500 New Jersey Avenue, NW

7th Floor

Washington, D.C. 20001

(202) 408-9494

April 4, 2013

The Hon. Bob Perciasepe

Acting Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Ariel Rios Federal Building 

Washington, DC 20004 

RE: Petition for Reconsideration and Amendment of the Rules for 

Commercial and Industrial Solid Waste Incinerators (CISWI)

Dear Mr. Perciasepe: 

Pursuant to Clean Air Act (CAA) Section 307(d)(7)(B) and Administrative Procedure 

Act (APA) Section 4(e), the Portland Cement Association (PCA) petitions the Environmental 

Protection Agency (EPA) to reconsider and amend the final regulations for Commercial and 

Industrial Solid Waste Incineration Units (CISWI) published at 78 FR 9112 et seq., February 7, 

2013, which regulations amended (in part) final CISWI regulations published at 76 FR 15704 et

seq., March 21, 2011. The March 21, 2011 final CISWI rules, as amended by the February 7, 

2013 final CISWI rules, are codified in 40 C.F.R. part 60, subparts CCCC (for new, 

reconstructed, and modified sources) and DDDD (for existing sources).

Background

After EPA issued its initial final CISWI rules in March 2011, PCA filed an administrative 

petition to reconsider and amend those rules under CAA § 307(d)(7)(B) and APA § 4(e). PCA 

filed its initial CISWI administrative petition on May 20, 2011. PCA also filed a petition for 

judicial review of the CISWI rules in the U.S. Court of Appeals for the D.C. Circuit which, 

among many other judicial petitions of the March 2011 CISWI rules, was consolidated by the 

D.C. Circuit under the lead case name AF&PA v. EPA, Nos. 11-1125 et al. 

On the same day EPA issued its final March 2011 CISWI rules, EPA announced a new 

rulemaking process through which it would “reconsider” various aspects of the CISWI rules. 76 

FR 15266. In light of the new “reconsideration” rulemaking process, the D.C. Circuit agreed to 

hold the consolidated cases seeking review of the March 2011 CISWI rules in abeyance pending 

completion of that rulemaking process. While EPA had initially projected completing that 

process in early 2012, the final reconsideration CISWI rules were not published until February 7, 

2013. PCA intends to file a new judicial review petition regarding the February 7, 2013 CISWI 

amendments in the D.C. Circuit by the 60-day judicial review deadline (April 8, 2013). 
2

In its final CISWI reconsideration amendments published February 7, 2013, EPA has 

adequately addressed certain elements of PCA’s initial administrative petition filed on May 20, 

2011, and we appreciate EPA’s efforts in this regard. Most notably, EPA has clarified the 

CISWI rules in a manner that confirms that secondary materials used in ingredients in portland 

cement kilns are not “combusted,” and therefore not subject to CAA § 129 (CISWI) jurisdiction. 

E.g., 78 FR at 9207, February 7, 2013 (definition of “waste-burning kiln”).

In today’s petition, we raise both issues that remain unsatisfactorily addressed from the 

May 20, 2011 PCA administrative petition and new issues that have arisen solely because of 

changes EPA made to the CISWI rules in the February 7, 2013 final amendments. 

The five issues on which we seek relief in today’s petition are as follows:

1. Significantly reduced particulate matter (PM) limits with no notice and 

comment;

2. Inappropriate emission standards for startup and shutdown;

3. Inappropriate new source commence construction/modification trigger date;

4. Inappropriate and illegal remedy for sources failing to keep and maintain 

records regarding non-solid waste secondary materials; and

5. Need to elevate status of critical interpretations involving “modification” 

beyond “Response to Comments” document.

1. Significantly reduced particulate matter (PM) limits with no notice and comment

CAA § 307(d)(7)(B) provides that EPA must grant reconsideration of a rule when the 

petitioner can demonstrate that “it was impracticable to raise [an] objection [during the period for 

public comment] or if the grounds for such objection arose after the period for public comment 

... and if such objection is of central relevance to the outcome of the rule.”

Our issue relating to the PM standards in the final CISWI rule (for both new and existing 

kilns) clearly satisfies the standard for reconsideration. The following simple chart shows that 

EPA made dramatic changes to the CISWI PM standards for both existing and new wasteburning kilns in going from the proposed standards of December 23, 2011 to the final standards 

of February 7, 2013:
3

______________________________________________________________________________

(Units expressed in mg/dscm)

Existing kilns New kilns

2011 Proposed PM Standards 9.2 8.9

2013 Final PM Standards 4.6 2.2

______________________________________________________________________________

Thus, in going from the proposal to the final, EPA cut the existing source PM limit in 

half and cut the new source limit by two-thirds. There can be no question that dramatic cuts such 

as these are “of central relevance to the outcome to the rule” as contemplated by CAA 

§ 307(d)(7)(B).

