From: Stephanie Maddin <smaddin@earthjustice.org>

To: Group A-AND-R-DOCKET@EPA, Sharon Nizich/RTP/USEPA/US@EPA

Cc: James Pew <jpew@earthjustice.org>

Date: 09/17/2012 07:51 PM

Subject: Supplemental Information for Public Hearing Record (EPA-HQ-OAR-2011-0817)

Good evening Ms. Nizich,

As a supplement to the hearing testimony on August 16, 2012, please enter the attached supplemental 

information into the Public Hearing Record for EPA’s proposed National Emission Standards for Hazardous Air 

Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement 

Plants (EPA-HQ-OAR-2011-0817).

Best regards,

_______________________________

Stephanie Maddin

Legislative Counsel

Earthjustice

Suite 702

Washington DC, 20036

T: 202-745-5210

F: 202-667-2356

www.earthjustice.org
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

__________________________________________ 

 ) 

National Emission Standards for Hazardous ) 

Air Pollutants for the Portland Cement ) 

Manufacturing Industry and Standards of ) 

Performance for Portland Cement Plants; ) EPA-HQ-OAR-2011-0817 

Proposed Rule ) 

 ) 

77 Fed. Reg. 42,368 ) 

(July 18, 2012) ) 

 ) 

SUPPLEMENT OF DESERT CITIZENS AGAINST POLLUTION AND 

EARTHJUSTICE TO HEARING TESTIMONY OF AUGUST 16, 2012 

I. INTRODUCTION. 

 Although the Clean Air Act required EPA to issue lawful § 112 emission standards for 

cement plants by November 15, 1997, the agency did not do so until 2010, thirteen years after 

the statutory deadline. During those thirteen years, EPA’s disregard of its Clean Air Act 

obligations deprived Americans of protection from toxic pollution including mercury, 

hydrochloric acid, and toxic organic pollutants that Congress had intended to guarantee by 

enacting the Clean Air Act. EPA’s past disregard for the law will continue to deprive Americans 

of the protection that the Clean Air Act requires until cement plants finally comply with lawful 

standards. 

 EPA’s proposal to delay compliance until 2015 will greatly exacerbate the harm that EPA 

already has caused and the suffering that ordinary Americans have had to endure. It bears 

emphasis that, according to EPA, the current rule’s reductions in fine particulate matter alone 

will save between 960 and 2,500 lives every year, and will prevent 17,000 cases of aggravated 

asthma, 1,500 heart attacks and 130,000 days when people have to miss work because of illness 

associated with cement plant pollution. The money value of these health benefits, according to 

EPA, is between $6.7 billion and $18 billion every year. Even if the compliance date is not 

delayed, EPA’s failure to issue lawful standards in 1997 and its failure to issue a timely and 

lawful response to the 2000 remand of those standards in National Lime Ass’n v. EPA, 233 F.3d 

625 (D.C. Cir. 2000), will have caused, by EPA’s own logic, between 12,480 and 32,500 

unnecessary deaths, 19,500 unnecessary nonfatal heart attacks, 221,000 unnecessary cases of 

aggravated asthma, and 1,690,000 unnecessary missed days of work. The money value of this 

damage will be between $87.1 billion and $234 billion. And that is just the damage resulting 

from cement plants’ fine particulate matter emissions during the time that lawful cement 

standards have not been in place; it does not count the damage from their emissions of toxic 

metals like mercury, arsenic and lead, their emissions of toxic organic pollutants like benzene 

and formaldehyde, and their emissions of acid gases like HCl. All of this damage will be greatly 

and unnecessarily prolonged if EPA delays the compliance date for the cement rule. 
2

II. BACKGROUND: THE PCA CASE AND EPA’S POST-DECISION SETTLEMENT 

WITH INDUSTRY. 

 EPA requests comment on a proposal that it has issued subject to a private settlement 

agreement that it has reached with the Portland Cement Association (PCA) in litigation 

concerning the agency’s air toxics standards for cement plants. 77 Fed. Reg. 27,055, 27,056 

(May 8, 2012). Although that settlement has yet to be approved by a court, and EPA has not 

even moved for its entry, the agency is using it as an excuse to rush out a proposal that violates 

the Clean Air Act and binding D.C. Circuit precedent. 

 Despite EPA’s claim that it is now “settling” the underlying litigation with PCA, that 

litigation actually concluded in 2011, when the D.C. Circuit largely rejected PCA’s challenge to 

the cement plant standards. PCA v. EPA, 665 F.3d 177 (D.C. Cir. 2011). Specifically, the Court 

found that it lacked jurisdiction to hear PCA’s argument that “EPA improperly ignored the 

ongoing CISWI process” when it set the air toxics standards for cement plants under Clean Air 

Act § 112: 

Before reaching the merits, we must decide whether we have jurisdiction. PCA 

cannot challenge the rule directly. Before an objection can be raised in this Court, 

it must be “raised with reasonable specificity during the period for public 

comment.” 42 U.S.C. § 7607(d)(7)(B). PCA did not comment on this issue in the 

NESHAP rulemaking, so even if we agreed with PCA on the merits, we could not 

vacate the NESHAP rule. 

665 F.3d at 185 (emphasis added). 

 The Court also rejected PCA’s argument that the agency erred by basing its emission 

standards “on bare emissions data rather than on data that specifically isolated the effects of 

technology by controlling for variations in input quality[,]” finding that it had already rejected 

that argument and “held that EPA must do exactly what it did here.” Id. at 188-189. The Court 

then summarily rejected PCA’s remaining substantive arguments, holding: 

 PCA’s challenge to EPA’s pollutant-by-pollutant approach was time-barred. Id. at 189. 

 EPA did not act improperly by “reset[ting]” the floors for its cement plant standards 

rather than “revis[ing]” them because, although Clean Air Act § 112(d)(6) requires EPA 

to review and revise its § 112 standards every eight years, “nothing prohibits EPA from 

reassessing them more often.” Id.

 Contrary to its claims in court, PCA had an opportunity to comment on EPA’s adoption 

of a continuously-monitored standard for particulate matter emissions and actually did 

comment on it. Id.

 The Court granted PCA’s petition for review only “with respect to EPA’s denial of 

reconsideration.” Id. Further, it rejected PCA’s request to stay the standards pending remand, 

noting that “[t]he CAA does not mandate a stay, 42 U.S.C. § 7607(d)(7)(B), and because it is 

unlikely that significant changes will be made to the standards on reconsideration, we see little 
3

chance of PCA suffering irreparable harm.” Id.1

 In short, the Court ruled for EPA on all issues 

in the litigation except for one purely procedural issue. The Court urged EPA to act 

expeditiously on remand, but did not order EPA to respond to its remand by any specific date 

and expressly noted that PCA’s remedy, if it believes that the agency is not responding 

expeditiously enough, is to sue the agency for unreasonable delay. Id. at 194 (citing 42 U.S.C. 

§ 7604(a); NRDC v. EPA, 902 F.2d 962, 985 (D.C. Cir. 1990)). 

 Despite its nearly complete victory in the litigation, EPA now proposes to “settle” the 

already-decided case by agreeing to rush out a response to the court’s remand and to either 

propose or take comment on a two year delay of the compliance date for the cement plant 

standards. The stated basis for this settlement is to induce PCA not to file a petition for 

rehearing with the D.C. Circuit. 

 As EPA is well aware, the D.C. Circuit rarely grants rehearing petitions. Here, EPA does 

not identify any issue on which it thinks there is even a plausible chance that the D.C. Circuit 

might do so, nor does the agency provide any basis for treating PCA’s threat of a rehearing 

petition as a credible threat to the underlying cement standards. 

 In particular, EPA does not say – nor could it credibly claim – that the D.C. Circuit would 

reverse its unanimous decision that it lacked jurisdiction to hear PCA’s arguments about the 

CISWI definition. That decision, as the Court made clear, was based on the plain text of Clean 

Air Act § 307(d)(7)(B), which provides that an objection cannot be raised in court unless it was 

first raised with reasonable specificity during the public comment period. 665 F.3d at 185 

(quoting 42 U.S.C. § 7607(d)(7)(B)). 

 Nor does EPA even hint at any reason to believe the Court would reverse any other 

aspect of its unanimous decision. As the Court pointed out, EPA’s decision to base its standards 

on emissions data rather than information about control technology was, far from being unlawful 

or arbitrary, required by the plain language of the Clean Air Act and binding D.C. Circuit 

precedent. 665 F.3d at 188. PCA’s attack on EPA’s pollutant-by-pollutant approach was barred 

for the very same reasons that the Medical Waste Institute’s attack on the pollutant-by-pollutant 

approach was barred in Medical Waste Inst. v. EPA, 645 F.3d 420, 427 (D.C. Cir. 2011). PCA, 

665 F.3d at 189. PCA’s challenges to the CEMS-based standard and the modification of 

standards for startup and shutdown periods were barred by a straightforward application of Clean 

Air Act § 307(d)(7)(B); because EPA provided adequate notice on these issues, it was not 

impracticable to comment on them. Id. Finally, EPA acted within its discretion to gather data 

and adequately explained its decisions. Id. There is simply nothing in the unanimous decision 

that suggests any credible ground for reversal on rehearing by either the panel or the whole 

Court, even assuming arguendo that rehearing would be granted. 

