OFFICE

MOSCOW 

NEW YORK 

PAlO ALTO 

RIYADH 

WASHINGTON 

THE WARNER ABU DHABI 

1299 PENNSYLVANIA AVE., NW AUSTIN 

WASHINGTON, D.C. BEUING 

20004-2400 DALLAS 

DUBAI 

TEL +1 202.639.7700 HONG KONG 

FA( +1 202.639.7890 HOUSTON 

www.bakerbotts.com LONDON 

William M. Bumpers 

TEL +1 202.639.7718 

FAX +1 202.585.1008 

william. bumpers@bakerbotts.com The Honorable Lisa P. Jackson 

Administrator 

U.S. Environmental Protection Agency 

Room 3000, Ariel Rios Building 

Washington, DC 20004 

Re: Petition for Reconsideration and Stay of the Portland Cement NESHAP Rule 

Submitted on Behalf of Holcim (US) Inc. 

Dear Administrator Jackson: 

Enclosed please find a Petition for Reconsideration and Stay of the "National Emissions 

Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry," 75 

Fed. Reg. 54,970 (Sept. 9, 2010). We submit this Petition on behalf of Holcim (US) Inc., a 

leading manufacturer and distributor of cement and cementitious materials. 

Holcim (US) Inc. would welcome the opportunity to discuss the issues raised in the 

Petition with your staff. Please feel free to contact me at the address and phone number listed 

above.

Sincerely, 

William M. Bumpers

N.) 

cc: Kevin McLean, Acting Associate General Counsel for the Air and Radiation Law Office 

(via messenger); 

Keith Barnett, Office of Air Quality Planning and Standards (via email and FedEx); 

Steven Silverman, U.S. EPA (via email).
BEFORE THE ADMINISTRATOR OF THE

UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, DC 

In Re: National Emissions Standards for Hazardous Air Pollutants from

the Portland Cement Manufacturing industry 

*** 

EPA—HQ—OAR-2002-005 1 

PETITION FOR RECONSiDERATION AND STAY 

SUBMITTED BY

HOLCIM (US) INC. 

November 15, 2011 

William M. Bumpers 

Michael B. Schon 

BAKER BOTTS L.L.P. 

1299 Pennsylvania Ave., NW 

Washington. 1)C 20004 

'Fe!.: 202-639-7700 

Co uns'e/tor Iloicim (US.) Inc.
I. Introduction 

Holcim (US) Inc. ('Holcim") respectfully requests that the United States Environmental 

Protection Agency ('EPA" or "Agency") grant reconsideration and immediately stay the 

compliance deadline and effective data of the final Rule entitled National Emissions Standards 

/r Hazardous Air Pollutants froin the Portland Cement Manuflicturing Industry, Docket 

Number EPA41QOAR20020051, 75 Fed, Reg. 54,970 (Sept. 9, 2010) ("the PC NESHAP" 

or "the Rule"). Holcim also asks EPA to stay the Rule pending reconsideration and judicial 

rev jew.

The comments and objections set forth in this petition are of central relevance to the 

outcome of the Rule and Ilolcim could not have raised them during the comment period because 

they are based on newly available data. Specifically, Holcim has collected data from the 

operation of continuous emissions monitoring systems ("CEMS") installed after the Rule was 

finalized. The data demonstrate that the formula EPA used to predict variability and rollingaverage emissions for the particulate matter ('PM") standards in the Rule dramatically 

underestimates variability and results in inaccurate predictions. As a result, the PM standards 

established in the Rule fail to reflect the emissions performance actually achieved by the best 

performing sources. The PM standards, thus, are inconsistent with the Act and the goals EPA 

described when creating the Rule. Holcim was unable to provide these comments during the 

comment period because data from PM CEMS was not yet available. Given the significance of 

the flaws demonstrated by these comments, the short compliance schedule, and the long-term 

investment and planning required to comply fully with the PC NESHAP, a stay pending the 

Agency's reconsideration is appropriate and required by justice. At a minimum, EPA should 

stay the effectiveness of the PM standards to allow lime for the Agency to consider this data, 

seek additional data as necessary, and set achievable PM standards. 

IL Background 

1-lolcim is a leader in the US cement industry, producing and supplying more than 13.5 

million tons of cement and cenientilious products annually to 44 states. More than 2,500 Holcim 

employees generate over $1 .5 billion in annual revenue. Over the last five years, Holcim has 

invested in excess of $2 billion to upgrade and expand its U.S. facilities. 

