From: Stephanie Maddin < smaddin@earthjustice.org > To: Group A

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- R

- DOCKET@EPA, Sharon Nizich/RTP/USEPA/US@EPA
Cc: James Pew < jpew@earthjustice.org > Date: 09/17/2012 07:51 PM Subject: S upplemental Information for Public Hearing Record (EPA

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- OAR

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- 0817)

Good evening Ms. Nizich,

As a supplement to the hearing testimony on August 16, 2012, please enter the at tached 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

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- 0817).

Best regards,

_______________________________ Stephanie Maddin Legislative Counsel Earthjustice
Suite 702 Washington DC, 20036

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F: 202

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- 2356 www.earthjustice.orgUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

__________________________________________ )

National Emission Standards for Hazardous )

Air Pollutants for the Po rtland 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 protec tion from toxic polluti on including mercury, hydrochloric acid, and toxic orga nic pollutants that Congress had intended to guarantee by enacting the Clean Air Act. EPA’s past disregar d 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 sufferi ng 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 mone y value of these health benefits, according to EPA, is between $6.7 billion and $18 billion ever y year. Even if the compliance date is not delayed, EPA’s failure to issue lawful standard s 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 da ys of work. The money value of this damage will be between $87.1 billion and $234 billi on. 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 plac e; it does not count the damage from their emissions of toxic metals like mercury, arsenic and lead, their emi ssions 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 ha s issued subject to a private settlement agreement that it has reached with the Port land Cement Association (PCA) in litigation concerning the agency’s air toxics standa rds for cement plants. 77 Fed. Reg. 27,055, 27,056 (May 8, 2012). Although that settlement has ye t 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 “sett ling” 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 d ecide 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 sp ecificity during the period for public comment.” 42 U.S.C. § 7607(d)(7)(B). PC A 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 th at 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 variati ons 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 rema ining 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 ever y eight years, “nothi ng prohibits EPA from reassessing them more often.” Id.

 Contrary to its claims in court, PCA ha d an opportunity to comment on EPA’s adoption of a continuously-monitored standard for pa rticulate 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 st ay, 42 U.S.C. § 7607(d)(7)( B), and because it is unlikely that significant changes will be made to the standards on reconsid eration, we see little3 chance of PCA suffering irreparable harm.” Id. 1 In short, the Court ru led for EPA on all issues in the litigation except for one purely procedural issue. The Court urged EPA to act expeditiously on remand, but di d not order EPA to respond to its remand by any specific date and expressly noted that PCA’s remedy, if it be lieves that the agency is not responding expeditiously enough, is to sue th e 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 th e 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 settleme nt 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 rare ly grants rehearing pe titions. Here, EPA does not identify any issue on which it thinks there is even a plausibl e chance that the D.C. Circuit might do so, nor does the agency provide any basi s 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 ob jection 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 abou t control technology was, far from being unlawful or arbitrary, required by the plai n 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 Wast e 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 shutdow n periods were barred by a strai ghtforward 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 it s 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 st orage 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 substant ive remand in cases where environmental groups – representing citizens adversely impacted by toxic emissions – we re petitioners. The cement standards at issue here, for example, were promulgated in response to the D.C. Circuit’s re mand 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 st andards that industry groups unsuccessfully challenged in Medical Waste Inst. were promulgated approximately ten years after the original § 129 standards for me dical 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 rush es to respond to the remand in PCA it continues to allow far more significant and substantive remand s 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 ye ars 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 rela tively 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. Althoug h the Court found that it lacked jurisdiction to review PCA’s challenge on th e 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 es timate it provided to the Court in 2011, see id. at 189 (“it is unlikely that any signifi cant changes will be made to th e standards on reconsideration”) – the agency has not yet issued its final revise d definition of non-haza rdous 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 separa te regulation under § 129) and which kilns are not burning solid waste (and are therefore properly s ubject to the agency’s cement plant rule under § 112). 77 Fed. Reg. at 42,372. Specifically, EPA cl aims that its count of 24 waste-burning kilns will remain unchanged regardless of the re consideration process “because either the types of secondary materials being addressed in th at 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 arou nd the country. Although the agency gathered some information informally when it initially reached its conclu sion that 24 kilns are burning waste the agency still has not sent out a § 114 re quest (or even a voluntary request) about what5 materials each kiln is burning a nd whether the kiln’s owner plans to operate it as a cement plant or a CISWI unit. Thus, regardless of what defin ition 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 wh ich 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 tim ing 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 knowle dge through the § 114 process – put s 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 fo r 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 th is 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 disc overed problems with de monstrating 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 w ith industry that conducting an

