i NATIONAL EMISSIONS STANDARDS FOR HAZARDOUS AIR POLLUTANTS:

PORTLAND CEMENT

SUMMARY OF PUBLIC COMMENTS AND RESPONSES

U.S. Environmental Protection Agency

Office of Air Quality Planning and Standards

Sector Policies and Programs Division

Research Triang le Park, North Carolina 27711



# 12 20 2012ii The primary contact regarding questions or comments on this document is:

Sharon Nizich

U.S. Environmental Protection Agency

Metals and Minerals Group (D243

- 02)

Research Triangle Park, North Carolina 27711

Email: Nizich.Sharon@epa.goviii 

## Table of Contents

Section Page

Table of Contents

................................ ................................ ................................ ................................ ....... iii

List of Ac ronyms and Abbreviations

................................ ................................ ................................ ........ x
Introduction

................................ ................................ ................................ ................................ ................ xi

List of Commenters

................................ ................................ ................................ ................................ ... xii Section 1: Comments on Regulatory Deadlines and EPA Authority

................................ ..................... 1

1.1 One

- Year Compliance Deadline Extension

................................ ................................ ........................ 1

1.2 Two

- Year Comp liance Deadline Extension

................................ ................................ ....................... 2

Three

- Year Compliance Deadline Extension

................................ ................................ ........................... 9

1.3 Authority to Reset Compliance Date

................................ ................................ ................................ .. 9

1.4 Extension of Altered Compliance Deadline to All NESHAP Standards

................................ .......... 13

1.5 New Source Applicability Date

................................ ................................ ................................ ........ 17

Section 2: Comments on Definitions

................................ ................................ ................................ ........ 19

2.1 Open Clinker Storage Pile Definition

................................ ................................ ............................... 19

2.2 Inline Coal M ill Definition

................................ ................................ ................................ ............... 20

2.3 Raw Material Dryer Definition

................................ ................................ ................................ ......... 21

2.4 Start

- up/Shutdown Definition

................................ ................................ ................................ ........... 21

2.5 Kiln Operation Definition

................................ ................................ ................................ ................. 25

Section 3: Comments on Emission Standards/Limits

................................ ................................ ............ 26

3.1 Particulate Matter (PM): General Support and Opposition for the Standard

................................ ... 26iv 3.2 PM: Clarification on Stack Test to be used

................................ ................................ ...................... 26

3.3 PM: UPL Ca lculation Method Under

- predicts Variability

................................ ............................... 27

3.4 PM: Exemption from Operating Surrogate Limit for BACT and CAM CEMS Units

..................... 28

3 .5 PM: Standard should not Apply to Modifications Made to an Existing Kiln and or Cooler

............ 29

3.6 PM: Standard should not be Changed Until CISWI Rule is Finalized

................................ ............. 29

3.7 PM: Abandonment of PM CEMS Due to PS

- 11 Issues is Unlawful

................................ ................ 31

3.8 PM: Utilization of the UPL Method is Unlawful and does not Account for Operator Effort s

......... 33

3.9 PM: Selection of Best Performing Sources was done Incorrectly

................................ ................... 35

3.10 PM: Rounding

- up of UPL is Unlawful

................................ ................................ .......................... 36

3.11 PM: Comment Regarding Lack of PM Data for Kilns

................................ ................................ ... 36

3.12 PM: Beyond the Floor Rejection due to Cost Effectiveness is Unlawful

................................ ....... 37

3.13 Mercury (Hg): Opposition to Beyond the Floor Standard

................................ .............................. 39

3.14 Hg: Opposition to EPA’s Process of Setting the Standard

................................ ............................. 39

3.15 Hg: Significant Cost Should Negate Beyond the Floor, Limit is Unachievable

............................ 40

3.16 Hg: Environmental and Energy Impacts Have Not Been Evaluated

................................ .............. 40

3.17 Hg: Comment Regarding 63.1349(b)(5)(ii)

................................ ................................ .................... 42

3.18 Hg: General Support

................................ ................................ ................................ ....................... 42

3.19 Total Hydrocarbon (THC): Support for Including Union Bridge CISWI Kiln

.............................. 42

3.20 THC: Opposition to Including Union Bridge CISWI Kiln

................................ ............................. 43

3.21 Organic Hazardous Air Pollutants (oHAP) Alternative to THC: General Support

........................ 44

3.22 o

- HAP Alternative to THC: Use of Three Times the RDL is Unlaw ful

................................ ........ 45

3.23 oHAP Alternative to THC: Significant Opposition to the Use of Three Times the RDL

.............. 46

3.24 Hydrogen Chloride (HCl): G eneral Support of Standard

................................ ............................... 49

3.25 Start

- up/Shutdown: Opposition to Numerical Standards / Support for Work Practices

................. 49v 3.26 Sta rt

- up/Shutdown: Support for Numerical Standards / Opposition to Work Practices

................. 51

3.27 Start

- up/Shutdown: Opposition to Steady State Limits Being Applied Start

- up/Shutdown

.......... 52

3.28 Start

- up/Shutdown: Justification for Suggested Work Practices

................................ .................... 54

3.29 Start

- up/Shutdown: Support for Recordkeeping

................................ ................................ ............ 54

3.30 Start

- up/Shutdown: HCl Limit During Start

- up and Shutdown

................................ ..................... 54

3.31 Clinker Piles: Additional Authorized Work Practices

................................ ................................ .... 55

3.32 Coal Mills/Alkali By

- pass Stacks: General Support

................................ ................................ ...... 56

3.33 Coal Mills/Alkali By

- pass Stacks: Standard is Unlawful because no Data has been Collected

..... 56

3.34 Coal Mills/Alkali By

- pass Stacks: Request for More Time to Respond

................................ ........ 56

3.35 Coal Mills/Alkali By

- pass Stacks: Backslidin g with PM NSPS Option

................................ ........ 57

3.36 Coal Mills/Alkali By

- pass Stacks: Alternative PM Standard

................................ ......................... 58

3.37 Raw Material Dryers: Support for Eliminating O2 Correction Factor

................................ ........... 58

Section 4: Comments on Monitoring Requirements

................................ ................................ .............. 59

4.1 Particulate Matter (PM): Opposition t o Testing

- based Standard

................................ ...................... 59

4.2 PM: Request for Compliance Margin (Scaling) between Tested Value and Limit

.......................... 62

4.3 PM: Request fo r Language Revision

................................ ................................ ................................ 64

4.4 PM: Request to Remove Testing Requirement Following CPMS

................................ ................... 66

4.5 PM: Request for Reduced Testing Frequ ency due to Financial Burden

................................ ........... 66

4.6 PM: Request for COMS as a Parametric Monitor

................................ ................................ ............ 67

4.7 PM: Suggested Corrections to PS 11 Issue s

................................ ................................ ..................... 67

4.8 PM: Inconsistency between Length of Test Runs

................................ ................................ ............ 68

4.9 PM: Request for Beta Gauge PM Monitors or Multi Metal CEMS Options for Monitoring

........... 68

4.10 PM: Bag Leak Detection as a Parametric Monitor

................................ ................................ ......... 70

4.11 PM: Four CPMS Deviations in 12 Months Does Not Eq uate to a Violation

................................ . 71vi 4.12 PM: Clinker Production Monitoring

................................ ................................ ............................... 72

4.13 PM: Comment Regarding 63.1343(b)

................................ ................................ ............................ 72

4.14 PM: Comment Regarding 60.64(b)(1)(ii), 63.1349(b)(1)(i)(B), and 63.1350(b)(1)

...................... 73

4.15 PM: Comment Regarding 60.64(b)(1)(iii) and63.1349(b)(1)(i)( C)

................................ ................ 73

4.16 PM: Comment Regarding 63.1350(b)(1)(iii)

................................ ................................ .................. 74

4.17 PM: Comment Regarding 63.1350(b)(1)(iv)

................................ ................................ .................. 74

4.18 PM: Comment Regarding 63.1349(b)(1)(ii) and (iv)

................................ ................................ ..... 75

4.19 PM: Comment Regarding 63.1350(b)(2)

................................ ................................ ........................ 75

4.20 Hydrogen Chloride (HCl): General Support for Proposed Standard

................................ .............. 76

4.21 HCl: Opposition to HCl CEMS and PS 15

................................ ................................ ..................... 76

4.22 HCl: Comment on Pending Performance Specifications

................................ ................................ 80

4.23 HCl: On

- going Quality Assurance Requirements are Premature

................................ ................... 80

4 .24 HCl: Span Calibration Requirements

................................ ................................ ............................. 81

4.25 HCl: Above Span Calibration Requirements

................................ ................................ .................. 82

4.26 HCl: Opposition to Elimination o f CEMs for Dry Scrubbers

................................ ........................ 84

4.27 HCl: Opposition to SO2 CEMS

................................ ................................ ................................ ...... 84

4.28 HCl: Comment Regarding Part 63 Appendix A

................................ ................................ ............. 85

4.29 HCl: Comment Regarding 63.1349(b)(6)(i)(B) and 63.1350(1)(2) and (m)(5)(7) and (8)

............ 86

4.30 HCl: Comment Regarding 63.1348(a)(6)(iv), 63.1 349(b)(6)(iii), and 63.1350(1)(3)

.................... 87

4.31 Hg: Opposition to Quality Assurance of Hg CEMS Data (Options 1 and 2)

................................ . 89

4.32 Hg: Oppo sition to Cycle Time Test

................................ ................................ ................................ 91

4.33 Hg: Modification to Quality Assurance of Hg CEMS Data (Option 3)

................................ ......... 92

4.34 Hg: Request to Monito r Upstream or Downstream of a Coal Mill Receiving Kiln Exhaust

......... 94

4.35 Hg: Request that Emissions During D/F Temperature Parameter Tests are not Considered “Normal Operations”

................................ ................................ ................................ .................. 95vii 4.36 Hg: Request to Forego 30

- month D/F Testing if it Will Impair Performance of Hg Controls

....... 96

4.37 Hg: Comment Regarding 63.1350(k) and (k) (3) and (4)

................................ ................................ 9 6

4.38 Hg: Comment Regarding 63.1348(a)(5) and (b)(7) and 163.350(k)(3) and (k)(6)

......................... 97

4.39 Hg: Comment Regarding 63 .1346(f)

................................ ................................ .............................. 98

4.40 Start

- up/Shutdown: PM Monitoring

................................ ................................ ............................... 98

4.41 Start

- up/Shutdown: Hg Monitoring

................................ ................................ ................................ 99

4.42 Start

- up/Shutdown: Moisture Corrections

................................ ................................ .................... 100

4.43 Start

- up/Shutdown: HCl Monitoring

................................ ................................ ........................... 100

4.44 Start

- up/Shutdown: Effluent Flow Rate Monitoring

................................ ................................ .... 101

4.45 Start

- up/Shutdown: Emissions Testing Issues

................................ ................................ ............. 102

4.46 Start

- up/Shutdow n: Opposition to Record Keeping in Lieu of CEMS for Compliance Demonstration

................................ ................................ ................................ .......................... 104

4.47 Dioxin/Furan: Monitoring of Carbon Injection Rates

................................ ................................ . 104

4.48 THC and oHAP Alternative: Opposition to Annual Testing Requirement

................................ . 106

4.49 THC and oHAP Alternative: Request for Five Year (60 months) Testing Frequency for Raw Material D ryers, Coal Mills and Alkali Bypass Stacks

................................ ............................ 107

4.50 THC and oHAP Alternative: Support for Extending Testing Time and Number of Tests to Adequately Capture Variability

................................ ................................ ................................ 110

4.51 THC and oHAP Alternative: Request for Compliance Margin (Scaling) between Tested Value and Limit

................................ ................................ ................................ ................................ ......... 112

4.52 THC and oHAP Alternative: Suggestions for Rule Improvement

................................ ............... 114

4.53 THC and oHAP Alternative: General Support

................................ ................................ ............. 116

4.54 THC: Comment Regarding 63.1349(b)(4) and 63.13 50(i)

................................ ........................... 116

4.55 Coal Mills/Alkali Bypass: General Support

................................ ................................ ................. 116

4.56 Coal Mills/Alkali Bypass: Correction to Kiln Gas Diversion Equ ation

................................ ....... 117

4.57 Coal Mills/Alkali Bypass: Request for Site Specific Monitoring Programs for Coal Mills

........ 117viii 4.58 Coal Mills/Alkal i Bypass: Request for Additional Time to Comment

................................ ......... 118

4.59 Coal Mills/Alkali Bypass: Promulgation of Coal Mill Requirements would be Unlawful

.......... 118

4.60 Coal Mills/Alkali By

- pass Stacks: Issue with Upstream Monitoring of THC and HCl for Co

mingled Streams

................................ ................................ ................................ ....................... 120

4.61 Clinker Piles: Installation of Ambient Monitors

................................ ................................ .......... 120

Section 5: Comments on Affirmative Defense

................................ ................................ ...................... 122

5.1 Affirmative Defense: General Support

................................ ................................ ........................... 122

5.2 Affirmative Defense: Opposition to General Rationale

................................ ................................ . 122

5.3 Affirmative Defense: Assessment of Penalties ( 113(e) and 304)

................................ ................... 124

5.4 Affirmative Defense: Burden and Duplication Issues

................................ ................................ .... 126

5.5 Affirmative Defense: Rebuttable Presumption

................................ ................................ ............... 127

5.6 Affirmative Defense: Suggested Revisions

................................ ................................ .................... 127

5.7 Affirmative Defense: Ferroalloys MACT Comments Incorporated by Reference

......................... 128

5.8 Affirmative Defense: Opposition to Independent Mandates to Qualify for the Defense

.............. 135

5.9 Affirmative Defense: Bypassing Control Equipment

................................ ................................ ..... 136

5.10 Affirmative Defense: Root Cause

................................ ................................ ................................ . 136

Section 6: Comments on Impacts of the Rule

................................ ................................ ....................... 143

6.1 Impac ts: ACI Cost Estimate Inaccurate

................................ ................................ .......................... 143

6.2 Impacts: PM Incremental Risk to Public Health

................................ ................................ ............ 143

Section 7: Comments Regarding Miscell aneous Other Issues

................................ ............................ 144

7.1 Other Issues: Request to Reorganize Rule

................................ ................................ ...................... 144

7.2 Other Issues: Request to Remove Flow Monitor Requi rement for NSPS

................................ ..... 144

7.3 Other Issues: Clarification on Averaging Periods for NSPS

................................ ......................... 144

7.4 Other Issues: Proposed Administrative Correction to § 63.1343(b)

................................ ............... 145

7.5 Other Issues: Proposed Administrative Correction to § 63.1344(A)(1)(III)(2)

.............................. 145ix 7.6 Other Is sues: Proposed Administrative Correction to § 63.1350(k)(4)

................................ .......... 146

7.7 Other Issues: Proposed Administrative Correction to § 63.1350(m)(4)

................................ ......... 146

7.8 Other Issues: Proposed Regulatory Text Changes, Refer to (0505) Appendix G

......................... 146

7.9 Other Issues: Request for Testing and Monitoring Exemptions for Small/Area Sources

.............. 147

7.10 Other Issues: Duplication of Reporting Requirements

................................ ................................ . 147

7.11 Other Issues: Comment Regarding 63.1343(a)

................................ ................................ ............ 148

7.12 Other Issues: Comment Regarding 63.1348(a) and 63.1349(b)

................................ ................... 149

7.13 Other Issues: Comment Regarding 60.64(b)(2) and (3)

................................ ............................... 149

7.14 Other Issues: Comment Regarding 63.1350(f)(1)(iv)

................................ ................................ .. 150

7.15 Other Issues: Comment Regarding 60.64(c)

................................ ................................ ................ 150

7.16 Other Issues: Comment Regarding 63.1343

................................ ................................ ................. 151

7.17 Other Issues: Comment Regarding 63.1350(o)(4&5)

................................ ................................ .. 151

7.18 Other Issues: Comment Regarding 63.1350(1) and 63.1350(m)

................................ .................. 152

7.19 Other Issues: Comment Regarding 63.1340(b)(6) and 63.1345

................................ ................... 153

7.20 Other Issues: Comment Regarding 63.1340(b)

................................ ................................ ............ 153

7.21 Other Issues: Comment Regarding THC and Greenfield/Brownfield Dryers

.............................. 154

7.22 Other Issues: Comment Regarding EPA Rationale and Authority for Startup and Shutdown Provisions and Revising SSM Provisions in Existing Rules

................................ .................... 154

Section 8: Comments Regarding General Support and Opposition to the Proposed Rule

.............. 161

8.1 General Support for Proposed Standards

................................ ................................ ........................ 161

8.2 General Support for M any of the Proposed Standards with Some Specific Concerns

................... 161

8.3 General Opposition to Weakening of Standards

................................ ................................ ............ 162

8.4 General O pposition

– Mass Email Campaigns

................................ ................................ ............... 162x 

## List of Acronyms and Abbreviations

CAA Clean Air Act

CBI Confidential Business Information

CRWI Coalition for Responsible Waste Incineration D/F Dioxins and Furans

EPA U. S. Env ironmental Protection Agency

ERT Electronic Reporting Tool

FAX Fascimile

FR Federal Register

HAP Hazardous Air Pollutant

HF Hydrogen Fluoride

HON Hazardous Organic NESHAP

MACT Maximum Achievable Control Technology

MIR Maximum Individual Risk

MOA M ode of Action
NAAQS National Ambient Air Quality Standards

NATA National

- Scale Air Toxics Assessment

NESHAP National Emission Standards for Hazardous Air Pollutants

NFFS Non

- Ferrous Founders’ Society

OGC Office of General Counsel

OM&M Operation, Main tenance and Monitoring

PB

- HAP Persistent Bioaccumulative Hazardous Air Pollutant

PSD Prevention of Significant Deterioration

RTR Risk and Technology Review

SAPU Secondary Aluminum Processing Unit

SIP State Implementation Plan

SSM Startup, Shutdown, a nd Malfunction

TTN Technology Transfer Network

URE Unit Risk Exposurexi 

## Introduction

On July 18, 2012, EPA proposed revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Portland Cement Plants as well as limited amendm ents to the New Source Performance Standard for particulate matter. This document contains summaries of all the public comments that the EPA received on the proposed standards. Significant comments and responses appear in the preamble to the final rules. R esponses to all other comments are contained in this document. Copies of all comments submitted are available at the EPA docket Center Public Reading Room. Comment letters and transcripts of the public hearings are also available electronically through htt p://www.regulations.gov by searching Docket IDs EPA

- HQ

- OAR

- 2011

- 0817.xii 

## List of Commenters

The EPA received over 22,000 comment letters on the proposed NESHAP for portland cement plants before the comment period closed on August 17, 2012. All comments are

c ontained in Docket EPA

- HQ

- OAR

- 2011

- 0817. The commenter, affiliation, and item number in Docket EPA

- HQ

- OAR

- 2011

- 0817 is listed below in Table 1.

Table 1. Public Comments for Portland Cement, Proposed Rule, Docket EPA

- HQ

- OAR

2011

- 0817

Docket No. EPA

- HQ

OAR

- 2 011

- 0817 Commenter Name Affiliation
0241 Anonymous public comment Private Citizen Comment
0242 Anonymous public comment Private Citizen Comment
0243 Anonymous public comment Private Citizen Comment
0244 Anonymous public comment Private Citizen Comment
0245 Jennifer Anderson Anderson Psychological Associates
0246 Anonymous public comment Private Citizen Comment
0247 Anonymous public comment Private Citizen Comment
0249 Anonymous public comment Private Citizen Comment
0250 Walter H. Wulf, Jr., Presi dent The Monarch Cement Company
0251 Anonymous public comment Private Citizen Comment
0252 Anonymous public comment Private Citizen Comment
0253 Anonymous public comment Private Citizen Comment
0254 Lloyd Smith, President Cortech Solutions, Inc.
0255 K. Walser Private Citizen Comment
0256 Anonymous public comment Private Citizen Comment
0258 Anonymous public comment Private Citizen Comment
0259 D. Chambers Private Citizen Comment
0260 B. Alpert Private Citizen Comment
0261 Doug Roark, Vice Presid ent of Environmental Affairs GCC Americaxiii Docket No. EPA

- HQ

OAR

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- 0817 Commenter Name Affiliation
0262 Anonymous public comment Private Citizen Comment
0263 C. Mckinney Private Citizen Comment
0264 M. D. Moderacki Private Citizen Comment
0265 M. Rooke Private Citizen Comment
0266 Dr. R. Gorringe Private Cit izen Comment
0267 K. Van Dame Private Citizen Comment
0268 B. Dauerty Private Citizen Comment
0269 Dr. M. Ownby Private Citizen Comment
0270 L. Alfson Private Citizen Comment
0271 E. Smeltzer Private Citizen Comment
0272 S. Parsons Private Citizen Co mment 0273 W. Handley Private Citizen Comment
0274 J. E. Johnson Private Citizen Comment
0275 J. Smith Private Citizen Comment
0276 R. J. Monteiro Private Citizen Comment
0277 Dr. G. Crouse Private Citizen Comment
0278 J. Fletcher Private Citizen Com ment 0279 Dr. J. Chambers Private Citizen Comment
0280 J. Urbanas Private Citizen Comment
0281 R. Hastings Private Citizen Comment
0282 Dr. J. Tullis Private Citizen Comment
0283 D. Harris Private Citizen Comment
0284 B. Pardee Private Citizen Commen t 0285 J. Puffinberger Private Citizen Comment
0286 H. Schlaff Private Citizen Comment
0287 E. Wedlock Private Citizen Comment
0288 M. Hadcock Private Citizen Comment
0289 Dr. R. Starr Private Citizen Comment
0290 Dr. G. Degarmo Private Citizen Comme nt 0291 A. Stonefield Private Citizen Comment
0292 K. Wilson Private Citizen Comment
0293 D. Krull Private Citizen Comment
0294 B. Fitzpatrick Private Citizen Comment
0295 L. Simms Private Citizen Commentxiv Docket No. EPA

- HQ

OAR

- 2 011

- 0817 Commenter Name Affiliation
0296 P. Holmlund Private Citizen Comment
029 7 G. Crawford Private Citizen Comment
0298 C. Hinman Private Citizen Comment
0299 E. Robinson Private Citizen Comment
0300 C. Gross Private Citizen Comment
0301 B. Bernstein Private Citizen Comment
0302 M. A. Smale Private Citizen Comment
0303 T. V. Lear Private Citizen Comment
0304 Dr. R. Alexander Private Citizen Comment
0305 R. Weddle Private Citizen Comment
0306 I. Alexakos Private Citizen Comment
0307 T. Hazelleaf Private Citizen Comment
0308 R. Kofler Private Citizen Comment
0309 H. Frank Private Citizen Comment
0310 N. Beck Private Citizen Comment
0311 T. Masanz Private Citizen Comment
0312 J. Black Private Citizen Comment
0313 L. Cox Private Citizen Comment
0314 T. Pretlow Private Citizen Comment
0315 A. Ross Private Citizen Comment
0316 E. Mayer Private Citizen Comment
0317 Holly R. Hart, Assistant to the International President, Legislative Director United Steelworkers (USW)

0318 N. Hemmelstein Private Citizen Comment
0319 D. Luck Private Citizen Comment
0320 Cecile M. Conroy , Director, Legislative Affairs International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers
0321 C. Crutcher Private Citizen Comment
0322 V. Rogers Private Citizen Comment
0323 M. Pezzati Private Citizen Comment
0324 D r. J. Spitz Private Citizen Comment
0325 B. Kozik Private Citizen Commentxv Docket No. EPA

- HQ

OAR

- 2 011

- 0817 Commenter Name Affiliation
0326 S. Hathaway Private Citizen Comment
0327 K. Gleeson Private Citizen Comment
0238 R. Hyer Private Citizen Comment
0329 D. Rencher Private Citizen Comment
0330 S. Schmidt Pr ivate Citizen Comment
0331 Anonymous public comment Private Citizen Comment
0332 D. Wood Private Citizen Comment
0333 K. Ash Private Citizen Comment
0334 I. Tower Private Citizen Comment
0335 Dr. C. Steinhart Private Citizen Comment
0336 A. Boomershi ne Private Citizen Comment
0337 Anonymous public comment Private Citizen Comment
0338 B. Santhuff Private Citizen Comment
0339 Anonymous public comment Private Citizen Comment
0340 Anonymous public comment Private Citizen Comment
0341 P. Nielsen Priva te Citizen Comment
0342 S. Davis Private Citizen Comment
0343 M. Martin Private Citizen Comment
0344 J. Gibson Private Citizen Comment
0345 B. Boone Private Citizen Comment
0346 Anonymous public comment Private Citizen Comment
0347 Anonymous public c omment Private Citizen Comment
0348 Anonymous public comment Private Citizen Comment
0349 J. Glasenapp Private Citizen Comment
0350 Anonymous public comment Private Citizen Comment

0351 Anonymous public comment Private Citizen Comment
0352 Anonymous p ublic comment Private Citizen Comment
0353 T. Erichsen Private Citizen Comment
0354 Anonymous public comment Private Citizen Comment
0355 Anonymous public comment Private Citizen Comment
0356 Anonymous public comment Private Citizen Comment
0357 Anony mous public comment Private Citizen Comment
0358 Anonymous public comment Private Citizen Commentxvi Docket No. EPA

- HQ

OAR

- 2 011

- 0817 Commenter Name Affiliation
0359 Anonymous public comment Private Citizen Comment
0360 L. F. J. Gill Private Citizen Comment
0361 Anonymous public comment Private Citizen Comment
03 62 J. SmilingCoyote Private Citizen Comment
0363 D. Rawlings Private Citizen Comment
0364 Anonymous public comment Private Citizen Comment
0365 D. Weber Private Citizen Comment
0366 Anonymous public comment Private Citizen Comment
0367 Anonymous publi c comment Private Citizen Comment
0368 Mass Comment Campaign sponsored by Earthjustice (email) Earth Justice Campaign. The comments received are identical in content and format. A total of 20,020

on

- time comments have been received to date.
0369 D. Sachs Private Citizen Comment
0370 Anonymous public comment Private Citizen Comment
0371 W. Franzen Private Citizen Comment
0372 E. M. Scott Private Citizen Comment
0373 Anonymous public comment Private Citizen Comment
0374 Anonymous public comment Private Citizen Comment
0375 Anonymous public comment Private Citizen Comment
0376 Anonymous public comment Private Citizen Comment
0377 Ben Szafran, Stop Titan Cement.org Private Citizen Comment
0378 Jeff Sama NC Coastal Federation
0379 S. Boekell Private Citizen Comment
0380 T. Ferguson, Ph.D. Private Citizen Comment
0381 Anonymous public comment Private Citizen Comment
0382 Anonymous public comment Private Citizen Comment
0383 M. Erickson Private Citizen Comment
0384 C. Dawson Private Citizen Comment
0385 P. Menyuk Private Citizen Comment
0386 P. Mayer Private Citizen Comment
0387 Cheryl McGraw River Hills POA of Pender, Inc.
0388 Anonymous Public Comment Private Citizen Commentxvii Docket No. EPA

- HQ

OAR

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- 0817 Commenter Name Affiliation
0389 M. Harmon Private Citizen Comment
0390 A. R. Warren Private Ci tizen Comment
0391 J. Ehrlich Private Citizen Comment
0392 S. Bannister Private Citizen Comment
0393 A. Bowen Private Citizen Comment
0394 R. Zucchi Private Citizen Comment
0395 G. Clements Private Citizen Comment
0396 Dr. S. Schrader Private Citizen Comment
0397 J. Tache Private Citizen Comment
0398 A. Berry Private Citizen Comment
0399 B. Winholtz Private Citizen Comment
0400 C. Cicchi Private Citizen Comment
0401 Allie Sheffield, President Penderwatch & Conservancy, et al.
0402 J. Hubbard Pr ivate Citizen Comment
0403 M. Bergman Private Citizen Comment
0404 J. Adelfio Private Citizen Comment
0405 K. S. Vargas Private Citizen Comment
0406 G. James Private Citizen Comment
0407 F. Schilling Private Citizen Comment
0408 Dr. H. Corneli Privat e Citizen Comment
0409 L. Jobe Private Citizen Comment
0410 Dr. M. Bookbinder Private Citizen Comment
0411 C. Nelson Private Citizen Comment
0412 D. Fox Private Citizen Comment
0413 M. Myers Private Citizen Comment
0414 R. W. Houston Private Citizen Comment
0415 W. Ebersberger Private Citizen Comment
0416 P. Gordon Private Citizen Comment
0417 S. G. Campo Private Citizen Comment
0418 A. Weaver Private Citizen Comment
0419 J. Conroy Private Citizen Comment
0420 Dr. J. Munoz Private Citizen Commen t 0421 Dr. H. Rice Private Citizen Comment
0422 K. Devries Private Citizen Commentxviii Docket No. EPA

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- 0817 Commenter Name Affiliation
0423 J. Beverly Private Citizen Comment
0424 P. Matejcek Private Citizen Comment
0425 J. Boone Private Citizen Comment
0426 J. Bartas Private Citizen Comment
0427 P. Rizzo Private Citizen Comment
0428 Dr. J. R. Leonard Private Citizen Comment
0429 J. Grillo Private Citizen Comment
0430 Ken Derksen, COO Cadence Environmental Energy Inc.
0431 A. Banwart Private Citizen Comment
0432 V. Lepore Private Citizen Comment
0433 N. Lee Private Citizen Comment
0434 Dr. P. Richard

- Amato Private Citizen Comment
0435 T. O'Neill Private Citizen Comment
0436 Dr. D. Harrison Private Citizen Comment
0437 S. Brown Private Citizen Comment
0438 K. Shimata Private Citizen Comment
0439 Dr. C. Leman Private Citizen Comment
0440 C. Schmalz Private Citizen Comment
0441 C. O. Dietrich Private Citizen Comment
0442 S. Marett Private Citizen Comment
0443 S. Kuticka Private Citizen Comment
0444 F. Salisbury Private Citizen Comment
04 45 J. Steitz Private Citizen Comment
0446 B. Coulson Private Citizen Comment
0447 Dr. L. Young Private Citizen Comment
0448 S. Snypes Private Citizen Comment
0449 K. Rowlett Private Citizen Comment
0450 M. Hannum Private Citizen Comment
0451 L. Durha m Private Citizen Comment
0452 V. Kopetz Private Citizen Comment
0453 J. Large Private Citizen Comment
0454 C. Hall Private Citizen Comment
0455 M. Delay Private Citizen Comment
0456 J. Stewart Private Citizen Commentxix Docket No. EPA

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- 0817 Commenter Name Affiliation
0457 Dr. W. Amox Private Citizen Comment
0458 J. Newberry Private Citizen Comment
0459 R. Catley Private Citizen Comment
0460 M. Giles Private Citizen Comment
0461 K. Russell Private Citizen Comment
0462 P. Endo Private Citizen Comment
0463 Dr. M. Sowerwine Private Citizen Comment
0464 J. Fails Private Citizen Comment
0465 E. Jung Private Citizen Comment
0466 S. Fieldstein Private Citizen Comment
0467 S. Gilliam Private Citizen Comment
0468 J. Schall Private Citizen Comment
0469 M. Yoder Private Citizen Comment
0470 Mass Comm ent Campaign sponsored by Sierra Club (email) Sierra Clue Campaign. The comments received are identical in content and format. A total of 594

on

- time comments have been received to date.
0471 William L. Kovacs, Senior Vice President Environment, Technolo gy & Regulatory Affairs, United States Chamber of Commerce
0472 Anonymous public comment Private Citizen Comment
0473 Robert A. Garbini, President National Ready Mixed Concrete Association (NRMCA)
0474 Vincent J. Brisini, Deputy Secretary, Waste, Air, Radiation and Remediation Pennsylvania Department of Environmental Protection (DEP)
0475 Vincent J. Brisini, Deputy Secretary, Waste, Air, Radiation and Remediation Pennsylvania Department of Environmental Protection (DEP)
0476 Daniel B. Nugent, Senior Vice President Buzzi Unicem USA
0477 A. Daniels Private Citizen Comment
0478 William L. Kovacs, Senior Vice President Environment, Technology & Regulatory Affairs U.S. Chamber of Commerce

0479 Anonymous public comment Private Citizen Comment
0480 Anon ymous public comment Private Citizen Commentxx Docket No. EPA

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- 0817 Commenter Name Affiliation
0481 Sid J. Trant Bradley Arant Boult Cummings on behalf of National Cement Company of Alabama, Inc. (NCCA)
0482 Timothy L. Matz, Corporate Director of Environmental Affairs Lehigh Hanson on behalf of Lehigh Cement Company LLC
0483 Cary Cohrs, Chairman, Manufacturing Technical Committee Portland Cement Association (PCA)

0484 C. Crockett Private Citizen Comment
0485 N. Sharp Private Citizen Comment
0486 Dr. R. Parr Private Citizen Comment
0487 A. Cassebaum Private Citizen Comment
0488 J. Martin Private Citizen Comment
0489 T. McGraw Private Citizen Comment
0490 D. Weber Private Citizen Comment
0491 L. Hansen Private Citizen Comment
0492 L. Devlin Private Citizen Comment
0493 Anonymous public comment P rivate Citizen Comment
0494 Peter T. Kimmel, Vice President Operations Armstrong Cement and Supply Co.

0495 Robert D. Bessette, President x Armstrong Cement and Supply Co.
0496 Ross Eisenberg, Vice President, Energy and Resources Policy National Associ ation of Manufacturers (NAM)
0497 Dr. M. Merchant Private Citizen Comment
0498 D. Weber Private Citizen Comment
0499 L. Kellams Private Citizen Comment
0500 S. Oehler Private Citizen Comment
0501 J. Gage

- Macdonald Private Citizen Comment
0502 J. Rath Private Citizen Comment
0503 T. Peter Ruane, President & Chief Executive Officer (CEO) American Road & Transportation Builders Association (ARTBA)
0504 Andrea Geiger, MS Environmental Science Cooper Environmental Services, LLC
0505 Andrew T. O‘Hare, Vi ce President, Regulatory Affairs Portland Cement Association (PCA)

0506 Melvin E. Keener, Executive Director Coalition for Responsible Waste Incineration (CRWI)xxi Docket No. EPA

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- 0817 Commenter Name Affiliation
0507 Craig S. Campbell, Vice President, Environmental & Government Affairs, Cement Division Lafarge North America, Inc.

0508 James Pew Earthjustice
0509 B. Scott Private Citizen Comment
0510 P. Scheirer Private Citizen Comment
0511 Curtis D. Leslie, Vice President of Environmental Affairs Ash Grove Cement Company

0512 Ali Mirzakhalili, Dir ector, Division of Air Quality Delaware Department of Natural Resources & Environmental Control
0513 Zak Covar, Executive Director Texas Commission on Environment Quality (TCEQ)
0514 Dr. R. Stallman Private Citizen Comment
0515 R. Kermeen Private Citiz en Comment
0516 S. Borrett Private Citizen Comment
0517 Krag Petterson and Douglas Barth Pall Corporation
0518 Jennifer Swearingen Montanans Against Toxic Burning
0519 David Perkins, Vice President, Environmental, Government and Public Affairs Texas Industries, Inc. (TXI)

0520 M. Strawn Private Citizen Comment
0521 P. Fry Private Citizen Comment
0522 J. Sorrells Private Citizen Comment
0523 Hector Ybanez, Corporate Environmental Manager and Jason Morin, Vice President, Environmental and Government Affairs Holcim (US) Inc.

0524 Satish Sheth, Vice President

- Environmental Affairs, US Operations CEMEX

0525 Stephen Minick, Vice President of Governmental Affairs Texas Association of Business (TAB)
0526 W. J. Hart Private Citizen Comment
0527 C. E. Krause Private Citizen Comment
0528 Dr. R. Guldi Private Citizen Comment
0529 M. Kohn Private Citizen Comment
0530 A. Skari Private Citizen Commentxxii Docket No. EPA

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- 0817 Commenter Name Affiliation
0531 P. Erickson Private Citizen Comment
0532 D. Hale Private Citizen Comment
0533 K. Polk Private Ci tizen Comment
0534 V. Court Private Citizen Comment
0535 The Byte Shop Private Citizen Comment
0536 S. A. Fuqua Private Citizen Comment
0537 T. W. Allgaier Jr. Private Citizen Comment
0538 P. Bradley Private Citizen Comment
0539 L. F. Jamison Private Citizen Comment
0540 E. Gonzalez Private Citizen Comment
0541 G. Hodges Private Citizen Comment
0542 S. Poole Private Citizen Comment
0543 B. Aycock Private Citizen Comment
0544 S. Zann Rosenthal Private Citizen Comment
0545 G. C. Rowley Private Cit izen Comment
0546 E. Goulding Private Citizen Comment
0547 A. Robinson Private Citizen Comment
0548 L. Phail Private Citizen Comment
0549 G. Guard Private Citizen Comment
0550 P. Jackson Private Citizen Comment
0551 L. A. Chavez Private Citizen Comme nt 0552 B. Veals Private Citizen Comment
0553 J. Schmidt Private Citizen Comment
0554 John J. Knotts, Global Sales and Engineering Leader, Gas Phase Air Pollution Control Technologies Team W.L. Gore & Associates, Inc.

0555 Mass Comment Campaign sponsor ing organization unknown (email) Sponsoring Organization Unknown. This is a mass e

- mail campaign. The comments received are identical in content and format. A total of 36 on

time comments have been received to date.xxiii Docket No. EPA

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- 0817 Commenter Name Affiliation
0556 Mass Comment Campaign sponsored b y Sierra Club (email) Sierra Club Campaign. The comments received are identical in content and format. A total of 1025

on

- time comments have been received to date
0557 Mass Comment Campaign sponsoring organization unknown (postcard) Sponsoring Organizatio n Unknown. This is a mass postcard campaign. The comments received are identical in content and format. A total of 140

on

- time comments have been received to date.
0558 A. and J. Gutman Private Citizen Comment
0559 L. Kain Private Citizen Comment
0560 C. Mitchell Private Citizen Comment
0561 D. Weber Private Citizen Comment
0562 R. Bradley Private Citizen Comment
0563 R. Shew Private Citizen Comment
0564 J. Collins Private Citizen Comment
0565 J. Hunter Private Citizen Comment
0566 J. Van Den Noor t Private Citizen Comment
0567 Dr. W. E. Sisson, Jr. Private Citizen Comment
0568 Anonymous public comment Private Citizen Comment
0569 C. J. Paone Private Citizen Comment
0570 Anonymous public comment Private Citizen Comment
0571 S. Kessel Private Ci tizen Comment
0572 S. Kessel Private Citizen Comment
0573 J. Swearingen Private Citizen Comment
0574 Bruce S. Andersen, Director, Department of Air Quality, Public Health Department Unified Government of Wyandotte County, Kansas City, Kansas
0575 P. Ne ubauer Private Citizen Comment
0576 E. Marum Private Citizen Comment
0577 C. Werre Private Citizen Comment
0578 Faith Chatham, Co

- founder DFW Regional Concerned Citizens
0579 S. Woofter Private Citizen Comment
0580 J. Porter Private Citizen Comment
0581 J. Cooper Private Citizen Commentxxiv Docket No. EPA

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- 0817 Commenter Name Affiliation
0582 K. and C. Takara Private Citizen Comment

Late comment received November 21, 2012: Curtis Leslie, Ash Grove Cement Company

, labeled “AG” in this Summary of Comments and Responses document.

A public hearing was held in Arlington, TX on August 16, 2012. A copy of the transcript can be found in the docket1 

## Section 1 : Comments on Regulatory Deadlines and EPA Authority

1

. 1 One

- Year Compliance Deadline Extension

One commenter (0505) stated that the same data and information they d iscussed in justifying a 2

- year reset of the compliance date likewise repudiates an alternative, 1

- year reset of the compliance date, which the reconsideration notice also seeks comment. The proposed one

- year reset alternative is not justified by the facts and would amount to an unreasonable and arbitrary decision, as the record clearly demonstrates that at least two years is required. In particular, it is not possible for facilities to conduct significant advance work on compliance strategies without knowi ng the standards that will be applicable. Thus, facilities will need to wait until this rule is finalized to be able to move forward with the detailed design, planning and optimization of their compliance strategies. Thus, a one year reset of the deadline would be insufficient to complete the work and the proposed two year reset of the compliance date is warranted.

One commenter (0505) states that EPA’s assertion that the one

- year option might be warranted because the industry “is not starting from scratc h” and that “there should be on

- going planning to meet the standards promulgated in 2010 which could shorten the time needed to come into compliance with these proposed revised standards (should the EPA adopt them),” is flawed. The basic flaw in EPA‘s logi c here is demonstrated in EPA‘s closing parenthetical, i.e., “should the EPA adopt them.” According to the commenter, it will not and cannot be known until December, 2012 what EPA‘s final rules may require. Only proposed rules are on the table, and for man y components of the proposal, EPA‘s preamble requests comment on alternative approaches, even affecting the various numeric emission limits (going beyond PM) themselves. As EPA has well explained in its preamble, the control strategies companies may employ for controlling the various HAPs are highly inter

- related. Moreover, EPA has included many new and unanticipated components for consideration with its new proposed rule (such as the very complicated coal mill provisions and a totally new approach to alter native THC compliance) that present additional significant uncertainty to the way the final rule might look. Consequently, companies are now very much on hold. They simply will not be able to initiate definitive planning and engineering until all these pen ding uncertainties are resolved and come together in a final rule.

Commenter 0495 states that rather than considering expanding the compliance timeframe, EPA is instead taking comment on shortening the compliance timeframe. The commenter strongly
opposes setting this type of precedent for MACT compliance. Industry will be hard pressed to meet all of the rule’s requirements even with a compliance date at September 2015. Even though individual sources could apply for a one

- year extension on a case

- by

- case b asis, EPA should not rely on that process to provide industry the time it needs to meet the new standards. Instead, EPA should provide all of industry with an adequate amount of time to prevent a crush of individual facilities seeking a one

- year compliance extension.2 Response: See section V. D of the preamble to the final rule

. As noted there, the record supports the proposed compliance deadline to September 9, 2015 to meet the amended standards. Although a number of companies have in fact begun preparing to meet the standards in advance of finalizing amendments (see PCA Comments, App. D), there nonetheless is persuasive evidence that determining, bidding, installing, and testing new technology in integrated treatment trains will take this additional time. The time estimates provided in the individual company survey results are consistent with EPA’s general judgment as time needed to develop and implement multi

- HAP pollution control technologies. See 77 FR 42386/2.

1

. 2 

### Two

- Year Compliance Deadline Extension

Several commenters (0481, 0483, 0495, 0505, 0507, 0511, 0519, 0523, 0525) agree with the proposed reset of the compliance deadline from September 2013 to September 2015. The commenters noted that the re

- proposal renders all the standards, other critical a spects of the rule, and subsequently compliance strategies, uncertain.

Commenter (0505) stated that there is justification in the record that many existing portland cement kilns will require until at least September 2015 to come into compliance with the ne w PM standard and other substantive rule revisions involving THC, Hg, and HCl. A similar timeframe is required for the planning, design, construction and implementation for a new or reconstructed kiln (and, as currently defined, a coal mill project may als o trigger applicable standards for a kiln). EPA‘s justification for the need to reset the compliance deadline is set forth in the reconsideration notice, at 77 Fed. Reg. 42385

- 87. The notice expresses EPA‘s recognition that the proposed changes to emission standards, in particular to the PM standard and the way that all the limits are proposed to apply to sources other than the kiln, will require cement plants to assess and develop new control and compliance strategies.

Commenter (0505) stated that in respo nse to a request from EPA to consider the impacts of a potential change in the PM limit from the 2010 limit of 0.04 to 0.06

- 0.08 lb/ton, the commenter supplied two documents (attachments to their comments and also in the docket) on which EPA relied to just ify the reset of the compliance deadline to September 2015:

• “The “Impact of a Change in the Cement NESHAP PM Limit On Compliance Strategies and Schedules” (April 9, 2012), and

• “Implications of Altered Particulate Matter Limit on PCA Technology Analysis” (May 24, 2012).

The commenter (0505) stated that the April 9, 2012 assessment addressed impacts of a less stringent PM limit on 1) the selection and implementation of the most appropriate control3 strategy for PM; 2) the effect of the change in the PM limi t on the selection of the most appropriate control strategy for HCl, mercury, and THC under this rule; and 3) the time needed to determine and implement the appropriate control strategies, once a revised PM limit is established. The commenter summarized t he assessment’s discussion on each of the three areas:

Selection/implementation of PM control strategies. A change in the PM limit from 0.04 to within 0.06 to 0.08 lbs/ton clinker would provide cement plants with at least one other different control option to consider

– adding cyclones upstream of an existing ESP or baghouse. This additional option would also require additional time to implement, including requiring engineering of the ductwork, layout, and associated local permitting.

Selection of the most appropriate control strategy for HCl, mercury, and THC . All of the control systems for these three pollutants (with the possible exception of a thermal oxidizer to control THC) increase the particulate loading in the exhaust. The options used for controlli ng HCl, mercury, and THC emissions require sources either to collect additional PM injected into the exhaust of the unit or consider the indirect impact on the nature and level of the PM to be controlled. Because the measures that cement plants use to cont rol HCl, mercury, and THC rely on the injection and removal of added particulates, and because a change in the PM limit can cause a change in the strategy used for controlling one or more of these pollutants, it is essential that compliance with all four s tandards be coordinated. Specifically, 1) You cannot design these injection systems without knowing the ultimate PM limit; 2) The use of these injection strategies requires an upgrade in PM control not only to avoid a PM increase but also to manage properl y the additional particulate materials; 3) Retrofitting of controls in plants with limited space (the majority) means that the fans, ductwork, and controls will need to be located and sized carefully in a coordinated manner; and 4) These controls require c hanges to current air permits, and state agencies will want to permit the integrated NESHAP compliance strategy rather than want to do so piecemeal.

Commenter (0507) agreed with the EPA that the control strategies companies may employ for controlling the various HAPs are highly inter

- related. The commenter noted that the EPA has included many new and unanticipated components for consideration with its new proposed rule that add great new uncertainty to the shape of the final rule, which could mean that the commenter will need to redo testing done in response to the 2010 rule. The commenter stated that cement companies will not be able to initiate definitive planning and engineering until all these pending uncertainties are resolved and come together in a fi nal rule.

Cement plants need time to determine and implement the appropriate control strategies, once the final NESHAP rule is established. Assuming that the amended NESHAP is finalized in December 2012, the earliest that cement plants would be able to com mission new engineering studies to determine the specific options available to them, and the cost

- effectiveness of those options, would be December 2012. December 2012 would become the earliest starting date for each cement company to initiate their proces s to conduct new engineering studies, make4 decisions regarding the most cost

- effective combination of control strategies to implement, bid, purchase, build, install the new control equipment, and then test and confirm compliance; which obviously would all have to be done before the compliance deadline (footnote: because of the limited number of firms qualified to conduct the requisite engineering studies, it is highly unlikely that all of the studies that will be required could begin at the same time.)

The commenter (0505) stated that facts and findings that were cited in the April 9, 2012 document were based on a survey of its membership and reflect almost 100 percent of members‘cement manufacturing operations in the United States, i.e., 92 out of the 97 do mestic kilns in operation are entirely consistent with and supported by findings and conclusions that were reached by independent research conducted by EPA which the reconsideration notice cites.

The commenter (0505) stated that t he time frame for implemen ting a new control strategy will depend on the particular control measures for all four pollutants and all of the regulated sources that, based on the engineering study, is determined to be best. Thus, the amount of time that cement plants will need to com e into compliance is not cut and dry and will vary from plant to plant. The commenter included the following flow diagram to illustrate the time need to prepare to comply.

Commenter (0481) provided details of the compliance str ategy scheduling issues that will need to be addressed before the compliance deadline. The commenter stated that any less time than the
two

- year extension will result in a less efficient, less effective and more costly compliance5 strategy.

In their May 24, 2012 document, the commenter (0505) stated that they were responding to an EPA request to reconsider its April 9, 2012 analysis and determine whether the conclusions would be impacted if EPA elected to propose a PM limit of 0.07 pounds/ton of clinker, wit h compliance demonstrated through a stack test and the use of a continuous parameter monitoring system (CPMS), rather than a continuous emission monitoring (CEM) device. The May 24, 2012 document confirms that the conclusions previously set forth would sti ll be accurate.

According to the commenter (0505), if the loosening of the PM standard allows new alternatives to be considered, then the CAA, and EPA‘s regulations regarding its implementation, must provide sufficient time for the “process of development and implementation” of those new alternatives, along with the implications that those new alternatives have on the best means of meeting the other limits of this NESHAP (i.e., THC, HCl, and Hg). To impose a time period that does not allow this process to o ccur would be unreasonable and arbitrary.

The commenter (0505) stated that EPA‘s decision to revise the definition of “kiln” to include some coal mill configurations further confounds design considerations for new kilns, thereby necessitating the same rese t of the compliance date for new or reconstructed kilns.

