FREDRICK J. DINDOFFER FDINDOFFER@BODMANLAW.COM 313-393-7595

BODMAN PLC 6TH FLOOR AT FORD FIELD 1901 ST. ANTOINE STREET DETROIT, MICHIGAN 48226 313-393-7579 FAX 313-259-7777 

# bodman
ATTORNEYS & COUNSELORS January 17, 2013 Ms. LisaJackson,Administrator BrendaMallory, GeneralCounsel GinaMcCarthy, Assistant Administrator, Air and Radiation U. S. EnvironmentalProtectionAgency Headquarters Ariel Rios Building 1200 PennsylvaniaAvenue, N.W. Washington, D.C. 20460 Mr. George Czerniak,ActingDirector Ms. JaneWoolums, Esq. Ms. PamelaBlakley, Chief Mr. Douglas Aburano, Chiefand Mr.John Summerhays Air and Radiation Division U. S. EnvironmentalProtectionAgency Region 5 77 W. Jackson Boulevard Chicago, Illinois 60604-3590 Re: Petition for Reconsideration ofAppro?JalandPromttlgation

**~fAir**Qttaliry Implementation Plans;Michigan; RegionalHaze State Implementation Plan;Federal Implementation P/anforRegionalHaze, DocketNumberEPA-R05-0AR-2010-0954, 77 FR71533 (Dec. 3, 2012)
DearMadams and Sirs: Enclosed please find a Petition for Reconsideration of the above-captioned rule, submittedby St. Marys Cement, Inc. (U.S.) under42 U.S.C. 7607(d)(7)(B). We would be happy to discuss this with you at your convenience. Please advise us ofthe next steps. Sincerely,

Fredrick

## J. Dindoffer
FJD/ndd Enclosure

DETROIT TROY ANN ARBOR CHEBOYGAN DALLAS

### BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY



### In re: ST. MARY'S CEMENT, INC. EPA Docket#: EPA-R05-0AR-2010-0954 Petitioner

FredrickJ. Dindoffer NathanD. Dupes BODMANPLC 61h

### FlooratFordField 1901 St. Antoine Street Detroit, Michigan48226 PETITION FORRECONSIDERATION



### Telephone: (313) 259-7777 Facsimile: (313) 393-7579 fdindoffer@bodmanlaw.com ndupes@bodmanlaw.com 

### Counsel for St. Mary's Cement, Inc.

Dated: January 17, 2013

Detroit_l266564_ 4

### TABLE OFCONTENTS

INTRODUCTION
..........................................................................................................................1 EXECUTIVE SUMMARY
...........................................................................................................1 BACKGROUND
............................................................................................................................3 ARGUMENT
..................................................................................................................................6 I. 

### The StandardsForGrantingA Petition ForReconsideration
......................................7 II. The SMCLetterConclusively DemonstratesThatTheCharlevoixFacilityIs NotBART-Eligible
.............................................................................................................8 A. TheStandardsForGrantingA Petition for Reconsideration,Based On TheSMCLetter,HaveBeen Met
...............................................................................8 

### B. EPA ShouldHaveIndependentlyMadeABART-Eligibility Determination
.............................................................................................................11 C. TheMDEQLetterConfirmsThatBARTRequirements Do NotApply,

### It ShouldHaveBeen Docketed,And

### ItFormsAn IndependentBasis For Reconsideration
..........................................................................................................15 CONCLUSION
............................................................................................................................17

Detroit_l266564_ 4

### INTRODUCTION 

### St. Marys Cement, Inc. (U.S.) ("SMC") petitions the United States Environmental Protection Agency ("EPA"), pursuant to 42 U.S.C. 7607(d)(7)(B), to convene a proceeding for reconsideration of the following final rule: 

### Approval and Promulgation ofAir Quality Implementation Plans; Michigan; Regional Haze State Implementation Plan; Federal Implementation Planfor Regional Haze, Docket Number EPA-R05-0AR-2010-0954, 77 FR 71533 (Dec. 3, 2012) (the "Rule"); and accordingly SMC requests that EPA determine that SMC's Charlevoix, Michigan plant ("Charlevoix Plant") is not subjectto the requirements ofthe Best Available Retrofit Technology ("BART") provisions ofthe Clean Air Act ("CAA'') and associated emissions limits, and that EPA: (1) vacatethe Rule; and (2) disapprove the portions of the Michigan SIP that soughtto impose BARTemissions limits onthatfacility. EXECUTIVE SUMMARY 

### This Petition is being filed to protect SMC's substantive and procedural rights to challengethe application ofBARTemissions limits establishedbythe Rule. Underthe CAA and EPA'sregulations, BARTrequirements only apply to a major source ifit "was not in operation prior to August 7, 1962, and was in existence on August 7, 1977" 

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

### is this 15-year BARTeligibilityperiodthat is the subject ofthis Petition. The Rule was signed on November 26, 2012 and published on December 3, 2012. More than five weeks earlier, SMC notified EPA that the Charlevoix Plant was not subject to BART requirements because the plant emissions sources had been reconstructed after August 7, 1977. This was reiterated to EPA at a meeting with George Czerniak, Acting Director ofthe EPA Region 5Air and Radiation Division, on November 2, 2012. As suggested by Director Czerniak

Detroit_l266564_ 4

### this was confirmed again by aNovember 12, 2012 letter from SMC ("SMC Letter". See 

### Exhibit 

### A). EPA acknowledged this submission in the final Rule. (See, 

### 77 FR 71537, n.1). After the Rule was signed, but before it was published, the Michigan Department of Environmental Quality separately determined thatthe Charlevoix Plant is not BART-eligible, and informed EPA ofthat determination in aNovember29, 2012letterto EPA ("MDEQ Letter". See ExhibitB). 

### EPA acknowledged that SMC had raised the issue ofBART eligibility and placed the SMC Letter in the public docket for the rulemaking. However, EPA chose not to delay promulgation ofthe Rule. EPA's footnote in the final Rule states that it will carefully consider the BART eligibility question and take any action warranted. SMC is confident that EPA will do
so. Unfortunately, any judicial challenge to the Rule must be filed within 60 days after its publication. EPA originally stated that it would be able to act on the BART eligibility question before the 60-day period ended. However, in later discussions, EPA stated that may not occur. Therefore, because the time deadline for seekingjudicial review is quickly approaching, SMC seeks to protect is rights throughthis formal Petitionfor Reconsideration. EPA should convene a proceeding to reconsider and vacate the Rule because the BART eligibility issues were impracticable to raise before the close ofthe public comment period and,
more importantly, because the issues raised are centrally relevant because they show that the EPA lacks authority to impose regional haze BART emissions limitations on SMC's Charlevoix Plant.

2 Detroit 1266564 4

- -

### BACKGROUND On November 5, 2010, Michigan submitted a revision to its State Implementation Plan ("SIP") to address the regional haze requirements under CAA section 169A (42 U.S.C. 7491) and under the EPA's Regional Haze Rule (40 CFR 51.308) See 

### Document ID: EPA-R05-0AR2010-0954-0002.1 Underthe CAA and EPA'sregulations, BARTrequirements only apply to a major source ifit "was not in operation priorto August 7, 1962, and was in existence on August 7, 1977" ["BART-eligible."] 40 CFR 51.308(e), 51.301; 42 U.S.C. 7491(b)(2)(A). It 

### is this 15-year BARTeligibility period that is the subject ofthis Petition. As required by EPA's regulations, Michigan identified a number of stationary sources within its border that it thought might be "BART-eligible." One ofthose sources identified in Michigan's SIP submission was SMC's Charlevoix Plant.2 

### Michigan then determined that the existing permitted emissions limits for PM, NOx, and S02 at the Charlevoix Plant represented BART emissions limits required by EPA's Regional Haze Rule. Accordingly, under Michigan's SIP submittal, SMC's current operations and emissions satisfied the BARTlimits that Michigan determined were appropriate. From a practical view, SMC therefore had no need or incentive to investigate the matter further. It 

### was in compliance with the BART limits in Michigan's SIP submittal. On August 6, 2012, EPA published a proposed rule to approve in part Michigan's SIP revision, disapprove the revision in part, and to implement a Federal Implementation Plan

I Referencesto Document IDs throughoutthis petition are to identification numbers the EPA assigned to documents

it placed on the public docket for the Michigan regional haze rulemaking. 2By its November29, 2012 letter, MDEQ informed EPAthatthe listing ofthe Charlevoix Plantwas erroneous. See

ExhibitB. 

### 3 Detroit_l266564_ 4

### ("FIP") that would, among other things, set much more stringent BART emissions limits for SMC's Charlevoix Plant. 77 FR 46912. The proposed rule established a month-long public comment period ending on September 5, 2012. 

### !d. On September 5, 2012, SMC filed comments
on the proposed rule and asked that they be placed in the public record, which they were. SMC's initial comments challenged EPA's technical decision to reject Michigan's BART determination for the Charlevoix Plant and also challengedEPA'sproposed BARTFIP emissions limits. On October 10, 2012, EPA and the MDEQ met with SMC at the EPA Region 5 Headquarters in Chicago to discuss the BART matters addressed in the proposed rule, and then followed up that meeting with several exchanges ofemails, written correspondence and several telephone conference calls. A further meeting was held among EPA, MDEQ and SMC on November 2, 2012 at the Region 5 Headquarters. SMC requested that all ofthat subsequent correspondence and related documents also be placed in the public record docket, which they
were. 