audit of the PM CEMS in accordance with Performance Specification (PS) 11 could be problematic. Rather than attempting to solve th ese problems, EPA agreed with industry – again without providing any opportunity for public inpu t – 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 abov e, EPA elected to enter into a completely unnecessary post-decision “settleme nt” with industry which require d 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 volunt ary “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 th e 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 cemen t 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 uncerta inty” 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 filt erable 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 th is change alone would not be enough to cure any alleged problems with the us e of PM CEMS. Further, even if moving to a

6-hour test would not be suffici ent, the agency provides no reas on to believe that moving to a longer test period (e.g. 12 hours) would not be. 2

EPA claims that because cemen t plants’ particles vary in si ze and other characteristics, PS 11 correlations developed for one set of condi tions may not apply to other conditions. Although EPA admits that some plants are alrea dy 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 pr edicated on CEMS that can be correlated to PS 11 regardless of variations in particle size is irrelevant. O bviously, 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 ou t consideration of different PM CEMS. EPA speculates that predicating standards on a diffe rent type of CEMS “is likel y to take several years.” Id. EPA provides absolutely no explanati on or record support for that speculation, however. Moreover, the agency’s refusal to consider other technologies for this pu rpose 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 th e use of CEMS for SO2, even though it “had no

data that demonstrated a direct link between HCl emi ssions 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 othe r PM CEMS, EPA further admits that “PS 11 provides for means to minimize the eff ects of changing particle sizes.” Id. at 42,375 n11. The agency states that it did not even “consider su ch 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 complia nce with any standards for another two years.

Finally, EPA does not say why it is necessa ry to use PS 11 to audit PM CEMS. The agency does not deny that other performance speci fications 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 calcula tions would have to “account for any PM CEMS measurement uncertainty,” id. , but provides no reason that th is would not be possible.7 changes to the standards it promulgated. Th e conclusory, inconsis tent 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 d ecision 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 Sta ndards Would Violate Clean Air Act § 112(d)(7) If They Make The Standards Less Stringent.

EPA states that because it proposes to m easure compliance with PM standards with periodic stack tests inst ead of PM CEMS, it is also proposi ng 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 exis ting 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 an alysis, but admits in the record that this change would not result in so gr eat a change. Thus, the specif ic 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 abandonmen t of the PM CEMS requirements.

Clean Air Act § 112(d)(7) provides “no emissi on 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 is sued under State authority. 42 U.S.C. § 7412(d)(7) (emphasis added). Because § 112 is an “authority of this Chapter,” § 112(d)(7) unambiguously preclude s EPA from applying new § 112 standards “to diminish or replace the requirements of a more stringent limit ation” under § 112. Ther efore, to the extent EPA’s proposed standards would diminish or re place more stringent standards in the existing rules, they are unlawful.

EPA argues in a footnote that although § 112(d )(7) “indicates that se ction 112(d) does not ‘trump’ any standard established under other auth ority which is more stringent,” does not bar it from “amending section 112(d) standards to co rrect technical deficiencies.” 77 Fed. Reg. 42,368, 42,371 n1 (July 18, 2012). That argument is besi de the point. Regardless of whether EPA may have some authority to correct “tech nical deficiencies” in its rules, § 112(d)(7) precludes the agency from weakening them. In a ny event, EPA states that its changes will allow cement plants to do less to control their emission s and to emit an additional 135 tons of PM into the air each year, not to men tion unquantified additional amounts of lead, arsenic, and other hazardous air pollutants for which the agen cy asserts that PM is a surrogate.

To the extent EPA is claiming that it can w eaken 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 are8 corrections to “technical deficiencies.” Indeed, the D.C. Circuit has alr eady 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 satisf ying the requirements of § 112( c)(9), 42 U.S.C. § 7412(c)(9), just by claiming that it was correcti ng its original decision to list th em. 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, itmust 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 revise d floors for existing plants at the 99% upper prediction limit, which is the number EPA expects any future test by any s ource in the top twelve percent of sources for which it has emissions in formation to fall below. Because Clean Air Act § 112 unambiguously requires EPA to set floors re flecting the “average” emission level achieved by the best sources, setting floors that instead re flect 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 pr eferences for Congress’s pl ainly expressed intent. See New York v.

