§ 129.310. Recordkeeping.

(a) The owner or operator of a glass melting furnace subject to this section and §§ 129.301—129.309 shall maintain records to demonstrate compliance. The records must include an operating log maintained for each glass melting furnace that includes, on a daily basis:

(1) The total hours of operation.

(2) The type and quantity of fuel used.

(3) The quantity of glass pulled.

(b) The owner or operator of a glass melting furnace

shall maintain records of:

(1) Source tests and operating parameters established during the initial source test.

(2) Maintenance, repairs, malfunctions, idling, start-up

and shutdown.

(c) The owner or operator claiming that a glass melting furnace is exempt from the requirements of §§ 129.301— 129.309 based on the furnace’s potential to emit shallmaintain records that clearly demonstrate to the Department or appropriate approved local air pollution control agency that the furnace is not subject to §§ 129.301—

129.309.

(d) The records required under this section shall be maintained onsite for 5 years. The records shall be made available or submitted to the Department or appropriate approved local air pollution control agency upon request.

[Pa.B. Doc. No. 10-1114. Filed for public inspection June 18, 2010, 9:00 a.m.]



### ENVIRONMENTAL QUALITY BOARD

**[ 25 PA. CODE CH. 145 ]**

**Control of NOx Emissions from Cement Kilns**

The Environmental Quality Board (Board) amends Chapter 145 (relating to interstate pollution transport reduction) to read as set forth in Annex A.

This order was adopted by the Board order at its meeting of March 16, 2010.

A. Effective Date

This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

This final-form rulemaking will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the Pennsylvania State Implementation Plan (SIP).

B. Contact Persons

For further information, contact Jane Mahinske, Air Quality Program Specialist, Division of Air Resource Management, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-9495; or Robert ‘‘Bo’’ Reiley, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.

C. Statutory Authority

This final-form rulemaking is being adopted under the authority of section 5(a)(1) of the Air Pollution Control Act (35 P. S. § 4005(a)(1)), which grants to the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.

D. Background and Summary

The purpose of this final-form rulemaking is to reduce emissions of nitrogen oxides (NOx) from cement kilns to reduce levels of ground-level ozone. Ground-level ozone is not directly emitted by pollution sources, but is created as

a result of the chemical reaction of NOx and volatile organic compounds in the presence of light and heat. The reduction of NOx emissions will also help protect the public health from high levels of fine particulate matter (PM2.5), of which NOx is a precursor component. Fine particulates, as well as ozone, are health hazards. Thereduction of NOx emissions also reduces visibility impairment and acid deposition.

When ground-level ozone is present in concentrations in excess of the Federal health-based standards, public health is adversely affected. The EPA has concluded that

there is an association between ambient ozone concentrations and increased hospital admissions for respiratory ailments, such as asthma. Further, although children, the elderly and those with respiratory problems are most at risk, even healthy individuals may experience increased respiratory ailments and other symptoms when they are exposed to ambient ozone while engaged in activity that involves physical exertion. Though these symptoms areoften temporary, repeated exposure could result in permanent lung damage. The implementation of additional measures to address ozone air quality nonattainment in this Commonwealth, including the reduction of NOx emissions from cement kilns, is necessary to protect the public health.

The Commonwealth, along with Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Virginia, and the District of Columbia, are members of the Ozone Transport Commission (OTC), which was created under section 184 of the Clean Air Act (42 U.S.C.A. § 7511c) todevelop and implement regional solutions to the groundlevel ozone problem in the Northeast and Mid-Atlantic regions. To date, states from the OTC, including the Commonwealth, have established a number of regulatory programs to reduce ozone precursor emissions, including programs related to portable fuel containers, architecturaland industrial maintenance coatings and consumer products. Consistent with its strategy to achieve equitable ozone precursor emission reductions from all industrial sectors, the Commonwealth, along with other OTC states, has met with representatives of the cement industry to

discuss reductions of NOx emissions from their kilns.

In this Commonwealth there are 21 cement kilns, which in 2005 emitted 12,967 tons of NOx emissions in

this Commonwealth. Of these 21 kilns in this Commonwealth, 14 of them are ‘‘long’’ kilns. These are older technology kilns that are less energy efficient than preheater kilns and the newest technology, precalciner kilns. The higher energy efficiencies of the preheater andprecalciner kilns result in inherently lower NOx emissions than those from long wet and dry kilns, per ton of product.

Control technologies are readily available to achieveNOx emission reductions of greater than 20% from cement kilns. These technologies include: conversion toindirect firing systems with low-NOx burners with approximately 20—30% reduction; midkiln firing of whole tires in long kilns with approximately 20—40% reduction;staged combustion in precalciner kilns with approxi

### 3346 RULES AND REGULATIONS

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**mately 30—45% reduction; selective noncatalytic reduction (SNCR) in precalciner kilns with approximately 30—70% reduction; and selective catalytic reduction (SCR) with approximately 80—90% reduction. SNCR has been used on preheater kilns and has been proposed for long kiln applications. All of these technologies, except SCR, are demonstrated on kilns in the United States.

The final-form rulemaking will allow a number of cement manufacturers in this Commonwealth to develop and implement compliance strategies without the need for widespread installation of control equipment on the older technology long kilns, which will likely be replaced with more energy efficient technologies, like preheater orprecalciner technologies, over time. An additional compliance option allows the purchase of Clean Air Interstate Rule (CAIR) NOx allowances to account for emissions in excess of the proposed limits, as a near term compliance option.

The Department of Environmental Protection (Department) worked with the Air Quality Technical Advisory Committee (AQTAC) in the development of this final-form rulemaking. At its October 30, 2008, meeting, the AQTAC concurred with the Department’s recommendation thatthe Board consider the adoption of this final-form rulemaking, with certain changes. These recommended changes to the final-form rulemaking included requiring written approval from the Department for substituted monitoring data and clarification regarding how cement kilns that begin operation after the effective date of the final-form rulemaking may determine their emissions to average. The change recommended by the AQTAC torequire written approval by the Department for substituted monitoring data has been made to the final-formrulemaking. The change concerning the emissions averaging provision for new kilns was considered by the Department, and a decision was made to delete from the final-form rulemaking the emissions averaging provision for new kilns beginning operation after the effective date of the final-form rulemaking. The Department maintainsthat allowing new cement kilns to average their emissions with existing cement kilns to meet the regulatory obligation for the existing kilns is inconsistent with the Best Available Technology (BAT) regulatory obligation for new cement kilns, which is to control emissions to the maximum degree possible. Therefore, the Department determined that the emissions averaging provision fornew cement kilns in the proposed rulemaking is inconsistent with existing regulatory obligations, and this provision has been deleted from the final-form rulemaking.

The Department also conferred with the Citizens Advisory Council concerning the final-form rulemaking onOctober 27, 2008. The Citizens Advisory Council concurred with the Department’s recommendation that the Board consider the adoption of the final-form rulemaking.

To the extent that this final-form rulemaking is more stringent than corresponding Federal requirements, the Board determined that this final-form rulemaking is reasonably necessary to attain and maintain the ozone and PM2.5 National Ambient Air Quality Standards (NAAQS).

