28318 Federal Register / Vol. 76, No. 95 / Tuesday, May 17, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 63 

[EPA–HQ–OAR–2002–0051; EPA–HQ–OAR– 

2007–0877; FRL–9306–7] 

RIN 2060–AQ93 

National Emission Standards for 

Hazardous Air Pollutants From the 

Portland Cement Manufacturing 

Industry and Standards of 

Performance for Portland Cement 

Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Denial in part and grant in part 

of petitions to reconsider. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is denying in 

part and granting in part the petitions to 

reconsider the final revised National 

Emission Standards for Hazardous Air 

Pollutants emitted by the Portland 

Cement Industry and the New Source 

Performance Standards for Portland 

Cement Plants issued under sections 

112(d) and 111(b) of the Clean Air Act, 

respectively. The EPA is also denying 

all requests that the EPA issue an 

administrative stay of the National 

Emission Standards for Hazardous Air 

Pollutants and the New Source 

Performance Standards. 

DATES: This action is effective May 17, 

2011. 

ADDRESSES: The EPA’s docket for this 

action is Docket ID No. EPA–HQ–OAR– 

2002–0051. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, e.g., confidential 

business information (CBI) or other 

information where disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the EPA’s Docket Center, Public Reading 

Room, EPA West Building, Room 3334, 

1301 Constitution Avenue, NW., 

Washington, DC 20004. This Docket 

Center is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Keith Barnett, Office of Air Quality 

Planning and Standards; Sector Policies 

and Programs Division, Minerals and 

Manufacturing Group (D243–02); 

Environmental Protection Agency; 

Research Triangle Park, NC 27111; 

telephone number: (919) 541–5605; fax 

number: (919) 541–5450; e mail address: 

barnett.keith@epa.gov. 

SUPPLEMENTARY INFORMATION: On August 

6, 2010, the EPA signed a final rule 

establishing and amending various air 

emission limits applicable to the 

Portland cement industry. See 75 FR 

54970 (Sept. 9, 2010). The rule 

establishes National Emission Standards 

for Hazardous Air Pollutants (NESHAP) 

for emissions of mercury, total 

hydrocarbons (THC), and particulate 

matter (PM) from new and existing 

cement kilns located at major and area 

sources, and for emissions of 

hydrochloric acid (HCl) from new and 

existing kilns located at major sources. 

The rule also establishes New Source 

Performance Standards (NSPS) for 

emissions of PM, nitrogen oxides, and 

sulfur dioxide at cement kilns that 

commence construction, modification, 

or reconstruction after June 16, 2008. 

Various entities representing both the 

regulated industry and the 

environmental community have 

petitioned the EPA for reconsideration 

of various standards in these rules, in 

particular the NESHAP. A number of 

industry petitioners also requested that 

the EPA issue an administrative stay of 

the NESHAP and NSPS. For the reasons 

stated below, the EPA is denying 

reconsideration on certain issues raised 

in the petitions and is granting 

reconsideration on a number of other 

issues. The EPA is also denying all 

requests that it issue an administrative 

stay. 

I. Standard for Reconsideration 

Section 307(d)(7)(B) of the Clean Air 

Act (CAA) states that: ‘‘Only an 

objection to a rule or procedure which 

was raised with reasonable specificity 

during the period for public comment 

(including any public hearing) may be 

raised during judicial review. If the 

person raising an objection can 

demonstrate to the Administrator that it 

was impracticable to raise such 

objection within such time or if the 

grounds for such objection arose after 

the period for public comment (but 

within the time specified for judicial 

review) and if such objection is of 

central relevance to the outcome of the 

rule, the Administrator shall convene a 

proceeding for reconsideration of the 

rule and provide the same procedural 

rights as would have been afforded had 

the information been available at the 

time the rule was proposed. If the 

Administrator refuses to convene such a 

proceeding, such person may seek 

review of such refusal in the United 

States court of appeals for the 

appropriate circuit (as provided in 

subsection (b)). Such reconsideration 

shall not postpone the effectiveness of 

the rule. The effectiveness of the rule 

may be stayed pending such 

reconsideration, however, by the 

Administrator or the court for a period 

not to exceed three months.’’ 

As to the first procedural criterion for 

reconsideration, a petitioner must show 

why the issue could not have been 

presented during the comment period, 

either because it was impracticable to 

raise the issue during that time or 

because the grounds for the issue arose 

after the period for public comment (but 

within 60 days of publication of the 

final action). 

