MEMORANDUM

TO: CISWI  Reconsideration Rule Docket
FROM: Steven Silverman , Attorney OGC

RE:  Discussions with Representatives of PCA regarding regulatory language dealing with when combustion occurs in a cement kiln

	On May 9, 2012, I spoke with Richard Stoll, counsel for PCA, regarding regulatory language defining when combustion occurs in a cement kiln.  Paul Versace, also of EPA's office of General Counsel, was on the call as well.  This call followed several earlier discussions between us on the same issue when I explained that the provision should be drafted without referring to "ingredients" to avoid any issues as to what an "ingredient" is and whether recycling must be legitimate in order for a secondary material to be an ingredient.  We were otherwise in agreement that the final rule should codify the principles set out in an EPA memorandum of April 25, 2011 and discussed at 76 FR 28322 (May 17, 2011).  The proposed CISWI reconsideration had attempted to codify the principles set out in the memorandum and May 17, 2011 preamble, but had failed to do so completely.

	To assure that regulatory language reflected these intentions, we sent draft rule and preamble language to Mr. Stoll on May 9 for his clients' review for technical accuracy.  His replies are appended below, along with the e mails to which he was replying.  
   1.  E mail from Richard Stoll to Steven Silverman; cc; Andy O'Hare, PCA
Steve and Paul -- I have checked with Andy and this preamble language looks fine to us.  Please let us know what you think about the suggested edit to the draft regulatory language I forwarded to you earlier today.
 
Thanks very much, Dick


From: Steven Silverman [mailto:silverman.steven@epamail.epa.gov] 
Sent: Wednesday, May 09, 2012 3:32 PM
To: Stoll, Richard G.
Cc: Andrew; O'Hare@epamail.epa.gov; Paul Versace
Subject: draft preamble language: suggestions welcome
9. Definition of "Waste-burning Kiln"
In the December 23, 2011 reconsideration proposal, we proposed revisions to the definition of "waste-burning kiln" to indicate that the term "does not include a kiln that is feeding non-hazardous secondary ingredients exclusively into the cold end of the kiln." In proposing this language, EPA intended to codify principles set out in a previous action granting and denying reconsideration of the NESHAP for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum "Revised Floors Without Kilns That Would Have Been CISWI Kilns Had the Solid Waste Definition Applied" (EPA, April 25, 2011) (which memorandum is summarized in the May 17 Federal Register notice). The May 17 notice and April 25 memorandum state in essence that combustion does not occur in any region of a cement kiln except the hot end, and that cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and essentially inert.
The language used at proposal captured some but not all of these principles, since it referred only to the "cold end" of a cement kiln, as pointed out by a number of commenters. EPA is revising the definition in the final rule to accurately reflect the May 17 preamble and April 25 Memorandum discussion of when combustion occurs in a cement kiln.
One further clarification is appropriate. The May 17 preamble contains one reference to legitimacy criteria for determining when a secondary material is being recycled. 76 FR at 28322/1-2. The threshold issue for determining if a unit is subject to section 129 is whether it "combusts" solid waste material (see section 129 (g)(1)). For cement kilns, this determination does not turn on legitimacy of recycling, but rather on the nature of the cement kiln process. Consequently, if combustion of solid waste is not occurring, a unit is not a CISWI whether or not legitimate recycling is occurring. 
 

The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. 

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
   2.  Letter from Richard Stoll to Steve Silverman replying to EPA e mail (attached)
 Steve and Paul -- please see Andy's suggested alternative below and our reasoning behind it.  Recall when we started out with the original Keith Barnett "cold end" memo (which preceded the 4/25/11 Barnett memo that is posted on the web) all our efforts were geared to trying to describe what is part of the "cold" end and the precalciner issues came into play.  Now that the focus of your draft language turns this around and focuses on the flame zone, which is a good idea, we no longer need the clarification regarding precalciner (or riser burner) because there is no flame there at all.
 
I suggest that further discussions involving technical issues might best be between Keith and Andy.
 
Thanks, Dick


From: O'Hare, Andrew [mailto:AOhare@cement.org] 
Sent: Wednesday, May 09, 2012 1:13 PM
To: Stoll, Richard G.
Subject: ingredients language


Dick, 

Thank you for sharing the draft ingredients language.  I have reviewed it and pasted in below my suggested alternative.  My alternative would be simpler and not make reference to the precalciner or "riser burner."  The logic for such is that there is no flame in a precalciner or riser burner.  The reactions taking place in these vessels are endothermic (heat adsorbing) rather than exothermic (heat releasing), which is what occurs in the flame zone.

Please let me know if you have any questions. 

Regards,
Andy 


EPA Proposal:
      Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator pursuant to Subtitle D of RCRA). Secondary materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the flame zone in the hot end of the kiln or into the into the flame zone of the precalciner or riser burner (if installed). 
My preferred alternative:
      Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator pursuant to Subtitle D of RCRA). Secondary materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the flame zone in the hot end of the kiln.    


 
 
   1. 
The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. 

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