E. Summary of Comments and Responses

The proposed rulemaking published at 38 Pa.B. 1838 (April 19, 2008) included proposed §§ 129.401—129.405(relating to emissions of NOx from cement manufacturing). These sections have not been adopted. In this final-form rulemaking, the requirements are incorporated in Chapter 145, Subchapter C (relating to emissions of NOx from cement manufacturing) to amend the cement kilns requirements that were adopted at 34 Pa.B. 6509 (December 11, 2004) (§§ 145.141—145.143) and adopted at 38 Pa.B. 1705 (April 12, 2008) (§ 145.143 (relating to standard requirements)). The decision to incorporate the final-form amendments for cement kilns in Chapter 145,Subchapter C was editorial because the existing provisions in Chapter 145, Subchapter C regulate emissions of NOx from cement kilns. When appropriate, responses to comments reflect the nature of this editorial change.

Commentators supported the goal of the proposed rulemaking to lower ozone in this Commonwealth and supported efforts in reducing NOx and ozone-relatedpollutants to reduce ground-level ozone. The Board appreciates the commentators’ support of this rulemaking. Thefinal-form rulemaking is consistent with regulatory initiatives recommended by the OTC to address transport of ozone precursor emissions, including NOx, throughout the Ozone Transport Region (OTR). These measures arereasonably necessary to attain and maintain the healthbased 8-hour ozone NAAQS in this Commonwealth.

A commentator supported the facility-wide emissions averaging compliance option among kilns under common

control of the same owner in this Commonwealth. The Board appreciates the commentator’s support to allow facility-wide emissions averaging as a compliance option. The Department is allowing this option to provide cement kiln owners and operators with greater flexibility to demonstrate compliance with the allowable NOx emission

limits.

The commentator supported the use of CAIR NOx Ozone Season allowances as an economical compliance alternative. The Board appreciates the commentator’s support of allowing the use of CAIR NOx Ozone Seasonallowances as part of the proposed rulemaking’s compliance alternatives available to cement kiln owners and operators. The proposed rulemaking published at 38 Pa.B. 1838 included proposed amendments to §§ 129.401—129.405 that have been not been adopted. In this finalform rulemaking, the requirements are incorporated in Chapter 145, Subchapter C to amend the cement kilns requirements that were adopted at 34 Pa.B. 6509 under §§ 145.141—145.144 and adopted at 38 Pa.B. 1705 under§ 145.143. The use of CAIR NOx Ozone Season allowances as a compliance strategy is preserved in the final-form rulemaking under existing § 145.143(d), which provides that the owners or operators of Portland cement

kilns shall surrender CAIR NOx Ozone Season and CAIR

NOx annual allowances if the actual NOx emissions from

their kiln or kilns exceed the allowable NOx emissions

calculated for the kiln or kilns.

A commentator believed that the proposed emission limits are derived from a 60% emissions reduction (from uncontrolled levels) based on SNCR control technology that should not be applied to wet kilns. The commentator

believed that NOx limits for wet kilns should be based on

a 50% reduction from uncontrolled levels because a 50%

reduction from uncontrolled levels of NOx is consistent

with the EPA cement New Source Performance Standard (NSPS) rule that was proposed at 73 FR 34072 (June 16, 2008). The Board disagrees with the commentator. TheBoard proposed emission limits based on the OTC recommended limits. The Board is not requiring a specific reduction efficiency from the installation of an SNCR should an affected cement owner or operator decide to install an SNCR to comply with the emission limits proposed. 

### RULES AND REGULATIONS 3347

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**A commentator urged the addition of a compliance option which allows a cement company to establish a site-specific emission limit in tons of NOx during the ozone season. The Board disagrees with the commentator. A site-specific emission limit based on a kiln’s applicable emission factor and its clinker production is in effect acap-based emission limit rather than a rate-based emission limit. The final-form rulemaking emission limits arerate-based, not cap-based, and are emission limits recommended by the OTC.

Commentators wanted the Board to provide the basis for limiting new cement kilns subject to the proposed regulation to a lower emission limit than existing kilns, as specified under proposed § 129.404(d) (relating tocompliance demonstration). Prior to publishing the proposed rulemaking for public comment at 38 Pa.B. 1838,

the Board reviewed a number of technical documents and

concluded that new cement kilns should have a lower emission limit than existing kilns. Moreover, when the

OTC recommended to the states the NOx emission limits

for cement kilns in Resolution 06-02 of the Ozone Transport Commission Concerning Coordination and Implementation of Regional Ozone Control Strategies for Certain Source Categories, adopted June 7, 2006 (OTC Resolution 06-02), two separate limits were proposed for preheater and precalciner kilns, 2.36 lb NOx/ton clinker and 1.52 lb NOx/ton clinker, respectively (see page 2, OTC Resolution 06-02, June 7, 2006). The Board chose to adopt the 2.36 limit for both preheater and precalciner kilns because the Commonwealth has only one existing precalciner kiln, which is of an early precalciner kiln technology that ismore like a preheater kiln from an energy use perspective, and to require that new cement kilns meet the limit of 1.52 lb NOx/ton clinker. Under the EPA’s proposed NSPS rule for Portland cement kilns, the EPA found that according to the industry, all new kilns will be preheater or precalciner kilns. See 73 FR 34072, 34075. Therefore, proposing to limit new cement kilns, assumed to be precalciner, to 1.52 lb NOx/ton clinker is in line with the NOx limits for new cement kilns proposed by the EPA at 73 FR 34072. The annual NOx emission limit proposed in the NSPS by the EPA is 1.50 lb/ton clinker. See 73 FR pages 34074, 34075 and 34089. The Board maintains that new kilns in this Commonwealth would be the precalciner type, and would therefore be required to meet not only

the NOx limit established in the EPA’s final NSPS but also the BAT regulatory requirement for new cement kilns, which is to control emissions to the maximum degree possible. The NSPS will apply to all new cementkilns that begin operation in this Commonwealth. Therefore, the Board determined that the NOx emission limit for new cement kilns in the proposed rulemaking is unnecessary, and this requirement has been deleted from the final-form rulemaking.

A commentator found that the Board should provide the

technical basis for the allowable emission limits and explain the data used to make the determination. If the emission limits are based upon an OTC resolution, then the order to the final-form rulemaking should compare the Commonwealth’s program with how other OTC states are complying with this resolution. The Board agrees. The NOx emission limits for cement kilns in the proposed rulemaking are those recommended by the OTC. The

technical basis for the emission limits are based on OTC Resolution 06-02. This resolution used data and analysis from the following report prepared for the OTC: Identification and Evaluation of Candidate Control Measures, Final Technical Support Document , prepared by MACTEC Federal Programs, Inc. (February 28, 2007). The Board independently reviewed this information and concurred

with the data and the decisions in the OTC resolution that recommended the emission limits. Regulations based on the OTC recommendations are being pursued by Maryland, New York and the Commonwealth. Maine has one cement kiln permitted to convert to a dry process, and this converted kiln will be subject to Best Available Control Technology, which is typically more stringentthan requirements for existing sources, under the Prevention of Significant Deterioration Program. Maryland, Maine, New York and this Commonwealth are the only states in the OTR that have cement kilns. Therefore, it is not anticipated that the final-form rulemaking will place cement plants in this Commonwealth at a competitive disadvantage.