### See, e.g., DocumentID: EPA-R05-0AR-2010-0954-0053. SMC came to the realization at the October 10 meeting and during a subsequent conference call onOctober 18 thatEPAwouldnot change its position onthetechnical matters of the BART standards. Accordingly, SMCreevaluated the situationfrom the beginning, including both technical and legal issues. Thus for the first time SMC focused attention on the BARTeligibility question, which required substantial time and effort both because SMC had only owned the Charlevoix Plant since 2005 and because the BART-eligibility time window required the location and analysis ofrecords and MDEQ permit files from the 1960s and 1970s, many of which were not in SMC'spossession. After a review ofthe plant records and files, MDEQ archived documents, and interviews with long-term employees, SMC concluded that the basic premise ofboth Michigan's proposed
4 Detroit_l266564_ 4

### SIP revision and EPA's proposed rule were faulty. In fact, SMC determined that its Charlevoix Plant was not BART-eligible because it was a reconstructed source (as defined by EPA regulations) and the reconstruction began after August, 7, 1977

- outside ofthe BART-eligibility window. See 

### 40 CFR 51.301; Appx. Yto Part 51. SMC informed EPA ofits initial findings in a conference call on October 24, 2012. Then SMC reiterated its findings to EPA during a November 2, 2012 meeting with George Czerniak and others at the EPA Region 5 Headquarters. Director Czerniak encouraged SMC to provide any additional information on that issue to EPA promptly because the agency intended to issue the Rule very soon. Accordingly, within days SMC compiled its information and submitted its November 12, 2012 letter, which demonstrated that its facility was not BART-eligible. SMC reminded the EPA that it had previously agreed that SMC could supplement the administrative record by letter. SMC requested that the EPA accept the letter and exhibits as additional comments on the proposed rule, which EPA did by posting the comments on December 1, 2012. See 

### Document ID: EPA-ROS-OAR-2010-0954- 0051. On November 29, 2012, the MDEQ sent to EPA (via U.S. Mail and electronically) a letter agreeing with the conclusions in the SMC Letter and confirming that the state ofMichigan has itself reviewed the matter and determined that the SMC Charlevoix Plant is not BARTeligible. See 

### Exhibit B. 

### The MDEQ letter explained that previously the department had not analyzed the fact that reconstructionhad occurred after the BART eligibility windowhad closed. To date, EPA has not entered the MDEQ Letter onto the public docket. As explained below, the MDEQ Letter shouldbe enteredbythe EPA onthepublic docket.



### 5 Detroit 1266564 4

- -

### Despite the SMC and MDEQ Letters, the EPA published its final Rule on December 3, 2012 implementing a FIP for the Charlevoix Plant. 77 FR 71533. However, EPA included the following footnote with respectto the SMC Letter: EPA has had a number of meetings and discussions with SMC since proposing action on Michigan's regional haze plan and the FIP imposing BART limits on SMC and Escanaba Paper. On November 12, 2012, SMC electronically submitted additional comments in which it asserts that the Charlevoix plant is not BART-eligible because construction that took place at the plant in 1979 constituted a "reconstruction" for BART applicability purposes. This issue was not raised in Michigan's SIP submittal or in SMC's previous written comments. Nevertheless, EPA will carefullyreview the new comments and take any action warranted. However, because it did not receive the comments until it was in the last stages ofpreparing this final action, well after the close of the comment period, EPA could not consider the comments in takingthis action. 77 FR71537, fn. 1. The effective date ofthe Rule is January 2, 2013. Petitions forjudicialreview ofthe Rule must be filed by February 1, 2013. This Petition is submitted within the time forjudicialreview, and accordingly it is timely. 

### ARGUMENT As demonstrated byboththe SMC and MDEQ Letters and their exhibits, neitherthe state ofMichigan northe EPAhas the authorityto impose BARTrequirements for SMC's Charlevoix Plant. Congress explicitly defined which sources couldbe subjectto BARTrequirements and the Charlevoix Plant falls outside ofthe eligibility window. See 

### 42 U.S.C. 7491(b)(2)(A). Because EPA docketed the SMC Letter and because the issue it raised is crucial to determination ofone of the principal requirements imposed by the EPA's final rule, EPA acted arbitrarily and capriciously in failing to give a reasoned consideration ofthe SMC Letter before publishing the final Rule. The EPA also should have analyzed the BART-eligibility issue on its own because this was akey assumptionunderlyingthe final Rule. 6 Detroit_l266564 _ 4

### The EPA should convene a proceeding to address this petition for reconsideration ofthe Rule.based on the objection raised in the SMC Letter because the objection is centrally relevant to the final Rule. The MDEQ Letter was transmitted to EPA after the Rule was signed, but before it was published in the Federal Register. The MDEQ Letter nonetheless should be placed in the public docket and considered by the EPA because it is of central relevance to the rulemaking. The standards for a petition for reconsideration have been met and the EPA should grant SMC'sPetition.

I. The Standards For GrantingA Petition ForReconsideration. The CAA mandates that the EPA shall convene a proceeding for reconsideration where three requirements are met: (1) Apersonmakes an objection; (2) It 

### was impracticable to raise the objection during the period for public comment or the grounds for the objection arose after the period for public comment (butwithinthetime forjudicialreview); (3) the objection is ofcentral relevance to the outcome ofthe rule. 42 U.S.C. 7607(d)(7)(B). The objections raised inthe SMC and MDEQ Letters meet the requirements for granting reconsideration, as discussedbelow. Moreover, apetitionfor reconsideration ofafinal rule under the CAA may be used to challenge procedural errors committed by the EPA in the rulemaking process. 

### SeeAmericanPetroleumInstitute v. Castle, 665 F.2d 1176, 1191 (D.C. Cir. 1981). SMC also challenges EPA's decision not to respond adequately to the SMC Letter and not to docket and respond to the MDEQ Letter. Procedural errors committed by the EPA during rulemaking warrant reversal ofits action where "the errors were so serious and related to matters ofsuch central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed ifsuch errors had notbeenmade."42 U.S.C. 7607(d)(8). 7 Detroit 1266564 4

- -

### II. The SMC Letter Conclusively Demonstrates That The Charlevoix Facility Is Not BART-Eligible. 

### By its November 12, 2012letter, SMC objected to the imposition ofBARTrequirements for its Charlevoix Plant. After considering the SMC Letter, the EPA should have made a final determinationthat the Charlevoix Plant is not BART-eligible. A. The Standards For Granting A Petition for Reconsideration, Based On The SMC Letter, Have Been Met. 

### The first statutory requirement for granting a petition for reconsideration is met because SMC objected to the imposition ofBART-requirements and it is a "person" under the CAA. 42 U.S.C. 7602(e). The second requirement for granting the petition is met because it was impracticable for SMC to raise the BART-eligibility objection within the 30-day time period EPA allotted for public comment on the proposed rule. Businesses have multiple tasks to perform and multiple regulatory requirements to meet. When a regulation is proposed that does not require significant
new action or significant new investment, there is no reason to challenge it. Thus, when Michigan originally set BART emissions limits for the Charlevoix Plant in the Michigan SIP revision, SMC had no reason to investigate the facts implicating BART-eligibility for several
reasons. First, the Charlevoix Plant already was satisfying emissions limits that the SIP proposed
as BART limits for the Charlevoix Plant. Second, the BART limits stated in the Michigan SIP did not require SMC to install any new technological controls at the facility or to increase its expensesbeyond what it already was incurring. It

### would have been irrational for SMC to expend
resources investigating the issue because no operational savings would have resulted. Third, SMC was aware that othercementmanufacturing plants that were ofroughlythe same vintage as the Charlevoix Plant had received BART limits approximately the same as those included in the
8 Detroit_l266564 _ 4

### Michigan SIP for Charlevoix. Therefore, there was every reason to believe that the Michigan SIP revision would be adopted. After the EPA published its notice ofproposed rulemaking ("NPRM") on August 6, 2012 and for most ofthe short public commentperiod, SMC reasonably believed that the EPA was simply misinformed on the technical matters behind the BART limits EPA proposed to impose in a FIP. SMC believed that by educating EPA regarding the age and design oftheplant, the feasibility oftheproposed emissions controls, and the effectiveness ofthe existing control technology, EPA would come to understand and affirm Michigan's BART determination. In fact, it was not until the October 10, 2012 meeting with EPA (over a month after the conclusion ofthe public comment period) that SMC realized that EPA was not going to modify its conclusions on the technical aspects of the NPRM. SMC then investigated all aspects of BART relating to the Charlevoix Plant. This investigation included review of the historic records for the Charlevoix Plant, which was the first time SMC became aware ofmuch ofthe history ofthe plant's construction, and its reconstruction in 1979. This required considerable time and effort given the age of the records, the need to retrieve records from the state of Michigan that SMC did not have, and the fact that SMC has only owned the Charlevoix Plant since 2005. SMC immediately identified historic plant information that showed the Charlevoix Plant likely was not BART eligible. This was brought to EPA's attention two weeks later in an October 24, 2012 conference call. SMC continued its reviewby obtaining MDEQ archived files that it did not possess. After SMC had analyzed the data, the records, andre-reviewedthe BART eligibility regulations, it reiterated its findings to EPA during aNovember 2, 2012 meeting with George Czerniak and others, at the EPA Region 5 Headquarters. Director Czerniak encouraged
9 Detroit_l266564 _ 4

### SMC to provide any additional information on that issue to EPA promptly because the agency intended to issue the Rule very soon. Accordingly, SMC submitted its November 12, 2012 letter. The SMC Letter is succinct, does not contain lengthy exhibits, and was submitted to EPA nearly a month before the EPA published the final rule. See 

### Exhibit 

### A. In light ofthe foregoing, it was impracticable for SMC to raise this objection during thepublic commentperiod. The third requirement for granting a petition

- that the objection is centrally relevant to the outcome ofthe final rule

- is self-evident. EPA impliedly already recognized this because it docketedthe SMC Letter eventhough it was received afterthe public commentperiod. The CAA provides the following with respect to docketing comments in arulemaking: Promptly upon receipt by the agency, all written comments and documentary information on the proposed rule received from any person for inclusion in the docket during the comment period shall be placed in the docket. The transcript ofpublic hearings, ifany, onthe proposed rule shall also be included in the docket promptly upon receipt from the person who transcribed the hearings. All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability. 42 U.S.C. 7607(d)(4)(B)(i) (emphasis added). The SMC Letter was submitted to the EPA after the close ofthe public commentperiod. EPA understood that it was centrally relevant to the rule and placed it in the public docket. EPA has adopted this interpretation ofthe statute: This provision draws a distinction between comments and other information submitted during the comment period, and other documents which become available after the publication of the proposed rule. The former are docketed irrespective of their relevance or merit, while the latter must be docketed only if a higher hurdle of central relevance to the rulemaking is met. See 

### EPA'sDenial ofthe Petitions to Reconsiderthe Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act ("EPA Endangerment Petitions Denial"), 75 FR49561. 10 Detroit_l266564
_4

### It 

### cannot be seriously disputed that the facts and conclusions in the SMC Letter are centrally relevant to the outcome ofthe rule.3 

### EPA has interpreted "centrally relevant" to mean that the objection "provides substantial support for the argument that the regulation should be revised." EPA Endangerment Petitions Denial, 7 5 FR 49561. The visibility section ofthe CAA gives the EPA and the States authority to impose BART requirements on a major stationary
source "which is in existence on August 7, 1977, but which has not been in operation for more than fifteen years as ofsuch date." 42 U.S.C. 7491(b)(2). As demonstrated in the SMC Letter, the Charlevoix Plant was reconstructed after August 7, 1977. And, according to EPA's regulations: The "in operation" and "in existence" tests apply to reconstructed sources. If an emissions unit was reconstructed and began actual operation before August 7, 1962, it is not BART-eligible. Similarly, any emissions unit for which a reconstruction "commenced" after August 7, 1977, is not BART-eligible." 

