. Work on the pre

: . ~ark on the changeoveF .. lS exp~ct.ed to ~vide jobs for an with ~edication in"

~ted 800 people, star"Jng next spring and continuing for to $25 million, alth

.a_b~_ut two years.. over the years, 

When tlje conversion i.s complete~ the compan)' upect.s to add equipment and co

from 12 to~ employes to its present wot'\dorte at South Point. 

The plant presentiy employs about 100 persons. · The most obviou

. Announcement of tbe plans was made at a civic dinner at Grey W-foot-l"'jgh -prH

Gables, hc.st.ed by Medusa officlab ~om Ule hoine office in limest..one before it 

Cleveland-and tile Charlevoix plant. Guests inc~ed city, county over fr.e present s

and township officers ao.d industry representatives. Because.the lim

Th~ company pointed o~.:t that the project is part of Medusa's .present, the length 

overall program to meet the Federal Energy Admi....,istratior.'s Howlett said a 50

goal of reGucing fuel conswnption 18 pe:-ceut by 19&2. be fully enclosed t

'The proposed changes also will double the capacity of the plant. He added that a

·thelargestinMedusa'sstableofceme.ntfacilit.i~-andresultin under wraps as a 

a more uniform product wi:h no sacrifice in quality. ·Scott Rogcr:s, M

Of the tot.al cost, $S million will go toward modern particulate company decided t

predpitation equipment Which will reduce emissions from the investigated new- 

stack bY. 20 percent with only four of the :five units in operation. which has made th

Charles Howlett, vice presl.dent-opero.t.i.ons, seid emissions will more odor free th

be well within li:nits of the. tough new federal alr pollution code. ' 

·gas-will be sold 
EXHIBITB 
STATE OF MICHIGAN 

DEPARTMENT OF ENVIRONMENTAL QUALITY 

LANSING 

DEU_ 

RICK SNYDER 

GOVERNOR 

November 29, 2012 

VIA U.S. MAIL AND ELECTRONIC SUBMISSION 

Docket 10. EPA-R05-0AR-2010-0954 

Mr. Douglas Aburano 

United States Environmental Protection Agency 

Region 5 

77 West Jackson Boulevard, AR-18J 

Chicago, Illinois 60604-3507 

Dear Mr. Aburano: 

DAN WYANT 

DIRECTOR 

We are writing to provide additional information regarding the United States 

Environmental Protection Agency's (USEPA's) Notice of Proposed Rulemaking, 

published at 77 Fed. Reg. 46912-46928, dated Monday, August 6, 2012, as it applies to 

the St. Mary Cement (SMC) facility in Charlevoix, Michigan. After recent discussions 

with SMC and further review of the applicability provisions in the Best Available Retrofit 

Technology (BART) rules and guidelines, it is the position of the Michigan Department 

of Environmental Quality (MDEQ), Air Quality Division (AQD) that SMC is not a BARTeligible source. 

As background, the AQD had determined that SMC was BART-eligible and included a 

BART analysis as part of the State Implementation Plan for Regional Haze, submitted to 

the USEPA in November 2010. The BART-eligibility determination was based on the 

fact that the original cement manufacturing facility began operation in the mid-1960s, 

which is within the BART-eligible window of 1962 through 1977. 

Recently, SMC determined they should not have been considered subject to the BART 

regulations because the cement-making operation was substantially reconstructed in 

the 1978-1979 timeframe: Because of the scope of the changes, the reconstructed 

facility was subject to the federal New Source Performance Standards (NSPS) 

requirements. A permit providing for the reconstruction was approved by the AQD in 

early 1978, outside the BART-eligibility window. 

The AQD has reviewed the permitting history of the cement facility as well as the BART 

rules and guidance. Because the reconstruction of the SMC facility was subject to the 

NSPS requirements and the reconstruction occurred outside the BART-eligibility 

window, we concur that the SMC facility should not be considered BART-eligible. 

CONSTITUTION HALL • 525 VIlEST ALLEGAN STREET • P.O. BOX 30473 • LANSING, MICHIGAN 48909-7973 

VMW.mlchlgan.gov/deq • (800} 662-9278 
Mr. Douglas Aburano 

November 29, 2012 

Page 2 

We are submitting this information to you at the request of SMC. We recognize that 

SMC has been working directly with the USEPA since the proposal was published and 

we are aware that USEPA may have already taken final action on the proposed 

rulemaking. To the extent that this information is useful for future actions the EPA may 

take, the MDEQ is providing this as additional information. 

If you have any questions or require further information, please contact Mr. Robert 

Irvine, AQD, at 517-373-7042 or you may contact me. 

cc: Mr. John Summerhays, USEPA 

Sincerely, 

/ . / 

(. / ~-/ 

... --. /~ /;h~~h :--/ 

G. Vinson Hellwig, Chief 7. 

Air Quality Division 

517-373-7069 

Mr. Jim Sygo, Deputy Director, MDEQ 

Ms. Lynn Fiedler, MDEQ 

Mr. Robert Irvine, MDEQ 

Mr. Asad Khan, MDEQ