§ 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 shall

maintain 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. The

reduction 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 are

often 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) to

develop 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, architectural

and 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 and

precalciner 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 achieve

NOx emission reductions of greater than 20% from cement kilns. These technologies include: conversion to

indirect 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 approxi3346 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 or

precalciner 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 that

the 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 to

require written approval by the Department for substituted monitoring data has been made to the final-form

rulemaking. 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 maintains

that 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 for

new 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 on

October 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-related

pollutants to reduce ground-level ozone. The Board appreciates the commentators’ support of this rulemaking. The

final-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 are

reasonably 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 Season

allowances 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. The

Board 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.

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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 a

cap-based emission limit rather than a rate-based emission limit. The final-form rulemaking emission limits are

rate-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 to

compliance 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 is

more 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 cement

kilns 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 stringent

than 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 this

Commonwealth would be the precalciner type, and therefore must 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. 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. Additionally, the decision was made to delete

from the final-form rulemaking the emissions averaging

provision for existing kilns with new kilns beginning

operation 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 new

cement kilns, which is to control emissions to the maximum degree possible. Therefore, the Board determined

that 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 the

proposed 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 of

the relevant sections previously listed. The Board disagrees with the commentator that the final-form regulations should explain the distinction. The compliance

period 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.

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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 statutory

authority 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 SO2

trading programs), published at 38 Pa.B. 1705, that

provide for a CAIR NOx Ozone Season Trading Program

and 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, to

consider 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 Ozone

Season 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 greater

than 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 several

permit 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 Board

disagrees. 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. The

Board 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 and

compliance certification requirements, and additional reporting requirements are unnecessary and only add to the

administrative burden. The Board disagrees and does not

believe that maintaining records of daily clinker production will present a significant inconvenience to an owner

or operator. Daily records may be needed to enable the

Department 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. The

Board 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 for

a 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 is

November 1, 2009. The Board disagrees with the commentator. The requirement to report information to the

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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 compliance

with 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 on

the 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 requirement

is found in many Board-approved rulemakings, and neither the Department nor the regulated sources have had

problems 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 the

EPA’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 that

the final-form regulation should clarify what circumstances necessitate compliance with § 129.404(c). The

Board believes that the final-form regulation clearly

specifies what circumstances would necessitate compliance with these subsections. Proposed § 129.404(c) has

been 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 kiln

owner or operator shall follow to surrender NOx allowances if the owner or operator determines, after calculating the amount of actual NOx emissions in accordance

with the requirements under § 145.144 (relating to compliance determination) and § 145.145, that the actual

NOx emissions from the kiln or kilns exceed the amount

of 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 as

a 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 been

deleted 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 kiln

owner 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

period... 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 Board

should 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 proposed

under § 129.404(g)(1) and deleted in this final-form rulemaking are consistent with the requirements specified

under 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 the

preamble 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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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 references

Chapter 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 to

the entire air quality regulatory program. However, subsequent to the close of the public comment period for the

proposed 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 fee

schedules. 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 ‘‘alternative

reporting 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 with

those 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 to

propose 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 that

representative 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 the

substitution 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 refer

to ‘‘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-reference

in 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 proposed

regulation 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 disagrees

with 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 provisions

would 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 a

CEMS 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)

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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-form

rulemaking by which the CEMS shall be installed, operating and maintained is April 15, 2011.

The following regulatory language regarding new terms

and definitions in § 145.142 was published in the proposed rulemaking as amendments to § 121.1 to support

the proposed amendments to Chapter 129 (relating to

standards 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 to

the 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 the

following 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 standard

requirements 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 standard

requirements 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 the

proposed 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 to

ensure 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 Board

changed 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 a

format 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.

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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 a

format approved by the Department. The owner or operator of a Portland cement kiln or multiple Portland cement

kilns shall demonstrate compliance with the emission

requirements 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 new

sources, 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 the

new 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 certain

other 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 in

improved 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 welfare

from 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 also

reduces 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 for

achieving 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 incorporation

of 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 the

Department 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 (71

P. 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

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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 about

thermal 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, the

owner 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.

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(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, and

each 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 a

CEMS, and shall report CEMS emissions data, in accordance with the CEMS requirements of either Chapter 139

or 145 (relating to sampling and testing; and interstate

pollution 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, an

owner 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 of

the 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

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§ 145.143(b)(2) (relating to standard requirements) shall

submit a written report to the Department, in a format

approved 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 in

emissions, 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 kiln

shall 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 instructions

for corporate taxpayers filing amended reports. The Department adds § 151.14 to outline the provisions for

filing 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 for

Form 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 response

document 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 the

Senate 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 Depart3356 RULES AND REGULATIONS

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