Commenter (0505) stated that EPA‘s own research, “Engineering and Economic Factors Affecting the Installation of Control Technologies for Multipollutant Strategies” (October 2002), which was cited b y EPA at proposal, supports the commenter’s position and is, in itself, ample support for the September 2015 compliance deadline. In this completely unrelated research regarding the true extent of lead

- time that sources require to identify and implement th e most appropriate control and compliance strategies, EPA found that it is normal for the development and implementation of new compliance measures to take as long as 15

- 27 months, or even longer when multiple controls are required, as is the case here. EP A‘s failure to follow its own prior research and findings in setting the compliance deadline now would be arbitrary and capricious. EPA‘s research fully supports a two

- year reset of the compliance deadline rather than the shorter period for which the recon sideration notice has also solicited comment. Adopting the shorter period would, therefore, be arbitrary and capricious.

The EPA research study uses as its starting point the notion that final rules have been issued that require new compliance measures. He re, however, the industry is not even at the starting point because the proposed rule, including the limits and the monitoring methodologies, could change even further. Once all the limits are established can the regulated community determine the
proper co ntrol technology and begin the development and implementation process. The compliance process outlined by EPA‘s research study, which, for the cement NESHAP requires multiple controls for multiple pollutants, begins whenever the final rule is ultimately is sued. This concept applies equally to both new (including reconstructed) and existing sources.6 One commenter (0505) stated that in December, 2010, Steven W. Miller, the Product Manager for Pyroprocessing Technology at FLSmidth, Inc., the leading supplier of heavy equipment to the global cement and minerals industries, prepared a declaration that was submitted as an exhibit to the U.S. Court of Appeals for District of Columbia to support the motion to expedite that PCA had filed in its challenge of the 2010 cement NESHAP final rule. Miller‘s Declaration provides further corroboration of the information, findings and conclusions submitted by PCA to support and justify the need for a two

- year reset. The commenter submitted a copy of the Miller Declaration as A ppendix C to its comments.

The commenter (0505) stated that Miller‘s Declaration identified and described the following thirteen discrete phases of activities that each cement plant will, at a minimum, need to undergo, in sequence, in order to comply: (i) baseline testing; (i i) proposal and bid evaluation; (iii) permitting; (iv) equipment design and fabrication; (v) layout engineering; (vi) detailed engineering (civil, structural and electrical); (vii) shipping; (viii) installation and erection; (ix) tie in ; (x) commissioning and optimization; (xi) training and updating of site documentation; (xii) operation; (xiii) validation testing. Based on Miller‘s experience and knowledge, his Declaration projected that the following time

- line will be necessary in orde r to ensure that cement plants will be able to fully comply with the NESHAP emission standards for each of the regulated pollutants:

• PM: 19

- 23 months

• Hg: 27

- 31 months

• HCl: 28

- 30 months

• THC: 34

- 40 months

One commenter (0505) stated that its members co nducted an analysis of their plants in order to obtain a generalized assessment of the extent to which they will have to make changes to each plant‘s design, emission controls, and other components, in order to comply with the proposed revisions to the NES HAP standards. The results of these assessments provide plant

- specific time

- lines of the work and activities that each plant will have to undergo before they will be able to achieve compliance with the new standards and implementation requirements now bein g proposed. While the data obtained through these assessment can be considered preliminary because the details and requirements of the standards are yet to finalized (and further revisions to the standards and requirements are possible as a result of the c omments EPA receives), the results of these assessments provide ample justification for why the two

- year reset is absolutely necessary; or conversely why EPA‘s adoption of a one

- year alternative reset would be unreasonable, inadequate and arbitrary. The re sults of these plant

- specific assessments are7 presented in Appendix D to their comments.

One commenter (0519) stated that they need adequate time to design the appropriate controls for its existing kilns to meet the new standards when they are finalized b y EPA. The commenter stated that engineering design is critical to appropriate sizing, production efficiency, energy efficiency, sustainable operations, and minimizing maintenance issues, all of which ensure proper control of the regulated pollutants. Comm enter 0519 stated that design and installation of modifications to existing lines, including new controls, requires more time compared to building a new system, in order to prevent unnecessary ducting, conveyors, etc. which could conflict with other operat ional equipment and also to ensure proper consideration of the interrelated nature of the pollutants. Commenter 0519 stated that integration into current operational systems in a way that preserves the operational needs of the facility while also consideri ng the overlapping nature of multiple pollutant control requirements requires significant evaluation and analysis to design the proper solution. Commenter 0519 emphasized changes to the PM standard, will have an impact on design and strategy to control oth er pollutants under the standard and refers to 77 Fed. Reg. 42386. Additionally, Commenter 0519 listed the general time schedules for design and installation of new equipment and concluded that the entire process will take 32 months. The commenter stated t hat assuming the rule is finalized in December 2012, even the proposed extended deadline leaves little time to allow facilities to comply with the revised standards.

Commenter 0519 stated that without the extended compliance facilities will likely be requi red to discontinue kiln operations while controls are installed in order to maintain compliance with the standards which will create economic impacts. Additionally the commenter stated that facilities will also be unable to meet the requirements of the exi sting NESHAP testing schedule, which does not allow for extensions if a source is not operating.

One commenter (0525) expressed support for the relevant compliance deadline extension with the revised standards, citing PCA’s technical evidence that was su bmitted separately.

Commenter (0523) stated that there are no off

- the

- shelf solutions for THC as claimed by the 2010 rule. The commenter stated that the reset would allow for more time to find solutions for controlling THC and/or oHAPs, thus avoiding the negative impact of an RTO.

Commenter (0250) requested that the EPA consider the specific, unique situations of single manufacturing facilities when determining the justification for a two year compliance extension. The commenter stated that due to the pro posed changes in the regulations for the inclusion of an In

‐ line Coal Mill in the definition of “Kiln” and the PM emission limitations, the engineering for emission control equipment that is currently in progress, must be re

‐ evaluated. The commenter noted that the mandated modifications affect the time

‐ tested proc esses of the facility, and with such a limited time to comply with these requirements, the commenter8 believes that their facility would be at a competitive disadvantage without the two year extension for the following reasons:

1. Rural location with limit ed resources

2. Less leverage to compete for a limited number of vendors and resources

3. During the construction and process modifications, a lone facility cannot shift manufacturing to another facility to sustain short term cash flow, which is more cri tical in today’s long

‐ term recession with decreased market demand for cement

The commenter concluded that if a two year extension is granted, the process changes and environmental controls that are implemented will be more thoroughly engineered prior to in stallation, which will ensure an increase in the efficiency and optimized performance of the emission control equipment.

Commenter (0495) states that the EPA proposes to set the compliance deadline for existing sources to September 10, 2015. 77 Fed. Reg. 42,370. The commenter supports extending the compliance date, but is concerned that this still provides an inadequate amount of time for affected sources to meet the new standards. Under no circumstances should EPA reduce the amount of the compliance perio d from that provided in the CAA.

Commenter (0481) stated that the preferred compliance period would be three years, because the two year extension requires the commenter’s plant to shut down in August/September, and the time period for the commenter’s bes t commercial interest is in the winter.

Commenter (0512) does not support EPA’s proposal to delay the implementation of this rule, and the resulting public health protections, by two years.

Commenter (0518) states that delaying compliance with the 2010 ce ment rule by two years is absolutely unacceptable. The court did not require this extension, and nothing in the proposed rule change supports it. On the contrary, EPA’s analysis indicates that a two

- year delay would cause between 1,920 and 5,000 avoidable deaths. This is simply unjustifiable.

Response : See section V. D of the preamble to the final rule

. We also question the commenter's premise that all of the predicted emission reductions and benefits would accrue if the existing source CEM

- based PM stand ards took effect in September 2013. As explained at length in9 section V.A. of the preamble to the final rule and in other comment responses, PM CEMS would not reliably measure the level of the PM standard in many instances. One cannot assume the full
range of emission reductions (and consequent health benefits) would accrue in the real world if the emission measurements themselves are uncertain. Thus, in a meaningful sense, today's amendments result in a regime where the required emission reductions will be reliably measured, so that the rule's health benefits will reliably occur.



### Three

- Year Compliance Deadline Extension

Commenter (0494) suggested a full three year extension to the compliance date, to accommodate permitting delays, selection of complianc e alternative, engineering, procurement, and the monitoring equipment certification process.

Response: See section V. D of the preamble to the final rule.



### 1

. 3 Authority to Reset Compliance Date

Regarding the resetting of the compliance date, two commenters ( 0505, 0519) agree with EPA‘s reading of the section 112(i)(A)(3), as well as the Agency‘s reading of NRDC v. EPA, 489 F.3d 1364, 1373

- 74 (D.C. Cir. 2007) (NRDC). The commenters stated that EPA is amending the standards themselves, as opposed to adjusting ancillary features of the rule, as was the case in NRDC. EPA is proposing to fundamentally change the standards. Further, the changes in certain standards such as PM dramatically impact other standards and the available range of compliance options for thos e other standards. According to the commenter, section 112 (i)(3)(A) of the Act requires require compliance “as expeditiously as practicable.” Given the significant interrelationship between the emissions of various constituents and the required control st rategies discussed above, the commenter stated it would not be practicable to require compliance any earlier than September 2015.

Two commenters (0475, 0525) stated that the extension of the compliance deadline is clearly authorized by the Clean Air Act. T he commenter (0525) believes there can be no reasonable argument that this schedule does not meet the Clean Air Act Section 112 requirement that compliance be achieved as “expeditiously as practicable.”

One commenter (0508) stated EPA proposes to extend t he compliance date for existing sources by two years would be unlawful and arbitrary. According to the commenter, EPA claims, without explanation, that the changes to the PM standard themselves may justify the extension; that the new PM standard may be ach ievable by other, lesser, means although EPA does not say which plants would do this or what the changed control strategies might be and; that plants could need 15

- 27 months to design new control measures, although it doesn’t claim to know10 what different m easures, if any, will be used at which plants. According to the commenter, EPA’s proposal to extend the compliance date is unlawful for several reasons.

First, for the reasons given above, EPA’s proposed changes to the PM standards

– on which the
agency s eeks to base its proposed extension of the compliance date

– are themselves unlawful and arbitrary. Accordingly, basing a compliance date extension on those unlawful changes is also unlawful and arbitrary.

Second, because § 112(d)(7) precludes backsliding , § 112(i)’s compliance date provision must be read as precluding compliance date extensions to provide for backsliding.

Third, EPA ignores the “effective date” limitation in § 112(i)(3)(A) by pretending that it may re

set the outside compliance date beyo nd the 3

- year outside date following the effective date of the original standard. Moreover, Congress specified the exceptions from this provision, saying “except as provided” in the enumerated subparagraphs. For example, § 112(i) provides for case

by

- case compliance extensions of up to one year to allow for the installation of controls. When Congress enumerates specific exceptions to a statutory scheme, an agency may not create additional or different exceptions from the prevailing prescription or proscrip tion. Here that means compliance may not be extended beyond the effective date of the original standard. Congress did not intend to allow EPA to continually re

- set the compliance dates any time it subsequently amended the standards.

Fourth, EPA claims tha t overall emission reductions will be “roughly the same” as under the 2010 rule and that “sources will still need to meet essentially the same daily average as they would under the 2010 standard.” To the extent EPA is not making significant changes to the PM standard but merely adjusting it to reflect a different compliance period

– 3

- hour stack tests rather than 30

- day rolling averages

– the agency lacks any authority to extend the compliance date and the extension violates § 112(i). See NRDC, 489 F.3d at 1373

- 1373.

The commenter stated that EPA must withdraw its proposed revisions to the cement plant rule and allow the 2010 rule to take effect as written.

One commenter (0508) stated that EPA suggestion that PCA’s holding on staying the clinker pile requir ements supports its extension. To the contrary, that was discussion of staying rules that EPA was required to change. It lends no support to delaying compliance with rules that EPA seeks to revise as a discretionary matter, a fortiori where those changes a re unlawful and arbitrary.

One commenter (0508) stated that if EPA promulgated new standards that were more stringent11 than existing standards

-- i.e., took action that the CAA does allow

– it would not extend the compliance date for the existing standards ; rather it would require compliance with existing standards to take place in accordance with § 112(i) and then set new compliance dates for the new more stringent standards. Here, extending the compliance date so that some plants might be able to do less to control their emissions is egregiously unlawful and arbitrary. Indeed, it is irresponsible of EPA to propose to grant a compliance extension that it lacks authority to grant, and it would be irresponsible of plant owners or operators to rely on such an unlawful proposal to put off the steps they need to take to reach full compliance with the 2010 standards by the existing 2013 compliance date. If EPA promulgates the compliance date extension and it is vacated or stayed by a court, owners and operators wi ll have only themselves to blame for having relied on EPA to take unlawful or arbitrary action on their behalf.

One commenter (0508) stated that even if EPA could lawfully promulgate some extension to the compliance date, EPA does not show that the prop osed compliance extension is necessary or that it is requiring compliance with the revised standards as expeditiously as possible, as § 112(i) expressly requires. EPA does not say which plants will change their compliance strategies, or that any plants wil l change their compliance strategies in response to the proposed changes to the PM standards. Instead, the agency speculates that proposed .07 standard “may” be achievable by means other than a baghouse, implying that some hypothetical plant that may have been planning to install a baghouse might now choose to either cancel the installation and rely on its existing control equipment or to install less effective controls than it originally intended. Because such vague hypothesizing does not show that complia nce by 2015 is as “expeditious as practicable,” EPA’s proposed extension of the compliance date violates § 112(i).

One commenter (0508) stated that EPA does not even claim that its proposed 2015 compliance date is as expeditious as practicable but, if it did, any such claim would be unsupported by the record and therefore arbitrary. EPA argues

– again without providing any specifics

– that some types of change in compliance, which some unidentified plants might or might not undertake, could take up to 27 m onth and that the agency does not want cement plants to have to make changes except during winter months. But absent some showing that there are actual plants that will make actual changes and need EPA’s proposed extension to do so, the agency’s vague and abstract discussion of the amount of time that some types of change might take lends no support to the agency’s proposed action. Again, if additional time were needed by specific plants, those plants could obtain it lawfully under § 112(i)’s provision for case

- by

- case extensions, and EPA provides no reason to believe that mechanism would not suffice.

Response: EPA has the legal authority to establish the September, 2015 date for the existing source stack standards. EPA may extend compliance dates when it a mends a section 112 (d) MACT standard. This is the thrust of the court’s opinion in NRDC v. EPA , 489 F. 3d at 1373

- 74 where the court held that EPA could not extend a compliance date where it amends provisions ancillary to the standard, distinguishing the situation where EPA amends the standard itself. The court’s discussion of the issue indicates that an extension for an amended standard is legally12 permissible, since the court would otherwise have had no reason to allude to and distinguish the situation where EPA amends a standard. Section 112 (i)(3)(A) itself does not speak to the case where EPA amends a standard before that standard’s compliance date. 1 A reasonable way to view that situation is that there is a single standard at issue

– the amended one

– and EPA must establish a compliance date for that standard which date is “as expeditiou[s] as practicable”. Any other reading would be very problematic as, for example, in the situation where a standard proves to be physically unachievable by any so urce. In this situation, the commenter’s reading would still mandate compliance as of the date of the impossible

- to

- achieve standard. Nor does section 112 (d)(7) bar extensions. It is not an anti

- backsliding provision (as the commenter maintains), but r ather is most naturally read as a provision which prevents MACT standards from overriding more stringent standards adopted pursuant to some authority other than section 112 (d). 2

The commenter’s factual arguments are misplaced. First, it is EPA’s engine ering judgment, not uninformed speculation, that the amended PM standard affords compliance opportunities for existing sources (although not for new sources) which are not available under the 2010 final rule. These involve use of a primary PM control devi ce other than a fabric filter with membrane bags, different sizing of a primary PM control device, different opportunities for configuring PM polishing devices (to capture PM generated in control of HCl, Hg, and non

- dioxin organics) , and different control possibilities for non

- dioxin organic HAP by virtue of the amended oHAP standard . Se cond, plant

- specific responses (PCA Comments App. D, Docket item EPA

- HQ

OAR

- 2011

- 0817

- 0505), confirm EPA’s engineering judgment and also provide plant

- specific informatio n which the commenter claims is lacking. The record further documents the steps needed to implement these new control strategies

– including engineering studies, technical procurement, equipment fabrication and purchase, vendor selection, technology desig n, construction and testing. These processes typically take upwards of 30 months to carry out, consistent with both EPA and cement company experience. See 77 FR 42386 /2 and survey responses noted above

. EPA thus believes that a compliance date of Sep tember 9, 2015 requires compliance with the stack emission standard for existing sources as expeditiously as practicable, within the meaning of section 112 (i)(3)(A) of the Act.

Comment : Authority to Change (Weaken) Standard

In comments submitted to resp ond response to arguments of other commenters based on section 112 (d)(7

, ) the commenter (0505, 0507) stated that the most natural and obvious reading of CAA § 112(d)(7) is that no Section 112 NESHAP standard can be deemed to override a more stringent sta ndard issued under other provisions of the CAA or State law. Second, under the reading that section 112 (d)(7) prohibits any weakening of standards, EPA would be precluded

1 EPA may, of course, voluntarily amend a MACT standard at any time. PCA v. EPA , 665 F. 3d at 189.
2 Under the commenter’s reading, EPA both could not amend an impossible

- to

- achieve standard, and could not alter that standard’s initially

- established comp liance date. An example of such an impossible

- to

- achieve standard, which EPA is correcting in these amendments, was the HCl standard of zero (0) during startup and shutdown (which standard reflected erroneous information that no chlorine is present during startup and shutdown at cement kilns). EPA does not believe that Congress mandated this type of result.13 from amending a Section 112 standard to make it less stringent even where EPA became convinced through overwhelming information and data that a standard it had previously issued was blatantly unsupportable, which is of course absurd. According to the commenter, the D.C. Circuit has consistently ruled that federal agencies have an ongoing duty to assure that their rules and policies are updated and revised when it discovers that they are no longer supportable.

According to commenters (0505, 0519), challengers to EPA‘s settlement agreement with PCA that underpins this reconsideration of the 2010 final rule have also argued that EPA is barred from revising the standards set in the 2010 rule unless EPA finds, in responding to the remand in PCA, that its standards must be changed to reflect changed CISWI and cement kiln populations. They have fu rther argued that, even if such circumstances exist, EPA cannot now revise the 2010 standards in a manner which would “weaken” them unless in response to a court order. Even assuming their arguments to be correct (and the commenter does not agree that they are correct), both of those conditions exist here. Thus, the revisions which EPA is now proposing to make to the emission standards set initially in 2010, are changes to the standards which are required because EPA arbitrarily included CISWI kil ns in its calculations of the limits of the 2010 standards. Portland Cement Ass’n. v. EPA , 665 F.3d 177, 189 (DC. Cir. 2011) (PCA). As a result of the DC Circuit‘s decision in PCA, EPA‘s reconsideration and revision of the 2010 standards is being done pursuant to th e court‘s order. EPA is well within its authority to revise now the standards that were improperly set in 2010, as is now demonstrated to be necessary, including, as section 112(i)(3)(A) permits, the need to reset the compliance deadline up to three
years after the new, revised standards become effective.

Response: See preamble section V.A to the final rule and previous response. In addition, t he commenter is correct that the recalculation of the PM standard after removing CISWI kilns, in response to the remand in PCA v. EPA , changed the level of the PM floor and standard. See EPA Docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0225 and [ the appendices to Final Portland Cement Reconsideration Technical Support Document, December 20, 2012 in this rulemaking docket];

see also 77 FR 42373/3 (“the existing source floor for PM increased from 0.04 lb ton clinker to 0.05 lb per ton clinker” (in 30

- day average space). For technical reasons, EPA made a further change to the standard’s compliance regime so that compliance is based on stack testing rather than continuous monitoring with a CEMS. This occasioned a further change in the numerical level of the standard (reflecting the difference in testing frequency, determined by the m term in the UPL equation). See EPA Docket i tem EPA

- HQ

- OAR

- 2011

- 0817

- 0225 and appendices to Final Portland Cement Reconsideration Technical Support Document, December 20, 2012 in this rulemaking docket. However, the numerical level of the PM standard would change as a result of recalculation whethe r or not expressed as a 30

- day average or as a 3 test run average. EPA also agrees with the commenter that neither section 112 (d)(7) nor 112 (a)(3) bars EPA amending the standard or setting a September, 2015 compliance date for the stack emission standar ds

.



### 1

. 4 Extension of Altered Compliance Deadline to All NESHAP Standards14 Two commenters (0505, 0507) asked for a clarification between the preamble and rule language regarding the compliance date extension. One commenter (0505) stated that the reconsideratio n notice states “EPA is proposing that the compliance date for all existing source standards including standards for PM, mercury, HCl and THC, clinker piles and the standards for startup and shutdown be extended to September 9, 2015.” However, the foregoin g statements appear to contrast with the regulatory text proposed for §§ 63.1351(c) and (e). According to the commenter, § 63.1351(c) can be interpreted to say that standards which are not being changed from the 2010 rule may not be subject to the two

- yea r reset. Aside from the fact that this was not the intention of the litigation settlement agreement, because of the clear inter

- relatedness of all of the NESHAP standards, any exclusion of a particular standard and related requirements from the two

- year re set would be significantly problematic for all of the reasons discussed in these comments demonstrating the need for the compliance deadline to be uniformly reset two

- years. The commenter notes that Section 63.1351(e) states:

The compliance date for exist ing and new sources with the requirements for open clinker storage piles in §63.1343(c) is [INSERT DATE 180 DAYS AFTER PUBLICATION OF THESE AMENDMENTS IN THE FEDERAL REGISTER] or startup, whichever is later. The commenter believes that the inclusion of the bracketed text in § 63.1351(e) was in error and does not reflect EPA‘s actual intent.

The commenter (0507) suggested that the regulatory language should read:

(c) The compliance date for existing sources is September 10, 2015.

Commenter (0507) suggested t hat the proposed regulatory language should extend the compliance date for all of the new provisions in the September 9, 2010 final rule, not just those that are revised in this rulemaking, to avoid confusion.

One commenter (0519) believes that engineerin g efficiencies, cost efficiencies, and common sense all indicate that setting differing deadlines will cause undue complications for both EPA as well as the plant operations in demonstrating compliance as well as understanding what is needed to maintain co mpliance. To ensure that the designs and installation of controls are completed timely and efficiently, and to ensure that the entire plant operations will maintain compliance with the final standards, the commenter believes it is imperative that all of th e controls be installed at the same time as a part of the entire control strategy addressed appropriately during the engineering phase. This ensures that incompatible equipment will not inadvertently be installed and cause significant issues with efficienc ies, and potentially compliance. The commenter supports EPA’s statement that the compliance date for all existing source standards including for PM, mercury, HCl and THC, clinker piles and the standards for startup and shutdown should be the same, i.e., S eptember 9, 2015.15 Response: EPA agrees with the commenters that we intended for the extended compliance date to apply to the PM, THC, mercury and HCl standards for existing sources for kilns, clinker coolers and raw material dryers. However, the September 9, 2015 compliance date does not apply to open clinker storage piles.. We have extended the compliance date of that standard to 12 months to allow time for sources to implement control measures, establish recordkeeping and reporting procedures, and to pet ition EPA to use alternative control measures to those listed in the final rule

.

Comment: One commenter (0508) stated that e ven if EPA’s proposed changes to the PM standards provided a lawful and non

- arbitrary basis for extending the compliance date for t hose standards, they do not support extending the compliance dates for all the other standards. EPA’s standards for mercury, THC, and HCl are first

- time standards that are not in place at all now, even though the CAA required EPA to promulgate them in 1997 and the D.C. Circuit ordered EPA to promulgate them in 2000 in National Lime . Delaying compliance with these standards now, even though they are not changing, is not just unlawful and arbitrary but an abandonment of EPA’s fundamental mission to protect hu man health and the environment under the authority and requirements that Congress established in the CAA. EPA provides no rationale for extending the compliance dates for standards other than its PM standard. Instead, the agency merely notes in passing tha t “compliance strategies for the other HAP, all of which involve some element of PM control, also may be affected.” That sort of conclusory and self

- serving speculation is no substitute for reasoned agency decision making. EPA’s failure to provide a ration ale basis for extending the compliance dates for mercury, HCl and THC adds yet another arbitrary aspect to the agency’s action.

Response: EPA disagrees with the commenter that there is no basis for an extension of the compliance date for the pollutants ot her than PM. The PM standard is interrelated with the remaining standards in that PM control often is an aspect of control for the remaining standards

. Thus, the control systems for Hg, HCl, and non

- dioxin organics 3 increase the particulate loading in the exhaust. The options used for controlling HCl, mercury, and THC emissions require sources either to collect additio nal PM injected into the exhaust of the unit or to consider the indirect impact on the nature and level of the PM to be controlled. Because the measures that cement plants use to control HCl, mercury, and THC rely on the injection, collection and removal of added particulates, and because a change in the PM limit can cause a change in the strategy used for controlling one or more of these poll utants, compliance strategies for all four standards are related and need to be coordinated. In their comments, the industry identified specific instances where the change in the PM limit is likely to result in changes to the control measures for mercury, THC and HCl. See Final Portland Cement Reconsideration Technical Support Document, December 20, 2012 Table 1 (showing estimated savings related to alternatives for PM control and PM control associated with capture of mercury and scrubbed HCl, and estimati ng the associated cost savings). Furthermore, as illustrated in the following

3 Some thermal oxidizers would not increase particulate loadings, but under the revised standards, EPA does not expect sources to use thermal oxidizer s for organics control. See section VI.H of the preamble to the final rule. In addition, as explained in the text above, the amended alternative organic HAP standard will afford sources opportunities to use compliance strategies not involving RTOs.16 paragraph, changes in the emission limits for organic HAP are also likely both to afford more compliance options for organic HAP control requiring time to implement, and also to impact controls for mercury

. See docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0505

- A5.

The record includes further specific examples illustrating these points. One facility (kiln A in the survey response in App. D to PCA comments ) responding to an industry survey of the impacts that would result from the revised rule indicated that the revised PM limit would likely result in them changing their plans to replace an existing ESP with a new baghouse an d instead convert the ESP to a baghouse or add a polishing baghous e downstream of the ESP. The facility indicated that if, as a result of the PM limit change, they did not replace the ESP with a new baghouse, it would impact their plans for installing an RTO for THC control downstream of the PM control device. The likel y effects include installing the equipment in a different location, changing the layout for utilities (natural gas, power, compressed air, and water), new ductwork design to tie the main dust collection device outlet to the RTO and the RTO to the main stac k, and a re

- evaluation of the RTO ID fan design capacity. An option to the RTO for THC control being considered by the facility was catalytic ceramic filtration (CCF). The same adjustments would have to be made for this control option as for the RTO. Becau se the CCF technology has PM removal potential, a decision to install CCF instead of an RTO would impact their strategy for PM control possibly negating the need to convert their ESP because the CCF would function as a polishing baghouse. Moreover, the sou rce is considering alternatives to a RTO o r CCF as a result of the amended standard alternative standard for organic HAP. According to the facility, an alternative to the RTO or CCF installed upstream of the main dust collection device will increase the total volume of kiln gases and would then require a re

- evaluation of the inlet specifications for any of the PM and mercury control options that were being considered.

For some facilities, the increased PM limit allows them to consider control options that they had previously ruled out. For example, one facility (kilns C and D) was planning to replace its ESP with a new baghouse. With the PM limit change, they are considering a hybrid ESP conversion instead. Their plan to use lime injection for HCl control with its increased PM loading on the downstream control was linked to their plan to replace the ESP with a new baghouse. Because of the increased PM limit, they can still use lime injection for HCl control despite the increased PM loading that will result from its use. As a result of the proposed compliance delay , the facility will be able to consider alternative solutions for THC control including SCR, CCF as well as other less energy

- intense organic HAP specific control technologies.

EPA also dis agrees with industry’s position that the revised definition of kilns to include inline coal mills is further justification for the two

- year compliance date extension

. The end result of this provision is that all emissions from kilns meet the NESHAP emission limit s for PM, THC, mercury and HCl

– i.e. no change at all in the kiln emission standards

. Essentially all that is changing are the means of accounting for meeting those standards when the kiln chooses to commingle its emissions with those from the associated coal mill. Emission limits in section 63.1343 identify emission limits by source, of which the kiln is one. It is true that until now, the rule did not provide adequate instruction on how to calculate compliance in the case where a17 portion of kiln emissi ons were diverted to a coal mill or to an alkali bypass, although we previously addressed the situation where some kiln emissions were diverted to the alkali bypass. Industry understood that all emissions were to be properly accounted for as evidenced by t heir comments to EPA that in the 2010 provisions for the alternative PM limit (63.1343) EPA did not account for those situations where exhaust flows from other processes (e.g., coal mills and clinker coolers) were commingled with kiln exhaust in the main k iln stack. In this final rule, we have provided instructions on determining compliance with the kiln emissions limits for sources where a kiln is comprised of an inline alkali bypass and/or coal mill. So while we agree with industry that a 2 year extension of the compliance date for existing sources is necessary, we reject the argument that the revised definition of kilns to include inline coal mills further justifies the extensions. Also, see response to comment 2.2 comment #1 below.



### 1

. 5 New Source Applicabil ity Date

Several commenters (0495, 0505, 0507) disagreed with EPA maintaining the definition of new sources as those that commenced construction after May 9, 2009. The commenter stated that if EPA maintains May 9, 2009 as the new source eligibility date, this will mean that sources commencing construction on or after that date will not know until December 2012 to what standard they are subject. This is a lag time of more than three and a half years of uncertainty. Especially when EPA has proposed major re visions to the rules more than two years after the May 9, 2009 date, it is virtually inconceivable that Congress intended such a disruptive result. It is clear that within the contemplation of the statute, it was on July 18, 2012 that EPA first proposed th e standards which are scheduled to become final December 2012. Commenter 0505 stated that EPA states that it is basing its unwillingness to reset the eligibility date on the assumption that the rulemaking record under which the standards were developed was proposed on May 6, 2009. But the rulemaking record for the July 18, 2012 proposal is dramatically different than the record that existed at the time of the May 9, 2009 proposal. The commenter notes that on May 17, 2011, EPA granted reconsideration on many issues associated with its final NESHAP and NSPS standards, including the NSPS PM standard for modified sources. And with its new proposed standard for PM of July 18, 2012, EPA is dramatically altering the basis for the standards, as well as the implement ation scheme. Hundreds of new documents have been added to the record, many of which relate directly to the issue of the appropriate emission limits for all sources (including new sou rces).

One c ommenter (0511) stated that the same logic which compels the need for an extension of the existing source compliance date also compels an extension of the compliance date for new sources. As EPA noted in the preamble, the D.C. Circuit has upheld the idea that EPA may reset compliance dates for 112(d) standards if t he agency materially amends the standards themselves. In the 2012 proposal, EPA makes significant changes to the nature of the regulated source, adding a materially changed definition of “kiln” and adding a wholly new definition of “coal mill.” The comment er emphasizes that the compliance and compliance monitoring requirements related to kiln PM emissions has also significantly changed. In addition, the way that THC compliance is calculated has materially changed in that EPA is now revising the rule18 to stat e that for any results below the method detection level, the affected source must assume emissions were occurring at the method detection level. This, the commenter states, is contrary to established practice as discussed in the 2009 preamble. 74 Fed. Reg. at 21162. The commenter goes on to say that the regulation of coal mills at both new and existing sources has changed from the 2010 rule. The commenter states that these examples of the significant changes proposed to the rule make it difficult for new so urces that have begun construction to identify and plan for compliance. Assuming that the final rule is signed in December 2012, this would require sources that commenced construction after May 6, 2009 and so are already well into construction to amend the ir compliance strategies or simply put the projects on hold until greater clarity is available. The commenter believes this would be unfair and would further impact the delicate state of the economy. The commenter urges EPA to establish the new source
comp liance date as July 18, 2012 rather than May 6, 2009.

One commenter (0507) noted that the EPA has quite properly “reset” the new source applicability date several times since the EPA proposed standards for the Portland cement category in 1998.

Response: See section V. E of the final preamble.19 

## Section 2 : Comments on Definitions

2

. 1 Open Clinker Storage Pile Definition

Several commenters (0505, 0507, 0523) stated that the definition is problematic as proposed. The commenter (0505) stated that the proposed definition is overly broad and therefore could be excessively stringent in practice. The definition needs to be clarified to specify with more particularity when an incidental ―pile of clinker will be considered to be a ―storage pile for purposes of triggering the regulations applicable to open clinker storage piles. In particular, the

commen ter is concerned that the definition is not limited to any particular quantity of clinker in a pile or period of time for the existence of a pile. For example, it is not uncommon for small amounts of clinker to be dropped, or fall off a front

- loader, onto the ground when being moved from a kiln to a storage location or from such a location to the grinding mill. Because these are small amounts of clinker, it is also not uncommon that these small quantities of clinker will remain where they were dropped and m ay not be picked up or removed until the necessary manpower becomes available; in some cases this could be multiple days. The commenter believes that the definition currently being proposed needs to be revised to make clear when a pile of clinker will be c onsidered a storage pile for purposes of compliance with the requirements of LLL. The commenter proposes the following definition: “Open clinker storage pile means an outdoor, unenclosed accumulation of clinker on the ground, which contains in excess of 50 ,000 tons of clinker, and is utilized for a continuous period in excess of 180 days.”

Commenter (0523) stated that the EPA is regulating all clinker piles, regardless of size or duration, which creates operational problems with little environmental benefit . The commenter discussed the differences between clinker storage piles and clinker stockpiles. The commenter noted that because of the short

- term duration of temporary clinker stockpiles, the use of work practices similar to those proposed for clinker sto rage piles is not feasible. The commenter recommended that the EPA clarify that work practice standards apply only to outdoor (or open) clinker storage piles and not to temporary clinker stockpiles.

Commenter (0523) noted that clinker storage in open clink er piles should be defined as any clinker placed outside for the purpose of storage prior to being ground into cement. The commenter stated that clinker or similar materials that are spilled onto the ground from material handling operations such as tempora ry build up under conveyor belts, material removed from equipment to allow access into equipment, or plant clean up materials collected for removal, are not open clinker piles. The commenter stated that these potential activities will be defined in the fac ility’s operations and maintenance plan.20 Commenter (0507) discussed the differences between clinker storage piles and clinker stockpiles, and noted that because of the short

- term duration of temporary clinker stockpiles, the use of work practices similar t o those proposed for clinker storage piles is not feasible. The commenter recommended that the EPA clarify that work practice standards apply only to outdoor (or open) clinker storage piles and not to temporary clinker stockpiles.

Response: See section V. C of the preamble.



### 2

. 2 Inline Coal Mill Definition

Two commenters (0505, 0519) expressed concern over the proposed definitions linking kilns and in

- line coal mills.

Commenter 0505 stated that by adding a definition of inline coal mill, linking the coal mill directly to the definition of kiln EPA effectively creates a new affected source under the NESHAP not previously subject to regulation. It is commenter‘s view that the New Source compliance deadline date for kilns should be July 18, 2012, rather than May 6, 2009.

Commenter 0519 stated that inline coal mills are a complicated issue and that EPA should have provided previous notice prior to including them as part of this definition. The commenter emphasizes that little or no testing for HAP emissions from th ese stacks has been done by the industry and that the standards were set without the benefit of having measured the emissions from these stacks. The commenter believes we cannot anticipate the impact of these emissions, and feels that further analysis is n ecessary in order to properly understand the impact of these emissions.

Response: First, EPA rejects the notion that there was inadequate notice of a potential regulation addressing accounting for commingled kiln and coal mill emissions. The issue was dis cussed at length in the preamble to the proposed rule, 77 FR 42383

- 85, and regulatory language proposed (77 FR 42398, 42399

– 42400, 42402

– 42406, 42408

– 42409 ) . In addition, a s we explained in our 2011 notice granting reconsideration of certain issues (76 FR 28318, May 17, 2011), the EPA’s recent amendments to the Standards for Performance for Coal Mills exempted coal mills at cement manufacturing facilities whose only heat source was kiln exhaust. See 74 FR 51952, October 8, 2009. This change was made in response to comment from PCA wh ich argued that coal mills whose only heat source was kiln exhaust were similar to inline raw mills. In the case of inline raw mills, we consider the raw mill to be an integral part of the kiln. PCA requested the

same regu latory treatment for coal mills, and EPA agreed

.2 1 Regarding the commenter’s claim that coal mills that are now regulated as an integral part of kilns should be considered new affected source whose new source eligibility date is July 18, 2012

, the EPA does not agree. Coal mills that are integral parts of the kiln are considered emission points that must be accounted for through various measurement mechanisms, and cannot be considered a new source. Thus, this action does not involve new standard setting an d does not justify setting a revised, new source compliance date.

Regarding the commenter’s concern that EPA lacks test data from coal mills, the final rule requires that testing for mercury be done downstream of the coal mill to account for mercury from t he kiln but to also account for the fact that mercury may be removed in the coal mill

. Testing for THC and HCl is required upstream of the coal mill so that any HCl and THC that would be emitted from the coal is not counted as part of the kiln emissions. However, we are

. also allowing testing either downstream or upstream of the coal mill for all four pollutants. We believe that this approach will properly account for kiln emissions with inline coal mills. We note that the issue is one of accounting (ass uring that coal mills are not used as a means of discharging uncaptured HAP emissions from kilns , or not controlling PM from the kiln to NESHAP levels ), and does not involve standard setting. Kilns combining emissions with coal mill emissions are not sub ject to different standards than those that do not. Rather, they just document compliance in a different manner. Furthermore, the commenter did not provide additional data that showed that our approach was not appropriate.



### 2

. 3 Raw Material Dryer Definition

Commenter 0505 stated that while it appears that the intent of the revised definition of raw material dryer is to exclude dryers used to remove moisture from other than kiln feed, as the currently written the new definition would have the opposite effect . For example, the revised definition would appear to encompass any piece of equipment used to dry a component of feedstock prior to the mixing of all of the components. The commenter believes the revised definition is too broad and therefore recommends th at EPA retain the definition of raw material dryer definition that was adopted in the 2010 final rule.

Response: The intent of the revised definition was to clarify that raw material dryers may be used for removing the moisture from materials other than ki ln feed. The definition in the final rule is the same as proposed.



### 2

. 4 Start

- up/Shutdown Definition

Commenter (0505) stated that the proposed revisions to Subpart LLL include the adoption of a definition for start

- up and shutdown but no definitions of start up and shutdown are found in the changes being proposed to the regulatory text of 40 CFR 60 Subpart F. The commenter stated22 that it is unclear whether EPA intends for the shutdown definitions to apply to both Subpart F and Subpart LLL and that it should be clarified to avoid confusion.

Commenters (0505, 0519, 0523) stated that the definition proposed needs to be revised as it is overly simplistic and will create compliance challenges. According to the commenters, companies and plants use different definit ions for startup and shutdown and do so for a variety of operational reasons.

Some plants use criteria, such as reaching a nominal percentage of normal feed rates, to indicate the end of startup. Some plants may use production of clinker rather than initi ation of feed to signify the end of startup in order to recognize the lag time required for material to move through the kiln system. The time required to increase feed to reach normal levels is short for contemporary preheater/precalciner kilns and consid erably longer for older long kilns. Both types of kilns are prevalent throughout the industry. The time between initiating feed and reaching normal operating conditions may include some atypical emissions in the calculation of 30

- day averages.

Site specif ic definitions have been negotiated with state agencies and then included in a company‘s applicable operating permit(s). State or district permits typically have a different definition of startup and shutdown, which could ultimately create confusion and co nflict on interpretation and compliance with these startup and shutdown conditions. Commenter (0519) specifically points out, the Texas Commission on Environmental Quality is proposing a new and different definition for the Maintenance, Startup and Shutdo wn permitting that Texas plants will be required to address, which need to be reconciled with definitions in the NESHAP to ensure that facilities are able to demonstrate and maintain compliance. Commenter (0519) has concerns that facilities in Texas will not be able to meet all the differing definitions simultaneously and will be out of compliance any time a particular facility is not under normal operations.

According to commenter (0505), combustion may continue for a brief period following cessation of k iln feed to assist in moving the remaining material out of the kiln. The ID fan may also continue to run to assist in cooling the kiln for up to an additional 36 hours. Additionally, it is necessary for the kiln to continue to turn in order to protect the shell and refractory.

Contrary to what EPA‘s proposed definition assumes, the ID fan is run alone for many legitimate maintenance reasons that are entirely unrelated to production. Commenter (0505) stated the proposed definition needs to be modified to ex clude the starting of the fan during a maintenance period when the kiln is not operating. Commenter (0523) suggested a change to the definition of startup and shutdown to include the use of the induced draft fan to create a slight draft to vent the kiln wi th fresh ambient air when plant employees are working inside the kiln during a major outage. The commenter suggested an alternative definition:23 “The period of time of kiln operation that does not include normal operations. Startup begins when the kiln’s in duced fan is turned on and fuel is being introduced into the kiln from the discharge end of the kiln.”

Commenter (0505) stated that if EPA adopts a single, uniform, definition of start

- up and shutdown, they recommend that the following definitions are far more representative and reflective of the variety of cement plant operations that currently exist than those definitions which EPA has proposed to adopt:

• Start

- up period Commences: when both the ID fan draft is running and fuel combustion is present in th e main burner of the kiln.

• Sta rtup period Ends: when feed has been fed continuously to the kiln for a period of at least 120 minutes OR when the kiln feed rate exceeds 60 percent of the kiln design limitation rate

.

• Shutdown period Commences: when the kil n feeder is shut off.

• Shutdown period Ends when continuous kiln rotation ceases.

Start

- up fuel is used only in the main burners. Also, auxiliary burners may be utilized to cure or prepare new refractory brick. These activities are

– and should therefore be classified by EPA to be

– maintenance activities rather than start

- up activities.

Commenter (0505) stated that EPA‘s proposed definition and the preamble‘s discussion seem to be directed at startup after extended outages (e.g. annual maintenance outage, inventory outage or other ―cold start

- ups). However, in the cement industry, startup occurs far more routinely and frequently when feed is stopped for a “kiln trip.” This is the period of time that occurs while the kiln is banked hot, rotated slowly, and t he effluent flow rate drops to a small fraction of normal levels. EPA‘s definition of startup needs to reflect this circumstance. Actual emission rates and emission concentrations can be variable/different during such kiln trips as compared to levels occur ring during normal operation. Thus, the emission monitoring data obtained during such periods is not likely to be reliable for purposes of determining actual compliance.

One commenter (0508) stated that EPA’s proposed change to the definition of “startup ” to mean until “continuous raw material feed is introduced” suggests that plants can introduce raw materials into the kiln during “startup” or “shutdown” mode so long as they do not introduce it24 “continuously.” Allowing sources to introduce raw materials into the kiln during startup and shutdown at all is inconsistent with the concept of startup and shutdown, and is, effectively, a loophole that allows plants to operate their kilns and produce cement without meeting the relevant emission standards. EPA doe s not provide any explanation for allowing plants to avoid compliance with normal emission standards when they are introducing any raw materials into the kiln at all.

Commenter (0523) agreed that kiln start

- up concludes once kiln feed is being fed continuo usly into the kiln. The commenter noted, however, that “continuously” can be defined when the kiln feed rate exceeds 50% of the kiln’s nominal rate for more than 15 minutes.

Response: After reviewing the comments, EPA agrees that an ID fan can be operated for maintenance during periods other than startup. In order to account for the maintenance activities where the ID fan is operational, the definition of start

- up /shutdown will be revised from proposal so that start

- up commences when both the ID fan draft is running and fuel combustion is occurring in the main burner of the kiln

. When feed is introduced into the kiln, HAP emissions will be immediately released as the feed heats up moving down the kiln. No emissions data were provided by the commenters to t he contrary. The refore, the definition retains the condition that the kiln is in startup mode until feed is continuously fed to the kiln.

We also disagree that it is necessary to revise the definition to account for the “kiln trip” as suggested by one com menter. While the commenter’s claim that emissions may be more variable or different during kiln trips as compared to during normal operations, we believe it is likely that emissions will be less than normal because feed is not continuously being introduce d into the kiln at a rate less than full operation mode.

.

Regarding the comment that the subpart LLL definition of startup and shutdown may conflict with some state definitions and lead to confusion and problems with compliance, state regulations cannot ov erride federal regulation but can be more stringent. To the extent that a state regulation is defining startup and shutdown for the same reason, the definition must be consistent with subpart LLL. If the state definition is being used for other purposes, i t may be appropriate that the state definition and subpart LLL definition are not identical.

We disagree with the commenter 0 508 ’s claim that the rule can be circumvented and that cement plants will be able to manufacture cement using other than continuous feed to the kiln. The production of clinker requires steady

- state conditions in the kiln which are dependent on an optimum mass of feed material in the kiln. The kiln operator would not be able to attain the necessary steady

- state temperatures to produce quality clinker without proper loading of the kiln. Nor is it reasonable to think that operating a kiln for the production of clinker is economically viable without continuous feed to the kiln.25 In the event that feed to the kiln is halted for some operatio nal reason, the kiln is now in shutdown mode and is subject to the work practice standards for startup and shutdown. Even though feed to the kiln has stopped, there will still be residual feed in the kiln that may emit some HAP. As we said at proposal, any emissions that do occur during a startup or shutdown are likely to be much lower than during normal operation as a result of the presence of little or no feed in the kiln during the shutdown. For these reasons the final definition of startup and shutdown retains the condition that startup ends with the introduction of continuous feed for at least 120 minutes or when the feed rate exceeds 60 percent of the kiln design limitation rate, whichever occurs first

.

2

. 5 Kiln Operation Definition

Commenter (0505

- Appe ndix G) recommended that EPA ensure that the definitions for “operating day” and “startup and shutdown” are consistent.

Response: After reviewing the definitions, we believe that the two definitions are consistent.26 

## Section 3 : Comments on Emission Standards/Limits

3

. 1 Particulate Matter (PM): General Support and Opposition for the Standard

Several commenters (0475, 0494, 0505, 0507 0525) stated that they support the revisions EPA has proposed to make to the PM standard for new and existing sources under both NESHAP and NSPS.

Commenter (0507) stated that although the proposed stack testing

- based PM emission standards are more stringent than those proposed in 2009, the commenter is not opposed to the proposed standards, and acknowledged that they allow cement compani es greater flexibility.

Commenter (0495) supports EPA’s approach that allows modified sources to comply with existing source NESHAP rather than NSPS.

Response: EPA acknowledges the commenters’ general support of the amended PM standard.



### 3

. 2 PM: Clarificati on on Stack Test to be used

Commenter (0494) stated that if the EPA retains the requirement to demonstrate ongoing compliance by meeting an operational limit, the EPA should clarify in the rule that the operational limit need not be based on the most rece nt stack test. The commenter stated that in §63.1349(b)(1)(i)(C), the reference to "verify an existing ... operating limit" may address this

concern.

Response:

. The EPA disagrees with the commenter and the final rule requires that the operating limit be reassessed and adjusted at least annually following the PM performance test. The EPA recognizes that the relationship of PM concentration to PM CPMS response may change based on the physical characteristics of the PM itself and, as such, it is appropriate to modify the operating limit to align with the most recent assessment of this relationship (i.e. the most recent performance test data).27 

### 3

. 3 PM: UPL Calculation Method Under

- predicts Variability

Commenter (0523) discussed the collection of PM emissions dat a that was submitted to the EPA as part of a Petition for Reconsideration. The commenter noted that the EPA did not consider the data. The commenter responded that the petition was an example of real continuous variability; therefore, it should not matter if the source was classified as a LLL, EEE, or CISWI kiln. The commenter continued that the submittal was about the evidence that the variability calculation methodology used by the Agency was not accurate when applied to real data regardless of the regula tory classification of the source. The commenter stated that the data collected from PM CEMs demonstrated that the formula EPA used to predict variability and rolling averages for the PM standards in the Rule dramatically underestimated variability and

res ulted in inaccurate predictions.

Commenter (0523) presented concerns about the calculation of the proposed PM MACT floor. The commenter stated:

“The final value predicted by the UPL formula used in the current proposed rule is fairly close because the sec ond term (1/n + 1/m) in the UPL equation produces minimal deterioration of the measured variability since m=3. However, the UPL approach still has issues when EPA attempts to stretch it beyond its limitations. For example, if EPA were to convert the propos ed PM limit to a 30

- day rolling average, the measured variability would be reduced by more than 50% by the second term in the UPL equation. It is this reduction or damping of the second term that causes the UPL to underestimate when it is used to change fr om one sampling frequency to another. In Figure 1, the damping effect of the second term is graphically shown for the 28 PM floor kilns. According to the UPL, so long as the four kilns have at least six stack tests (i.e., 24 observations) the measured vari ability of the stack tests would be reduced by more than 50% when converted to a 30

- day rolling average. Clearly, this does not occur in reality. In reality, the variability increases from a three

- hour observation to a 24

- hour observation. Additionally, EP A has not considered source

- to

- source variability nor within plant variability. In the 2010, Holcim and PCA submitted detailed statistical analysis to show that long

- term variability could be predicted from 30 to 40 data points as long as the data was coll ected over a long period of time (i.e., one year). Furthermore, the second term behaves in the same way for any pollutant and some pollutants have more variation than others. These are examples of why the UPL has limitations and EPA needs to be aware of th em and use the UPL with caution and limits.” [The commenter] “recommends that EPA forgo using the UPL to predict limits with different sampling frequencies.”