### 40 CFR Part 51, Appx. Y, Section II(4) (emphasis added).Because the Charlevoix Plant is not BART-eligible, neither the EPA nor Michigan has the authority to impose BART emissions limits. It 

### is difficult to conceive ofa more centrally relevant objection to the final rule. All the requirements have been met to grant the petition and the EPA must "convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the informationbeen available at the time the rule was proposed." 42 U.S.C. 7607(d)(7)(B). B. 

### EPAShould Have Independently Made A BART-Eligibility Determination.

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

EPA-R05-0AR-2010-0954-0051. 

### 11 Detroit_l266564_ 4

### EPA appears to have taken the position that because it did not receive the SMC Letter until it had begun to finalize its final rule, it did not need to analyze and respond to the issues raised by the SMC Letter. That position is untenable because it is foreclosed by the statutory requirements. As discussed above, the CAA mandates that EPA convene a proceeding for reconsideration of a rule where the statutory requirements are met. There is no discretion involved. Those requirements have been met because SMC objected to the imposition ofBART emissions limits, it was impracticable to raise that objection during the public comment period, andthe objection is centrally relevant because ifSMC is not BART-eligible, there is no authority underthe CAAto impose BARTrequirements on SMC'sCharlevoix Plant. The visibility sections ofthe Clean Air Act also impose an independent duty to respond to significant comments. Northeast Maryland Waste DisposalAuth. v. EPA, 358 F.3d 936, 950 (D.C. Cir. 2004) (interpreting CAA section 307(d)(6)(B)). Although these sections explicitly apply to comments submitted during the comment period, the EPA also should have responded substantively to the SMC Letter, which was docketed before the final rule was published and therefore determined to be centrally relevant by the EPA. The EPA's footnote in the final rule stating that it will consider the SMC Letter at some point in the future, after the rule becomes effective, does not discharge the agency's duty to "examine the relevant data and articulate a satisfactory explanationfor its actions." Portland CementAss'n v. EPA, 665 F.3d 177, 187 (D.C. Cir. 2011). Moreover, the SMC Letter presented the EPA with crucial new information that should have been considered before final action was taken. Agencies "have an obligation to deal with newly acquired evidence in some reasonable fashion 

## * * * or to reexamine their approaches ifa significant factual predicate changes." !d. 

### Put another way, the EPA must "respondin a reasoned
12 Detroit_l266564_ 4

### manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule." 

### Navistar Intern. Transp. Corp. v. EPA, 941 F.2d 1339, 1360 (6th Cir. 1991). Based on the evidence put forward by the SMC Letter, the factual predicate for EPA's imposition ofBART requirements on the Charlevoix Plant was changed -the plant is not BART-eligible in the first instance. The EPA also should have, 

### sua sponte, examined in detail the BART-eligibility issue before taking action on Michigan's SIP submittal, irrespective ofthe SMC or MDEQ Letters. "EPA retains a duty to examine key assumptions as part of its affirmative burden of promulgating and explaining a nonarbitrary, non-capricious rule and therefore [] EPA must justify that assumption even ifno one objects to it during the comment period."

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

### Appalachian Power, the court held that a statutory compliance date for a particular rule was clearly a key assumption for the rule that EPA should have examined regardless ofwhat objections were offered during the public comment period. !d. 

### The assumption that a source is BART-eligible and therefore potentially subject to BART emissions limits is likewise a key assumption underlying EPA's final Rule. Given the very specific definition of a BART-eligible source and EPA's detailed regulations explaining howto determine whether a source is BART-eligible, the EPA shouldhave conducted its own investigation ofthe Charlevoix Plant's history to determine in the first instance whether there was authority to impose BARTrequirements. This is especially true where Michigan's SIP submittal did not provide any detail on its BART-eligibility determination for the Charlevoix Plant. 

### See Document ID: EPA-R05-0AR2010-0954-0002. With respect to BART, the Michigan submittal stated "The DNRE
13 Detroit 1266564 4

- -

### [Department ofNatural Resources] identified 35 non-EGU facilities with a total of84 emissions units within the state that were potentially subject to BART (i.e., BART-eligible) based on dates ofinstallation and commencement ofoperations (see Table 1in Appendix 9B)." Id. 

### at 24. Table 1 of Appendix 9B to the submittal lists purported BART-eligible sources in Michigan, but without stating any supporting facts. Id. 

### Appx. 9B. There is no discussion of when the Charlevoix Plant went into operation, no discussion ofthe late 1970s reconstruction, and no discussion ofthe permitting history. There is therefore no way for the EPA (or anyone else) to make a reasoned determination on the basic question underlying the controls imposed

- whether the Charlevoix Plant meets the specific definition of a BART-eligible source. The EPA erred when it failed to critically examinethe BART-eligibilityissue and the erroris significantbecause had it not been made, there is a "substantial likelihood that the regulations would have been significantly changed." Kennecott Corp. v. EPA, 

### 684 F.2d 1007, 1019 (D.C. Cir. 1982); see also 

### 42 U.S.C. 7607(d)(8). SMC recognizes that the EPA is under time constraints based on a consent decree entered in the case National Parks Conserv. Assoc. v. Jackson, 

### 11-cv-01548, (D.C. Cir. Nov. 9, 2011). Under that order, EPA was to sign a final rule by November 15, 2012 for Michigan's regional haze program. Nevertheless, the EPA has a duty to reconsider its rule where new information challenges the basis for the EPA's action. See Portland CementAss'n, 

### 665 F.3d at 187-188 (holding that deadline for rulemaking in settlement agreement not ajustification for dispensing with the rulemaking requirements). In fact, EPA has altered and extended those dates when it believed such actions were appropriate. For example, EPA dispensed with the time limitations in the consent decree in this rulemaking by publishing the final rule after the November 15 deadline. The EPA also extended those time limits in the context ofthe Arizona
14 Detroit_l266564_ 4

### regional haze submittal. The consent order requires that the EPA take final action on the Arizona regional haze program by the same date as required for Michigan, November 15,2012. However, EPA did not take final action on the Arizonaprogram until December 5, 2012. 77 FR72512. The proposed rule on the Arizona program was published July 20, 2012 (outside of the consent decree window) and initially set the deadline for public comments at August 31, 2012. 77 FR 42834. Later, the EPA gave notice that it was extendingthe public commentperiod to September 18, 2012. 77 FR 45326. Moreover, the terms of the consent decree provide that the time limitations imposed may be modified by stipulation ofthe parties or by leave ofthe court. In short, the deadlines in the consent decree could have been extended to address this seminal BART-eligibility issue, and do not excuse EPA's failure to convene a proceeding to reconsider the rule. C. The MDEQ Letter Confirms That BART Requirements Do Not Apply, 

### It Should Have Been Docketed, And 

### It Forms An Independent Basis For Reconsideration. 

### The MDEQ Letter lends further support for the fact that the Charlevoix Plant is not BART-eligible. See 

### Exhibit B. 

### As the MDEQ Letter states, Michigan has now determined that the Charlevoix Plant is not BART-eligible, based on a careful review of its files and the permitting history for the facility, which the state apparently did not review in making the original eligibility determination. It 

### also is apparent from the MDEQ Letter that Michigan did not thoroughly analyze the NSPS requirements applied to the reconstruction ofthe Charlevoix Plant before making a BART-eligibility determination. Although the EPA has not entered the MDEQ Letter onto the public docket, it should be docketed by the EPA and forms an independentbasis for granting SMC'spetition. The MDEQ Letter shouldbe docketedbecause it is centrally relevantto the final rule:
15 Detroit_l266564_ 4

### ***All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability. 42 U.S.C. 7607(d)(4)(B)(i). The MDEQ Letter should be docketed under this statutory standard because it is crucial; it independently verifies the conclusions made by SMC in the SMC Letter and confirms that neitherMichigan nor the EPA has the authorityto imposeBARTrequirements onthe Charlevoix Plant. This is especially significant because the statutory structure ofthe Clean Air Act "giv[es] the states broad authority over BART determinations."

### American Corn Growers Ass'n v. EPA, 291 F.3d 1, 8 (2002). The states are tasked in the first instance with reviewing all potential BART-eligible sources and determining which ofthose sources are BART-eligible and subject to BARTrequirements.ld. at 5. The MDEQ Letter also provides an independent basis for reconsideration of the rule. Although not phrased as such, the MDEQ Letter is an objectionto the EPA'sproposed approval ofthe BART-eligibility determination, therefore the first statutory requirement for granting a petition for reconsideration has been met. 

### See 42 U.S.C. 7607(d)(7)(B). More importantly, the second requirement is met because it was impracticable for SMC to raise this MDEQ determination as abasis for objectionto the Rule during the public commentperiod, because this letter did not exist at that time. 

### See id. MDEQ reviewed the SMC Letter and exhibits, then MDEQ reviewed its own files in detail when drafting its letter. 