The commentator questioned if the cement emission limits proposed by the EPA at 73 FR 34072 impact the proposed rulemaking and will they result in additional changes to the Commonwealth’s NOx emission limits in the future. The NSPS proposed by the EPA at 73 FR 34072 caused a minor change to the Board’s proposed rulemaking. The EPA proposed an annual NOx emission limit of 1.50 lb/ton clinker. See 73 FR 34074, 34075 and

34089. The Board maintains that new kilns in thisCommonwealth would be the precalciner type, and therefore must meet not only the NOx limit established in theEPA’s final NSPS but also the BAT regulatory requirement for new cement kilns, which is to control emissions to the maximum degree possible. Therefore, the Board

determined that the NOx emission limit for new cement kilns in the proposed rulemaking is unnecessary and thisrequirement has been deleted from the final-form rulemaking. Additionally, the decision was made to delete from the final-form rulemaking the emissions averaging provision for existing kilns with new kilns beginningoperation after the effective date of the final-form rulemaking. The Board maintains that allowing new cement kilns to average their emissions with existing cement kilns to meet the existing kilns’ regulatory obligation is inconsistent with the BAT regulatory obligation for newcement kilns, which is to control emissions to the maximum degree possible. Therefore, the Board determinedthat the proposed rulemaking’s emissions averaging provision for new cement kilns is inconsistent with existing regulatory obligations, and this provision has also been deleted from the final-form rulemaking.

The commentator noted that while other sections of theproposed rulemaking mentioned an exact date for compliance with emission requirements, § 129.402(a) and (b) (relating to emission requirements) and § 129.404(a)(1), (c)(1), (d) and (g)(1) refer to the period of May 1 through September 30. The final-form regulations should explain the need for this distinction and how it applies to each ofthe relevant sections previously listed. The Board disagrees with the commentator that the final-form regulations should explain the distinction. The complianceperiod for determining allowable emissions of NOx, regardless of year, is from May 1 through September 30. The requirements under proposed § 129.402(a) and (b), (which have been moved to § 145.143(b)(1) and (2) in this final-form rulemaking) and § 129.404(a)(1), (c)(1), (d) and (g)(1) (which have been both moved to new § 145.145(a)(1) (relating to compliance demonstration and reporting requirements) and retained under existing § 145.143(d), (e) and (h)(1) in this final-form rulemaking) refer to the first year of the compliance period under the regulation, and each year thereafter. 

### 3348 RULES AND REGULATIONS

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**Commentators were concerned about the ability of the Board to move forward with the regulation if the United States Court of Appeals for the District of Columbia (D.C. Circuit Court) vacated the CAIR budget and allowance system for NOx emissions in this Commonwealth and other states. The decision by the D.C. Circuit Court in

North Carolina v. EPA only addressed the EPA’s CAIR (published at 70 FR 25162 (May 12, 2005)) and did not

address NOx emission limits for cement kilns. On December 23, 2008, the D.C. Circuit Court decided to remand the EPA’s CAIR rather than to vacate, leaving it in place until the EPA revises it. The final Federal rule, expected in 2011, must be revised to be consistent with the D.C. Circuit Court’s July 11, 2008, decision in State of North Carolina v. Environmental Protection Agency , 531 F.3d 896 (D.C. Cir. 2008). Therefore, the Board’s statutoryauthority to propose a rulemaking to control NOx emissions from cement kilns is not limited and the Board may move forward with a final rulemaking. On May 23, 2008, the Department submitted to the EPA a SIP revision for the Department’s CAIR regulatory requirements under §§ 145.201—145.223 (relating to CAIR NOx and SO 2 trading programs), published at 38 Pa.B. 1705, that provide for a CAIR NOx Ozone Season Trading Programand a CAIR NOx Annual Trading Program. The Department’s CAIR regulation also included amendments to existing § 145.143 to require the owners or operators of

Portland cement kilns to surrender CAIR NOx Ozone

Season and CAIR NOx annual allowances if their actual

NOx emissions exceed their allowable NOx emissions. The EPA approved the Department’s CAIR regulation as a SIP revision published at 74 FR 65446 (December 10, 2009).

A commentator suggested that, based on the CAIR vacatur, if the regulation requires substantial changes, toconsider submitting an Advance Notice of Final Rulemaking or publishing the changes as a new proposed rulemaking. This final-form rulemaking will not require substantial changes as a result of the initial vacatur of the EPA’s CAIR on July 11, 2008. On December 23, 2008,

the D.C. Circuit Court decided to remand the EPA’s CAIR rather than to vacate, leaving it in place until the EPA revises it. The final Federal rule, expected in 2011, must

be revised to be consistent with the D.C. Circuit Court’s July 11, 2008, decision in State of North Carolina v. Environmental Protection Agency , 531 F.3d 896 (D.C. Cir. 2008). On May 23, 2008, the Department submitted to the EPA a SIP revision for the Department’s CAIR regulation, including requirements under §§ 145.143 and 145.201—145.223, published at 38 Pa.B. 1705, effective April 12, 2008, that provides for a CAIR NOx OzoneSeason Trading Program and a CAIR NOx Annual Trading Program. The EPA approved the Department’s CAIR regulation as a SIP revision published at 74 FR 65446, effective December 10, 2009. The Board believes that the approval of the CAIR NOx allowance provisions as a revision to the Commonwealth’s SIP will preserve the requirement proposed under § 129.404(c) published at 38

Pa.B. 1838 for the surrender of CAIR NOx allowances if

the actual NOx emissions from a kiln exceed its allowable

NOx emissions.

Commentators supported the concept of NOx trading and favor removing the requirement for being ‘‘under common control of the same owner or operator in this Commonwealth’’ from the system-wide averaging section of the rulemaking. The Board disagrees. The option to demonstrate compliance with the emission limits by averaging the NOx emissions of several cement kilns under the common control of the same owner or operator in this Commonwealth provides flexibility to the cement kiln owners and operators in this Commonwealth with more than one facility. Allowing multiple owners and operators of cement kilns in this Commonwealth to average their emissions in concert with each other to demonstrate compliance would essentially provide them the larger framework of an emissions trading program, which is beyond the scope of the final-form rulemaking provision to provide them an emissions averaging option.

A commentator believed that the use of different types of control technologies to achieve NOx emissions greaterthan 20% implies that facilities can use these technologies without the need for a permitting process. It is not the intent of the Board to imply that there is not a need for a permitting process for the use of NOx emission control technologies. The permitting requirements for the installation of a control technology will be determined in accordance with Chapter 127, Subchapter B (relating to plan approval requirements). The Department has severalpermit streamlining procedures in place, and plan approval applications are always acted on by the Department as expeditiously as possible.

A commentator thought that the permitting process for installing the NOx control technologies to achieve the emission results of the proposed rulemaking should be

streamlined. The authorizations should be issued within 30 days after an application is submitted. The Boarddisagrees. The permitting requirements for the installation of a control technology will be determined in accordance with Chapter 127, Subchapter B. The Department has several permit streamlining procedures in place, and plan approval applications are always acted on by the Department as expeditiously as possible.

Commentators thought the proposed rulemaking contained punitive and unreasonable data substitution provisions for invalid data by substituting missing data with data calculated using the potential emission rate for the kiln, or with the highest valid 1-hour emission value. TheBoard recognizes that substituted data should be representative of the actual emissions from the source during the time frame in question and not punitive in nature.The data substitution language in the final-form regulation has been modified to ensure that representative data is substituted while maintaining consistency with the procedures outlined in the Department’s Continuous Source Monitoring Manual (DEP 274-0300-001).