EPA , 443 F.3d 880, 885 (D.C. Cir. 2006) (“courts must gi ve effect to each word of a statute”); New Jersey v. EPA , 517 F.3d 574, 582 (D.C. Cir. 2008) (reje cting statutory reading that

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

By claiming that it can use the UPL for all s ources in the top twelve percent, EPA also misreads its authority to consider variability und er the Clean Air Act and relevant caselaw. Although EPA may consider variabi lity 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 exce pt as § 112 provides, by averaging the emission levels achieved by the sources in the top twelve percent. Indeed, EP A errs by viewing the

different emission levels achieved by different sources as “variab ility” 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 re spects. 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 us e of different measures of performance to identify the top sources on the on e hand and to evaluate their performance on the other is inconsistent, i rrational, 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 stan dards that are not covered by a remand order.9 result to identify the best performers but the aver age 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 te st results consistently to pick the best performers and measure their performan ce; 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 fo r using different metrics to m easure sources’ performance for the purpose of identifying the best sources and fo r 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 99 th percent UPL. By its nature, a UPL predicts sources’ variability in performance based on char acteristics 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 lim it variability in emissions – or at least upward variability – by maintaini ng and operating the source carefully to control emissions. Yet, as both EPA and the D.C. Circuit have recognized, ope rator 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. Doi ng so is just as unla wful and arbitrary as setting floors that ignore the effect s of cleaner fuel use; it results in floors that do not reflect the best sources’ actual performance.

Moreover, EPA rounds up its emission test re sults for the purpose of setting standards even though the agency’s po licy is to round them down for the purpose of determining compliance. Specifically, EPA rounds up UPL valu es less than 100 to one significant figure, and rounds up UPL values between 100 and 1000 to tw o 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 roundi ng 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 fo r standard setting and compliance determinations is inconsistent, ir rational, unexplained, and therefore arbitrary.

For new plants, EPA’s floors must reflect th e emission level achieved by the single best performing kiln in the category, not the best pe rforming 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 th e category, nor could it plausibly advance such a claim without in formation 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. Al though it may be permissible to set new unit floors “at a level that reasonably estimat es 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 mark s 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 e xpects all future tests by th at 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 stat es without any discussi on 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 stri ngent than the PM standards it had proposed. 75 Fed. Reg. at 54988. As articulated in both the 2010 rule and the 2009 pr oposal, the agency’s rationale for refusing to set be yond-the-floor standards was that the beyond-the-floor standard it was considering would reduce the total PM emissi ons from cement plants by just three tons a year at a cost of $576,000 per ton of PM removed, a “cost-effectiveness” th e agency regarded as inappropriate. Id. ; 74 Fed. Reg. at 21155.

EPA’s claim that the rationale it offered fo r 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 revi sions would increase PM emissions by 135 tons per year. 77 Fed. Reg. at 42,387. Setting beyond-the-f loor standards at the level of the 2010 rule therefore, would result in a reduc tion of 135 tons per year, not three tons per year. The reasons EPA gave in 2010 for refusing to set a beyond-the-fl oor standard that woul d yield only three tons in PM reductions do not – contrary to EPA’s current claim – suppor t 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 unachievabl e within the meaning of § 112(d )(2). To the contrary, EPA states that changes to the PM standard will result in annual sa vings of just $4.2 million spreadacross the entire cement industry. 77 Fed. Reg. at 42,390. Thus, the annual cost of a beyondthe-floor standard set at the le vel 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 econo mically 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-e ffectiveness justifies re fusing to set beyond-the-floor standards, let alone provide any rational ba sis for any such claim.