Yet PCA and its members (and the rest of the public) were never notified that such a 

dramatic change was in the offing. Only upon review of the docket after the final rule was 

published were our technical consultants able to discern that EPA – after proposal – had made 

significant changes to the data base from which the final 2013 numbers were derived. 

Unfortunately, EPA did not make that new data available to the public before the rule was 

finalized, and PCA was never able to comment on the adequacy of the data or the approach. It 

was therefore “impracticable” for PCA to raise objections to these provisions during the public 

comment period, and the “grounds for objection arose after the period for public comment.” 

Under the terms of CAA § 307(d)(7)(B), reconsideration is therefore necessary. 

More specifically, we were able to learn from two EPA documents that were placed in 

the docket1 after December 20, 2012 (after the final rule had been signed by the Administrator 

and more than ten months after the public comment period had closed) that EPA had recalculated 

the PM “floor” standards by altering its ranking of “best performers” and by considering test 

results for certain kilns that were not considered in setting the March 2011 standards or the 

December 2011 reconsideration proposed standards. The documents that reflect these major 

changes were not prepared until November 16, 2012.

The two documents are memoranda prepared by the Eastern Research Group, Inc. and 

addressed to Ms. Toni Jones of EPA. It is interesting to note that the documents erroneously 

assumed a “judicially mandated deadline for promulgation” of the CISWI rule. See EPA-HQOAR-2003-0119-2662, at page 6, n.2. There was, of course, no judicially mandated deadline for 

EPA to issue the final CISWI reconsideration amendments. Perhaps this mistaken assumption 

led EPA personnel to believe that EPA could not make the effort to notify PCA and the public 

(through a Notice of Data Availability or supplemental proposal) of the dramatically lower PM 

recalculations and the basis for them in order to allow for public comment.

 1 The two documents are docketed as EPA-HQ-OAR-2003-0119-2661 and EPA-HQ-OAR-2003-0119-2662.
4

Regardless of the reasons EPA failed to provide an opportunity for public comment on 

the assumptions and bases for the significantly revised standards, it is clear that EPA’s actions 

violated fundamental tenets of the CAA and the APA. The D.C. Circuit has ruled on this point 

quite consistently over the years:

Obviously a prerequisite to the ability to make meaningful 

comment is to know the basis upon which the rule is proposed. . . . 

It is not consonant with the purpose of a rule-making proceeding to 

promulgate rules on the basis of inadequate data, or on data that, 

to a critical degree, is known only to the agency. . . . In order that 

rule-making proceedings to determine standards be conducted in

orderly fashion, information should generally be disclosed as to the 

basis of a proposed rule at the time of issuance. If this is not 

feasible . . . information that is material to the subject at hand 

should be disclosed as it becomes available.

Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393-94 (D.C. Cir. 

1973) (emphasis added).

On many other occasions, the D.C. Circuit has ruled that adding information, vital to the 

promulgation of the rule, to the docket “so late as to preclude any effective public comment ... 

violates the structure and spirit” of the CAA § 307 rulemaking provisions. NE Maryland Waste 

Disposal Auth., 358 F.3d at 952 (quoting Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (If 

EPA relies on documents “entered on the docket too late for any meaningful public comment” 

the “structure and spirit of section 307 [will] have been violated”)).

Had PCA been given the opportunity to review EPA’s new assumptions and 

methodologies, there is a significant chance that errors could have been uncovered. To reinforce 

our concern, a memorandum in EPA’s record states: “In order to issue the CISWI standards by 

the mandated promulgation deadline, the EPA deviated from its usual practice.” See EPA-HQOAR-2003-0119-2662, at page 5, n.2. 

Moreover, had PCA been given the opportunity to comment, we could have pointed out 

the serious methodological errors EPA has made in computing PM limits through EPA’s 

treatment of the three individual test runs that make up a Method 5 stack test as though they were 

independent data points. This approach artificially reduces the allowance for variability in the 

data in computing the floor. The use of stack test results for determining emission variability is 

the correct approach, as PCA has consistently explained in its comments on the proposed CISWI 

rule. If PCA’s desired approach is employed, the emission standards would 14.3 mg/dscm for 

existing kilns and 5.1 mg/dscm for new kilns.
5

2. Inappropriate emission standards for startup and shutdown

In its initial proposal for the CISWI rules, EPA proposed that the same emission limits 

that would apply during normal operations would also apply during periods of startup and 

shutdown. 75 FR at 31964, June 4, 2010. In its August 23, 2010 comments on this proposal, 

PCA objected strongly to EPA’s proposal, noting that EPA had no data from waste-burning kilns

showing the levels of emissions that could be expected during startup and shutdown periods.