A commentator believed that kilns subject to the proposed rulemaking will be subject to Title V reporting andcompliance certification requirements, and additional reporting requirements are unnecessary and only add to the administrative burden. The Board disagrees and does notbelieve that maintaining records of daily clinker production will present a significant inconvenience to an owner or operator. Daily records may be needed to enable theDepartment to verify the relationship between NOx emissions recorded by a continuous emission monitoring system (CEMS), and clinker produced during the compliance period of May 1 through September 30 of each year. TheBoard maintains that records sufficiently precise to quantify clinker produced by each kiln during that period are necessary to enable owners and operators to demonstrate compliance and determine allowances for surrender.

A commentator commented on whether it is feasible fora cement kiln to report the emission data to the Department by October 31, 2009, and then be required to surrender their NOx allowances 1 day later, which isNovember 1, 2009. The Board disagrees with the commentator. The requirement to report information to the 

### RULES AND REGULATIONS 3349

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**Department by October 31 of every compliance year is consistent with reporting requirements in the current regulation for cement kilns in Chapter 145, Subchapter C. The affected owners and operators of cement kilns will know prior to October 31 of every compliance year whether they are required to surrender NOx allowances, because they will have the entire month of October to calculate their emissions for the previous May 1 through September 30 compliance period and determine if and how many allowances they need to surrender by or on the succeeding November 1 to comply with the regulation.

The commentator commented that the proposed regulation required cement kiln operators to report various information to the Department ‘‘by October 31, 2009,’’ while other sections of the regulations require compliancewith emission limits by September 30, 2009, and questioned if owners or operators of cement plants would be able to collect and deliver the reports within a month.The Board disagrees with the commentator. The requirement to report information to the Department by October 31 of each year is consistent with reporting requirements in the current regulation for cement kilns found under Chapter 145, Subchapter C.

The commentator commented that the proposed regulation required cement kiln operators to submit a report to the Department ‘‘in a format approved, in writing, by the Department,’’ and stated that this phrase is vague, and the final-form regulation should provide more detail onthe type of format. The Board disagrees with the commentator. The requirement to submit a report to the Department in a format approved, in writing, by the Department, is a standard requirement. This requirementis found in many Board-approved rulemakings, and neither the Department nor the regulated sources have hadproblems understanding or complying with this requirement.

The commentator asked whether the cement kilns in this Commonwealth would be able to meet the May 1, 2009, compliance deadline. Due to the remand of theEPA’s CAIR, and the Commonwealth’s lengthy rulemaking process, the final-form regulation has an effective compliance date of May 1, 2011, for owners and operators

of Portland cement kilns to meet the revised NOx emission limits. The date in the final-form regulation by which the CEMS must be installed, operating and maintained is April 15, 2011.

The commentator commented that the difference between § 129.404(b) and (c) was unclear and stated thatthe final-form regulation should clarify what circumstances necessitate compliance with § 129.404(c). The Board believes that the final-form regulation clearlyspecifies what circumstances would necessitate compliance with these subsections. Proposed § 129.404(c) hasbeen deleted in this final-form rulemaking and the requirements retained under existing § 145.143(d). Proposed § 129.404(b) has been deleted in this final-form rulemaking and the same requirements are specified in this final-form rulemaking under new § 145.145(b) and in the definition of ‘‘system-wide’’ under § 145.142 (relating to definitions). New § 145.145(b) lists three options to demonstrate compliance with the allowable NOx emission limits. Cement kiln owners or operators shall choose one compliance option from the three listed to use as the basis for determining the amount of allowable and actual NOx emissions from their kiln or kilns. Existing § 145.143(d) lists the requirements that a cement kilnowner or operator shall follow to surrender NOx allowances if the owner or operator determines, after calculating the amount of actual NOx emissions in accordancewith the requirements under § 145.144 (relating to compliance determination) and § 145.145, that the actual

NOx emissions from the kiln or kilns exceed the amountof allowable NOx emissions for the kiln or kilns, determined in accordance with the requirements under § 145.143(b).

The commentator noted that § 129.404(b) refered to ‘‘a Portland cement kiln or multiple Portland cement kilns,’’ and subsection (c) only references ‘‘a Portland cement kiln,’’ and questions if the latter subsection should also apply to multiple kilns. The final-form rulemaking has been incorporated as amendments to the existing cement kilns regulation under Chapter 145, Subchapter C. The Board believes that the existing provisions of Chapter 145, Subchapter C and the final-form amendments to Chapter 145, Subchapter C accurately reflect that the final-form rulemaking applies to a Portland cement kiln or multiple kilns.

The commentator found that § 129.404(e) required cement kiln operators to surrender the required CAIR NOx ozone allowances by ‘‘November 1, 2009, and each year thereafter.’’ Subsection (c) included this surrender asa possible method of compliance. The final-form regulation should explain when each of these subsections would apply. The Board believes that the final-form regulation clearly specifies when the requirements are applicable. Proposed § 129.404(c) has been deleted in this final-form rulemaking and the requirements are retained under existing § 145.143(d). Proposed § 129.404(e) has beendeleted in this final-form rulemaking and the requirements are retained under existing § 145.143(f). Existing § 145.143(d) listed the requirements that a cement kilnowner or operator shall follow to surrender NOx allowances if their actual NOx emissions exceed their allowable NOx emissions. Existing § 145.143(f) specified the date by when a cement kiln owner or operator shall surrender the NOx allowances, if needed, to comply with § 145.143(d).

The commentator noted that § 129.404(g)(1) explained how to determine the number of days of violation if the facility has excess emissions for the period May 1 through September 30, and states that ‘‘each day in that perio d... constitutes a day in violation unless the owner or operator of the Portland cement kiln demonstrates that a lesser number of days should be considered.’’ The Boardshould explain what circumstances would warrant consideration. The Board disagrees with the commentator. The Board maintains that it is the responsibility of the

affected cement kiln owner to demonstrate to the satisfaction of the Department what circumstance or circumstances would warrant consideration of a lesser number of days in violation. The requirements that were proposedunder § 129.404(g)(1) and deleted in this final-form rulemaking are consistent with the requirements specifiedunder existing § 145.143(h)(1) for determining the number of days of violation in the current regulation for cement kilns in Chapter 145, Subchapter C. In this final-form rulemaking, these requirements are retained under existing § 145.143(h)(1).

The commentator stated the program referenced in thepreamble to the proposed rulemaking, the Regional Compliance Assistance Program (Program), did not appear to be defined by regulation or statute, and questioned how cement kiln owners and operators would access the Program. The Board agrees with the commentator that the term ‘‘Regional Compliance Assistance Program’’ is not defined by regulation or statute. The term refers to the Department’s regional or ‘‘field,’’ staff who regularly 

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**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**assist their respective facilities in understanding and complying with applicable Department regulations.

The commentator commented on the definition of ‘‘CEMS—Continuous Emiussion Monitoring System’’ as it relates to an earlier ‘‘original’’ definition that referencesChapter 127, Subchapter E (relating to new source review) and the proposed regulation’s reference to standards in Chapter 139, Subchapter C (relating to requirements for source monitoring for stationary sources), and suggests the Department explain why a different chapter of 25 Pa. Code (relating to environmental protection) now applies to the proposed definition. The Board agrees with

the commentator. The intent of the amendment of the definition of ‘‘CEMS—Continuous emissions monitoring system’’ in § 121.1 (relating to definitions) of the proposed rulemaking is for the definition to apply more broadly tothe entire air quality regulatory program. However, subsequent to the close of the public comment period for theproposed cement kilns rulemaking, the Department proposed a revised definition of ‘‘CEMS—Continuous emissions monitoring system’’ in § 121.1 in a proposed rulemaking as part of the amendments to the air quality feeschedules. See 39 Pa.B. 6049 (October 17, 2009). Therefore, the amendment of the definition of ‘‘CEMS— Continuous emissions monitoring system’’ in § 121.1 in the proposed cement kilns rulemaking was deleted in this final-form rulemaking, and the existing definition of ‘‘CEMS—Continuous Emiussion Monitoring System’’ in § 145.142 that applies to cement kilns has been retained in the final-form rulemaking. The existing definition of ‘‘CEMS—Continuous Emiussion Monitoring System’’ in§ 145.142 ensures that the monitoring equipment complies with the requirements under Chapter 139 (relating to sampling and testing).