 Although prompt responses to court remands are generally to be commended, EPA’s 

extraordinarily rapid, six-month response to the remand in PCA is inconsistent with its treatment 

 

1

 The Court did stay the requirements for clinker storage piles in light of EPA’s concession that it 

did not provide sufficient notice of those requirements and will be receiving comments on them 

for the first time. Id. 
4

of far more significant substantive remand in cases where environmental groups – representing 

citizens adversely impacted by toxic emissions – were petitioners. The cement standards at issue 

here, for example, were promulgated in response to the D.C. Circuit’s remand of EPA’s original 

§ 112 standards for cement plants approximately ten years earlier. National Lime Ass’n v. EPA, 

233 F.3d 625 (D.C. Cir. 2000). Similarly, the medical waste incinerator standards that industry 

groups unsuccessfully challenged in Medical Waste Inst. were promulgated approximately ten 

years after the original § 129 standards for medical waste incinerators were remanded by the 

D.C. Circuit in 1999. Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999). Indeed, the D.C. 

Circuit went out of its way to note EPA’s delay in responding to that remand. Medical Waste 

Inst., 645 F.3d at 420. And while EPA rushes to respond to the remand in PCA it continues to 

allow far more significant and substantive remands in pro-environment cases to languish. For 

example, EPA has yet to respond to the court-ordered remands of its small municipal waste 

combustor regulations eight years ago in Northeast Maryland Waste Disposal Authority v. EPA, 

358 F.3d 936 (D.C. Cir. 2004), the partial remand of its plywood regulations five years ago in 

NRDC v. EPA, 489 F.3d 1364 (D.C. Cir. 2007), not to mention the voluntary remand of its 

standards for municipal waste combustors six years ago and of its standards for hazardous waste 

combustors four years ago. EPA’s urgency in responding to the minor procedural remand in 

PCA is preferential treatment of industry over the health and environmental interests of the 

people the agency was created to protect. If EPA has the resources to respond to remands, it 

should use them to respond to the long-standing, important substantive remands in those cases 

before using them to respond to the relatively insignificant procedural remand in PCA. 

 Further, by proposing a response to the remand in PCA so quickly, EPA risks creating the 

same problems that led the PCA Court to criticize it. Although the Court found that it lacked 

jurisdiction to review PCA’s challenge on the CISWI issue, 665 F.3d at 185, it faulted the 

agency in dicta for setting standards for cement plants without knowing which, if any, of these 

plants were actually CISWI. Id. at 186-187. There is no reason to believe that EPA has any 

more certainty on this issue now than it did when the agency issued the final cement rule in 2010 

or when it submitted its briefs in PCA to the Court in 2011. Although EPA has come up with an 

estimate of which kilns are CISWI – an estimate it provided to the Court in 2011, see id. at 189 

(“it is unlikely that any significant changes will be made to the standards on reconsideration”) – 

the agency has not yet issued its final revised definition of non-hazardous solid waste under 

which each kiln’s status as a cement plant or a CISWI will be determined. 

 EPA now argues that it does not matter that it has not issued a final definition of nonhazardous solid waste that would allow it to state definitively which kilns are burning solid waste 

(and are therefore incinerators subject to separate regulation under § 129) and which kilns are not 

burning solid waste (and are therefore properly subject to the agency’s cement plant rule under 

§ 112). 77 Fed. Reg. at 42,372. Specifically, EPA claims that its count of 24 waste-burning 

kilns will remain unchanged regardless of the reconsideration process “because either the types 

of secondary materials being addressed in that reconsideration are not combusted by cement 

kilns or the EPA has already accounted for them” when it identified the 24 waste-burners. Id. 

That argument completely misses the main point, which is that EPA does not actually know what 

materials are being burned in the 150 kilns around the country. Although the agency gathered 

some information informally when it initially reached its conclusion that 24 kilns are burning 

waste the agency still has not sent out a § 114 request (or even a voluntary request) about what 
5

materials each kiln is burning and whether the kiln’s owner plans to operate it as a cement plant 

or a CISWI unit. Thus, regardless of what definition of solid waste the agency eventually settles 

on, the agency does not know now – and will not know by the time it plans to issue its final rule 

revisions – which kilns are cement kilns and which are CISWI units. Rushing forward with a 

rule in reliance on that kind of guesswork is precisely what the D.C. Circuit warned EPA against 

in PCA. See PCA, 665 F.3d at 188 (“EPA has put the cart before the horse, and there is no 

justification, least of all an agency’s own timing choices, for such a cavalier and unscientific 

attitude.”). EPA’s rush to issue a proposal now and a final response to the remand in December 

– before it has certain knowledge of which cement kilns are CISWI and despite the fact that it 

could easily obtain certain knowledge through the § 114 process – puts the agency at risk of 

making the very same mistakes that plainly irritated the Court in PCA. 

III. WEAKENING THE PARTICULATE MATTER STANDARDS WOULD BE 

UNLAWFUL. 

A. EPA’s “Technical” Arguments Do Not Support Or Even Explain Its Changes To 

The PM Standards And Monitoring Requirements. 

 EPA proposes to change the PM standard for existing kilns from .04 lb/ton clinker to .07 

lb/ton clinker and the PM standard for new kilns from .01 lb/ton clinker to .02 lb/ton clinker. 77 

Fed. Reg. at 42,376. EPA does not claim to make this change in response to the remand in PCA, 

and the record makes clear that merely removing the waste-burning kilns from the agency’s floor 

analysis would not result in these changes. Instead, these changes result from EPA’s entirely 

voluntary decision to change the way in which compliance with the PM standard would be 

monitored. Citing “comments to the 2009 proposal” – i.e., comments it received before issuing 

the 2010 rule – EPA claims to have just discovered problems with demonstrating compliance 

with PM CEMS. Id. at 42,374. After the 2010 rulemaking was complete (and, indeed, after 

EPA prevailed in defending the 2010 rule in court), EPA engaged in further private 

conversations with industry regarding the issues raised in those same comments. Without 

notifying or engaging the public in any way, EPA came to agree with industry that conducting an 

audit of the PM CEMS in accordance with Performance Specification (PS) 11 could be 

problematic. Rather than attempting to solve these problems, EPA agreed with industry – again 

without providing any opportunity for public input – to propose different PM standards based on 

a different compliance method using three two hour stack tests instead of a rolling 30 day 

average based on CEMS. Further, as noted above, EPA elected to enter into a completely 

unnecessary post-decision “settlement” with industry which required the agency to make these 

changes within months. The agency now advances this elective settlement and schedule as an 

excuse for failing to address the alleged PM CEMS issues and, instead, simply abandon using 

PM CEMS for compliance. 

 Leaving aside EPA’s reliance on its own voluntary “settlement” to claim that it must 

abandon PM CEMS and change the PM standards rather than addressing the substance of the 

potential problems EPA claims to have identified with the use of PM CEMS, EPA’s own 

description of the alleged problems in using PM CEMS and PS 11 reveal that these changes are 

unnecessary. 
6

 First, EPA admits that PS 11 is relevant to only some PM CEMS. 77 Fed. Reg. at 

42,374/3. The agency does not dispute that cement plants could use other types of PM CEMS 

for which any issues relating to PS 11 would be irrelevant. 

 Second, EPA claims that the alleged problems in using PM CEMS with PS 11 result from 

the “inherent uncertainty” in 1-hour Method 5 stack tests. Id. at 42,375. EPA admits that “one 

can improve the method detection capabilities of the Method 5 or other filterable PM test method 

by increasing sampling volume and run time.” Id. Indeed, the agency states that “measurement 

uncertainty” could be reduced to “about one half the correlation limit allowed in PS 11” by using 

a 6-hour test instead of a 1-hour test. Id. EPA does not explain why this change alone would not 

be enough to cure any alleged problems with the use of PM CEMS. Further, even if moving to a 

6-hour test would not be sufficient, the agency provides no reason to believe that moving to a 

longer test period (e.g. 12 hours) would not be.2

 EPA claims that because cement plants’ particles vary in size and other characteristics, 

PS 11 correlations developed for one set of conditions may not apply to other conditions. 

Although EPA admits that some plants are already using CEMS for which this is not even an 

issue, the agency dismisses that fact, claiming that its rule is currently based on a different type 

of PM CEMS. Id. 