To the extent EPA is offering its 2010 cost-e ffectiveness rationale for its current proposal not to set beyond-the-floor standa rds, its proposal is not only ar bitrary for the reasons given above but unlawful. Clean Air Act § 112 re quires the “maximum” degree of reduction in11 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 langua ge unambiguously requires
the “maximum” degree of reduction that 

### can be achieved considering cost and the other statutory factors. EPA’s conten tion that it can reject beyond-the-floor standards merely because

it views their cost-effectivene ss as inappropriate contravene s Congress’s plainly expressed intent. By rejecting beyond-the- floor measures on cost-effectiv eness grounds – without even addressing whether they are too costly to be “achievable” – EP A 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 EP A to set standards requiring the “maximum” degree of reduction th at is “achievable,” not the de gree 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 partic ular language in one section of a statute

but omits it in another section of the same Ac t, 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 st andards resulted largely from its decision to change the compliance period from a 30 day roll ing average to a three run Method 5 test. 77 Fed. Reg. at 42,376. However, the proposed standa rds 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 testi ng 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 pl ants 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 paramete r monitoring system] CP MS 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 para meter 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 valu e recorded during the performance test.” Id. In short, whereas the existing rule requires continuo us compliance with actu al emission standards, the proposed rule effectively requires complian ce 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 th at it recorded during the yearly stack test.

To make matters worse, EPA allows s ources 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 em ission 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 complia nce with a thirty-day rolling average, and the real di fference is not the change in th e compliance period but in allowing existing sources to use a thirty-day rolling averag e to meet a site-specific operating limit loosely

based on a .07 emission standard rather than to meet an actual .04 emission standard, and new12 sources to use a thirty-day rolling average to me et 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 constitu te plants’ only compliance obligation during the vast majority of their operating time, they ar e 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 essent ially 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 string ent as the emission limits because they are set not at the average CPMS reading but the single worst 1 hour aver age 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 contra vene § 112(d)(3) and be arbitrary because they do not reflect the rele vant best sources’ performance.

To set operating standards in a manner that are not less stringent th an 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 th e same 30-day rolling average it used in the final rule and then have operati ng standards set during pe rformance 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 th e worst emission level EPA expects any source in the top twelve percen t 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 unla wfully 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 operati ng time, it does not equate violation of these operating limits with violation of the emission st andards. Instead, the proposal states that exceeding the operating limits even with a thirty-day rolling av erage 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 violati on,” 77 Fed. Reg. at 42,398, ma king clear that a plant can violate its operating limit – ev en on a 30-day rolling average – without violating its emission standards or incurring any liability.

Perhaps recognizing that its proposal effec tively allows plants to avoid continuous compliance with any emission standards for PM (let alone lawful one s), EPA proposes that exceedances of operating limits will require source s 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 opera ting period, it will be “presumed” to be in

violation of its emission standard s. Establishing a limit on the num ber of times that plant owners can exceed their operating limits and some consequen ces for frequent exceedances is helpful. If EPA finalizes the proposed standards, commenters ur ge the agency to retain and strengthen these provisions by spelling out that a single exceed ance of operating limits is presumed to be a

violation of emission standards. Limiting the extent to which th e proposed standards’ laxity can13 be abused and exploited, however, does not make them either legal or adequate. Instead of trying to limit the adverse cons equences from revisions to th e PM standard, EPA should abandon those provisions and withdraw its proposal.

IV. WEAKENING THE MERCURY ST ANDARDS 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 proposi ng 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 woul d be unlawful. EPA has set its revised floors for existing plan ts 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 le vel 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 m eaning 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 stat utory reading that “substitute s EPA’s desires for the plain text” of the statute”)

By claiming that it can use the UPL for all s ources in the top twelve percent, EPA also misreads its authority to consider variability und er the Clean Air Act and relevant caselaw. Although EPA may consider variabi lity 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 exce pt as § 129 provides, by averaging the emission levels achieved by the sources in the top twelve percent. Indeed, EP A errs by viewing the

different emission levels achieved by different sources as “variab ility” 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 re spects. 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 us e of different measures of performance to identify the top sources on the on e hand and to evaluate their performance on the other is inconsistent, i rrational, 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 aver age 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 floors14 themselves are also higher. If EPA had either: (1) used average te st results consistently to pick the best performers and measure their performan ce; 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 fo r using different metrics to m easure sources’ performance for the purpose of identifying the best sources and fo r 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 99 th percent UPL. By its nature, a UPL predicts sources’ variability in performance based on char acteristics 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 lim it variability in emissions – or at least upward variability – by maintaini ng and operating the source carefully to control emissions. Yet, as both EPA and the D.C. Circuit have recognized, opera tor 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. Doi ng so is just as unla wful and arbitrary as setting floors that ignore the effect s of cleaner fuel use; it results in floors that do not reflect the best sources’ actual performance.