The commentator said that the final-form regulation

should include a definition for ‘‘invalidated data.’’ In addition, the Board also should explain the difference between an ‘‘invalid data period’’ and an ‘‘alternativereporting period’’ as mentioned in § 129.403(b)(2)(ii) (relating to compliance determination). The Board disagrees with the commentator that the final-form regulation

should include a definition for ‘‘invalidated data.’’ Conditions that render data invalid, and procedures for substituting the invalid data with valid data, are defined throughout the Continuous Source Monitoring Manual(DEP 274-0300-001). Owners or operators of each Portland cement kiln subject to this rule are familiar withthose provisions, since they already operate Departmentcertified CEMS. An ‘‘alternative reporting period’’ is not specifically defined, since it is provided under proposed§ 129.403(b)(2)(ii) (new § 145.144(b)(2)(ii) in this finalform rulemaking) as a means for an owner or operator topropose a unique alternative for the Department’s consideration.

The commentator noted that § 129.403(b)(1) refered to the ‘‘potential emission rate’’ for the cement kiln, but does not explain how this rate is determined. The final-form regulation should define this term. The Board disagrees.Proposed § 129.403(b)(1) (new § 145.144(b) in this finalform rulemaking) has been modified to ensure thatrepresentative data is substituted and to maintain consistency with the procedures outlined in the Continuous Source Monitoring Manual . The amendments made to this section necessitated deleting the provision for thesubstitution of invalidated data with the potential emission rate for the kiln. Therefore, a definition of ‘‘potential emission rate’’ is not necessary. The commentator said that § 129.403(c) stated that Portland cement kiln operators shall submit quarterly reports of CEMS monitoring data in ‘‘pounds of NOx emitted per hour,’’ and thinks that this data should referto ‘‘pounds of NOx per ton of clinker.’’ The Board disagrees with the commentator. The CEMS currently operated by the cement kiln owners and operators monitor

NOx emissions. A CEMS cannot measure tons of clinker produced, since by definition, a CEMS can only monitor emissions per unit of time.

The commentator found that § 129.404(c)(1) refered to ‘‘CAIR NOx Ozone Season allowance,’’ as defined in § 145.202 (relating to definitions), but this section does

not include a definition for this term. The final-form regulation should provide the appropriate cross-referencein this subsection. The Board agrees with the commentator. The final-form rulemaking, in existing § 145.143(d), includes the appropriate Code of Federal Regulations

reference for the definitions of ‘‘CAIR NOx Ozone Season

allowance’’ and ‘‘CAIR NOx allowance.’’

The commentator found that § 129.405(c) (relating to recordkeeping) requires cement kiln owners or operators to maintain records for 5 years, and wondered how the Board determined this was an appropriate time frame. Requiring regulated facilities to maintain records for 5 years is a standard requirement. This requirement is found in many Board-approved regulations, including §§ 127.11(b)(2) and 139.101(5) (relating to plan approval requirements; and general requirements). Regulated sources have not had problems complying with this requirement.

A commentator stated its kilns are long dry-process cement kilns and are subject to the allowable emission

limit of 3.44 lb NOx/ton clinker. Their kilns are not preheater kilns because the systems do not contain a series or multiple cyclones as defined by the EPA in its 1993 NOx Alternative Control Technologies Document(which was updated in September 2000). The commentator requested the Department establish its new NOx limit during the ozone season at 3.44 lbs/ton clinker starting with the 2009 Ozone Season. The Board disagrees with the commentator. The comment is an implementation

issue. The commentator shall have discussions with the Department prior to the effective compliance date of the final-form regulation on how the final-form rulemaking will be implemented and complied with by their facility.

A commentator stated that a provision to the proposedregulation should be added to indicate that this rulemaking should supersede the case-by-case reasonably available control technology (RACT) determinations for cement kilns in this Commonwealth. The Board disagreeswith the commentator. If the final-form rulemaking requirements are more stringent than a RACT requirement previously established on a case-by-case basis, complying with the final-form regulation’s more stringent provisionswould ensure compliance with the other RACT requirements.

A commentator stated that the proposal required owners or operators of cement kilns to ‘‘install, operate and maintain CEMS for NOx emissions’’ by May 1, 2009. The

commentator asked what the costs will be for owners and operators as a result of requiring this device to be installed on kilns in less than 1 year. The owners and operators of the cement kilns in this Commonwealth who are affected by the proposed rulemaking currently have aCEMS as part of the existing cement regulation requirement that limits NOx emissions from cement kilns during the ozone season to 6.0 lbs/ton clinker (see § 145.143(b) 

### RULES AND REGULATIONS 3351

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**published at 34 Pa.B. 6509)). The existing cement regulation published at 34 Pa.B. 6509 was effective December 11, 2004, with a compliance date of May 1, 2005 (see § 145.141 (relating to applicability)). Therefore, there are no costs to the owners and operators of affected cement kilns to install a CEMS. In the final-form rulemaking, the compliance date under new § 145.144(a) by when the CEMS shall be installed, operating and maintained is April 15, 2011, for the owner or operator of a Portland cement kiln subject to new § 145.143(b)(2). This date ensures that the CEMS equipment is running properly before May 1, 2011, which is the first day of the first compliance period for affected owners and operators for

the determination of allowable emissions for Portland cement kilns using the new emission limits specified under final-form § 145.143(b)(2).

F. Summary of Final-Form Rulemaking

The final-form rulemaking deleted the proposed amendments to the applicability date under § 145.141. The existing regulation containing NOx emission limits for cement kilns in Chapter 145, Subchapter C will remain in effect through April 30, 2011. The compliance date for the final-form amendments to Chapter 145, Subchapter C is May 1, 2011. The compliance date in the final-formrulemaking by which the CEMS shall be installed, operating and maintained is April 15, 2011.

The following regulatory language regarding new termsand definitions in § 145.142 was published in the proposed rulemaking as amendments to § 121.1 to support the proposed amendments to Chapter 129 (relating tostandards for sources). This final-form rulemaking removes those terms and definitions from § 121.1 and places them in § 145.142 to support the final-form amendments to Chapter 145, Subchapter C. Subsequent to the close of the public comment period for the cement kilns proposed rulemaking, the Board proposed for public

comment a revised definition of the term ‘‘CEMS— Continuous emissions monitoring system’’ under § 121.1 in a proposed rulemaking as part of the amendments tothe air quality fee schedules (see 39 Pa.B. 6049). Therefore, an amendment of the definition of ‘‘CEMS— Continuous emissions monitoring system’’ in § 121.1 in the cement kilns proposed rulemaking was deleted, and the existing definition of the term ‘‘CEMS—Continuous Emission Monitoring System’’ in § 145.142 that applies to

cement kilns has been retained in the final-form rulemaking.