 EPA’s claim that its rule is not currently predicated on CEMS that can be correlated to PS 

11 regardless of variations in particle size is irrelevant. Obviously, EPA is proposing to make 

significant changes in the way compliance with PM standards is demonstrated. Given that, the 

agency has no reason to rule out consideration of different PM CEMS. EPA speculates that 

predicating standards on a different type of CEMS “is likely to take several years.” Id. EPA 

provides absolutely no explanation or record support for that speculation, however. Moreover, 

the agency’s refusal to consider other technologies for this purpose even though they are already 

in use at some plants is directly at odds with its willingness to let plants demonstrate compliance 

with the hydrogen chloride standards through the use of CEMS for SO2, even though it “had no 

data that demonstrated a direct link between HCl emissions and SO emissions.” Id. at 42,381. 

EPA seeks to justify that amendment based on nothing more than “pilot-scale” tests. Id. 

 Even if it were not possible to use other PM CEMS, EPA further admits that “PS 11 

provides for means to minimize the effects of changing particle sizes.” Id. at 42,375 n11. The 

agency states that it did not even “consider such an approach,” however. EPA states that 

technical work is needed to determine if this approach would work, but apparently did not even 

attempt to undertake this work – evidently preferring to scrap the PM CEMS compliance 

approach, alter the PM standards and delay compliance with any standards for another two years. 

 Finally, EPA does not say why it is necessary to use PS 11 to audit PM CEMS. The 

agency does not deny that other performance specifications are available and, indeed, already in 

use in the United Kingdom. But rather than making any effort to evaluate these alternatives, the 

agency simply elects to abandon PM CEMS to demonstrate compliance and to make major 

 

2

 EPA also states that PS 11 correlation calculations would have to “account for any PM CEMS 

measurement uncertainty,” id., but provides no reason that this would not be possible. 
7

changes to the standards it promulgated. The conclusory, inconsistent and self-serving 

arguments that EPA advances for abandoning PM CEMS and changing the PM standards belie 

the agency’s claim that it is making these changes in response to technical issues, and reveal the 

agency’s action for it is: a decision to weaken and delay the cement standards on a purely 

voluntary basis for reasons that the agency is understandably unwilling to discuss openly. 

B. EPA’s Proposed Revisions To The PM Standards Would Be Unlawful And 

Arbitrary. 

1. EPA’s Proposed Revisions PM Standards Would Violate Clean Air Act 

§ 112(d)(7) If They Make The Standards Less Stringent. 

 EPA states that because it proposes to measure compliance with PM standards with 

periodic stack tests instead of PM CEMS, it is also proposing to recalculate the upper prediction 

limit (UPL) on which its floors are based to reflect that compliance will be measured over three 

2-hour test runs rather than thirty days. 77 Fed. Reg. at 42,376. Switching the “m” value in its 

UPL calculation from 30 to 3 drives the existing source standard from .04 to .07 and the new 

source standard from .01 to .02. Id. EPA states the standards also would change as a result of 

removing the waste-burning kilns from its floor analysis, but admits in the record that this 

change would not result in so great a change. Thus, the specific changes EPA proposes – from 

.04 to .07 for existing sources and from .01 to .02 for new sources – is driven not by the agency’s 

response to the PCA decision but by its voluntary abandonment of the PM CEMS requirements. 

 Clean Air Act § 112(d)(7) provides “no emission standard ... under this section shall be 

interpreted, construed or applied to diminish or replace the requirements of a more stringent 

emission limitation ... established pursuant to [§ 111], [the PSD provisions], [the nonattainment 

provisions], or other authority of this chapter or a standard issued under State authority. 42 

U.S.C. § 7412(d)(7) (emphasis added). Because § 112 is an “authority of this Chapter,” 

§ 112(d)(7) unambiguously precludes EPA from applying new § 112 standards “to diminish or 

replace the requirements of a more stringent limitation” under § 112. Therefore, to the extent 

EPA’s proposed standards would diminish or replace more stringent standards in the existing 

rules, they are unlawful. 

 EPA argues in a footnote that although § 112(d)(7) “indicates that section 112(d) does not 

‘trump’ any standard established under other authority which is more stringent,” does not bar it 

from “amending section 112(d) standards to correct technical deficiencies.” 77 Fed. Reg. 

42,368, 42,371 n1 (July 18, 2012). That argument is beside the point. Regardless of whether 

EPA may have some authority to correct “technical deficiencies” in its rules, § 112(d)(7) 

precludes the agency from weakening them. In any event, EPA states that its changes will allow 

cement plants to do less to control their emissions and to emit an additional 135 tons of PM into 

the air each year, not to mention unquantified additional amounts of lead, arsenic, and other 

hazardous air pollutants for which the agency asserts that PM is a surrogate. 

 To the extent EPA is claiming that it can weaken existing standards just by claiming that 

its revisions are correcting “technical deficiencies,” the agency is mistaken. Section 112(d)(7) 

precludes EPA from issuing standards that weaken existing final standards, and the agency 

cannot circumvent this statutory prohibition just by claiming that its weakening amendments are 
8

corrections to “technical deficiencies.” Indeed, the D.C. Circuit has already addressed a similar 

attempt by EPA to avoid plain statutory limits on its authority by claiming some extra-textual 

authority to correct errors. In New Jersey v. EPA, it squarely rejected EPA’s claim that it could 

delist power plants without satisfying the requirements of § 112(c)(9), 42 U.S.C. § 7412(c)(9), 

just by claiming that it was correcting its original decision to list them. The text of § 112(d)(7) 

makes clear that § 112 rules cannot diminish or replace more stringent requirements established 

under any authority “of this chapter” – i.e., of the Clean Air Act – and for EPA to avoid this 

literal reading of the statute, it must show that Congress did not or could not possibly have meant 

it. EPA does not and cannot make that showing.3

2. EPA’s Proposed Revisions To The PM Standards Would Violate § 112(d)(3) 

And Be Arbitrary And Capricious. 

 The revised PM standards that EPA proposes also would violate § 112(d)(3) and binding 

D.C. Circuit precedent. EPA has set its revised floors for existing plants at the 99% upper 

prediction limit, which is the number EPA expects any future test by any source in the top twelve 

percent of sources for which it has emissions information to fall below. Because Clean Air Act 

§ 112 unambiguously requires EPA to set floors reflecting the “average” emission level achieved 

by the best sources, setting floors that instead reflect a UPL for those sources is unlawful. By 

insisting that it can set floors at this level, EPA deprives the word “average” of meaning and 

substitutes its own policy preferences for Congress’s plainly expressed intent. See New York v. 

EPA, 443 F.3d 880, 885 (D.C. Cir. 2006) (“courts must give effect to each word of a statute”); 

New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008) (rejecting statutory reading that 

“substitutes EPA’s desires for the plain text” of the statute”) 

 By claiming that it can use the UPL for all sources in the top twelve percent, EPA also 

misreads its authority to consider variability under the Clean Air Act and relevant caselaw. 

Although EPA may consider variability in estimating an individual source’s actual performance 

over time, nothing in the Act or the caselaw even suggests that the agency may account for 

differences in performance between sources except as § 112 provides, by averaging the emission 

levels achieved by the sources in the top twelve percent. Indeed, EPA errs by viewing the 

different emission levels achieved by different sources as “variability” at all. The different 

emission levels achieved by different sources are just differences in performance and provide no 

basis for applying statistical methods. 

 EPA’s floor approach is also unlawful and arbitrary in other respects. First, EPA selected 

the best performers based on each source’s lowest test result but then measured the best sources’ 

actual performance based on their average test results. EPA’s use of different measures of 

performance to identify the top sources on the one hand and to evaluate their performance on the 

other is inconsistent, irrational, and unexplained. No matter what metric EPA uses to measure 

sources’ performance, the same metric should apply for purposes of identifying the best 

performers and identifying those sources’ actual performance. Moreover, EPA’s inconsistent 

approach to measuring performance has important practical effects. By using the lowest test 

 

3

 In some instances, EPA purports to revise its cement standards in response to the remand in 

PCA. These comments do not address EPA’s authority or duty to respond to remands but, rather, 

the agency’s voluntary decisions to weaken standards that are not covered by a remand order. 
9

result to identify the best performers but the average test result to reflect their performance, EPA 

artificially increases the variability of the data on which it bases floors. Specifically, the data for 

the top twelve percent of sources has more variability than if EPA had picked the top twelve 

percent based on the best average test result, and as a result the variability factor and the floors 

themselves are also higher. If EPA had either: (1) used average test results consistently to pick 

the best performers and measure their performance; or (2) consistently used sources’ lowest 

emissions test to calculate floors and pick the top performers, the floors would be lower. EPA 

does not provide any explanation for using different metrics to measure sources’ performance for 

the purpose of identifying the best sources and for the purpose of assessing their performance. 