Moreover, EPA rounds up its emission test re sults for the purpose of setting standards even though the agency’s po licy is to round them down for the purpose of determining compliance. Specifically, EPA rounds up UPL valu es less than 100 to one significant figure, and rounds up UPL values between 100 and 1000 to tw o 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 roundi ng 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 fo r standard setting and compliance determinations is inconsistent, ir rational, 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 wa ste within the meaning of § 112(d)(3). Id. at 42372 & n3. Commenters support this decision. The ag ency solicits comment, however, “on whether

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

retention of the 2010 new source st andards on this basis is consis tent with the D.C. Circuit’s opinion.” Id. On that point, EPA is correct. Clea n Air Act § 112(d)(3) requires EPA to base

new source standards on the best controlled “sim ilar source,” not the best controlled “identical” source, and nothing in the record suggests that CISWI kilns are ca nnot 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 Cour t intended to preclude EPA from considering

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

Should EPA decide to set revised new sour ce floors, those floors would be unlawful. Section 112(d)(3) requires new source floors to re flect the emission level achieved by the single best performing kiln in the category, not the be st performing kiln for which it happens to have15 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 in formation 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 th is source achieved in practice but rather the 99 percent UPL for this kiln. Al though it may be permissible to set new unit floors “at a level that reasonably estimat es 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 mark s 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 e xpects all future tests by th at unit to fall below. 42 U.S.C. § 7429(a)(2); Sierra Club , 479 F.3d at 880.

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

STANDARDS WILL BE UNLA WFUL AND ARBITRARY.

EPA states that when it recalculates the THC floors after excluding the CISWI kilns, “the existing source floor for THC becomes more stri ngent 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 ca lculation, 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 prim ary 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 m eaning 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 re presentative of variability.” Id. Clean Air Act § 112(d)(3) unambiguously requires EPA’s floor s for new sources to reflect the emission level achieved by the single best performing source, not the sour ce 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 c ontrolled “similar” kiln, it cannot refuse to base floors on the next best-performi ng 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 Suwa nnee kiln only if that kiln were not “similar,” and EPA does not make any claim that the Suwann ee kiln is not similar to other kilns in the category, far less provide any rati onal basis for such a claim.

EPA’s argument for refusing to set existing so urce floors at the leve l achieved by the best performing twelve percent of non-CISWI kilns for which it has emissions information is16 egregiously unlawful and borders on cont emptuous 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 cal culations. 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 demons trated relationship between the variability of the Union Bridge kiln and the variab ility 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 aver age 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 vari ability of the Union Bridge kiln to the relevant best performing sources. Because § 112(d)(3) requires floors to refl ect the “average” emission level achieved by those sources, EPA may not set standard s at a different level just because a source that is not among the relevant be st performers has more variabili ty. Nor, contrary to EPA’s claim, does the brick kilns decision hold or even suggest that EPA may impor t the variability of a source that is not even in a category to cha nge the average emission level achieved by the

relevant best sources that are in that cate gory. 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 performi ng 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 fl oor calculations. In any event, EPA has not demonstrated any relatio nship between the variability of Union Bridge kiln and the variability experienced by the other k ilns, 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 detecti on level. Because floors set at three times the RDL do not even purport to reflect the emission le vel actually achieved by the relevant best performing sources, they are flatly unlawful. Fu rther 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 su ch 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 w ithdraw its ill-advised and unlawful proposal, conduct a proces s to gather verifiable inform ation 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 th e remand – once it has information on which a17 lawful and non-arbitrary response to the remand can be based. If the agen cy 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 ag ency must set standards for THC that reflect the average emission level actually achieved by the relevant best-perfo rming sources.

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

Because removing the CISWI kilns did not ch ange 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 co mpliance alternatives for meeting the HCl standards, including allowing pl ants equipped with dry scrubbers to comply via periodic performance tests rather than c ontinuous 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 usi ng wet scrubbers to comply with the HCl standards via periodic compliance tests rather th an CEMs was that wet scr ubbers are so efficient that that periodic monitoring rather than CEMS provide sufficient assuran ce of compliance. Dry scrubbers, however, are less effici ent that wet scrubbers. EPA doe s not claim that they provide the sufficient assurance of compliance such th at CEMS are not necessary. Indeed, sources equipped with dry scrubbers could nonethele ss violate standards depending on whether the scrubbers are being operated efficiently and wh at the input of chlorine to the kiln is.