In the EPA’s view, an objection is of 

central relevance to the outcome of the 

rule only if it provides substantial 

support for the argument that the 

promulgated regulation should be 

revised. See, e.g., the EPA’s Denial of 

the Petitions to Reconsider the 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases under 

Section 202 of the Clean Air Act, 75 FR 

49556, 49561 (Aug. 13, 2010). This 

interpretation is appropriate in light of 

the criteria adopted by Congress in this 

and other provisions in section 307(d). 

Section 307(d)(4)(B)(i) provides that 

‘‘[a]ll documents which become 

available after the proposed rule has 

been published and which the 

Administrator determines are of central 

relevance to the rulemaking shall be 

placed in the docket as soon as possible 

after their availability.’’ This provision 

draws a distinction between comments 

and other information submitted during 

the comment period, and other 

documents which become available 

after publication of the proposed rule. 

The former are docketed irrespective of 

their relevance or merit, while the latter 

must be docketed only if a higher hurdle 

of central relevance to the rulemaking is 

met. 

For more extended discussions of the 

standard for reconsideration under 

section 307(d)(7)(B), please see 75 FR 

49556, 49560–49563 (August 13, 2010) 

and 76 FR 4780, 4786–4788 (January 26, 

2011). 

II. The Petitions for Reconsideration 

A. Petition of the Portland Cement 

Association (PCA) 

1. PCA maintains that after the close 

of the comment period on the proposed 

cement NESHAP, the EPA proposed 

inter-related rules regulating 


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1A ‘‘secondary material’’ is a material that can 

potentially be classified as a solid waste under the 

Resource Conservation and Recovery Act when 

recycled. 50 FR 616 n. 4 (Jan. 4, 1985). Under the 

newly adopted regulatory definition of solid waste, 

secondary materials encompass ‘‘any material that 

is not the primary product of a manufacturing or 

Continued 

Commercial and Industrial Solid Waste 

Incinerators (CISWI) and proposing a 

definition of solid waste for nonhazardous secondary materials. Petition 

p. 2. PCA alleges that these proposed 

rules ‘‘eviscerate the statistical 

underpinning for the NESHAP rule.’’ 

Petition p. 2. PCA states that under the 

proposed rule defining non-hazardous 

secondary materials that are solid 

wastes (‘‘solid waste definition rule’’), 

many cement kilns would have been 

considered to be incinerators (i.e., units 

that combust ‘‘solid waste,’’ as that term 

is defined by the Administrator under 

RCRA, see section 129(g)(6)), rather than 

cement kilns. PCA further states that 

under the proposed waste definition 

rule, virtually all of the cement kilns 

comprising the pool of best performers 

for each of the cement NESHAP floors 

would be incinerators since they burn 

secondary materials that would have 

been defined as solid waste under the 

proposed solid waste definition rule. 

Although acknowledging that the EPA 

had discussed in the proposed cement 

NESHAP how it intended to classify 

cement kilns that burn secondary 

materials (Petition p. 8), PCA maintains 

that it had no notice of the potential 

impact of the CISWI rule and solid 

waste definition rule until the EPA 

proposed a definition of solid waste, 

and, in particular, that PCA was 

unaware of the potential practical 

implications of the issue until the EPA 

proposed a solid waste definition. 

Petition pp. 10, 12. Petitioners maintain 

that the EPA cannot permissibly classify 

the same kilns as affected sources under 

both rules, and requests that the EPA 

stay the Portland cement NESHAP 

administratively pending 

reconsideration of the issue. 

2. PCA next maintains that the EPA 

adopted standards for open clinker 

cooler piles in the NESHAP without 

giving proper notice of what those 

standards might be. Petition p. 11. 

3. PCA further requests 

reconsideration of the standards for 

startup and shutdown operations. PCA 

argues that the final standards deviated 

from those proposed, because the EPA 

had proposed that the same standards 

that apply during normal operation also 

apply during startup and shutdown 

operations, whereas the final rule 

adopts standards for startup and 

shutdown that differ from those 

applicable during normal operation. 

Petition p. 14. PCA maintains that it had 

no notice of the data on which such 

standards were based, because the 

standards are not based on emissions 

data. Id. p. 15. The petition further 

states that the standards for startup and 

shutdown were adopted in disregard of 

the requirements of section 112(d)(3) of 

the CAA, again largely because the 

standards are not based on emissions 

data. Id. 