Given that EPA’s choice affects the outcome of its floor analysis, the absence of a rational 

explanation for that choice is especially arbitrary. 

 EPA also fails to provide any explanation for its apparent assumption that sources’ actual 

emission levels will vary to the full extent of the 99th percent UPL. By its nature, a UPL predicts 

sources’ variability in performance based on characteristics of the data already available for 

them, the number of data points, the median of the data points, and the standard deviation. The 

UPL does not consider an operator’s efforts to limit variability in emissions – or at least upward 

variability – by maintaining and operating the source carefully to control emissions. Yet, as both 

EPA and the D.C. Circuit have recognized, operator training and care and source maintenance do 

operate to control emissions. By using the UPL, EPA ignores the effect of operator training and 

care and source maintenance on emission levels. Doing so is just as unlawful and arbitrary as 

setting floors that ignore the effects of cleaner fuel use; it results in floors that do not reflect the 

best sources’ actual performance. 

 Moreover, EPA rounds up its emission test results for the purpose of setting standards 

even though the agency’s policy is to round them down for the purpose of determining 

compliance. Specifically, EPA rounds up UPL values less than 100 to one significant figure, and 

rounds up UPL values between 100 and 1000 to two significant figures. EPA’s decision to 

round up is unlawful in itself. The Clean Air Act requires floors to reflect the emission levels 

achieved by the best sources not those emission levels rounded up to the nearest whole number. 

EPA’s departure from normal rounding practices by always rounding up in setting floors – i.e., 

rounding up whether the fraction is above or below one half – exacerbates that unlawfulness and 

is arbitrary. And the agency’s inconsistent approach to rounding for standard setting and 

compliance determinations is inconsistent, irrational, unexplained, and therefore arbitrary. 

 For new plants, EPA’s floors must reflect the emission level achieved by the single best 

performing kiln in the category, not the best performing kiln for which EPA happens to have 

emissions information. EPA does not even claim to know that that its new source floors reflect 

the PM emission level achieved by the best performing kiln in the category, nor could it 

plausibly advance such a claim without information for more kilns than it has. 

 Moreover, even if it could be assumed that EPA has identified the single best controlled 

kiln, the agency has not set the new source floor at the emission this source achieved in practice 

but rather the 99 percent UPL for this kiln. Although it may be permissible to set new unit floors 

“at a level that reasonably estimates the performance of the ‘best controlled similar unit’ under 

the worst reasonably foreseeable circumstances,’” CKRC, 255 F.3d at 863 (quoting Sierra Club, 
10

167 F.3d at 665)(set of internal quotation marks omitted), the upper prediction limit is not an 

estimate of what the single best unit actually “achieved in practice” under any circumstances. By 

definition, it is a “prediction” of the level EPA expects all future tests by that unit to fall below. 

42 U.S.C. § 7429(a)(2); Sierra Club, 479 F.3d at 880. 

3. If EPA Revises The Floors For Its PM Standards, The Agency’s Failure To 

Promulgate Final Beyond-The-Floor Standards Reflecting The Maximum 

Achievable Degree Of Reduction In Emissions Will Violate § 112(d)(2). 

 After proposing to change the 2010 PM standards in a way that would cause many plants 

to use less effective control measures, EPA states without any discussion that beyond-the-floor 

standards “do not appear to be justified for the same reasons in the 2010 final rule.” 77 Fed. 

Reg. at 42,376. There, EPA simply noted that no commenters had challenged its 2009 proposal 

not to set final standards that were more stringent than the PM standards it had proposed. 75 

Fed. Reg. at 54988. As articulated in both the 2010 rule and the 2009 proposal, the agency’s 

rationale for refusing to set beyond-the-floor standards was that the beyond-the-floor standard it 

was considering would reduce the total PM emissions from cement plants by just three tons a 

year at a cost of $576,000 per ton of PM removed, a “cost-effectiveness” the agency regarded as 

inappropriate. Id.; 74 Fed. Reg. at 21155. 

 EPA’s claim that the rationale it offered for refusing to set beyond-the-floor standards in 

2009 and 2010 supports its refusal to do so now is undermined by the agency’s own description 

of its proposed revisions and the impact they will have on plants’ compliance strategies. 

 First, EPA predicts that the proposed revisions would increase PM emissions by 135 tons 

per year. 77 Fed. Reg. at 42,387. Setting beyond-the-floor standards at the level of the 2010 rule 

therefore, would result in a reduction of 135 tons per year, not three tons per year. The reasons 

EPA gave in 2010 for refusing to set a beyond-the-floor standard that would yield only three tons 

in PM reductions do not – contrary to EPA’s current claim – support the agency’s current refusal 

to set standards that would yield 135 tons per year in reductions. 

 Second, EPA does not even attempt to show that the incremental cost of achieving the 

2010 standards would be unachievable within the meaning of § 112(d)(2). To the contrary, EPA 

states that changes to the PM standard will result in annual savings of just $4.2 million spread 

across the entire cement industry. 77 Fed. Reg. at 42,390. Thus, the annual cost of a beyondthe-floor standard set at the level of the current standard would also be $4.2 million. That is 

approximately $42,000 on average for each of the nation’s 100 cement plants, which is scarcely 

a number that would render such a standard economically unachievable. Further, even if EPA 

could lawfully evaluate beyond-the-floor standards based on its views about “costeffectiveness,” beyond-the-floor standards set at the current level would yield additional 

reductions of PM at a cost-effectiveness of approximately $31,000 per ton. EPA does not even 

claim that this level of cost-effectiveness justifies refusing to set beyond-the-floor standards, let 

alone provide any rational basis for any such claim. 

 To the extent EPA is offering its 2010 cost-effectiveness rationale for its current proposal 

not to set beyond-the-floor standards, its proposal is not only arbitrary for the reasons given 

above but unlawful. Clean Air Act § 112 requires the “maximum” degree of reduction in 
11

emissions that is “achievable” considering cost. 42 U.S.C. § 7412(a)(2). Far from giving EPA 

discretion to base decisions on whether to set an emission standard on its subjective view about 

whether the cost-per-ton of that standard is appropriate, this language unambiguously requires 

the “maximum” degree of reduction that can be achieved considering cost and the other 

statutory factors. EPA’s contention that it can reject beyond-the-floor standards merely because 

it views their cost-effectiveness as inappropriate contravenes Congress’s plainly expressed 

intent. By rejecting beyond-the-floor measures on cost-effectiveness grounds – without even 

addressing whether they are too costly to be “achievable” – EPA drains the terms “maximum” 

and “achievable” of meaning and essentially rewrites § 129(a)(2) to provide a far greater level of 

discretion than the statutory text confers. Congress directed EPA to set standards requiring the 

“maximum” degree of reduction that is “achievable,” not the degree of reduction EPA considers 

“cost-effective,” and its decision must be respected. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 

438, 452-53 (2002) (“[W]hen Congress includes particular language in one section of a statute 

but omits it in another section of the same Act, it is generally presumed that Congress acts 

intentionally and purposely in the disparate inclusion or exclusion.”) (quotation omitted). 

4. EPA’s Operating Limits Are Unlawful And Arbitrary. 

 EPA explains that the change in its PM standards resulted largely from its decision to 

change the compliance period from a 30 day rolling average to a three run Method 5 test. 77 

Fed. Reg. at 42,376. However, the proposed standards require cement plants to perform an 

emission test only once a year. Id. at 42,403. For the rest of the year – at all times other than the 

period of hours during which a plant is testing each year – a plant’s compliance or noncompliance with EPA’s emission standards will be measured not in relation to EPA’s emission 

standard but in relation to a plant-specific “operating limit.” 

 EPA’s proposal states that plants will establish their own site-specific operating limits by 

recording “all hourly average output values (e.g. milliamps, stack concentration, or other raw 

data signal) from the [continuous parameter monitoring system] CPMS for the periods 

corresponding to the test runs (e.g., three 1-hour average PM OK CPMS output values for three 

1-hour test runs).” Id. The proposal doesn’t say what parameter plants must measure or how 

they must measure it. Instead, it simply directs plants to “[d]etermine your operating limit as the 

highest 1-hour average PM CPMS output value recorded during the performance test.” Id. In 

short, whereas the existing rule requires continuous compliance with actual emission standards, 

the proposed rule effectively requires compliance with emission standards for just a few hours 

out of each year and, for the rest of the year, allows plants to comply instead with a self-set sitespecific operating limit reflecting the single worst 1-hour CPMS reading that it recorded during 

the yearly stack test. 