### See Exhibit B. MDEQ should have reviewed the plant history thoroughly before proposingto designate the Charlevoix Plant as BART-eligible, but it did not. The MDEQ Letter is the first concrete evidence that SMC has, in which MDEQ admitted that it had not made the BART-eligibility determination properly. Accordingly, that evidence could not have been provided until after the close ofthe comment period. 16 Detroit 1266564 4

- -

### The third requirement for granting the petition is met for the same reasons as the SMC Letter- both documents demonstrate that the Charlevoix Plant is not BART-eligible because it
was reconstructed outside ofthe relevant time window. See 40 CFR Part 51, Appx. Y, Section II(4). Because the plant is not BART-eligible, the BART requirements of section 169A ofthe CleanAirAct cannot apply. See 42 U.S.C. 7491(b)(2)(A). Alternatively, the CAA provides that granting reconsideration is not only required where the objection was impracticable to raise during the public comment period, it is also required where "the grounds for the objection arose after the period for public comment (but within the time forjudicial review)." 42 U.S.C. 7607(d)(7)(B). Although the final Rule was not published until December 3, 2012, it was signed by the EPA Administrator on November 26, 2012. The MDEQ sent its letter to the EPA on November 29, 2012. Importantly, the MDEQ Letter stated, for the first time, thatthe MDEQhad made a mistake. It

### hadnot fully evaluatedplant history and did not consider whether the Charlevoix Plant was "reconstructed" outside of the BARTeligibility time window. See Exhibit B. 

### This fact and the other statements in the MDEQ Letter, which support SMC's position, arose after the time for public comment but within the time provided forjudicial review ofthe final Rule. See 42 U.S.C. 7607(d)(7)(B). Upon receipt ofthe MDEQ Letter, the EPA should have held a proceeding for reconsideration and permitted SMC and others to comment onthe MDEQ Letter. TheEPA'sfailure to do so is contraryto the CAA. CONCLUSION 

### The EPA's desire to finalize its Michigan Regional Haze Rule does not excuse ignoring information that undermines the authority to impose BART requirements on the Charlevoix Plant. The CAA mandates that the EPA docket the MDEQ Letter and convene a proceeding for reconsideration based on the SMC and MDEQ Letters. Moreover, EPA should have made its
17 Detroit 1266564 4

- -

### own initial review to determine whether the Charlevoix Plant was BART-eligible. Based on the available evidence and its own regulations, the EPA should make a final determination that the Charlevoix Plant is not BART-eligible, and accordingly should vacate the Rule and should disapprove the portions ofthe Michigan SIP that propose to impose BART emissions limits on the Charlevoix Plant.

Dated: January 17, 2013. Respectfully submitted,

Nathan D. Dupes BODMANPLC 6th

### FlooratFordField 1901 St. Antoine Street Detroit, Michigan48226 Telephone: (313) 259-7777 Facsimile: (313) 393-7579 fdindoffer@bodmanlaw.com ndupes@bodmanlaw.com 

### Counsel for St. Mary's Cement, Inc.

18 Detroit 1266564 4

- -

# EXHIBITAFREDRICK J. DINDOFFER FDINDOFFER@BODMANLAW.COM 313-393-7595

80DMAN PLC 6TH FLOOR AT FORD FIELD 1901 ST. ANTOINE STREET DETROIT, MICHIGAN 48226 313·393-7579 FAX 313-259-7777 

# bodman
AHOHNEYS &COUNSELOHS November 12, 2012

Ms. Pamela Blakley, Chief U. S. Environmental Protection Agency Control Strategies Section Air Programs Branch (AR-18) 77 WestJackson Boulevard

.Chicago, Illinois 60604 Mr. Douglas Aburano, Chiefand Mr.John Summerhays AttainmentPlanningand Maintenance Section Air and Radiation Division U. S. EnvironmentalProtection Agency Region 5 77 W. Jackson Boulevard Chicago, Illinois 60604-3590 Re: EPA DocketID No. EPA-R05-0AR-2010-0954 Supplemental Comments ofSt. Marys Cement, Inc. (U.S.) RegardingNotice ofProposed Rulemaking, Published at 77 Fed. Reg. 46912-46928, Dated Monday,August 6, 2012 DearMs. Blakley, Mr. Aburano andMr. Summerhays: As you are aware, St. Marys Cement, Inc. (U.S.) ("SMC") ftled comments to the above-captioned NPRM on September 5, 2012, asking that they be placed in the public record and be considered by USEPA in its deliberations concerning the referenced NPRM. Subsequently, on October 10, 2012, USEPA and MDEQ met with SMC at the Region 5 Headquarters in Chicago to discuss the BART matters addressed in the NPRl\tl, and then followed up that meeting with exchanges of email and other correspondence and a telephone conference call on October 24, 2012. Then, a further meeting was held among USEPA, MDEQ and SMC on November 2, 2012 at the Region 5 Headquarters in Chicago. SMC requests that all ofthat subselJuent correspondence and related documents also be placed in the public record docket for this NPRM and be considered by USEPA in arriving at its final action on the matter. This letter is submitted to USEPJ\. as further supplemental comments to the same NPRM to assure that the administrative record for this NPRlvl is complete. These c01mnents should be considered additional Lo and not in place ofearlier comments

DETROIT TROY ANN ARBOR CHEBOYGAN DALLASMs. Pamela Blakley, Chief Mr. Douglas Aburano, Chief Mr.John Summerhays November 12, 2012 Page 2
submitted by SMC. During our conference call and meetings, USEPA agreed that SMC m.ay supplementthe record in this way. Executive Summary As explained and demonstrated below, SMC's Charlevoix facility is not BARTeligible. Therefore, because the BART requirements do not apply to the subject facility, USEPA should take a final action on the subjectNPRM which does both of the following: (1) Disapproves the portions ofthe Michigan State Implementation Plan (S1P) that sought to impose BART emissions limits on SMC's Charlevoix facility; and (2) Determines not to impose the proposed BART emissions limits undera federal Implementation Plan on SMC's Charlevoix facility. Discussion 1. The BART requirements do not apply to the Charlevoix, Michigan cementplant- key dates. As we have discussed with USEPA previously, SMC acquired the cement manufacturingplant in Charlevoix, MI in 2005 frorn CEMEX. CEMEX previously acquired the plant from Southdown, which had purchased the plant from Medusa Cement Company. The following is based on a review ofCharlevoix plant records and ftles, documents obtained from the state ofMichigan, interviews oflong term plant employees and the public record concerning the Clean Air Act and its regulations. A. BART-Eligible Sources underthe CleanAirAct. On August 7, 1977, visibility protection provisions, requiring emissions lirnitations reflecting use of the Best Available Retrofit Technology (BART) were adopted as part ofthe Clean Air Act amendments. See, 42 U.S.C. 7401, ct seq. and particularly sections 7491 and 7492. Specifically, 42 U.S.C. 7491Q))(2)(A) required BART emissions limits for each major stationary source that began operation after August 7,1962 and was in existence on August 7,1977, ifthat source might reasonably be anticipated to cause impairment ofvisibility in certain class I areas. Other sources (that came into existence outside ofthattime window) arc notBART-eligible.Ms. PamelaBlakley, Chief Mr. DouglasAburano, Chief Mr.John Summerhays November 12, 2012 Page 3
At 40 CFR 51.300

- 51.309, and at Appendix Y to those regulations, USEPA's regulations spell out how to determine if BART will apply to a particular source ("BART-eligible"). In particular, as provided at 40 CFR 51.301, and in Appendix Y, "Existing stationary facility means any oftl1e following stationary sources ofair pollutants, including any reconstructed source, which was not in operation prior to August 7, 1962, and was in existence on August 7, 1977, and has the potential to emit 250 tons per year or more of any air pollutant. In determining potential to emit, fugitive em1sswns, to the extent quantifiable, must be counted." Furthermore, the term "in existence" in that provision is defined as follows: "In existence means that the owner or operator has obtained all necessaty preconstruction approvals or permits requited by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (1) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (2) entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of consttuction of the facility to be completed in a reasonable time." Appendix Y to Part 51- "Guidelines for BART Determinations Under the Regional Haze Rule" explains these requirements in greater detail and provides several key examples to help in making the determinations. As stated at section I.C. of Appendix Y: "***The CAA requites only sources which were put in place during a specific 15-year time interval to be subject to BART. The BARTprovision applies to sources that existed as ofthe date ofthe 1977 CAA amendments (thatis, August7, 1977) butwhich had notbeen in operation for more than 15 years (thatis, notin operation as ofAugust7, 1962)." AppendixY also states: "Major stationary sources which commenced constJ:uction AFTER August 7, 1977 (i.e., major stationaty sources which were not "in existence" on August 7, 1977) were subject to new source review (NSR) under the PSD program. Thus, the August 7, 1977 "in existence" test is essentially the same thing as the identification ofemissions units that were grandfathered from the NSR review requirements of the 1977 CAA amend1nents." More specifically, Section II ofAppendi," Y describes a detailed three-step process to determine ifa source is "BART-eligible". Step 2 ofthat: process is germane to this discussion. The entirety ofStep 2 is quoted in ExhibitA to this letter. Importantly, thefollowingportions of Step 2 make clear that a ReconstructedSourcefor which reconstruction began afterAugust 7, 1977is notBART-eligible. The followingaresignificantquotesfrom thatsection of Appendix Y:Ms. Pamela Blakley, Chief Mr. DouglasAburano, Chief Mr. John Sunm1erhays November 12, 2012 Page 4
"Whatis a "reconstructed source?" 

### *** "2. Under the regional haze regulations at 40 CFR 51.301, a reconstruction has taken place if "the fL'\.ed capital cost of the new component exceeds 50 percent of the fixed capital cost ofa comparable entirely new source." The rule also states that "[a]ny final decision as to whether reconstruction has occurred must be made in accordance with the provisions of §§ 60.15 (f)(1) through (3) of this title." "[TJhe provisions of §§ 60.15(£)(1) through (3)" refers to the general provisions for New Source Performance Standards (NSPS). Thus, the same policies and procedures for identifying reconstructed "affected facilities" under the NSPS programmust also be used to identify reconstructed "stationary sources" for purposes of the BART requirement. 