PCA also objected to EPA’s rationale as applying to incinerators, but having no relevance 

to portland cement kilns:

EPA further states, without any supporting facts, that “most units 

use natural gas or clean distillate oil to start the unit and add waste 

once the unit has reached combustion temperatures,” and that 

“emissions during periods of shutdown are also generally 

significantly lower than emissions during normal operations 

because the materials in the incinerator will be almost fully

combusted before shutdown occurs.” EPA also ignores that kilns 

are not the same as incinerators. During unplanned S/S events, 

there continues to be raw material in the kiln and chemical 

reactions continue to occur for an extended period regardless of the 

type or amount of fuel being fed. 75 Fed. Reg. at 31964. These 

statements by EPA ignore the fact that (1) many of the pollution 

control technologies do not begin to operate until normal 

operations are maintained, (2) pollution controls must be 

shutdown before the units are shutdown, and (3) emissions can

routinely be higher during times of SSM, even though waste may 

not be combusted.

EPA’s descriptions, cited here, demonstrate that EPA has its facts 

wrong. Clean oil or natural gas applies to the narrow application of 

incinerators. EPA gives no consideration to kilns where initial fuel 

is used for heating, then the kiln introduces conventional fuels, 

then introduces raw materials; all before producing a product and 

reaching “normal” operations.

PCA August 23, 2010 comments at 90.

In our comments, PCA urged EPA to develop work practices to apply to startup and 

shutdown periods for waste-burning kilns. PCA committed to work with EPA cooperatively to 

suggest appropriate specifications for work practices. Id. at 92-93.

In its final CISWI rule of March 21, 2011, EPA retained its proposed startup and 

shutdown approach and appeared to ignore PCA’s comments about the fundamental differences 

between portland cement kilns and incinerators. EPA offered no response to PCA’s suggestion 

that work practices be imposed during periods of startup and shutdown in lieu of numeric 
6

emission standards. Moreover, EPA defended its approach with rationale PCA had demonstrated 

had no relevance to portland cement kilns. EPA continued to assume that cement kilns were no 

different than incinerators:

We concluded that CISWI units would be able to meet the 

emissions limitations during periods of startup because most units 

used natural gas or clean distillate oil to start their incinerators and 

only add waste after the incinerator has reached combustion 

temperatures. 

76 FR at 15737, March 21, 2011, emphasis added.

In its December 23, 2011 reconsideration re-proposal, EPA proposed no changes to its 

startup and shutdown approach. In PCA’s comments of February 21, 2012, we objected to the 

fact that EPA had ignored PCA’s previous comments regarding work practices. We urged EPA 

to “fully consider” work practices. PCA’s comments at 38. PCA’s comments continued:

It is important to point out that this is exactly what EPA has 

done for startups and shutdowns in a companion CAA rule 

proposed on the same day of the CISWI re proposal. In the socalled “Boiler MACT” re-proposal published at 76 Fed. Reg. at 

80598, EPA’s proposed regulatory language in § 63.7500 provides 

that the rule's emission limitations “apply at all times, except

during periods of startup and shutdown, during which time you 

must comply only with Table 3 to this subpart.” (Emphasis added.) 

Proposed§ 63.7500 (e), 76 Fed. Reg. 80629.

“Table 3” of the proposed “Boiler MACT” rule prescribed work practices to be employed 

during startup and shutdown events in lieu of numeric emission limits. PCA’s comments 

concluded:

There can be no rational basis for EPA to adopt this work practice 

approach in the Boiler MACT rule while refusing to apply it in the 

CISWI rules. Certainly EPA offers no such basis in its CISWI 

preamble, and we believe that the final CISWI rule would 

accordingly be vulnerable on judicial review for this unexplained 

disparate approach in two companion rules.

Id. at 39.

EPA’s response was as follows:

Response: EPA did not open this issue for comment in the proposed 

reconsideration rule.
7

USEPA, Summary of Public Comments and Responses for Commercial and Industrial 

Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous 

Secondary Materials That Are Solid Waste: Final Rule Volume 1: CISWI, at 328.