The commenter provided a figure showing the damping effect of the second term. [page 5 Figure 1]

.28 Response : EPA reiterates its position at proposal as to these data: “because the EPA is proposing to no longer use a CEMS

- based regime for the PM standard, the Holcim information [i.e., the CEMS data from 4 of their kilns] is no longer of direct relevanc e in setting the level of the PM standard. A further issue with the data is that they were not obtained using CEMS calibrated according to PS

– 11, the protocol specified in the rule. Accordingly, the EPA is not basing its proposal of a revised PM standard o n these data.” 77 FR 42374 n. 3. The data also come from solid waste incinerator kilns, hazardous waste incinerator kilns, and non

- best performing cement kilns, so the relevance of the data in setting PM standards is uncertain in any case. The commenter offered no quantified explanation in either its comments or its petition. explaining how the data were a valid predictor of best performing cement kilns’ variability in PM control. See Sierra Club v. EPA , 479 F. 3d at 882 (D.C. Cir. 2007) (there must be a demonstrated relationship between performance of non

- best and best performers before data from non

- best performers can be used as a predictor of best performers’ variability).

The commenter also addresses issues related to the UPL equation, which is a predictor of source variability. 75 FR at 54974

- 75. EPA did not reopen this issue in this rulemaking. Rather , EPA recalculated floors after removing CISWI kilns from the 2010 and changed the compliance regime to be based on stack tests rather than CE MS. EPA did not reopen the issue of floor setting methodology, calculation of variability, or data to be used in establishing the standard. These issues were resolved in the 2010 final rule. In addition, the issue of application of the UPL to the PM sta ndard was litigated and resolved in favor of EPA in PCA v. E PA . 665 F. 3d at 189. Since EPA did not reopen the issue, EPA is not addressing these comments.



### 3

. 4 PM: Exemption from Operating Surrogate Limit for BACT and CAM CEMS Units

Commenter (0523) sup ported the proposed rule’s approach to calculating an operating limit, but noted that other environmental agencies might require a PM CEM to comply with BACT and/or CAM programs. The commenter discussed how different requirements could result in compliance under one program but possible non

- compliance under another. The commenter suggested that the EPA exclude sources from developing and complying with an “operating surrogate limit” under NESHAP beyond the stack testing requirement if it has to comply with BACT or CAM limits using a PM CEM.

Response: A source can petition the Agency under section 63.8(f) to approve the use of a PM CEMS as an alternative compliance monitoring method provided the criteria of that provision are satisfied. Sources applying for an alternative compliance monitoring method using PM CEMS would need to address and resolve for the source all PS 11 issues as part of their application process. Also, the subpart LLL standard for PM could not be changed. EPA notes that the subpart LLL lim it is not a 30

- day average but is short

- term stack test using EPA Method 5 consisting of three separate runs of a minimum sample volume.29 

### 3

. 5 PM: Standard should not Apply to Modifications Made to an Existing Kiln and or Cooler

Commenter 0505 does not agre e that the PM standards should also apply to modifications made to an existing kiln and or cooler for NESHAP purposes, as the proposed language of § 63.1343(b)(1) clearly directs. Unlike § 111(a) of the Clean Air Act, 42 U.S.C. 7411(a), which defines new s ource to apply to the construction or modification of a stationary source, § 112 does not. Section 112 is the section of the Clean Air Act that applies here, not § 111. Section 112, 42 U.S.C. 7412, defines new source to apply solely to the construction or reconstruction of a stationary source and defines modification separately, thereby signifying that reconstruction and modification are not intended to be the same thing.

Response: As we stated at proposal, “under the September 2010 final NESHAP, existing kilns and clinker coolers are subject to the PM limit of 0.04 lb/ton clinker. If the kiln or clinker cooler undergoes modification, it would continue to be subject to 0.04 lb/ton limit, but would now be subject as well to the NSPS limit of 0.01 lb/ton cli nker as a modified kiln. Notwithstanding that there are independent justifications under section 111 that could justify this result (see PCA v. EPA , 665 F 3d at 190

– 91), the EPA believes that it is more appropriate for modified kilns and clinker coolers to meet the NESHAP PM limit for existing sources. Therefore, the final rule specifies that existing kilns and clinker coolers that are subject to the NESHAP existing source emissions limit would continue to be subject to that limit and not to the more string ent limit for new sources under the NSPS.” 77 FR 42385. Thus, a modified kiln would be subject to the existing source limit of .07 lb/ton clinker. The commenter is correct that EPA incorporated this new source performance standard in the NESHAP provis ions in proposed section 63.1343 (b)(1) (in the text preceding the table). This seems to EPA to be a legitimate way of drafting the provision.

.



### 3

. 6 PM: Standard should not be Changed Until CISWI Rule is Finalized

Commenter (0518) states that EPA has recal culated and nearly doubled the emission limit for PM (from 0.04 to 0.07 lb/ton of clinker), after eliminating all data from kilns it presumes to be solid waste incinerators (or CISWI kilns). Yet, without EPA’s final rule on the definition of solid waste, t here is absolutely no way to determine which kilns will remain CISWI kilns and which will be redefined as conventional kilns, since many wastes are slated to be redefined as “alternative fuels.” Therefore, EPA’s analysis supporting this proposed emission r ate change is not valid. No changes to the NESHAP or the NSPS should be made before EPA has issued its final rule.

Response : EPA based its determination of which kilns were CISWI on the NHSM rule as promulgated. See 76 FR 28322 (May 17, 2011) and 77 FR 42372. As noted in the preamble to the final rule, there was disagreement with EPA ’s analysis with respect to only one kiln where commenters showed convincingly that the kiln was indeed a cement kiln under the NHSM rule.30 (See comment 3.19 below.) At th e time of proposal, EPA also evaluated its analysis against the proposed clarifications to the NHSM rule being considered as part of the reconsideration process, and determined that none of these potential clarifications would affect EPA’s count of CISWI k ilns. See “ Consideration of Proposed Clarifications to NHSM Rule, January 25, 2012”, memo to Docket EPA

- HQ

- OAR

- 2011

- 0817. The reconsideration process for the NHSM rule has now concluded and EPA finds that the clarified NHSM rule, after reconsideration , d oes not have any effect on the count of CISWI kilns used in the reanalysis in the portland cement NESHAP.

Comment: PM: Weakening of PM Standard is Unlawful

One commenter (0508) stated that weakening the PM standards would be unlawful. EPA does not claim to make this change in response to the remand in PCA, and the record makes clear that merely removing the waste

- burning kilns from the agency’s floor analysis would not result in these changes. Instead, these changes result from EPA’s entirely voluntary d ecision to change the way in which compliance with the PM standard would be monitored. Without notifying or engaging the public, EPA came to agree with industry that conducting an audit of the PM CEMS in accordance with Performance Specification (PS) 11 co uld be problematic. Rather than attempting to solve these problems, EPA agreed with industry

– again without providing any opportunity for public input

– to propose different PM standards based on a different compliance method. Further, EPA elected to ente r into an unnecessary post

- decision “settlement” with industry which required the agency to make these changes within months. The agency now advances this elective settlement and schedule as an excuse for failing to address the alleged PM CEMS issues and, instead, simply abandon using PM CEMS for compliance.

Commenter 0508 stated that the specific changes EPA proposes

– from .04 to .07 for existing sources and from .01 to .02 for new sources

– is driven not by the agency’s response to the PCA decision but b y its voluntary abandonment of the PM CEMS requirements. To the extent EPA’s proposed standards would diminish or replace more stringent standards in the existing rules, they are not consistent with 112(d)(7) and are, therefore, unlawful.

Indeed, the D.C. Circuit has already addressed a similar attempt by EPA to avoid plain statutory limits on its authority by claiming some extra

- textual authority to correct errors. In New Jersey v. EPA, it squarely rejected EPA’s claim that it could delist power plants wit hout satisfying the requirements of § 112(c)(9), 42 U.S.C. § 7412(c)(9), just by claiming that it was correcting its original decision to list them.

Response: As explained in section V. A of the preamble, EPA does not accept the commenter’s (strained) re ading that section 112 (d)(7) must be read as an anti

- backsliding provision.31 

### 3

. 7 PM: Abandonment of PM CEMS Due to PS

- 11 Issues is Unlawful

One commenter (0508) stated that EPA’s own description of the alleged problems in using PM CEMS and PS 11 reveal tha t the changes to the proposed different PM standards based on a different compliance method are unnecessary. First, EPA admits that PS 11 is relevant to only some PM CEMS. The agency does not dispute that cement plants could use other types of PM CEMS for which any issues relating to PS 11 would be irrelevant.

Second, EPA admits that “one can improve the method detection capabilities of the Method 5 or other filterable PM test method by increasing sampling volume and run time.”

EPA also states that PS 11 correlation calculations would have to “account for any PM CEMS measurement uncertainty,” but provides no reason that this would not be possible.

EPA claims that because cement plants’ particles vary in size and other characteristics, PS 11 correlations d eveloped for one set of conditions may not apply to other conditions although EPA admits that some plants are already using CEMS for which this is not even an issue.

EPA’s claim that its rule is not currently predicated on CEMS that can be correlated to P S 11 regardless of variations in particle size is irrelevant. EPA is proposing to make significant changes in the way compliance with PM standards is demonstrated. Given that, the agency has no reason to rule out consideration of different PM CEMS. EPA spe culates that predicating standards on a different type of CEMS “is likely to take several years.” EPA provides absolutely no explanation or record support for that speculation, however. Moreover, the agency’s refusal to consider other technologies for this purpose even though they are already in use at some plants is directly at odds with its willingness to let plants demonstrate compliance with the hydrogen chloride standards through the use of CEMS for SO2, even though it “had no data that demonstrated a direct link between HCl emissions and SO emissions.”

Even if it were not possible to use other PM CEMS, EPA further admits that “PS 11 provides for means to minimize the effects of changing particle sizes.” The agency states that it did not even “consider such an approach,” however. EPA states that technical work is needed to determine if this approach would work, but apparently did not even attempt to undertake this work.

Finally, EPA does not say why it is necessary to use PS 11 to audit PM CEMS. The age ncy does not deny that other performance specifications are available and, indeed, already in use in the United Kingdom.

Response : The commenter is mistaken in stating that PS 11 only applies to some PM CEMS. For every installation of a PM CEMS where th e instrumentation must demonstrate compliance with an emission limit, no matter the source category, the rule requires that instrumentation be certified pursuant to PS 11 . Extending the duration of the method 5 stack test gives this reference method addi tional opportunity to collect more sample mass, but this is no guarantee that the time added to the test will collect enough particulate mass to resolve detection issues,32 especially when testing is conducted at the better performing (lower emitting) source s. While compliance with a PM emissions limit is demonstrated with a Method 5 test result below the method detection limit which is also below the emissions limit, correlation with a PM CEMS is not resolved with this same presumption due to the higher leve l of uncertainty in the measured result. Additionally, l onger test runs inherently increase the variability of the PM CEMS data collected during the test, which may cause further difficulties with the correlation between instrument and reference method.

T he EPA maintains that special problems are posed by the size and variability of cement kiln

generated particulate. The EPA also maintains that the standard light

- scintillation type of PM CEMS would likely encounter higher variability for the same PM concen tration, and have difficulty satisfying correlation protocols as a result. The EPA holds that beta gauge CEMS could potentially resolve at least some issues related to cement particle variability but also maintains further that these devices are largely un tested in the cement industry, and none (so far as the EPA is aware) has successfully completed a PS 11 certification, meaning that none are currently capable of providing compliance grade emissions data.

The mere existence of beta gauge CEMS does not res olve all questions as to their reliability in the cement industry. The EPA reiterates, as it did at proposal, that there needs to be some assurance of the reliability of that methodology to certify with PS 11 at low levels (as required by this final rule). That information does not presently exist. Relative to Portland cement sources, it would be speculative to assume that beta gauge CEMS would successfully pass a PS 11 certification to reliably and quantifiably measure compliance with the NESHAP at all ins tallations. The EPA cannot promulgate a rule wherein the compliance determination is predicated upon the presumptive success of an unproven technology.

The commenter further maintains that rather than amend the standard to change the compliance test metho dology and averaging time, the EPA should revise PS 11 instead, evidently assuming that a revision can be done rapidly. The commenter’s assumption is mistaken. Performance specification development is a process that takes multiple years and involves data c ollection on types of technologies, field testing, comparison to reference measurement methodology, workgroup and stakeholder meetings, peer review, rule proposal and public comment period, as well as comment response and final promulgation of the Performa nce Specification. Performance Specification 11, at issue here, was over 3 years in development, from concept to final promulgation, and involved a budget of $250,000. Based on this past history, it is likely to result in a delay of 3 years or more were th e EPA to delay promulgation of this final rule until we could undertake the process to research, propose and finalize solutions to PS

- 11 that may ameliorate some of the issues now present. Furthermore, such a process would not address the issues relating t o measurement uncertainties using Method 5 at low PM concentration levels near its detection limit, and so there would remain significant technological hurdles to clear before the EPA could require the use of PM CEMS in respect to this final rule.

With regard to the use of PM CEMS in European installations the EPA acknowledges the use of this instrumentation and would point out to the commenter that the European calibration and certification of this instrumentation is completely different than in the Uni ted States with our PS

11 requirements. European monitors are certified in a laboratory environment, and calibrated on33 site by the instrument vendor when installed. CEMS installations in the US must meet more rigorous Performance Specification certificat ion through a series of comparisons to reference measurements conducted on the stack and involving the flue gas matrix at the facility. The two certification regimes differ greatly in approach and simply adapting European standards to US facilities does n othing to mitigate the difference or improve instrument measurement reliability.



### 3

. 8 PM: Utilization of the UPL Method is Unlawful and does not Account for Operator Efforts

3

. 8 , Comment # 1 : One commenter (0508) stated that the revised PM standards also would violate §112(d)( 3) and binding D.C. Circuit precedent. Because Clean Air Act § 112 unambiguously requires EPA to set floors reflecting the “average” emission level achieved by the best sources, setting floors that instead reflect a UPL for those sources is unlawful. By in sisting that it can set floors at this level, EPA deprives the word “average” of meaning and substitutes its own policy preferences for Congress’s plainly expressed intent. See New York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006) (“courts must give effect t o each word of a statute”); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008) (rejecting statutory reading that “substitutes EPA’s desires for the plain text” of the statute”)

By claiming that it can use the UPL for all sources in the top twelve percen t, EPA also misreads its authority to consider variability under the Clean Air Act and relevant caselaw. Although EPA may consider variability in estimating an individual source’s actual performance over time, nothing in the Act or the caselaw even suggest s that the agency may account for differences in performance between sources except as § 129 provides, by averaging the emission levels achieved by the sources in the top twelve percent. Indeed, EPA errs by viewing the different emission levels achieved by different sources as “variability” at all. The different emission levels achieved by different sources are just differences in performance and provide no basis for applying statistical methods.

Commenter 0508 also stated that EPA also fails to explain its assumption that sources’ actual emission levels will vary to the full extent of the 99th percent UPL. By its nature, a UPL predicts sources’ variability in performance based on characteristics of the data already available for them, the number of data poi nts, the median of the data points, and the standard deviation. The UPL does not consider an operator’s efforts to limit variability in emissions

– or at least upward variability

– by maintaining and operating the source carefully to control emissions. Yet , as both EPA and the D.C. Circuit have recognized, operator training and care and source maintenance do operate to control emissions. By using the UPL, EPA ignores the effect of operator training and care and source maintenance on emission levels. Doing s o is just as unlawful and arbitrary as setting floors that ignore the effects of cleaner fuel use; it results in floors that do not reflect the best sources’ actual performance.

Commenter 0508 stated that the agency has not set the new source floor at the emission achieved in practice but rather the 99 pe rcent UPL. Although it may be permissible to set new unit floors “at a level that reasonably estimates the performance of the ‘best controlled similar unit’ under the worst reasonably foreseeable circumstan ces,’” CKRC, 255 F.3d at 863 (quoting Sierra Club, 167 F.3d at 665), the UPL is not an estimate of what the single best unit actually “achieved in practice” under any circumstances. By definition, it is a “prediction” of the level EPA expects all34 future te sts by that unit to fall below. 42 U.S.C. § 7429(a)(2); Sierra Club, 479 F.3d at 880.

Response: EPA did not propose nor request comments regarding the utilization of the UPL. Since EPA did not repropose, reexamine, or otherwise reconsider this issue, EPA i s not addressing these comments here. EPA also notes that the applicability of the UPL to the PM standard was litigated and resolved in EPA’s favor in the PCA v. EPA litigation. 665 F. 3d at 189.

Comment: PM: Utilization of the UPL Method is Unlawful an d does not Account for Operator Efforts

One commenter (0508) stated that the revised PM standards also would violate § 112(d)(3) and binding D.C. Circuit precedent. Because Clean Air Act § 112 unambiguously requires EPA to set floors reflecting the “avera ge” emission level achieved by the best sources, setting floors that instead reflect a UPL for those sources is unlawful. By insisting that it can set floors at this level, EPA deprives the word “average” of meaning and substitutes its own policy preferenc es for Congress’s plainly expressed intent. See New York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006) (“courts must give effect to each word of a statute”); New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008) (rejecting statutory reading that “substitutes EPA’s desires for the plain text” of the statute”)

By claiming that it can use the UPL for all sources in the top twelve percent, EPA also misreads its authority to consider variability under the Clean Air Act and relevant caselaw. Although EPA may conside r variability in estimating an individual source’s actual performance over time, nothing in the Act or the caselaw even suggests that the agency may account for differences in performance between sources except as § 129 provides, by averaging the emission levels achieved by the sources in the top twelve percent. Indeed, EPA errs by viewing the different emission levels achieved by different sources as “variability” at all. The different emission levels achieved by different sources are just differences in p erformance and provide no basis for applying statistical methods.

Commenter 0508 also stated that EPA also fails to explain its assumption that sources’ actual emission levels will vary to the full extent of the 99th percent UPL. By its nature, a UPL predi cts sources’ variability in performance based on characteristics of the data already available for them, the number of data points, the median of the data points, and the standard deviation. The UPL does not consider an operator’s efforts to limit variabil ity in emissions

– or at least upward variability

– by maintaining and operating the source carefully to control emissions. Yet, as both EPA and the D.C. Circuit have recognized, operator training and care and source maintenance do operate to control emiss ions. By using the UPL, EPA ignores the effect of operator training and care and source maintenance on emission levels. Doing so is just as unlawful and arbitrary as setting floors that ignore the effects of cleaner fuel use; it results in floors that do n ot reflect the best sources’ actual performance.35 Commenter 0508 stated that the agency has not set the new source floor at the emission achieved in practice but rather the 99 percent UPL. Although it may be permissible to set new unit floors “at a level th at reasonably estimates the performance of the ‘best controlled similar unit’ under the worst reasonably foreseeable circumstances,’” CKRC, 255 F.3d at 863 (quoting Sierra Club, 167 F.3d at 665), the UPL is not an estimate of what the single best unit actu ally “achieved in practice” under any circumstances. By definition, it is a “prediction” of the level EPA expects all future tests by that unit to fall below. 42 U.S.C. § 7429(a)(2); Sierra Club, 479 F.3d at 880.

Response: EPA did not propose nor did we re quest comments regarding the utilization of the UPL. Since EPA did not repropose, reexamine, or otherwise reconsider this issue, EPA is not addressing these comments here. EPA also notes that the applicability of the UPL to the PM standard was litigated a nd resolved in EPA’s favor in the PCA v. EPA litigation. 665 F. 3d at 189.



### 3

. 9 PM: Selection of Best Performing Sources was done Incorrectly

Commenter 0508 stated that EPA’s floor approach is also unlawful and arbitrary in other respects. First, EPA sele cted the best performers based on each source’s lowest test result but then measured the best sources’ actual performance based on their average test results. EPA’s use of different measures of performance to identify the top sources on the one hand and to evaluate their performance on the other is inconsistent, irrational, and unexplained. By using the lowest test result to identify the best performers but the average test result to reflect their performance, EPA artificially increases the variability of t he data on which it bases floors. Specifically, the data for the top twelve percent of sources has more variability than if EPA had picked the top twelve percent based on the best average test result, and as a result the variability factor and the floors t hemselves are also higher. Given that EPA’s choice affects the outcome of its floor analysis, the absence of a rational explanation for that choice is especially arbitrary.

Response: The commenter again addresses issues not proposed, reexamined, or otherwi se reopened in this proceeding. The database and methodology for establishing MACT floors was done as part of the 2010 final rule. See Docket item EPA

- HQ

- OAR

- 2002

- 0051

- 3403. The only issues here were the effect of removing CISWI kilns from the database and the appropriate compliance regime for the PM standard. If, a g ainst our view, some response is considered to be necessary, we also note that this comment is not accurate. The commenter incorrectly describes the approach used in determining the MACT flo or. According to the commenter, EPA selected the best performers based on each source’s lowest test result but then measured the best sources’ actual performance based on their average test results. In fact, using all the test results we had for each kiln, we calculated the average emissions for each kiln for which we had data and ranked their average emissions from lowest average emissions to highest. ( See Docket item EPA

- HQ

OAR

- 2002

- 0051

- 3403 for an explanation of the process by which the MACT floors for existing and new kilns were developed. See also Docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0225 for an explanation of how the MACT floor was updated for this rulemaking. )

. The best performing 1236 percent made up the MACT floor ki l ns. However, we repeat that EPA i s not reconsidering or reopening this issue.



### 3

. 10 PM: Rounding

- up of UPL is Unlawful

Commenter 0508 stated that EPA rounds up its emission test results for the purpose of setting standards even though the agency’s policy is to round them down for the purpose of determining compliance. Specifically, EPA rounds up UPL values less than 100 to one significant figure, and rounds up UPL values between 100 and 1000 to two significant figures. EPA’s decision to round up is unlawful. The CAA requires floors to reflect the emission levels achieved by the best sources not those emission levels rounded up to the nearest whole number. EPA’s departure from normal rounding practices by always rounding up in setting floors

– i.e., rounding up whether the fraction is above or below one half

– exacerbates that unlawfulness and is arbitrary. And the agency’s inconsistent approach to rounding for standard setting and compliance determinations is inconsistent, irrational, unexplained, and therefore arbitrary.

Response: EPA did not propose nor did we request comments regarding rounding and the UPL. This issue has not been reopened. If, against our view, some response is deemed necessary we note that rounding conventions are an area in which EPA has great discretion and the rounding techniques used in the 2010 rule (which are not reopened) were well within that discretion. North Carolina v. EPA , 531 F. 3d 896, 925 (D.C. Cir. 2008). We believe that when setting standards, it is appropriate to round up. Rounding down of emission test results would be essentially setting beyond

- the

- floor limits without the appropriate analysis of impacts. However, the issue is not properly raised in this proceeding, as explained above.



### 3

. 11 PM: Comment Regarding Lack of PM Data for Kilns

Commenter (052 3) expressed concern that the cement industry submitted PM emissions data for all kilns under the current NESHAP program to the EPA, yet the EPA can identify only 28 cement kilns, after removing kilns identified as CISWI.

Response: These comments again ad dress issues that were not reopened or reconsidered here. The issue of the proper database for the 2010 rule was addressed as part of that rulemaking. At issue here was which kilns were CISWI and needed to be removed from that database.

If, against our view, some response is considered to be necessary, we note that the data set used for the 2010 consisted of the results for 45 kilns. After removing CISWI kilns, the data set consisted of PM data for 28 kilns. While it is true that all kilns must conduct annual PM37 emissions test, the data are not as readily available as the commenter implies. Results of annual performance testing are typically sent to environmental agencies at various levels of government including local and state agencies. Within state ag encies, jurisdiction may be divided geographically into multiple responsible units. Test report results are not typically readily available and responsible agencies must be contacted and requests made for the data. This situation will be improving as EPA i mplements its centralized electronic reporting tool for emissions test results. Until that system is fully implemented, we will continue to rely on receiving from a combination of reports from government agencies and the industry. For the 2010 rule we have collected data from both. We note that test results obtained from industry were in response to a 2007 information collection request (ICR), industry comments on the proposed NSPS for portland cement, and a 2003 survey of state agencies.

Comment: Commenter 0508 stated that for new plants, EPA’s floors must reflect the emission level achieved by the single best performing kiln in the category, not the best performing kiln for which EPA happens to have emissions information. EPA does not even claim to know th at its new source floors reflect the PM emission level achieved by the best performing kiln in the category, nor could it plausibly advance such a claim without information for more kilns than it has.

Response: This issue was again not reexamined, reconsi dered or reopened by EPA so no response is necessary. See 77 FR 42372 n. 3. If a response is considered necessary (against our view), then we note that the language of section 112 (d)(3) ) can reasonably be interpreted to refer to sources for which EPA has emissions data, since floors are to reflect the performance of the best controlled similar source “as determined by the Administrator”.



### 3

. 12 PM: Beyond the Floor Rejection due to Cost Effectiveness is Unlawful

Commenter 0508 stated that EPA’s statement wi thout any discussion that beyond

- the

- floor standards “do not appear to be justified for the same reasons in the 2010 final rule” is undermined by the agency’s own description of its proposed revisions and the impact they will have on plants’ compliance str ategies. In both the 2010 rule and the 2009 proposal, the agency’s rationale for refusing to set beyond

- the

- floor standards was that the beyond

- the

- floor standard would reduce the total PM emissions from cement plants by just three tons a year at a cost of $576,000 per ton of PM removed, a “cost

- effectiveness” the agency regarded as inappropriate.

First, EPA predicts that the proposed revisions would increase PM emissions by 135 tons per year. Setting beyond

- the

- floor standards at the level of the 2010 rule therefore, would result in a reduction of 135 tons per year, not three tons per year.

Second, EPA does not attempt to show that the incremental cost of achieving the 2010 standards38 would be unachievable within the meaning of § 112(d)(2). To the contrary, EPA states that changes to the PM standard will result in annual savings of just $4.2 million spread across the entire cement industry. Thus, the annual cost of a beyond

- the

- floor standard set at the level of the current standard would also be $4.2 millio n. That is approximately $42,000 on average for each of the nation’s 100 cement plants, which is scarcely a number that would render such a standard economically unachievable. Further, beyond

- the

- floor standards set at the current level would yield additio nal reductions of PM at a cost

- effectiveness of approximately $31,000 per ton. EPA does not even claim that this level of cost

- effectiveness justifies refusing to set beyond

- the

- floor standards, let alone provide any rational basis for any such claim.

To the extent EPA is offering its 2010 cost

- effectiveness rationale for its current proposal not to set beyond

- the

- floor standards, its proposal is not only arbitrary for the reasons given above but unlawful. Clean Air Act § 112 require the “maximum” degree o f reduction in emissions that is “achievable” considering cost. 42 U.S.C. § 7412(a)(2). Far from giving EPA discretion to base decisions on whether to set an emission standard on its subjective view about whether the cost

per

- ton of that standard is approp riate, this language unambiguously requires the “maximum” degree of reduction that can be achieved considering cost and the other statutory factors. EPA’s contention that it can reject beyond

- the

- floor standards merely because it views their cost

effective ness as inappropriate contravenes Congress’s plainly expressed intent and essentially rewrites § 129(a)(2) to provide a far greater level of discretion than the statutory text confers. Congress directed EPA to set standards requiring the “maximum” degree o f reduction that is “achievable,” not the degree of reduction EPA considers “cost

- effective,” and its decision must be respected. Barnhart v. Sigmon Coal Co., Inc ., 534 U.S. 438, 452

- 53 (2002) (“[W]hen Congress includes particular language in one section o f a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”).

Response: Following proposal, the industry provided additio nal information on ho w the industry may alter control strategies in light of the changes to the emission standards and compliance period that we proposed. (Docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0505). Thus, we were able to update our previous estimate of potential savings that was presented at proposal, which was not intended to represent the total potential industry

- wide savings but was a narrow example of how the proposed rule could reduce compliance costs

. Specifically, EPA estimates that a beyond the floor standard set at the le vel of the original (2010 final rule) standard would only result in 138 tons per year

– nationwide

– of PM reduction (a value not questioned by any of the commenters). See Final Portland Cement Reconsideration Technical Support Document, December 20, 2012 , page 1

. We further estimate that the cost of achieving this modest incremental reduction would be approximately $37 million (the estimated cost savings attributable to the amended PM standard (including savings attributable to ancillary PM controls rela ted to collection of PM from the control of Hg, THC, and HCl). See Final Portland Cement Reconsideration Technical Support Document, December 20, 2012, included in the rule docket, EPA

- HQ

- OAR

- 2011

- 0817. These total costs are high compared to the small nati onwide emission reductions, and the cost effectiveness of these reductions is correspondingly high: approximately $268,000 per ton of PM removed. As explained in section V.A.3 of the preamble39 to the final rule, this is significantly higher cost effectivene ss for PM than the EPA has accepted in other NESHAP standards. A beyond the floor standard at the level of the 2010 standard would also involve slightly higher energy use, although this is not a major factor in EPA’s decision. EPA is therefore not adopting a beyond the floor standard for PM at the level of the 2010 standard. A standard even more stringent would likewise not be justified. See 76 FR 54988.



### 3

. 13 Mercury (Hg): Opposition to Beyond the Floor Standard

Two commenters (0505, 0511) objected to EPA’s de cision to set the existing mercury floor at a beyond

- the

- floor level of 55 lb/MM tons clinker. Commenters stated that a lthough EPA is proposing to the retain the existing source standard for mercury at 55 lb/MM tons clinker produced, the preamble concedes “the recalculated existing source floor is 58 lb/MM tons clinker produced.” As such, the commenter does not believe that EPA has justified its need to ignore its recalculated existing source floor and instead retain the 2010 limit as a “beyond the floor st andard.” The commenter therefore opposes EPA‘s proposal to adopt the recalculated existing source floor.

One commenter (0511) stated that EPA, in the May 6, 2009 preamble, evaluated costs and economic impacts in determining whether to adopt a beyond

- the

- f loor standard for mercury and concluded that a beyond

- the

- floor limit would result in the removal of an additional 3 lbs/year of mercury at an annualized cost of $1.254 million per year, or $420,000/pound (assuming 90 percent system removal efficiency of a second ACI system) or $540,000/pound (assuming a 70 percent system removal efficiency). EPA concluded, based on this analysis that a beyond

- the

floor standard that was 3 pounds/year more stringent was not justified. The commenter does not believe that the economic analysis has changed since 2009 and that EPA should not go beyond the floor standard of 58 lbs/million tons clinker.

Response: See Preamble section V. B



### 3

. 14 Hg: Opposition to EPA’s Process of Setting the Standard

One commenter (0508) stated that sh ould EPA elect not to set beyond

- the

- floor standards for existing plants’ mercury emissions and to set standards at the new floors, its standards would be unlawful. The commenter repeats its statements summarized above in regarding EPA’s use of the 99% UPL and use of variability (Section 3.9), use of sources’s lowest test results v their average test results in setting MACT floors (Section 3.10), failure of the UPL to reflect operator efforts to reduce upward variability (Section3.9), EPA’s practice of roun ding up (Section 3.11) and EPA’s approach to setting MACT floors for new sources (Sections 3.9, 3.10).

Response: Regarding the commenter’s first concern, the final emission standard for mercury is40 set at the beyond

- the

- floor level of 55 lb/MM tons, not the floor level of 55 lb/ton. The commenter’s remaining issues are not part of this proceeding because EPA did not reconsider, reexamine, re

- propose, or otherwise reopen them for public comment.



### 3

. 15 Hg: Significant Cost Should Negate Beyond the Floor, Limit is Unachievable

One commenter (0511) stated they have extensive experience with mercury controls and have been operating and collecting data on some of the most effective mercury controls known to exist on a cement kiln, which it has previously shared with E PA. The commenter points out that in the July 18, 2012 proposal and background documents, EPA states that the collection of an additional 3 lbs of mercury per million tons clinker is as simple as adding an additional pound of activated carbon per million ACFM.

The commenter stated that EPA’s assumption that the addition of extra carbon in an ACI system results in materially higher control efficiency is false. According to the commenter, they have performed extensive testing and the addition of activated c arbon per million ACFM of exhaust gas has little or no impact on mercury emissions. The commenter states that for plants such as Ash Grove’s Durkee plant, there is no known add

- on control technology at this time that will assure achievement of the standard on a continuous basis. Therefore, the commenter believes the difference between the floor and the beyond

- the

- floor level of control needs to be evaluated based on the costs of additional control devices, such as those in the 2009 preamble.

The commenter e mphasized that two years of process and pollution control optimization using the most advanced ACI system employed anywhere in the cement industry, the commenter has been unable to consistently achieve the 55 lbs/million ton limit using both an ACI system and dust shuttling. The commenter emphasizes that operating fully optimized ACI and dust shuttling systems has enabled their plant to achieve an average removal efficiency of 96.6 percent over the twelve month period ending in July. The commenter stated a control efficiency of at least 99 percent is required to reach the necessary compliance emission rates EPA outlined in the background document.

Response: See Preamble section V.B.



### 3

. 16 Hg: Environmental and Energy Impacts Have Not Been Evaluated

One commente r (0511) disagreed with EPA’s conclusion that a beyond

- the

- floor standard results in no environmental or energy impacts. Even if increasing the carbon injection rate was adequate to achieve the additional 3 lbs/million tons of reduction, the commenter stat es that41 there are environmental impacts associated with the disposal of the mercury laden carbon waste. This material cannot be added back to the kiln or the mercury would be re

- emitted. Therefore, the nearly 3 tons/week of spent carbon generated must be d eposited into an appropriate hazardous waste landfill with substantial environmental impacts.

If, as EPA stated in 2009 and the commenter believes is still accurate today, the only way to reduce mercury emissions by an additional 3 lbs/million ton clinke r is through an additional ACI system or comparable control, the additional spent carbon impacts would be increased. Similarly, if dust shuttling is used to gain the additional level of control, that affected source must waste a significant amount of dust which would otherwise be used to produce cement. This too has significant environmental impacts.

In addition, EPA ignores the energy impacts associated with operating supplementary controls and trucking waste material to landfills, as well as the impacts of treating the carbon to meet land disposal restriction standards. An ACI system for a 900,000 ton/year kiln consumes nearly 4 million kWhr/year of electricity. Adding a second ACI system, therefore, has a very large energy impact that was not considered in evaluating whether to move beyond the floor. The commenter believes that if EPA took into account all of the costs, as well as the environmental and energy impacts associated with controlling beyond the floor, the agency would again conclude (as it did in 2009) that going beyond the floor to reach an additional 3 pounds of mercury reduction is not justified. For these reasons, the commenter stated that EPA has not provided adequate justification for setting a beyond

- the

- floor mercury standard for existin g sources. If EPA nevertheless insists on moving to a beyond

- the

- floor mercury standard for existing sources, Ash Grove requests that the agency only do so for the subcategory of sources that have inherently low mercury limestone and that it create a separ ate subcategory subject to the floor for existing affected sources with inherently higher mercury limestone.

Response: We disagree with the commenter that a beyond

- the

- floor standard will have significant additional environmental and energy impacts. We bel ieve that any increase in cost and environmental impacts associated with this final rule are small because the control equipment needed for mercury would not alter, would not need to be sized differently, and would need to perform on average nearly identic ally at either a 55 lb/MM tons clinker or a 58 lb/MM tons clinker level. Much of the commenter’s claims of increased impacts are based on an assumption of the addition of a second ACI system for mercury control. We think that it is unlikely that the indust ry will find it necessary to install a second ACI system, or any other control system, solely for the purpose of mercury control. Indeed, none of the kilns responding to the industry survey (PCA Comments App. D) indicated that they intended such a course. In our impacts analysis for the 2010 rule, we did assume that most kilns would install ACI for mercury and they would also install a wet scrubber for HCl control. We estimated that the wet scrubber, in addition to removing HCl, would also reduce mercury e missions, although that was not their intended target. The commenter did not provide any data on facilities that were planning to install a second ACI system as part of their compliance strategy, so the commenter’s arguments are largely theoretical, and as noted, no kiln claimed that it intended to install an additional ACI42 system for mercury control as a result of the proposed mercury beyond the floor standard in the specific survey data provided as an Appendix to the commenter’s comments

. 4

3

. 17 Hg: Comment Re garding 63.1349(b)(5)(ii)

Commenter (0505

- Appendix G) stated that equation 6 is missing the variable, P, kiln clinker production rate.

Response: The equation has been corrected.



### 3

. 18 Hg: General Support

One commenter (0508) supported EPA’s decision to set the final beyond

- the

- floor standards at the level of the existing limit, 55 lb/MM tons.

Response: EPA has noted the commenter’s support for this standard.



### 3

. 19 Total Hydrocarbon (THC): Support for Including Union Bridge CISWI Kiln

One commenter (0505) support ed EPA‘s proposal to retain the existing and new source limit for THC at 24 ppmv stating that there are sound reasons why it is appropriate

– and correct

– for EPA to include the Lehigh Union Bridge kiln in its redetermination of the THC limits. First, as EPA notes in the preamble, the variability of the emissions of this unit are indicative of cement kilns, whether they are CISWI units or NESHAP units. Therefore, it is appropriate to consider that variability whether setting a limit for CISWI units or NESH AP units.

The commenter (0505) stated that based on the revised definition of non

- hazardous solid waste (NHSW) that EPA is now proposing to adopt in docket EPA

- HQ

- RCRA

- 2008

- 0329, 77 Fed. Reg. 80452, and is on the verge of finalizing as the criteria for wha t is and is not “solid waste”, Lehigh has determined that the alternative fuel (dry biosolids) used by this kiln are not “solid

4 Mor eover, even as to the single high

- mercury feed source (Ash Grove, Durkee Oregon ), our cost analysis conducted for the 2009 proposal and 2010 final rule already assumed that this plant would have to install multiple control systems in order to meet the limi t for mercury. See EPA Docket item 2002

- 0051

- 3438. Therefore, if in this particular case the ACI system cannot achieve the small additional reductions required, then the facility has other mercury control options available such as further dust shuttling or pretreatment. Neither practice would result in significant adverse non

- air environmental or energy impacts.43 waste” under the pending CISWI rule. Thus, on the reasonable assumption that EPA will not adopt a final definition of NHSW that is significantly different, Union Bridge will not be a CISWI unit when those rules are finalized. The Union Bridge kiln is, therefore, correctly considered in the setting of the NESHAP THC floor.

Commenter 0505 also stated that, if EPA were to adopt a limi t below 24 ppmv, the number of RTOs needed by this sector will not only increase, but will increase significantly. As EPA is well aware, RTOs are not only extremely expensive to install, they also result in more emissions than they remove. EPA therefore ha s a significant, valid reason to adopt a standard which avoids the need for a large number of RTOs to be used; especially when there is no demonstrated alternative to controlling THCs from kilns.

Response: EPA agrees that the Lehigh Union Bridge kiln is no t a CISWI kiln.

. , During the comment period, the company provided reliable information in its comments regarding the secondary materials it processes indicating that one of these kilns is in fact a cement kiln (so that, in fact, the EPA had properly classi fied it as a cement kiln in the 2010 rulemaking). 5 According to the company, the alternative fuel (dry biosolids) used by this kiln is not “solid waste”. Specifically, the commenter stated that the proposed NHS M amendments would allow more flexibility reg arding the comparison of groups of contaminants levels to traditional fuels and that EPA has re

- proposed ranges of traditional fuel contaminant levels from EPA’s Office of Air Quality Planning and Standards (OAQPS) CISWI tables. EPA notes, however, that g rouping of contaminants as well as contaminant comparisons based on ranges of traditional fuel contaminant levels from the OAQPS database is already allowable under EPA guidance implementing the existing NHS M rules so the same rationale applies under the o riginal NHSM rule as well (see http://www.epa.gov/wastes/nonhaz/define/index.htm ). Based on this determination, the limits set in the final 2010 rule (24 ppmv) will remain unchanged, since the database for the THC floor and standard is unchanged.



### 3

. 20 THC: O pposition to Including Union Bridge CISWI Kiln

One commenter (0508) stated that w ith respect to new plants, EPA’s primary argument is that although the plant it identified as the best performer for THC is a CISWI kiln, it is nonetheless “similar” to non

- C ISWI kilns within the meaning of § 112(d)(3). For the reasons given by the commenter on EPA’s mercury standards, the commenter does not oppose treating CISWI kilns as “similar.”

The commenter stated that CAA § 112(d)(3) unambiguously requires EPA’s floor s for new sources to reflect the emission level achieved by the single best performing source, not the source that in EPA’s view is “representative of variability” experienced by other sources. If EPA determines that it must exclude the Union Bridge kiln f rom its floor analysis because it does not

5 The company burns dried biosolids as a fuel which are not classified as solid wastes. Refer to the Docket, No. EPA

- HQ

- OAR

- 2011

- 0817

- 0482.44 believe that kiln is “similar” for the purposes of § 112(d)(3), the agency cannot base floors on that kiln regardless of whether the agency believes that kiln’s variability is more representative than the next

- bes t kiln’s. Likewise, if EPA concludes that the Union Bridge kiln is not the best controlled “similar” kiln, it cannot refuse to base floors on the next best

- performing kiln (the Suwannee kiln) regardless of whether it thinks the Union Bridge kiln’s variabil ity is more representative. In those circumstances, EPA could refuse to base new source floors on the Suwannee kiln only if that kiln were not “similar,” and EPA does not make any claim that the Suwannee kiln is not similar to other kilns in the category, far less provide any rational basis for such a claim.

The commenter stated that EPA’s argument f or refusing to set existing source floors at the level achieved by the best performing twelve percent of non

- CISWI kilns for which it has emissions information is egregiously unlawful and borders on contemptuous of the Court’s decisions in PCA and in NRDC. Existing source floors must reflect the average emission level achieved by the relevant best performing sources. If the Union Bridge kiln is not among these s ources

– and EPA claims it is not

– the agency may not base floors on the performance of the Union Bridge kiln in any sense.

The commenter stated that because § 112(d)(3) requires floors to reflect the “average” emission level achieved by those sources, E PA may not set standards at a different level just because a source that is not among the relevant best performers (Union Bridge) has more variability. Nor, contrary to EPA’s claim, does the brick kilns decision hold or even suggest that EPA may import the variability of a source that is not even in a category to change the average emission level achieved by the relevant best sources that are in that category. Here, far from using the emission levels of the Union Bridge to estimate the variability to estima te the variability of the best performing non

- CISWI kilns, EPA is expressly excluding these emission levels from its floor calculations. As a result, it is violating the requirements of § 112(d)(3) by seeking to import the Union Bridge’s variability into t he floor calculations. EPA has not demonstrated any relationship between the variability of Union Bridge kiln and the variability experienced by the other kilns, and the mere fact that EPA has more data for the Union Bridge kilns does not demonstrate such a relationship.

Response: In our 2010 rule, the THC MACT floor was based on the Union Bridge kiln being classified as a Portland cement kiln. Since the facility has now sent information that they are not a CISWI kiln as was assumed for the July 2012 propo sal, the 2010 determination of the THC MACT floor stands and issues of variability for existing sources is moot. EPA did not otherwise reopen the issue of methodology or data used to develop the standard in the 2010 final rule. Based on this information, the limits set in the Final 2010 rule (24 ppmv) will remain unchanged.



### 3

. 21 Organic Hazardous Air Pollutants ( oHAP ) Alternative to THC: General Support45 Two commenters (0475, 0507) supported the EPA’s proposal to allow existing and new cement sources the opti on to comply with either a THC or an o

- HAP standard.

Commenters 0505 and 0523 supported the adjustment of the alternative organic HAPs ( oHAP ) limit from 9 ppmv dry at 7 percent O2 to 12 ppmv dry at 7 percent O2 to take into account the method detection ca pabilities of the compliance test methods prescribed in the rule. The use of 3 times the representative detection limit (RDL) to establish the limit is consistent with the approach that was used when setting the limit for HCl in the previous rulemaking. Th e RDLs as presented in the EPA technical support document for the EPA Methods 320 and 18 are representative of the test method capabilities. Increasing the limit to 12 ppmv allows for the use of currently available emissions testing procedures and technolo gies to measure the regulated organic HAPs with certainty sufficient to demonstrate compliance.

Response: EPA has noted the commenters’ support for this standard.



### 3

. 22 o - HAP Alternative to THC: Use of Three Times the RDL is Unlawful

One commenter (0508) state d that EPA’s proposal to raise the oHAP limit to 12 ppmvd because it is three times the RDL does not claim to reflect the emission level actually achieved by the relevant best performing sources and are therefore unlawful. Further any claim that such floor s do reflect the relevant sources’ emission levels would be arbitrary. EPA provides no record basis for such a claim, far less demonstrates the validity of any such claim with substantial evidence. Indeed, the agency’s treatment of non

- detect levels has no relation to the statutory requirements and amounts to an attempt by EPA to elevate its own policy views over Congress’ plainly expressed intent that standards must reflect the best sources’ actual performance.

Response: First, the commenter is incorrect i n characterizing this issue as one of performance. It is an issue of measurement reliability. The EPA disagrees with the commenter and has established the RDL and 3xRDL evaluation process as part of MACT floor development to guide decision making in addr essing measurement variability and reliability. The RDL is determined from the average of MDL’s reported in the MACT floor data set. This is not the best MDL reported for the MACT floor; there are approximately half of tests with better detection limits and half of tests with poorer detection limits. The RDL process was developed in this way in part to promote better method detection levels moving forward by not considering the higher half, and in part to provide the flexibility for sources to select test ers and labs that are competitive and local rather than forcing the selection of the single best performing laboratory and/or tester. MDL is commonly defined as 3x the standard deviation of 7 measurements of a sample blank. The 3x RDL process is based on the widely accepted definition of quantitation limit being 10 times the standard deviation of 7 measurements of a sample blank or 3.33 times the MDL . Refer to:46 http://www.epa.gov/fem/pdfs/Env_Measurement_Glossary_Final_Jan_2010.pdf

.

When we set an emis sion limit using 3x RDL it is because the UPL calculation, designed to assess source and operational variability, has determined that the floor would otherwise be set below the level of quantitation reasonably achieved in practice by the test method. By u sing the 3 x RDL value we have determined that a level of quantitation reliably measured by the test method is the suitable emission floor as that test method is the determination of compliance necessary to write and enforce the rule. We do believe that m easured values reported above the MDL but below the 3x RDL value are useful information, but we hold that they have higher degrees of uncertainty than those values at or above the 3x RDL level.

The commenter’s claim that the oHAP alternative limit establ ished in the 2010 final rule is improper was not reopened or reexamined by EPA in this proceeding. The only issue addressed by EPA here with regard to that standard was whether the promulgated standard could be measured reliably (as just explained). Cons equently, EPA is not further addressing the issue here.



### 3

. 23 oHAP Alternative to THC: Significant Opposition to the Use of Three Times the RDL

One commenter (0513) stated that EPA has not considered the enforceability of emission standards that have been ar bitrarily set using the three

- times

- RDL approach that the EPA is using for the organic HAP emission standard. The commenter stated that the EPA has not adequately demonstrated the reliability and accuracy of the EPA test methods at such a narrow margin abo ve the MDL of the methods. The three

- times

- RDL approach can set the emission standards close to or even less than the practical quantitation limit (PQL). Even if the emission standard is equivalent to the PQL, EPA’s own technical experts recognize the need for an additional margin between an emission standard and the PQL. If the three

- times

- RDL approach establishes an emission standard less than a method’s PQL, compliance with the standard becomes indemonstrable.

EPA’s three

- times

- RDL approach is arbitrary and establishes emission standards near the MDL without determining the actual accuracy of the required methods at such low concentrations. While PQL is not typically defined in EPA test methods, the generally accepted definition of PQL is the minimum lev el that can be reported with a specified degree of confidence or certainty. It is also generally accepted that a method’s PQL will be greater than the MDL. While the PQL for some EPA methods has been estimated, such as the case with Method 5, many EPA
stac k test methods do not have a documented PQL. Therefore, the EPA cannot ensure that an arbitrary factor of three will establish an emission standard greater than the PQL of such methods.47 EPA should determine the PQL of the required methods before assuming that the methods are sufficiently accurate to demonstrate compliance with an emission standard established using the three

- times

- RDL approach. A fundamental flaw in the EPA’s reasoning for the three

- times

- RDL approach is that if the emission standard is ne ar or less than the method PQL then the only emission data that can show compliance with the standard are data that is by definition of unknown certainty. If the data needed to determine compliance is questionable by default then enforceability of the emis sion standard is severely compromised unless the emission test results are substantially above the emission standard and clearly demonstrate non

- compliance.