EPA’s proposal to allow plants to use SO 2 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 obligat ion by setting standards for other pollutants instead, unless the agency establishe s a valid surrogacy relationship.

EPA now claims that “pilot scale tests” s upport the use of SO2 as a surrogate where wet or dry scrubbers are used. 42,381/2-3. That argume nt is not relevant to the test for a valid surrogate. Indeed, EPA does not even mention th e established test for demonstrating a valid surrogacy relationship, far less show that it has b een 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 th e use of fuels and feed materials with lower

chlorine levels as well as the use of c ontrol technologies that reduce SO2 emissions. Accordingly, any claim that SO2 is a valid surro gate for HCl would be unlawful and arbitrary.

Further, EPA states that it would allow plants to set SO2 CEMS leve ls at “the highest 1 hour average recorded during the HCl performance test” effectiv ely making that SO2 level the source’s only compliance obligation w ith respect to HCl. Even if the source subsequently stayed below that SO2 level, it would not necessarily co mply 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 allo w 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 mi nimum 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 ou t 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 standard s for startup and shutdown to be “consistent with” the revised PM standards for normal ope rations. 77 Fed. Reg. at 42,382. Because the

revised PM standards are unlawfu l and arbitrary for the reasons given above, and must be withdrawn or vacated, revising th e startup and shutdown standards to be “consistent” with them would also be unlawful and arbitrary. Furthe r, relaxing the PM sta ndards for startup and shutdown violates § 112(d)(7) fo r the reasons given above. In addition, EPA does not even purport to show that the revise d startup and shutdown standards comport with § 112(d)(3) far

less demonstrate with substantial evidence that th ey do so, as the agency must. Even assuming that EPA could revise the startup and shutdown st andards 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 sugges ts 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, e ffectively, 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 allo wing 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 dur ing 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 separa te standards for startup and s hutdown, it underscores that the emission standards applicable to startup and shutdown should be more stringent, not less stringent, than those that a pply during normal operations. All of EPA’s numerical emissions standards must fully comply with the stringenc y requirements of § 112(d)(2) and (3). EPA’s revised standards for startup a nd shutdown do not satisfy the floor requirements of § 112(d)(3); EPA does not show or even claim that they re flect the emission level achieved by the relevant best performing plants. Likewise , they do not satisfy the requir ements 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 seek s to justify the change by claiming it expects emissions to be below standards). Even if th e revised standards were lawful and non-arbitrary, recordkeeping by itself does not assure compliance and is therefore both unl awful and arbitrary.19 EPA also proposes to change the HCl standa rd applicable to periods of startup and shutdown from 0 to 3ppmvd. This change contrave nes § 112(d)(7). Further, the new standard does not even purport to satisfy e ither the floor requirements in § 112(d)(3) or the requirements for final standards in § 112(d)(2) . It reflects neither the emissi on level achieved by the relevant best performing sources nor the maxi mum achievable degree of reduction.

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

comment on whether it should do so because emissi on 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 standa rds only if it is “it is not feasib le . . . to prescribe or enforce an emission standard,” because “a hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to captu re such pollutant,” or “the application of measurement methodology to a partic ular 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 stan dards during startup and shutdown. Indeed, EPA does not even so claim. Accordingly, setti ng 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 RE QUIREMENTS 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 standa rds for cement plants under § 112. To the extent they are less stringent, allowing plants to meet them violates the anti-backsliding requ irements of § 112(d)(7), the floor requirements of § 112(d)(3) and the beyond-the-floor require ments 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 explanat ion, 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 particul ar, it claims plants may “cancel” upgrades to their equipment or just use smaller or different contro ls. EPA does not say which plants would do this or what the changed control stra tegies might be. EPA then stat es that plants could need 15-27 months to design new control measures, alt hough 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 backsl iding, § 112(i)’s compliance date provision must be read as precluding compliance date ex tensions 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 Congr ess did not intend EPA to weaken standards, it did not intend EPA to use unlawful weakening am endments to circumvent the 3-year outside limit on compliance dates.

