500 New Jersey Avenue, NW

7 th 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 Ame ndment 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), th e Portland Cement Association (PCA ) petitions the Envi ronmental Protection Agency (EPA ) to reconsider and am end the final regulations for Commercial and

Industrial S olid Waste Incineration Units (CISWI ) published at 78 FR 9112 et seq ., February 7, 2013, which regulations amended ( in part ) final CISWI regulati ons 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 ini tial 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 und er 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” variou s 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 th at 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 (Apri l 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 re gard. 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, F ebruary 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 t o 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 emi ssion standards for startup and shutdown ;

3. Inappropriate new source commence constru ction/modification trigger date;

4. Inappropriate and illegal remedy for sources failing to keep and maintai n records regarding non

- solid waste secondary mater ials; and

5. Need to elevate status of critical interpreta tions 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 tha t 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 th e final CISWI rule (for both new and existing kilns) clearly satisfies the standard for reconsideration. The following simple chart shows t hat EPA made dramatic changes to the CISWI PM standards for both existing and new waste

burning 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 relev ance to the outcome to th e rule ” as contemplated by CAA § 307(d)(7)(B).

Yet PCA and its members (and the rest of the p ublic) 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 n ecessary.

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

the docket 1 after December 20, 2012 (after the final rule had been signed by th e Administrator and more than ten months after the public comment period h ad closed) that EPA had recalculated the PM “floor” standards by altering its ranking of “best perform ers” 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 th ese 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 interesti ng to note that the documents erroneously assumed a “judicially mandated deadline for promulgation” of the CISWI rule. See EPA

- HQ

OAR

- 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. P erhaps 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 t o allow for public co mment

.

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 sign ificantly 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

comme nt 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

. . . . I n 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

f

easible . . . information that is material t o 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 a dding 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. Costl e , 657 F.2d 298 (D.C. Cir. 1981) (If

EPA relies on documents “ entered on the docket too late fo r 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

methodo logies , 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 dev iated from its usual practice .” See EPA

- HQ

OAR

- 2003

- 0119

- 2662 , at page 5, n.2.

Moreover, had PCA been given the opportunity to comment, we could have point ed out the serious methodological err ors EPA has made in computing PM limits through EPA’s

trea tment 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 var iability 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 fo r 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 star tup 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, with out 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

co mbusted 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 re gardless 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 mu st 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 pr oducing a product and reaching “normal” operat ions.

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 a pproach 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 numeric6 emission standards. Moreover, EPA defended its approach with rationale PCA had demonstrated

had no relevance to portland ceme nt 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 s hutdown 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 so

called “Boiler MACT” re

- proposal published at 76 Fed. Reg. at 80598, EPA’ s p roposed regulatory language in § 63.7500 provides

that t he 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 revie w 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 Comm ercial 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 additiona l developments underscore that EPA’s current startup a nd shutdown CISWI provisions for waste

- burning kilns are arbitrary and capricious. First, EPA finalized the

“Boiler MACT” rule in the manner it had pr oposed. Under final §63.7500(f), the rules provide that the emission limits apply at all times “except d uring 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 “are a 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 specifie s work practices. 78 FR at 7518.

Even going back a full year earlier, t he 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 port land 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 peri ods of startup and shutdown. §63.1346(g)

.

We belie ve 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 wor k 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 ado pt the following work practices for startup and shutdown that PCA ha d 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

o perating

— 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 may8 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 duri ng 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 an d contrary to the CAA . If EPA maintains June 4, 2010 as the new source eligibility date, this will mean that sources commencing construc tion on or after that date were kept in limbo for over two and a half years (until EPA signed the final

CISWI rule on D ecember 20, 2012) not knowing what standard s they were subject to

.

Moreover, we believe EPA’s approach violates the clear terms of CAA §§ 111 and 129, the governi ng provisions here. S tandards for new sources under CAA § 129 are set under the authority of CAA § 111’s requir e ments 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 modificat ion 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 “n ew solid was te 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

emiss ions 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 extrao rdinary. 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 propo sed 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 shal l 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 re

set the CISWI new source trigger date from June 4, 2010 left sources in limbo for more than two and a half year s. 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 defi nition in CAA § 112 (for NESHAP ). But the definit ions are not the s ame. 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 und er 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 ap proach and has commonly re

- set new source trigger dates to avoid keeping sources i n limbo . For instance, in the portland cement NESHAP context (40 C.F.R. part 63, s ubpart LLL) , EPA had first proposed MACT standards on March 28, 1998,

and issued final stan dards 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 follow ing 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 applicabl e. 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

- sol id 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 vario us conditio ns for exclusion under the

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

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

CISWI unit .” See definition of CI SWI 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 hav e 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 facilit y personnel could not locate records to reflect their determinations of non

- waste status, the facility would immediately and automatically becom e a CISWI unit. This unprecedented result is fundamentally unfair and illegal.

C AA § 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 fa cility is combusting solid waste. Quite simply, applying CISWI limits to a facility that is not combu sting solid waste

is a violation of the plain terms of the CAA.

Moreover, t he consequences of a facility operating under a NESHAP regime suddenly

becom ing a CISWI unit are unquestionably dramatic and potentially devastating, and such a remedy is grossly disproportionate for a pure record keeping v iolation. S ignificant and confusing Title V permitting issues would also be created. Certainly EPA may impos e monetary penalties for failure to keep appropriate paperwork on record, but we believe the regulation as curren tly drafted is so unfair and illegal that it must be withdrawn

.

5. Need to elevate status of critical interpretations involving “modifica tion” 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 mig ht 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 langu age 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 Comme nts” (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 P ublic 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 Respon se to
Comment document is in adequate to put the public and regulated entities on notice of EPA’s interpretations. While the RTC appears in EPA’s docke t and carries EPA’s logo on th e cover, it is not signed by an EPA o fficial . 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 migh t constitute a “modification,” enforcement and permitting agen ts would likely want to rely on something more authoritative than a state ment in a 469

- page RTC

.

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

at le ast 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 reco nsider 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)