1-lolcim's parent company, Holcim Ltd, is a global leader in the building materials sector, 

supplying over 150 million tons of cement and almost 200 million tons of aggregates annually in 

more than 70 countries. Holcirn is considered a leader in sustainable development and has been 

a member of the I)ow Jones Sustainability Index for the building materials sector for nine years. 

I lolcirn seeks to minimize the environmental impact of its operations, and views its commitment 

to sustainable development as instrumental to its future prosperity. Specifically, 1-lolcim is 

keenly aware of the challenges connected to climate change and environmental protection. Proof 

ol' that is the ongoing voluntary investments to upgrade plant equipment as well as regular 

maintenance and training required by 1-lolcim's emissions monitoring and reporting ("EMR") 

program. 

EPA promulgated the final PC NESHAP on August 6, 2010. The Rule establishes 

emissions standards for mercury, total hydrocarbons ("THC"), and particulate matter ("PM") 

from new and existing cement kilns located at major and area sources, and for hydrochloric acid
(IlCl") from new and existing kilns located at major sources, pursuant to Clean Air Act 

(CAA") Section 112, 42 U.S.C. § 7412. Section 112 requires EPA to establish emission 

standards that reflect "the maximum degree of reduction in emissions of hazardous air pollutants 

that the Administrator, taking into consideration the cost of achieving such emission 

reduction, and any non-air quality health and environmental impacts and energy requirements, 

determines is achievable." 42 U.S.C. § 74l2(d)(2). These standards are referred to as 

maximum achievable control technology" or MACT standards. The CAA sets forth minimum 

stringency requirements for MACT standards, known as "floors." For new sources, the floor 

cannot be less stringent than 'the emission control that is achieved in practice by the best 

controlled similar source." Id. § 7412(d)(3). For existing sources in a category or subcategory 

with 30 or more sources, like the portland cement industry, the floor cannot be less stringent than 

"the average emission limitation achieved by the best performing 12 percent of existing sources 

(for which the Administrator has emissions information)." 1 Id. § 7412(d)(3)(A). 

EPA elected to establish 30-day rolling average PM emissions limitations in the Rule. 

I lowever, EPA did not have continuous PM monitoring data upon which to base the 30-day 

rolling average. Instead, EPA used emissions data obtained through stack tests at the kilns 

identified by the Agency as the best performing 12 percent. The stack test data from those six 

(6) kilns represented only very short-term PM performance - typically three, one-hour tests. 

Because the EPA lacked data depicting the 30-day rolling average emissions of the best 

performing cement kilns, it used the Upper Prediction Limit Formula, or "UPL," to estimate 

what the 30-day rolling average would be based on the stack test data and some flawed 

assumptions. In particular, EPA assumed that each one-hour data set represented a separate day, 

even though the data set was part of a single, continuous three-hour test. EPA asserted that the 

tJPL predicted what the 30-day rolling average emissions achieved by the best performing 

sources would be 99% of the time. 

Flolcim now has continuous emissions data with which to test the robustness of the UPL. 

Applying the UPL to actual 30-day rolling average emissions data from 1-lolcim's kilns 

demonstrates that the UPL significantly underestimates the 99th percentile by more than half 

Accordingly, the standards do not reflect what the best performers actually achieve and are 

arbitrary, capricious, and contrary to the law. 

I lolcim submitted comments regarding various portions of the Rule and is among the 

petitioners in the consolidated petition for review before the United States Court of Appeals for 

the 1).C. Circuit, For/land Cement Association v. EJA, No. 10-1959 (and consolidated cases). 

This separate petition for reconsideration is necessary because newly available data demonstrate 

a fundamental flaw in the methodology EPA used to develop the rule. Holcim respectfully 

requests that the Administrator reconsider and stay the relevant portions of the Rule until 

regulations that accurately reflect the PM emissions achieved from the best performing sources 

in the MACT pool can be promulgated. 