### *** "4. The "in ope1·ation" and "in existence" tests apply toreconstructed sources. Ifan emissions unit was reconstructed andbegan actual operation before August 7, 1962, itis notBART-eligible. Similarly, any emissions unitforwhich a reconstruction "commenced" afterAugust7, 1977,is not BART-eligible." Emphasis supplied. Significantly, as demonstrated in the following section, the Charlevoix plant was reconstructed in 1978 and thereforeis notBART-eligible. B. Facts of Operations and late 1978

- 1979 Reconstruction at Charlevoix. At some point in the 1960s, Medusa Cement Company established a cement making operation in Charlevoix Michigan. That plant manufactured Portland cementusingwhatis referred to as a long,wetkiln cementmanufacturingprocess. In a November3, 1977 letter [See ExhibitB], Medusa filed apermit application. This was filed after the August 7, 1977 date on which BART eligibility ended. This letter asserts that the project should not be considered a "reconstruction" under the Clean Air J\ct regulations because allegedly the fixed capital costs of the project would not exceed 50% ofthe costs ofa new facility. No supportingdocumentation is contained in MDEQ's file to demonstrate that to be true. As stated in the letter, Medusa was asserting thatpositionin order to avoid having the plantbe categorizedMs. Pamela Blakley, Chief Mr. Douglas Aburano, Chief Mr.John Summerhays November 12, 2012 Page 5

as an "affected facility" under 40 CFR 60.15(a). While Medusa's purpose was not explained further, the only logical reason for Medusa taking that position would be that it hoped to avoid imposition ofNSPS on the plant (See, 40 CFR 60.1 and 40 CFR 60.60- 66.] The PermitApplication [See ExhibitC] also contains severalkey points. Itshows the following:
a. The basic manufacturing process was being changed from a long wet rotary kiln to an in-line kiln system consisting ofa dry process with a calciner (or flash furnace) and a shorterrotatykiln; b. The production capacity was being nearly doubled from 727,200 tons peryear (fPY) to 1,364,000TPY;
c. All of the major systems of the cement manufacturing process were beingreplaced orrebuilt; d. Thecostofthis in 1978dollars was tobe$49 million; arid
e. The cost of air pollution controls for the systems was to exceed $14 million. Actual Suwannee Plant construction Costs show Medusa's position was incorrect. In 2002, SMC constmcted an entirely new cement plant in Suwannee Florida, as part ofa jointventure. The actual fixed capital costs ofthe Suwannee plant clearly demonstrate that Medusa's position was not correct. Attached, as ExhibitD,is a series ofSpread Sheets thatboth summarizeandthen detail the costs ofthe Suwanneeproject.Thesedo notincludeeitherthecosts oflandacquisition or quany costs. SMC submits this Exhibit D as "Confidential Business Information" and requests that this information not be made publicly available, because this would provide a competitive advantage to others in the industry. · 

### REDACTED: CONFIDENTIALBUSINESSINFORMATION The $49,000,000 cost of Medusa's project would have been more than enough to build an entirely new cementplantin 1978! Subsequent sheets in this exhibit show the detail underlying the summarized numbers.Ms. PamelaBlakley, Chief Mr. Douglas.Aburano, Chief Mr.John Summe.thays November 12, 2012 Page 6
The same conclusionis reached when the fixed capital costs ofonly themajor plant components that comprise the Kiln Process are considered. The Kiln Process includes: Raw MaterialTransport; Raw MaterialTransportBin System; Raw Material Grinding; RawMealTransport; RawMeal HomogenizationStorage; Prcheater/Kiln Feed Systems; Preheater/Kiln System; Clinker Transport and Storage; Coal Transport & Grinding; and Electrical & Insttwnentation
.. A.s shown in the same summary sheet of Exhibit D, the fixed capital cost for the "Kiln Process" was in 2002 dollars; ornearly
.. million in 1978 dollars. Again, the above numbers show thatnomatterhow the $49 million spentby Medusais viewed, those amounts_must have exceeded SO% ofthe costs ofa new facility. ·_Moreover, Medusa's goal was irrelevant in light of the fact that, despite Medusa's

hopes to the contrary, the StaffActivity Report and the Permit as issued show that Medusa's positionwas rejected; and show that the underlying facts as set outin our correspondence, denmnstrate that the project was indeed a· "reconsttuction". In February 1978, the new Permit to Install was issued to Medusa by the state of Michigan. A copy ofthe Permit is shown in Exhibit C. Subsequent pages in the Permit show that, before construction, it was Revised on May 15, 1979. The Permitin fact contains severalprovisions thatspecificallyreferto compliance. with the federal Clean Air Act requirements concerning standards for New Stationary Sources. Specifically, "Special Conditions" 12, 13, 14 and 17 all explicitly require emissions to comply with then applicable NSPS. Importantly, this demonstrates that the state did not accept Medusa's position that the projectwas not a "reconstruction". Ifthe state had accepted thatposition, the question atissuewould have beenwhether theprojectconstituted a Major Modification under the CAA,'and if so only the incremental increase in emissions potentialwouldhavebeen subjectto NewSourcePSDreview. However, theNSPS inthis casewereapplied to all ofthe emissions from theplant. The MDNR StaffActivity Report supporting dus permit [See Exhibit E] further supports the conclusion that this was treated as a "reconstruction". It shows that, inthe end,all oftheemissions from theplantwererequired tobe significantlylower than had been true before thereconstruction. In otherwords, this was not a case in whlch only the incremental emissions caused by the project were required to be controlled byBACTcontrols.'NSPS were applied across theboard. ThePrevention of Sigruficant Deterioration (PSD) regulations were not explicitly referenced. However, it is clear that MDNR's staff considered the PSD requirements and concluded that all requirements had been satisfied. Pages 2 and 3 ofthat report make clear that (1) NSPS were applied (certainly a more than adequate substitute ifMs. Pamela Blakley, Chief Mr. Douglas Aburano, Chief Mr.John Summerhays November 12, 2012 Page 7
BACT otherwise might have applied); (2) all plant emissions will be lower than before the plantreconstruction; (3) dispersion modelingwas performed that showed lower impacts on air quality (addressing any concerns with use of air quality increments); and (4) the report concluded-- "Based on ourevaluation, staffis ofthe opinion that the installation of the proposed equipment will not have a significant impact on maintaining air quality standards nor cause substantial deterioration of the air quality." This is clearly a refetence to the "Prevention of Significant Deterioration" requirements of the Clean Air Act. Based on this analysis, MDNR determined that therewould notbe any such deterioration. Actual plant reconstruction began later, and ultimately the dry kiln replacement for the entire longwet kiln process was completed. The old plant was then shut down in October 1979. The new dry process kiln then began operation on December 17, 1979. As shown in the Permit, the cost ofthe new dry process system was $49 million in 1978. By contrast, as shown in the news article, attached as Exhibit F, the entire cost ofthe originalwetprocess planthadbeen $25 million. Moreover, as shown by SMC's actual costs in Suwannee, the amount spent by Medusa in 1978 was enough to physically replace the entire plant. This project was a Reconstruction under the Clean AirAct, both because the entireplantwas physicallyreplaced and because the financial tests were met. Moreover, as noted, the Permit explicitly applied New Source Performance Standards ofthe CleanAirAct. Conclusion Based on the above, the SMC Charlevoix plant is not a BART-eligible facility. Accordingly, USEPA should take a final action on the subject NPRM which does both of tl1e following: (1) Disapproves the portions of the Michigan State Implementation Plan (SIP) that sought to impose BART emissions limits on SMC's Charlevoix facility; and (2) Determines not to impose the proposed BART emissions limits on SMC's Charlevoix facility under a federal Implementation Plan.Ms. PamelaBlakley, Ch.ief Mr. DouglasAburano, Chief Mr.John Summerhays November 12, 2012 Page 8
Please informmeifyou have any questions. Sincerely,

# ~f**~~,r;;c~** Fredrick]. Dindoffcr
f<JD/ttv Enclosure

# EXHIBITAExcerpt from Appendix Y to 40 CFRPart 51

- Step2 from SectionII. "How To Identify BART-Eligible Sources"

2. Step 2: Identify the Start-UpDates ofthe Emission Units

1. Emissionsunits listed under Step 1are BART-eligibleonly ifthey were "in existence" on August 7, 1977butwerenot "inoperation"beforeAugust 7, 1962.

What docs "in existence on August7, 1977" mean?

2. Theregional hazerule defines "in existence"to mean that:

"the owneror operatorhas obtained all necessarypreconstruction approvals orpermits required by Federal, State, orlocal airpollutionemissions and air quality laws orregulations and eitherhas (1) begun, orcausedto begin, a continuous program ofphysical on-site construction of the facility or (2) entered into bindingagreements orcontractual obligations, which catmot be canceledormodified without substantial loss to the owneroroperator,to undertake a programof constructionofthe facility to becompleted in a reasonable time."40 CPR51.301.

Asthis definition isessentiallyidentical to the definition of"commence construction" as thatterm is used in the PSDregulations, thetwo terms meanthe samething. See 40 CPR 51.165(a)(l)(xvi) and 40 CPR52.21(b)(9). Underthis definition, an emissionsunitcould be "in existence" even ifit did notbeginoperatinguntil several years after 1977.
Example: Theownerofa source obtained all necessarypermits in early 1977 and entered into binding construction agreements in June 1977. Actual on-site constructionbegan in late 1978, and construction was completed in mid-1979. The source began operating in September 1979. The emissions unit was "inexistence" as ofAugust 7, 1977.
Major stationary sourceswhichcommenced constructionAFTERAugust7, 1977 (i.e. , major stationary sources which werenot "inexistence" on August 7, 1977) were subjectto new sourcereview (NSR) underthe PSD program. Thus, the August7, 1977 "inexistence"testis

Dctroit_J238489_Iessentiallythe same thing as the identification ofemissionsunits thatwere grandfathered fi·om theNSRreviewrequirements ofthe 1977 CAA amendments.

3. Sources are not BART-eligible ifthe only change at theplantduringthe relevanttime period was the addition ofpollution controls. Forexample, ifthe only change at acopper smelter during the 1962 through 1977 time period wasthe addition ofacid plants for the reduction of S02emissions, theseemission controls would not by themselves trigger a BARTreview.

Whatdoes "inoperation beforeAugust7, 1962" mean?

Anemissions unitthatmeets the August7, 1977 "inexistence"test is not BART-eligible ifitwas inoperationbeforeAugust7, 1962. "Inoperation" is defined as "engaged in activity related to the primary designfunction ofthe source."This meansthat a source musthave begun actual operationsby August7, 1962to satisfy this test.
Example: The owneror operatorentered into binding agreements in 1960. Actual on-site constructionbegan in 1961, and constructionwas completein mid-1962. 111e sourcebegan operatingin September 1962. The emissionsunitwas not "inoperation" before August7, 1962 and is therefore subjecttoBART.

