January 8, 2008

BY E-MAIL

James R. Berlow

U.S. Environmental Protection Agency

USEPA Headquarters (5302P)

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

As was suggested, I am writing to follow up on the December 14, 2007
meeting with you, other OSW participants, Steve Silverman, David Novello
(representing CKRC), Richard Stoll (representing Ash Grove Cement
Company), and me.  We committed to provide you with additional
information supporting our view that if EPA decides to remand HWC MACT
cement kiln “replacement standards,” it should vacate them as well,
which would leave the protective interim standards in place.

First, we told you that we would provide you with information comparing
the relative stringency of the two cement kiln standards that EPA
currently believes must be remanded – the chlorine and mercury
standards.  As we discussed at the meeting, it is easy to compare the
existing source chlorine interim standard with the final standard
because both are measured in the same way.  The interim standard for
chlorine is 120 parts per million by volume (ppmv), while the
replacement standard is 130 ppmv, a mere 8 percent higher.  See 40 CFR
§§63.1204(a)(6) and 63.1220(a)(6).

For mercury, the existing source interim and replacement standards are
expressed in different formats.  The mercury interim standard is 120
micrograms per dry standard cubic meter (µg/dscm), or a hazardous waste
feedrate corresponding to a maximum theoretical emission concentration
(MTEC) of 120 µg/dscm.  40 CFR §§63.1204(a)(2) and 63.1220(a)(2)(ii)
and (iii).  The replacement standard for mercury is a thermal standard. 
It is an average as-fired concentration of mercury in all hazardous
waste feedstreams not exceeding 3 parts per million by weight (ppmw). 
40 CFR §63.1220(a)(2)(i).  As was noted at our meeting, during the
replacement standard rulemaking EPA conducted a comparison of the
existing source mercury interim and replacement standards.  EPA’s
calculations showed that the two are very similar in terms of
stringency.  See EPA’s proposal Technical Support Document, vol. III,
chapter 23, Table 23-1.  Thus, for mercury, as well as for chlorine,
vacating the replacement standards pending EPA’s promulgation of new
standards would not result in more than a de minimis change in allowable
emissions.

Furthermore, as we discussed in our comments on the September 27, 2007
“Solicitation of comments on legal analysis,” 72 Fed. Reg. 54875
(hereinafter “CKRC’s comments”), all cement facilities that burn
hazardous waste have conducted multi-pathway site-specific risk
assessments.  In every case the emissions from these facilities have
been found not to pose an unacceptable risk to human health.

In addition, EPA’s actions following the vacatur of the 1999 HWC MACT
standards show that the Agency viewed the interim standards as being at
least akin to MACT standards.  Before promulgation of the interim
standards, EPA believed that the D.C. Circuit’s vacatur of the 1999
standards meant that the Clean Air Act §112(j) “MACT hammer” would
fall, and states would need to impose site-specific MACT emission
limitations as a result.  Following issuance of the interim standards,
the Agency no longer believed that the §112(j) process should apply. 
67 Fed. Reg. 6792, 6794-95 (Feb. 13, 2002).

As we discussed at the December 14 meeting, vacatur of standards does
not even require that an increase in emissions be less than minimal.  In
a number of cases, the D.C. Circuit has vacated EPA standards (including
NESHAP) where it did not consider whether the vacated standards would
serve the purpose of protecting human health pending issuance of new
standards.  That was the case in the 2001 vacatur of the HWC MACT
standards.  Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 872
(D.C. Cir. 2001) (per curiam).  The court also vacated the brick MACT
standards without considering the impacts to human health – as with
the CKRC case, it simply concluded that the standards had no technical
or legal basis and therefore should be vacated.  Sierra Club v. EPA, 479
F.3d 875, 884 (D.C. Cir. 2007).  Particularly where remand would result
in standards that “change substantially,” NRDC v. EPA, 489 F.3d
1250, 1261 (D.C. Cir. 2007), it is appropriate to vacate the standards. 
Id. at 1262 (vacatur of industrial boiler MACT standards).  In fact, as
we pointed out in CKRC’s comments, EPA itself moved the court in that
case to vacate the industrial boiler MACT standards.  EPA correctly
recognized that as a result of the D.C. Circuit’s brick MACT decision
the industrial boiler standards had no basis and therefore should be
vacated, even though there is no doubt that the court’s vacatur of the
industrial boiler MACT standards will result in significant emissions
increases until EPA issues new standards.

As CKRC pointed out in its comments, vacatur is especially appropriate
where there is “an interim change that may itself be changed,” NRDC
v. EPA, 489 F.3d 1364, 1374 (plywood MACT case).  That is precisely the
situation here.  See also the other cases cited and described in section
VII of CKRC’s comments.

It is true that in the D.C. Circuit’s decision in the plywood MACT
case, the court stated that “vacatur would be disruptive if it set
back achievement of the environmental protection required by the CAA.”
 489 F.3d at 1374.  But for the reasons discussed above in this letter,
that is most certainly not the case here.  In dictum, the court also
noted that mere remand rather than vacatur might be appropriate where
emissions would increase if standards were vacated.  Id.  That language,
however, does not overrule the various decisions in which the court
concluded that vacatur is appropriate where the standards have no basis.
 Moreover, as discussed above, vacatur of the HWC MACT replacement
standards for cement kilns would at most result in de minimis increases
in allowable emissions.

CKRC’s comments describe how remand without vacatur would result in
additional testing and administrative costs that would serve no
environmental purpose.  For all these reasons, EPA should vacate the HWC
MACT cement kiln replacement standards for chlorine and mercury if it
determines that these standards have no basis under the Clean Air Act
and applicable case law.

We appreciate your willingness to meet with us and consider our views on
this important matter.  If you have any questions, please feel free to
contact me.

Michel R. Benoit

Executive Director, CKRC

cc:	Steven Silverman, OGC

	Frank Behan, OSW

● PO Box 7553 ● Arlington, VA  22207 ● 703-534-0892 ●
www.ckrc.org

 