The process for revising MAC1 standards is set forth in CAA Section 112(f), 42 U.S.C. § 7412(f), which 

authorizes EPA to "review any residual health risks that had not been eliminated by the initial technology-based 

standards." NRDC v. EPA, 529 F.3d 1077, 1080 (I).C. Cir. 2008). 1-lolcirn has raised issues regarding EPA's 

decision to revise the PM standards using Section 112(d) rather than Section 112(f), as required by the CAA, in its 

petition for review to the D.C. Circuit. Holcim does not revisit that issue here, but in no way intends to waive the 

argument or support EPA's improper use of Section 112(d) to revise the PM standards.
III. Request for Reconsideration and Stay 

For the reasons set forth below, 1-lolcim urges EPA to withdraw the PM standards in the 

Rule and develop new standards based on the emissions limitations actually achieved by the best 

performing sources. The calculation that EPA used to convert stack test data, from single points 

in time, to 30-day rolling averages when determining the MACI floor is grossly inaccurate, 

resulting in standards that are not actually achieved by the best performing sources. The result is 

that Holcim and the portland cement industry will face the expenditure of millions of dollars in 

equipment and production loss in an attempt to comply with an unlawful and unachievable 

emissions standard. 

A. CAA Section 397(d)(B) requires EPA to reconsider the PC NESHAP. 

Section 307(d)(7)(B) of the CAA provides for EPA's reconsideration of a CAA rule upon 

objection by a petitioner. See 42 U.S.C. § 7607(d)(7)(13). EPA must grant reconsideration when 

the petitioner: 

[c l an demonstrate to the Administrator that it was impracticable to raise [an] 

objection [during the period for public commenti 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. 

Id. In such a situation, reconsideration is mandatory, as the CAA commands that EPA "shall 

convene a proceeding for reconsideration of the rule and provide the same procedural rights as 

would have been afforded had the information been available at the time the rule was proposed." 

Id. (emphasis added). The reconsideration provision of Section 307(d)(7)(B) is applicable to the 

PC NES1IAP rulemaking because the Administrator expressly determined that the PC NESHAP 

is subject to the procedural provisions of CAA § 307(d). 75 Fed. Reg. at 54,971. 

The CAA authorizes EPA to stay the effectiveness of the Rule for up to three months 

during reconsideration. See 42 U.S.C. § 7607(d)(7)(B). The Administrative Procedure Act 

("APA") further authorizes EPA to stay the effectiveness of a rule indefinitely during 

reconsideration. tinder the APA, "[wihen an agency finds that justice so requires, it may 

postpone the effective date of action taken by it, pending judicial review." 5 U.S.C. § 705. EPA 

has applied this standard to CAA actions. See, e.g., Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source Review (NSR): Aggregation, 75 Fed. Reg. 27,643 (May 

1 8, 2010). The standard for such an administrative stay is different from the standard for a stay 

used by the courts because a judicial stay requires a demonstration of irreparable harm. This is 

clear from the text of the APA: 

When an agency finds that justice so requires, it may postpone the effective date 

of action taken by it, pending judicial review. On such conditions as may be 

required and to the extent necessary to prevent irreparable injury, the reviewing 

court ... may issue all necessary and appropriate process to postpone the effective 

date of an agency action or to preserve status or rights pending conclusion of the 

review proceedings.
Thus, the APA deliberately contrasts what is required for an administrative stay 

"justice so requires" - and a judicial stay - "conditions as may be required" and "irreparable 

harm." Similarly, CAA Section 307(d)(7)(B) authorizes an administrative stay, but does not 

premise that stay on a finding of irreparable injury. Such differences must be given effect - 

there is no irreparable harm requirement for an administrative stay. Given the substantial impact 

of these regulations on Holcim and the portland cement industry, "justice so requires" that EPA 

stay the new provisions of the final rule and take other necessary and appropriate steps to defer 

the compliance deadlines and other provisions of the Rule until the outcome of the 

reconsideration process. 

B. Newly available emissions data demonstrates that the UPL formula EPA 

used to set the standards for PM emissions was fatally flawed, resulting in an 

arbitrary, capricious and unachievable standard that is contrary to the CAA. 

"EPA may not deviate from Section 7412(d)(3)'s requirement that floors reflect what the 

best performers actually achieve ...." Cement Kiln Recycling Coalition v. EPA, 255 F.2d 855, 

861 (D.C. Cir. 2001). EPA set the floors by identifying the best performing 12% of the 45 kilns 

for which it had data. Development of the MACT Floors for the Final NESHAP for Portland 

Cement 16, 40-41 (Aug. 6, 2010), EPA Dkt. No. EPA-HQ-OAR-2002-0051-3403 (hereafter, 

"Development of the MACT Floors"). Ilowever, the data that EPA had from those six kilns was 

limited to only 29 stack tests, which generally consisted of 3-hour test runs each, for a total of 87 

hours of emissions data. Id. EPA recognized that the data from these stack tests alone does not 

reflect the degree of emissions reductions actually achieved from the sources because it only 

represented the emissions levels achieved at the point in time that the test runs were made and 

fails to account for variability. See id. at 5, 16-17; Proposed Rule, 74 Fed. Reg. 21,136, 21,143, 

21,155 (May 6, 2009). PM emissions from cement kilns are variable under both long and short 

periods of time because of, among other things, variations in the performance of PM emissions 

controls. See, e.g., 75 Fed. Reg. at 54,974. EPA was required to account for this variability to 

determine what the best performers actually achieved. Id. 