4. In the final rule, the EPA adopted 

a provision establishing an affirmative 

defense to civil penalties for 

exceedances of emission standards 

which result from malfunction events. 

PCA requests that the EPA reconsider 

this affirmative defense provision, 

which it characterizes as overly 

cumbersome, and issued without notice 

and adequate opportunity for public 

comment. Id. at 16. 

5. PCA also requests that the EPA 

reconsider the standards for PM, 

including the new source standard for 

PM in the NSPS. Id. PCA alleges that the 

EPA ‘‘reduce[d] the PM limits * * * 

dramatically’’ between proposal and 

final rule, and that the change was 

based on information hand-picked by 

the EPA which information was not 

known to petitioners. Id. In a follow-up 

letter of December 14, 2010, PCA 

expanded on its petition to state that the 

key change between proposal and final 

rule, made without proper notice, was 

to express the PM standard as a 30-day 

average and to use a statistical 

methodology (Upper Prediction Limit, 

or UPL) in calculating that limit. 

December 14 Letter p. 3. 

6. PCA also requested that the EPA 

reconsider a number of issues of a more 

technical nature (many of which pertain 

to the standards for open clinker piles). 

Petition Exhibit 1. 

B. Petition of Eagle Materials 

Eagle Materials challenges application 

of the NESHAP’s monitoring 

requirements to sources equipped with 

monovents (vents on the top of a control 

device rather than a single stack). 

Although acknowledging that this issue 

was presented during the public 

comment period, Eagle Materials 

maintains that the EPA’s disposition of 

the issue was based on technical 

assumptions which are unfounded and 

unanticipated by Eagle and other 

commenters. Eagle Materials also 

maintains that the EPA adopted 

standards for clinker storage piles 

without providing adequate notice of 

what those standards might be. 

C. Petitions of Sierra Club, 

Downwinders at Risk, Friends of 

Hudson, Huron Environmental Activist 

League, Desert Citizens Against 

Pollution, Montanans Against Toxic 

Burning, and the Natural Resources 

Defense Council 

A number of environmental groups 

filed petitions requesting that the EPA 

reconsider the provision establishing an 

affirmative defense to civil penalties for 

emission exceedances demonstrated to 

have occurred as a result of a 

malfunction event (as defined). The 

petitions maintain that the EPA adopted 

this provision without adequate notice 

and opportunity for public comment. 

III. Decision on Issues Raised in the 

Petitions 

A. Issues on Which the EPA Is Denying 

Reconsideration 

1. Relationship Between Portland 

Cement NESHAP, Solid Waste 

Definition and CISWI Rule 

PCA maintains that ‘‘EPA proposed 

the CISWI/‘solid waste’ definition rules 

after the comment period closed on the 

NESHAP rule, foreclosing any real 

opportunity for PCA to assess and 

comment on the impacts of the 

NESHAP. Indeed, it was not until EPA 

proposed the subsequent CISWI/‘solid 

waste’ rules that * * * PCA had notice 

with any real specificity of the number 

of cement facilities that may end up 

being regulated as CISWI facilities.’’ 

Petition p. 8. The EPA is denying 

rehearing on this issue because the 

petitioners have failed to demonstrate 

that it was impracticable to raise their 

objection during the public comment 

period. In addition, the fact that some 

cement kilns may have a later change of 

regulatory classification after the 

NESHAP is promulgated is not an issue 

of central relevance to the outcome of 

the NESHAP rule, as required by the 

statutory standard for reconsideration. 

Finally, as discussed below, even if the 

impacts of the solid waste rule had been 

assessed, it would not have made a 

significant difference in the final 

Portland Cement NESHAP. 

a. Was it impractical to raise the 

objection within the comment period? 

Section 307(d)(7)(B) requires the EPA 

to grant reconsideration of an issue ‘‘[i]f 

the person raising the objection can 

demonstrate to the Administrator that it 

was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment’’. PCA could have 

objected during the comment period on 

the proposed Portland Cement NESHAP 

to EPA’s classification of all Portland 

cement kilns burning secondary 

materials 1 as cement kilns. In the 


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commercial process, and can include postconsumer material, off-specification commercial 

chemical products or manufacturing chemical 

intermediates, post-industrial material, and scrap.’’ 