Third, § 112(i)(3)(A) requires “compliance as expeditiously as prac ticable, but in no event later than 3 years after the effective date of such st andard, except as provided in subparagraph....” 42 U.S.C. § 7412(i)(3)(A) (em phasis added). EPA robs the statutory “effective date” limitation of all meaning by prete nding 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 th e effective date of such standa rd” 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 pr oscription. 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 complian ce dates any time it subsequently amended the standards, as this would rob sect ion 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 revi sions 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 frustra ting 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 EP A is not making significant changes to the PM standard but merely adjusti ng it to reflect a differe nt compliance period – 3-

hour stack tests rather than 30-da y rolling averages – the agency lacks any authority to extend the compliance date and the exte nsion 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, th at was discussion of staying ru les that EPA was required to change. It lends no support to delaying complian ce 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 acti on that the Clean Air Act does allow – it would not extend the compliance date for the existing standards; ra ther 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 eg regiously unlawful and arbitrary. Indeed, it is irresponsible of EPA to propose to grant a compli ance extension that it lack s authority to grant,21 and it would be irresponsible of plant owners or operators to re ly on such an unlawful proposal to put off the steps they need to take to re ach full compliance with the 2010 standards by the existing 2013 compliance date. If EPA promulga tes the compliance date extension and it is vacated or stayed by a court, owners and opera tors 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 so me extension to the compliance date – i.e., even if its proposed changes to the PM standards were not unlawf ul 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 requi ring compliance with the revised standards as expeditiously as po ssible, as § 112(i) expressly re quires. EPA does not say which plants will change their compliance strategies, or indeed, state defi nitively that any plants will change their compliance strategies in response to the proposed changes to the PM standards. Instead, the agency merely speculates that pr oposed .07 standard “may” be achievable by means other than a baghouse, implying that some hypothe tical plant that may have been planning to install a baghouse might now choose to either cancel the installation a nd rely on its existing control equipment or to install less effective cont rols 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 prac ticable,” 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, a ny such claim would be unsupported by the record and therefore arbitrary. EPA argues – again without providing a ny 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 pl ants 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 cha nge 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 thos e standards, they do not support extending the compliance dates for all the othe r standards, which EPA proposes not to change. It bears emphasis that EPA’s standards for mercury, THC, a nd HCl are first-time standards that are not in place at all now, even though the Clean Air Ac t unambiguously required EPA to promulgate them in 1997 and the D.C. Circuit, just as una mbiguously, 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 strategi es for the other HAP, all of which involve some element of PM control, also may be affected.” That sort of conclusory and self-serving22 speculation is no substitute for reasoned agency decisionmaking. EPA’s failure to provide a rationale basis for extending the compliance date s for mercury, HCl and THC – an extension that will expose Americans to highly toxic pollution fo r two more years following twelve years of already-unlawful delay – adds yet another ar bitrary aspect to th e agency’s action.

X. EPA SHOULD REQUIRE REPORTING AND RECORDKEEPING FOR STARTUP, SHUTDOWN, AND MALFUNCTION EVENTS.

EPA proposes to require reporting and reco rdkeeping for SSM events. 77 Fed. Reg.at 42,388. These additional requirements are necessa ry to prevent or reduce excess emissions during such events and to allow EPA, States, a nd the public to enforce vi olations of emissions standards. Commenters suppor t adding these requirements.

XI. EPA’S NEW ATTEMPTS TO JUST IFY 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 availa ble; it was already available u nder the Clean Air Act. All the

affirmative defense does is restrict th e availability of other relief.

EPA also claims it is reasonable to incor porate “flexibility” into continuous compliance requirement. EPA has no authority to alter the con tinuous compliance requirement at all. It is a statutory requirement, and EPA’s job is to implem ent 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 affirma tive defense elements have been established, then a penalty is not appropriate a nd 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), pe nalties under § 304 are not “appropr iate” 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 vi olates § 304 and § 113(e)(1). In any event, there is no such thing as a “lesse r degree of violation” under the Cl ean 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 pena lties in such actions. To be su re a court may determine that the some violations warrant smaller penalties or no pena lties 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).

CONCLUSION23 EPA must withdraw its proposed revisions to the cement plant rule and allow the 2010

rule to take effect as written.