What is a "reconstructed source?'

1. Undera number ofCAAprograms, anexisting source which is completely or substantiallyrebuiltis treated as a new source. Such"reconstructed" sources are treated as new sources as ofthctime ofthereconstruction. Consistentwiththis overall approachto reconstructions, thedefinition ofBART-eligiblefacility (reflected in detail in the definition of "existingstationary facility") includes considerationofsources that were in operationbefore August7, 1962,butwere reconstructedduringthe August7, 1962 to August7, 1977 time period.

2. Underthe regional hazeregulations at40 CFR 51.301, a reconstructionhas taken place if"the fixed capital cost ofthenewcomponent exceeds 50 percentofthe fixed capital cost ofa comparable entirely new source.''Therule also statesthat "[a]ny final decision as to whether reconstructionhas occurred mustbemade in accordance with the provisions of§§ 60.15 (f)(1) through (3) ofthis title." "[T]heprovisionsof§§ 60.15(f)(l)through (3)"refers to the general
2 Dctroit_1238489_Iprovisions forNew Source Perfom1ance Standards (NSPS). Thus, thesamepolicies and procedures for identifyingreconstructed "affected facilities" under theNSPS program must also be used to identify reconstructed "stationary sources" for purposes ofthe BARTrequirement.

3. You should identify reconstructions on an emissions unit basis, rather than on a plantwide basis. That is, youneedto identify onlythe reconstructed emission units meetingthe 50 percent cost criterion. You should include reconstructed emission units in the listofemission units you identified in Step 1. Youneed consider as possiblereconstructions only those emissions units withthepotential to emitmore than 250 tons peryearofany visibility-impairing pollutant.

4.The "inoperation"and "inexistence"tests apply to reconstructed sources. Ifan emissions unit wasreconstructed and began actual operationbefore August 7, 1962, it is not BART-eligible. Similarly, any emissions unit for which a reconstruction "commenced"after August 7, 1977, is not BART-eligible.

Howaremodificationstreated underthe BARTprovision?

1. TheNSPS programandthemajor sourceNSRprogram both containthe concept of modifications. In general, theterm "modification"refers to any physical change orchange inthe method ofoperation ofanemissions unitthatresults in an increase in emissions.

2. TheBARTprovisioninthe regionalhaze rule containsno explicittreatment of modifications orhowmodified emissionsunits,previously subjectto the requirementto install bestavailable controlteclmology (BACT), lowest achievable emissionrate (LAER) controls, and/orNSPS aretreated undertherule. AstheBARTrequirements inthe CAA do not appearto provideany exemption for sourceswhichhavebeen modified since 1977, the bestinterpretation ofthe CAAvisibilityprovisionsis that a subsequentmodificationdoesnotchange a unit's construction date for the purpose ofBART applicability. Accordingly, ifan emissionsunitbegan operationbefore 1962, it is notBART-eligible ifit was modified between 1962 and 1977, so long as the modification is not also a "reconstruction." On the other hand, an emissionsunit which beganoperationwithinthe 1962-1977time window, butwas modified afterAugust 7, 1977, is BART-eligible. Wenote, however, thatifsuch a modificationwas a majormodification thatresulted in the installation ofcontrols,the Statewill take this into account duringthereview process andmay find that thelevel ofcontrolsalreadyin place are consistentwith BART.

3 Detroit_I238489_I

# EXHIBITS

# MEDUSA CEMENT 

## COMPANY DIVISION OF MEDUSA CORPORATION LEE AND MONTICELLO CLEVELAND HEIGHTS, OHIO

S. L. STILES VICE PRESIOENl'**~** ENOINEEf!ING November 3, 1977 Air Pollution Con/rol 

### NOV 08 

### 1977 Air Quality Division Michigan Department. of Natural Resources P. 

### o. Box 30028 Lansing, Michigan 48909 Attention: Mr, Richard Johns Chief, Permit Section Subject: Application to the Air Pollution Control Commission Charlevoix Plant, Nichigan Gentlemen: 2161371-4000

MAIL. Ab0R£SS P.O. BOX 5668 CLEV£LANO**~4101**

Attached per our discussions in your office on October 20, 1977 is an application in triplicate for our Charlevoix project and applicable Exhibit A materials in duplicate. In response to the question you raised at our October 20, 1977 conference regarding the Federal concept of "reconstruction" as defined in Section 60.15 (b) of Title 40

- Code of Federal Regulations, we are submitting, as an attachment to this letter, a cost comparison in duplicate covering (a) new vs converted kiln and (b) new vs modified cooler. It should be noted that each cost comparison clearly demonstrates that the fixed capital cost of the converted kiln and cooler components does not exceed 50 per cent of the fixed capital cost that would be required to construct comparable entirely new kiln and cooler facilities. Therefore, the proposed conversion and expansion of our Charlevoix plant does not constitute "reconstruction" and the existing Charlevoix plant facilities which are the subject of this Application do not become "affected facilities" under 40 CFR, Section 60.15 (a), We again offer to provide a slide presentation on the converted Charlevoix process for the DNR Regional Engineers at their convenience. Thank you for your cooperation and the conference on October 20, 1977. We are available to meet again or provide further information for the application if necessary. Sincerely,

# ).J.~ s. L. Stiles Vice President, Engineering SLS/mc

# EXHIBITC. 

### '/ 

## / AIR QUALllY UlVlSIOH MICHIGAN DEPARTMENT OF NATURAL RESOURCES 

### P.O. BOX 30028,.LANSING, 

### MICHIGAN 48909 A1r Pollution Control A.PiGUCATit»> TO THE AIR POLLUTION cownoL COWI$SIOM l01 oulh&il)i.' lo con•lluc?,**;.,.~.,II** ""' oh<W ·HUV 

### 0 8 1977 OM for**~mit** to op<>rot" P'""'"'u, fv..l ,buunif>ii,**r<~>fuu•** !wr.,;r.ij oh<!/ov oir**p.olluti~ c~~>nirC>l**  lilqvipw.ml
I. i>IX-IT TO 1011: IASUII:O TO: ts
...u..... L;..;.,...**H~** ofc.,.._.,.;.,.,.. P..n-•l.<p,**l<o<S~I** O........v,**c.,_,_~** Auo""'"1)

.. .;

### .· ,,.**..;~.**::{:·:-:;

....

":.··

### ....

# , a. "'AILIWQ ADDAiiU:.· (ff,_...,, s...... Cuy"'**Vii~.** Zi6 c-t..),,_,

__ p.·.0
.. Baal:. 5668,· 

### c.J..eve1and>.Cfb.:10·. ··Mloi,:,:,:;.) \

•·**IIQUI~_T .0.~~".!~'~"** **~~;;;_;., Anli<:~l** .**....-.1ti.~y··~·,;.;;··li""""',""'-** o. .......**~.~"'II** w .,,_ -.1 w**~.,.., ~**  NHwiAg**~lv---**

### ··~~~j':;tJtj~~~'<~~~~~~~·~;Q~:;~j~~~-~·~1~::'~'.8~}\.:.**~** vwt.·ta.;t:b$ ·ary**~in~{~"Mid:ta··~·l.ts·&ss~~~·:eapad.ey::.t,** .f'nu

# m**~"200** abol:t:

## :tons**·:I?ar:~·.t0,~?64~:**sbo:rt
..toa:uij?er:year.'(4;400.ahOrt 'bms.**~**·'·**~::.\:** day**~·:no** a:i::rs**;per:~:!o£''cl:frik~.;{·~.Tll.s:zy.ajor· c•:•uf'C~~-.incJ.Uds.one-·raw·** **~ .;i¥{.;.;,-~,**  

### ,.mlll.i·**on.e·"~ion·**prehM.i:ar.wii:h**~-· ~-(i.ncludinc]**  kiln·eouveJ:lli.on)·, ·a**:'~~ ~;/.(.~.,·**  'blQ'Odh".:J**·~** utilhing tva**~·~·sl.m::ry t.a:nkti~""~i:>.na**  ·finia.h ·grl.na.i.ng mlll··(convertea::.;:: :t:MI xni.U)•.

### addl.i:i.ons. to eodst:ing
..clinlcer and oa:oont**~0** :f'aclllt.i.es to a.r;xna>:wdat:4 

### ·I'.:·: su:f:f.iaiently the**inm:e~ ~.,~:and** **.~ve** dust**~:c9t** all.**of:~ ~·**  ..-, -... '·.**~** to i.n the attached Exhibit A., vh.icb by this**~eo** .isnill!id'll ful.ly a·part**b~.;·,**



# ::.**·.····?~ttttHJ;z~'.: ~~~~f~~~~::.·~~~;(;"~i:f** **#~1~-.~~:~~~~~~~~r:·".j** "?· E!I.TIIIIATitD COliT:. •

10.

)--


### .... z 0

.... 

# - ::s
'Of\ll A,._l I W V» h.·.

+.>.:-·


### .......

..·...

EXHIBIT A-1

### SUPPLEMENT TO PERMIT No. 700-77 Medusa Cement Company Charlevoix, Michigan· 

### (Revised May 

### 15, 1979) GENERAL COND11IONS 1. Applicant shall demonstrate compliance with all**Commis~ion** rules 

### and w\th all specific conditions of this permit prior to issuance of the Permit to 0perate. 2. The restrictions and conditions of this Permit to Install shall apply to any person or legal entity which now or shall hereafter O'!ofl'l o.r operate the facilities for which this Permit to Install is issued. The Applicant shall 1mm€diately notify the Commission of such change in ownership or principal operator status of this facility. 3. Act No. 53- Applicant shall notify any public utility of any excavation, tunr.eling and discharging of explosives or demolition of buildings which may affect said utility's facilities in accordance with Act No. 53 of the Public Acts of 1974, being Sections 460.70\ to 460.718 of the Hichigar. Compiled Laws and comp1y with each of the requirements of that Act. 