40 CFR 241.2. 

2See docket item EPA–HQ–OAR–2002–0051– 

2043. 

3Two commenters (# 2816 and 2846) noted EPA’s 

approach. One of these commenters approvingly 

summarized EPA’s position to classify all cement 

kilns as cement kilns, based on their status at the 

time of the NESHAP. The other commenter simply 

summarized EPA’s position. Neither of these 

comments is an objection putting EPA on notice 

that a commenter disagreed with EPA’s approach or 

otherwise raising ‘‘with reasonable specificity’’ 

(section 307(d)(7)(B)) any issue that EPA’s approach 

was objectionable for legal or policy reasons. 

4Nonetheless, had the final solid waste definition 

been in place at the time of the final Portland 

Cement NESHAP rulemaking, there would have 

been only modest change in the scope of the 

NESHAP source category and the final standards 

would have been largely unaltered. See Table 1 

below. 

5Fuels Use in Portland Cement Kilns, April 25, 

2011. 

6There is no valid argument that cement kilns 

burning alternative fuels were already commercial 

and solid waste incinerators at the time of the 

NESHAP rulemaking. First, all of these kilns 

certified that they were cement kilns in compliance 

with the 1999 MACT standards for the Portland 

Cement category (pursuant to 40 CFR sections 

63.1353(b)(5) and 63.9(h)). Second, the status of 

these alternative fuels as solid wastes or not solid 

wastes could not be determined in the absence of 

a regulatory definition addressing the status of 

those fuels. 74 FR at 21138. Although there is a 

statutory definition of solid waste in the Resource 

Conservation and Recovery Act (at section 1004 

(27)), that definition does not apply directly to 

section 129, but must be implemented by means of 

an EPA-promulgated regulation. See CAA section 

proposed Portland Cement NESHAP, 

the EPA proposed to classify all cement 

kilns, including those burning 

secondary materials, as cement kilns for 

the NESHAP rulemaking, and explained 

why it was doing so. The EPA discussed 

the interplay between the cement kiln 

NESHAP and the forthcoming rules for 

incinerators which burn solid waste, 

noting that ‘‘some Portland cement kilns 

combust secondary materials as 

alternative fuels’’. 74 FR at 21138. The 

EPA then stated that because there was 

no regulatory definition of solid waste 

that would distinguish which of these 

alternative fuels burned by cement kilns 

were wastes and which were not, the 

EPA would therefore classify all of the 

units as cement kilns. Id. The EPA 

reasoned that unless and until the 

Agency adopts a definition of solid 

waste classifying the alternative fuels, 

cement kilns burning secondary 

materials as fuels or otherwise using 

secondary materials are lawfully 

classified as cement kilns and rules for 

cement kilns therefore would apply to 

them. Id. The EPA also articulated the 

principle of which PCA states it lacked 

notice: The NESHAP would be based on 

the performance of all devices which 

were cement kilns at the time of the 

Portland Cement NESHAP rulemaking. 

Id. The EPA further found that 

combustion of secondary materials as 

alternative fuels by cement kilns ‘‘did 

not have any appreciable effect on the 

amount of hazardous air pollutants 

(HAP) emitted by any source.’’ Id. The 

record for the proposed rule included an 

inventory of every material burned by a 

large group of cement kilns over a 

30-day period, including all of those 

comprising the pool of best performers 

for mercury.2

Neither PCA nor any other commenter 

objected to any aspect of the issue of the 

interplay between the cement kiln 

NESHAP and the CISWI/waste 

definition rules during the comment 

period.3 PCA has consequently failed to 

satisfy the requirement of section 

307(d)(7)(B) that it was impractical to 

raise the issue during the public 

comment period or that the grounds for 

their objection arose after the close of 

the comment period. 

Petitioners maintain that ‘‘it was 

impossible for PCA to provide informed 

comments on the interplay between the 

CISWI/‘solid waste’ definition rules and 

the NESHAP rule’’ until the Agency 

proposed those rules on April 29, 2010, 

after the close of the comment period in 

the NESHAP. Petition p. 10. 