Technical support documents contained in the docket from EPA test method experts indicate that the margin between an emission standard and the MDL of the method used to demonstrate compliance should be greater than the factor of three. (The commenter included several references to comments about the EGU MATS rule.) In EPA’s technical memorandum regardi ng the capabilities of PM CEMS (EPA Docket ID No. EPA

- HQ

- OAR

- 2011

- 0817

- 0187) EPA staff also provided an analysis of the capabilities of EPA Method 5 for determining PM emissions. The memorandum indicates that a one

- hour Method 5 test run would have an MDL of approximately 2 mg/dscm and that this MDL would equate to a PQL of approximately 6 mg/dscm using a three

- times

- MDL approach. The memorandum also states that to “achieve a PQL of 1 mg/dscm (as would be necessary to demonstrate compliance with a 2 to 3 mg /dscm emission limit), one would need to conduct a Method 5 test of 6 hours or longer.” The analysis in the EPA technical memorandum indicates that the overall recommended margin between the Method 5 MDL and the emission standard is 6

– 9 and not an arbitr ary factor of three. Depending on stack conditions and the Method 5 sample train parameters, a six

- hour test run could exceed 5 dscm.

While Method 5 sensitivity can be improved by sampling a greater volume of stack gas, longer Method 5 test runs raise pra cticality concerns. Using the same assumptions from the EPA technical memorandum, each Method 5 test run would have to be 12

– 18 hours in duration to achieve the recommended PQL. Method 5 was not designed to be conducted for test runs of this duration.

T he commenter encourages the EPA to consider the technical limitations of Method 5 as well as the other required methods for demonstrating compliance when setting emission standards in the current Portland cement NESHAP proposed rulemaking as well as in the recently announced reconsideration of the MATS rule new unit emission standards.

C ommenter (0513) stated that EPA has made significant errors in determining the method RDL values in the technical support document entitled Data and procedure for handling b elow detection limit data in analyzing various pollutant emissions databases for MACT and RTR emission limits (EPA Docket ID No. EPA

- HQ

- OAR

- 2011

- 0817

- 0142). The commenter provided an example using the RDL determination for Method 26A for hydrogen chloride (HCl) and chlorine (Cl2).48 Commenter (0513) stated that in the EPA document Portland Cement Reconsideration Technical Support Document (EPA Docket ID No. EPA

- HQ

- OAR

- 2011

- 0817

- 0225), the EPA’s indicates that using the three

- times

- RDL approach to set the orga nic HAP limit would result in “a standard where the method would produce measurement accuracy on the order of 10 to 20 percent, similar to other EPA test methods and the results found in the ASME ReMAP study.” The commenter states that EPA’s claim of accur acy for Methods 18 and 320 in the technical support document is baseless and without any scientific validity. According to the commenter, the ReMAP study only evaluated a limited set of EPA reference methods: Methods 5 and 5i for particulate matter; Method 23 for dioxin and furan; Method 26 for hydrogen chloride; Method 29 for multi

- metals; Methods 101a and 101b for mercury; and Method 108 for arsenic. The EPA apparently has extrapolated the ReMAP study to apply to all EPA reference methods, yet the EPA has provided no technical basis for making such an extrapolation. In the case of the organic HAP emission standard for the Portland cement NESAHP, Methods 18 and 320 use sampling procedures, analytical technology, or instrumentation that is completely differe nt from the methods evaluated in the ReMAP study.

The final report of the ReMAP study does not support EPA’s claims regarding the accuracy of the reference methods that were included in the study. The data presented in the ReMAP study shows no indication t hat the study evaluated the methods at concentration levels near three times th e RDL. For example, the ReMAP study evaluation of Method 26 only included data for HCl concentrations at 1 mg/dscm, or a 1000 μg/dscm. However, the EPA technical support document on determining the three

- times

- RDL values shows the three

- times

- RDL value for a Method 26 test to be between 83

– 250 μg/dscm. Further, the MATS rule does not allow Method 26 for HCl testing on coal

- fired boilers. Either the isokinetic sampling HCl method, Method 26A, or the instrumentation methods Method 320 or ASTM D6348

- 03 are r equired for compliance demonstrations on coal

- fired EGUs and these methods were not evaluated in the ReMAP study.

Response: EPA previously promulgated the final 2010 HCl limit using three times the RDL. Further, f or the purposes of this rulemaking comme nts related to Method 26A are not relevant since this rulemaking does not list Method 26A as a method to conduct performance testing.

The EPA feels that the commenter may misunderstand the Method 5 level of quantitation as described in the December 13, 201 1 memorandum from Peter Westlin and Ray Merrill ( EPA Docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0142 ). With a level of detection at 1mg/m3 and a level of quantitation at 3mg/m3, a tester need only sample for one hour to provide the opportunity for their sample trai n to collect three milligrams of sample mass. If the target is 1.5 milligrams per cubic meter, the tester would run for two hours, and so on. We assume that a one hour Method 5 test will collect approximately one cubic meter of stack gas and have based our guidance on that basis. Using this logic, a 12 hour Method 5 test would be able to demonstrate PM levels as low as 0.25 milligrams per cubic meter.49 The EPA acknowledges that the commenter makes the point that the ReMAP study only addressed isokine tic/manual methods that utilize analytical technologies different than M18 and M320. While this is true, the EPA would also point out that manual methods 1

- 4 commonly support Method 18 and Method 320 data with measurements of flow, molecular weight, and
st ack gas moisture content as they support the test methods listed in the ReMAP study. In the case of Method 18, each set of test data includes a recovery study demonstrating a site

- specific accuracy within 30% which is data set specific and answers the qu estion as to the quality of data at the low levels. The same is true for Method 320 where dynamic spiking must be performed and results achieving a +/

- 30%method validation.

As such, these test methods are considered to be self validating and limited by the QA and QC information determined through the individual sample analysis, not by independent study such as ReMAP. The analytical approaches used in method 18 and method 320 are well suited to a laboratory determination of MDL and, thereby, determinatio n of a level of quantitation for the test method. Our analysis of this, as described in the proposed rule, provides for a fundamentally sound value of the emission limit, at 12 ppmv. For more discussion on RDL and 3x RDL see response to 3.24 above.



### 3

. 24 Hydrogen Chloride (HCl): General Support of Standard

The commenter (0505) had significant comments regarding the capability of HCl CEMS and PS

- 15 to be used to demonstrate continuous compliance with the 3 ppm emission limits (refer to Comment 4.22). Howe ver, the commenter supported the concept that the limit should not be below the method detection limit (MDL) of the required monitoring method for both new and existing sources.

Response: EPA did not reopen, reconsider, or otherwise reexamine the issue of a compliance monitoring regime for HCl in this proceeding. EPA is consequently not addressing these comments here.

One commenter (0508) stated that because removing the CISWI kilns did not change EPA’s floor calculations for hydrogen chloride, the age ncy proposes to leave the existing HCl standards unchanged. The commenter supports this decision.

Response: EPA has noted the support for this standard.



### 3

. 25 Start

- up/Shutdown: Opposition to Numerical Standards / Support for Work Practices50 Commenters (0475, 0494, 0505, 0506, 0507, 0523) stated that work practice standards should be imposed (not emission standards) during startup and shutdown because there is no data available to establish numerical limits.

Commenters (0494, 0507) noted that any numeric limit should be based on actual data gathered during startups and shutdowns, and measurement of emissions during startup and shutdown poses significant technical problems, mainly based on CEMS calibration issues, and the short duration of startups and shutdowns.

Commenters (0505, 0507) stated that EPA has clearly stated in other MACT determinations that they cannot establish emission standards during startup and shutdown periods if they lack data to establish said standards. In the preamble to the Mercury and A ir Toxics Standards (MATS) for electric generating units (77 Fed. Reg. 9381, February 16, 2012), EPA defends its decision to adopt work practice for electric utility boilers in lieu of emission standards during startup and shutdown periods because of insuf ficient data on emissions during startup and shutdown. Similarly to the MATS situation, EPA lacks any viable data on cement plant source emissions during startup and shutdown events.

Commenters (0505, 0507) stated that EPA believes that commenters may have a burden under CAA §112(h) to demonstrate why it is “not feasible” to prescribe numeric emission standards for startup and shutdown. 77 Fed. Reg. at 42383. The “not feasible” language in §112(h), however, is directed to emission standards in general and d oes not speak to the issue of startup and shutdown. Moreover, EPA‘s choice of work practices in the MATS context, as noted above, was based on the lack of sufficient emissions data, not “feasibility.” We believe EPA is thus fully authorized

– and indeed re quired

– to treat the portland cement industry just as it treated electric generating units and issue work practice standards for startup and shutdown events.

Commenter (0507) noted that a large portion of emissions from cement plants originate from the

ra w materials and not the fuels, so emissions during startup and shutdown periods will be considerably lower than during normal operations.

Commenter (0523) stated that the work practice standard should address site

- specific kiln operations during the period when raw materials are not being continuously introduced into the kiln system. The commenter suggested that the work plan would address actions taken to minimize emissions during startup or shutdown.

Commenter 0506 stated that it is infeasible to gather data during startup, shutdowns, or malfunctions simply because there are no EPA approved methods to make measurement during

non

- steady

- state conditions and malfunctions, by definition, are sudden and infrequent. In the final Hospital/Medical/Infectious Was te Incinerator rule, EPA agrees with this. At 74 Fed. Reg.51 51,394, EPA states “It would be very difficult to do any meaningful testing during such an event because the exhaust flow rates, temperatures, and other stack conditions would be highly variable an d could foul up the isokinetic emissions test methods (thus invalidating the testing).” EPA followed this logic in the industrial boiler rule (76 Fed. Reg. 15,613) where they determined that it is not technically feasible to complete stack testing during p eriods of startup and shutdown due to the physical limitations and the short duration of the startup and shutdown periods. As a result, they set work practice standards for startup and shutdown events in this final rule. The commenter believes the same set s of circumstances are applicable to this rule and suggest that EPA set work practice standards in this final rule for startups and shutdowns. The commenter also believes that EPA should make a similar choice for malfunctions since we believe that malfunct ions create the same set of circumstances pertaining to gatheri ng data as do startups and shutdowns.

Response As discussed in the section IV .C of the Preamble to the final rule , we agree with the
commenters that t he operation of kilns at cement manufacturi ng plants is very different from other types of processes that involve combustion sources such that manual or continuous emission tests do not provide reliable and replicable data for the regulated HAP and HAP surrogates during cement kilns’ startup and shutdown periods.

.



### 3

. 26 Start

- up/Shutdown: Support for Numerical Standards / Opposition to Work Practices

One commenter (0508) stated that EPA said it is amending the PM standards for startup and shutdown to be “consistent with” the revised PM standards f or normal operations. Because the revised PM standards are unlawful and arbitrary for the reasons given by the commenter, revising the startup and shutdown standards to be “consistent” with them would also be unlawful and arbitrary. Further, relaxing the P M standards for startup and shutdown violates § 112(d)(7) for the reasons given above. In addition, EPA does not even purport to show that the revised startup and shutdown standards comport with § 112(d)(3) far less demonstrate with substantial evidence th at they do so, as the agency must. Even assuming that EPA could revise the startup and shutdown standards to be consistent with the agency’s revised PM standards for normal operations, the agency does not explain why it believes that they are “consistent.”

One commenter (0508) stated that EPA solicits comment on whether it should set work practice standards for startup and shutdown because emission standards are not feasible to prescribe or enforce. The commenter stated that CAA § 112(h) allows EPA to set work practice standards instead of emission standards only if it is “it is not feasible . . . to prescribe or enforce an emission standard,” because “a hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to capture such pollutant,” or “the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” 42 U.S.C. § 7412(h)(1)

- (2). Nothing in the record shows that it is not feasible to prescribe or enforce emission standards during startup and shutdown nor does EPA even so claim. Accordingly, setting work practice standards instead of52 emission standards would violate § 112(h).

Commenter (0518) states that EPA is opening the door to drop ping numerical emission standards during startup and shutdown, substituting “work practices” instead. In addition, the agency is proposing that “Monitoring during startup and shutdown would be accomplished by recordkeeping” (pages 82

- 83). The commenter sta tes that these changes would be extremely irresponsible given that HAPs emissions are highest during these events. It is essential to have meaningful and protective limits during startup and shutdown.

Response: As discussed in the Preamble section IV.C

, E PA regards situations where a measurement may yield a value which is analytically suspect or so variable as to be arbitrary as being a situation where measurement is not “technologically practicable” within the meaning of section 112 (h)(2)(B) of the Act. Unreliable measurements raise issues of practicability and of feasibility and enforceability (see section 112 (h)(1)).
Regarding the comment that emissions are highest during startup and shutdown, the EPA notes that emissions are not highest during thes e events at cement kilns since the primary source of emissions (raw materials) are not being added continuously to the kiln until the startup period is

over (as per the regulatory definition of “startup” for this industry) and kilns burn cleaner fuels duri ng startup than are used during normal operation . Thus, cement kiln emissions are lowest during these events.



### 3

. 27 Start

- up/Shutdown: Opposition to Steady State Limits Being Applied Start

up/Shutdown

One commenter (0506) stated that EPA’s proposal to require Portland cement kilns to comply with what are essentially the same emission standards during periods of startup, shutdown, malfunction, and steady state conditions is n either logical nor lawful. MACT floor standards must be based on evidence that sources h ave already achieved them. However, EPA’s statement that sources can meet the standards during startup, shutdown, and malfunctions is not based on any data (at least there is no data in the record to show this). In fact, it is most likely wrong.

The comme nter stated that before the court’s decision in Sierra Club v. EPA , 551 F.3d 1019 (DC. Cir 2008) (“SSM Decision”) the DC Circuit had consistently held that technology

- based standards must contain exemptions or less stringent standards during periods of sta rtup, shutdown, and malfunction (SSM) than would usually apply during steady state periods.

Now that the court has decided that MACT compliant standards must apply during periods of SSM, the Agency must develop standards that are “achievable” with this rul ing in mind. The court has stated that for standards to be “achievable,” they must be achievable under the most53 adverse circumstances which can reasonably be expected to recur, Sierra Club, supra , 665 citing National Lime Ass’n v. EPA 627 F2.d 416 (D.C. Ci r. 1980) (“ National Lime I ”).

The commenter (0506) provided examples of times when cement kilns may not be capable of complying with standards during SSM, such as bypassing baghouses until gas temperatures are above the condensation point. EPA states in th e preamble that these units will not be feeding raw material during startup and shutdown and typically use cleaner fuels than used during normal operations (77 Fed. Reg. at 42.370). EPA is correct in both of those assertions. However, there are two major f laws in EPA’s reasoning.

The first is that even when using a cleaner fuel (e.g., natural gas), the combustion process is inefficient when starting up. Until ideal combustion conditions can be met in the combustion chamber (adequate temperature and turbulen ce)

, the combustion process will be incomplete. While this should not impact fuel

- derived hazardous air pollutants (chlorine and mercury), it will impact the emissions of organics and possibly PM. As stated earlier, it is also not possible for certain air pollution control devices to work until a certain temperature and gas flow rates are achieved.

The second is that EPA did not include emissions data during either startup or shutdown in the development of these standards; all data was collected under stea dy

- state conditions. Since emissions under non

- steady

- state conditions may vary significantly, they could significantly alter the Agency’s calculations. As such, the standards are not properly set. Thus, from a physical and legal standpoint, it makes no se nse to group startup, shutdown, malfunctions, and normal operation events under essentially the same set of standards.

One commenter (0508) stated that if EPA’s position that kilns’ actual emissions during startup and shutdown should be much less than in normal operations because feed contributes so much to emissions and if EPA insists on promulgating separate standards for startup and shutdown, it underscores that the emission standards applicable to startup and shutdown should be more stringent, not less stringent, than those that apply during normal operations. All of EPA’s numerical emissions standards must fully comply with the stringency requirements of § 112(d)(2) and (3). EPA’s revised standards for startup and shutdown do not satisfy the floor
requ irements of §112(d)(3); EPA does not show or even claim that they reflect the emission level achieved by the relevant best performing plants. Likewise, they do not sati sfy the requirements of § 112(d)(2); EPA does not show or even claim that they reflect t he maximum degree of reduction in emissions that can be achieved.

Response: Regarding the commenter’s statement on the inefficiency of combustion when startup, the EPA agrees and the final rule defines the period of startup to include the period when th e ID fan is running and fuel combustion is occurring in the kiln’s primary combustion chamber54 

### 3

. 28 Start

- up/Shutdown: Justification for Suggested Work Practices

Commenter (0507) discussed work practice requirements: (1) the operation of a pollution control de vice during startup and shutdown is a viable work practice as long as EPA recognizes that some pollution control devices require exhaust gases to have characteristics that will not contribute to degradation of equipment; (2) operators minimize startup and shutdown periods, because no product or profits are being made; (3) because kilns and situations are different, there is no single time period that can be defined for either startup or shutdown; (4) kiln operators are strongly motivated to follow manufactu rer’s best practices when possible, as warrantees would be voided if they were not followed; (5) older kilns depend on operator’s long

- time experience; (6) and operators will minimize the time periods under startup and shutdown to the greatest extent possi ble, while ensuring the safety of the persons working at the plant and the protection of the asset.

Response: The EPA acknowledges the commenter’s description of viable work practices in lieu of numerical emissions limits. We believe that the final work pr actices are largely consistent with the commenter’s suggestions.



### 3

. 29 Start

- up/Shutdown: Support for Recordkeeping

One commenter (0508) stated that EPA’s proposal to require reporting and recordkeeping for SSM events are necessary to prevent or reduce excess emissions during such events and to allow EPA, States, and the public to enforce violations of emissions standards. The commenter supports adding these requirements.

Response: EPA acknowledges the commenter’s support for the reporting and recordkeeping

re quirements. However, as discussed in preamble section IV. C, the final rule requires that affected sources comply with work practices to be in compliance during startup and shutdown instead of using recordkeeping to demonstrate compliance during startup an d shutdown as was proposed.



### 3

. 30 Start

- up/Shutdown: HCl Limit During Start

- up and Shutdown

One commenter (0508) stated that EPA’s proposal to change the HCl standard applicable to periods of startup and shutdown from 0 to 3ppmvd contravenes §112(d)(7). Furth er, the new standard does not even purport to satisfy either the floor requirements in §112(d)(3) or the requirements for final standards in §112(d)(2) . It reflects neither the emission level achieved by the relevant best performing sources nor the maximu m achievable degree of reduction.55 Response: The commenter is incorrect on both counts. First, section 112 (d)(7) does not preclude the EPA from correcting standards as it is doing here. The 2010 promulgated startup and shutdown standard was premised on no HCl being present in kilns during these periods, an assumption proven incorrect. See 77 FR 42382

- 83. Thus, those standards are literally impossible to achieve. Section 112 (d)(7) does not stand as a bar to amending such a standard. Second, as a factual matter, the limit of 3 ppmvd is the lowest level which can reliably be detected and so can only be a measure of best performance (since any lower measurement would have little reliable physical meaning for purposes of complying with the standard). See 75 FR 54984. However, this issue is now moot as the result of amending the standards to provide for work practices during startup and shutdown periods.



### 3

. 31 Clinker Piles: Additional Authorized Work Practices

Several commenters (0476, 0505, 0507, 0523) supporte d EPA‘s proposal to replace the clinker pile design and management requirements adopted in the 2010 rule with work practice standards. The commenter stated that there are other work practices, in addition to the five listed in the notice, that would be equ ally effective and could be also be utilized. In some cases, such practices have been incorporated into a particular plant‘s permit. Those and other such appropriate work practices should also be authorized by the final rule so that the final rule cannot b e interpreted as having excluded (and therefore not permitted) additional work practices merely because they are not among the five specific work practices which the rule has listed.

Commenter (0505) stated that the final rule should provide for an infor mal, expedited process by which individual plants could request the Administrator‘s approval of the plant‘s use of an additional work practice or practices.

Commenters (0476, 0507) asked that control measures in addition to the ones specifically outlined i n the proposed rulemaking must be allowed by the Agency. The commenters suggested that the EPA consider providing a generic compliance option of “or other control measures approved for use by the Administrator.”

Commenter (0476) asked for clarification reg arding a list of clinker pile controls for fugitive emissions in the preamble that are not reflected in the rule language at §63.1343(b)(2). The commenter requested that the regulatory language fully reflect the list of acceptable control measures found in the Preamble.

Commenter (0523) stated that fugitive dust control measures to minimize dust emissions from open clinker piles will be incorporated into the facility’s operations and maintenance plan, and that the facility should incorporate work practices to minimize dust emissions from clinker spills during material handling in its operations and maintenance plan.56 Response: See Preamble section V.C.



### 3

. 32 Coal Mills/Alkali By

- pass Stacks: General Support

Commenter (0507) supported the EPA’s determination that all coal mills that receive drying heat from a source other than the kiln gases should be regulated under the section 111 Subpart Y NSPS rule and not under the section 112 Subpart LLL NESHAP rule.

Commenter (0523) agreed that a cement kiln which commingl es or returns its emissions from its coal mill along with all other emissions and discharges through kiln emission points would have to meet all of the NESHAP emission limits, and in the case of PM, the additional flow from the coal mill would be accounted for in the equation used to determine PM contributions from commingled flows.

Response: EPA has noted the commenters’ support for this standard.



### 3

. 33 Coal Mills/Alkali By

- pass Stacks: Standard is Unlawful because no Data has been Collected

Commenter (0507) s tated that the EPA should not be finalizing any coal mill standards based on this proposal, as there is no data in the record to support the coal mill provisions in the proposed rule. The commenter stated that to be faithful to the Administrative Procedure Act and CAA §307(d) rulemaking requirements, any rule that EPA may want to propose for coal mills in the future must be based on data and an awareness of which sources would be affected by various proposed requirements.

Response: The commenter is mistaken . The coal mill provisions, first of all, were properly noticed. See 77 FR 42383

- 85. Second, these provisions are not emission standards but rather a compliance mechanism for accounting for comingled emissions

– similar to the equation for commingled emis sions in the alternative PM standard (section 63.1343(b)(2)). Commenters are not claiming that the alternative PM equation involves a data

- driven exercise. Thus, to reiterate, no new standard for either kilns or coal mills is involved but rather how to account for situations where emissions are commingled so that uncontrolled kiln or coal mill emissions (i.e. emissions greater than the level allowed by either the subpart LLL or subpart Y standards) are not emitted

.



### 3

. 34 Coal Mills/Alkali By

- pass Stacks: Requ est for More Time to Respond57 One commenter (0505) stated that coal mills that have their own heat source or receive cooler air should be subject only to requirements under the coal mill preparation NSPS, 40 CFR Part 60, Subpart Y.

With respect to the two other configurations that EPA has proposed to address here, however, EPA needs to provide additional time for the commenter to consider and respond. As we discussed above, the issues involved with these configurations are highly involved. Further, what lit tle discussion of the preamble provides for the proposal is confusing and does not provide an explanation for why EPA is addressing the two other coal mill configurations in the manner proposed to which the commenter can meaningfully respond. Accordingly, not only does EPA need to provide additional time for comment here, it clearly would be preferable for EPA to address and seek comment on the remaining two coal mill configuration through the publication of a separate notice that provides the underlying ra tionale that is currently missing from the proposed rule.

Response: There was ample public comment on this issue indicating both adequacy of notice and of time for response. Moreover, this issue was one which the industry itself asked EPA to reconsider. 76 FR 28326 (granting the industry’s request). Industry then negotiated a settlement agreement with EPA tying EPA to deadlines to complete the reconsideration process. Thus, EPA has acted on the issue on which the industry petitioned for reconsideratio n in the time agreed to by EPA and the industry in the settlement agreement. There is no valid basis for complaint about inadequate process under these circumstances.



### 3

. 35 Coal Mills/Alkali By

- pass Stacks: Backsliding with PM NSPS Option

One commenter (0508) stated that EPA suggests that cement plants that choose to route their kiln emissions through a coal mill stack could be allowed to meet the 2009 new source performance standard for PM emissions. The commenter stated that such an approach would be lawful only if these NSPS are as stringent as or more stringent than lawful PM standards for cement plants under § 112. To the extent they are less stringent, allowing plants to meet them violates the anti

- backsliding requirements of § 112(d)(7), the floor requir ements of § 112(d)(3) and the beyond

- the

- floor requirements of § 112(d)(2).

Response: W e consider the air pollution control technology used at subpart Y facilities, i.e., fabric filters, to be equivalent to the fabric filters used for PM control at portla nd cement plants. In the case of coal mills, the control device is capturing coal, which is the product of the coal mill. Thus there is a substantial incentive for efficiently capturing the coal. Nonetheless, we agree with the commenter and have revised S ections 1343(b)(2) and 1349(b)(1) as well as Section 60.62(b)(3) . These revisions require that emissions from in line coal mills with separate stacks are combined with the alkali bypass and kiln emissions to meet the Subpart LLL PM limit.58 

### 3

. 36 Coal Mills/Alk ali By

- pass Stacks: Alternative PM Standard

Comment 0511 stated that the proposed language in. 63.1343(b)(2) appears to be missing language allowing coal mill exhaust to be accounted for in the alternative PM standard.

Response: The commenter is correct a nd section 63.1343(b)(2) in the final rule clearly identifies the sources that may be considered in developing a site

- specific alternative PM emissions limit.



### 3

. 37 Raw Material Dryers: Support for Eliminating O2 Correction Factor

One commenter (0505) stated t hat they support EPA eliminating the oxygen correction factor associated with THC emissions from stand alone raw material dryers that was included in the 2010 rule. The commenter stated their basis for that support in view of objections that are likely
to be raised by other organizations.

Response: EPA has noted the commenter’s support for the removal of the O2 correction factor.59 

## Section 4 : Comments on Monitoring Requirements

4

. 1 Particulate Matter (PM): Opposition to Testing

- based Standard

Commenter (0518) states tha t EPA’s proposal to rely on a performance test conducted every three years for PM compliance is unreasonable and does almost nothing in reality to assure compliance with any standard.

Commenter (0523) requested that the EPA allow a source the option to u se a PM CEM and comply with the proposed standard (0.07 lb/t 30

- day rolling average) in lieu of the periodic stack test and surrogate.

Commenter (0518) states that the most egregious change is the proposed switch from continuous direct monitoring of PM to a “continuous parametric monitoring system” (CPMS). On page 38, EPA cites the potential technical issues associated with PM continuous emissions monitoring systems (CEMS), but it bases its assertions on the existing limit of “0.04 lb/ton of clinker [which ] equates to 5 to 8 mg/dscm.” No analysis is provided for EPA’s proposed new limit of 0.07 lb/ton of clinker, which is almost double the existing limit. The detection capabilities and uncertainties cited by EPA will undoubtedly be significantly different b etween a limit of 5

- 8 mg/dscm and a limit of approximately 9 to 15 mg/dscm. Before throwing out direct monitoring altogether, EPA should analyze the inherent uncertainty of measurement at the proposed limit. Beyond this particular flaw, it is important to note that continuous monitors accurately measure very minute amounts of varying sizes of particulate matter in ambient air all across the United States, which leads one to question EPA’s assertions about the technical feasibility of PM CEMS.

The commenter states that having asserted that PM CEMS are unreliable, EPA illogically proposes to use PM CEMS in conjunction with the monitoring of other operational parameters:

“For monitoring continuous compliance, the rule would require PM CEMS equipment but ... tha t equipment would be used for continuous parametric monitoring rather than for direct measure of compliance with the numerical PM emissions limit” (page 44).

The commenter states that the EPA proposes to allow facilities to submit a “site

- specific monitor ing plan” in which the reportable measurement output “may be expressed as milliamps,60 stack concentration or other raw data signal ” [emphasis added]. Essentially, EPA is proposing to allow a facility to choose any operational parameter it desires and correl ate it with PM emissions in a highly controlled performance test. On top of that, if a facility should exceed its preferred, site

- specific parametric limit (after averaging over 30 days), it will be allowed to make multiple “adjustments,” until it achieves a limit it can easily comply with . It will not be considered a violation until it exceeds that limit four times , and even then, EPA would allow a facility to rebut any “presumption” of a violation. The commenter finds it outrageous and feel strongly that it is an unethical concession to industry pressure.

The commenter believes that parametric monitoring is tailor

- made for manipulation. This is exemplified by dioxin monitoring, which relies on temperature as a surrogate for actual emissions. The commenter noted that their local cement plant has repeatedly conducted performance tests designed to raise the operational limit, yet none of these tests were conducted at operational norms; production levels and fuel composition were manipulated to achieve desired outcomes. On several occasions, the kiln had upsets during testing that would have led to undesirable results, and so the testing was simply rescheduled for another day. The result is that the facility has achieved a surrogate limit that bears little corr elation to actual emissions.

The commenter states that they find parametric monitoring so objectionable that they would prefer a return to continuous opacity monitoring

— flawed as it is. At least it provided real

- time, direct monitoring of PM emissions and held facilities accountable for their emissions exceedances. With the proposed changes, there is little or no accountability. Every kiln will have its own site

- specific plan

— some monitoring electric current, some monitoring stack gas concentration (or who knows what?). And that plan will be adjusted multiple times so that facilities can easily comply. This proposal is a bureaucratic nightmare! We predict that state agencies, many of which have had steep funding cuts, will not be able to provide adequate

ove rsight for these ridiculously and unnecessarily arcane regulatory changes.

The commenter states that because particulate matter is the arguably the most important pollutant emitted by cement kilns, it is imperative that PM be monitored both directly and c ontinuously. The commenter feels very strongly that switching to parametric monitoring is simply a means of evading compliance with the standard. Without direct and continuous PM monitoring, facilities are highly unlikely to invest in the control technolog y needed to comply with the PM limit. EPA must not abandon appropriate, reasonable compliance assurance. That is the key to achieving cleaner air and better public health outcomes.

Response: The EPA is requiring PM performance tests annually in the final r ule, with each performance test used to reevaluate the PM CPMS relationship to in stack PM concentration and reset the parametric PM operating limit. Sources wishing to use a PS 11 certified PM CEMS for compliance with the emission limit in the rule may ap ply for an alternate monitoring request using the process available in the Part 63 general provisions (40 CFR part 63.8 (f))

. In using a PM CEMS as a CPMS to conduct continuous qualitative monitoring of PM concentration in the61 stack, we are not interested in specific output information from the instrument (e.g. lbs/ton clinker). We only need to know that PM concentration increases or decreases and the EPA recognizes that PM CPMS technologies are well suited to this task. The signal output from the instrume nt need not be correlated to PM concentration through PS

- 11 trials to achieve this, but rather we can accept the native signal output from the instrument, as is, in milliamps, and track that signal to determine trends in PM emissions. In this final rule we are requiring PM CPMS instruments to employ a 4

- 20 milliamp output, which is a standard electronic signal output common to many CEMS. With a PM CPMS the milliamp output would not represent an opacity value, but like an opacity analyzer, the milliamps woul d increase as PM concentration increases and decrease as PM concentration decreases. We can then monitor the milliamp signal while conducting a method 5 performance test and correlate the average milliamp signal to the average PM concentration during the t esting. This relationship is notably coarser in terms of understanding the precise PM concentration in the stack through PS 11 certification, but the instruments’ sensitivity to changing PM concentration in the stack, and its changing milliamp signal outpu t, does not deteriorate and may still be employed to qualitatively monitor PM emissions. PM CPMS technology is superior to opacity monitoring in terms of sensitivity to changing PM concentrations and in degrees of design freedom parameters such as light

wa velength, scattering angle, and solid angle of detection. ( http://www.epa.gov/ttn/emc/cem/pmcemsknowfinalrep.pdf ). T he technology thus parametrically qualifies the performance of PM controls

, and thus serves as a type of enhanced monitoring to document con tinuous compliance with the stack emission standard (see CAA section 114 (a)(3))

. As the signal output is continuous and the measurement principle the same as a PM CEMS, the EPA disagrees with the comment stating that the signal is prone to manipulation . The output signal from a PM CPMS is no different than that from any other CEMS, except that it is not converted to a concentration value, but left in its raw milliamp state.

Finally, the EPA maintains that PM CPMS monitoring provides for continuous qua litative assessment of source PM emission controls and is protective of the emission standard

– i.e. given the instrument sensitivity to detecting and reporting increases in the PM signal, there is virtually no likelihood of false negatives. . Never befor e has the public had the ability to see how PM emissions track between compliance tests and the EPA recognizes this as a significant step forward in emissions measurement related to PM standards

. ( Indeed, the sensitivity of the CPMS is such that EPA intro duced a scaling factor into the rule to accommodate the situation of lower

- emitting facilities, to avoid what in effect would be false positives

– CPMS measurements where an increase in PM emissions would not implicate the emission standard itself. See se ction V.A.2 of the preamble to the final rule , a nd the following section of this document )

.

Comment : PM: Support for Testing

- based Standard

. Commenter (0507) agreed with the EPA’s decision to move back to a stack testing

- based standard and compliance d emonstration methodology for PM.

Response: EPA has noted the commenter’s support for the stack testing

- based standard.62 

### 4

. 2 PM: Request for Compliance Margin (Scaling) between Tested Value and Limit

Commenter 0505 supports EPA‘s decision to revise the 2010 ru le and not require the use of continuous emission monitoring (CEM) in the manner that the 2010 rule had envisioned. PCA agrees with EPA‘s analysis supporting the proposed change set forth at 77 Fed. Reg. 42374. The commenter stated that this approach is si milar to the compliance monitoring approach proposed for the organic HAP alternative and, just like the oHAP alternative, it too will expose complying cement kilns to excessive retests and create an unwarranted risk of erroneously being found to be in viol ation. The chief problems in this regard are as follows.

First, no allowance has been made for the margin between measured PM emissions and the PM standard. Without such a margin, retests can be triggered based solely on an indication that emissions have increased. Because four retests are deemed to be a violation, complying kilns may actually be held to a more stringent standard than the one adopted by EPA.

Second, EPA creates a high risk of triggering frequent retests by basing the CPMS threshold on a 1

- hour value taken from the period of the annual performance test. Hourly CPMS values will have much more variability than 30

- day CPMS. A single hour chosen from the period of the 30

- day average can vary from well

- below the average to well

- above the average.

Commenter 0505 stated that they discussed these issues at more length in their comments concerning the oHAP alternative and our proposed alternative methods to address the problems. The commenter stated that similar methods are needed to address the prob lems with PM CPMS. Based on the analysis presented in our comments concerning oHAP s, the commenter recommended that EPA take the following three actions:

• EPA should adopt a method to account for a compliance margin in the CPMS monitoring process. The comme nter stated that as demonstrated for oHAP s, a compliance margin based on adjusted measurements can significantly reduce the risk that complying kilns are treated unfairly under the rule while protecting against the risk of inadequate monitoring.

• EPA also should adopt a different method to determine the CPMS threshold used for compliance monitoring. This method would lengthen the time period for choosing the CPMS threshold.

• EPA should provide a compliance margin for sources that have PM emissions less63 than the limit. The approach of adding the compliance margin for the CPMS indicator can be the same one proposed for the alternative THC limit.

Commenter (0261) agrees with the agency’s intentions to eliminate the problematic issues discussed with the alternat ive monitoring approach to PM CEMs and PS11. However, the commenter suggests that rather than using the highest CPMS hourly value demonstrated during the three 2

- hour Method 5 test runs, the agency consider the following approach:

1

. First, demonstrate that the average of the Method 5 tests achieved compliance with the PM standard (i.e. 0.07 lb/ton clinker) during performance testing.

2

. Second, establish the source

- specific parametric monitoring emissions intensity in terms of CPMS units per lbs PM/ton clinker. Example: millivolts / [lb PM/ton clinker].

3

. Scale this emissions intensity factor up to the LLL standards. Example: The PM monitoring device reads 5 millivolts average during the Method 5 testing. The measured average PM during those tests were 0.035 lb PM / ton clinker. The 30

- day rolling average PM CPMS output value for purposes of compliance demonstration would become:

a . CPMS Compliance Point = [NESHAP standard ÷ Average Method 5 PM value] * Stack Test average millivolt

b

. CPMS Compliance Point = [0.07 lb /ton clinker ÷ 0.035 lb / ton clinker] * 5 millivolts

c . CPMS Compliance Point = 10 millivolts

The commenter believes that using another approach to determine the CPMS compliance point will likely result in the best

- performers for PM emissions having a more s trict standard in comparison with the 0.07 lb/ton clinker LLL standard. The commenter states that this approach also eliminates the likelihood that certain sources may establish a CPMS limit that actually exceeds the proposed numerical emissions limit of LLL and decreases the likelihood that better performers will be subject to a higher frequency of re

- tests triggered by exceedance of the CPMS parametric limit.64 The commenter concludes that at a minimum, the agency could establish a method to provide at lea st some credit in recognition of good PM emissions performance. A hypothetical example using the recommended approach is provided by the commenter.

One commenter (0506) stated that the preamble and regulatory language do not appear to be clear or consis tent on how to revise that operating limit based on subsequent tests. The commenter stated that the following would improve usability of PM CPMS:

a. The Agency should allow the use of all stack test data collected over time that has passed normal QA/QC re quirements and their associated instrument reading to determine the most representative operating limit.

b. The Agency should allow the use of all data collected over time that has passed QA/QC requirements to show that a PM CPMS can mean Performance Spe cification 11. Once that demonstration has been made, the facility should be able to switch from a CPMS mode to a CEMs mode.

c. The Agency should allow facilities to extrapolate the operating limit up to the standard using a simple ratio method.

Response : See Preamble section IV. A. and V.A.2 , as well as the previous comment response. In short, these comments have identified a legitimate issue and EPA has introduced the scaling approach into the rule as a response

.



### 4

. 3 PM: Request for Language Revision

Com menter (0476) requested that the EPA revise the proposed language in §63.1349(b)(1)(ii) to reflect testing under “conditions representative of normal operation.” The commenter noted that under the CAA NESHAP authority, EPA may only require testing under co nditions representative of normal operations.

Response: While the text in amended 40 CFR 63.1349(b)(1)(ii) requires that the affected source be “operating at the highest load or capacity level reasonably expected to occur.”, and this is different than the text in the General Provisions of 40CFR 63.7 requiring “...normal operations...” we find that the text is reasonable when viewed in light of the guidance provided in the National Stack Test Guidance document, available at:65 ( http://www.epa.gov/compliance/resources/policies/monitoring/caa/stacktesting.pdf )

“...the CAA requires continuous compliance with emissions limits except where explicitly excused, EPA interprets app licable regulations to require that any stack test that is conducted within the scope of this guidance must demonstrate that a facility is capable of complying with the applicable emissions standards at all times. 4 The NSPS and MACT programs require that
p erformance tests be conducted under such conditions as the Administrator specifies based upon the representative performance of the affected facility. See 40 CFR §§ 60.8© and 63.7(e). The MACT program further defines representative performance as normal op erating conditions.

The Part 61 NESHAP program requires that emission tests be conducted “under such conditions as the Administrator shall specify "based on design and operational characteristics of the source.” Individual standards may more specifically define operating conditions under which performance tests should be conducted. In the absence of such specifications, the question often arises as to what operating conditions should be used when conducting a stack test. If operating conditions are not ind icated by the applicable requirements in individual standards, they should be developed as part of the site

- specific test plan.

• In light of the fact that: (a) the Act requires that facilities continuously comply with emission limits; (b) the NSPS, MACT, and NESHAP programs all require that performance tests be conducted under such conditions as the Administrator specifies; and © the NSPS and MACT programs further require that such tests be conducted under representative operating conditions; EPA recommen ds that performance tests be performed under those representative (normal) conditions that:

- represent the range of combined process and control measure conditions under which the facility expects to operate ( regardless of the frequency of the conditions) ; and

- are likely to most challenge the emissions control measures of the facility with regard to meeting the applicable emission standards, but without creating an unsafe condition.

The following are factors that should be considered in developing the p lan for a performance test that challenges to the fullest extent possible a facility’s ability to meet emissions limits.

For a facility operating under an emission rate standard (e.g., lb/hr) or concentration standard (e.g., μg/m 3 ), normal process operating conditions producing the highest emissions or loading to a control device would generally constitute the most challenging conditions with regard to the emissions standard

. If operating at maximum capacity would result in the highest levels of66 emissions, operating at this level would not create an unsafe condition, and the facility expects to operate at that level at least some of the time, EPA recommends that the f acility should conduct a stack test at maximum capacity or the allowable/permitted capacity. ”

The logic of this guidance applies here. The stack test shows compliance while establishing ordinary operating variability. This provides means of establishing monitoring parameters correlated to the range of conditions which the kiln will experience in normal operation. See Cement Kiln Recycling Coalition v. EPA , 255 F. 3d 855, 867 (D.C. Cir. 2001) (in assessing sources’ performance for purposes of establishing MACT standards, EPA may permissibly allow sources to spike their hazardous waste feeds to “predict[t] their emissions under the worst reasonably forseeable circumstances”) .Ther efore , the EPA disagrees with the commenter and will retain the language, as p roposed, in the amended rule.



### 4

. 4 PM: Request to Remove Testing Requirement Following CPMS

Commenter (0476) questioned the necessity of conducting a PM compliance test in the instance described in §63.1350(b)(1)(iii), when any deviation of the 30 process op erating day PM CPMS average value occurs. The commenter stated that the PM CPMS value is effectively a surrogate for PM emissions, and compliance with the PM CPMS average value reflects compliance with the applicable PM standard. If a deviation of the aver age value is caused by a malfunction of the affected source or control device, and the required corrective actions are completed to re

establish compliance with the current PM CPMS average value, the source is deemed to be in compliance with the PM standar d and the subsequent PM compliance test serves no purpose. The commenter requested that the EPA eliminate the requirement to conduct the subsequent PM emissions test following any deviation of the PM CPMS limit that is subsequently rectified with appropria te corrective actions.

Response: See Preamble section V.A .2.



### 4

. 5 PM: Request for Reduced Testing Frequency due to Financial Burden

Commenter (0494) suggested allowing reduced stack testing frequency, particularly for small entities and area sources. The com menter stated that Method 5 stack testing for PM is a reasonable means of demonstrating compliance. The commenter requested a frequency of once every 30 months (similar to the D/F testing frequency) or a reduced frequency in s ubsequent years if tests routi nely demonstrate compliance. The commenter asked that the EPA consider alternatives that could lessen the financial impact while still ensuring an adequate assurance of compliance.67 Response: The final rule requires PM compliance testing to be conducted on an annual basis to show regular compliance with the PM emission limit and to verify the relationship between PM concentration in the stack and the PM CPMS monitor milliamp output.



### 4

. 6 PM: Request for COMS as a Parametric Monitor

Commenter (0494) suggested t hat a continuous opacity monitoring system ("COMS") is also a monitoring technology sensitive to changes in PM concentrations and can be used to serve the same purpose as the PM CEMS as a type of continuous parametric monitoring. The commenter noted that t he EPA has accepted COMS as an acceptable monitoring approach in previous rulemakings and has accepted them as a means of assuring proper operation of PM control devices. The commenter stated that using COMS as a continuous parametric moni toring system

wou ld be more cost

- effective and would certainly minimize the impact of this rulemaking on this small business.

Response: The EPA disagrees with the commenter in that we hold that a COMS is not sensitive enough to distinguish between subtle changes in low lev el PM concentrations that are necessary to allow sources to achieve compliance with an operating limit as required by the rule. There is discussion on this topic in the preamble to the rule, Section V. A.1 and in response unit 4.1 above

.



### 4

. 7 PM: Suggested Co rrections to PS 11 Issues

Commenter (0523) stated that on February 2, 2012 , the commenter documented to EPA its concerns with the statistical criteria used in Performance Specification (PS) 11. The commenter stated that in that letter, the commenter point ed out that PS 11 requires an emission limit in the calculation and the NESHAP final 2010 PM limit was so low that when converted from lb PM/ton of clinker to the correct units used in PS 11 it would be somewhere between 3 to 5 mg/acm depending on the kiln type. The commenter noted that at such low emission limits, the statistical performance criterion in PS 11 becomes problematic.

The commenter (0523) suggested two options as correction for the PS 11 issue: (1) increase the PM limit so that a PM CEM can be correlated; or (2) redefine the term “emission limit.” The commenter discussed how the NESHAP PM limit is a 30

- day rolling average, and a facility may exceed the NESHAP numeric limit without causing a NESHAP violation. The commenter stated that the value that could be entered as the “emission limit” for PS11 is a site

- specific number that fully captures the range in PM emissions that occur or could occur during a 30

- day operating period and not the fixed numeric 30

- day rolling average limit.68 Response: Beca use we are not requiring PS 11 for the PM CEMS, there is no need to address this comment. A discussion on the effort and time needed to modify PS 11 can be found in the Preamble to the rule, Section V. A .1.



### 4

. 8 PM: Inconsistency between Length of Test Runs

Commenter (0523) noted that in the preamble of the proposed rule, PM is based on the average of three 2

- hour runs at one point and is based on the average of three 1

- hour test runs at another point. The commenter suggested that the final rule be modified t o allow sources the flexibility to increase the duration of each run if needed to improve the accuracy of each run.

Response: The EPA holds that PM emission test runs may be of sufficient duration determined by the tester on site to achieve a demonstratio n of compliance with a standard. While the EPA may require minimum sampling times and volumes for sources to demonstrate compliance , we will always make allowances for a tester who decides, based on information in the field or from past knowledge of the source, decides to collect additional sample volume to show compliance.



### 4

. 9 PM: Request for Beta Gauge PM Monitors or Multi Metal CEMS Options for Monitoring

One commenter (0504) stated that while they agree with the EPA that light

- scattering and light

scint illating PM CEMS are not the appropriate monitoring tool for Portland cement emissions, we disagree with the alternate monitoring method, CPMS, suggested in the amendment. The commenter suggested the following revisions:

• Unlike light

- scattering or scintil lation PM CEMS, beta gauge PM monitors are not significantly impacted by changes in PM size and density. Beta attenuation CEMS are clearly the more appropriate choice for measuring PM in Portland cement emissions

.

• EPA states in the proposed amendment that no independent standard reference materials exist for PM concentrations. This statement is inaccurate, as CES’ Quantitative Aerosol Generator (QAG) produces aerosols that are traced to NIST standards . We suggest that EPA includes this option for PM CEMS c ertification in the amended rule.

• PM is intended to act as a surrogate for HAP metals. There is little to no data suggesting that the CPMS approach provides adequate PM data to be considered a surrogate for HAP metals. Considering the numerous adverse hea lth effects caused by HAP metals69 present in Portland cement emissions, the commenter suggests that multi

- metal CEMS should be required to provide adequate protection of human health and the environment.

Response: The EPA does not have, nor has the commen ter provided, any data to support the use of the QAG as an independent and NIST traceable calibration source for PM CEMS. PM is a surrogate for HAP metals in the rule, with the compliance determination predicated on the use of Method 5. PM CPMS are conti nuous qualitative parametric compliance monitors designed to provide assurance of adequate emission control operations between compliance tests.

Comment: Commenter (0517) specifically request that EPA incorporate language in the final rule expressly allo wing the use of a HAP metal CEMS to continuously monitor HAP metal emissions from existing and new sources. The commenter requests that the EPA expressly allow Portland cement plants who choose to monitor HAP metal emissions directly be relieved of the PM emissions monitoring requirements. The commenter states that the incorporation of this type language would give source operators an alternative and some assurance that monitoring with a multi

- metals CEMS would be acceptable to the EPA. The commenter believ es it is also likely to encourage the use of multi

- metal CEMS on sources, which is beneficial to EPA’s understanding of the health effects associated with metal HAP. The commenter also believes multi

- metal CEMS would provide source operators with more feed

- back on control of metals and may allow them to optimize operations to minimize HAP metal emissions.

Commenter (0517) believes that the acknowledged difficulties with monitoring PM emissions continuously at Portland cement plants undermine one of the chie f assumptions behind the choice of PM as surrogate (i.e. that PM is easier to monitor than HAP metals). The commenter states that there is plenty of evidence that HAP metal CEMS are viable and not difficult to use. The commenter noted that one HAP metals C EMS, the Xact, has been used to monitor HAP metals for compliance at a hazardous waste incinerator for six years as part of an EPA approved Alternative Monitoring Plan and that the procedures used to certify the Xact have been recognized by EPA as Other Te st Methods and have been published in peer reviewed journals. The commenter further states that this same monitor has demonstrated accuracy in measuring both mercury and non

- mercury HAP metals on several different types of sources including coal

fired powe r plants, coal fired furnaces, and diesel fired incinerators.