The final-form rulemaking adds definitions for thefollowing new terms to § 145.142 to support the substantive provisions in §§ 145.141 and 145.43—145.146: ‘‘calcine,’’ ‘‘long dry-process cement kiln,’’ ‘‘long wet-process cement kiln,’’ ‘‘precalciner cement kiln,’’ ‘‘preheater cement kiln’’ and ‘‘system-wide.’’

Substantive changes were not made to the definitions of the terms between proposed and final-form rulemaking.

A definition for ‘‘system-wide’’ was added between proposed and final-form rulemaking.

The following regulatory language regarding standardrequirements under § 145.143(b)(1) and (2) was published at proposed rulemaking under § 129.402(a) and (b). This final-form rulemaking moves the substantive language from § 129.402(a) and (b) to § 145.143(b)(1) and (2).

The final-form § 145.143(b) now provides that the owner or operator of a Portland cement kiln may not operate that kiln in a manner that results in NOx

emissions in excess of its allowable emissions. Section 145.143(b)(2) requires that the owner or operator of a

Portland cement kiln determine allowable emissions of NOx by multiplying the tons of clinker produced by the Portland cement kiln for the period from May 1 through September 30, 2011, and for each year thereafter by: 3.88 pounds of NOx per ton of clinker produced for long wet-process cement kilns; 3.44 pounds of NOx per ton of clinker produced for long dry-process cement kilns; and 2.36 pounds per ton of clinker produced for preheater cement kilns and for precalciner cement kilns.

Minor clarifying changes are made to § 145.143(c).

The following regulatory language regarding standardrequirements in § 145.143(d) was published in the proposed rulemaking under § 129.404(c)(1). This final-form rulemaking retains unchanged the substantive language in § 145.143(d).

Final-form § 145.143(d) is unchanged and provides that the owner or operator of a Portland cement kiln subject to this section shall surrender to the Department one CAIR

NOx allowance and one CAIR NOx Ozone Season allowance as defined in 40 CFR 96.102 and 96.302 (relating to definitions), for each ton of NOx by which the combined

actual emissions exceed the allowable emissions of the Portland cement kilns subject to this section at a facility from May 1 through September 30.

The following regulatory language regarding compliance determination in § 145.144 was published in theproposed rulemaking as § 129.403. This final-form rulemaking moves the regulatory language from § 129.403 to § 145.144.

Final-form § 145.144 requires, among other things, that by April 15, 2011, the owner or operator of a Portland cement kiln shall install, operate and maintain CEMS for NOx emissions, and report CEMS emissions data to the Department in accordance with the CEMS requirements of Chapter 139, Subchapter C.

The Board modified the compliance date under this section between proposed and final-form rulemaking. The new compliance date under this section is now 2011, and not 2009, as proposed. CEMS must be installed, operated and maintained by April 15, 2011, rather than May 1, 2009, as originally proposed. This change was made toensure that the CEMS is operational before the compliance date of May 1, 2011, which is the first day of the first compliance period for affected owners and operators

for the determination of allowable emissions for the Portland cement kilns using the new emission limits specified under § 145.143(b)(2). In addition, the Boardchanged certain data substitution requirements in subsection (b). For example, subsection (b) now provides that data invalidated shall be substituted either by the highest

valid 1-hour emission value that occurred under similar source operating conditions during the reporting quarter for an invalid data period during that quarter or an alternative method of data substitution as approved by the Department in writing.

Additionally under this section, the owner or operator of a Portland cement kiln subject to this section shall submit to the Department quarterly reports of CEMS monitoring data in pounds of NOx emitted per hour, in aformat approved by the Department, which is in compliance with Chapter 139, Subchapter C. Also the CEMS for NOx installed under the requirements of this section must meet the minimum data availability requirements in Chapter 139, Subchapter C. 

### 3352 RULES AND REGULATIONS

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**The following regulatory language regarding compliance demonstration and reporting requirements in § 145.145 was published in the proposed rulemaking as§ 129.404. This final-form rulemaking moves the regulatory language from § 129.404 to § 145.145.

Final-form § 145.145 provides, among other things, that by October 31, 2011, and each year thereafter, the owner or operator of a Portland cement kiln shall report certain information in writing to the Department, in aformat approved by the Department. The owner or operator of a Portland cement kiln or multiple Portland cement kilns shall demonstrate compliance with the emissionrequirements specified in § 145.143 on either a kiln-bykiln basis, a facility-wide basis or a system-wide basis among Portland cement kilns under the common control of the same owner or operator in this Commonwealth.

The Board decided to delete the averaging provision for new cement kilns under proposed § 129.404(d), which would have been placed under § 145.145. Under § 127.1 (relating to purpose), new cement kilns, like all newsources, are required to control emissions to the maximum extent, consistent with BAT as determined by the Department at the date of issuance of the plan approval for the new source. The term ‘‘best available technology’’ is defined in § 121.1 as equipment, devices, methods or techniques as determined by the Department which will prevent, reduce or control emissions of air contaminants to the maximum degree possible and which are available or may be made available. To allow new sources to average with existing sources to meet the regulatory obligations of the existing sources would be inconsistent with the intent of the BAT regulatory obligation of thenew sources, which is to control emissions to the maximum degree possible. Consequently, the Board believes that the proposed averaging section is inconsistent with existing regulatory obligations, and this provision has been deleted from the final-form rulemaking.

The Board modified the compliance date under this section between proposed and final-form rulemaking. The new compliance date under this section is now October 31, 2011, and not October 31, 2009, as proposed.

The following regulatory language regarding record keeping in § 145.146 (relating to recordkeeping) was published at proposed rulemaking as § 129.405. This final-form rulemaking moves the regulatory language from § 129.405 to § 145.146.

Final-form § 145.146 provides that the owner or operator of a Portland cement kiln shall maintain an operating log for each Portland cement kiln that includes certain monthly information, and maintain records of certainother information. The records required under this section shall be maintained for 5 years, be kept onsite and be made available to the Department upon request.

G. Benefits, Costs and Compliance

Benefits

Overall, the citizens of this Commonwealth will benefit from this final-form rulemaking because it will result inimproved air quality by reducing ozone precursor emissions and will encourage new technologies and practices,

which will reduce emissions.

The reductions in NOx emissions from Portland cement kilns will also help protect the public health and welfarefrom high levels of fine particulate matter (PM2.5) pollution and the formation of regional haze, of which NOx is a precursor component. Reductions in NOx emissions alsoreduces visibility impairment, soiling and materials damage, and acid deposition. Compliance Costs

The final-form rulemaking includes emissions averaging and use of CAIR NOx Ozone Season Trading Program Allowances and CAIR NOx Annual Trading Program Allowances as near term compliance options. This will allow an owner or operator of an affected cement kiln to elect the least-cost compliance alternative, including emissions averaging or the use of CAIR NOx allowances, to demonstrate compliance with the NOx emission limits. Based on 2005 ozone season emissions, implementation of the final-form rulemaking is estimated to result in a reduction of 1,300 tons of NOx. Based on a 2009 average CAIR NOx Ozone Season Trading Program and CAIR NOx Annual Trading Program allowance price of $500, the cost of 1,300 NOx allowances would be $650,000 per

year.

Compliance Assistance Plan

The Department plans to educate and assist the public and regulated community in understanding the newly revised requirements and how to comply with them. This will be accomplished through the Department’s ongoing compliance assistance program.