### 4. Rule 

### 21(4)

- Trial operation of the equipment is permitted until the Commission acts upon the Permit to Operate. 5. Rule 29(2)

- Hot more than 30 days after completion of the installation, the Applicant shall apply, 

### in writing, to the Commission for a 

### Permit to Operate. Completion of the installation is deemed to occur not later than commencement of a trial operation pursuant.to Rule 21(4). Written application should be sent to: Chief; Permit UDit, Air Quality Division, Department of Natural 

### Resources, P.O. Box 30028, Lansing, Michigan 48909. 6. Rule 29(3b)

- Operatfon of this facility shall not interfere with the attainment or maintenance of the air quality standard for any air contaminant. 7. Rule 29(3d) -Operation of this facility shall not result in substantial deterioration of air quality. 8. Rule 46

- Operation of this facility shall not result in the emission of an air contaminant which causes or will cause detriment to the safety, health, welfare or comfort of any person or which causes or will cause damage to property or business. 9. Rule 21 -Applicant shall not reconstruct, alter, modify, expand or relocate this faci11ty unless plans, specifications and an application for a Permit to Install are submitted to and approved by the Commission. 10. Approval of this permit does not obviate the necesstty of obtaining such permits or approvals from other units of government as required by 

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

, 'b!..,emissions in violation of the Cocrmission rules or of any permH cond1tions**t.LRetf,~P** should be rode to the District Engineer. Such notice should be Nde as soon**~t)-f,·l., ·~'-**  as possible but not**l~ter** than 9:00 A.H. of the next \>IOrking day. The notice 

# ''v**~** shall include a program of corrective action and shall 

### be confirmed in writing**~H1** ' 

### (po.-\-r....\**to'.~._** ..,_!,_\,>'\...---**\,.,_~**

### Medusa Cement Company Permit 

## No: 700-77 Page 2 

### SPECIAL CONDITIONS 12. The particulate emission rate from the clinker cooler shall not exceed 0.10 

### pounds per ton of dry feed. This limit is based on the federal Standards of Performance for New Stationary Sources, 40 CFR, Part 60, Subpatt F. 

### 13. The particulate emission rate from the dry process kiln and preheater shall not exceed 0.30 

### pounds per ton of dry feed. This limit is based on the federal Standards of Performance for New Stationary Sources. 40 CFR, Part 60, Subpart F. 14. 

### Federal Standards of Performance for New Stationary Sources limit visible emissions to an opacity of less than 20% for the dry process kiln and preheater and 10% 

### for all other dry process sources as specified in 40 CFR, Part 60, Subpart F.**~~**

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

# ~ I i



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

### Rules 51, 

### 52 & 

### 54

- Verification of

# partic~late and sulfur dioxide

# te/o~f ' emission rates by testing, at**owner~s** 

### expense, in ac.cordance with Me4""• "'1



### 17. Commission requirements will be required for operating approval. Stack testing procedures and the location of stack testing ports must be approved, in writing, by the Commission or its authorized representative.

18. 

### Applicant shall not operate this facility unless a program which 12 

### describes the abatement measures and reporting procedures to be

### ~_:_~-"i undertaken in the event of an ESP malfunction has been submitted to and approved, in writing, by the District Engineer. 

### 19. All source operating data shall be kept on file and made available to the District Engineer upon request. 20. The dry process kiln and preheater exhaust gases shall be discharged unobstructed vertically upwards to the atmosphere from stacks with maximum diameters of 6.5 and 11.0 

### feet, respectively, and at exit points not less than 225 and 323 feet above ground level, respectively. 21. Applicant shall not operate this facility unless opacity monitoring 1nstrument(s) are installed on the kiln and preheater exhaust stacks. These monitors must conform to specifications outlined in 40 CFR, Part 60, Appendix B, Performance Specifications. Areport on occurrences and conditions responsible for opacities in excess of the allowable limits of 20X shall be submitted, in writing, to the District Engineer on a monthly basis. 13**~L'- ~.,_\\.-** \:



### Medusa Cement Company Permit 

### No. 700-77 Page 3 

### MAY 1 5 1979

22.

23.

24.



### 25.

25.


### 27.

28. 

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

# ~**--~** Abatement Plant to prevent, detect, and correct malfunctions or

### ~ equipment failures resulting in emissions exceeding any applicable emission limitation has been submitted to and approved, in writing, by the Commission or its authorized representative. Applicant shall not operate this facility unless a program for**~ ~**  

### maintaining aggressive yard maintenance and roadway**stabilization~-~** 

### to minimize wind borne dust emission has been submitted, in writing, and approved by the District Engineer. All boat material transfer operations are to be carried out in**~** 

### a manner to prevent re-entrained fugitive dust emissions by means of pressure al1eviation system(s) controlled by dust collection equipment. Applicant shall not operate this facility unless a Total Reduced

# ~' Sulfur (TRS) 

### analyzer is 

### installed on the ,kiln exhaust stack.**~** 

### Data from this monitor shall be maintained at the plant and available for inspection by the staff upon request. Applicant shall not operate this facility unless the oil firing, combustible analyzing, and related equipment described in Appendix A have been installed. · · Within six months after start-up of this facility, the applicant**sh~ll** 

### complete testing of the combustion analyzer instrumentation and shall implement the start-up procedures outlined in Appendix 

### B. For the period irrrnediately after start-up of the new**facili~y** 

### (not to exceed six months) the applicant shall attempt to minimize excessive emissions during a start-up of the kiln by following the prqcedures outlined in Appendix C. · 

### GLA:mbMedusa Cement Company Permit No. 700-77 Page 4 APPENDIX A
1. 30,000 gallon oil storage tank 2.
3. 4. Unloading pump 200 gprn - Truck to tank

- Transfer pump - Tank to Burners

- 60 gpm Oil distribution system Instrumentation

- 02 & combustibles analyzers at stage I exit 

## (vJoT 'j oot:\) kiln exit, stage IV exit, and 

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

- Temperature sensors at kiln exit, stage IV exit, and stage I exit**~** 5. Flash furnace system -2 oil burners

- 90 rnm BTU/hr, 10 gpm each -2 primary air blowers -controls

- pressure regulator

6. Kiln System burner control valves safety shut-off valve manual shut-off valves pressure switches and gauges primary air damper \

- Combination coal and oil burner

- 225 rnm BTU/hr 25 gprn oil

- Primary air blower for oil

- Controls

- pressure regulator

January 22, 1979 burner control valve safety shut-off valve manual shut-off valves pressure switches apd gauges primary air damper · 

## y:Medusa Cement Company Permit No. 700-77 Page 5 APPENDIX B

A No. 2 oil torch will be used to preheat and start the kiln system. Once the kiln system is stabilized, the oil feed will be reduced and coal feed started at a low rate. The coal feed will be increased while simultaneously reducing the oil feed until the kiln is operating entirely on coal. The precipitator will remain in operation during the entire start up except for a brief period when the No. 2 oil torch is initially ignited to start the preheat. However, to prevent a fire or explosion in the precipitator during start up or during normal operation, combustible analyzers will be installed at the kiln exits, stage 

### rv exit and stage I exit. The analyzers will be preset to alarm at a level of combustibles concentration in the gases. (Initially this value will be approximately**0.6~** but may be adjusted after some experience has been gained in operation.) When the alarm sounds, the kiln operator will take immediate.action to reduce the combustible concentration. Should the concentration of combustibles increase further to a preset value {initially, this value will be approximately 0.8% but may be adjusted after some experience has been gained in operation), the precipitator will be automatically de-energized to prevent a fire or explosion. The kiln operator will restart the precipitator within 2 minutes after the combustible**analy~ers** indicate that combustibles are no longer present in the gases. The operator will have the ability to start the precipitator from the central control room in order to minimize the precipitator off time. 

### \

January 22, 1979.• Medusa Cement Company Permit No. 700-77 Page 6 APPENDIX C

1. Precipitator to be energized no later than two minutes after**t~e** kiln oil torch is lit (using the existing No. 2 oil light-off torch), the flame is stabilized and the instrumentation shows the kiln system is purged of combustibles. (Time off not to exceed 25 minutes) 2. Precipitator will be energized during the several hours required to get the kiln hot.· There will be no feed to the kiln**durin~** this period. The kiln will be rotated as required to provide proper heat distribution to prevent kiln thermal distortion. 3. Precipitator will remain energized a·s kiln feed is started. 4. Precipitator to be de-energized while the precalciner No. 2 oil burner is lit and. stabilized•. Precipitator will be again energized two minutes after the instrumentation shows the kiln system is purged of combustibles. (Total time off not.to exceed 15 minutes.) 5. Precipitator will continue to be**energi~ed** as kiln feed is increased and kiln operation is stabilized. 6. Precipitator will be de-energized while the coal fired burners are ignited and stabilized. Precipitators will be again energized two minutes after the instrumentation shows the kiln system is purged of combustibles. (Total time off not to exceed 10 minutes each for kiln burner and precalciner burner.) 7. Precipitator will not be de-energized except by.automatic safety controls while kiln**sys~em** is brought to full production levels, run,**an~** shutdown. 8. The entire period of time that the precipitator is de-energized during start-up will range from 15 minutes to one hour.