Acknowledging that the EPA had 

already raised the issue in the proposed 

cement NESHAP, petitioners maintain 

that ‘‘[a] generic comment is not 

adequate to put stakeholders on fair 

notice that the CISWI/‘solid waste’ 

definition rules could fundamentally 

change the scope of the NESHAP source 

category.’’ Id.4 But the EPA’s discussion 

at proposal was not generic. It was a 

considered discussion stating the 

approach to classification the EPA 

intended to adopt (and did adopt) in the 

final rule, citing moreover to the EPA’s 

Advance Notice of Proposed 

Rulemaking (74 FR 42, January 2, 2009) 

which had discussed the universe of 

secondary materials burned by units 

including cement kilns, and the 

considerations the Agency might use in 

ultimately classifying these materials by 

rule as waste or non-wastes. The 

administrative record likewise 

contained item-by-item accounting— 

cited to by the EPA when presenting the 

issue of kiln classification for public 

comment—of every secondary material 

burned by a large group of cement kilns 

over an extended period. 

PCA appears to be stating that 

although the EPA had raised the issue 

of kiln classification at proposal, the 

practical implications of the EPA’s 

approach were not clear until the EPA 

proposed a solid waste definition and 

CISWI standards. But the EPA stated 

that it would classify all cement kilns as 

cement kilns during the NESHAP 

rulemaking unless a final definition of 

solid waste changed their regulatory 

status prior to the completion of the 

section 112 Portland Cement NESHAP. 

That issue was unaltered by the EPA 

issuing a proposed solid waste 

definition and proposed CISWI 

standards. Just like the proposed cement 

NESHAP, the final cement NESHAP was 

based on the performance of units 

classified as cement kilns at the time of 

the cement NESHAP rulemaking. This 

included all cement kilns burning 

alternative fuels. PCA’s objection is no 

different before the proposed solid 

waste definition and CISWI rules than 

after that proposal. The same issue is 

presented now as was presented at 

proposal: Whether devices which are 

classified as cement kilns in the absence 

of a regulatory waste definition are 

properly so classified if they were 

burning secondary materials that might 

ultimately be classified as solid wastes. 

Moreover, the type of secondary 

materials the cement kilns were burning 

was well-documented in the NESHAP 

administrative record (and known to 

PCA in any case).5 PCA’s decision not 

to comment on the issue because of 

perceived lack of practical effect was 

their choice, not the result of lack of 

notice. For this reason, PCA’s statement 

that it could not gauge the impact of the 

NESHAP until the proposed waste 

definition/CISWI rule appeared 

(Petition p. 10) misses the point. Those 

impacts were going to be the same 

because the EPA had made clear that it 

would continue to classify cement kilns 

as cement kilns so long as that remained 

their legal status. This status remained 

the same throughout the rulemaking. 

b. Are petitioners’ objections of 

central relevance to the outcome of the 

rule? 

Section 307(b)(7)(B) also requires that 

for reconsideration to be required, 

objections must be ‘‘of central relevance 

to the outcome of the rule.’’ The EPA 

does not believe that is the case here, for 

reasons both legal and practical. 

The EPA believes that it validly based 

the NESHAP on the performance of 

devices which were cement kilns at the 

time of the rulemaking. See section 

112(d)(3)(A) which states that maximum 

achievable control technology (MACT) 

floors for existing sources are to reflect 

performance of sources for which the 

EPA has emissions information, 

indicating that standards are to reflect 

sources’ legal status and performance at 

the time of the rulemaking.6 Later rules 


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129(g)(6) (‘‘the ter[m] ‘solid waste’ * * * shall have 

the meanin[g] established by the Administrator 

pursuant to the Solid Waste Disposal Act’’.) Equally 

important, the status of alternative fuels cannot be 

determined from the statutory definition alone (as 

illustrated by the different regulatory classifications 

of different alternative fuels in the recently-adopted 

definition of non-hazardous secondary materials, 

and the significant changes between proposal and 

final rule that EPA made in classifying alternative 

fuels). 

7As noted earlier, all cement kilns certified to 

EPA that they were cement kilns in compliance 

with the applicable section 112(d) standards for 

cement kilns up to and through the time of the 

amendments to the Portland Cement NESHAP. 

8See Geller v. FCC, 610 F. 2d 973, 979–80 (DC 

Cir. 1979) (rules justified as needed to encourage 

passage of Federal copyright legislation, without 

any further justification that the rules were in the 

public interest, may have lacked any nexus with the 

public interest after passage of the copyright 

legislation and the Federal Communications 

Commission could therefore be compelled to 

reexamine the rule); RSR v. EPA, 102 F. 3d 1266, 

1270 (DC Cir. 1997) (noting that in Geller the sole 

basis for the challenged rule had ‘‘long since 

evaporated’’ and that agency was compelled to 

reexamine the rule in light of the ‘‘abnormal 

circumstances’’ of the case). 