Paperwork Requirements

The final-form rulemaking will not significantly increase the paperwork that is already generated during the normal course of business operations.

H. Pollution Prevention

The Pollution Prevention Act of 1990 (42 U.S.C.A.§§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means forachieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials and the incorporationof energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This final-form rulemaking provides the owners and operators of cement kilns in this Commonwealth the opportunity to improve the energy efficiency at their operations, which will result in lower

NOx emissions.

I. Sunset Review

This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by theDepartment to determine whether the regulations effectively fulfills the goals for which they were intended.

J. Regulatory Review

Under section 5(a) of the Regulatory Review Act (71P. S. § 745.5(a)), on April 7, 2008, the Department submitted a copy of the notice of proposed rulemaking,published at 38 Pa.B. 1838, to the Independent Regulatory Review Commission (IRRC) and to the House and Senate Environmental Resources and Energy Committees (Committees) for review and comment.

Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing 

### RULES AND REGULATIONS 3353

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.

Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 12, 2010, the final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 13, 2010, and approved the final-form rulemaking.

K. Findings

The Board finds that:

(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1

and 7.2.

(2) At least a 60-day public comment period was provided as required by law, and all comments were

considered.

(3) These regulations do not enlarge the purpose of the proposal published at 38 Pa.B. 1838.

(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts

identified in Section C of this order.

(5) These regulations are reasonably necessary to attain and maintain the ozone and PM2.5 NAAQS.

L. Order

The Board, acting under the authorizing statutes,

orders that:

(a) The regulations of the Department, 25 Pa. Code Chapter 145, are amended by amending §§ 145.142 and 145.143 and by adding §§ 145.144—145.146 to read as

set forth in Annex A.

(b) The Chairperson of the Board shall submit this

order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.

(c) The Chairperson of the Board shall submit this

order and Annex A to IRRC and the Committees as required under the Regulatory Review Act (71 P. S. §§ 745.1—745.12).

(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

(e) This final-form rulemaking will be submitted to the EPA as an amendment to the Pennsylvania SIP.

(f) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

JOHN HANGER, Chairperson

(Editor’s Note : For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 2838 (May 29, 2010).)

Fiscal Note: Fiscal Note 7-419 remains valid for the final adoption of the subject regulations. Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL

PROTECTION

Subpart C. PROTECTION OF NATURAL

RESOURCES

ARTICLE III. AIR RESOURCES

CHAPTER 145. INTERSTATE POLLUTION

TRANSPORT REDUCTION

Subchapter C. EMISSIONS OF NOx FROM

CEMENT MANUFACTURING

§ 145.142. Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

CEMS—Continuous Emission Monitoring System—The equipment required under this subchapter or Chapter 139 (relating to sampling and testing) to sample, analyze, measure and provide, by readings taken at least every 15 minutes of the measured parameters, a permanent record

of NOx emissions.

Calcine —To heat a substance to a high temperature, but below its melting or fusing point, to bring aboutthermal decomposition or a phase transition in its physical or chemical constitution.

Clinker—The product of a Portland cement kiln from which finished cement is manufactured by milling and grinding.

Long dry-process cement kiln—A Portland cement kiln that employs no preheating of the feed. The inlet feed to the kiln is dry.

Long wet-process cement kiln —A Portland cement kiln that employs no preheating of the feed. The inlet feed to the kiln is a slurry.

Portland cement—A hydraulic cement produced by pulverizing clinker consisting essentially of hydraulic calcium silicates, usually containing one or more of the forms of calcium sulfate as an interground addition.

Portland cement kiln —A system, including any solid, gaseous or liquid fuel combustion equipment, used to calcine and fuse raw materials, including limestone and clay, to produce Portland cement clinker.

Precalciner cement kiln —A Portland cement kiln where the feed to the kiln system is preheated in cyclone

chambers and a second burner is used to calcine material in a separate vessel attached to the preheater prior to the

final fusion in a kiln that forms clinker.

Preheater cement kiln —A Portland cement kiln where the feed to the kiln system is preheated in cyclone chambers prior to the final fusion in a kiln that forms

clinker.

System-wide —Two or more Portland cement kilns under the common control of the same owner or operator, or multiple owners, in this Commonwealth.

§ 145.143. Standard requirements.

(a) By October 31, 2005, and each year thereafter, theowner or operator of a Portland cement kiln shall calculate the difference between the actual emissions from the unit during the period from May 1 through September 30 and the allowable emissions for that period. 

### 3354 RULES AND REGULATIONS

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**(b) The owner or operator of a Portland cement kiln may not operate a Portland cement kiln in a manner that

results in NOx emissions in excess of its allowable emissions, except as otherwise specified in this section.

(1) Beginning May 1 through September 30, 2005, andeach year thereafter, the owner or operator shall determine allowable emissions by multiplying the tons of clinker produced by the Portland cement kiln for the period by 6 pounds per ton of clinker produced.

(2) Beginning May 1 through September 30, 2011, and each year thereafter, the owner or operator of a Portland

cement kiln shall determine allowable emissions of NOx by multiplying the tons of clinker produced by the Portland cement kiln for the period by:

(i) 3.88 pounds of NOx per ton of clinker produced for long wet-process cement kilns.

(ii) 3.44 pounds of NOx per ton of clinker produced for long dry-process cement kilns.

(iii) 2.36 pounds of NOx per ton of clinker produced for:

(A) Preheater cement kilns.

(B) Precalciner cement kilns.

(c) The owner or operator of a Portland cement kiln subject to subsection (b)(1) shall install and operate aCEMS, and shall report CEMS emissions data, in accordance with the CEMS requirements of either Chapter 139 or 145 (relating to sampling and testing; and interstatepollution transport reduction) and calculate actual emissions using the CEMS data reported to the Department.Any data invalidated under Chapter 139 shall be substituted with data calculated using the potential emission rate for the unit or, if approved by the Department in writing, an alternative amount of emissions that is more representative of actual emissions that occurred during the period of invalid data.

(d) The owner or operator of a Portland cement kiln subject to this section shall surrender to the Department

one CAIR NOx allowance and one CAIR NOx Ozone Season allowance, as defined in 40 CFR 96.102 and 96.302 (relating to definitions), for each ton of NOx by

which the combined actual emissions exceed the allowable emissions of the Portland cement kilns subject to this section at a facility from May 1 through September 30. The surrendered allowances shall be of current year vintage. For the purposes of determining the amount of allowances to surrender, any remaining fraction of a ton equal to or greater than 0.50 ton is deemed to equal 1 ton and any fraction of a ton less than 0.50 ton is deemed to equal zero tons.

(e) If the combined allowable emissions from Portland cement kilns at a facility from May 1 through September

30 exceed the combined actual emissions from Portland cement kilns subject to this section at the facility during the same period, the owner or operator may deduct the difference or any portion of the difference from the

amount of actual emissions from Portland cement kilns at the owner or operator’s other facilities located in this Commonwealth for that period.

(f) By November 1, 2005, and each year thereafter, anowner or operator subject to this subchapter shall surrender the required NOx allowances to the Department’s designated NOx allowance tracking system account, as defined in § 121.1 (relating to definitions), and shall provide in writing to the Department, the following:

(1) The serial number of each NOx allowance surrendered. (2) The calculations used to determine the quantity of NOx allowances required to be surrendered.