Commenter (0517) would like to have either a total HAP metals MACT floor or individual metal emissions limits as an alternative to using PM CEMS. The commenter would like the EPA to develop eith er a total HAP metals MACT floor or individual HAP metal emissions limits for existing and new Portland cement facilities similar to the rule promulgated for the Electric Generating Utilities MACT rule. The commenter states that data gathered during the 19 98 rule making process could be used to develop this floor. The commenter believes that this gives plant operators additional control options and flexibility in achieving emissions limits and that the direct monitoring of pollutants rather than a surrogate (PM) will contribute to a better understanding of the health effects associated with each metal. The commenter also believes that70 having these alternative non

- Hg metal emissions standards will contribute to utilization of multi

metals CEMS which represent the highest level of monitoring for these sources (i.e. directly monitoring the HAP pollutant of concern on a continuous basis).

Response: EPA agrees in principle with the commenter’s position that the direct measurement of individual metal HAP would be p referable to measuring PM as a surrogate. However, we do not have sufficient metal HAP emissions data nor did the commenter provide data sufficient to allow EPA to consider either individual metal HAP limits and monitoring.

The EPA currently has no per for mance specification available to certify a Multi

- Metals CEMS. The MATS rule allows for (and mentions in the preamble) a source to apply for a multi metals CEM as an alternative monitoring approach and, if accepted, use of such is approved. In that light w e are also changing the requirements of the rule to allow for the use of PM CEMS with the provision that an alternate monitoring application which specifies a three

- hour average compliance period be approved. At this time, EPA has no data on the ability o f an independent standard to certify the accuracy of a PM CEMS or multi

- metal CEMS.

As discussed in section V.A.2 of the preamble to the proposed rule, the EPA allows for the use of beta gauge PM monitoring technology as a PM CPMS monitor. The EPA does n ot see beta gauge PM CEMS or multi metals CEMS as a panacea to resolve issues with PS

- 11, low PM concentrations, and variable PM characteristics of p ortland c ement plants that were noted in the preamble to the proposed rule.



### 4

. 10 PM: Bag Leak Detection as a P arametric Monitor

One commenter (0506) questioned the need for both a PM CPMS and a bag leak detection system.

Commenter (0495) states that as an alternative to the exceedingly expensive particulate matter CEMS installation EPA proposes, EPA should allow the installation and operation of bag leak detection systems. The bag leak detection system provides ongoing monitoring of the bag house component performance and provides for continuous compliance demonstration in a manner similar to PM CPMS and at a much lower cost than PM CPMS.

One commenter (0251) stated that it is unclear what kinds of PM CPMS equipment are acceptable. Since the proposed rule indicates that PM CPMS output may be expressed as mA, stack concentration or other raw data signal, can an exis ting stack opacity monitor or an in

- stack bag leak detector system (BLDS) be used as a PM CPMS? The proposed rule has the following language: "Current PM CPMS have an operating principle based on in

- stack or extractive light71 scatter, light scintillation or beta attenuation". Is this intended to mean that only these technologies qualify as PM CPMS under this rule?

Response: The proposed rule did not require affected sources to be monitored by both CPMS and a bag leak detection system. A CPMS is required on k iln stacks and alkali bypass stacks. A BLDS is an option for raw material dryers and finish mills. Where a PM CPMS is required for continuous PM monitoring, a BLDS is not required by the rule.

The EPA does not have information that shows BLDS are capable o f the sensitivity and stability necessary to operate as a PM CPMS. As such, we have not included BLDS in our list of available PM CPMS technologies.



### 4

. 11 PM: Four CPMS Deviations in 12 Months Does Not Equate to a Violation

Commenter 0495 stated that the pres umption that more than four PM CPMS deviations in a 12

- month operation period is a violation of PM standards is unreasonable. The commenter indicates that the proposed reconsideration provides that “PM CPMS deviations leading to more than four required per formance tests in a 12

- month process operating period [are] presumed a violation of this standard.” 77 Fed. Reg. 42,377.

The only reason EPA provides for this is that EPA “believe[s]” that there should be few deviations from the limit because “the site

- sp ecific CPMS limit could represent an emissions level higher than the proposed numerical emissions limit since the PM CPMS operating limit corresponds to the highest of the three runs collected during the Method 5 performance test [and] the PM CPMS operatin g limit reflects a 30

- day average that should represent an actual emissions level lower than the three test run numerical emissions limit since variability is mitigated over time.”

The commenter states that a belief alone is not a defensible basis for pres uming a violation. Deviations are not violations, and EPA clearly distinguishes between these events. 77 Fed. Reg. 42,398 (“A deviation is not always a violation”). If EPA has data showing that a facility frequently deviates in ways that lead to emissions increases, EPA would likely not have difficulty supporting a violation. Instead, what EPA seeks to do here is skip collecting actual data and instead shift the burden of proof to facilities. And the only way for facilities to rebut the presumption is with “information about process and control device operations in addition to the [test results].” EPA should not shift its burden of evidentiary proof to facilities. EPA should not finalize this presumption.

Response: See Preamble section V.A.2. As noted there , first, EPA is not using the term72 “deviation” in the final rule, in part because it created the type of confusion reflected in this

com m ent. The basis of the rule establishing that four calendar year exceedances of the CPMS monitoring limit is presumptiv ely a violation of the emission standard are: a) the CPMS measurements show an increase in PM emissions (see response unit 4.1 above); b) the parametric limit is established as a 30

- day average (rolling), so that short

- term increases and decreases will be averaged out over the 30

- days of measurements (see, e.g. 75 FR 54988/2

- 3 explaining why variability is dampened as the number of measurements increases) 6 ; c) EPA has built a scaling factor into the rule to accommodate those situations where a measured incr ease in the PM signal would not indicate that emissions exceed the level of the stack

- based standard.

4

. 12 PM: Clinker Production Monitoring

Comment : Commenter (0505

- Appendix G) stated PM compliance is based on stack tests. PM parametric monitoring does not require hourly clinker production monitoring. The commenter recommends that EPA remove “PM” from this sentence in 63.1350(d) to read: If you are subject to an emissions limitation on PM or mercury emissions (lb/ton clinker), you must...

Response : The EPA agr ees with the commenter in that PM CPMS is based on an operating limit and not an emissions limit and has revised the language in 63.1350(d)

.

4

. 13 PM: Comment Regarding 63.1343(b)

Comment : Commenter (0505

- Appendix G) asked why can’t the equation in 63.1 343(b) (PM alt = (0.0060 x 1.65)(Qk + Qg + Qab + Qcm)/7000) just use the flow measured at the main stack for the CEMS. The basis for flow determination is not defined. It is unclear how the facility

- specific PM limit is to be applied (i.e. on a flow capaci ty basis or on an actual flow basis.) If an actual flow basis is used, does the alternate PM need to be periodically revised? The issue of flow basis was also asked in Dec 2010, but it was not addressed by EPA. Commenter recommends that EPA simplify the eq uation by just using the total stack flow. Q should be main stack flow capacity, not what was measured during the stack test. Update equation variable descriptions to read “exhaust flow capacity of...” i.e. Qk = The exhaust flow capacity of the kiln (dscf/to n raw feed).

Response : The calculation referenced by the commenter is correct as stands. The requirement in this rule section is for combined PM emissions from kilns with an alkali bypass stack and/or inline coal mill stack. As such, the flow from each, and apportioned PM concentration from each, is included in the calculation. As this is an alternate PM emission limit compliance for kilns with these configurations must be demonstrated at each performance test.

6 Wha t is being averaged are milliamp signals from the CPMS , which are expressed numerically.73 

### 4

. 14 PM: Comment Regarding 60.64(b)(1)(ii), 63. 1349(b)(1)(i)(B), and 63.1350(b)(1)

Commenter (0505

- Appendix G) stated that Pg 44 of pre

- publication preamble says 2

- hr runs. They assume that preamble text is a typo. Same in published preamble

– see 77 FR 42376, 1st column, 2nd paragraph

. This comment is in reference to the following requirement: record all hourly average output values from the PM CPMS for periods corresponding to the test runs (e.g. three 1

- hr average PM CPMS output values for three 1

- hr test runs). Method 5 tests. [60.64(b)(1)(ii), 6 3.1349(b)(1)(i)(B), and 63.1350(b)(1)]

. The commenter recommends that EPA allow additional test runs or longer test runs for setting operating parameters like allowed for Alternate THC limit. The commenter provided a recommended change to 63.1349(b)(1)(ii)

.

Response: The EPA requires minimum test volume for PM in places where test runs longer than one hour are likely necessary, though we do not require that this is the maximum volume or sampling time. We recognize the tester in the field as the ultimate det ermination of sample volume and/or duration as the onus is on them to show detection with the test method, and this is generally accomplished with a longer test run. While longer test runs may resolve many detection limit issues, an increased number of te st runs is not allowable for compliance determination which is always based on three test runs.

4

. 15 PM: Co mment Regarding 60.64(b)(1)(iii) and63.1349(b)(1)(i)(C)

Commenter (0505

- A ppendix G) asked "whether it is the 1

- hr average recorded during a 1

- hr
test run or is it in any 60 consecutive minutes during stack testing (e.g. last 20 minutes during run 1 and first 40 minutes during run 2) if they give the highest 1

- hr average? If runs longer than 1

- hour are allowed, then the average CPMS output value for the run should be used. This comment is in reference to the following requirement: operating limit is the highest 1

- hour average PM CPMS output value recorded during the performance test. New limit established after each performance test. [60.64(b)(1)(iii) and 63.1349(b)(1)(i)(C)].

Commenter recommends that EPA change the requirement to the “highest PM CPMS output” corresponding for run (regardless of the duration of the run) demonstrating compliance with PM standard. Allow testing over range of conditions or P M levels as an option. Provide protection from enforcement for a run exceeding the PM limit during test like PM CEMS calibration. The commenter recommends that EPA change text to: “Determine your operating limit as the highest 1

- hr average PM CPMS output v alue corresponding to a test run recorded during the performance test.”

Response: The EPA has modified the PM CPMS operating limit procedure in the final rule. The source must now use the average of all PM CPMS values recorded that correspond with the thr ee compliance test runs when setting their site

- specific operating limit. The source must also74 correlate these data with the average of all three PM compliance tests, as this is the number representing compliance determination.

4

. 16 PM: Comment Regarding 63.1 350(b)(1)(iii)

Commenter (0505

- Appendix G) stated a “deviation” could be a lower value, which may not be a concern. What is a “process” operating day? Why not specify that the average is only a deviation if it is 10% greater than the limit like is done for the alternate THC limit?

Commenter recommends that EPA clarify that a deviation only occurs if the 30

- day average of the operating parameter exceeds the operating limit by 10%. Change text to: (iii) For any exceedance of the 30 process operating day P M CPMS average value...

Response: The E PA is not including the term “deviation” in the final rule. Moreover

, th e EPA disagrees with the commenter and is retaining the definition of PM CPMS in the final rule. In evaluating PM CPMS the EPA recognizes that th is is not an instrument calibrated to known standards whereas a THC monitor functioning as a parametric organic HAP monitor with the alternate THC standard is operating within a known, calibrated, range. As such, we are protective of the emission limit an d allow a very limited confidence to operations that would carry average measurements above the operating limit . For more discussion of this see the PM CPMS scaling discussion in the Preamble, Section V.A.

4

. 17 PM: Comment Regarding 63.1350(b)(1)(iv)

Commen ter (0505

- Appendix G) stated Pg 51 of the pre

- publication preamble says this is rebuttable, but the basis for rebuttal is not in the rule."

Commenter recommends that EPA add basis for rebuttal rule. Add text: The source may rebut the presumption that th e PM CPMS deviations led to a violation by submitting information about process and control device operations in addition to Method 5 performance test results.

Response: EPA is not adding this language to the rule to avoid confusion that this might be th e only way a source could rebut the presumption. We have, however, added this language to the preamble to the final rule as an example of how a source could rebut the presumption.75 4

. 18 PM: Comment Regarding 63. 1349 (b)(1)(ii) and (iv)

Commenter (0505

- Appe ndix G) stated "Why is there a minimum value? This would support longer runs."

This comment is in reference to the following requirement: use Method 5 for 3 runs under highest load or capacity reasonably expected to occur. Min sample vol of 2 dscm for new sources and 1 dscm for existing sources. Calculate the average results from the 3 runs. Separate performance tests for RM on and RM off. [63. 1349 (b)(1)(ii) and (iv)]

. ( Commenter mistakenly identified the affected section as 63.1350. )

Commenter recommends that text be changed to “at least three test runs” and allow testing over range of conditions or PM levels as option. Include a provision to allow test values above the PM limit while establishing parameters for CPMS. Change to “For each performance test, conduct at least three separate runs under the conditions...”

Response: The EPA bases compliance with the emission standard on three test runs, but also recognizes that sources may wish to assess PM variability during the testing and so we have allowed for t he use of Method 5I in the final rule, which inherently provides for twice the emission data in three test runs. Method 5I specifies dual sample analysis, which provides for more emission test data (six data points from three test runs) and thereby provid es more information with which to characterize emissions variability. Additionally, s ources and their testers always have the option of conducting longer emission tests if this is needed to resolve detection issues.

4

. 19 PM: Comment Regarding 63.1350(b)(2)

Co mmenter (0505

- Appendix G) stated that this is confusing

– there is no continuous determination of an hourly kiln PM emission rate. Deviation from the flow limit could be higher or lower than the limit established. Is the deviation a 30

- day rolling averag e?

This comment is in reference to the following requirement for alkali bypass stack: Continuous gas flow measurement and annual Method 5 test. Use emission factor and gas flow to determine continuous emissions. Sum with hourly kiln PM emissions to determ ine 30

- day rolling average. Or set a maximum gas flow rate for alkali bypass during annual Method 5 test and continuously monitor the gas flow rate. If there is a deviation of more than 10% you must retest the kiln and bypass. [63.1350(b)(2)]

.76 Commenter st ates that the gas flow rate as an operating parameter is the only way this works. Commenter recommended that EPA clarify that a deviation is only if the 30

- day average of the operating parameter exceeds the operating limit. Allow for 10% exceedance. Change 63.1350(b)(2)(c) to “...If there is a deviation an exceedance of the monitored flow rate...”

Response: The change to PM CPMS monitoring from the main stack requires a change to this section, and the rule language has been modified appropriately. Flow apporti onment is not required to demonstrate compliance with the PM operating limit, though it will be required to demonstrate compliance with other pollutant concentrations (e.g. mercury). PM CPMS monitoring will demonstrate compliance with an operating limit e stablished during PM performance testing of all emission points. The term “deviation” is not used in the final rule.



### 4

. 20 Hydrogen Chloride ( HCl ): General Support for Proposed Standard

One commenter (0505) stated they support EPA‘s proposal not to require co ntinuous monitoring for HCl by facilities equipped with dry sorbent control systems.

Two commenters (0475, 0506) supported EPA’s proposal to allow continuous monitoring of SO 2 as a surrogate for continuous monitoring of HCl control device parameters.

Comm enter (0475) also supports EPA’s proposal to allow HCl testing every 30 months to confirm the appropriateness of using SO 2 monit oring in place of HCl monitoring. The commenter also supports the proposed use of the highest 1

- hour average recorded during th e HCl performance test as a surrogate for compliance with the HCl emission standard.

Response: EPA has noted the commenters’ support for the compliance flexibilities allowed by the amendments.



### 4

. 21 HCl: Opposition to HCl CEMS and PS 15

Two commenters (050 5, 0506) stated that EPA should remove references to Performance Specification (PS) 15 for continuous monitoring of HCl because it is impractical and will be replaced by a more robust contemporary HCl performance specification currently in preliminary draf t form and still under development by EPA and, in part, the subject of industry field evaluations. Considerable additional technical work remains to be done to determine appropriate specifications and test procedures, to develop and validate traceable cali bration gas standards, and to validate HCl CEMS which are still under development and not yet77 demonstrated to meet draft specifications. According to the commenter, PS 15 is a generalized “FTIR

- based” CEMS performance specification and does not include the provisions for accurate measurement of HCl and will be replaced by a technology neutral and HCl

- specific performance specification. According to the commenter, they had submitted comments on PS

15 in response to EPA’s previous subpart LLL proposal and att ached a copy of those comments (Appendix E to these comments) to their current submittal. The commenter presented those comments as follows:

1) PS 15 is not workable for the cement industry and EPA concurred with this comment.

2) EPA is currently workin g on an HCl Performance Specification (PS

- 18) that is not technology specific. (PS

- 15 specifies use of FTIR CEMS only.)

3) Work is being done by both industry and EPA in HCl CEMS evaluations in support of this new performance specification.

a. Prototyp e and currently available HCl CEMS are being evaluated at cement kilns to establish limits of detection for these systems,

b. Instrument manufacturers of numerous technologies are working on means to improve performance for low concentration HCl measurem ents on a continuous basis,

c. Sampling system designers are undertaking measures to reduce adverse particulate loading effects on HCl measurements,

d. Gas manufacturers are undertaking means to generate known accuracy low concentration gas standards i n the absence of NIST Traceable standards,

e. NIST is expected to begin working on HCl calibration gas standardization,

f. EPA ORD is conducting laboratory studies on HCl CEMs technology and calibration standards and these results are to be used in the development of the new EPA HCl Performance Specification,

g. Numerous stakeholder conference calls and meetings have been held to discuss topics relevant to HCl continuous monitoring as it applies to the EPA draft performance78 specification.

Response:

. EPA did not propose, reconsider, or otherwise reopen the issue of the Performance Specification for HCl CEMS in this proceeding. Moreover, PS

- 15 is based on reference Method 321 which has been shown to measure accurately over the range of operating condi tions and HCl concentrations expected for facilities that are in compliance with this standard. However, we note that the EPA is on the verge of proposing a technology independent Performance Specification for HCl monitoring (which has taken years to deve lop) which (if finalized) will provide facilities with an additional option including the ability to use technologies other than FTIR as HCl CEMS. If facilities believe it would be preferable to use an alternative monitoring method for the HCl standard , they may submit for approval an alternative test method request under 63. 7 (f) to use an alternative approach to monitoring HCl to demonstrate compliance.

Comment: One commenter (0506) stated that if the Agency decides to requ ire these CEMs, there is a better interim solution than PS 15. EPA has already approved two preliminary

, Other Test Methods (OTM) for HCl CEMs. These are posted at www.epa.gov/ttnemc01/prelim.html as OTM 22 and 23. The commenter believes that it makes more sense to temporarily use a preliminary test method already approved for HCl CEMs than to use an already promulgated performance specification that may not apply. The commenter suggested that EPA modify the final rule to allow the use of OTM 22 and 23 instead of PS 15.

Response: Oth er Test Methods (OTM 22 and 23) were provided on our website for evaluation and/or use by the stakeholder community and to encourage development of field test data supporting the procedures described in these methods. Significant improvements and addition s to these OTM procedures are necessary before they will meet EPA’s HCl CEMS performance specification requirements. EPA’s efforts to prepare and distribute a technology neutral Performance Specification embraces the key components of OTM 22 and 23. If a facility manager believes that there is an alternative procedure that can better meet the HCl compliance monitoring requirements in this rule, they always have the option to submit it as an alternative test method under 63. 7 (f) as previously mentioned.

Comment : One commenter (0505) stated that traceable HCl calibration standards of known quality are not available. Currently, there are two gas vendors who produce manufacturer

certified HCl standards. No EPA or NIST Traceable standards exist. The lowest available concentration levels are 10 ppm as a commercial product with a 5 ppm “under development” standard available for special projects. Analysis accuracy of these standards is claimed to be ±5%. This corresponds to ±0.5 ppm for the 10 ppm calibration g as standard. Clearly this is still a problem as the Subpart LLL standard is 3 ppm HCl dry at 7 percent O2. The actual as

measured concentration on a wet basis and at the stack O2 concentration equivalent to the emission standard is about 2 to 2.5 ppm. The uncertainty of the calibration gas standards is the79 same as the calibration error and calibration drift specifications for a measurement system with a 10 ppm span. The general provisions of Part 63 require adjustment of the monitor when the zero or upscale calibration drift exceeds two times the drift limit, which is ±1.0 ppm (about 50 percent of the Subpart LLL emission limit).

According to the commenter, stakeholder participants have stated that the use of dry compressed calibration gases will be unaccep ta ble, due to the length of time such gases must be injected; instability in the compressed gas mixtures or adsorption in the regulators and deliver system; and because of the strong adsorption of dry HCl mixtures on Teflon tubing followed by desorption wh en wet gas is reintroduced. These phenomena have been observed in field trials. EPA is investigating a prototype system that actively humidifies the calibration gas mixtures and is also exploring the use of gas generators which create calibration standards from evaporation on known liquid solutions and quantitatively dilution similar to systems used by some Hg CEMS to produce HgCl2 calibration standards.

The commenter stated that after the type of calibration standard is determined, along with its associat ed limitations, EPA will either need to develop and publish interim traceability protocols or revise the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” EPA 600/R

- 12/531 (May 2012).

According to the commenter, the above activities will take considerable time and the outcome cannot be predicted at this time. HCl CEMS monitoring requirements should be “reserved” until (1) reliable calibration standards of know accuracy and precision are available, (2) HCl CEMS perfor mance specifications and quality assurance procedures are developed, (3) commercially available CEMS are demonstrated to be capable of meeting the requirements, and (4) EPA completes rulemaking for these requirements and promulgates appropriate regulations

.

Response: EPA recognizes that NIST traceable HCl gas standards are not yet available, but we have been coordinating with NIST and the gas vendors as well as working on other options (gas generation techniques) to ensure that viable options will be avail able in time for the compliance date. In the interim, facilities can purchase certified gas standards for use in selecting and installing monitoring systems. EPA disagrees with the fundamental premise that a facility is limited to the maximum error implici t in zero or calibration drift that exceeds two times the drift limit. While the general provisions of Part 63 require adjustment of the monitor when the zero or upscale calibration drift exceeds two times the drift limit, there is no restriction on more f requent zero drift adjustment up to a frequency of once per day. In addition, measurement at ±1.0 ppm is on the order of three times lower than the HCl emission standard in Subpart LLL. Therefore, even using a 10 ppm calibration standard as the span, meas urements are possible significantly below the standard; a lower span of 5 ppm would allow for additional accuracy. EPA’s advice to facilities concerned with making more accurate measurements below 1 ppm is to identify and use the necessary quality and sen sitivity in instruments that measure at lower detection limits.80 

### 4

. 22 HCl: Comment on Pending Performance Specifications

One commenter (0505) stated that HCl CEMS Performance Specifications are still under development and many technical issues remain to be re solved prior to proposal (expected late 2012 or early 2013) and promulgation in 2013 or 2014 according to EPA representatives. EPA has undertaken a stakeholder participation effort to discuss fundamental issues affecting the development of appropriate HCl CEMS performance specifications. The commenter stated that EPA has circulated an initial draft and a revised “work in progress draft” (dated April 4, 2012) but many issues remain and need to be resolved. The commenter submitted comments in response to the most recent draft on April 22, 2012, (see Appendix E to these comments) and also met with EPA representatives on May 7, 2012 to discuss the issues and laboratory research efforts EPA has planned for the summer 2012 to address some of these issues.

Accordi ng to the commenter, one cement company has undertaken a field evaluation involving the concurrent testing of four HCl CEMS selected as promising candidates and installed at a contemporary cement kiln system, which is still ongoing. These projects are expe cted to provide essential technical insight and resolution of some of the critical issues central to the development of HCl CEMS performance specifications. Without the information and insights gained from these and other studies, the development of HCl CE MS performance specifications is based purely on speculation and the uncorroborated claims of some vendors. Until the work is completed, it is not possible to develop achievable technical specifications, performance test procedures, or quality assurance pr ocedures.

Response: The subject of this comment is not within the scope of this rulemaking; no response is
necessary.



### 4

. 23 HCl: On

- going Quality Assurance Requirements are Premature

One commenter (0505) stated that the requirements for on

- going quality assura nce of HCl CEMS have yet to be developed. According to the commenter, the proposed requirements for quality assurance at § 63.1350(l)(1) are a placeholder at the current time, because no draft on

going QA procedures have been circulated to stakeholders let alone finalized. Because the frequency and achievable criteria for on

- going HCl monitoring must be based on the performance of actual CEMS meeting the performance specification requirements, and in view of the fact that these requirements are evolving, it is not yet possible to collect the necessary field data to serve as the basis for QA requirements. It is likely that neither Method 321 (nor any other test method) can be used for relative accuracy testing because the effluent HCl concentrations will be b elow the “limit of detection” (LOD) of both the test method and the installed CEMS. Instead, dramatically different “dynamic spiking” procedures will be needed for periodic accuracy assessment for initial certification and on

- going QA. Dynamic spiking
proc edures have not been developed and included in any promulgated EPA regulations for any81 CEMS under any regulation.

The commenter stated that EPA‘s request for comments on this provision is therefore premature and should be deferred until there is something of substance to review.

Response: The subject of this comment is not within the scope of this rulemaking; no response is necessary.



### 4

. 24 HCl: Span Calibration Requirements

One commenter (0505) stated that the proposed HCl CEMS span requirements in §63.1350 (l)(1)(i) (1) are not appropriate for HCl CEMS, (2) are set at too low a level for compressed gas calibration standards, and (3) require revision to avoid confusion in the implementation at cement kilns. According to the commenter, the proposed requiremen ts would result in a span value of 5 ppm for cement kilns. The span value cannot be lower than 10 ppm for any kiln system, otherwise the calibration error, linearity, and calibration drift specifications are overly restrictive and unachievable. In addition , compressed calibration standards are certainly not available from any supplier to perform linearity tests and cylinder gas audits for CEMS with spans less than 10 ppm.

According to the commenter, the proposed requirements are inconsistent with the HCl

co ncentrations seen at many cement kilns. Based on area source tests, many kiln systems with in

line raw mills have HCl concentrations at or below 1 ppm for mill on operations, and mill off HCl concentrations of 5 to 15 ppm. Some kiln systems will be able to comply with a 30

- day rolling average 3 ppm HCl concentration with mill off HCl concentrations approaching 30 ppm. HCl CEMS will need to quantify accurately HCl concentrations at both high and low levels. It may become necessary to apply different accuracy , calibration error, and drift specifications for the high and low levels. In current preliminary drafts, EPA has simply chosen to specify these parameters as a “percentage of span.” This may need to be replaced by tolerances that vary with concentration a nd also provide an absolute specification (e.g., ± 0.5 ppm) for low levels. Preliminary work at some kilns suggests that HCl measurement range of 0

- 30 ppm HCl is appropriate.

Further, the phrase “approximately two times the emissions standard,” as used in the cited regulatory text, is confusing and should be changed to say “concentration equivalent to the emission standard.” The procedure to calculate this value must take into account the measurement basis of the CEMS, the average or typical effluent moist ure content, and the average or typical oxygen concentration. If EPA does not provide guidance for the selection of these values, then it should be sufficient that the source operators use their own judgment and that assumptions and calculations are docume nted in site

- specific monitoring plans and82 associated records.

Response: EPA appreciates the comment that the CEMS span and uncertainties of the data at low concentrations are interrelated and a limiting factor for measurement accuracy. However we disagre e with the commenter’s conclusion. As previously noted, EPA acknowledges that NIST traceable HCl gas standards are not yet available, but we have been coordinating with NIST and the gas vendors as well as working on other options (gas generation technique s) to ensure that viable options will be available in time for the compliance date. We also know that gas vendors are working to provide qualified gas standards at lower concentrations at least down to 2ppm. Ongoing QC requirements in our performance speci fications allow a zero drift of 10% of span before data are invalidated. CEMS operating at 10 ppm span should be able to measure accurately down to an HCl gas concentration of approximately 1 ppm, which is approximately one third of the emission limit. A t 5 ppm span an HCl CEMS system is able to quantify HCl gas concentration down to 0.5 ppm which corresponds to approximately one sixth of the emission limit. As previously explained, EPA does not agree that a facility must always be limited by the maximum error allowed by calibration drift specifications

, as drift may be adjusted up to once per day.

EPA has designed the HCl CEMS span requirements such that measurements during normal “mill on” operations will typically be made within the limits of the span w hile much of the “mill off” operations measurements will be ‘above span’. The traditional span

- based accuracy, calibration error, and drift specifications will serve to quality assure the within span measurements while the ‘above span calibration’ require ments developed for this rule will serve to quality assure the measurements made ‘above span’.

EPA agrees with the commenter regarding the wording of the paragraph specifying the HCl CEMS span and has added language saying “.....concentration equivalent to... .the emissions standard...” as well as clarified that engineering judgment may be used in determining the span and that related assumptions and calculations must be documented in site

- specific monitoring plans and associated records.



### 4

. 25 HCl: Above Span Calibra tion Requirements

One commenter (0505) stated that the proposed Subpart LLL “above span” HCl CEMS QA requirements and three options presented in §63.1350(l)(1)(ii) (A), (B) and (C) are not appropriate and should be substantially revised. These sections ar e simply a repetition of the similar, new proposed requirements for Hg CEMS, but are not applicable to HCl. Hg CEMS systems that have been demonstrated to meet PS12A requirements (e.g., Thermo and Tekran models) are both dilution extractive systems and bot h have analysis systems which have been demonstrated to be linear over very wide analytical ranges. These Hg CEMS are also operated on elemental Hg calibration gas generators and either evaporative oxidized gas generators or special systems that quantitati vely convert elemental Hg to oxidized Hg. The elemental Hg generators are believed (but not yet demonstrated) to have the dynamic range capability and83 flexibility to do the normal level calibration checks and the “above span calibration checks.” However, t he above characteristics of the Hg CEMS and their associated calibration gas generators are not applicable to HCl CEMS which utilize very different technologies and suffer different challenges.

There is no technical basis to believe that HCl CEMS could me et the proposed requirements, and will likely not provide data of known quality if challenged using the proposed above span calibration requirements.

HCl CEMS will need to quantify accurately HCl concentrations at both high and low levels in order to moni tor compliance with the HCl standard and the site

- specific measurement range will need to be determined to include all concentrations that will be encountered. The constraints on measurement range, and specification of “span value” should not make this mor e complicated or difficult. In addition, the traditional concept of measurement range based on analog outputs is obsolete. It should be understood that the measurement range of most FTIR analyzers and other sophisticated measurement devices is dependent on the fundamental design. Regardless of any regulatory specification, this does not change. The sensitivity, resolution, and limitation of detection of these systems are unaffected by external regulatory specifications, provided that data are acquired digit ally from these measurement systems (rather than through analog outputs such as 4

- 20 ma circuits.)

EPA‘s proposal of the “above span” HCl CEMS QA requirements is premature, lacks credible basis, cannot be demonstrated and should be withdrawn until relevan t technical investigations are completed. HCl CEMS monitoring requirements should be “reserved” until (1) reliable calibration standards of know accuracy and precision are available, (2) HCl CEMS performance specifications and quality assurance procedures are developed, (3) commercially available CEMS are demonstrated to be capable of meeting the requirements, and (4) EPA completes rulemaking for these requirements and promulgates appropriate regulations.

Response: The EPA disagrees with the commenter’s co ntention that HCl CEMS measurements of standard concentrations do not respond in a linear way similar to Hg CEMS measurement technologies. There is no technical basis to believe that HCl CEMS could not meet the requirements and will likely not provide data of known quality if challenged using the proposed ‘above span’ calibration requirements. The optical technologies that are being employed in the commercially available HCl CEMS that we are seeing are based on fundamental spectroscopic laws that support a linear response to HCl concentration. Standard optical spectra over a range of concentrations responsive to this standard are available that should be used to confirm the performance of a HCl CEMS. In responding to the comments regarding the ‘above span’ calibration requirements for Hg CEMS, the EPA developed simpler, more flexible requirements to accomplish ‘above span’ calibrations that are also applicable to HCl CEMS. These revised requirements allow for the ‘above span’ calibrations to be conducted e ither before or following ‘above span’ measurements and offer wide latitude in calibration gas levels (50 to 150 percent of84 measured value) such that facilities can reasonably be expected to have calibration gases at appropriate levels on hand. The comment ers concerns with availability of reliable calibration standards of know n accuracy and precision and new HCl CEMS performance specifications and quality assurance procedures are addressed in prior response to comments

.



### 4

. 26 HCl: Opposition to Elimination of C EMs for Dry Scrubbers

One commenter (0508) stated that EPA’s rationale for allowing sources using wet scrubbers to comply with the HCl standards via periodic compliance tests rather than CEMs was that wet scrubbers are so efficient that that periodic moni toring rather than CEMS provide sufficient assurance of compliance. The commenter stated that dry scrubbers, however, are less efficient that wet scrubbers. EPA does not claim that they provide the sufficient assurance of compliance such that CEMS are not necessary. Indeed, sources equipped with dry scrubbers could nonetheless violate standards depending on whether the scrubbers are being operated efficiently and what the input of chlorine to the kiln is.

Response : The EPA disagrees with the commenter’s s tatement that dry scrubbers are not sufficiently efficient to assure that sources are in compliance with the HCl limits. As shown at proposal, dry scrubbers typically operate at greater than 95 percent removal efficiency. Coupled with the requirement to co ntinuously monitor lime injection rates, we believe allowing sources equipped with dry scrubbers to use periodic performance test and parametric monitoring is an appropriate option to an HCl CEMS. Furthermore, there will be continuous parametric monitorin g associated with the standard (in the form of SO2 monitoring, or (as just noted) monitoring of lime injection rate) so that there will in fact be continuous assurance that the scrubber system is operating efficiently at all times.



### 4

. 27 HCl: Opposition to SO 2 CEMS

One commenter (0508) stated that EPA’s proposal to allow plants to use SO2 CEMS instead of showing compliance with the HCl standard is unlawful. EPA must set standards for each hazardous air pollutant that cement plants emit, and cannot meet that o bligation by setting standards for other pollutants instead, unless the agency establishes a valid surrogacy relationship.

The commenter stated that EPA’s claim that “pilot scale tests” support the use of SO2 as a surrogate where wet or dry scrubbers are used is not relevant to the test for a valid surrogate. Indeed, EPA does not even mention the established test for demonstrating a valid surrogacy relationship, far less show that it has been met. In particular, EPA does not claim that HCl is invariably pr esent in SO2, not that the agency could make any such claim, which would be obviously false. Likewise, EPA does not claim that methods to reduce SO2 are the only means of85 reducing HCl, which can be reduced through the use of fuels and feed materials with l ower chlorine levels as well as the use of control technologies that reduce SO2 emissions. Accordingly, any claim that SO2 is a valid surrogate for HCl would be unlawful and arbitrary.

The commenter stated that EPA would allow plants to set SO2 CEMS level s at “the highest 1 hour average recorded during the HCl performance test” effectively making that SO2 level the source’s only compliance obligation with respect to HCl. Even if the source subsequently stayed below that SO2 level, it would not necessarily comply with the HCl standard. First, because the “highest” recorded HCl level during a compliance test would not necessarily comply with the HCl standard, EPA is effectively proposing to allow sources to meet an SO2 standard that is less stringent than the promulgated HCl standard. Thus, EPA is effectively proposing to allow sources to exceed emission standards that were set at the statutory minimum stringency. Second, even if the “highest” HCl level were below the standard, a source could subsequently oper ate in compliance with the associated SO2 level but out of compliance with the HCl standard if, for example, the level of chlorine in a source’s fuel or feed increased.

Response: As we stated at proposal, the use of SO2 CEMS is not intended to demonstrate compliance with the HCl limit. Rather, by establishing an SO2 level during an HCl performance test and then monitoring SO2 continuously, the source can demonstrate that the wet or dry scrubber is performing properly. Thus, SO2 is a monitored parameter to a ssure proper scrubber operation (see previous comment response).

4

. 28 HCl: Comment Regarding Part 63 Appendix A

Commenter (0505

- Appendix G) stated that EPA has not provided a definition of how to calculate or a procedure to determine the quantification r ange, particularly in the presence of water vapor and as effected by the sampling train/PM filter. This was asked in Dec 2010 and not addressed by EPA. Current field test project by industry and lab studies by EPA should result in procedure for honest dete rmination of Limitation of Detection for both Method 321 and HCl CEMS. Otherwise EPA will revert to revised Method 301 definitions. EPA should use ASTM methodology.

This comment is in reference to the following requirement: EPA has specified a “typical low er quantification range” of 0.1

– 1 ppm for Method 321. [Part 63 Appendix A]

Commenter recommends that EPA delete “typical lower quantification range, revise Method 321 and include DL and PQL determination procedures, performance based.

Response: The EPA plans to include an LOD procedure in proposal of PS 18 and will make note to consider a performance based approach to LOD/MDL in future revisions to M321.86 4

. 29 HCl: Comment Regarding 63.1349(b)(6)(i)(B) and 63.1350(1)(2) and (m)(5)(7) and (8)

Commenter (0505

- Appendix G) asked they are to measure and record the parameters for the 24

- hour day on which the three 1

- hour tests were conducted. For sorbent, it says 24

- hr average injection rate and average injection rate for each sampling run.

Wet scrubbers are high maintenance equipment and instrumentation reliability is an ongoing issue due to exposure to the slurry chemistry environment.

Flow rate monitors: Compliance should be achievable with routine QA/QC and PM practices

Differential pressure: Maintenance/relia bility will be an ongoing issue due to the slurry chemistry environment; abnormal differential pressure variances will likely occur from nozzle port build

- up and daily maintenance and cleaning of the injection nozzles.

PH Monitor: Appliance should be achie vable with QA/QC and PM practices

– Consider a density monitor as an alternative to a PH meter. In general, the SO2 CEMS is a better alternative to sustain compliance versus the wet scrubber CPMS method.”

This comment is in reference to the following requi rement: for wet scrubber or tray tower measure/record pressure drop and/or liquid flow rate and pH in intervals of no more than 15 minutes during the HCl test. Compute and record the 24

- hour average pressure drop, pH and average scrubber water flow rate fo r each sampling run in which the applicable emission limit is met. For a dry scrubber measure/record sorbent injection rate in intervals of no more than 15 minutes during the HCl test. Compute and record the 24

- hour average sorbent injection rate and

avera ge sorbent injection rate for each sampling run in which the applicable emission limit is met. [ 63.1349(b)(6)(i)(B) and 63.1350(1)(2) and (m)(5)(7) and (8)]

Commenter asks EPA to clarify how the operating limits are set for a wet or dry scrubber.

Fix ref erence in 63.1350(l)(2); (m)(8) does not exist

– should be (m)(9), (m)(5) and (m)(7) should be (m)(5) through (m)(7).

Change parameter measurement period to only during the 1

- hour tests.87 General comments 63.1349(b)(6)(i)(B): B) You must establish site spec ific parameter limits by using the CPMS required in 63.1350(l)(1). For a wet scrubber or tray tower, measure and record the pressure drop across the scrubber and/or effluent flow rate and pH in intervals of no more than 15 minutes during the HCl test. Comp ute and record the 24

- hr average pressure drop, pH, and average scrubber effluent liquid water flow rate for each sampling run in which the applicable emissions limit is set. For a dry scrubber, measure and record the sorbent injection rate in intervals of no more than 15 minutes during the HCl test. Compute and record the 24

- hr average sorbent injection rate and average sorbent injection rate for each sampling run in which the applicable emissions limit is met.

Response: We agree with the commenter that (m)(8) should be (m)(9) and we have revised the rule accordingly. Regarding wet scrubber monitoring requirements

, we have not opened the provisions of the rule covering wet scrubber parameter monitoring to reconsideration and therefore are not revising th em . However, the operating limits are listed in Section 1349(b)(6)(i) and we believe this language has provided adequate guidance on establishing operational parametric limits for wet and dry scrubbers

.

4

. 30 HCl: Comment Regarding 63.1348(a)(6)(iv), 63.1349(b )(6)(iii), and 63.1350(1)(3)

Commenter (0505

- Appendix G) asked "Is it the 1

- hr average recorded during a 1

- hr test run or is it any 60 consecutive minutes during stack testing (e.g. last 20 min during run 1 and first 40 minutes during run 2) if they giv e the highest 1

- hr average? Is the exceedance of the 1

- hr limit and SO2 reading above the limit or a 1

- hr average reading above the limit or a 30

- day rolling average above the limit?"

This comment is in reference to the following requirement: for wet/dry scrubber as an alternative to setting scrubber parameters, establish an operating level based on an SO2 CEMS. The operating limit will be the highest 1

- hr average recorded during the HCl stack test. If the 1

- hr operating limit is exceeded, must; within 48 hours conduct an inspection and take corrective action to return the SO2 emissions to within the operating limit; within 60 days (or normal re

- test date if earlier) conduct another HCl stack test and re

- establish the SO2 CEMS operating limit. [63.1348(a)(6 )(iv), 63.1349(b)(6)(iii), and 63.1350(1)(3)]

Commenter states that operating limits should be highest value recorded for any 60 minute period during the test and compliance should be based on a 30

- day rolling average exceeding the operating limit. Change 63.1349(b)(6)(iii): You must establish an SO2 operating limit equal to the highest 1

- hour average corresponding to a test run recorded during the HCl stack test. Change 63.1350(l)(3):...If the 30

- day rolling average SO2 levels increase above the 1

- hour

aver age SO2 operating limit established during your performance test, you must...88 Response: We have changed the procedure for setting the SO 2 pa rameter to the average of the SO 2 emissions measured during the entire test period. Exceedance of that parametric lim it occurs if the 30 day ro lling average of the SO2 emissio ns exceeds the operating limit. Therefore the comment above is moot.

Mercury (Hg): Span Value Requirements

One commenter (0505) stated that changes to the Hg CEMS span value requirements may be

u nnecessarily restrictive for some cement kiln systems. Further clarification of the associated calculation procedures is needed to avoid confusion in the implementation of these requirements. The commenter compared the currently proposed §63.1350(k)(1) wi th the previous promulgated language .

The commenter stated that first, the previous language on span included the phrase “at least” and thus, was a specification of the minimum span value. This is now replaced by a prescriptive requirement. In addition, the previous language required that the span value include the upper limit of the mercury measurement range during normal operation. For kiln systems with variable Hg concentrations during mill on operation (and kiln systems without in

- line raw mills) the new wording is potentially overly restrictive and inflexible for some sources.

For the reasons discussed above, the commenter stated that they believe the foregoing text needs to be revised to add the suggested the language show in bold underlined:

(1) The span value for any Hg CEMS must include the intended upper limit of the mercury concentration measurement range during normal ―mill on ‖ operation which may be exceeded during ―mill off ‖ operation or other short term conditions lasting less than 24 cons ecutive kiln operating hours. However, the span should be at least equivalent to You must use a span value for any Hg CEMS that represents the mercury concentration corresponding to approximately two times the emissions standard and it may be rounded to th e nearest multiple of 10 5 μg/m3 of total mercury or higher level if necessary to include Hg concentrations which occur (excluding concentrations during in

- line raw “mill off” operation). As specified in PS 12A, Section 6.1.1, the data recorder output rang e must include the full range of expected Hg concentration values which would include those expected during “mill off” conditions.

The revisions that the commenter proposed would address this, without undermining the objective EPA is seeking to achieve.

The language currently being proposed includes the phrase “at least” and thus was a specification of the minimum span value. The text would also require that the span value include the upper89 limit of the mercury measurement range during normal operation. F or kiln systems with variable Hg concentrations during mill on operation (and kiln systems without in

- line raw mills) the new wording is potentially, and unnecessarily, too restrictive for some sources. The revisions the commenter has proposed be made to t ext of this section would address this, without undermining the objective EPA is seeking to achieve.

The commenter stated that second, it is assumed that the concentration equivalent to the emission standard is determined on an “as measured basis.” In oth er words, that the concentration equivalent to the emission standard is determined on a wet basis for Hg CEMS providing wet basis measurements (including all dilution measurement systems), and is determined on a dry basis for Hg CEMS providing dry basis me asurements.

The commenter stated that third, values for the “normal,” “ typical,” or “maximum/minimum” clinker production rate, effluent flow rate, and in some cases effluent moisture content are needed for the calculation of the concentration equivalent t o the emission standard. If EPA does not provide guidance for the selection of these values, EPA should make clear that it is appropriate for the source operator to use his/her own judgment and that assumptions and calculations be documented in site

- specif ic monitoring plans and associated records.

Response: We agree with the commenter and revised proposed 63.1350(k)(1) so that the final rule reflects the commenter’s suggestion. We also agree that the assumptions and calculations needed to determine a mercu ry concentration corresponding to the emissions standard and other best engineering judgments necessary to set up the mercury monitoring systems should be documented in site

- specific monitoring plans and associated records, which is reflected in the final rule.



### 4

. 31 Hg: Opposition to Quality Assurance of Hg CEMS Data (Options 1 and 2)

One commenter (0505) stated that t wo of the options for quality assurance of Hg CEMS data for periods when the span value is exceeded may substantially increase apparent monitor downtime. Also, the different options are inconsistent as to the level of the daily ‘above span” calibration check and impose different acceptance criteria. Proposed §§ 63.1350(k)(2)(i) and (ii) provide options where a daily upscale calibration check at a “above span” high level is needed.

Under Option 1, the high level upscale check would define the measurement range because Performance Specification 12A, Section 7.1.3 requires that the high level value be 80 percent to 100 percent of the “span values” an d requires that this value be greater than any Hg concentration that is expected to be encountered. If actual concentrations exceed expectations, it would therefore be necessary to re

- span the CEMS and perhaps repeat part or all of the certification tests.90 Under Option 2, the high level upscale check is required to be between 50 percent and 85 percent of the highest hourly Hg concentration expected during mill off operation.

For Option 1, the PS12A requirements and Appendix F, Procedure 5 requirements wou ld apply and thus for the daily above span high level calibrations:

• Results exceeding ± 5% of high range span would exceed the elemental Hg measurement error specification or results exceeding ±10% of high range span would exceed the oxidized measurement e rror specification in PS 12A;

• Results exceeding ± 5% of high range span would exceed the 7

- day calibration drift specification in PS12A;

• Results exceeding ±10% of the high range span value would require adjustment to the monitor in Procedure 5;

• Results exceeding ±10% of the high range span value for five consecutive days or results exceeding ±20% on any day would render the Hg CEMS out of control (data invalid and monitor down time) according to Procedure 5.

In contrast for Option 2, the above span cali bration acceptance tolerance is ±20 percent of the certified gas concentration. The criteria for when an adjustment of the monitor is required (or would be needed) is not clear. It might be interpreted as ±(2x 20%) = ±40% of the certified gas concentratio n. Additionally, the time required to perform the above span high level upscale checks may be substantially longer than the time required for the routine daily calibration check at the normal concentrations. Additional time may also be required for the cal ibration gas generator to reach equilibrium, for the monitor to reach equilibrium at concentration much higher than normal operation (i.e., greater than 50 times the mill on concentration for some sources), to measure a stable response, and/or for the syst em to recover and accurately measure low level concentrations devoid of residual Hg from the high level calibration. This could certainly invalidate one hour of monitoring data each day. Because time spent performing QA activities is considered monitor dow ntime for EPA reporting purposes, the loss of one

- hour each day would reduce monitor availability to 95.8 percent before considering any other QA activities or monitoring issues. Achieving less than 90 percent monitor availability triggers special addition al reporting (see § 63.1354(b)(10)) and could trigger enforcement actions in accordance with EPA and/or state CEMS enforcement policies. Accordingly the commenter believes that, the proposed rule as currently creates a strong disincentive for sources to se lect either Option 1 or 2.

Furthermore, Option 1 would require additional calibration error and linearity checks for the91 initial certification and quarterly calibration gas audits for both elemental and oxidized Hg, thereby creating additional opportuniti es to fail to meet requirements and render the monitoring system “out

- of

- control,” again increasing downtime and reporting.

Finally, it is not apparent why EPA selected the “50 and 85% of the highest hourly Hg concentration expected during mill off operat ion” for the high range target under Option 2. Perhaps this is because choosing a higher value in conjunction with the allowed tolerance of ±20 percent of the certified gas concentration leads to a very loose requirement such that the monitoring data canno t be considered to have any reasonable level of known quality. Nevertheless, calibration checks up to 100 percent or perhaps even 120 percent of the highest hour Hg concentration should be allowed as the CEMS operator cannot forecast the actual concentrati ons that will be encountered. Based on limited available data at this time, we have observed variable “peak” Hg concentrations from one planned raw mill maintenance outage to the next at the same kiln system. The reasons for this are not known, but are exp ected to be site

specific. Until much more experience is gained, it will be difficult for Hg CEMS operators at cement plants to predict what concentration will be encountered during the “highest hour.”

If retained, Options 1 and 2 must both be revised to be consistent with each other regarding level of the check and acceptance criteria, and both options must apply the same explicit adjustment criteria.