Recent additional developments underscore that EPA’s current startup and shutdown 

CISWI provisions for waste-burning kilns are arbitrary and capricious. First, EPA finalized the 

“Boiler MACT” rule in the manner it had proposed. Under final §63.7500(f), the rules provide 

that the emission limits apply at all times “except during periods of startup and shutdown, during 

which you must comply only with Table 3 to this subpart.” 78 FR at 7163, January 31, 2013. 

Table 3 prescribes a set of work practices. Id. at 7198-99. Second, EPA took exactly the same 

approach for the “area source” boiler NESHAP final regulations issued February 1, 2013, 78 FR 

7488 et seq. See § 63.11201(d), which provides emission standards apply at all times “except 

during periods of startup and shutdown,” in which case Table 2 applies. Table 2 specifies work 

practices. 78 FR at 7518.

Even going back a full year earlier, the same is true for the “Mercury Air Toxics 

Standards” NESHAPS EPA established for electric generating units in 2012. As EPA explained 

in the final preamble to that rule: “We are therefore establishing work practice standards rather 

than numeric emissions standards for periods of startup and shutdown in the final rule.” 77 FR at 

9381, February 16, 2012.

Finally, and perhaps most tellingly, EPA recently finalized its revised portland cement 

NESHAP standards under CAA § 112. 78 FR 10006 et seq., February 12, 2013. This new final 

rule, like the new final Boiler MACT rule and other rules discussed immediately above, provides 

for work practices instead of emission limits during periods of startup and shutdown. 

§63.1346(g).

We believe all the foregoing compels the conclusion that EPA’s failure to provide for 

work practices for startup and shutdown periods for waste-burning kilns under the CISWI rules –

while it has provided for work practices in numerous other recent rulemakings – would render its 

CISWI rules reversible on judicial review. We urge EPA to reconsider its CISWI rules on this 

point, and urge EPA to adopt the following work practices for startup and shutdown that PCA had 

previously suggested to EPA:

Start-up: As a general matter, operators will focus on 

employing good combustion practices for the purpose of 

minimizing emissions during these periods. Accordingly, 

the air pollution control device will be turned on and 

operating— subject to the technical and safety limitations 

of the device and in accordance with the facility’s operating 

and maintenance plan—before any fuels are combusted.

Once the air pollution control device is running, start up 

fuel (e.g., natural gas or fuel oil) will be combusted to bring 

the kiln gradually up to approximately 1200-1300°F.

Combustion of primary fuel (generally coal or petroleum 

coke) will then begin and small amounts of kiln feed may 
8

be introduced into the kiln concurrently. Start-up 

concludes when feed has been continuously fed to the kiln 

for at least 120 minutes or when the kiln feed rate exceeds 

sixty percent of the kiln design rate. Oxygen 

concentrations, feed input and the temperature in the kiln 

system will be monitored during start-up as a means of 

ensuring good combustion. The duration of each start-up 

will be recorded.

Shutdown: Shutdown will commence once the feed to 

the kiln is turned off. Emissions during this period will be 

minimized, as the air pollution control device will continue 

to run—subject to the technical and safety limitations of the 

device and in accordance with the facility’s operating and 

maintenance plan—until the kiln ceases to rotate 

continuously, which is when the shutdown period 

concludes. The duration of each shutdown will be 

recorded.

3. Inappropriate new source commence construction/modification trigger date

The current final CISWI rules set June 4, 2010 as the date for determining new source 

eligibility. § 63.2015(a)(1). This is the date the initial CISWI rules were proposed. When EPA 

proposed significant amendments to the CISWI rules on December 23, 2011, EPA did not 

propose to change the June 4, 2010 new source trigger date to December 23, 2011.

We believe this is both unfair and contrary to the CAA. If EPA maintains June 4, 2010

as the new source eligibility date, this will mean that sources commencing construction on or 

after that date were kept in limbo for over two and a half years (until EPA signed the final 

CISWI rule on December 20, 2012) not knowing what standards they were subject to. 

Moreover, we believe EPA’s approach violates the clear terms of CAA §§ 111 and 129, 

the governing provisions here. Standards for new sources under CAA § 129 are set under the 

authority of CAA § 111’s requirements for new source performance standards. CAA § 129 

begins as follows:

§ 129. Solid waste combustion 

(a) New source performance standards.

 (1) In general.

 (A) The Administrator shall establish performance standards and other 

requirements pursuant to section 111 and this section for each category of 

solid waste incineration units.