(g) If an owner or operator fails to comply with subsection (f), the owner or operator shall by December 31

surrender three NOx allowances of the current or later year vintage for each NOx allowance that was required to be surrendered by November 1.

(h) The surrender of NOx allowances under subsection (g) does not affect the liability of the owner or operator ofthe Portland cement kiln for any fine, penalty or assessment, or an obligation to comply with any other remedy for the same violation, under the CAA or the act.

(1) For purposes of determining the number of days of violation, if a facility has excess emissions for the period May 1 through September 30, each day in that period (153 days) constitutes a day in violation unless the owner or operator of the Portland cement kiln demonstrates that a lesser number of days should be considered.

(2) Each ton of excess emissions is a separate violation.

§ 145.144. Compliance determination.

(a) By April 15, 2011, the owner or operator of a Portland cement kiln subject to § 145.143(b)(2) (relating to standard requirements) shall:

(1) Install, operate and maintain CEMS for NOx emissions.

(2) Report CEMS emissions data, in accordance with the CEMS requirements of Chapter 139, Subchapter C(relating to requirements for source monitoring for stationary sources), to the Department.

(3) Calculate actual emissions using the CEMS data reported to the Department.

(b) If approved by the Department in writing, data invalidated under Chapter 139, Subchapter C, shall be substituted with one of the following:

(1) The highest valid 1-hour emission value that occurred under similar source operating conditions during the reporting quarter for an invalid data period during that quarter.

(2) If no valid data were collected during the reporting quarter, one of the following shall be reported to the Department:

(i) The highest valid 1-hour emission value that occurred under similar source operating conditions during the most recent quarter for which valid data were

collected.

(ii) The highest valid 1-hour emission value that occurred under similar source operating conditions during an alternative reporting period.

(3) An alternative method of data substitution.

(c) The owner or operator of a Portland cement kiln subject to this section shall submit to the Department quarterly reports of CEMS monitoring data in pounds of NOx emitted per hour, in a format approved by the Department, which is in compliance with Chapter 139, Subchapter C.

(d) The CEMS for NOx installed under the requirements of this section must meet the minimum data availability requirements in Chapter 139, Subchapter C.

§ 145.145. Compliance demonstration and reporting

requirements.

(a) By October 31, 2011, and each year thereafter, the owner or operator of a Portland cement kiln subject to 

### RULES AND REGULATIONS 3355

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**§ 145.143(b)(2) (relating to standard requirements) shall submit a written report to the Department, in a formatapproved by the Department, which includes the following:

(1) The difference between the actual NOx emissions from the kiln during the interval from May 1 through September 30 and the allowable emissions for that period.

(2) The calculations used to determine the difference inemissions, including the CEMS data and clinker production data used to show compliance with the allowable emission limits in § 145.143(b)(2). The clinker production data must consist of the quantity of clinker, in tons, produced per day for each kiln.

(b) The owner or operator of a Portland cement kilnshall demonstrate compliance with the standard requirements in § 145.143(b)(2) on one of the following:

(1) A kiln-by-kiln basis.

(2) A facility-wide basis.

(3) A system-wide basis.

§ 145.146. Recordkeeping.

(a) The owner or operator of a Portland cement kiln shall maintain an operating log for each Portland cement kiln. The operating log must include the following on a monthly basis:

(1) The total hours of operation.

(2) The type and quantity of fuel used.

(3) The quantity of clinker produced.

(b) The records maintained by the owner or operator of a Portland cement kiln must include the following:

(1) Source tests and operating parameters established during the initial source test and subsequent testing.

(2) The date, time and duration of any start-up, shutdown or malfunction of a Portland cement kiln or emissions monitoring system.

(3) The date and type of maintenance, repairs or replacements performed on the kilns, control devices and emission monitoring systems.

(c) The owner or operator of a Portland cement kiln shall maintain the records required under this section onsite for 5 years. The records shall be made available to the Department upon request.

[Pa.B. Doc. No. 10-1115. Filed for public inspection June 18, 2010, 9:00 a.m.]

, 

# Title 61—REVENUE

**DEPARTMENT OF REVENUE**

**[ 61 PA. CODE CHS. 151 AND 153 ]**

**Amended Report—Corporation Taxes**

The Department of Revenue (Department), under section 6 of The Fiscal Code (72 P. S. § 6), amends § 153.54 (relating to changes made by Federal government) and adds §§ 151.14 and 153.66 (relating to amended report; and applicability) to read as set forth in Annex A.

Purpose of this Final-Form Rulemaking

This final-form rulemaking provides a procedure for the filing of amended Corporate Tax reports for tax reports governed by the assessment process in the act of October 18, 2006 (P. L. 1149, No. 119) (Act 119). New § 151.14 reflects the replacement of the Corporate Tax settlement process with an assessment process.

Explanation of Regulatory Requirements

This final-form rulemaking provides clear instructionsfor corporate taxpayers filing amended reports. The Department adds § 151.14 to outline the provisions forfiling Corporate Tax amended reports. Examples in Chapter 153 (relating to corporate net income tax) have been amended with updated language. Obsolete language has been replaced throughout § 153.54. Specifically, obsolete language was removed in § 153.54(b)(1) regarding the Report of Change Form. Section 153.54(g) has been expanded to explain: (1) Corporate Net Income Tax settled prior to January 1, 2008; and (2) Corporate Net Income Tax not settled prior to January 1, 2008. In addition, an ‘‘applicability’’ section is added in § 153.66 to clarify that §§ 153.61—153.65 apply to taxes settled prior to January 1, 2008.

In the final-form rulemaking, § 153.54(a) has been amended to remove the obsolete term ‘‘corrected report’’ and replace it with ‘‘Report of Change.’’ Also, a new sentence has been added to clarify the Department’s long-standing policy regarding changes in Federal losses. In addition, examples have been added to § 153.54(h) to address changes initiated by the taxpayer.

Affected Parties

The Commonwealth’s corporate taxpayers and tax practitioners may be affected by this final-form rulemaking. The final-form rulemaking adds a fourth leg to what the Department has already accomplished for the education of the tax community on the changes to Amended Reports under Act 119. The Department has done the following: (1) added detailed language in the Instruction Booklet forForm RCT 101; (2) published a notice on the Department’s web site entitled ‘‘Notice to Pennsylvania Taxpayers Regarding Amended Corporate Tax Reports;’’ and (3) participated in numerous seminars in the tax community on this subject.

Comment and Response Summary

Notice of proposed rulemaking was published at 39 Pa.B. 1207 (March 7, 2009). The proposed rulemaking is being adopted with amendments to read as set forth in

Annex A.

The Department prepared a comment and responsedocument that is available to interested parties by contacting Mary R. Sprunk, Office of Chief Counsel, Department of Revenue, P. O. Box 281061, Harrisburg, PA

17128-1061.

The Department received one comment from the public during the public comment period. No comments were

received from either the House Finance Committee or theSenate Finance Committee (Committees). The Independent Regulatory Review Commission (IRRC) submitted comments on the proposed rulemaking. The following is a summary of the Department’s responses to the key issues

referenced in the comments.

The Department added clarifying language in § 151.14(b) and (c) to address comments requesting time frames and examples of changes for the amended report

process.

The Department added clarifying language in§ 151.14(e) for taxpayers to understand that the Depart

### 3356 RULES AND REGULATIONS

**PENNSYLVANIA BULLETIN, VOL. 40, NO. 25, JUNE 19, 2010**