Response: EPA notes that the second option for quality assuring Hg CEMS data when the span value is exce eded was provided in the rule for cases where a facility did not want to use a dual range Hg CEMS, but did desire to conduct daily 'above the span' calibration checks in anticipation of 'above the span' measurements, such as mill off operation or upsets. A fter considering the commenter’s concern with downtime caused by not meeting the calibration check acceptance criteria , we have combined the second option with the third option [ i.e., 63.1350(k)(1)(ii) with 63.1350(k)(1)(iii) in the proposed rule ] in the f inal rule . This revision allows above the span' calibration checks both in anticipation of and following 'above the span'
measurements

. The revised approach incorporates a normalization equation for cases where the calibration check acceptance criteria is not met , eliminating invalidated data and the resulting downtime. In combining these O ptions 2 and 3 , we have aligned the acceptance criteria between the two options and expanded the criteria for the ‘above span’ calibration gas from 50 to 85% to 50 to 15 0% of the highest hourly concentration measured during the period of measurements above span

. Option 1 to use a dual span monitoring approach remains for those facilities that may choose to use it.



### 4

. 32 Hg: Opposition to Cycle Time Test

Commenter (0517) state s that a s part of 40 CFR Parts 60 and 63 the EPA has required a cycle time test which specifies a CEMS response time to zero and upscale mercury standards. The proposed cycle time test criteria stipulates that the CEMS must reach a reading that is stable a nd92 95% of the spiked concentration within fifteen minutes. The commenter strongly objects to the promulgating of this requirement for the following reasons:

1

. The Cycle Time test unfairly excludes technologies that can provide accurate mercury
measurement.

2

. It is inconsistent with already promulgated mercury performance specifications.

3

. It is inconsistent with other monitoring techniques that are explicitly allowed by the proposed rule.

4

. There are no health benefits associated with highly time resolved monitor ing of
mercury.

5

. EPA

– HQ

– OAR

– 2009

– 0234 NESHAP and EPA

– HQ

– OAR

– 2011

– 0044 removed the HG CEMS cycle time requirement.

Response: The EPA agrees with the commenter and has modified the rule language to not exclude technologies that can provide an analytical re ading every fifteen minutes.



### 4

. 33 Hg: Modification to Quality Assurance of Hg CEMS Data (Option 3)

One commenter (0505) stated that k iln systems where planned mill off periods are typically weekly, it is expected that most or all operators will choose Option 3 (Section 63.1350(k)(2(iii)) for quality assurance of Hg CEMS data for periods when the span value is exceeded. The commenter agrees with the provisions EPA has included for this Option because their application does not result in invalidation of data. So me minor modifications to the proposed approach may nonetheless be needed to accommodate practical limitations.

It seems that the proposed approach could be implemented for Thermo and Tekran Hg CEMS and their associated certified Hg calibration gas genera tors and perhaps other Hg monitoring systems when they have certified calibration gas generators. However, actual field evaluations of these procedures have not been performed at cement kilns or other sources. The technical basis for these requirements has also not been subject to (a) the laboratory and field evaluation that was conducted for Hg CEMS nor (b) the subsequent technical evaluations and field studies that were performed during the development of the EPA Interim Traceability Protocols for Element al93 and Oxidized Hg Gas Generators. Because it is not possible to conduct the necessary technical evaluations during the compressed comment period, the commenter requests that EPA accept further comment on these procedures beyond the comment period as infor mation becomes available from actual Hg CEMS installations over the next six months or longer period as the procedures have not been attempted by EPA or Hg CEMS vendors.

Additionally, the commenter believes it is necessary to extend the trigger from “Any time the one hour average measured concentration of Hg exceeds the span value you must...” to 2 consecutive hour averages or any two one

- hour clock averages during a 24 hour period in order to recognize and therefore accommodate the potential for brief trans ient emissions to occur during a short mill outage or multiple short mill outages such as those caused when the feed silos are full. In any case, the “above span” upscale calibration check should never be required more than once per day, regardless of whet her there is one or multiple periods of elevated emissions exceeding the span value.

The commenter supports the simple mathematical adjustment of data in those cases where the Hg CEMS response differs from the certified gas concentration by more than 20 p ercent. Any adjustments that are attempted for the “above span” high level check would detract from the accuracy of the measurement data that is acquired for the 85

- 90 percent of operating hours under “normal conditions” (e.g., in line raw mill on). Thus, normalization of the data by applying a simple correction factor using the equation provided by EPA appears to be the only option.

The last sentence of § 63.1350(k)(2(iii) explains that the correction (when applicable) applies to all one

- hour averages pre ceding the “above span” calibration. For planned raw mill maintenance outages, it is likely that the plant personnel will perform the above span calibration during the raw mill down period while the elevated emissions are present. From a CEMS perspective, this is good practice because the emissions are elevated during this period and much less time will be required for the Hg CEMS to stabilize at the high concentration for the check and less time will be required for the Hg CEMS to recover and provide accur ate measurements at the elevated effluent concentration. In addition, it is appropriate to perform a calibration check, which may result in application of a mathematical correction factor contemporaneously with the measurement data that will be adjusted. I f a problem is discovered, corrective action can then be initiated sooner. Also, from a management perspective, scheduling and performing the above span Hg calibration check to occur during a planned mill off maintenance period associates related kiln oper ating conditions and related tasks requiring scarce personnel resources, even though it adds another task to a complex process. The commenter recommends the text of § 63.1350(k)(2(iii) be revised in relevant part as follows to address this:

If the value m easured by the Hg CEMS exceeds 20 percent of the certified value of the reference gas, then you must normalize the one

- hour average stack gas values measured above the span during the 24

- hour period preceding associated with (i.e., preceding or following) the ‘above span‘ calibration for reporting based on the Hg CEMS response to the reference gas as follows:94 Response: We believe that both suggested changes to the language of 63.1350(k)(1)(iii) have merit, particularly in light of our combining the second a nd third options and we have modified the rule language accordingly.

Hg: Use of Method 30B for Alkali Bypass or Coal Mill Stacks

One commenter (0505) stated that the procedures for quantification of Hg emitted from alkali bypass or coal mill stacks shou ld allow the use of Method 30B in addition to Method 29. Section 63.1350(k)(5(ii) should be changed to allow the use of EPA Method 30B for measurement of Hg concentrations in the alkali bypass, coal mill, and any other effluent stream with characteristics consistent with the application of Method 30B. Method 30B has been demonstrated during numerous field studies at cement plants to provide highly accurate and precise measurement data. Method 30B results are equivalent to or better than Method 29 for

mercur y. Method 30B also includes provisions to determine precision (duplicate trains) and accuracy (spike recovery) which cannot be provided by EPA Method 29. Method 30B is also far less costly than Method 29 and can be performed with either on

- site analysis fo r fast turn

around or using an off

- site laboratory. Method 30B samples can be easily and safely shipped and analysis of the samples does not require dangerous chemicals and solvents. In contrast, Method 29 including its mercury analysis, requires the trans port and use of dangerous chemicals, exposes test personnel to hazards, the shipments of samples are severely constrained by dangerous goods regulations (especially air freight), and requires a lengthy period for sample analysis. The performance of Method 29 also results in the generation of a large amount of hazardous chemical waste.

Response: The EPA agrees with the commenter and has modified the rule language to allow mercury testing using EPA Method 30B.



### 4

. 34 Hg: Request to Monitor Upstream or Downstream of a Coal Mill Receiving Kiln Exhaust

One commenter (0511) stated that the final rule should enable sources the option to monitor mercury in the same manner that they monitor THC and HCl. The commenter requests that EPA revise the proposal to allow affected sources the option to monitor (by periodic stack test) mercury upstream or downstream of a coal mill receiving kiln exhaust.

The commenter recognizes that the potential exists if it monitors mercury at the inlet to the coal mill to double

- count some mercur y. However, our research shows that this is unlikely to be material and that the benefits of monitoring all three pollutants in one location outweigh the minimal penalty associated with double

- counting of mercury reintroduced into the kiln. Therefore, the commenter believes it is appropriate for EPA to allow affected sources that are95 willing to accept that there may be some double

- counting of mercury to choose where they prefer to monitor mercury and states that it is more cost

- effective and more robust to monitor all three pollutants at the same point.

Response: As the commenter states, conducting mercury stack test upstream of the coal mill could result in double counting mercury emissions because mercury may be removed from the kiln exhaust gas stream in the coal mill and then released when the coal is injected into the kiln for combustion. The mercury measured upstream of the coal mill will also be measured in the kiln stack exhaust. The commenter believes, however, that the advantage of measuring all t hree pollutants at the same point outweighs the risk of double counting the mercury emissions. EPA has considered the commenter’s request and the final rule allows periodic stack test to be conducted either upstream or downstream of the coal mill.



### 4

. 35 Hg: Req uest that Emissions During D/F Temperature Parameter Tests are not Considered “Normal Operations”

Commenter (0511) stated that EPA should clarify that mercury emissions that occur while affected sources are performing the periodic testing required for D/F are not a part of normal operation. Under the D/F portion of the rule, an affected source must re

- establish its temperature parameter every 30 months or whenever the affected source plans to undertake a change in operations that might adversely affect com pliance with the D/F standard. Because the limit is based on the average of the test run averages, it is necessary to operate the baghouse at elevated temperatures during the test runs to achieve operational flexibility. The commenter’s experience with mon itoring mercury emissions indicates that increased baghouse temperatures result in increased mercury emissions. Therefore, this 30

- month test does not represent normal operations. The commenter also believes it is environmentally counter

- productive given t he years of operation under Subpart LLL and the extensive documentation of kiln compliance with the D/F standard. The commenter included a table that illustrates that the Durkee kiln has demonstrated multiple times since 2002 that the D/F emissions are at least one order of magnitude below the limit.

The commenter request that the final rule reflect that emissions during these D/F temperature parameter tests are not considered “normal operations.”

Response The commenter has not indicated the magnitude of the mercury emissions variations during D/F testing, and we have no indication that mercury emissions would rise in every D/F testing instance, or that mercury variability would be any different than during normal operations. In addition, there is no requ irement that temperature needs to be increased during D/F testing. This is a decision made by the source in order to have a higher temperature operating limit. We see no reason to excuse mercury emissions during this period. In addition, we have no indic ation that these incre ases (if they occur) over such a short period of time would96 significntly affect the 30

- day average.



### 4

. 36 Hg: Request to Forego 30

- month D/F Testing if it Will Impair Performance of Hg Controls

Commenter (0511) requests that EPA grant affected sources the ability to forego 30

- month D/F testing if it will impair performance of the mercury controls. Affected sources that make use of this exemption would continue to use the most recent temperature parameter established under LLL unless an d until the affected source undertakes a change in operations that might adversely affect compliance with the D/F standard. The commenter concludes that this approach allows the highest level of mercury reductions while not compromising compliance with the D/F standards.

Response: We do not see a reason to forego the D/F testing. We know that D/F emission s can be significantly affected by operational changes such as changes in raw materials. Therefore, previous tests are no guarantee of future compliance. As noted above, we do not see the time spent performing D/F tests as being significant compared to the 30

- day average. Also, no data were provided to indicate that D/F testing has any impact on the performance of mercury controls.



### 4

. 37 Hg: Comment Regardi ng 63.1350(k) and (k)(3) and (4)

Commenter (0505

- Appendix G) stated "What if you do not have an in

- line raw mill?"

This comment is in reference to the following requirement: mercury CEMS per PS 12A or 12B. Sorbent trap CEMS QA by Procedure 5. RATA for P S12A, PS12B or Procedure 5 conducted with raw mill

- on. [63.1350(k) and (k)(3) and (4)]

Commenter recommends that the test be performed under normal operating conditions. Change 63.1350(k)(4) to: “Relative accuracy testing of mercury monitoring systems und er PS 12A, PS12B or Procedure 5 must be at normal operating conditions. If a facility has an inline raw mill the testing must occur with the raw mill on.”

Response: The EPA has clarified the rule language as the commenter suggests.97 4

. 38 Hg: Comment Regarding 6 3.1348(a)(5) and (b)(7) and 163.350(k) (3) and (k) (6)

Commenter (0505

- Appendix G) stated "If concentrations are assigned to each relevant hour, why should a sampling period be in multiples of 24 hours? Also 63.1348(b)(7) does not list testing option for alkali bypass in place of Hg CEMs as is discussed in 1348(b) for THC and HCl (note: it is included in 63.1350(k)(5))."

This comment is in reference to the following requirement: for integrated sorbent trap CEMS assign the average concentration for an inte grated period to each relevant hour spanned by each integrated sample. Therefore, not necessary to change traps at 12:00 midnight or only at integral 24

- hour intervals. But 1350(k)(6) states that you may use a monitoring period from 24 to 168 hours in leng th and that is in a multiple of 24 hours. [63.1348(a)(5) and (b)(7) and 163.350(k)(6)]

Commenter recommends that there is no reference to 24

- hr intervals. Change 63.1350(k)(6): If you operated an integrated sampling Hg CEMS confirming to PS 12B, you may u se a monitoring period from 24 hours to 168 hours in length.

One commenter (AG) states that one issue with PS 12B is that when one is dealing with the small amounts of mercury caught in the Section 1 sorbent trap, the 5 percent breakthrough acceptance cri teria is so small as to become unattainable. Because of the extremely low tolerance for breakthrough and the difficulty of avoiding cross contamination at those levels when analyzing the traps, the commenter has found that it is difficult to avoid invalida tion of the traps. As a result, the commenter believes that there is a significant risk of a properly functioning sorbent trap system being unable to pass a RATA. The requirements in PS 12B are significantly more stringent than what is required under the c omparable Reference Method against which the relative accuracy is evaluated. RA tests for sorbent trap systems are conducted with the source using PS 12B and the stack tester using EPA Method 30B. Unlike PS 12B, Method 30B allows up to 10 percent breakthro ugh on the Stage 1 sorbent traps unless the results are less than 1 μg/dscm where they are then allowed up to 20 percent breakthrough. The commenter does not believe that there is a rational basis for holding the source’s Stage 1 sorbent trap breakthrough to 5 percent while holding the stack tester’s Stage 1 sorbent trap breakthrough to 10 percent. They believe that EPA Method 30B establishes a much more reasonable and realistic acceptance criterion for breakthrough. Therefore, the commenter requests that E PA amend PS 12B to make it consistent with EPA Method 30B in this regard.

The commenter (AG) also requested that EPA specify that a source need only have a third, spiked section on the sorbent trap once per week, or better yet even once per quarter.. This would require a source that changed its sorbent trap once weekly to have a third, spiked section on every trap. However, for a source changing its traps every 24 hours, then a third, spiked section would only be required one day out of every 7 days.98 Respon se : The EPA has clarified the rule language for consistency and simplicity. A monitoring period from 24 to 168 hours in duration was intended to read “at least 24 hours but no longer than 168 hours.”

The EPA agrees with the comm en te rs’ concern regardin g PS 12B and the section 63.1350(k)(3)

. The final rule allows for sources performing PS 12B to be held to the same breakthrough standard as the comparable Reference Method (i.e., EPA Method 30B).

The EPA does not agree with commenter’s request to only req uire third section on traps on a weekly or quarterly basis . The EPA designed PS

- 12B with the third section trap to provide accuracy information with each sample set and see s no reason to modify that requirement

.

4

. 39 Hg: Comment Regarding 63.1346(f)

Commenter (0505

- Appendix G) stated "Must comply date is Sept 2015.Can a facility opt to comply with the Hg limit prior to that start date and then this would not apply at that point?"

This comment is in reference to the following requirement: no fly ash with sorb ent unless demonstrate no increase with mercury emissions. Does not apply once the facility must comply with a mercury limit. [63.1346(f)]

Commenter recommends that if facility chooses to comply with Hg standard before compliance date, then fly ash restri ction does not apply. Change 63.1346(f): ...Once the kiln must comply is in compliance with a mercury limit specified in 63.1343, this paragraph no longer applies.

Response: We agree and have made the suggested revision to 63.1346(f).



### 4

. 40 Start

- up/Shutdown: PM Monitoring

One commenter (0505) stated that b oth proposed regulations (subparts F and LLL) require CEMS and CPMS be operated at all times the source is operating. The Subpart F requirements, however, do not address what is to be done with the CPMS measur ements acquired during startup and shutdown. If the data are valid, they could be used to determine compliance with the general duty requirement to minimize air pollutant emissions under §60.11(d) at all times, including startup, shutdown and malfunction. In contrast, the proposed Subpart LLL includes explicit emission limits that apply during startup and shutdown for PM, D/F, Hg, THC, and HCl. The commenter expressed a number of concerns regarding EPA‘s proposed requirements to address startup and shutdown that fall into99 the three discrete areas: data

- accuracy, emission testing, and emission calculation estimates. The commenter’s (0505) concerns are summarized in Sections 4.44

– 4.48.

Commenter (0519) is highly concerned about the impracticality and technic al difficulties of measuring emissions during start up and shut down. The commenter notes that even when efforts are taken at plants to control emissions at all times, control devices are designed based on air flow rates within certain ranges, continuous e mission monitoring systems (CEMS) measurements are only valid under normal operating conditions, and an arbitrary definition of startup and shut down makes it difficult to continue operations in a manner to ensure compliance with the various regulations an d permits now in place for startup and shutdown. As such, the commenter supports PCA’s comments (Sections 4.44

– 4.48) addressing three key areas of concern related to startup and shutdown.

Commenter (0505) stated that PM monitoring data during kiln start

- up and shutdown is not accurate or reliable and should not be used to determine compliance with the Subpart LLL PM concentration emission limit for startup and shutdown. PM CEMS and PM CPMS are inferential measurement systems that do not measure the PM con centration directly, but instead sense some other parameter that can be correlated to PM concentration under certain conditions. These monitors are not calibrated with National Institute of Standards and Technology (NIST) traceable standards. It is well kn own, and acknowledged by EPA in the preamble, that a PM CEMS accuracy response is affected by particle size distribution, refractive index, particle density and that these factors change over time even under normal operations due to varying feed materials and operating conditions, at cement plants. Particle size distribution, refractive index, particle density and other parameters are dramatically different during startup and shutdown (SS) as compared to normal kiln operations. During startup, these paramet ers continue to change as fuels are increased and feed is initiated and increased. Even a successful PM CEMS correlation established under normal conditions is not valid during start

- up and shutdown. No valid measure of PM concentration can be provided by the required PM CPMS during start

- up and shutdown.

Response: As discussed in the section IV.C. of the Preamble, the EPA agrees with the commenter that measurement (either continuous or by stack test) of the regulated HAP and HAP surrogates during startup a nd shutdown events is too uncertain and unreliable to be used as a basis for compliance, and is adopting work practices instead. We thus agree with the thrust of these comment s

.



### 4

. 41 Start

- up/Shutdown: Hg Monitoring

Commenter (0505) stated m ercury monitoring data during kiln start

- up and shutdown may not be accurate or reliable and should not be used to determine compliance with the Subpart LLL Hg concentration emission limits for start

- up and shutdown. Inaccuracy in the mercury monitoring data may result fro m secondary effects due to changing molecular weight and/or100 varying oxygen concentration that are not revealed by performing calibration gas injections or other quality assurance measures. For example, the commercially available mercury CEMS that have been demonstrated to be capable of meeting PS12A and Procedure 5 are dilution based CEMS. Varying effluent gas molecular weight during start

- up and shutdown affect the sample flow rate through the critical orifice within the dilution module, which changes the sample dilution ratio and thus, biases the resulting monitoring data. Low gas molecular weight during startup (as compared to solid fuel during normal operation) without feed present (and without the associated CO 2 from calcination of limestone) will bias monitoring data high. A second example was provided for mercury CEMS that use fluorescence based analyzers and nitrogen dilution to minimize effects of background oxygen quenching.

Response: We agree with the commenter that monitoring data during startup a nd shutdown events will not be sufficiently reliable to use as a basis for compliance during startup and shutdown and so have amended the standards to be work practices. We thus again agree with the thrust of this comment.



### 4

. 42 Start

- up/Shutdown: Moisture Corr ections

Commenter (0505) stated that i naccurate moisture correction factors will adversely affect the quality of CEMS data during start

- up and shutdown. PM CPMS sense PM concentration on a “wet basis.” Hg, THC, and HCl CE MS are ―dilution extractive or “hot wet” monitoring technologies, and therefore provide wet basis concentration data. There is no need for effluent moisture values for calculating “normal operation” PM and Hg emissions, because these monitors are coupled w ith wet basis effluent flow rate monitors. A “normal operation moisture correction factors” is used to calculate dry basis THC and HCl emission concentrations and the site

- specific moisture correction value(s) are determined during CEMS RATA, as allowed by Part 98, Subpart C. Special moisture correction factors would be needed for start

- up and shutdown because of the use of different fuels, different air flows, absence of kiln feed etc. and the factor may change during or between start

- up and shutdown event s. There is no practical means, under the proposed Subpart LLL start

- up and shutdown emission limits, to determine or QA these factors which would need to be applied to adjust PM, Hg, HCl and THC concentrations to a dry basis.

Response: We agree with the commenter that monitoring data during startup and shutdown events will not be sufficiently reliable to use as a basis for compliance during startup and shutdown and so have amended the standards to be work practices. We thus agree with the thrust of this c omment.



### 4

. 43 Start

- up/Shutdown: HCl Monitoring101 Commenter (0505) stated the quality of HCl CEMS monitoring data at cement kilns is currently unknown and undocumented for both normal operating periods and start

- up and shutdown periods, and many HCl CEMS are s ubject to potential spectral water vapor interference which may further detract from the accuracy of monitoring data, especially during
start

- up and shutdown when higher moisture levels may be encountered. HCl monitoring data of unknown quality should not be used to determine compliance with numerical HCl limits during
start

- up and shutdown. Representative sampling locations may not be present during start

- up and shutdown and thereby render CEMS data inaccurate or non

- representative. Brief spikes in Hg or HCl concentrations may occur during start

- up and shutdown which are not

- representative of actual emissions.

Response: We agree with the commenter that monitoring data during startup and shutdown events will not be sufficiently reliable to use as a basis fo r compliance and so have amended the standards to be work practices

. We thus again agree with the thrust of this comment.



### 4

. 44 Start

- up/Shutdown: Effluent Flow Rate Monitoring

Commenter (0505) stated e ffluent flow rate monitoring data will not be accurate or reliable during startup and shutdown and cannot be used even to estimate the “volume of pollutant emitted over the limit” in reporting deviations. The volume of pollutant emitted must be taken as the mass of pollutant emitted which is the product of the p ollutant concentration times the effluent flow rate averaged over the startup and shutdown event. During much of the SS period for cold starts, and for almost all hot standby startup and shutdown periods, the effluent flow rate will be at a level below tha t which can be measured by effluent gas flow rate monitors. Neither ultrasonic time of flight flow monitors nor differential pressure monitors are capable of measuring accurately at very low gas flow rates. Neither can the EPA

- reference Method 2 (used
to c alibrate flow rate monitors and perform flow monitor RATAs) be used to acquire accurate flow rate data. Effluent flow rate monitoring data cannot be used to estimate mass emissions during start

- up and shutdown.

Emissions in hot kiln standby mode (stop fuel and feed, stop clinker production, minimum rotation of kiln, etc.) are start

- up and shutdown emissions.

Application of a 7

- day startup and shutdown average could result in an overly strict standard based on a few hours of data due to short duration kiln t rips.

Response: We agree with the commenter that monitoring data use during startup and shutdown
events at a cement kiln will not be as accurate as steady state conditions with respect to flow
rates and contributes to the measurement uncertainty which jus tifies the change to work practices as the compliance regime (see section IV.C. of the Preamble).102 

### 4

. 45 Start

- up/Shutdown: Emissions Testing Issues

Commenter (0505) stated c ertain technical problems that adversely affect CEMS data quality would also adversely affect the quality of any emission testing data performed during startup and shutdown. For example, effluent stratification at very low flow rates during startup and shutdown could result in non

- representative measurement locations or sampling points;
esp ecially for single

- point sampling methods.

PM testing and D/F testing using the specified EPA isokinetic sampling procedures cannot be performed during very low gas velocities that may be encountered during startup and shutdown

.

Transient effluent conditio ns and changing effluent concentrations during startup and shutdown present significant technical challenges and detract from emission test data quality. EPA test methods, such as Method 5 for PM and Method 23 for D/F and other methods that require
travers ing the stack cross

- section to collect samples at specified points, are intended to be performed at constant, steady state conditions. Under steady

- state conditions, the traversing test method is expected to provide results that account for spatial variati on in the pollutant and gas velocity over the cross

- section. If there are also concurrent temporal changes in the flow rate and/or pollutant concentration during the test run, then it is not possible to determine if the principal of proportional sampling i s correctly applied (acquiring a sample volume proportional to the axial gas velocity at each sample point) so that the test run result approximates a surface integral over the cross section. Significant changes to the PM and D/F sampling methodologies

wou ld be required to apply these emission test methods for use during startup and shutdown at cement kilns.

Emission testing cannot be performed for startup and shutdown during short hot standby kiln outages

. Rapid shutdowns and hot kiln standby operation are startup and shutdown emissions, but are unplanned and unpredictable events and of highly variable duration. Each such event may have very different emissions based on the specific circumstances. Test personnel and equipment cannot be mobilized for these e vents. No cement plant operator would simulate such an event for the purposes of emission testing in view of safety considerations for personnel and for the kiln system equipment.

Response: As discussed in section IV.C. of the Preamble, we agree with the c ommenter that the transient and changing effluent conditions and concentrations at cement kilns during startup and shutdown create enormous uncertainty such that measurements cannot be compared to those under steady state conditions, and that measurements are too unreliable to be considered practicable within the meaning of section 112 (h) (2) (B) of the Act

.103 Comment: Start

- up/Shutdown: Emissions Calculation Estimates

Commenter (0505) stated t he proposed emission limits and emission calculation requi rements for startup and shutdown are inconsistent and need to be reconciled. The proposed kiln startup and shutdown emission limits for PM, D/F, Hg, THC, HCl are all expressed as concentrations and certainly do differ from the emission standards that apply during normal operation. “The volume of pollutant emitted” must be taken as the mass of pollutant emitted which is the product of the pollutant concentration times the effluent flow rate averaged over the startup and shutdown event. As written, the propos ed regulation would require (i) reporting every kiln startup and shutdown event, (ii) identifying each such event that exceeds the specified concentration limit, and (iii) an estimate of the mass of pollutant emitted during the event. If the mass of pollut ant emitted is the point of EPA concern, then expressing the startup and shutdown emission limits on the same mass basis would, at least, be consistent. The mass emitted to the atmosphere during startup and shutdown will certainly be a small amount compare d to normal operation emission rates, even if there are some elevated transient pollutant concentrations.

The proposed pollutant mass emission calculation requirements for startup and shutdown cannot be expected to provide consistent results between plants or results having known quality. Without having accurate information regarding the pollutant concentrations and/or the effluent flow rate, the plant operator cannot estimate the volume of pollutant emitted with even a poor level of confidence. Consequentl y, in order to estimate mass emission, plant operators would be forced to engage in the following process: (i) use a guesstimate of pollutant concentration coupled with an estimate of fuel used, (ii) use look

- up F

- Factors (volume of effluent gas generated at zero% O 2 per unit mass of fuel) for the fuel(s) and/or fuel combinations to determine stoichiometric flow rates, and (iii) engage in additional guesstimates of actual kiln and/or precalciner oxygen levels (too high to measure accurately with stack O 2 mo nitor). Kiln

- specific circumstances would also certainly need to be taken into account.

Response: As discussed in section IV.C. of the Preamble, we agree with the commenter that the technical issues discussed above will decrease the level of confidence i n the results of the emissions calculations.

Comment : Commenter (0505) stated that for all the reasons they discussed, the startup and shutdown provisions proposed for Part 63 Subpart LLL cannot be applied in a consistent manner and do not rise to what ca n be called reasonable “standards” and need to be replaced by work practice standards. The commenter suggested the following work practices for start

- up and shutdown:

Proposed Start

- up Work Practices : 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 before any fuels are combusted. Once the air pollution control device is running, start u p fuel (generally natural gas104 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 be introduced into th e 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 profile in the kiln system will be monitored during start

- up as a means of ensuring good combustion. The type and duration of each start

- up will be recorded.

Proposed Shutdown Work Practices : Shutdown will commence once the feed to the kiln is turned off. Emissions duri ng this period will be minimized, as the air pollution control device will continue to run until the kiln ceases to rotate continuously, which is when the shutdown period concludes. The type and duration of each shutdown will be recorded.

Response: We agr ee with the commenter and have added work practice standards into the final rule.



### 4

. 46 Start

- up/Shutdown: Opposition to Record Keeping in Lieu of CEMS for Compliance Demonstration

One commenter (0508) stated that EPA’s proposal to eliminate the requirement th at sources use CEMs to demonstrate compliance during startup and shutdown and to allow them to show compliance through nothing more than their own records seeks to justify the change by claiming it expects emissions to be below standards. Even if the revis ed standards were lawful and non

arbitrary, recordkeeping by itself does not assure compliance and is therefore both unlawful and arbitrary.

Response: We have removed the numerical emissions limits from the final rule and have replaced them with work pract ice standards that require the type and duration of each startup and shutdown event to be recorded. As discussed in Section IV.C of the Pream ble , numeric limits for these events is not feasible nor practicable within the meaning of CAA Section 112 (h).



### 4

. 47 D ioxin/Furan: Monitoring of Carbon Injection Rates

One commenter (0511) stated that the proposed rule is not clear as to when to monitor carbon injection rates when performing dioxin/furan (“D/F”) testing. The commenter stated that when Subpart LLL was fi rst implemented, the only reason for utilizing ACI was for D/F control purposes. The rule required that if ACI is used, that the injection rate must be monitored and compliance demonstrated based on the 3

- hour average sorbent injection rate. The commenter105 stated that with the addition of mercury standards, there are affected sources that utilize carbon injection for mercury control but not for D/F control. Since all kilns are now required to continuously monitoring for mercury, the commenter concludes there is no reason to conduct parametric monitoring of the sorbent type/injection rate. The commenter therefore requests that the regulations be amended to clarify that if sorbent injection is used for D/F control, then the source must comply with the parametri c monitoring requirements related to sorbent type and injection rate. However, if sorbent injection is used for mercury control, then these parametric monitoring requirements do not apply. Specifically, the commenter recommended that 63.134 6(c) be revised to read:

“For an affected source subject to a D/F emissions limitation under §63.1343 that employs sorbent injection as an emission control technique for D/F control, you must operate the sorbent injection system in accordance with...”

The commenter also req uest similar revisions to the proposed language in 40 C.F.R.63.1346(d) and (e) to clarify when the D/F sorbent monitoring requirements are applicable.

Response: This comment is outside the scope of this proceeding, since EPA did not reconsider, seek comme nt on, repropose, or otherwise reopen the issue of data used to establish the floors. EPA simply recalculated floors after removing CISWI kilns from the database. See 77 FR 42372. If, against our view, any response is deemed necessary, EPA notes that it di d not establish any floors with our without non

- detectable measurements. See Portland Cement Reconsideration Technical Support Document, June 15, 2012 (Docket item EPA

- HQ

- OAR

- 2011

- 0817

- 0225) where datasets are set out.

Comment: THC and oHAP Alternative: O pposition to non

- detects being counted at the detection level

Commenter (0507) opposed the adoption of methodology to treat non

- detects as detection

- level emissions, as it is overly conservative and we believe falsely represents oHAP emissions when in fac t they may not exist. The commenter stated that the EPA does not explain in either its preamble or its TSD its rationale for changes to this definition so as to treat non

- detects as detection level emissions (as opposed to zero values, as the current defin ition provides.) The commenter stated that failure to explain such a reversal is a violation of CAA §307(d) and settled case law, and would be reversible on judicial review. E.g., Small Refiner Lead Phase

Down Task Force v. EPA , 705 F.2d 506, 551 (D.C. Cir . 1983) (holding that “a rule without a stated reason is necessarily arbitrary and capricious”). The commenter recommended that EPA reverse its decision to require all non

- detects to be counted at the detection level.106 Response : The EPA has responded to th is comment in the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; Final Rule in 76 FR 15623 or available here: http://www.epa.gov/ttn/atw/boiler/fr21mr11m.pdf

.


### 4

. 48 THC and oHAP Alternative: Opposition to Annual Testing Requirement

One commenter (0505) stated that testing for oHAP s and establishing the alternate THC limit should be conducted every 30 months as in the September 2010 promulgated NESHAP, not annually, as is proposed. The compliance testing required for the various pollutants (i.e., PM, HCl, THC, oHAP , Hg and dioxin/furans (D/F)) should be aligned and required to be done every 30 months rather than staggered as the rule has currently proposed. This is not only practical from a testing perspective, but also much more cost effective when compared with staggered testing.

Commenter (0507) stated that annual THC/ oHAP testing is unnecessary an d overly burdensome. The commenter stated that if the EPA accepts that THC and oHAP s are reasonably correlated, then unless a source undertakes a major change in raw materials or fuels, it is unlikely that this correlation will change appreciably. The comm enter recommended that the EPA revise the testing requirement to every 30 months, and adopt language similar to what exists for D/F testing, whereby if a change is made that is anticipated to impact the THC/ oHAP correlation, that the source is obligated to retest.

According to commenter 0505, EPA provided no justification to increase the frequency of the oHAP /alternate THC limit testing from 30 months to annually. This testing is expensive with a stack test of the organic HAPs costing between $20,000 and $3 0,000 per test. Because the rule has a mechanism to trigger retesting if there is a significant change in the THC indicator level, the agency already has a mechanism to require retesting as appropriate, without the need for annual testing.

The commenter (0 505) stated that there are benefits of a 30 month cycle for testing of HCl, D/F, oHAP s and other constituents. Testing every 30 months coincides with the currently required testing for HCl for wet scrubber equipped kilns (which is being extended to dry scr ubbers) and testing for D/F. This is significant because FTIR Method 321 testing for HCl can be combined and performed simultaneously with oHAP FTIR Method 320 testing for formaldehyde and acetaldehyde. Concurrent testing for oHAP s using EPA Method 18 (ben zene, toluene, xylene and naphthalene) would be combined with Method 320/321 by taking a slipstream from the FTIR sampling system to acquire adsorbent tube samples. This would allow for multiple adsorbent trap samples to be acquired along with the FTIR dir ect interface testing and reduce the costs for performing tests. Testing every 30 months also coincides with required testing for D/F, which are known to form thermally from HCl and organic compounds in the process at certain temperatures. It is a natural outcome that testing for HCl and oHAP s be conducted concurrently107 with D/F testing on a 30 month basis.

At some sources, re

- tests inside of the 30 month time frame will be triggered to establish a new alternate THC limit when the existing alternative THC l imit is exceeded. Therefore, these facilities would be required to conduct testing more frequently than every 30 months. However, a facility whose alternate THC limit is not exceeded and remains within the compliance margin should not be penalized by arbit rarily having to conduct annual testing.

Response: EPA has considered the comment and reviewed the information provided by the commenter. EPA agrees with the commenter that testing every 30 months, instead of annually, will allow the industry to synchroni ze their organic HAP testing with their testing for D/F and HCl compliance and is, therefore, more efficient and cost effective. We also believe that that testing every 30 months will not have an adverse affect on organic HAP emissions since each source wi ll be conducting continuous parametric monitoring of THC to demonstrate that proper control of organics is on

- going. Therefore, the testing frequency in the final rule for organic HAP (for those sources opting for this compliance alternative) is every 30 months.



### 4

. 49 THC and oHAP Alternative: Request for Five Year (60 months) Testing Frequency for Raw Material Dryers, Coal Mills and Alkali Bypass Stacks

Commenter 0505 stated that oHAP emissions from regulated raw material dryers, coal mills and alkali bypass stacks should be tested every five years (60 months) or whenever a significant change in design or operation of these exhausts occurs. Alternatively, kiln operators should have the option of demonstrating on a one time basis that the oHAP concentration fr om these other sources are equal to or less than those in the kiln and not be required to test those stacks thereafter.

Response: The commenter provided no justification for a change in testing frequency

. In order to assure that all emission points do n ot exceed the standard when emissions are summed, and to ensure consistency among testing timelines, we are keeping testing timelines for regulated raw material dryers, coal mills and alkali bypass stacks the same as the main stack testing timeline.

.

Comm ent : 

### THC and oHAP Alternative: Request for Alternate Way to Select Monitored THC Level

The commenter (0505) stated that EPA‘s proposal to set the THC threshold for compliance monitoring at the highest 1

- hour THC value during the organic HAP stack test plu s 10 percent is virtually guaranteed to trigger frequent retests

– even as soon as the day after the stack test

–108 without regard to whether organic HAP emissions have actually increased. Requiring such retesting under such circumstances is unreasonable and arbitrary.

To demonstrate this problem, the commenter obtained hourly THC CEMS data for 4 kilns over periods as long as one year. In all cases, 30

- day average THC emissions for the kilns average more than 24 ppmv during the year and are, therefore, candi dates for demonstrating compliance using the alternative oHAP standard. The commenter divided the period of operation into 3

- hour blocks for each kiln. To simulate what would happen under EPA‘s proposed approach, the commenter selected a sample of one thou sand 3

- hour blocks for each kiln and set the THC threshold to be used in monitoring at 110 percent of the highest 1

- hour THC reading in each block. The commenter then compared each of the one thousand threshold values against the kiln‘s sequence of 30

- day THC averages, beginning with the day following the oHAP performance test, to determine the date of the first oHAP retest trigger. The commenter summarized the results of their analysis in Table 1 below.

Table 1: Frequency of Retest Triggers Using EPA Propo sed Method (Based on Highest 1

- Hour THC Value Plus 10%) Kiln A Kiln B Kiln C Kiln D Length of Record (days) 123 113 355 238

Average THC, ppmv dry at 7% O2 27 28 37 44

Probability Distribution for Days Until First Retest Trigger

Next Day 29% 56% 19% 29%

Within 30 Days 43% 69% 26% 44%

Within 90 Days 58% a/ 39% 61%

Distribution of THC Retest Thresholds (110% of Highest 1

- Hour THC during Stack Test)

Maximum, ppmv 97 207 292 380

Average, ppmv 32 33 46 50

Minimu m, ppmv 15 6 1 0

Probability of Retest Threshold < 24 ppmv 22% 48% 5% 2%

a/ The length of record is too short to track Kiln B for 90 days following the performance test

The commenter stated that f or Kiln A (assuming that THC monitoring data p receding the oHAP109 test are used to calculate 30

- day rolling averages beginning the day after the oHAP test), the analysis showed that:

• 29 percent of the time, the THC threshold will be set at a level that will trigger a retest on the day after the oHAP st ack test,

• 43 percent of the time, it will be set at a level that will trigger a retest within 30 days

• 58 percent of the time, it will be set to trigger a retest within 90 days.

• While this kiln has THC 30

- day averages that are above 24 ppm on a regular b asis, twenty two percent of the time EPA‘s proposed method for setting the retest trigger results in an alternative THC limit that is less than 24 ppmv.

For Kiln A as an example, EPA’s method allows the retest trigger to be set as low as 15 ppmv and as hi gh as 97 ppm compared to the kiln‘s average THC emission level of 27 ppmv. The commenter stated that the simulations for the other kilns support these findings. Therefore, the required retest that is triggered is unnecessary, unreasonable, and arbitrary. A ccording to the commenter, the excessive frequency of organic HAP retests is an unintentional, but unavoidable, consequence of using only hourly THC emissions at the time of the stack test to set the retest trigger. Frequent retests will result in a signif icant, unwarranted, and unnecessary cost burden to the industry. EPA needs to address and correct this problem in the final rule.

The commenter (0505) proposed an alternative approach to setting the alternative THC limit based on the highest daily average THC level achieved in the 30 day period up to and inclusive of the day of the stack test. The THC threshold that triggers a retest would be the highest day value plus 10 percent. The commenter re

- ran the simulations discussed above, using 110 percent of th e highest daily THC average in the preceding 30 days as the threshold to trigger a retest. In no instance does the highest

- day method trigger a retest on the day following the performance test. While oHAP retests may be triggered at later times during the period of the data for each kiln, the frequency of retests is more consistent with the intent of EPA‘s proposed approach. While this method eliminates the occurrence of immediate retests on the day following the performance test, it does not prevent a rete st trigger from occurring relatively soon after the performance test. For Kiln A, we find that a retest will be triggered within 30 days 8 percent of the time, and within 90 days 15 percent of the time. In the highest day method, the THC threshold is almos t always set at a level above the long

- term THC emissions of the kiln (27 ppmv). In no instance does the highest day method set the THC threshold below the 24 ppmv level of the primary THC standard. The commenter stated that the simulations for the other k ilns support these findings.110 The commenter stated that while the highest day method still can trigger retesting relatively soon after the performance test, the commenter concluded from these results that it is a much fairer and more reasonable approach tha n using a single hour from the time of the oHAP test. Once an appropriate compliance margin is established and used to adjust the THC threshold upward, a future 30

- day average for THC emissions that exceeds the margin

- adjusted threshold would be an indicat ion that HAP emissions may have increased above the 12 ppm standard, which would justify an investigation of the cause and could be the basis for organic HAP retesting.

Response: The EPA understands the concerns of the commenter and has revised the organic HAP parametric compliance option in the final rule to allow more flexibility for sources with variable THC emissions which show good compliance with the organic HAP compliance tests. While we understand that sources have variability and in the case of T HC some of that variability is not avoidable, especially in terms of fuel variability, and we do not wish to create an undue testing burden for sources with high THC values and very low organic HAP emissions, we are not inclined to adopt the suggested appr oach offered by the commenter allowing them to choose their highest value from the previous 30 operating days and add ten percent to that value to construct their parametric monitor operating limit. We received other comment s offering organic HAP scaling ideas as well, but found them to be not as protective of the emission standard (i.e reliably demonstrating continuous compliance) as we wish to remain. As an alternative to these approaches we adopted a version of the approach now used for PM CPMS monito ring whereby we allow a source who demonstrates compliance with the organic HAP standard below 75% of the emission limit to use their parametric THC monitor equivalent of that 75% standard as their 30

- day rolling average operating limit, and a source who d emonstrates compliance with the organic HAP standard at or above 75% of the organic HAP standard will set its 30

- day rolling average operating limit as the average THC parametric monitor value recorded during the three organic HAP compliance test runs. For example, if a source demonstrates compliance with the organic HAP limit with a set of Method 18 tests that show a total organic HAP average concentration of 5.2 ppmv, and during that testing the source parametric THC monitor recorded 45 ppmvw, the 30

- day rolling average parametric THC operating limit would be calculated by dividing 9 (75% of the organic HAP emission limit) by the measured organic HAP value (5.2) and multiplying the parametric THC monitor (45 ppmvw) average by that value (1.73). This would establish a parametric THC 30

- day rolling average operating limit of 81.3. A

source which shows compliance with the organic HAP emission limit at or above 9 ppmv would set their parametric THC 30

- day rolling average operating limit at the average parame tric THC value recorded during the compliance test. More discussion on organic HAP scaling is found in sections III and IV to the preamble to this rule.



### 4

. 50 THC and oHAP Alternative: Support for Extending Testing Time and Number of Tests to Adequately Capt ure Variability

Commenter 0505 stated that oHAP testing provisions and corresponding THC measurements should be changed to provide explicit flexibility in conducting these tests as discussed in the preamble and as needed to account for test method impreci sion and detection limits, emissions variability, and other factors. The commenter supported the approach suggested by the preamble111 “...allowing facilities to extend the testing time (or number of tests) if they believe extended testing is required to adequa tely capture THC variability over time. 77FR 42381

The commenter stated that longer duration test runs may be needed to achieve lower detection limits which will avoid overstating oHAP emissions by reporting non

- detects at their detection limits and summin g those values in the total oHAP measurement that is compared to the 12 ppmv limit. Longer test runs may improve method precision for Method 18 adsorbent tube sampling due to collection of greater amounts of analyte. Additional test runs should be allowed to be performed at the discretion of the source operator in order to capture short

- term emission variability, and to reduce the estimate of the standard deviation of the samples (which may be advantageous in scaling up oHAP values to conservative levels pr otecting the standard). Additional test series (3 or more runs per test) should be allowed to be conducted at the discretion of the source operator at conditions that reflect emission levels above normal representative emissions.

The commenter requested t hat EPA revise the language EPA has proposed for §63.1349(b)(4)(iii), as follows:

(iii) Use Method 320 of appendix A to this part, Method 18 of Appendix A of part 60, ASTM D6348

– 03 or a combination to determine emissions of total organic HAP. Each performa nce test must consist of at least three separate runs. Additional and longer duration runs are allowed. The performance testing must be conducted under the conditions that exist when the affected source is operating at the representative performance condit ions in accordance with § 63.7(e) and/or at the sole discretion of the plant operator, at such conditions that may represent higher emissions or worst case conditions . Each run must be conducted for at least 1 hour. You must conduct the performance test wh ile the raw mill of the kiln is operating and while the raw mill of the kiln is not operating.

The commenter stated that revisions to the text of § 63.1349(b)(4)(iv) are needed as follows:

(iv) At the same time that you are conducting the performance te st for total organic HAP, you must also determine a site

- specific THC emissions limit by operating a CEMS in accordance with the requirements of § 63.1350(j). The duration of the performance test each test run must be 3 hours and the highest 1

- hour average THC concentration (as calculated from the 1

- minute averages) during the 3

- hour test must be calculated must be 1 hour or longer and each performance test must include three or more test runs. Using the fraction of time the raw mill is on and the fraction of time that the raw mill is off, calculate the site

- specific THC emissions limit as a weighted average of the highest 60

- minute or one

- run average THC levels measured during raw mill on and raw mill off testing

.112 Response: The EPA maintains the requiremen ts of the general provisions that compliance is based on the arithmetic mean of three test runs but we do recognize the need to extend test duration to help ensure better detection and include an appropriate assessment of process variability. Sources and t esters must use their best judgment to determine if the minimum sample volume specified in the rule is sufficient to provide data that appropriately characterizes the emissions of the source.



### 4

. 51 THC and oHAP Alternative: Request for Compliance Margin (Scal ing) between Tested Value and Limit

Several commenters (0505, 0506, 0507, 0523) stated that EPA should allow a scaling up of the alternative THC monitoring limit. The commenter (0505) stated that EPA should allow a performance

- based mathematical scaling u p of the alternative THC monitoring limit when the actual measurement results of total oHAP tests are below the 12 ppmv limit so that sources with low oHAP emissions below the oHAP limits are not unfairly penalized by having to retest when there is no evid ence that the 12 ppmv limit has been exceeded.

The commenter stated that a more appropriate response would be to apply a conservative statistical adjustment to the emissions determined during the performance test to control the risk that the allowed margi n has been overstated. The following equation provides a conservative method to scale up the THC value established at the time of testing to an adjusted THC limit that is equivalent to the 12 ppmv oHAP limit:

T H C A d j u s t e d = T H C S e l e c t e d × [12 /( o H A P @7% O 2+ S T D M ) ]

Where:

• oHAP @7%O2 = Mean of the N test runs (3 or more runs) oHAP determinations corrected to 7%O2 dry basis

• STDM = Standard deviation of the mean of the N oHAP determinations

• THCSelected = The THC value selected as th e threshold for monitoring oHAP compliance. In PCA‘s proposed approach, this would be 110% of the highest daily

average THC value during the 30 days ending with the oHAP performance test.113 • THCAdjusted = The adjusted alternative compliance limit, wich is a conservative estimate of the THC concentration equivalent to the 12 ppm OHAP limit at 7% O2 based on the mean and standard deviation of the mean of the oHAP test runs.

• Note: The THCSelected and THCAdjusted values in the above equation are corrected to 7% O2

In this, the oHAP emissions would first be adjusted upward by 1 times the actual standard deviation of the mean of the triplicate (or more) test runs conducted during the stack testing. (If N test runs are conducted, the standard deviation of the mean equals the standard deviation of the test runs divided by the square root of N.)

According to the commenter, this method is a performance

- based approach that provides an incentive for kiln operators and their testing contractors to achieve improved levels of accuracy and precision in organic HAP testing. This incentive will encourage the use of more skilled testing labs and give all testing contractors the incentive to improve their measurement precision. There would also be an incentive to increase the num ber of test runs that are conducted in order to reduce the uncertainty in average HAP emissions determined during the stack test.

Commenter (0507) disagreed with the proposed decision to not allow sources to scale up their surrogate THC levels to represent the full oHAP limit of 12 ppm. The commenter opposed the change in detection limits, which the EPA uses to justify raising the oHAP limit from 9 ppm to 12 ppm. The commenter stated that this has no impact on the correlation between oHAP and THC for a part icular kiln other than to dampen the true correlation ratio. The commenter stated that by requiring non

- detects to be added to the oHAP concentration at the detection level, EPA could safely allow a scaling up with a high degree of assurance that the incre ase in the surrogate THC level is at its minimum and likely underestimates the true oHAP to surrogate THC ratio. The commenter stated that by allowing a scaling up, sources would be far less likely to trigger the need to retest than under the current propo sal. The commenter recommended that EPA allow scaling up of the THC limit.