 To make matters worse, EPA allows sources to determine compliance with their 

operating limits on a thirty day rolling average basis. Id. at 42,404. It bears emphasis that EPA 

explains its decision to revise the actual PM emission standard by stating that it was changing the 

compliance period from a thirty-day rolling average to a Method 5 stack test. Yet, as a practical 

matter, EPA’s proposal actually allows sources to continue to show compliance with a thirty-day 

rolling average, and the real difference is not the change in the compliance period but in allowing 

existing sources to use a thirty-day rolling average to meet a site-specific operating limit loosely 

based on a .07 emission standard rather than to meet an actual .04 emission standard, and new 
12

sources to use a thirty-day rolling average to meet a site-specific operating limit loosely based on 

a .02 emission standard rather than to meet an actual .01 emission standard. Although the 

operating limits EPA has proposed would constitute plants’ only compliance obligation during 

the vast majority of their operating time, they are not as stringent as EPA’s emission standards. 

In particular, they are less stringent because EPA allows sources to determine compliance with 

them on a thirty-day rolling average. EPA essentially admits this point, stating “the PM CPMS 

operating limit reflects a 30-day average that should represent an actual emission level that is 

lower than the three test run numerical emissions limit since variability is mitigated over time. 

See 75 Fed. Reg. 54988 (September 9, 2010); 54975-76. Consequently we believe there should 

be few if any deviations from the 30-day parametric limit...” 77 Fed. Reg. at 42,377. In 

addition, EPA’s operating limits are not as stringent as the emission limits because they are set 

not at the average CPMS reading but the single worst 1 hour average CPMS reading. In short, 

Even if EPA’s proposed PM floors were lawful and non-arbitrary, the agency’s operating limits 

– which serve as the de facto emission standards – would contravene § 112(d)(3) and be arbitrary 

because they do not reflect the relevant best sources’ performance. 

 To set operating standards in a manner that are not less stringent than its own floors and 

internally inconsistent, EPA needs either to: (1) require compliance with operating standards on 

an hourly basis without averaging; or (2) set standards using the same 30-day rolling average it 

used in the final rule and then have operating standards set during performance tests showing 

compliance with such standards. Moreover, EPA cannot allow sources to set operating limits at 

the worst 1-hour average CPMS reading. EPA’s floors already reflect the worst emission level 

EPA expects any source in the top twelve percent to achieve. Emissions during the single worst 

1-hour average CPMS reading may well be even worse than this hypothetical worst possible 

level, thus effectively allowing sources to violate even the unlawfully weak standards EPA has 

chosen to set. 

 Even though, the proposal allows sources to comply with operating limits instead of 

emission limits for virtually all of their operating time, it does not equate violation of these 

operating limits with violation of the emission standards. Instead, the proposal states that 

exceeding the operating limits even with a thirty-day rolling average is not a violation of 

emission standards but only a “deviation.” EPA’s proposal expressly states in its definition 

section “A deviation is not always a violation,” 77 Fed. Reg. at 42,398, making clear that a plant 

can violate its operating limit – even on a 30-day rolling average – without violating its emission 

standards or incurring any liability. 

 Perhaps recognizing that its proposal effectively allows plants to avoid continuous 

compliance with any emission standards for PM (let alone lawful ones), EPA proposes that 

exceedances of operating limits will require sources to conduct an additional performance test 

and that if a plant exceeds its operating limits frequently enough to require four additional 

performance tests in one 12-month process operating period, it will be “presumed” to be in 

violation of its emission standards. Establishing a limit on the number of times that plant owners 

can exceed their operating limits and some consequences for frequent exceedances is helpful. If 

EPA finalizes the proposed standards, commenters urge the agency to retain and strengthen these 

provisions by spelling out that a single exceedance of operating limits is presumed to be a 

violation of emission standards. Limiting the extent to which the proposed standards’ laxity can 
13

be abused and exploited, however, does not make them either legal or adequate. Instead of 

trying to limit the adverse consequences from revisions to the PM standard, EPA should abandon 

those provisions and withdraw its proposal. 

IV. WEAKENING THE MERCURY STANDARDS WOULD BE UNLAWFUL. 

 For existing plants, EPA is not proposing to revise its mercury standards. The agency 

states that although removing the CISWI kilns from its floor calculations changes the floor from 

55 lb/MM tons clinker to 58 lb/MM tons clinker, it is proposing to set final beyond-the-floor 

standards at the level of the existing limit, 55 lb/MM tons. 77 Fed. Reg. at 42,373. Commenters 

support EPA’s decision to leave the existing mercury standards unchanged. 

 Should EPA elect not to set beyond-the-floor standards for existing plants’ mercury 

emissions and to set standards at the new floors, its standards would be unlawful. EPA has set its 

revised floors for existing plants at the 99% upper prediction limit, which is the number EPA 

expects any future test by any source in the top twelve percent of sources for which it has 

emissions information to fall below. Because Clean Air Act § 112 unambiguously requires EPA 

to set floors reflecting the “average” emission level achieved by the best sources, setting floors 

that instead reflect a UPL for those sources is unlawful. By insisting that it can set floors at this 

level, EPA deprives the word “average” of meaning and substitutes its own policy preferences 

for Congress’s plainly expressed intent. See New York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 

2006) (“courts must give effect to each word of a statute”); New Jersey v. EPA, 517 F.3d 574, 

582 (D.C. Cir. 2008) (rejecting statutory reading that “substitutes EPA’s desires for the plain 

text” of the statute”) 

 By claiming that it can use the UPL for all sources in the top twelve percent, EPA also 

misreads its authority to consider variability under the Clean Air Act and relevant caselaw. 

Although EPA may consider variability in estimating an individual source’s actual performance 

over time, nothing in the Act or the caselaw even suggests that the agency may account for 

differences in performance between sources except as § 129 provides, by averaging the emission 

levels achieved by the sources in the top twelve percent. Indeed, EPA errs by viewing the 

different emission levels achieved by different sources as “variability” at all. The different 

emission levels achieved by different sources are just differences in performance and provide no 

basis for applying statistical methods. 

 EPA’s floor approach is also unlawful and arbitrary in other respects. First, EPA selected 

the best performers based on each source’s lowest test result but then measured the best sources’ 

actual performance based on their average test results. EPA’s use of different measures of 

performance to identify the top sources on the one hand and to evaluate their performance on the 

other is inconsistent, irrational, and unexplained. No matter what metric EPA uses to measure 

sources’ performance, the same metric should apply for purposes of identifying the best 

performers and identifying those sources’ actual performance. Moreover, EPA’s inconsistent 

approach to measuring performance has important practical effects. By using the lowest test 

result to identify the best performers but the average test result to reflect their performance, EPA 

artificially increases the variability of the data on which it bases floors. Specifically, the data for 

the top twelve percent of sources has more variability than if EPA had picked the top twelve 

percent based on the best average test result, and as a result the variability factor and the floors 
14

themselves are also higher. If EPA had either: (1) used average test results consistently to pick 

the best performers and measure their performance; or (2) consistently used sources’ lowest 

emissions test to calculate floors and pick the top performers, the floors would be lower. EPA 

does not provide any explanation for using different metrics to measure sources’ performance for 

the purpose of identifying the best sources and for the purpose of assessing their performance. 

Given that EPA’s choice affects the outcome of its floor analysis, the absence of a rational 

explanation for that choice is especially arbitrary. 

 EPA also fails to provide any explanation for its apparent assumption that sources’ actual 

emission levels will vary to the full extent of the 99th percent UPL. By its nature, a UPL predicts 

sources’ variability in performance based on characteristics of the data already available for 

them, the number of data points, the median of the data points, and the standard deviation. The 

UPL does not consider an operator’s efforts to limit variability in emissions – or at least upward 

variability – by maintaining and operating the source carefully to control emissions. Yet, as both 

EPA and the D.C. Circuit have recognized, operator training and care and source maintenance do 

operate to control emissions. By using the UPL, EPA ignores the effect of operator training and 

care and source maintenance on emission levels. Doing so is just as unlawful and arbitrary as 

setting floors that ignore the effects of cleaner fuel use; it results in floors that do not reflect the 

best sources’ actual performance. 

 Moreover, EPA rounds up its emission test results for the purpose of setting standards 

even though the agency’s policy is to round them down for the purpose of determining 

compliance. Specifically, EPA rounds up UPL values less than 100 to one significant figure, and 

rounds up UPL values between 100 and 1000 to two significant figures. EPA’s decision to 

round up is unlawful in itself. The Clean Air Act requires floors to reflect the emission levels 

achieved by the best sources not those emission levels rounded up to the nearest whole number. 

EPA’s departure from normal rounding practices by always rounding up in setting floors – i.e., 

rounding up whether the fraction is above or below one half – exacerbates that unlawfulness and 

is arbitrary. And the agency’s inconsistent approach to rounding for standard setting and 

compliance determinations is inconsistent, irrational, unexplained, and therefore arbitrary. 