9For the same reason, EPA cannot be deemed to 

have constructively reopened the NESHAP when it 

issued the solid waste definition and CISWI rules. 

Nothing in the later rules changes the kilns’ status 

as cement kilns at the time of the cement NESHAP 

rulemaking. 

that prospectively establish the 

classification of certain of the 

alternative fuels that these kilns burned 

does not alter these kilns’ status— 

cement kilns—at the time of the cement 

NESHAP rulemaking. This is all that 

matters. The solid waste definition rule 

adopted a half year after the signature of 

the Portland Cement NESHAP rule is 

not relevant to the cement kilns’ 

classification at the time of the NESHAP 

rulemaking. 

PCA argues, however, that the 

situation here is controlled by the DC 

Circuit’s opinion in NRDC v. EPA, 489 

F. 3d 1250 (DC Cir. 2007) (‘‘Boiler 

MACT’’). Petition p. 8. We disagree. In 

that case, the EPA had adopted a 

definition of ‘‘solid waste incineration 

unit’’ which classified ‘‘commercial or 

industrial waste’’ to include only solid 

waste combusted in units which do not 

recover energy. 489 F. 3d at 1258. The 

EPA issued MACT standards predicated 

upon no boilers being incinerators due 

to their energy recovery purpose and 

design. The court held that the 

definition was impermissible in that it 

classified units burning solid waste as 

boilers rather than as commercial and 

industrial solid waste incineration units 

and noted that ‘‘[t]he effect of these 

definitions is to substantially reduce the 

number of commercial or industrial 

waste combustors subject to section 

129’s standards’’. Id. The court 

continued: 

[Since the Court is requiring] EPA to revise 

the CISWI Definitions Rule * * *, the Boilers 

Rule will need to be revised as well because 

the universe of boilers subject to its standards 

will be far smaller and more homogenous 

after all CISWI units * * * are removed from 

its coverage. Given the likelihood (if not 

certainty) that the Boilers Rule will change 

substantially as a result of our vacatur of the 

challenged ‘‘solid waste’’ definition, we 

believe the Boilers Rule should be vacated in 

its entirety and remanded for EPA to 

repromulgate after revising the CISWI 

Definitions Rule. 489 F. 3d at 1261. 

The NESHAP rule at issue in Boiler 

MACT was thus promulgated when 

there was a definition of commercial 

and industrial wastes (as incorporated 

in the definition of solid waste 

incinerator, 489 F. 3d at 1261), which 

classified all units as either boilers or 

incinerators, albeit improperly. Here, in 

contrast, there was no regulatory 

definition of solid waste that 

determined (or otherwise addressed) the 

status of the alternative fuels burned by 

cement kilns. Thus, cement kilns 

burning alternative fuels or other 

secondary materials were not classified 

as incinerators during the cement 

NESHAP rulemaking, but as cement 

kilns. The cement NESHAP therefore 

was and is based exclusively on the 

performance of cement kilns, as 

properly classified at the time of the 

rulemaking.7 PCA states that the EPA 

cannot promulgate a NESHAP rule 

based on calculations that include 

CISWI units, but the EPA has not done 

that. Petition p. 10. All of the cement 

kilns were cement kilns during the 

NESHAP rulemaking. 

Moreover, although the EPA 

recognizes that there is case authority 

that agencies are compelled to reopen 

rules when the rules’ fundamental 

factual basis (or other essential premise) 

is altered by later events,8 the EPA does 

not believe that the factual basis of the 

NESHAP has changed. The units on 

which the standard was based were 

cement kilns at the time of the NESHAP 

rulemaking, and, consistent with section 

112(d)(3), the EPA based the NESHAP 

on that classification. 

PCA also states that the EPA 

committed to reconsider the cement 

NESHAP once the CISWI/‘‘solid waste’’ 

definition rules were finalized. Petition 

p. 11. This is incorrect. The EPA never 

committed to reopening a promulgated 

rule for the cement source category or 

any other. In the preamble to the 

proposed cement NESHAP, the EPA 

stated: ‘‘EPA is basing all determinations 

as to source classification on the 

emissions information now available, as 

required by section 112(d)(3), and will 

necessarily continue to do so until the 

solid waste definition discussed above 

is promulgated.’’ 74 FR at 21138; see 

also 75 FR at 54972 which contains 

similar language. This statement means 

no more than it says: if the EPA had 

promulgated a final definition of solid 

waste that changed the classification of 

these kilns during the rulemaking, then 

the EPA would have based that 

NESHAP on that new classification. 