The definition of “new source” in CAA § 111 is as follows:
9

The term “new source” means any stationary source, the 

construction or modification of which is commenced after the 

publication of regulations (or, if earlier, proposed regulations) 

prescribing a standard of performance under this section which 

will be applicable to such source.

CAA § 111(a)(2).

And the definition of “new solid waste incineration unit” in CAA § 129 is as 

follows:

The term "new solid waste incineration unit" means a solid waste 

incineration unit the construction of which is commenced after the 

Administrator proposes requirements under this section establishing 

emissions standards or other requirements which would be applicable to 

such unit or a modified solid waste incineration unit.

CAA § 129(g)(2).

The concept of making a facility subject to regulation based on a proposed regulation is, 

of course, highly extraordinary. In standard U.S. jurisprudence, no law or regulation can have 

legal effect unless and until it is formally adopted (in the case of a regulation, through a final rule 

after notice and comment.) Congress was cautious about adopting such approach, however, by 

mandating that new source performance standards be finalized no later than one year after 

proposal:

Within one year after the inclusion of a category of stationary 

sources in a list under subparagraph (A), the Administrator shall 

publish proposed regulations, establishing Federal standards of 

performance for new sources within such category. The 

Administrator shall afford interested persons an opportunity for 

written comment on such proposed regulations. After considering 

such comments, he shall promulgate, within one year after such 

publication, such standards with such modifications as he deems 

appropriate.

CAA § 111(b)(1)(B).

Thus, Congress established a regime in which a source commencing construction after a 

proposed standard date would be “in limbo” for no more than one year. Yet EPA’s failure to reset the CISWI new source trigger date from June 4, 2010 left sources in limbo for more than two 

and a half years. This is at odds with the Congressional purpose, and it is at odds with the plain 

language of both § 111(a)(2) and § 129(g)(2) (quoted above): as EPA proposed major new 

requirements that would be applicable to new sources on December 23, 2011, EPA was required 

to define “new source” with reference to the December 23, 2011 date. 
10

EPA may have failed to re-set the new source trigger date for CISWI sources under the 

mistaken impression that the “new source” definitions in CAA §§ 111 and 129 are the same as 

the definition in CAA § 112 (for NESHAP). But the definitions are not the same. CAA § 112 

(a) (4) defines “new source” for NESHAP purposes as follows (emphasis added):

The term “new source” means a stationary source the construction or 

reconstruction of which is commenced after the Administrator first 

proposes regulations under this section establishing an emission standard 

applicable to such source.

The term “first proposes” does not appear in either the § 111 or the § 129 definition of 

“new source.” This underscores the fact that when EPA proposed major new requirements under 

CAA §§ 111 and 129 on December 23, 2011, that is the date by which the new source 

applicability should be triggered.

We should note that even in the § 112 context where the term “first proposes” appears in 

the definition, EPA has taken a reasonable approach and has commonly re-set new source trigger 

dates to avoid keeping sources in limbo. For instance, in the portland cement NESHAP context 

(40 C.F.R. part 63, subpart LLL), EPA had first proposed MACT standards on March 28, 1998, 

and issued final standards following this proposal on June 14, 1999. The new source 

“commence construction” applicability date for these final rules was accordingly March 28, 

1998. On December 2, 2005, EPA issued new proposed standards, and EPA finalized the 

standards following this proposal on December 20, 2006. 71 FR 76518. EPA specified that the 

“commence construction” applicability date for the new source standards included within the 

new proposal would be December 2, 2005 – the date of the new proposal – not March 28, 1998.

In explaining its decision to re-set the trigger date, EPA rejected an overly-literal reading 

of the term “first proposes” in response to comments by national environmental groups and 

stated that where EPA is proposing new standards for new sources, “the only reasonable date for 

determining new source applicability for a resulting standard would be the date EPA proposes 

it.” 71 FR at 76541, December 20, 2006.

In the current CISWI context, of course, the term “first proposes” is not even applicable. 

Most clearly, then, under the plain reading of §§ 111(a)(2) and 129(g)(2), EPA must re-set the 

new source applicability date to December 23, 2011.