 For new plants, EPA proposes not to change the mercury floor because the CISWI kilns 

are “similar” to kilns that do not burn waste within the meaning of § 112(d)(3). Id. at 42372 & 

n3. Commenters support this decision. The agency solicits comment, however, “on whether 

CISWI cement kilns can be considered a “similar source” under section 112(d)(3) and whether 

retention of the 2010 new source standards on this basis is consistent with the D.C. Circuit’s 

opinion.” Id. On that point, EPA is correct. Clean Air Act § 112(d)(3) requires EPA to base 

new source standards on the best controlled “similar source,” not the best controlled “identical” 

source, and nothing in the record suggests that CISWI kilns are cannot be considered “similar” to 

non-CISWI kilns. Further, nothing in the PCA decision addresses the term “similar” in 

§ 112(d)(3) or otherwise suggests that the Court intended to preclude EPA from considering 

CISWI kilns similar to non-CISWI kilns for the purposes of setting new source standards. 

 Should EPA decide to set revised new source floors, those floors would be unlawful. 

Section 112(d)(3) requires new source floors to reflect the emission level achieved by the single 

best performing kiln in the category, not the best performing kiln for which it happens to have 
15

emissions information. EPA does not even claim to know that that its new source floors reflect 

the mercury emission level achieved by the best performing kiln in the category, nor could it 

plausibly advance such a claim without information for more kilns than it has. 

 Moreover, even if it could be assumed that EPA has identified the single best controlled 

kiln, the agency has not set the new source floor at the emission this source achieved in practice 

but rather the 99 percent UPL for this kiln. Although it may be permissible to set new unit floors 

“at a level that reasonably estimates the performance of the ‘best controlled similar unit’ under 

the worst reasonably foreseeable circumstances,’” CKRC, 255 F.3d at 863 (quoting Sierra Club, 

167 F.3d at 665)(set of internal quotation marks omitted), the upper prediction limit is not an 

estimate of what the single best unit actually “achieved in practice” under any circumstances. By 

definition, it is a “prediction” of the level EPA expects all future tests by that unit to fall below. 

42 U.S.C. § 7429(a)(2); Sierra Club, 479 F.3d at 880. 

V. IF EPA PROMULGATES ITS REVISIONS TO THE 2010 RULE, ITS THC 

STANDARDS WILL BE UNLAWFUL AND ARBITRARY. 

 EPA states that when it recalculates the THC floors after excluding the CISWI kilns, “the 

existing source floor for THC becomes more stringent from 24 ppmvd to 15 ppmvd, and the new 

source standard would drop from 24 ppmvd to 11 ppmvd. 77 Fed. Reg. at 42,373. EPA then 

states, however, that “notwithstanding this calculation, the EPA is not proposing to reduce the 

level of either the new source or existing source THC standard.” Id.

 With respect to new plants, EPA’s primary argument is that although the plant it 

identified as the best performer for THC is a CISWI kiln, it is nonetheless “similar” to nonCISWI kilns within the meaning of § 112(d)(3). Id. For the reasons given above on EPA’s 

mercury standards, commenters do not oppose treating CISWI kilns as “similar.” 

 EPA also appears to argue, however, that even if the CISWI kiln on which EPA based 

new source floors (the Union Bridge kiln) is not “similar,” the agency is still free to set new 

source standards at the emission level it attributes to this plant because “EPA considered the 

Union Bridge kiln to be more representative of variability.” Id. Clean Air Act § 112(d)(3) 

unambiguously requires EPA’s floors for new sources to reflect the emission level achieved by 

the single best performing source, not the source that in EPA’s view is “representative of 

variability” experienced by other sources. If EPA determines that it must exclude the Union 

Bridge kiln from its floor analysis because it does not believe that kiln is “similar” for the 

purposes of § 112(d)(3), the agency cannot base floors on that kiln regardless of whether the 

agency believes that kiln’s variability is more representative than the next-best kiln’s. Likewise, 

if EPA concludes that the Union Bridge kiln is not the best controlled “similar” kiln, it cannot 

refuse to base floors on the next best-performing kiln (the Suwannee kiln) regardless of whether 

it thinks the Union Bridge kiln’s variability is more representative. In those circumstances, EPA 

could refuse to base new source floors on the Suwannee kiln only if that kiln were not “similar,” 

and EPA does not make any claim that the Suwannee kiln is not similar to other kilns in the 

category, far less provide any rational basis for such a claim. 

 EPA’s argument for refusing to set existing source floors at the level achieved by the best 

performing twelve percent of non-CISWI kilns for which it has emissions information is 
16

egregiously unlawful and borders on contemptuous of the Court’s decisions in PCA and in 

NRDC. EPA claims that it can somehow include the “variability” of the Union Bridge kiln in its 

floor analysis even if it removes the kiln itself from its floor calculations. In attempt to support 

that claim, the agency argues nonsensically that because it has more data for the Union Bridge 

kiln than it has for other kilns, there is a demonstrated relationship between the variability of the 

Union Bridge kiln and the variability of the top-performing non-CISWI kilns that allows it to 

attribute the former’s variability to the latter. 77 Fed. Reg. at 42,373. 

 Existing source floors must reflect the average emission level achieved by the relevant 

best performing sources. If the Union Bridge kiln is not among these sources – and EPA claims 

it is not – the agency may not base floors on the performance of the Union Bridge kiln in any 

sense. 

 Nor may EPA attribute the variability of the Union Bridge kiln to the relevant best 

performing sources. Because § 112(d)(3) requires floors to reflect the “average” emission level 

achieved by those sources, EPA may not set standards at a different level just because a source 

that is not among the relevant best performers has more variability. Nor, contrary to EPA’s 

claim, does the brick kilns decision hold or even suggest that EPA may import the variability of a 

source that is not even in a category to change the average emission level achieved by the 

relevant best sources that are in that category. Rather, it merely reiterates the holding in CKRC

that EPA “may not use emission levels of the worst performers to estimate variability of the best 

performers without a demonstrated relationship between the two.” Sierra Club, 479 F.3d at 882. 

Here, far from using the emission levels of the Union Bridge to estimate the variability to 

estimate the variability of the best performing non-CISWI kilns, EPA is expressly excluding 

these emission levels from its floor calculations. As a result, it is violating the requirements of 

§ 112(d)(3) by seeking to import the Union Bridge’s variability into the floor calculations. In 

any event, EPA has not demonstrated any relationship between the variability of Union Bridge 

kiln and the variability experienced by the other kilns, and the mere fact that EPA has more data 

for the Union Bridge kilns does not come anywhere close to demonstrating such a relationship. 

 In addition to its THC standard, EPA’s 2010 rule provided a 9 ppmvd alternative nondioxin organic HAP standard as an alternative to the THC standard. 42,380/2. EPA’s proposal 

raises that to 12 ppmvd because EPA claims to have discovered that 12 ppmvd rather than 9 

ppmvd is three times the representative detection level. Because floors set at three times the 

RDL do not even purport to reflect the emission level actually achieved by the relevant best 

performing sources, they are flatly unlawful. Further any claim that such floors do reflect the 

relevant sources’ emission levels would be arbitrary. EPA provides no record basis for such a 

claim, far less demonstrates the validity of any such claim with substantial evidence. Indeed, the 

agency’s treatment of non-detect levels has no relation to the statutory requirements and amounts 

to an attempt by EPA to elevate its own policy views over Congress’ plainly expressed intent 

that standards must reflect the best sources’ actual performance. 

 For all the reasons given in these comments, EPA should withdraw its ill-advised and 

unlawful proposal, conduct a process to gather verifiable information regarding which kilns are 

CISWI to respond to the remand in PCA and then propose a new proposal that responds to the 

remand – and does not exceed the scope of the remand – once it has information on which a 
17

lawful and non-arbitrary response to the remand can be based. If the agency forges ahead with 

its current proposal, however, it may not simply ignore those parts of the Clean Air Act with 

which it does not currently wish to comply; the agency must set standards for THC that reflect 

the average emission level actually achieved by the relevant best-performing sources. 

VI. EPA’S PROPOSED REVISIONS TO THE HCl STANDARDS ARE UNLAWFUL. 

 Because removing the CISWI kilns did not change EPA’s floor calculations for hydrogen 

chloride, the agency proposes to leave the existing HCl standards unchanged. Commenters 

support this decision. 

 EPA also proposes, however, to add new compliance alternatives for meeting the HCl 

standards, including allowing plants equipped with dry scrubbers to comply via periodic 

performance tests rather than continuous emissions monitors and allowing sources to use CEMS 

for SO2 to show compliance with the HCl standard. 77 Fed. Reg. at 42,831. 