January 22, 1979

# EXHIBIT D ACTUAL COSTS OF2002 CONSTRUCTION OFSUWANNEE, FLORIDAPLANT; AND WITH SUMMARYREDUCED TO 1978 DOLLARSFORCOMPARISON (WITHOUTLAND ACQUISITION COSTSAND QUARRY COSTS) 

# REDACTED: CONFIDENTIAL BUSINESS INFORMATION

# EXHIBITE

### MICHIGAN**DEPARTM~NT** 

### OF NATURAL RESOURCES AIR 

### QUALITY DIVISION STAFF ACTIVITY REPORT 

### fuJ_pJjcant Medusa Ceinent Company

. Division of Medusa 

### Corporation Charlevoix Township Charlevqix County, Michigan Permit to Install No. 700-77**-~_iJlDj_fj**

### cant**.QE.te.~-** February 21. 1978

November 

### 8 0 

### 1977 ··-- 

### Application**receiv~d.** 

### December 6, 1977 January 3. 1978 Proposed 

### Facilities District Engineer approved site**loc~tion.** Applicant submitted 

### a waiver of the 60-day time limit 

### for permit action.

The applicant is proposing to install 

### the equipment necessary 

### to convert the existing plant from the**1~et** to the dry process. ·This 

### new equipment consists of shortening the kiln and install·ing a preheater with a new electrostatic ptecipitator, modifications to the clinker cooler 

### and the installation 

### of a gravel 

### bed filter, 

### one new roller mi11, several new raw 

### material storage silos, 

### one new blending silo, one 

### clinker**storag~** dome, the 

### conversion of the wet raw ball mill to a finish 

### mill. arid**sever~d** new cement storage si1os. Ihe 

### materia1 handling and 

### storage equipnient w111 be contra11ed by bag filter co11ectors, "This 

### conversion w111 increase the cement production rate from 2,400 tons per day to 4,800 tons per day and the coa1 usage will increase from 20 tons per day to 24 l/2 tons per day. Iherefo1·e, this conversion wi 11 increase 

### the production 

### and decrease the energy usage per ton of product 

### produced. Analysis of 

### Impact The following list gives the allowed emission rates**fo1~** the major pollutants for the existing and proposed equipment:

',..:

### ..,. Staff Activity Report

- page two IYledusa Cement Company February 21 , 1978 Existing Equipment Proposed Equipment Emissions Emissions Emissions Emissions 

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

### and proposed Particulate 288 1,071 gg· 368

preheater

- Sulfur dioxide 1'184 4,404 250·;,-- 930 Nitrogen oxides 580 2,158 237 882 Clinker cooler Particulate 173 758 33 145 Proposed storage and



### hand11ng equipment

- (not appl1cab1e) 65 285
Staff's evaluation indicates that the two electrostatic precipitators for the exist- ·ing kiln and proposed preheater and roller mi1l are adequate to control particulate emissions so as to 

### comply with 

### the Federal 

### New Source Performance Standard (NSPS) 

### of 0.30 pounds of particul&te 

### per ton of dry feed with 

### one of the five fields 

### not functioning and that the gravel bed filter will be adequate to control the particulate .emissions from the clinker cooler to less than 0.10 pounds of particulate per ton of dry feed which 

### is also the NSPS limit. Staff's evaluation also indicates that the two .precipitators, the gravel bed filter and the 

### proposed bag filter collectors for the miscellaneous material handling and storage equipment will be suitable to comply with 

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

### ·passes for any 

### of the collectors. The expected sulfur dioxide and nitrogen dio)cide emissions aY'e based on test data submitted by the applicant for similar dry process**ceme~t** plants located in Japan. Existing**~mission** rate data is also based on stack test data. 

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

### concentrations of particulate, sulfur dioxide and nitrogen dioxide resulting from the proposed equip

### ment 

### wifl be significantly 

### less than the existing concentrations 

### due to ·the large reduction in the emissions of these pollutants. The location of the existing p'lant has been proposed as attainment for all pollutants. rhe applicant has estimated that the modifi.cations should decrease the potential odor emissions from that plant by 75% or more. Wh'ile the staff has beer. unable to quantify the potential odor reduction, the staff do2s agree \.Vith the applicant that there should be a reduction in the odor emissions since (a) the preheater and roller mill will act as a dry scrubber for the sulfur compounds, (b) a larger pe;"cEmtage of 

### the combustion gasses wil1 be exhausted from a higher stack and (c) since the new process should be more stable than the conventional wet process. At present, staff does not consider the cement plant to be causing an odor problem. Based on our evaluation, staff is of 

### the opinion that the installation of the pro- posed equipment will not have a significant impact on maintaining air quality stan- ·dards nor cause substantial deterioration of the air quality.

### Staff Activity Report

- page three Medusa Cement Company February 21 2 1978 

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

### specified in the attached supplement.
Submitted by: 

### Jerry Avery January 23, 1978 JA:jh 

### Attachment

# EXHIBITF**~~r** . ( t Ko [ N D t H us ts$
CHARlEVOIX: Medosa Corp. otfidz!s announced here Thursday night' that they are doubling t':"leir original

$25

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

manufacwre.

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

directors

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

ihe

Cement Division; and Elbert **K~iser,** plant managef, !NEWS photo by Bob Clack) . Vol. 101 No. 245 illi nExpan 28 Pages m friday September i 6, 1977 Petoskey,

Michigan .20¢ 10 Charlevoix Plant Will be Converted to Dry Process

By BOB CLOCK **Furt.~ermore,** sulphur oxide emissions which somcti:nes are

0i-ARLEVOIX-

Medusa.Corp. cu:nounced Thursday night that offensive to Charlevoi.:t..ans when the 'Wind is itt the wrong direcUon

it

is doubling its

**investmen~** in 9flarlevoix 'with a $SO r;illlioJl will be cut in hal£ by switching to the ,dry procesS. The steam

construction

project that. will change the method of **manufa~** plume at the moUth of the stack also will disappear.

**turtng·~ement**

from the wet_process to the dry process. Work on the presel'lt **Medu..~** plant was sta.rt.ed .in July, HISS,

: .

**~ark** on the changeoveF .. lS **exp~ct.ed** to **~vide** jobs for an with **~edication** in"August, 1.967. Cost of the original facility came

**~ted**

800 people, star"Jng next spring and continuing for to $25 million, although sevcrallmprovements have been made

**.a_b~_ut**

two years.. over the years, L.,cludbg mare sophisticated precipitation

When

tlje conversion i.s **complete~** the compan)' upect.s to add equipment and construction of a U!.rge clinker storage building.

from

12 **to~** employes to its present wot'\dorte at South Point. . :?SO Foot Tower

The

plant presentiy employs about 100 persons. · The most obvious feature of the new· improvements will be a

.

Announcement of tbe plans was made at a civic dinner at Grey W-foot-l"'jgh -prHeat tower which will heat and calcinate

Gables,

hc.st.ed by Medusa officlab **~om** Ule hoine office in limest..one before it enters the kiln. The new structure voi.l:I tower

Cleveland-and

tile Charlevoix plant. Guests **inc~ed** city, county over fr.e present silos on· tile slip, which are only 200 feet high.

and

township officers ao.d industry representatives. Because.the limestone won't have to be dried as slurry is at

**Th~**

company pointed **o~.:t** that the project is part of Medusa's .present, the length of the k.iln will be reduced by one-hall.

overall

program to meet the Federal Energy Admi....,istratior.'s Howlett said a 50· fool-high roller mil\ also is pL!Inned which will

goal

of reGucing fuel conswnption 18 pe:-ceut by 19&2. be fully enclosed to reduce nolse pollution.

'The

proposed changes also will double the capacity of the plant. He added that all raucous operations at the plant **wil~** be put **·thelargestinMedusa'sstableofceme.ntfacilit.i~-andresultin**

under wraps as a noise abatement measure.

a

more uniform product wi:h no sacrifice in quality. ·Scott Rogcr:s, Medusa Corp. president, satd lbat before tbe

Of

the tot.al cost, $S million will go toward modern particulate company decided to convert the Charlevoix plant to dry-process It

predpitation

equipment Which will reduce emissions from the investigated new- technolDgy developed in Europe and Japan

stack

bY. 20 percent with only four of the :five units in operation. which has made the new·method more economical, cleaner" and

Charles

Howlett, vice presl.dent-opero.t.i.ons, seid emissions will more odor free than the wet process. 0

be

well within li:nits of the. tough new federal alr pollution code. ' See Medusa. page 2 oUl

**~** 'tations
·gas-will be sold **be~d** the buf!dir.g, a:It.iough Barnes said t;.<r+';·-- ...

# EXHIBITBSTATE OF MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY LANSING 

# DEU_

RICK SNYDER

GOVERNOR November 29, 2012

VIA U.S. MAIL AND ELECTRONIC SUBMISSION Docket 10. EPA-R05-0AR-2010-0954 Mr. Douglas Aburano United States Environmental Protection Agency Region 5 77 WestJackson Boulevard, AR-18J Chicago, Illinois 60604-3507 Dear Mr. Aburano: DAN WYANT DIRECTOR

We are writing to provide additional information regarding the United States Environmental Protection Agency's (USEPA's) Notice of Proposed Rulemaking, published at 77 Fed. Reg. 46912-46928, dated Monday, August 6, 2012, as itapplies to the St. Mary Cement (SMC) facility in Charlevoix, Michigan. After recent discussions with SMC and further review ofthe applicability provisions in the BestAvailable Retrofit Technology (BART) rules and guidelines, it is the position ofthe Michigan Department of Environmental Quality (MDEQ), Air Quality Division (AQD) that SMC is not a BARTeligible source. As background, the AQD had determined that SMC was BART-eligible and included a BART analysis as part ofthe State Implementation Plan for Regional Haze, submitted to the USEPA in November 2010. The BART-eligibility determination was based on the fact that the original cement manufacturing facility began operation in the mid-1960s, which is within the BART-eligiblewindow of 1962 through 1977. Recently, SMC determined they should not have been considered subjectto the BART regulations because the cement-making operation was substantially reconstructed in the 1978-1979timeframe: Because ofthe scope ofthe changes, the reconstructed facility was subject to the federal New Source Performance Standards (NSPS) requirements. A permit providing forthe reconstruction was approved bythe AQD in early 1978, outside the BART-eligibilitywindow. The AQD has reviewed the permitting history ofthe cementfacility as well as the BART rules and guidance. Because the reconstruction ofthe SMC facility was subject to the NSPS requirements and the reconstruction occurred outside the BART-eligibility window, we concurthat the SMC facility should not be considered BART-eligible.

CONSTITUTION HALL• 525VIlESTALLEGAN STREET• P.O. BOX30473 • LANSING, MICHIGAN48909-7973 VMW.mlchlgan.gov/deq • (800}662-9278Mr. Douglas Aburano November29, 2012 Page 2 We are submitting this information to you at the request of SMC. We recognize that SMC has been working directlywith the USEPAsince the proposal was published and we are aware that USEPA may have already taken final action on the proposed rulemaking. To the extent that this information is useful for future actions the EPA may take, the MDEQ is providing this as additional information. Ifyou have any questions or require further information, please contact Mr. Robert Irvine, AQD, at 517-373-7042 oryou may contact me.

cc: Mr. John Summerhays, USEPA Sincerely, 

### /

. / (. /

**~-** / 

# ...--.

**/~ /;h~~h**  

# :--/ G. Vinson Hellwig, Chief 

# 7. Air Quality Division 517-373-7069

Mr. Jim Sygo, Deputy Director, MDEQ Ms. Lynn Fiedler, MDEQ Mr. Robert Irvine, MDEQ Mr. Asad Khan, MDEQ