Commenter (0507) expressed concern that if a source emits oHAP s at a very low level and the surrogate THC level is marginally above the THC limit of 24 ppm, the source will actually be regulated to a much more stringent standard. The commenter stated that the EPA’s approach to resolve this, allowing sources to test repeatedly or for longer, is random and costly in lieu of allowing a scale up approach.

Commenter (0523) stated that in regard to the testing time needed to capture THC variability, the commenter stated that THC emissions are a function of the raw materials and emissions are cyclic and may vary significantly from month to month rather than hour to hour. The commenter114 provid ed two options to address this issue: (1) change the language in §63.1349(b)(4)(vi); or (2) allow a source to scale up its emissions during the annual performance test. The commenter suggested that the language in §63.1349(b)(4)(vi) should simply be change d to add “30

- day rolling average” as a clarification, so if the THC site

- specific 30

- day rolling average exceeds the established site

- specific THC emission limit by 10 percent or more, then a source must comply with §63.1349(b)(4)(vi) (A) and §63.1349(b)(4 )(vi)(B).

The commenter (0523) asked the EPA to reconsider its position and allow a source to scale up its emissions based on data provided in the comment letter as Figure 2 [page 7]. The commenter suggested that the relationship between oHAP s and THC is l inear and can be used to scale up emissions therefore avoiding needless retesting.

The commenter (0523) stated that if the EPA does not allow emissions to be scaled upward based on the annual testing, it should at least allow a source to: (1) develop a sit e

- specific oHAP and THC relationship that may be used to scale up once the source has proven a relationship exists; or (2) develop a “performance based” approach by substituting the actual standard deviations (SD) of the OHAP and THC measurements for each particular test series. The commenter noted that the approach would provide the following advantages: (1) it’s a performance based approach; (2) the standard deviations are based on actual data not theoretical values; and (3) the approach is very similar t o that in Subpart Da. The commenter provided an equation to calculate the THC operating limit:

THC operating limit = [12/( OHAP ppmdv + OHAP SD)] *(THC ppmdv

– THC SD)

Response: See response to comment 4.50 above, and discussion in the sections IV.A and III .A.3 to the final rule Preamble. EPA notes in addition that although organic HAP measurements above 4 ppmv and below 12 ppmv are not sufficiently reliable to serve as a basis for compliance, these are real values (i.e. values below 12 ppmv would not indic ate a non

- detect). As such, EPA believes the values are sufficiently reliable to use as a basis for determining a THC level for purposes of parametric monitoring. Put another way, although imprecise, these measurements are sufficiently reliable to establ ish a calibrated THC parametric monitoring value that demonstrates continuous compliance with the organic HAP standard, as well as calculating emission rates, but not sufficiently reliable to ascertain compliance. This difference reflects a reasonable dis tinction between compliance monitoring and establishing the level of a monitored parameter.



### 4

. 52 THC and oHAP Alternative: Suggestions for Rule Improvement

One commenter (0505) made the following recommendations regarding the THC/ oHAP standards:115 Comment: oHAP retesting should not be triggered when it can be shown that the exceedance of the alternative THC limit is due to a malfunction, or the cause has been determined and corrected, or the THC exceedance is due to an increase in methane emissions only.

Re sponse : We believe the current malfunction provisions would preclude a requirement for a retest, as a result of a malfunction.

Comment: EPA should add an explicit option under the oHAP alternative that allows one to set

a non

- methane THC limit and track compliance with that limit rather than a THC limit that is used to determine when retesting is needed for sources with high levels, or highly variable levels of methane. The choice of monitoring non

- methane THC should not be left as an option which require s approval on a case

- by case basis. Several monitoring approaches should be allowed, including (a) the use of non

- methane analyzers (flame ionization dete ctors with methane cutters), and (b) direct measurement of methane with a IR

- based analyzer or other a nalyzer and subtraction of the methane ppmv measured divided by three from THC analyzer response.

Response: F or the purpose of demonstrating compliance with the oHAP limit, the EPA allow s parametric THC monitoring in the final rule. Sources wishing to s et a site

- specific non

- methane THC limit and continuously monitor non

- methane THC with a technology sufficient to measure methane directly, as well as THC

, may apply for an alternate monitoring approval using the procedures for such applications in section 63.8(f) of the General Provision s

. Technologies sufficient to conduct such measurements generally measure methane with a GC separation approach followed by a backflush with GC measurement of the remaining hydrocarbons.

Comment: The text of proposed § 6 3.1349(b)(14)(iii) need to be revised to clarify that the requirements to conduct oHAP testing with and without the raw mill in operations will only apply to in

- line kiln/raw mill systems. As currently written, all systems would be required to conduct raw mill on and off testing. Such expansive testing would serve no beneficial purpose and we do not believe that is what EPA intends.

Response: The EPA has modified the requirement in the final rule to clarify that organic HAP testing with mill on and mill o ff conditions only apply to kilns with an in

- line raw mill.

Comment: In the event that a source operator elects to conduct a series of performance tests under a series of operating conditions which may reflect variations in emissions for the purpose of det ermining appropriate operating conditions for control systems and methods, any performance test data exceeding the applicable limit should not be used as evidence of an emission violation during the test period, so long as the unit is returned to normal op erating conditions and emissions determined during those conditions indicate compliance.116 Respon se: Section 112 of the CAA requires continuous compliance with all emission standards. For that reason, it is not appropriate to add provisions to the rule th at would allow exceedance of an emissions limit.



### 4

. 53 THC and oHAP Alternative: General Support

One commenter (0475) supports EPA’s proposed changes to the continuously monitored parameters for alternative organic HAP Standard with THC monitoring parameter.

R esponse: EPA noted the commenter’s support for the oHAP alternative

.

4

. 54 THC: Comment Regarding 63.1349(b)(4) and 63.1350(i)

Commenter (0505

- Appendix G) stated "Need Method 8 if a facility chooses a non

- methane approach for THC monitoring for the Alternati ve OHAP option. For PS

- 8A, RATA does not apply."

This comment is in reference to the following requirement: THC CEMS per PS

- 8A. Span value (as propane) is 50 ppmvd and reference method is Method 25A. If kiln gases are diverted through an alkali bypass or coal mil to separate stacks a kiln

- specific THC limit must be calculated per Eq. 5. [63.1349(b)(4) and 63.1350(i)]

Commenter recommends that option be provided of 8 or 8A. Change 63.1350(i)(1): You must install, operate and maintain a THC continuous emiss ion monitoring system in accordance with Performance Specification 8 or 8A, of Appendix B to Part 60 of this chapte r.

Response: The EPA agrees with the commenter and has modified the rule language as suggested.



### 4

. 55 Coal Mills/Alkali Bypass: General Support

One commenter (0475) agreed with and supported EPA’s proposal that the aggregated sum of mercury, THC, and HCl measured in both the kiln exhaust and the coal mill exhaust streams must not exceed the Supbart LLL NESHAP emission limits for each respective HA P or HAP surrogate. The commenter believes that the performance tests for mercury, THC, and HCl on117 the diverted kiln exhaust to the coal mill should be carried out downstream of the coal mill APCD.

Response: EPA noted the commenter’s support for the requir ed account ing of diverted kiln gas.



### 4

. 56 Coal Mills/Alkali Bypass: Correction to Kiln Gas Diversion Equation

Commenter (0523) agreed with the EPA’s approach for the situation where a coal mill which receives and discharges some of the cement kiln exhaust gas directly to the atmosphere must demonstrate Hg, THC and HCL emissions. The commenter noted that the equation shown in the proposed rule contains a minor mistake. The commenter stated that in the example provided in the proposed rule, all of the volumetric concentrations are corrected to 7% Oxygen; however the exhaust flow rates were not correct to 7% oxygen. The commenter stated that because HCl and THC are measured upstream of the coal mill and the exhaust gas flow rate is the total flow from the coal mill , the commenter stated that these gas flow rates should also be normalized to 7% oxygen prior to calculating the above equation.

Response: Pollutant concentrations are commonly corrected to normalize their values respective to a diluent concentration (i.e. 7% oxygen) and we note that the equation handles oxygen correction appropriately respective to pollutant concentration correction. Flow rate values include measurement of the gas stream molecular weight (oxygen, nitrogen, and carbon dioxide) and are stan dardized respective to barometric pressure and reference temperatures, but are not corrected to a standard diluent value. As such, we disagree with the commenter and are not making the edit to the final rule that the commenter suggests.



### 4

. 57 Coal Mills/Alkali Bypass: Request for Site Specific Monitoring Programs for Coal Mills

Commenter 0507suggested requiring cement kilns that use kiln gases as drying heat in their coal mills to develop site

- specific alternative monitoring programs to account for the mercu ry, THC/ oHAP s and HCl contribution in any gases that are either emitted directly to atmosphere through the coal mill stack, or that are returned to the kiln exhaust gas system and become co

mingled with the other kiln exhaust gases. The commenter noted tha t each kiln is unique, so standards that cover all situations are not feasible.

Response: We have included language in Sections 63.1349 and 63.1350 to accommodate the different configurations found at various facilities. For configurations that are not ad dressed, the facility can request approval for an alternative monitorin g plan under Section 63.1350 (o).118 

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. 58 Coal Mills/Alkali Bypass: Request for Additional Time to Comment

One commenter (0505) stated that the proposed monitoring and testing requirements for the various kiln configurations are very complex and will need additional time for the commenter’s consideration beyond the length of the comment period. The commenter requests that EPA be open to receiving additional comments on these requirements in the coming months.

Response : See response 3.35 above.



### 4

. 59 Coal Mills/Alkali Bypass: Promulgation of Coal Mill Requirements would be Unlawful

One commenter (0505) stated that the proposed monitoring and testing requirements are confusing. EPA appears to be sugg esting all sorts of complex provisions for some cement plant coal mills with no data in the record to support these complex provisions. EPA states that it has no information on how many sources its proposal might be impacting. Although the proposed rule in cludes regulatory language in the proposed rule, EPA states in the preamble: “Though we are not proposing the coal mill requirements in this action, we have placed the appropriate regulatory text in the proposed rule language to allow comment on actual rul e language.”

The commenter stated that they cannot understand why EPA is including the discussion about coal mills in the proposal, when they clearly state that it is not proposing coal mill requirements. With EPA‘s statement that it not proposing coal mi ll requirements in the July 18 Federal Register notice, it could not legally finalize any such requirements without a new proposed rule in accordance with Administrative Procedure Act and CAA §307(d) rulemaking requirements and be based on data and informa tion on which sources would be affected by various proposed requirements.

Response: See response 3.35 above. Moreover, EPA has held a number of follow

- up meetings with industry representatives on this issue, providing further notice and opportunity for
comment. See Docket items EPA

- HQ

- OAR

- 2011

- 0817

- 0196, 0612, 0828 . EPA notes in addition that the provisions are not emission standards but rather means of accounting for commingled emissions that are already subject to emission standards. No sources nee d be affected by these provisions, since the choice whether or not to commingle coal mill and kiln emissions is voluntary. EPA has also calculated the (modest) impacts of the rule in assessing the rule’s costs and benefits. See section VI.H to the preamb le to the final rule. Thus, EPA does not accept that there is any procedural deficiency in adopting the provisions relating to commingled coal mill and cement kiln emissions.119 Comment: Coal Mills/Alkali Bypass: Suggested Alternative to Testing Coal Mills

One commenter (0511) stated that EPA’s proposal to require that sources separately monitor or test emissions of the non

- PM pollutants from coal mill vents is excessively conservative and expensive given, as EPA acknowledges in the preamble, that coal mill s operate only intermittently. The commenter notes that none of the coal mills they operate are equipped with a flow monitor and it is not necessary to do so in order to reasonably estimate emissions based on those from the kiln stack. In

- line coal mills u sing kiln gas as an indirect heat source are not inherent to the kiln, but are reliant upon the kiln in order to operate. The commenter stated that they are designed to utilize 6 to 10 percent of the kiln gas and cannot accept more than this amount without causing a fire in the coal mill. The commenter suggests that a reasonable means of addressing emissions from separately vented coal mills would be to allow sources to manually determine the average kiln exhaust flow routed to the coal mill as a percentage of the overall kiln exhaust and then monitor the operating hours of the coal mill. During those time periods while the coal mill is operating, the emissions measured in the main stack would be increased by the percentage reflecting flow attributable to th e separately vented coal mill. If there is a change in operations that would negatively affect compliance with the mercury standard, the affected source would have to determine the flow rate under requirements comparable to those used under the D/F standar ds to reset the temperature parameter after changes.

Response: EPA recognizes the intermittent nature of coal mills and the inherent flow constraints of kiln gas to the coal mill due to safety concerns and maximum design capacities. EPA agrees with the commenter that there are alternative methods to the use of flow monitors for determining the flow rate of kiln gas to separately vented coal mills. For example, the average kiln exhaust flow routed to the coal mill can be determined as a percentage of the overall kiln exhaust with knowledge of the maximum design capacity of the coal mill and the capacity at which it is being run. This information could be used in conjunction with monitored operating hours of the coal mill and the 30 month stack test resul ts to determine mass emissions. Other parameters, such as degree of coal mill fan valve openings noted during a successful performance test, could be monitored as an indicator of a consistent flow rate. As an alternative to the requirement to use flow mete rs, the final rule allows the owner or operator to use parametric monitoring to insure that the flow to the coal mill will not result in an exceedance of the emission limits. If the owner or operator selects this approach, they must develop a plan demonstr ating how parametric monitoring in combination with performance tests every 30 months will ensure continuous compliance and submit the plan to their permitting authority for approval. Upon approval the plan must be incorporated into the facility’s operatio n, maintenance and monitoring plan.
EPA does not agree with the commenter’s suggestion that instead of monitoring emissions to separately vented coal mills the emissions measured in the main stack can simply be increased by the percentage of overall kiln e xhaust going to the separately vented coal mill. The emissions measured in the main stack are controlled emissions. Increasing those emissions by the percentage reflecting flow attributable to the separately vented coal mill does not account for the fact that the emissions routed to the separately vented coal mill are uncontrolled.120 

### 4

. 60 Coal Mills/Alkali By

- pass Stacks: Issue with Upstream Monitoring of THC and HCl for Co

- mingled Streams

One commenter (0511) supported EPA’s proposal to allow affected sourc es to monitor THC and HCl upstream of the coal mill where a separately vented coal mill receives kiln exhaust as coal may contribute to these pollutants and EPA did not account for this contribution in establishing the standard. However, the commenter also believes that it is necessary to allow a source that vents coal mill emissions to a common main stack, the option to monitor THC and HCl upstream of the coal mill and upstream of the duct where the coal mill exhaust is introduced to the main stack. EPA’s data for developing the THC and HCl numbers did not take into account any contribution from the coal mill, EPA merely asserts that coal mill THC is primarily methane.

While the commenter also believes this to be true, it is much more expensive to conduct annual oHAP stack tests to demonstrate the alternative compliance method when what is actually necessary is to characterize the kiln gas used by the coal mill prior to the gas being introduced to the coal mill. There is no support for counting the coal mil l exhaust emissions towards compliance with the THC and HCl standards. Furthermore, the commenter believes it is arbitrary and capricious for EPA to count coal mill THC and HCl towards compliance for some sources, but not for other sources, based solely on how the emissions are ducted. The THC and HCl standards were established based on emissions from kilns. If an affected source monitors THC and HCl upstream of the coal mill inlet and upstream of the point in the common main stack where the coal mill emiss ions are introduced, then that source has accurately characterized the emissions from the kiln.

Response: We agree with the commenter and have revised the testing and monitoring requirements to allow testing upstream or downstream of the coal mill

.

Coal Mills/Alkali Bypass: Rule Inconsistency

Comment 0511 stated that the proposed language in. 63.1343(b)(2) appears to be missing language allowing coal mill exhaust to be accounted for in the alternative PM standard.

Response: We have corrected this incon sistency in Section 63.1343(b)(2).



### 4

. 61 Clinker Piles: Installation of Ambient Monitors121 Commenter (0517) states that the conservative work practices proposed within the Portland cement rule assist the industry by reducing an overwhelming financial burden of enclosing all clinker piles on site. To insure that these work practices are properly protecting human health and the environment the commenter would like the EPA to consider and respond with comments to including with the clinker pile work practices a PM 10 ambient monitoring networks to measure HAP metals from existing and new sources.

The commenter states that the capital cost to install a PM 10 monitoring network is far less burdensome than the $10

- $25 million USD estimated in the rule for clinker pile enclosures. A PM 10 network will also consume less than the $400,000

- $500,000 estimated to annually maintain a clinker pile enclosure. The secondary battery recycling industry has been operating this same type of monitoring network for years and it has pr oven itself to be reliable and cost effective.

The commenter states that any fugitive emission impacts from the clinker piles would be detected by the ambient monitoring network and actions to modify and reduce the fugitive emissions quickly undertaken. T he commenter believes EPA's Version 8.2 a free Chemical Mass Balance (CMB) model (EPA, 2005) should be used to analyze the data and apportionment the concentrations measured by the monitors and that EPA's Protocol for Applying and Validating the CMB Model (EPA, 1987) would allow the cement plant to use wind speed/wind direction and the CMB 8.2 software to locate which clinker pile was producing the fugitive emissions.

The commenter indicates that although current PM 10 FRM could be deployed as samplers for a Portland cement ambient monitoring network the time delay between taking the sample and reporting the concentration wouldn’t allow for expeditious response to fugitive emission releases from clinker piles. A near

- real

- time monitor, which combines the sa mpling and monitoring into one instrument would be the best option for protection of human health and the environment.

Response: The final rule includes work practice standards to be included in facilities’ operation and maintenance plans for approval by the appropriate permitting authority. Thus, the rule does not require permanent enclosures. With local oversight by permitting authorities, EPA is assured of compliance with emissions control.122 

## Section 5 : Comments on Affirmative Defense

5

. 1 Affirmative Defense: Gene ral Support

One commenter (0505) stated that they supports EPA‘s retention of an affirmative defense. EPA has the legal authority to promulgate an affirmative defense for malfunctions.

One commenter (0475) stated that they agree that EPA has the authori ty to promulgate affirmative defense. However, the commenter stated that the affirmative defense criteria currently specified are too subjective. The commenter recommended that EPA more specifically define the circumstances related to a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment to make the affirmative defense more useful to owners and operators.

The commenter (0475) also supported EPA’s proposed revisions to § 63.1344 which delete the terms “short” and “s evere” and add clarifying language requiring proof by a preponderance of the evidence that the affected source was being operated in a manner “consistent with good air pollution control practice for minimizing emissions.” EPA is also proposing to revise § 63.1344(b) to state that “[t]he owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator in a semiannual report with all necessary supporting documentation, that it has met the requirements set forth in § 63.1354(c) of this subpart.” The commenter supports the proposed revisions to S 63.1344.

Response: EPA has noted the support for the affirmative defense.



### 5

. 2 Affirmative Defense: Opposition to General Rationale

One commenter (0508) disagreed with EPA’s pos ition that the affirmative defense meets the continuous compliance requirement “by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief.” To the contrary, the affirmative defense does not m ake injunctive relief available; it was already available under the CAA. All the affirmative defense does is restrict the availability of other relief.

One commenter (0508) stated that EPA also claims it is reasonable to incorporate “flexibility”123 into co ntinuous compliance requirement. According to the commenter, EPA has no authority to alter the continuous compliance requirement at all. It is a statutory requirement, and EPA must implement it, not rewrite it to suit the agency’s policy preferences.

Resp onse: For malfunctions, the EPA is finalizing the proposed affirmative defense language for exceedances of the numerical emission limits that are caused by malfunctions with minor revisions as discussed below. As the EPA explained in the preamble to the pr oposed rule, the EPA recognizes that even equipment that is properly designed and maintained can fail and that such failure can cause an exceedance of the relevant emission standard. The EPA is including an affirmative defense in the final rule as we have in other recent section 112 and section 129 rules so as to balance the tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be excee ded under circumstances beyond the control of the source. The EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. § 7602(k)(defining “emission limitation an d emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously apply and meet section 112’s minimum stringency requirements, even during periods of startup, shutdown and malfunction).

Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission li mitation is still enforceable through injunctive relief. While “continuous” limitations, on the one hand, are required, there is also caselaw indicating that in some situations it is appropriate for the EPA to account for the practical realities of technol ogy. For example, in Essex Chemical v. Ruckelshaus , 486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that in setting standards under CAA section 111 “variant provisions” such as provisions allowing for upsets during startup, shutdown and e quipment malfunction “appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the ‘never to be exceeded’ standard currently in force.” See also, Portland Cement Association v. Ruckelshaus

, 486 F.2d 3 75 (D.C.Cir. 1973). Though intervening caselaw such as Sierra Club v. EPA and the CAA 1977 amendments calls into question the relevance of these cases today, they support the EPA’s view that a system that incorporates some level of flexibility is reasonabl e.

The affirmative defense simply provides for a defense to civil penalties for excess emissions that are proven to be beyond the control of the source. By incorporating an affirmative defense, the EPA has formalized its approach to upset events. In a Cle an Water Act setting, the Ninth Circuit required this type of formalized approach when regulating “upsets beyond the control of the permit holder.” Marathon Oil Co. v. EPA , 564 F.2d 1253, 1272

- 73 (9 th Cir. 1977). See also, Mont. Sulphur & Chem. Co. v. Unit ed States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012)(rejecting industry argument that reliance on the affirmative defense was not adequate ). But see, Weyerhaeuser Co. v. Costle , 590 F.2d 1011, 1057

- 58 (D.C. Cir. 1978) (holding that an124 informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitations are “continuous” as required by 42 U.S.C. § 7602(k), and account for unplanned upsets and thus support the reasonableness of the stan dard as a whole.



### 5

. 3 Affirmative Defense: Assessment of Penalties ( 113(e) and 304)

One commenter (0508) stated that EPA argues that “the affirmative defense ... is not relevant to the amount of any penalty to be assessed. If a court determines that the affirm ative defense elements have been established, then a penalty is not appropriate and penalty assessment pursuant to the section 113(e)(1) factors does not occur.” According to the commenter, that argument is absurd; a provision that can prevent the assessme nt of any penalties at all is, at a minimum, “relevant” to penalties.

One commenter (0508) stated that EPA also claims that where it “defines its emissions limitations and enforcement measures to allow a source the opportunity to prove its entitlement
to a lesser degree of violation (not subject to penalties), penalties under § 304 are not “appropriate” under § 304.The commenter stated that neither the CAA nor even EPA’s own regulations, however, define the emission limitations to allow a source to avoid penalties. EPA is free to so define its own “enforcement measures,” but attempting to limit courts’ enforcement authority violates § 304 and §113(e)(1). In any event, there is no such thing as a “lesser degree of violation” under the CAA. Any violation is a violation, and Congress intended citizens to be able to bring enforcement actions where any violation occurs and to seek penalties in such actions. To be sure a court may determine that the some violations warrant smaller penalties or no penalties at all , but that is a decision for a court to make based on the facts before it and the penalty provisions in § 113(e)(1).

Response: EPA’s view is that the affirmative defense is consistent with CAA sections 113(e) and 304. Section 304 gives district courts juri sdiction “to apply appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed only after it has been determined that a penalty is appropriate. The affirmative defense regulatory provision is not relevant to the amount of any penalty to be assessed under section 113(e) because if a court determines that the affirmative defense elements have been established, then a penalty is not appropriate and penalty assessment pursuant to the section 113(e)(1) factors does not occur.

In exercising its authority under section 112 to establish emission standards (at a level that meets the stringency requirements of section 112), the EPA necessari ly defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines two categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and125 penalties. The CAA does not require that all violations be treated equally. Further, a citizen suit claim under section 304 allows citizens to commence a civil action against any person alleged to be in violation of “an emission standard or limitation under this chapter.” The CAA, however, allows the EPA to establish such “enforceable emissi on limitations.” Thus, the citizen suit provision clearly contemplates enforcement of the standards that are defined by the EPA.

As a result, where the EPA defines its emissions limitations and enforcement measures to allow a source the opportunity to pro ve its entitlement to a lesser degree of violation (not subject to penalties) in narrow, specified circumstances, as the EPA did here, penalties are not “appropriate” under section 304. The EPA’s view is that an affirmative defense to civil penalties for e xceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused by malfunctions that could not have prevented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has utilized its Section 301(a)(1) authori ty to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns.

The EPA disagrees that the affirmative defense provision will hamper citizen enforcement. First, injunctive relief is still available a nd the threat of penalties would not deter violations in cases where all of the conditions of the affirmative defense have been satisfied because the affirmative defense criteria ensure that all reasonable steps were taken to prevent a malfunction that cau ses excess emissions. Further, litigating whether a source has met the affirmative defense will not burden citizen group any more or less than would litigating the appropriate penalty amount in the penalty assessment stage of a citizen suit enforcement act ion, because the 113(e) penalty assessment criteria and the affirmative defense criteria are similar and in fact overlap. For example, the requirement that the Administrator or the court consider “good faith efforts to comply” is bound to generate the type of fact

- intensive disputes that the commenter complains of. In addition, several of the affirmative defense criteria are exactly the type of criteria the Administrator or Court might consider in determining whether a source made “good faith efforts
to com ply.” For example, to take advantage of the affirmative defense, the source must prove by a preponderance of the evidence that, among other things, the excess emissions “were caused by an unavoidable failure of air pollution control and monitoring equipmen t, process equipment, or a process to operate in a normal or usual manner” and “could not have been prevented through careful planning, proper design or better operation and maintenance practices” and “did not stem from any activity or event that could hav e been foreseen and avoided, or planned for.”

Thus, the EPA does not expect the affirmative defense provision to significantly alter the burden of bringing a citizen enforcement action. For those cases that do proceed to trial, even in the absence of this affirmative defense, sources generally raise equitable arguments to argue for a low penalty and citizens often rebut such arguments. Therefore, as a practical matter, the EPA does not expect the affirmative defense provision to materially affect the practi ce of CAA enforcement.126 

### 5

. 4 Affirmative Defense: Burden and Duplication Issues

Commenter (0495) states that EPA should establish a work practice standard that requires pre determined malfunction plans with practices and procedures for potential malfunctions; require reasonable reporting of any malfunctions; address any malfunctions not contemplated and add to the plan and address as appropriate. In developing an affirmative defense to malfunctions (rather than setting work practice standards for those period s), EPA has inappropriately placed the burden on the source to prove that excess emissions were caused by a malfunction. Malfunctions clearly meet the CAA definition for when work practice standards are appropriate and EPA’s rationale for taking the affirm ative defense approach in this proposal should not foreclose the work practice approach in other MACT standards. CAA §112(h).

Alternatively, if EPA rejects such work practice standards and, instead, includes an affirmative defense for malfunctions, the te rms of the defense need to be changed. First, a source should not have to prove it meets every criterion to successfully claim the affirmative defense. Rather, the different criteria should be factored in evaluating whether the excess emissions should be excused.

Commenter (0495) is concerned that the affirmative defense structure proposed and implemented by EPA is needlessly complex and difficult for individual facilities to follow.

Commenter (0495) indicates that the EPA proposes a streamlined reportin g and notification requirement that eases the burden on facilities. The proposal requires that sources report affirmative defense claims as a part of a semi

- annual report already required by the regulation. 77 Fed. Reg. 42,400. The commenter supports this approach and encourages EPA to adapt it to the Boiler MACT rules still under reconsideration. In those rules, facilities are required to submit a separate affirmative defense report that duplicates other required reports and notifications. 76 Fed. Reg. 80, 629

. The commenter supports any effort to reduce and eliminate duplicative reports and notifications.

Response: EPA disagrees with comments that criticize the affirmative defense for shifting the burden of proof. The affirmative defense does not require a facility to prove its innocence rather than requiring an enforcement authority to prove a violation of the CAA or change the burden of proof with respect to establishing a violation. The affirmative defense applies to penalties and thus is only utilized w here a violation has been established. The burden of proof remains with the plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been established and a source wishes to assert the affirmative defense with respect to penalties, the source does bear the burden of establishing that the elements of the affirmative defense have been met. This burden

- shifting is appropriate because the source is in a better position to determine the facts required to establish the defense. See , e.g., Arizona Pub. Serv. Co. v. EPA , 562 F.3d 1116, 1120, 1129

- 30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense127 to address excess emissions during malfunction events).

EPA also disagrees with comments that criticize the affirmative defense criteria as being overly vague or unduly restrictive and complex. The EPA believes that courts are well equipped and often do evaluate and apply the type of criteria set forth is the affirmative defense. Many of the conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy, which several states have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sep t. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP a ffirmative defenses. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.



### 5

. 5 Affirmative Def ense: Rebuttable Presumption

One commenter (0506) suggested that EPA establish a rebuttable presumption (rather than affirmative defense) where it is presumed that any violation occurring during the malfunction was not the facility’s fault unless the Agen cy proves certain facts that are enumerated in the rules.

Response: With respect to the comment that the affirmative defense should be stated instead in terms that, once a source has claimed that its excess emissions were related to a malfunction, it will not be considered to be in violation of the standards unless the enforcement authority demonstrates that the source is not entitled to claim the malfunction, the EPA does not agree that the affirmative defense should operate as the commenter suggests. The commenter improperly seeks to shift the burden of proof from the source to the EPA. It is the source, not the EPA, that has the information relevant to assess whether a particular event qualifies as a malfunction and meets the affirmative defense.



### 5

. 6 Affirm ative Defense: Suggested Revisions

One commenter (0506) stated that should the Agency keep the affirmative defense concept, they suggested several modifications to the language to make it more usable including: the use of “all;” “any activity;” the defini tion of “malfunction;” root cause analysis, recordkeeping, and use of affirmative defense for injunctive relief enforcement actions.128 Response: Many of the conditions in the affirmative defense are modeled after the affirmative defense in EPA’s State Imple mentation Plan (SIP) SSM policy, see, e.g. , State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); other conditions are modeled after a Federal Implementation Plan (FIP) promulgated by EPA (§50.1312). The EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.



### 5

. 7 Affirmative Defense: Ferroalloys MA CT Comments Incorporated by Reference

The SSM Coalition states that the EPA has not addressed apparent limitations and shortcomings of the affirmative defense, which make it an entirely inadequate substitute for setting MACT standards that include provis ions for SSM events. The commenter states that the EPA has provided no analysis that would supersede its long

- standing determination that it is not desirable to rely on enforcement, rather than regulatory language, to address the inability to comply with t echnology

- based standards during SSM events.

The SSM Coalition also states that if the EPA refuses to set alternative emission standards that apply during SSM periods and continues to rely instead on the proposed affirmative defense, the affirmative defens e must be substantially modified for it to provide any significant relief. First, the affirmative defense needs to state clearly that a source that qualifies for the affirmative defense shall not be deemed to have violated the applicable standards during t hat time. If the EPA does that, it may be unnecessary to state also that the affirmative defense relieves the source from liability for all types of penalties and injunctive relief (save criminal penalties), but that should be the clear effect of qualifyin g for the affirmative defense.

Response: The EPA disagrees that standards must be achievable during all malfunctions. The EPA agrees that standards must be achievable during startup and shutdown, and we have applied the standards applicable to normal opera ting conditions to periods of startup and shutdown. As stated previously, two sources submitting information in response to the information collection request sent to them as part of this rulemaking, provided information indicating that compliance during s tartup and shutdown is practicable.

As explained in the preamble to the proposed rule, the EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 sta ndards. The EPA's approach has been very clear that sources may raise an affirmative defense to penalties only, not to liability. Successful assertion of an affirmative defense would not exonerate a source from a violation and injunctive relief would be av ailable.129 The SSM Coalition states that the EPA offers no defensible rationale for excluding startup and shutdown events from the proposed affirmative defense. The commenter believes that there is no rational basis for the EPA not to provide the same kind of affirmative defense that it proposes to provide for malfunctions if in fact excess emissions from those units cannot reasonably be avoided during a startup or shutdown, not because of failure of a process or equipment but because of the nature of condit ions while starting up or shutting down the source.

Response: The EPA is promulgating the affirmative defense for malfunctions only, not for periods of startup and shutdown except that the affirmative defense would be available if there were a malfunction that occurs during a period of startup or shutdown. The EPA believes that malfunction events should be treated differently than periods of startup and shutdown, which are predictable and routine aspects of a source’s operations. Because startup and shutdow n periods are part of a source’s normal operations, the same approach to compliance with, and enforcement of, applicable emissions standards during those periods should apply as otherwise applies during a source’s normal operations. Further, periods of sta rtup and shutdown

– but not malfunctions

-- are taken into account when establishing section 112 emissions standards. For these reasons, the EPA believes it is appropriate to apply the affirmative defense based on the occurrence of a malfunction and not ba sed on startup or shutdown status. Furthermore, the commenter provided no information to suggest that excess emissions during startup or shutdown cannot be avoided.

Felman states that, in general, the affirmative defense language should be replaced with t he language used at 40 CFR 122.41(n), the upset defense provided under the Clean Water Act. The commenter adds that the language is generally too narrow and restrictive, noting that the proposed rules would excuse only events that do not “stem from any act ivity or event that could have been foreseen and avoided, or planned for”, while it is possible that events such as power failure or natural disasters may be “foreseen” and “planned for,” but still interfere with a facility’s ability to comply with the sta ndards. The commenter states that these types of foreseeable yet unpreventable events must either be reflected in the overall MACT requirements, or excused as a malfunction. Felman also states that the EPA should expand the proposed defense to address fore seeable yet unpreventable events.

Response: The EPA disagrees with the comment that the language for affirmative defense proposed is too narrow. The EPA chose to use the language “foreseen and avoided...”from existing policy because it conveyed that certai n actions or inactions have foreseeable results, such as improper maintenance leading to control device failure. It also conveys that while certain events can be foreseen and planned for, some cannot be avoided. Whether the events mentioned by the commente r, such as a power failure, were adequately planned for on the part of the source, will be the substance of an affirmative defense.130 Additionally, we do not find the commenter’s preference for the affirmative defense under the Clean Water Act persuasive en ough to deviate from the affirmative defense approach that has been used under the CAA for nearly 20 years. While we recognize that certain characteristics of the two approaches are similar, our preference is to adopt an approach that has been practiced

un der the CAA.

With respect to commenter’s concern that events such as power failures or natural disasters or other events that are foreseeable and have been planned for would not be eligible for the affirmative defense, the EPA believes that malfunctions that are caused by such events and that lead to violations could, depending on the circumstances, be eligible for the affirmative defense if the resulting violations could not have been prevented whether or not there was an attempt to plan for the event. P reparing and having a plan in place that addresses these events generally does not mean that all consequences of the foreseeable events can be planned for or avoided.

The SSM Coalition believes that many aspects of the affirmative defense would make it

un available as a practical matter for many, if not most, malfunctions. The commenter states that many of these limitations on the affirmative defense also are not directly related to the question of whether an exceedance of the emission limitations due to a malfunction should be excused. The commenter adds that several of the conditions for establishing an affirmative defense in proposed §63.1627(a) list numerous items which may be appropriate considerations in determining whether excess emissions during a ma lfunction should be considered a violation, but should not to be listed as mandatory criteria. The SSM Coalition states that a number of the conditions for establishing an affirmative defense use phrases that are subject to a wide range of interpretations and that on their face do not recognize any need for reasonableness or cost

effectiveness. The commenter believes that the affirmative defense, as proposed, leaves open the possibility that a source will be considered to be in violation because the enforce ment authority decides subjectively that in one or more respects it would have been “proper” or “possible” for the source to take further steps to prevent or minimize the malfunction.

The SSM Coalition suggests modifying the affirmative defense language if it is to be retained. The SSM Coalition offer specific suggested language to remove ambiguity and contradictory language, and allow for notification via electronic communication methods. Specific comments regarding the affirmative defense criteria follow:

• Notification Requirements : Felman states that availability of the affirmative defense should not be negated by a failure to notify, especially for events with small emissions. The commenter adds that the immediate notification requirements are duplicative of notification requirements under other rules, but do not include emission threshold triggers which reduce the burden of the other requirements.

• Infrequent Events : Felman states that restricting the malfunction defense to “infrequent” events is legally acceptable only if more “frequent” events are either included within the 99% UPL or excepted under some version of the startup/shutdown defense. The131 commenter adds that determining whether the event is sufficiently “infrequent” to merit application of the defense is highly subjective and vague and does not put Felman on notice of the type of behavior that is necessary to comply with the law.

• Off

- Shift and Overtime Labor : The commenter requests that the EPA delete the requirement to use off

- shift and overtim e labor because it impairs the ability to respond in a manner that is most appropriate to the circumstances.

• Severe Property Damage : According to the commenter, the word “severe” should be removed from the requirement for measure of property damage due to its ambiguity.

• Signed Operating Logs : The commenter states that the requirement for “signed” operating logs should be removed because it conflicts with the common practice of using electronic logs.

• Control Systems Were Kept In Operation “If at All Possible ”: The SSM Coalition states that the proposed §63.1627(a)(6) requires, as a condition for the affirmative defense, that all emissions “control systems were kept in operation if at all possible.” The commenter believes that the phrase “if at all possible” s hould not be used because it is an extreme term that bears no relation to good air pollution control practices. Additionally, the commenter believes that this provision should be qualified, as the EPA has qualified similar provisions in the NESHAP General Provisions in §63.6.

• By Passing Control Equipment : The SSM Coalition is also against the proposed §63.1627(a)(4) that would preclude a facility from taking advantage of the affirmative defense if the malfunction involved bypassing control equipment or a pr ocess and the bypass was not “unavoidable to prevent loss of life, severe personal injury, or severe property damage.” The commenter states that this language is stated in such strong terms that it may be difficult or impossible for a source to demonstrate that it meets this criterion, even though bypassing the control equipment or the process was an appropriate exercise of good air pollution control practices. The commenter adds that there is nothing inherent to standards under CAA section 112 that require s a source to avoid bypassing control equipment to such a degree. Lastly, the commenter states that it is not apparent, and the EPA has not attempted to explain, why the CAA would disfavor bypassing “a process” in this way.

• Excess Emissions : The SSM Coalit ion also believes the paragraph in proposed §63.1627(a)(5) should be eliminated: “All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health.” In addition to the subjective term “al l possible steps,” the commenter believes this provision again presents a disconnect between the absolute and extreme requirement of the affirmative defense and the provisions of the CAA designed to attain ambient air quality standards and protect human he alth and the environment. The commenter states that the CAA does not require sources to take “all possible steps” to control emissions, even to minimize the impact of hazardous air pollutant emissions on human health under CAA section 112(f). In addition, the commenter finds it is unclear how this criterion for qualifying for the affirmative defense differs from proposed §63.1627(a)(3) which requires that the frequency, amount, and duration of excess emissions “were minimized to the maximum extent practica ble.”

• Malfunction Report : The SSM Coalition states that the provision in the Proposed Rule for requesting and obtaining an extension of the reporting deadline of up to 30 days would provide little practical relief. The commenter explains that the source w ould have to132 submit the report within 45 days unless the EPA Administrator granted the extension request before the expiration of the initial 45

- day period, which is not likely to happen until shortly before, if not after, the report would otherwise be due . At a minimum, the commenter recommends the rule should provide that a request for extension of the reporting deadline that the Agency has not acted on within 10 days is considered granted.

Response: The EPA disagrees with comments that state that the af firmative defense is unavailable as a practical matter for many, if not most malfunctions. The EPA believes that courts are well equipped and often do evaluate and apply the type of criteria set forth is the affirmative defense. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). The EPA does not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

The EP A has considered the commenter’s suggestions associated with specific affirmative defense criteria and changes. Although not all of the changes were accepted, some are reflected in recent changes the EPA has made to these provisions:

• Notification Requireme nts : The EPA has removed the requirement to notify the EPA within 2 days of violation of a standard in order to be able to avail themselves to a claim for affirmative defense. Instead, the final rule requires the source to submit a written report to the Ad ministrator in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance , deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial

o ccurrence of the violation of the relevant standard.

• Infrequent Events : The EPA believes that if malfunctions occur on a frequent basis that the basis for the malfunction more likely falls in the categories of poor design, poor operational decision making, or failure to operate a source in a normal manner and has retained the word “infrequent” in this criteria element.

• Off

- Sh ift and Overtime Labor : Refer to Comment 7.5 : The reg ul ation requires that t o establish the affirmative defense the owner must prov e by a preponderance of the evidence that repairs were made as expeditiously as possible when a violation occurs. In light comment 7.5, , we have re

- evaluated the language concerning the use of off

- shift and overtime labor to the extent practicable and bel ieve that the language is not necessary. Although we believe that use of off

- shift or overtime labor could be cited as evidence that the133 owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text.

• Sev ere Property Damage: The EPA believes that a byp ass of control equipme nt or a process, which results in a violation, should be an exception and not undertaken lightly, and has maintained the word “severe” in this criteria.

• Signed Operating Logs : As an al ternative, the EPA a ccepts electronically signed operating logs where the format and method of submission meets the regulatory criteria and are compatible with the EPA and the delegated authorities’ electronic submission systems. Any source submitting reco rds electronically should exercise due diligence to assure receipt by the EPA and the delegated authority.

• Control Systems Were Kept in Operation “If at All Possible”: The EPA does not agree with the commenters’ belief that the phrase “if at all possible” should not be used because it is an extreme term that bears no relation to good air pollution control practices or that the provision needs to be qualified. The EPA does not agree with the comment because the phrase “if at all possible” was qualified in th e proposal. The full statement is “All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices;...”(See Federal Register / Vol. 76, No. 226 / Wednesday, November 23 , 2011 / Proposed Rules 72554)

• By Passing Control Equipment : We maintain that bypassing control equipment or a process should only occur when it is “unavoidable to prevent loss of life, severe personal injury, or severe property damage.” CAA section 112 re quires continuous compliance with the standard and therefore avoiding bypassing a control device that is in place to meet a standard under the CAA is inherent to standards under CAA section 112. We also believe that it is not unreasonable to require a sour ce to provide a basis for bypassing a control device if a source does so for safety concerns.

• Excess Emissions : The EPA disagrees with the commenter, but points out that sources are only required to minimize emissions to the level allowed during normal op erations, during periods of malfunction. Sources are not required to reduce emissions below that level or reduce emissions more than is required by the standards during malfunctions.

• Affirmative Defense Report : The EPA has eliminated the requirement for a 45

- day malfunction report in the final rule. Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation (as was required under the proposed 45

- day report), that i t has met the affirmative defense in an affirmative defense report to be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second complian ce, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard.

Commenter (0505) stated that while they support the adoption of an affirmative defense for malfunctions, they have concerns with aspe cts of the defense EPA has proposed. The detailed provisions of the proposed affirmative defense are virtually identical to provisions EPA has recently been proposing in other related CAA rules. Thus, the concerns which the commenter134 previously expressed w ith respect to those rules continue to apply here.

More specifically, on January 31, 2012, an ad hoc coalition of eighteen trade associations and business organizations

– the “SSM Coalition”

– filed comments on the SSM provisions of the ferroalloys propos ed MACT rule. The SSM Coalition‘s comments are included with these comments as Appendix F. The commenter has reviewed these comments and endorses them, and hereby incorporates them by reference into these comments.

Commenter (0505) stated that the first pr eference now, consistent with the SSM Coalition‘s comments, is that EPA authorize work practices to apply during periods of malfunctions to meet the affirmative defense. As the SSM Coalition notes by way of example, “there are work practices

– such as moni toring operating parameters to identify a malfunction and stopping or cutting back the process accordingly

– that represent the best practices for minimizing emissions during a malfunction.”

Response : The EPA may set standards, be they numerical emission limits or work practices, to regulate emissions during startup, shutdown, and normal operation. The EPA is not required or directed by the CAA to address emissions from malfunctions by setting standards applicable to periods of malfunction. Neither Sect ion 111 nor Section 112 include language directing that the Agency account for emissions due to malfunction when setting standards under these sections.

Affirmative Defense: Frequency

One commenter (0505) stated that if EPA were to continue with the af firmative defense approach, however, we believe the currently

- formulated version is excessively cumbersome and unworkable. The SSM Coalition‘s comments address problems with the proposed language. C ommenter (0505) highlights just a few of these points and add some of our own:

1. The provision is set up at the outset as a mechanism to be used “in response to an action to enforce.” § 63.1344, introductory paragraph. Yet for a party to qualify for the defense, the party must submit notifications to EPA almost immediately after a malfunction occurs, and submit voluminous detailed written reports to EPA within 45 days after the malfunction. § 63.1344(b).

We believe that this is essentially “putting the cart before the horse,” and doing so in an unwieldy manner. As EPA has enforcement discretion and many malfunctions may be brief and inconsequential, one might reasonably expect that many malfunctions may never become the subject of an enforcement action. It is not reasonable to require a facility to go through su ch immediate notice and burdensome reporting when it may have good reason to believe that an enforcement action may never be brought.135 This immediate notice and quick development of extensive written reports appears to have its roots in the “force majeure” provisions of EPA‘s enforcement consent decrees. In the context of such decrees, the requirements can make sense, as the defendant will be seeking EPA‘s approval to extend compliance deadlines and time will be of the essence. The statute of limitations fo r bringing an enforcement action, however, is generally five years. These immediate notice and quick written report requirements simply make no sense in the affirmative defense for malfunction context. The commenter stated that EPA should require malfuncti on reports each six months. Then, if and when EPA might decide to initiate an enforcement action, the substantive elements of the defense could come into play.

Response: The EPA has evaluated some of the affirmative defense criteria, and is revising both the immediate notification and 45

- day malfunction report. Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation (as was required under the proposed 45

- day rep ort), that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compliance, deviation report, or excess emission report otherwise required after the initial occurrence of the violation of the rele vant standard (which may be the end of any applicable averaging period). If such compliance, deviation report, or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report, or excess emission report due after the initial occurrence of the violation of the relevant standard. This change provides sources with sufficient time to demonstrate that they have met the required affirmative d efense criteria.



### 5

. 8 Affirmative Defense: Opposition to Independent Mandates to Qualify for the Defense

2. One commenter (0505) stated that the litany of factors that must all be proven without exception could make the defense almost impossible to meet, eve n where it is clear that the malfunction occurred at a well

- maintained plant and the operator took all reasonable steps to avoid it and correct it expeditiously. The commenter agrees with the SSM Coalition‘s comments that these numerous factors should be listed as relevant criteria to be considered and weighed on

a case

- by

- case basis, but that they should not be independent mandates to qualify for the defense.

Response: The EPA believes the affirmative defense criteria are well

- defined and will assist EPA and the courts in making reasoned determinations as to the establishment of affirmative defenses. The EPA and the courts have expertise and experience in evaluating and applying criteria such as those for the affirmative defense. As noted above, many of t he conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy, which several states have adopted into their SIPs. We do not have any indication that parties to enforcement proceedings have had any significant difficulti es applying the terms of these SIP affirmative defenses.136 

### 5

. 9 Affirmative Defense: B ypassing Control Equipment

3. One commenter (0505) stated that a particularly egregious requirement being proposed is § 63.1344(a)(4), where a malfunction related to bypassin g control equipment cannot qualify for the defense unless “the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage.” There may be many types of situations where good air pollution control practice would dictate tempor ary bypass of control equipment that would not rise to avoidance of killing, maiming, or destruction, so the standard set by this language is extreme overkill.

Response: Many of the conditions in the affirmative defense are modeled after the affirmative defense in EPA’s State Implementation Plan (SIP) SSM policy, see, e.g. , State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); other conditions are modeled after a Federal Implementatio n Plan (FIP) promulgated by EPA (§50.1312). The EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

The EPA believes the affirmative defense criteria are well

- defined and will assist EPA and the courts in making reasoned determinations as to the establishment of affirmative defenses. The EPA and the courts have expertise and experience in evaluating and applying criteria such as those for the affirmative defense. As noted above, many of the conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy, which several states have adopted into their SIPs. We do not have any indicati on that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses. The EPA considers the affirmative defense criteria to be clearly subordinate to safety and good air pollution control pr actices by defining that the actions must be “consistent with” these practices.



### 5

. 10 Affirmative Defense: Root Cause

One commenter (0505) stated that the requirement to prepare and file a detailed “root cause” report is, as pointed out by the SSM Coalition in many respects illogical and unworkable. If a malfunction is, as EPA states “unavoidable” and “unforeseeable,” in many situations a facility may simply not be able to determine the “root cause” of the malfunction. If indeed the facility has taken all reaso nable steps to respond and correct the situation, it would be inconsistent with the very concept of malfunction to deny the defense to a party who is unable to pinpoint the “root cause” in a report.