 EPA’s rationale for allowing sources using wet scrubbers to comply with the HCl 

standards via periodic compliance tests rather than CEMs was that wet scrubbers are so efficient 

that that periodic monitoring rather than CEMS provide sufficient assurance of compliance. Dry 

scrubbers, however, are less efficient that wet scrubbers. EPA does not claim that they provide 

the sufficient assurance of compliance such that CEMS are not necessary. Indeed, sources 

equipped with dry scrubbers could nonetheless violate standards depending on whether the 

scrubbers are being operated efficiently and what the input of chlorine to the kiln is. 

 EPA’s proposal to allow plants to use SO2 CEMS instead of showing compliance with 

the HCl standard is unlawful. EPA must set standards for each hazardous air pollutant that 

cement plants emit, and cannot meet that obligation by setting standards for other pollutants 

instead, unless the agency establishes a valid surrogacy relationship. 

 EPA now claims that “pilot scale tests” support the use of SO2 as a surrogate where wet 

or dry scrubbers are used. 42,381/2-3. That argument is not relevant to the test for a valid 

surrogate. Indeed, EPA does not even mention the established test for demonstrating a valid 

surrogacy relationship, far less show that it has been met. In particular, EPA does not claim that 

HCl is invariably present in SO2, not could the agency make any such claim, which would be 

obviously false. Likewise, EPA does not claim that methods to reduce SO2 are the only means 

of reducing HCl, which can be reduced through the use of fuels and feed materials with lower 

chlorine levels as well as the use of control technologies that reduce SO2 emissions. 

Accordingly, any claim that SO2 is a valid surrogate for HCl would be unlawful and arbitrary. 

 Further, EPA states that it would allow plants to set SO2 CEMS levels at “the highest 1 

hour average recorded during the HCl performance test” effectively making that SO2 level the 

source’s only compliance obligation with respect to HCl. Even if the source subsequently stayed 

below that SO2 level, it would not necessarily comply with the HCl standard. First, because the 

“highest” recorded HCl level during a compliance test would not necessarily comply with the 

HCl standard, EPA is effectively proposing to allow sources to meet an SO2 standard that is less 

stringent than the promulgated HCl standard. Thus, EPA is effectively proposing to allow 

sources to exceed emission standards that were set at the statutory minimum stringency. Second, 
18

even if the “highest” HCl level were below the standard, a source could subsequently operate in 

compliance with the associated SO2 level but out of compliance with the HCl standard if, for 

example, the level of chlorine in a source’s fuel or feed increased. 

VII. EPA’S PROPOSED REVISIONS TO THE STARTUP AND SHUTDOWN 

STANDARDS ARE UNLAWFUL AND ARBITRARY. 

 EPA states it is amending the PM standards for startup and shutdown to be “consistent 

with” the revised PM standards for normal operations. 77 Fed. Reg. at 42,382. Because the 

revised PM standards are unlawful and arbitrary for the reasons given above, and must be 

withdrawn or vacated, revising the startup and shutdown standards to be “consistent” with them 

would also be unlawful and arbitrary. Further, relaxing the PM standards for startup and 

shutdown violates § 112(d)(7) for the reasons given above. In addition, EPA does not even 

purport to show that the revised startup and shutdown standards comport with § 112(d)(3) far 

less demonstrate with substantial evidence that they do so, as the agency must. Even assuming 

that EPA could revise the startup and shutdown standards to be consistent with the agency’s 

revised PM standards for normal operations, the agency does not explain why it believes that 

they are “consistent.” 

 EPA also proposes to change the definition of “startup” to mean until “continuous raw 

material feed is introduced.” That language suggests that plants can introduce raw materials into 

the kiln during “startup” or “shutdown” mode so long as they do not introduce it “continuously.” 

Allowing sources to introduce raw materials into the kiln during startup and shutdown at all is 

inconsistent with the concept of startup and shutdown, and is, effectively, a loophole that allows 

plants to operate their kilns and produce cement without meeting the relevant emission standards. 

EPA does not provide any explanation for allowing plants to avoid compliance with normal 

emission standards when they are introducing any raw materials into the kiln at all. 

 EPA says that kilns’ actual emissions during startup and shutdown should be much less 

than in normal operations because feed contributes so much to emissions. If that is true and if 

EPA insists on promulgating separate standards for startup and shutdown, it underscores that the 

emission standards applicable to startup and shutdown should be more stringent, not less 

stringent, than those that apply during normal operations. All of EPA’s numerical emissions 

standards must fully comply with the stringency requirements of § 112(d)(2) and (3). EPA’s 

revised standards for startup and shutdown do not satisfy the floor requirements of § 112(d)(3); 

EPA does not show or even claim that they reflect the emission level achieved by the relevant 

best performing plants. Likewise, they do not satisfy the requirements of § 112(d)(2); EPA does 

not show or even claim that they reflect the maximum degree of reduction in emissions that can 

be achieved. 

 EPA proposes to eliminate the requirement that sources use CEMs to demonstrate 

compliance during startup and shutdown and to allow them to show compliance through nothing 

more than their own records. Again EPA seeks to justify the change by claiming it expects 

emissions to be below standards). Even if the revised standards were lawful and non-arbitrary, 

recordkeeping by itself does not assure compliance and is therefore both unlawful and arbitrary. 
19

 EPA also proposes to change the HCl standard applicable to periods of startup and 

shutdown from 0 to 3ppmvd. This change contravenes § 112(d)(7). Further, the new standard 

does not even purport to satisfy either the floor requirements in § 112(d)(3) or the requirements 

for final standards in § 112(d)(2) . It reflects neither the emission level achieved by the relevant 

best performing sources nor the maximum achievable degree of reduction. 

 Although EPA refused to set work practice standards in 2010 rule, it now solicits 

comment on whether it should do so because emission standards are not feasible to prescribe or 

enforce. 77 Fed. Reg. at 42,383. Clean Air Act § 112(h) allows EPA to set work practice 

standards instead of emission standards only if it is “it is not feasible . . . to prescribe or enforce 

an emission standard,” because “a hazardous air pollutant or pollutants cannot be emitted 

through a conveyance designed and constructed to capture such pollutant,” or “the application of 

measurement methodology to a particular class of sources is not practicable due to technological 

and economic limitations.” 42 U.S.C. § 7412(h)(1)-(2). Nothing in the record shows that it is not 

feasible to prescribe or enforce emission standards during startup and shutdown. Indeed, EPA 

does not even so claim. Accordingly, setting work practice standards instead of emission 

standards would violate § 112(h). 

VIII. EPA MAY NOT EXEMPT PLANTS THAT ROUTE THEIR POLLUTION 

THROUGH COAL MILLS FROM ANY REQUIREMENTS IN THE § 112 RULE. 

 EPA suggests that cement plants that choose to route their kiln emissions through a coal 

mill stack could be allowed to meet the 2009 new source performance standard for PM 

emissions. Such an approach would be lawful only if these NSPS are as stringent or more 

stringent than lawful PM standards for cement plants under § 112. To the extent they are less 

stringent, allowing plants to meet them violates the anti-backsliding requirements of § 112(d)(7), 

the floor requirements of § 112(d)(3) and the beyond-the-floor requirements of § 112(d)(2). 

IX. EXTENDING THE COMPLIANCE DATE FOR EXISTING SOURCES WOULD 

BE UNLAWFUL AND ARBITRARY. 

 EPA proposes to extend the compliance date for existing sources by two years. 77 Fed. 

Reg. at 42,385-42,386. EPA claims, without explanation, that the changes to the PM standard 

themselves may justify the extension. EPA also claims that the new PM standard may be 

achievable by other, lesser, means. In particular, it claims plants may “cancel” upgrades to their 

equipment or just use smaller or different controls. EPA does not say which plants would do this 

or what the changed control strategies might be. EPA then states that plants could need 15-27 

months to design new control measures, although it doesn’t claim to know what different 

measures, if any, will be used at which plants. 

 EPA’s proposal to extend the compliance date is unlawful for several reasons. First, for 

the reasons given above, EPA’s proposed changes to the PM standards – on which the agency 

seeks to base its proposed extension of the compliance date – are themselves unlawful and 

arbitrary and must be withdrawn or vacated. Accordingly, basing a compliance date extension 

on those unlawful changes is also unlawful and arbitrary. 
20

 Second, because § 112(d)(7) precludes backsliding, § 112(i)’s compliance date provision 

must be read as precluding compliance date extensions to provide for backsliding. Section 

112(i) requires compliance to be as expeditious as practicable but no later than three years after 

the effective date of a standard. Because Congress did not intend EPA to weaken standards, it 

did not intend EPA to use unlawful weakening amendments to circumvent the 3-year outside 

limit on compliance dates. 