4. Inappropriate and illegal remedy for sources failing to keep and maintain records 

regarding non-solid waste secondary materials

The CISWI rule says that units combusting materials determined not to be part 241 solid 

wastes under the “NHSM Rule” (which would therefore presumably be NESHAP and not 

CISWI units) must keep records documenting how the various conditions for exclusion under the 

NHSM Rule have been met. See §§ 60.2175 (subpart CCCC), 60.2740(u) (subpart DDDD). The 

CISWI rule also says that any unit that does not “keep and produce” the required records “is a 

CISWI unit.” See definition of CISWI unit in §§ 60.2265 (subpart CCCC) and 60.2875 (subpart 

DDDD) (emphasis added).
11

Thus, as the rule now stands, personnel at a facility could have made fully accurate 

determinations under the NHSM rule that the secondary material they are combusting is not a 

“solid waste” under the NHSM Rule. Further, upon examination of the facts, technical and legal 

personnel at EPA could unanimously agree that the secondary material is clearly not a solid 

waste. Yet if an inspector showed up at the facility and for whatever reason the facility 

personnel could not locate records to reflect their determinations of non-waste status, the facility 

would immediately and automatically become a CISWI unit. This unprecedented result is 

fundamentally unfair and illegal. 

CAA § 129 limits CISWI jurisdiction to facilities that are combusting solid waste as 

defined by the Administrator. See CAA § 129(g)(1), (6). The fact that a facility may not be able 

to produce certain records on a given day certainly does not mean that facility is combusting 

solid waste. Quite simply, applying CISWI limits to a facility that is not combusting solid waste 

is a violation of the plain terms of the CAA. 

Moreover, the consequences of a facility operating under a NESHAP regime suddenly 

becoming a CISWI unit are unquestionably dramatic and potentially devastating, and such a 

remedy is grossly disproportionate for a pure recordkeeping violation. Significant and confusing 

Title V permitting issues would also be created. Certainly EPA may impose monetary penalties 

for failure to keep appropriate paperwork on record, but we believe the regulation as currently 

drafted is so unfair and illegal that it must be withdrawn. 

5. Need to elevate status of critical interpretations involving “modification” beyond 

Response to Comments document

In several rounds of comments on the CISWI proposals, and in our May 20, 2011 petition 

for reconsideration, we urged EPA to clarify issues relating to the critical question as to how 

“existing” CISWI sources might trigger “new” CISWI source status. We showed how the 

existing regulatory language in subparts CCCC and DDDD created major ambiguities on what 

types of activities could trigger new source CISWI status.

When we first reviewed the new final CISWI rule (signed December 20, 2012) in both 

the regulatory language and preamble, we were disappointed to see that it appeared EPA had 

failed to address the critical issues raised in our comments. Finally, however, we obtained a 

copy of the CISWI “Response to Comments” (RTC) document.2

 In a response to our comments 

on this issue beginning on page 251 of the RTC (excerpt attached), there is a discussion 

addressing our issues. We find this discussion – in and of itself – to be a generally acceptable 

clarification of certain key issues. 

 2 USEPA, Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration 

Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste: Final 

Rule Volume 1: CISWI.
12

Yet we believe that confining the explanation on such critical issues to a Response to 

Comment document is inadequate to put the public and regulated entities on notice of EPA’s 

interpretations. While the RTC appears in EPA’s docket and carries EPA’s logo on the cover, it 

is not signed by an EPA official. It does not appear on EPA’s Website. We fear that as issues 

might arise in the field (among EPA Regional offices and State agencies) concerning whether a 

particular activity might constitute a “modification,” enforcement and permitting agents would 

likely want to rely on something more authoritative than a statement in a 469-page RTC.

Normally, EPA would clarify significant issues such as these with regulatory language, or 

at least Federal Register preamble language. We urge EPA to amend the CISWI rules to 

incorporate key elements of this RTC discussion (especially the point that § 60.14 applies to 

subparts CCCC and DDDD), or at the very least publish this interpretation in the Federal

Register (in an upcoming CISWI Federal Register notice, as there are certain to be followup 

notice). Another alternative – for at least temporary notice to the public and regulated 

community until EPA can take appropriate Federal Register action -- would be for EPA to issue 

an interpretative memorandum signed by an appropriate EPA official and to post the

memorandum on EPA’s Website.

* * * * * * * * * * * * *

Conclusion

For all of the foregoing reasons, PCA respectfully requests that EPA reconsider and 

amend the CISWI rules in the manner we have urged above. I may be reached at (202) 408-9494 

to address any questions you may have regarding PCA’s petition. 

Sincerely,

Andrew T. O’Hare

Vice President, Government Affairs

Attachment

cc: Ms. Toni Jones, OAQPS (E143-05)

Ms. Amy Hambrick, OAQPS (E143-05)

Associate General Counsel for Air & Radiation (2344A)