After proposing the rule, EPA elected to require compliance monitoring through PM 

CEMS, not stack tests, and to set PM standards based on 30-day rolling average emissions levels. 

Id. at 54,988. The 87 hours of stack test data that EPA had from the best performing sources 

failed to reflect the 30-day rolling average emissions from those sources because the stack test 

data represents emissions during a very brief, fixed point in time, which cannot reflect the 

inherent emissions variability from the kilns over multiple days or weeks. EPA attempted to 

address this shortcoming by using the UPL. See, e.g., Development of' the MACT Floors at 5,16-

17, 40-41. The UPI. is supposed to predict the average friture emissions values (i.e., the results 

of a future emissions tests) within a 99% level of confidence ("the 99th percentile"). Id. at 2; 75 

Fed. Reg. at 54,975-976. "In other words, if we were to randomly select a future test condition 

from any of these sources ... we can be 99 percent confident that the reported level will fall at or 

below the UPL value." Id. at 54,975. 

An application of the UPI. to actual data from PM CEMS from four (4) cement plants 

equipped with state-of-the-art PM controls demonstrates that the UPL not only fails to predict the 

99th percentile, it predicts emissions levels that are less than one half of actual levels. 1--lolcim 

tested the UPL by applying it to data from PM CF.MS and comparing it to actual 30-day 

averages. Since January 2011, Uolcim collected approximately 10,000 hours of PM CEMS
emissions data. Holcim took the daily average emissions from the CEMS data for 756 days and 

applied the UPL formula. The UPL predicted that the 99th percentile of the 30-day rolling 

average of liolcirn's data would be 0.03 lb/ton of clinker. The actual 99th percentile is 0.064 

lb/ton of clinker - 2m% higher than the UPL predicted. See Table 1, below. The data 

supporting Holcirn's analysis is enclosed as Attachment A. 

Parameter EPA FloorData Holci*iPM CEMs 

Data** 

Number of daily averages 87* 756 

Mean 0.0242 0.020 

Variance 0.0008 0.00043 

PM Floor (predicted 99th Percentile as calculated by 

UPL) (lb/t of cli) 0.04 0.03 

Actual 99th Percentile of 30d Rolling Average (Lb/t 

of clinker) -- 0.064 

* These were individual one hour runs and EPA assumed that each one-hour run was equivalent 

o a daily average. 

** Applying EPA methodology to l-Tolcim PM CEM data

The average PM emissions of the best perftrrning kilns in the MACT pool would be 

expected to be significantly higher than the 0.04 lb/ton of clinker average emissions level 

predicted by the UPL because the VPL clearly underestimates the actual 99th percentile. For this 

reason, the LJPL cannot be considered an accurate measure of the emissions limitations actually 

achieved by the best performing sources. 

Holcim could not have provided these comments earlier. Holcim had previously 

provided comments criticizing the accuracy of the EJPL and has asserted arguments about how it 

was used to the D.C. Circuit. 1-lowever, actual data regarding 30-day average emissions from 

CEMS was unavailable until I lolcim installed the equipment and began compiling data in 

preparation for compliance with the PC NESHAP. 
For the reasons discussed above, Holcim urges EPA to reconsider and stay the PM 

standards set forth in the PC NESHAP. The newly acquired emissions data demonstrates that 

reconsideration is necessary because EPA's application of the UPL renders the Rule arbitrary 

capricious, and contrary to the law, at least with regard to the PM standards. EPA must set 

standards that reflect what the best performers actually achieve, but has instead set standards 

based on a formula that inaccurately predicts emissions far below acceptable levels of 

confidence. The UPL simply fails to depict what the best performing sources actually achieve. 

EPA should revisit the MACT floors after correcting the UPL formula to reflect accurately the 

99th percentile or after collecting data on actual 30-day emissions levels. 

Dated: November 15, 2011

On behalf of Holcim (US) Inc.
THE WARNER 

1299 PENNSYLVANIA AVE., NW 

WASHINGTON, DC 

20004-2400

DELIVER BY MESSENG