 Third, § 112(i)(3)(A) requires “compliance as expeditiously as practicable, but in no 

event later than 3 years after the effective date of such standard, except as provided in 

subparagraph....” 42 U.S.C. § 7412(i)(3)(A) (emphasis added). EPA robs the statutory 

“effective date” limitation of all meaning by pretending that it may re-set the outside compliance 

date beyond the 3-year outside date following the effective date of the original standard. 

Moreover, Congress specified the exceptions from the “as expeditiously as practicable, but in no 

event later than 3 years after the effective date of such standard” provision, saying “except as 

provided” in the enumerated subparagraphs. Id. (emphasis added). For example, § 112(i) 

provides for case-by-case compliance extensions of up to one year to allow for the installation of 

controls. It is a long-accepted canon of statutory interpretation that when Congress enumerates 

specific exceptions to a statutory scheme, an agency may not create additional or different 

exceptions from the prevailing prescription or proscription. Here that means compliance may 

not be extended beyond the effective date of the original standard. Congress did not intend to 

allow EPA to continually re-set the compliance dates any time it subsequently amended the 

standards, as this would rob section 112(i)(3)(A) of its plain meaning. Indeed, reading the Act to 

allow EPA to grant extensions of the compliance dates by just making revisions to the standards 

before they arrive thus would enable the agency to perpetually put off compliance with emission 

standards by just making one set of revisions after another – defeating § 112’s deadlines and 

compliance date requirements and frustrating Congress’ intent in enacting them. 

 Fourth, EPA claims that overall emission reductions will be “roughly the same” as under 

the 2010 rule and that “sources will still need to meet essentially the same daily average as they 

would under the 2010 standard.” Id. at 42,386. To the extent EPA is not making significant 

changes to the PM standard but merely adjusting it to reflect a different compliance period – 3-

hour stack tests rather than 30-day rolling averages – the agency lacks any authority to extend the 

compliance date and the extension violates § 112(i). See NRDC, 489 F.3d at 1373-1373. 

 EPA suggests PCA’s holding on staying the clinker pile requirements supports its 

extension. To the contrary, that was discussion of staying rules that EPA was required to 

change. It lends no support to delaying compliance with rules that EPA seeks to revise as a 

discretionary matter, a fortiori where those changes are unlawful and arbitrary. 

 Notably, if EPA promulgated new standards that were more stringent than existing 

standards -- i.e., took action that the Clean Air Act does allow – it would not extend the 

compliance date for the existing standards; rather it would require compliance with existing 

standards to take place in accordance with § 112(i) and then set new compliance dates for the 

new more stringent standards. Here, extending the compliance date so that some plants might be 

able to do less to control their emissions is egregiously unlawful and arbitrary. Indeed, it is 

irresponsible of EPA to propose to grant a compliance extension that it lacks authority to grant, 
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and it would be irresponsible of plant owners or operators to rely on such an unlawful proposal 

to put off the steps they need to take to reach full compliance with the 2010 standards by the 

existing 2013 compliance date. If EPA promulgates the compliance date extension and it is 

vacated or stayed by a court, owners and operators will have only themselves to blame for 

having relied on EPA to take unlawful or arbitrary action on their behalf. 

 Even if EPA could lawfully promulgate some extension to the compliance date – i.e., 

even if its proposed changes to the PM standards were not unlawful and even if those changes 

were a valid reason to move the compliance date to some extent – EPA does not show that the 

proposed compliance extension is necessary or that it is requiring compliance with the revised 

standards as expeditiously as possible, as § 112(i) expressly requires. EPA does not say which 

plants will change their compliance strategies, or indeed, state definitively that any plants will 

change their compliance strategies in response to the proposed changes to the PM standards. 

Instead, the agency merely speculates that proposed .07 standard “may” be achievable by means 

other than a baghouse, implying that some hypothetical plant that may have been planning to 

install a baghouse might now choose to either cancel the installation and rely on its existing 

control equipment or to install less effective controls than it originally intended. 77 Fed. Reg. at 

42,386. Because such vague hypothesizing does not show that compliance by 2015 is as 

“expeditious as practicable,” EPA’s proposed extension of the compliance date violates § 112(i). 

 EPA does not even claim that its proposed 2015 compliance date is as expeditious as 

practicable but, if it did, any such claim would be unsupported by the record and therefore 

arbitrary. EPA argues – again without providing any specifics – that some types of change in 

compliance, which some unidentified plants might or might not undertake, could take up to 27 

month and that the agency does not want cement plants to have to make changes except during 

winter months. But absent some showing that there are actual plants that will make actual 

changes and need EPA’s proposed extension to do so, the agency’s vague and abstract discussion 

of the amount of time that some types of change might take lends no support to the agency’s 

proposed action. Again, if additional time were needed by specific plants, those plants could 

obtain it lawfully under § 112(i)’s provision for case-by-case extensions, and EPA provides no 

reason to believe that mechanism would not suffice. 

 Even if EPA’s proposed changes to the PM standards provided a lawful and non-arbitrary 

basis for extending the compliance date for those standards, they do not support extending the 

compliance dates for all the other standards, which EPA proposes not to change. It bears 

emphasis that EPA’s standards for mercury, THC, and HCl are first-time standards that are not in 

place at all now, even though the Clean Air Act unambiguously required EPA to promulgate 

them in 1997 and the D.C. Circuit, just as unambiguously, ordered EPA to promulgate them in 

2000 in National Lime. EPA has unlawfully deprived the public of these statutorily required 

standards for more than a decade. Delaying compliance with these standards now, even though 

they are not changing, is not just unlawful and arbitrary but an abandonment of EPA’s 

fundamental mission to protect human health and the environment under the authority and 

requirements that Congress established in the Clean Air Act. EPA provides no rationale for 

extending the compliance dates for standards other than its PM standard. Instead, the agency 

merely notes in passing that “compliance strategies for the other HAP, all of which involve some 

element of PM control, also may be affected.” That sort of conclusory and self-serving 
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speculation is no substitute for reasoned agency decisionmaking. EPA’s failure to provide a 

rationale basis for extending the compliance dates for mercury, HCl and THC – an extension that 

will expose Americans to highly toxic pollution for two more years following twelve years of 

already-unlawful delay – adds yet another arbitrary aspect to the agency’s action. 

X. EPA SHOULD REQUIRE REPORTING AND RECORDKEEPING FOR 

STARTUP, SHUTDOWN, AND MALFUNCTION EVENTS. 

 EPA proposes to require reporting and recordkeeping for SSM events. 77 Fed. Reg.at 

42,388. These additional requirements are necessary to prevent or reduce excess emissions 

during such events and to allow EPA, States, and the public to enforce violations of emissions 

standards. Commenters support adding these requirements. 

XI. EPA’S NEW ATTEMPTS TO JUSTIFY THE AFFIRMATIVE DEFENSE ARE 

WITHOUT MERIT. 

 EPA now argues that the affirmative defense meets the continuous compliance 

requirement “by ensuring that even where there is a malfunction, the emission limitation is still 

enforceable through injunctive relief.” 42,379/1. To the contrary, the affirmative defense does 

not make injunctive relief available; it was already available under the Clean Air Act. All the 

affirmative defense does is restrict the availability of other relief. 

 EPA also claims it is reasonable to incorporate “flexibility” into continuous compliance 

requirement. EPA has no authority to alter the continuous compliance requirement at all. It is a 

statutory requirement, and EPA’s job is to implement it, not rewrite it to suit the agency’s policy 

preferences. 

 EPA argues “the affirmative defense ... is not relevant to the amount of any penalty to be 

assessed. If a court determines that the affirmative defense elements have been established, then 

a penalty is not appropriate and penalty assessment pursuant to the section 113(e)(1) factors does 

not occur.” 77 Fed. Reg. at 42,379. That argument is absurd; a provision that can prevent the 

assessment of any penalties at all is, at a minimum, “relevant” to penalties. 

 EPA also claims that where it “defines its emissions limitations and enforcement 

measures to allow a source the opportunity to prove its entitlement to a lesser degree of violation 

(not subject to penalties), penalties under § 304 are not “appropriate” under § 304. Neither the 

Clean Air Act nor even EPA’s own regulations, however, define the emission limitations to 

allow a source to avoid penalties. EPA is free to so define its own “enforcement measures,” but 

attempting to limit courts’ enforcement authority violates § 304 and § 113(e)(1). In any event, 

there is no such thing as a “lesser degree of violation” under the Clean Air Act. Any violation is 

a violation, and Congress intended citizens to be able to bring enforcement actions where any 

violation occurs and to seek penalties in such actions. To be sure a court may determine that the 

some violations warrant smaller penalties or no penalties at all, but that is a decision for a court 

to make based on the facts before it and the penalty provisions in § 113(e)(1). 

CONCLUSION
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 EPA must withdraw its proposed revisions to the cement plant rule and allow the 2010 

rule to take effect as written.