Response: In the context of this rule, the term “root ca use analysis” was used generically to imply an analysis of sufficient depth and complexity to indicate whether a malfunction did indeed cause a failure to meet a standard, provide sufficient information on the nature and cause137 of a malfunction to determine whether the source had a malfunction that met the definition of a malfunction, and whether civil penalties are an appropriate sanction for the violation if one occurred. The term “root cause analysis” is not defined in subpart A (the GP) or in the subpart being promulgated. The EPA did not intend to prescribe a specific methodology, given that “root cause analysis” is not a defined term in the applicable subparts of part 63.

While conducting an analysis of every malfunction may be a “best practice,” for re gulatory purposes, an analysis is only required for those malfunctions for which the source chooses to assert an affirmative defense, and not every malfunction is significant enough to warrant the assertion. The EPA believes that sources seeking to minimiz e emissions will endeavor to determine what went wrong anytime there is a minor or major malfunction, and the facility should decide what level of investigation is needed in each instance.

Comment: The SSM Coalition states that the requirement in proposed §63.1627(a)(9) that the source “have prepared a written root cause analysis to determine, correct and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue” again does not implement the stat utory criteria for standard

- setting under section 112. The commenter is concerned that read literally it would mean that a source could never take advantage of the affirmative defense if the source was unable to determine the primary cause of the malfuncti on or was unable to correct that cause. The EPA has defined a malfunction as an event that is “unavoidable” and unforeseeable, and “not reasonably preventable.” It therefore should be expected that in many cases the primary cause(s) of the malfunction will not be ascertainable, or it will not be possible to identify a way to ensure the malfunction will not recur. In addition, the commenter is concerned that requiring the facility to eliminate the primary causes of the malfunction, without regard to “taking into consideration the cost of achieving such” elimination and the “non

- air quality health and environmental impacts and energy requirements” associated with its elimination is unreasonable and entirely inconsistent with the criteria for standards establis hed under CAA section 112(d).

Felman states that the requirement to perform a root cause analysis is vague and does not put Felman on notice of the type of analysis that the EPA will deem sufficient, or the time in which such an analysis must be performed . According to the commenter, such an analysis is also unnecessarily burdensome and serves no environmental protection purpose for many malfunction events where the “root cause” is clearly identifiable (e.g., power outage, hurricane).

The CRWI asserts that the EPA’s use of the term “root cause analysis” implies a specific formal process. The commenter notes that for many malfunctions, the cause is immediately obvious and a formal process for determining the cause is not needed. The commenter adds that a for mal root cause analysis is typically limited to very significant events or repeat events (e.g., the first time a thermocouple fails, the most likely cause is a bad thermocouple, but if a second one fails within a short period of time, then something else m ay be causing that event to happen and a more detailed analysis may be needed.) The commenter adds that the proposed language assumes that138 all malfunctions are equally significant and need an identical degree of investigation (e.g., a missing data point du e to a malfunction of the data acquisition system is not as significant as a power failure or a catastrophic event such as fire or explosion). The CRWI believes that a formal root cause analysis should only be used when other reasonable methods fail to sho w what caused the malfunction or when the serious nature of an event might make such an analysis necessary. The commenter states that other tools may be more appropriate (e.g., failure mode and effect, fault tree, etc.) or more powerful tools may be introd uced in the future. The commenter concludes that the facility is the only one that can and should decide what tool to use to determine the cause of the malfunction.

The commenter states that if the EPA intends for the facility to investigate and fix the s ource of the malfunction so that it is less likely to recur, the CRWI supports that concept but suggests that the Agency use an alternative term that does not carry a specific meaning. However, if the Agency envisions a formal process for determining the r oot cause for every malfunction, no matter how simple, the CRWI believes this is unnecessary and would result in excess efforts with no environmental gains.

Response: The EPA believes that a minor administrative burden will result in sources analyzing the ir violative emissions to reduce or avoid those emissions in the future, which is an environmental benefit. A root cause analysis is only required if a source seeks to assert an affirmative defense. However, such an analysis is beneficial in resolving or p reventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause analysis is one example of what constitutes good air pollution control practices to minimize emissions. A root cause analysis is not r equired for every malfunction

- - only those malfunctions for which the source chooses to assert an affirmative defense. We agree with the commenter that not every malfunction is so significant that it would require asserting an affirmative defense. The EP A believes that sources seeking to minimize emissions will endeavor to find out what went wrong anytime there is a minor or major malfunction. The facility should decide what level of investigation is needed in each instance. We agree with the commenter th at sources should use appropriate techniques of analysis to achieve the desired results and conclusions in the event of a malfunction. The EPA joins the commenter in seeking meaningful results which successfully identify, and address the cause of the malfu nction. However, if the malfunction rises to the level of one that the source seeks to avail themselves of the affirmative defense, then a root cause analysis is required. In the context of part 63 section 112, the term “root cause analysis” was used gener ically to imply an analysis of sufficient depth and complexity to indicate whether a malfunction did indeed cause a failure to meet a standard, provide sufficient information on the nature and causes of a malfunction to determine whether the source had a m alfunction that met the definition of a malfunction, and whether civil penalties are an appropriate sanction for the violation, if one occurred. The term “root cause analysis” is not defined in subpart A (the General Provisions) or in the subpart being pro mulgated, subpart LLL . The EPA did not intend to prescribe a specific methodology, given that “root cause analysis” is not a defined term in the applicable subparts of Part 63.139 A root cause analysis is not mandatory and is only required if a source seeks to assert an affirmative defense. However, such an analysis is beneficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause analysis is one example of what constitutes good air pollution control practices to minimize emissions. A root cause analysis is not required for every malfunction, as specified above, and is only required for those malfunctions for which the source chooses to assert an affirmative defense.

With re spect to commenter’s concern that certain events such as power outages or earthquakes would not require a root cause analysis to determine the cause of a malfunction, the EPA again reiterates that not all malfunctions will require the same level of analys is to determine the cause of the event. The EPA understands that some malfunctions will be relatively straightforward to analyze for the purpose of determining the basic cause of the event, and submittal of the analysis that addresses the criteria of the a ffirmative defense, will fulfill the requirement to assert an affirmative defense.

The EPA believes it has provided clear criteria within the affirmative defense provisions to support the development of an affirmative defense report. Additionally, the EPA believes that these provisions will result in a minor administrative burden, but will result in sources analyzing their violation emissions to reduce or avoid those emissions in the future, which is an environmental benefit. A root cause analysis is not m andatory and is only required if a source seeks to assert an affirmative defense. However, such an analysis is beneficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root c ause analysis is one example of what constitutes good air pollution control practices to minimize emissions. A root cause analysis is not required for every malfunction, as specified above, and is only required for those malfunctions for which the source

c hooses to assert an affirmative defense.

Comment : The CRWI expresses concern that labeling malfunctions as an affirmative defense before it has been established to be a deviation improperly shifts the burden to the facility. The commenter suggests that th e EPA should establish a rebuttable presumption where it is presumed that the facility did everything in their power to minimize emissions during malfunctions, unless the Agency proves certain facts that are enumerated in the rules, allowing the Agency to challenge the alleged deviation without compromising the legal rights of either party.

The SSM Coalition states that even if the proposed affirmative defense were not unreasonably restrictive, being able to assert a defense obviously is not the same as co mplying with emission limitations that are properly set in accordance with CAA section 112. The commenter believes that the affirmative defense places the source in the position of proving its innocence, rather than the EPA or another enforcement authority having to prove that the source violated the CAA.140 The commenter also finds it unclear where the EPA finds the legal authority in the CAA to shift the burden to the regulated community of proving (or disproving) essential elements of an alleged violation. The commenter states that the EPA has not provided any statutory authority for requiring a source to prove its innocence, including fully demonstrating its innocence within 45 days of the event, without even being charged.

Response: The EPA disagrees wit h comments that criticize the affirmative defense for shifting the burden of proof. The affirmative defense does not require a facility to prove its innocence rather than requiring an enforcement authority to prove a violation of the CAA or change the burd en of proof with respect to establishing a violation. Further, the EPA does not presume a violation unless the reporting requirements are met as the commenter suggests. An affirmative defense to civil penalties for exceedances of emission limits that are c aused by malfunctions is available to a source owner or operator, but the decision to use the affirmative defense and meet the reporting and recordkeeping requirements rests with the source owner or operator, who must weigh the cost of meeting the requirem ents against their perceived need to prepare for assertion of an affirmative defense if a violation is established. The affirmative defense applies to penalties; thus it is only used where a violation has been established. The burden of proof remains with the plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been established and a source owner or operator wishes to assert the affirmative defense with respect to penalties, the source owner or operator bears the burden of esta blishing that the elements of the affirmative defense have been met. This burden

- shifting is appropriate because the source owner or operator is in a better position to determine the facts required to establish the defense. See , e.g., Arizona Pub. Serv. Co . v. EPA , 562 F.3d 1116, 1120, 1129

- 30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to address excess emissions during malfunction events).

Our judgment is that the affirmative defense criteria capture the appr opriate considerations in determining whether penalties are appropriate when a violation occurs as the result of a malfunction. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several s tates have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses.

Comment: The SSM Coalition believes it is not clear what the affirmative d efense covers. According to the commenter, where the EPA states that the affirmative defense is “to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined in §63.2,” the term “civil penalties,” is ambiguous . The commenter states that it is also unclear how the affirmative defense would apply to enforcement actions by State and local governments, or to private citizen enforcement actions under CAA section 304.141 The commenter also states that the preamble to t he Proposed Rule does not give any explanation for why the affirmative defense would not apply to injunctive relief. The commenter states, as a matter of law, injunctive relief may not be available in cases where a civil penalty cannot be imposed. The comm enter adds that maintaining liability for injunctive relief renders the affirmative defense particularly ineffective with respect to citizen suits. According to the commenter, if the source is even potentially subject to injunctive relief, and therefore co uld be required to pay the citizen

- plaintiff’s attorneys fees even if the source successfully demonstrated that it otherwise qualified for the affirmative defense, then the affirmative defense would not accomplish the EPA’s stated objective of providing re lief in situations where the emission limitations cannot be met despite proper design and operation of process and control equipment.

The commenter believes, at a minimum, the EPA should state that the affirmative defense applies to civil penalties, civil administrative penalties, noncompliance penalties, and injunctive relief, in an action brought by the EPA, a state, or a citizen

- suit plaintiff. The commenter adds that the EPA also should reword the “affirmative defense,” so that it states that a source “ will not be deemed in violation of” the MACT standards for excess emissions or other deviations from the standards, associated with a startup, shutdown, or malfunction event, unless the event, and the source’s response to the event, do not meet the criteri a spelled out in the regulations. The commenter suggests this provision for malfunction should be called something other than an “affirmative defense,” such as an “alternative standard for SSM events.”

Response: The EPA’s view is that the affirmative defen se is consistent with CAA sections 113(e) and 304. Section 304 gives district court’s jurisdiction “to apply appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determini ng the amount of a penalty to be assessed only after it has been determined that a penalty is appropriate. The affirmative defense regulatory provision is not relevant to the amount of any penalty to be assessed under section 113(e) because if a court dete rmines that the affirmative defense elements have been established, then a penalty is not appropriate and penalty assessment pursuant to the section 113(e)(1) factors does not occur.

In exercising its authority under section 112 to establish emission stand ards (at a level that meets the stringency requirements of section 112), the EPA necessarily defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines two categories of violati on. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standard are subject to injunctive relief a nd penalties. The CAA does not require that all violations be treated equally. Further, a citizen suit claim under section 304 allows citizens to commence a civil action against any person alleged to be in violation of “an emission standard or limitation u nder this chapter.” The CAA, however, allows the EPA to establish such “enforceable emission limitations.” Thus, the citizen suit provision clearly contemplates enforcement of the standards that are defined by the EPA. As a result, where the EPA defines it s emissions limitations and enforcement measures to allow a source the opportunity to prove its entitlement to a lesser degree of violation (not subject to142 penalties) in narrow, specified circumstances, as the EPA did here, penalties are not “appropriate” under section 304.

The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned a bout additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused by malfunctions that could not have prevented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has utilized its Section 301(a)(1) authority to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns.

The affirmative defense applies to civil penal ties, including civil administrative penalties and penalties under section 120, but does not apply to injunctive relief or criminal penalties. The affirmative defense is available in any civil action to enforce the standards set forth in this rule, whether such action is brought by the EPA , a state or local authority or a citizen. The EPA agrees that in some cases, injunctive relief may not be appropriate if all the criteria of the affirmative defense have been satisfied. In such cases, liability for attorn ey’s fees is not a real issue. However, some form of injunctive relief may be appropriate. The affirmative defense is not a time

- bar to civil penalties. The EPA does not intend to provide an affirmative defense to criminal charges as the very nature of cri minal charges is that there is alleged to be a knowing violation (CAA Section 113(c)(1

- 3), or a knowing or negligence release that threatens imminent danger to persons (CAA Section 113(c)(4)and (5)). In these circumstances, it is likely that the source did not do all that could be done to prevent the excess emissions. However, if there are circumstances that justify a knowing release as is suggested by the commenter, such circumstances can be raised in any enforcement action and may be the basis for a defen se.

The EPA reminds the commenter that the EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard” ). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously apply and meet section 112’s minimum stringency requirements, even during periods of startup, shutdown and malfunc tion). Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that, even where there is a malfunction, the emission limitation is still co ntinuous by being enforceable through injunctive relief.

The affirmative defense is available in any action to enforce the standards set forth in this rule, whether such action is brought by the EPA, a state or local authority or a citizen. Although the
pr eamble‘s reference to the “Administrator” may have caused some confusion, there is nothing in the language of the regulatory text establishing the affirmative defense that suggests that the affirmative defense is limited to the EPA enforcement actions.143 

## Section 6 : Co mments on Impacts of the Rule

6

. 1 Impacts: ACI Cost Estimate Inaccurate

One commenter (0511) stated that EPA’s cost estimate in the 2012 preamble is grossly inaccurate. The commenter notes that if an affected source has to consider a second ACI system then it is the commenter’s experience that the additional capital cost would be between $15 and $20 million and the annual operating cost (exclusive of capital, administrative, labor, safety or lab costs) of operating the ACI system is in excess of $1 million/y ear. The commenter believes the costs associated with moving to a beyond

- the

- floor limit are considerably more than what EPA estimated in the 2012 preamble. The commenter’s extensive experience suggests that the cost estimates in the 2009 rulemaking are re asonably accurate and capture the cost of consistently achieving a 55 lbs/million ton v. a 58 lbs/million ton limit. Based on the additional cost associated with reaching the beyond

- the

- floor limit, the commenter believes that EPA should maintain the limit at the floor.

Response: See response 3.14 and preamble section V.B..



### 6

. 2 Impacts: PM Incremental Risk to Public Health

One commenter (0525) stated that they are very concerned about the technical justification and scientific validity of the analysis upon which the ambient air quality standards for PM are based. The significant issues with scientific justification of that standard have lead to an unfortunate perception on the part of the public as to the perceived benefits of the rule as initially adopted and an equally unfortunate perception that the proposal under the reconsidered rule will compromise those benefits. The commenter fundamentally disagrees that this reconsideration represents a significant incremental risk to public health, but will address that position in supplemental comments within the extended comment period that will follow the public hearing of this date in Arlington, Texas.

The commenter continued that they support the proposed modifications to emission standards for PM.

Response: Th e ambient air quality standards for PM are not part of this rulemaking and thus a response to this comment has not been developed.144 

## Section 7 : Comments Regarding Miscellaneous Other Issues

7

. 1 Other Issues: Request to Reorganize Rule

One commenter (0505) requested tha t EPA re

- organize the rule requirements to once again place, for example, all recordkeeping requirements under one regulatory subsection. Recordkeeping requirements may now be found in multiple sections creating compliance confusion.

Response: We believe we have organized this rule in a manner that makes it as easy to read and understand as possible.



### 7

. 2 Other Issues: Request to Remove Flow Monitor Requirement for NSPS

One commenter (0505) stated that the requirement to install flow monitors is over

- broad a nd should exclude cases where PM is the only NSPS pollutant (§ 60.63(h)). Because PM CEMS are no longer being applied to collect lb/hour data, flow is not required.

One commenter (0252) stated that since the proposed rule requires a PM CPMS for PM complian ce in lieu of a PS

- 11 certified PM CEMS, EPA should clarify whether a stack flow rate monitoring system would no longer be required on a clinker cooler stack at an existing source ?

Response: We do not believe it is overly burdensome to require facilities to install stack flow monitors for these types of large sources. We note that only in the case of clinker coolers is there a situation where a mass flow rate is not required to be measured on a continuous basis. However, we believe that stack flow info rmation is an important emissions parameter and may be useful in determining actual annual emissions for other purposes, such as annual emissions reporting.



### 7

. 3 Other Issues: Clarification on Averaging Periods for NSPS

The commenter (0505) stated th at the requirement to establish the operating limit based on the highest 1

- hour average [§ 60.64(b)(iii)] should specify whether it should be derived from block145 averages or rolling averages.

Response: This has been clarified in the final rule.



### 7

. 4 Other Issue s: Proposed Administrative Correction to § 63.1343(b)

One commenter (0505) stated that the heading of § 63.1343(b) does not include raw mills or finish mills, even though the requirements of the section would apply to such units. The heading should be rev ised to include these units to avoid confusion or other unintended consequences.

Response: EPA will review the proposed language in § 63.1343(b) and make changes as
necessary.



### 7

. 5 Other Issues: Proposed Administrative Correction to § 63.1344(A)(1)(III)(2)

O ne commenter (0505) stated that the wording in § 63.1344(A)(1)(III)(2) implies that off

- shift and overtime labor is required to demonstrate the affirmative defense. The language shoul d be revised to reflect that these measures should be used ―as necessary to correct the malfunction expeditiously.

Response : The regulation requires that to establish the affirmative defense the owner must prove by a preponderance of the evidence that r epairs were made as expeditiously as possible when a violation occurs. In light of the above comment, we have re

- evaluated the language concerning the use of off

- shift and overtime labor to the extent practicable and believe that the language is
not neces sary. Although we believe that use of off

- shift or overtime labor could be cited as evidence that the owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text.

Other Issues: H ourly Clinker Monitori ng § 63.1348(b)(1)(iv) Requirement

One commenter (0505) stated that because PM

- CEMS will no longer be used to monitor continuous compliance on a lb/ton clinker basis, the provisions for hourly clinker monitoring [ § 63.1348(b)(1)(iv)] should not be connect ed to the PM standard. This would be specifically applicable to hazardous waste kilns that have the cooler PM limit apply, but not to any of the kiln limits. In these cases, hourly clinker monitoring serves no useful purpose. Facilities should not be requi red to make costly changes to accommodate (or comply with) and unnecessary monitoring requirement.146 Response: The EPA has made the requested change to the rule language.



### 7

. 6 Other Issues: Proposed Administrative Correction to § 63.1350(k)(4)

One commenter ( 0505) stated that all references to performing QA procedures in conjunction with raw mill operations [§ 63.1350(k)(4)] need to be revised to clarify that they are only applicable to in

- line kiln/raw mill systems.

Response: The EPA has made the requested ch ange to the rule language



### 7

. 7 Other Issues: Proposed Administrative Correction to § 63.1350(m)(4)

One commenter (0505) stated that if the performance tests required to be conducted in order to establish a particular site

- specific CPMS limit are not required until up to 180 days from the compliance date, it makes no sense why the CPMS need to be installed and operated by the compliance date [§ 63.1350(m)(4)]. The requirement should be revised to state that the CPMS need to be installed and operated by the tim e the initial performance test is conducted.

Response: Having the CPMS installed prior to the performance test date assures that the CPMS will be operational and installed properly before performance testing is required.

Comment: Other Issues: Proposed Administrative Correction to § 63.1355(f)(ii)

One commenter (0505) stated that EPA‘s discussion of the recordkeeping requirements [§ 63.1355(f)(ii)] does not make clear what is meant by “the type of raw feed.” This needs to be clarified in the final rule

.

Response: Note recordkeeping requirements have been revised due to changes in startup and shutdown standards. Therefore this comment is moot.



### 7

. 8 Other Issues: Proposed Regulatory Text Changes, Refer to (0505) Appendix G

One commenter (0505) stated that they have concerns regarding the regulatory text of a number147 of other regulatory provisions being proposed. A detailed matrix identifying these specific provisions together with a discussion of our particular concerns and recommended changes to the regula tory text of each provision is provided with these comments as Appendix G.

Response: Appendix G comments have been incorporated and addressed in the applicable sections of this document.



### 7

. 9 Other Issues: Request for Testing and Monitoring Exemptions for Sm all/Area Sources

Commenter (0494) stated that the EPA should promulgate final revisions to the NESHAP that minimize the impacts on small entities and area sources. The commenter stated that the EPA could minimize the impact on small entities and areas so urces through flexibility through cost

effective testing and monitoring requirements.

Response: This comment addresses issues which were settled in the 2010 final rule, and not reconsidered, reopened, or otherwise reexamined here. Consequently, no respons e is required for this comment. If (against our view) a response is deemed necessary, EPA’s assessment of impacts on small businesses determined that 3 of the 26 existing entities were small businesses. Moreover, costs to such entities would be reduced as compared to the 2010 rule. For example, HCl CEMS are not required for sources equipped with scrubbers and those sources may use periodic performance testing in combination with parametric monitoring.. Also, the final rule does not require PM CEMS with its PS 11 requirements but instead requires sources to perform an annual performance test in combination with parametric monitoring. Also, the revised PM standard will provide additional flexibility to the industry in developing a comprehensive compliance str ategy with many sources able to take advantage of less costly to control measures in order to comply with the standards.



### 7

. 10 Other Issues: Duplication of Reporting Requirements

One commenter (0506) stated that as proposed, § 63.1354(b)(9)(vi) requires facil ities to report all PM, HCl, Hg, and THC CEMs or Hg sorbent trap 30

- day rolling average data using EPA’s WebFIRE database. Facilities are already required to report deviations as a part of their semi

annual report (see the requirements in § 63.1354(b)(9)(v ii) that require the date, duration, and description of each deviation). It appears that requiring facilities to report daily rolling averages and deviations is a duplication of effort, increasing costs without any environmental benefit. The commenter stat ed that they see no reason to report daily CEMs data and suggests that EPA remove this requirement when promulgating the final rule.148 Response: The EPA disagrees with the commenter that reporting the 30

- day rolling averages from all PM, HCl, Hg, and THC CE Ms or Hg sorbent trap in addition to higher measured levels in the semi

- annual report is a duplication of effort. The requirement to report excess emissions in §63.1354(b)(8) also requires the elements in §63.10(c)(5)

– (13) to be reported in excess emiss ions reports. The elements include information such as the specific identification (i.e., the date and time of commencement and completion) of each time period of excess emissions and parameter monitoring exceedances that occurs during periods other than startups, shutdowns, and malfunctions of the affected source, the nature and cause of any malfunction (if known), the corrective action taken or preventive measures adopted, the nature of the repairs or adjustments to the CMS that was inoperative or out o f control, and total process operating time during the reporting period. This information is much more specific and very different than what is required to be reported in §63.1354(b)(9)(vi). Thus, we are not revising these paragraphs to address potential duplicative reporting.

7

. 11 Other Issues: Comment Regarding 63.1343(a)

Commenter (0505

- Appendix G) stated "the 30

- day rolling average is not defined in equations for Hg, THC ad HCl as it is for NOx and SO2 in NSPS for CPMS monitoring for PM. Further Eq. 6 for mercury is wrong. The commenter indicates that calculations would be easier, particularly when accounting for clinker inventory adjustments per standard business practices, if total mass emissions for 30 kiln operating days can be divided by total clin ker production for 30 kiln operating days."

This comment is in reference to the following requirement: standards for mercury and THC, and HCl if CEMS is used, are based on 30

- day rolling average. [63.1343(a)]

Commenter states that this needs to be consis tent with methodology for 30

- day rolling average calculations. Equations should be similar to those used for NOx and SO2 (i.e. based on hourly data, not average of daily averages. Allow for alternate calculation by dividing total emissions over 30 consecut ive kiln operating days by total clinker production for the same 30 kiln operating days.

Response: We have corrected the equation in the rule.149 

### 7

. 12 Other Issues: Comment Regarding 63.1348(a) and 63.1349(b)

Commenter (0505

- Appendix G) stated "Is this after the compliance date or at any time the CEMS or CPMS meets the PS even if more than 30 days prior to the compliance date? Also, must the alternate THC limit be determined prior to the compliance date if the first 30 days after the compliance date must be u sed? What is “consecutive”, is it “continuous”?"

This comment is in reference to the following requirement: the first day of the 30 operating day performance test is the first day following completion of the field testing and data collection that demonstr ates that the CPMS or CEMS has satisfied the relevant CPMS performance evaluation or CEMS performance specification acceptance criteria. The performance test period is complete at the end of the 30th consecutive operating day. [63.1348(a) and 63.1349(b)]

Commenter recommends that EPA clarify that it is the first 30 operating days after the compliance date. Modify text: The first day of the 30 operating day performance test is the first day after the compliance date following completion of the field testing and data collection that demonstrates that the CPMS or CEMS has satisfied the relevant CPMS performance evaluation or CEMS performance specification acceptance criteria. The performance test period is complete at the end of the 30th consecutive operating day.

Response: The EPA agrees with the comment and has modified the rule text to add clarity regarding the effective date of compliance with the operating limits.

7

. 13 Other Issues: Comment Regarding 60.64(b)(2) and (3)

Commenter (0505

- Appendix G) stated "T his requirement appears to require that any source, other than kilns, in the NSPS F source category constructed, reconstructed or modified after Aug. 17, 1971 is currently subject to the NESHAP monitoring requirements. These monitoring requirements should only apply to sources constructed, reconstructed, or modified after June 16, 2008."

This comment is in reference to the following requirement: for sources subject to capacity standards at major sources, use Method 9 and follow procedures in 63.1350(f), (m )(1) through (m)(4), m(10) through (11), (o) and (p). [60.64(b)(2) and (3)]

Commenter recommends that EPA clarify that opacity monitoring requirements in NESHAP, referenced by NSPS F, only apply to sources constructed, reconstructed, or modified after Jun e 16, 2008.150 Response: It was EPA’s intent that the modified opacity monitoring provisions apply to all sources subject to NSPS.



### 7

. 14 Other Issues: Comment Regarding 63.1350(f)(1)(iv)

Commenter (0505

- Appendix G) stated "Published version reads “30 opacity observations”. What is “30 observations”?"

This comment is in reference to the following requirement: for other subject sources, monthly 10

- minute VEs per Method 22. If any VE observed must conduct 30 observations by Method 9, beginning within 1 hour. [63 .1350(f)(1)(iv)]

Commenter recommends that the following change be made: “...conduct 30 observations (recorded at 15

- second intervals) in accordance with Method 9..."

Response: The EPA has reviewed the proposed language and has made the necessary changes to
t he rule.

7

. 15 Other Issues: Comment Regarding 60.64(c)

Commenter (0505

- Appendix G) stated "Calculations would be easier, particularly when accounting for clinker inventory adjustments per standard business practices, if total mass emissions for 30 kiln oper ating days can be divided by total clinker production for 30 kiln operating days."

This comment is in reference to the following requirement: calculate rolling 30 kiln operating day average emission per Eq. 3: Ed = (k/n)∑CiQi/Pi, where Ci is hourly concent ration time in ppm; Qi is hourly average gas flow rate in scf/hr; Pi is total clinker produced for that hour ; k is a conversion factor; and n is the number of kiln operating hours over the 30 kiln operating days. [60.64(c)]

Commenter recommends that EPA a llow for alternate calculation by dividing total emissions over 30 consecutive kiln operating days by total clinker production for the same 30 kiln operating days.

Response: We have reviewed the equations and have made the necessary corrections

.151 7

. 16 Other I ssues: Comment Regarding 63.1343

Commenter (0505

- Appendix G) stated "Table 1 does not indicate D/F for normal operations (existing or new kiln) as TEQ basis."

This comment is in reference to the following requirement: Table 1: D/F limits for normal
ope rations. [63.1343]

Commenter recommends that EPA fix Table 1.Add TEQ to Table 1 for Existing Kiln

– Normal operation and New Kiln

– Normal operation.

Response: The EPA agrees with the comment and has added TEQ to Table 1.

7

. 17 Other Issues: Comment Regarding 63.1350(o)(4&5)

Commenter (0505

- Appendix G) stated "Even if you submit information in a timely manner if the Administrator does not take action, the facility must still be in compliance. This was asked in Dec 2010, but it was not addressed by the EPA."

This comment is in reference to the following requirement: alternate monitoring

– Administrator will notify you of approval or denial within 90 days...Neither submittal of the application or the Administrator’s failure to approve or disapprove the applicati on relieves you of the responsibility to comply with any provision... [63.1350(o)(4&5)]

Commenter states that if Administrator does not take action with the specified timeframe, the alternate method should be approved.

Response: The commenter is correct tha t the Administrator's failure to approve or disapprove an alternative monitoring application or request under 63.8(f) does not relieve a source of the responsibility to comply with the rule provisions. Nevertheless, if the application or request is for a n alternative test method (which would be the case if the monitoring serves as the performance test method, e.g., mercury monitoring, HCl monitoring, THC monitoring, or flow monitoring under Subpart LLL), then the General Provisions (63. 8 (f)(3)) do allow t he owner/operator to use an alternative test method in the absence of notification of approval/disapproval within 45 days after submission of a request. However, under 63. 8 (f)(4) ) should the Administrator find reasonable grounds to dispute the results obta ined by the alternative test method, he/she can require that the specified method be used in a retest.152 Other Issues: Comment Regarding 63.1350(o)(4&5)

Commenter (0505

- Appendix G) stated "Why only applicable to Hg? Standards on a dry basis should be all owed to rely on default moisture from annual RATA as is allowed under GHG monitoring. For Hg, both Hg and flow monitors are on a wet basis, so no moisture correction factor is needed to calculate mass emission rates, which are then divided by production ra tes to get to units of standard. Should not be an issue. This was asked in Dec 2010, but it was not addressed by the EPA."

This comment is in reference to the following requirement: ensure appropriate corrections for moisture are made when measuring flow rates used to calculate mercury emissions. [63.1350(o)(4&5)]

Commenter states that if moisture corrections are required, the default moisture from annual RATA is acceptable.

Response: The EPA does not see a need to modify the requirement for use of approp riate connections for moisture when measuring flow rates used to calculate mercury emissions. We are only pointing out that sources should be aware of their measurement parameters and report appropriate and consistent data. RATA tests should not involve the use of ‘default’ values, but rather should consist of measured values during the testing.

7

. 18 Other Issues: Comment Regarding 63.1350(1) and 63.1350(m)

Commenter (0505

- Appendix G) stated "The regulation at (m)(3) requires the determination (and presum ably recording) of 3

- hour block averages. Since the limit is on a 30

- day RA basis, why are 3

- hour blocks needed? This was asked in Dec 2010, but it was not addressed by the EPA."

This comment is in reference to the following requirement: must comply with (m)(1) through (m)(4) for CMS or CPMS. [63.1350(1) and 63.1350(m)]

Commenter recommends that EPA eliminate the requirement for 3

- hr block averages. Delete (m)(3) : Determine the 3

- hour block average of all recorded readings.153 Response: We have changed the r equirement to 1 hour block averages. One hour block averages are necessary to calculate the average hourly emission rates that are then used to calculate emissions overs a 30 day period

.

7

. 19 Other Issues: Comment Regarding 63.1340(b)(6) and 63.1345

Commente r (0505

- Appendix G) stated "Previously 63.134(c) stated: “Furthermore, the first conveyor transfer point subject to this subpart is the transfer point associated with the conveyor transferring material from the raw material storage to the raw mill”. Indu stry needs greater clarification as to where LLL starts. Further, the preamble does not address why the change was made to 63.1340(c). The proposed change suggests that all affected sources onsite are subject unless they are subject to NSPS Subpart OOO."

This comment is in reference to the following requirement: both include raw material storage bins as affected sources. [63.1340(b)(6) and 63.1345]

Commenter recommends that the EPA reconsider its decision and restore the amended regulatory text of 63.1340 (c).

Response: We believe the amendatory language as proposed makes it clear what sources are subject to Subpart LLL. The reasons for the original change to the text of 63.1340(c) were previously discussed in both the 2006 and the 2010 rulemakings

.

7

. 20 Oth er Issues: Comment Regarding 63.1340(b)

Commenter (0505

- Appendix G) stated "Commenter (0505) states that coal mill receiving kiln gas and having separate exhaust is not listed as an affected source."

This comment is in reference to the following requir ement: clarified affected sources [63.1340(b)]

Commenter recommends that EPA change language of 63.1340(b)(1) to: Each kiln, including alkali bypasses and inline coal mills , except for kilns that burn hazardous waste and are subject to and regulated under subpart EEE of this part.154 Response: All coal mills receiving kiln exhaust are defined as in line coal mills in rule text. This would include coal mills which have a separate coal mill exhaust. In addition, we have added the phrase, “and inline coal mil ls” to 1340(b)(1).

7

. 21 Other Issues: Comment Regarding THC and Greenfield/Brownfield Dryers

One commenter (0472) asked if the THC limits on raw material dryers apply to both greenfield and brownfield raw material dryers?

Response: Yes , the THC limits apply to both greenfield and brownfield raw material dryers . In the 2010 rule, we make no distinction between brownfield and g reenfield sources

.

7

. 22 Other Issues: Comment Regarding EPA Rationale and Authority for Startup and Shutdown Provisions and Revising SSM Pr ovisions in Existing Rules

The SSM Coalition states that the EPA does not have authority to amend existing MACT standards to make them more stringent. The commenter asserts that the EPA’s authority under CAA section 112(d)(6) is to “review and revise as n ecessary (taking into account developments in practices, processes, and control technologies), emissions standards promulgated under this section no less often than every 8 years.” According to the commenter, the EPA did not invoke its section 112(d)(6) au thority to support the proposed SSM provisions, but even if it had, section 112(d)(6) does not provide broad authority to reconsider aspects of previously issued MACT standards unrelated to “developments in practices, processes, and control technologies.” Thus, the commenter concludes, the EPA cannot simply revisit and redo a MACT determination long after it has been issued, as the EPA attempts to do with the proposed SSM provisions.

Response: No amendments to this rule are based on CAA section 112(d)(6)., therefore, this comment does not apply to this rulemaking action. [This comment was carried over by incorporation by reference by PCA of comments on the Ferroalloy RTR proposal].155 Comment: The SSM Coalition states the proposed SSM provisions are not requir ed in order to be consistent with Sierra Club v. EPA. The commenter states that the Sierra Club decision does not prevent the EPA from adopting emission standards for SSM periods that are different from those required during periods of normal operation. Th e commenter adds that the Sierra Club decision does not mean that the EPA is barred from using a “requirement relating to the operation or maintenance of a source to assure continuous emission reduction” as the emission standard that applies during such ev ents. The commenter asserts that the Sierra Club decision only rejected the EPA’s assertion that it had discretion to decide not to impose any emission standard covering SSM periods. Thus, according to the commenter, despite the EPA’s implications to the c ontrary, the Sierra Club decision expressly recognized that different standards, including non

- numerical standards, may (and in some cases must) apply during non

standard operating conditions, such SSM.

First, the commenter explains that the Sierra Club de cision interpreted the NESHAPs General Provisions. The commenter adds that it did not by its terms address what the EPA may or may not include in category

- specific MACT standards. Second, the commenter states that the Sierra Club decision did not say that the same emission limitations that the EPA has derived for normal operations must also apply during SSM events. The commenter states that Sierra Club does not preclude the EPA from applying different standards during SSM events than apply during normal ope rations. The commenter concludes that there is ample precedent for the EPA applying a different standard during SSM events.

Third, the commenter states that the Sierra Club decision did not address whether the EPA could use a “design, equipment, work prac tice or operational standard,” as authorized under CAA section 112(h) and included in the definition of “emission limitation” and “emission standard” in CAA section 302(k), in lieu of a numerical emission limitation during SSM events. The commenter adds th at the EPA cannot hide behind the Sierra Club decision as a justification for ignoring an inability of even the “best performers” to achieve during SSM events the emission limitations the EPA has established for normal operations. Moreover, the commenter c oncludes that the approach the EPA is proposing would not establish “continuous section 112

- compliant standards” that the Sierra Club decision concluded are required.

Felman states that the EPA has interpreted the Sierra Club decision regarding SSM too br oadly, that the decision focused on the manner in which the EPA had implemented the SSM exemption under section 112

– not the validity of the exemption itself. The commenter asserts that the Sierra Club decision requires the EPA to establish standards unde r section 112 that apply during all facets of a facility’s operation

– whether an emission standard under section 112(d) or a work

practice standard under section 112(h), but that it did not overrule significant pre

- existing case law controlling how these standards must be developed. Thus, the commenter reasons, because a MACT standard is technology

- based, it must be based on what technology can achieve, with the only difference being how the EPA must treat the 1% of operational periods when the EPA’s 99% U PL predicts even MACT cannot achieve the emission standards. The commenter states that these periods must be included within the MACT standard itself, regulated through an156 independent standard, such as a work practice standard where a specific emissions li mit is impracticable, or excused through the mechanism of an affirmative defense. The commenter agrees with the EPA’s decision that an affirmative defense is the appropriate mechanism to implement the Sierra Club decision but it must remain in compliance w ith established case law regarding development of MACT standards.

Response: This comment (which was incorporated indiscriminately by reference) relates to issues settled in the 2010 rule and not reopened here. (The comment also fails to note that all iss ues related to startup and shutdown standards were resolved in EPA’s favor in the PCA v. EPA litigation (665 F. 3d at 189)). The issue of including malfunction conditions in floor calculations thus is not part of this proceeding and EPA is not required to address these untimely comments. If any response is considered necessary, the EPA does not claim that the Sierra Club case constrains its authority to prescribe different standards for periods of start and shutdown (and adopted such standards in this ru le) or for periods of malfunction. However, , the EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 standards. The EPA must establish emission st andards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. § 7602(k)(defining “emission limitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008 ) (emissions limitations under CAA section 112 must both continuously apply and meet section 112’s minimum stringency requirements, even during periods of startup, shutdown and malfunction). We have set the MACT standard at a level that a well

- operated sou rce should be able to meet during 99% of all stack tests, which we believe sufficiently accounts for normal operating variability.

In the event that a facility is unable to meet the MACT standard, the EPA is finalizing the proposed affirmative defense to civil penalties language, with minor revisions, for violations of the standards that are caused by malfunctions (discussed elsewhere in this document). Additionally, the EPA does not agree that it is possible to gather representative data reflecting emissi ons during malfunctions, in order to consider malfunctions in its MACT floor calculations. The EPA asserts that data collected during an event that meets the definition of malfunction is only representative of that malfunction, and the EPA could not assert that the event would be representative of the same kind of malfunctions that might happen in the future, even at the same source. The EPA further disagrees that the EPA could characterize any specific malfunction event or events as representative for a so urce category.157 Comment : T he SSM Coalition states that the EPA must fully justify applying the same emission limitations during startup and shutdown as during normal operations. The commenter states that there are numerous reasons why a source might not b e able to comply, during periods of startup or shutdown, with emission limitations established based on performance during steady

- state operation, even if the control devices used are started up before the process units and are operational during the shutd own phase of a process. The commenter believes the EPA must conduct a thorough analysis and determine whether it is representative of the performance of best

- performing sources (the MACT floor) to require ferroalloys plants to achieve the same emission lim itation during startup and shutdown as during normal operations. The commenter states that the EPA cannot conclude that special provisions for emissions during startup and shutdown are not needed based on “mere speculation.” The commenter believes that the default assumption must be that they are needed. The EPA previously determined, in establishing the existing Subpart XXX standards, that the best performers on which the MACT standards were based may not achieve those standards during startup and shutdown . The SSM Coalition is skeptical that the EPA has conducted a sufficient analysis to demonstrate the achievability of the MACT emission limits established for normal operations during startup and shutdown events, because of likely limitations in the availa ble data.

The commenter notes there are several reasons why adequate data often do not exist to allow the EPA to conclude that an emission limitation established for normal operations also represents the performance of the best demonstrated control technol ogy during startups and shutdowns. The commenter adds that these factors would cause the EPA to understate emissions occurring during startup and shutdown.

The commenter adds that an additional problem is that it can be unclear whether a condition that le ads to excess emissions should be characterized as a startup or shutdown event or a malfunction even t. The commenter believes that without a clear demarcation (both in the EPA regulations and in practice), the EPA may be analyzing data sets that exclude ev ents that were treated as malfunctions but that the EPA would say should be included in calculating average performance as startup or shutdown conditions.

Response : These com m ents are moot given that EPA is adopting work practices as the standards during s tartup and shutdown in the amended rule.158 Comment : The SSM Coalition believes the EPA is required to take malfunctions into account when adopting emission standards. The commenter states that the EPA offers very little support for their assertion that “EP A‘s approach to malfunctions” in setting emissions standards “is consistent with CAA section 112 and is a reasonable interpretation of the statute.” The commenter states that there is nothing in CAA section 112 that allows the EPA to ignore malfunctions an d set MACT standards based on a level of emissions that even best

- performing sources only achieve part of the time.

The commenter believes the EPA offers a backwards, results

- driven rationale for ignoring malfunctions, which directly contravenes congressio nal intent that MACT floor standards be based on what the best sources actually achieve: “accounting for malfunctions could lead to standards that are significantly less stringent than levels that are achieved by a well

- performing

non

- malfunctioning source .” The commenter states that the EPA cannot ignore the requirement that MACT floor standards reflect performance actually achieved just because the EPA would like the standards to be more stringent than that actual performance reflects.

The commenter beli eves that by proposing MACT standards that the EPA recognizes even the best performing existing sources cannot achieve part of the time, the EPA is going beyond the MACT floor, yet without making the demonstrations that the statute and case law require the Agency to make in order to impose beyond

- the

- floor MACT standards. The commenter disagrees that the EPA acknowledges that malfunctions are inevitable, even for the best performing sources, and yet refuse to include emissions data representing malfunctions in calculating the MACT floor, and then require that those MACT floor limitations be met even during malfunctions. The commenter asserts that if it is possible to gather sufficient representative data reflecting emissions during malfunctions, then the EPA is obligated to consider those data in its MACT floor calculations for steady

- state operating conditions.

The SSM Coalition suggests several options the EPA could use for setting MACT standards under CAA section 112 that would apply during malfunction eve nts. The commenter states that the EPA might be able to establish an emission limitation that applies at all times, but that has an averaging time of sufficient duration that short, infrequent spikes in emissions due to malfunctions would not cause the sou rce to exceed the emission limitation (while at the same time ensuring that the source does not operate in a way that causes frequent, lengthy excursions above the normal controlled emission rate). As an alternative, the commenter suggests that the EPA als o could use the flexibility accorded by CAA section 302(k) (defining “emission limitation” and “emission standard” to include “any requirement relating to the operation or maintenance of a source to ensure continuous emission reduction, and any design, equ ipment, work practice or operational standard promulgated under” the CAA) to address emissions during malfunction events through operational requirements rather than by applying the same limits on pollutant concentrations in exhaust gases that apply during normal operations. The commenter adds that the EPA could have concluded that it has grounds to exercise its authority under CAA section 112(h) to promulgate a design, equipment, work practice, or operational standard, or combination thereof, because it is not feasible to prescribe or enforce an emission standard.159 The SSM Coalition states that the proposed affirmative defense is not a substitute for addressing malfunction events in the emission standards themselves. The commenter asserts that the Proposed Standards, incorporating the affirmative defense, still do not represent emission limitations “achieved” by best

- performing existing sources under CAA section 112(d)(3), nor do they meet the criteria for establishing beyond

- the

- floor emission standards und er CAA section 112(d)(2).

Response : See previous response. Moreover, as explained in earlier comment responses, we are including an affirmative defense in the final rule as we have in other recent section 112 rules so as to balance the tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. Mont. Sulphur & Chem. Co. v. EP A , 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting argument that reliance on the affirmative defense was not adequate). The EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a conti nuous basis.” 42 U.S.C. § 7602(k) (defining “emission limitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously apply and meet section 112’ s minimum stringency requirements, even during periods of startup, shutdown and malfunction). Thus, we are required to ensure that section 112 emissions limitations are continuous.

Comment: The SSM Coalition requests that malfunction reporting be required on a semi

annual basis, for malfunctions that occurred during the preceding 6 months, which is the same frequency as similar reports pursuant to NESHAPs and Title V requirements. The commenter states that this change would enable the EPA to review the sour ce’s compliance history and the measures being taken to address malfunctions, without imposing unworkable reporting deadlines, or potentially encouraging sources to bombard the Agency with reports for malfunctions that may not ultimately result in the sour ce exceeding the 30

- day average emission limitation. The commenter adds that the EPA has not justified departing from its conclusion, reflected in the current subpart XXX standards, that semi

- annual reporting of malfunctions is sufficient.

The SSM Coalitio n states that the requirement in proposed §63.1627(b) to notify the Administrator by telephone or fax as soon as possible, but no later than two business days after the malfunction begins, and then to submit a written report within 45 days of the initial

o ccurrence of the malfunction that demonstrates, “with all necessary supporting documentation,” that the source met all of the multitude of criteria for the affirmative defense, is unreasonable and unnecessary. The commenter believes it is extremely ineffic ient and burdensome, for both sources and regulators, to require a complete justification of the affirmative defense before the enforcement authority has indicated any need for further investigation.160 Response: The rule’s affirmative defense provisions in § 63.1627 (and §63.1662) have been revised, in the final rule, to remove the 2

- day notification requirement. In addition, we have revised the final rule to allow an owner or operator of the affected source seeking to assert an affirmative defense for violati ons of an emission standard during a malfunction to submit a written report to the Administrator in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant

s tandard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard.

The EPA inadvertently omitted specific references to changes made to §63.1656(a)(6) in the proposal preamble. However , as noted, we did discuss the comparable changes made to §1625(a)(5).161 

## Section 8 : Comments Regarding General Support and Opposition to the Proposed Rule

8

. 1 General Support for Proposed Standards

One commenter (0519) stated that they are generally supportive of ma ny modifications which EPA has proposed in the reconsideration, but have implementation and operational concerns with some areas of the proposed rule modifications being proposed. Overall, the commenter feels that the proposed rule, with certain modificati ons to address the practic al concerns we have identified, will accomplish the goal of reducing the emissions of hazardous air pollutants from cement kilns throughout the United States while preserving critical jobs at our facilities and others across the U.S.

Commenter (0512) is p leased the EPA adopted regulations on September 9, 2010 for new and existing portland cement kilns and believe that they were necessary to protect public health.

Response: EPA has noted the commenters’ support for this rule.



### 8

. 2 General Support for Many of th e Proposed Standards with Some Specific Concerns

One commenter (0525) fully supports the position taken by PCA. Specifically, they support issues related to c larifying certain definitions, clarifying the basis for determination of certain emission standar ds for PM and other constituents, amending or clarifying testing and monitoring protocols, and Start up and shutdown requirements.

One commenter (0525) fully supports the position taken by PCA. Specifically, they support issues related to c larifying certa in definitions, clarifying the basis for determination of certain emission standards for PM and other constituents, amending or clarifying testing and monitoring protocols, and Start up and shutdown requirements.

Commenter (0476) incorporated by referenc e the comments submitted by the Portland Cement Association (PCA) (docket ids: EPA

- HQ

- OAR

- 2011

- 0817

- 0505, EPA

- HQ

- OAR

- 2011

- 0817

-162 0483).

Commenter (0507) incorporated by reference comments from the Portland Cement Association (PCA) (docket id: EPA

- HQ

- OAR

- 201 1

- 0817

- 0505).

Commenter (0523) stated support for the most part of comments from the Portland Cement Association (PCA) (docket id: EPA

- HQ

- OAR

- 2011

- 0817

- 0505).

One commenter (0483) stated that they concur with the PCA’s analysis assessing the time

necessa ry for a typical plant to prepare for compliance and agree with the conclusion that this process will take at least two years to complete for most plants. Consequently, we endorse the EPA proposed reset of the compliance deadline from September 2013 to Sep tember 2015.

Commenter 0519 supports PCA’s comments regarding industry’s concerns about definitions which EPA proposes or has failed to propose.

Response: EPA has noted the opposition to this rule.



### 8

. 3 General Opposition to Weakening of Standards

Comment er (0512) is disappointed in the EPA’s failure to fully consider multi

- pollutant sector based approach by overlooking the emissions of nitrogen oxides (NOx) from portland cement plants constructed, reconstructed, or modified on or before June 6, 2008. The commenter urges EPA to take action to mitigate NOx emissions from the portland cement plants that were constructed, reconstructed, or modified on or before June 6, 2008.

Response: This comment relates to issues not posed by the reconsideration proposal, a nd therefore requires no response.



### 8

. 4 General Opposition

– Mass Email Campaigns

We received over 22,000 comments as part of mass email campaigns that opposed weakening of standards and extending the compliance period.163 Response: See preamble section V

.