That did not occur during the Portland 

Cement NESHAP rulemaking. The 

quoted language cannot fairly be read to 

say that the EPA would revise standards 

for source categories properly classified 

at the time of the NESHAP based on a 

post-promulgation definition of solid 

waste whether that category be Portland 

cement kilns, lime kilns, or any other 

source category which once burned 

secondary materials later defined as 

solid waste. 

The implications of PCA’s position 

are that all NESHAPs have to be 

reopened and amended if units in the 

source category were burning secondary 

material that were classified postpromulgation as solid wastes by a later 

rule. Potential examples are lime kilns, 

chemical recovery units, as well as 

cement kilns (including the 1999 dioxin 

standard for cement kilns, which was 

not reopened as part of the 2010 

rulemaking amending the NESHAP). 

The EPA does not accept this position. 

All of the NESHAPs are properly based 

on the units’ classification at the time of 

the rulemaking.9 PCA’s position is 

disruptive to the rulemaking process 

and would potentially lead to frequent 

and substantial uncertainty for the 

regulated community and other 

stakeholders 

The EPA similarly disagrees with the 

premise that the Agency cannot develop 

standards for any source category which 

burns materials which might ultimately 

be classified as solid waste until 

developing and finalizing a solid waste 

definition rule. This conflicts with the 

EPA’s obligations under the statute, 

consent decrees, and settlement 

agreements (including the settlement 

agreement requiring the EPA to issue 

the NESHAP for Portland cement by 

August 2010) to complete NESHAPs for 

source categories listed pursuant to 

section 112(c)(1) by dates certain. The 

EPA’s obligation in fact is to issue 

NESHAPs based on the emissions 

information before it at the time of the 

rulemaking (see section 112(d)(3)(A)), 

which is what it did here. NESHAPs are 

thus necessarily based on the snapshotin-time assessment of performance 

within a source category, which 

necessarily includes the status of 

sources in that category at that moment 


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10Nor would EPA alter any of its determinations 

not to adopt more stringent beyond-the-floor 

standards. 

11 In this analysis, nine of the eleven floor kilns 

for the final cement NESHAP remain cement kilns. 

One of the two floor kilns for THC would be a 

CISWI, although removing this kiln from the 

cement kiln data base would result in a 

significantly more stringent THC standard under 

the NESHAP because this kiln had more associated 

variability in its performance than the other kilns 

ranked closest to it. For PM, two of six kilns remain 

classified as cement kilns. For HCl, two of three 

floor kilns remain cement kilns, but there are a 

whole group of cement kilns that performed 

identically to the floor kiln for HCl that was, for 

purposes of our analysis, reclassified as a CISWI so 

there would be no effect on the standard. 75 FR at 

54894 (standard based on analytic method detection 

limit times a variability factor rather than on the 

measured values because those values were so close 

to the analytic method minimum detection limit). 

See the memorandum Revised Floors Without Kilns 

That Would Have Been CISWI Kilns Had the Solid 

Waste Definition Applied, dated April 25, 2011. 

12Webster’s Ninth New Colleg1ate Dictionary. 

Merriam-Webster Inc. 1990. 

13See Combustion in a Cement Kiln and Cement 

Kilns’ Use of Tires as Fuel dated April 25, 2011. 

14 Id. 

in time. To do otherwise makes the 

process unworkable. 

Moreover, although not necessary to 

the decision to deny reconsideration, 

the EPA has evaluated the practical 

implications of the solid waste 

definition and CISWI standards that it 

recently adopted. If the newly-adopted 

solid waste definition had been 

applicable at the time cement kilns 

conducted the performance testing used 

as the basis for the MACT standards and 

at the time of promulgation of the final 

Portland Cement NESHAP, 23 cement 

kilns (by the EPA’s estimate) out of 146 

would have been classified as 

incinerators. If these units were 

removed from the pool of cement kilns, 

the floors—with one exception—would 

have remained either identical or 

essentially identical and, since the EPA 

adopted the floors as the standards, the 

standards would likewise have 

remained identical or essentially 

identical. The one floor that would 

change appreciably is the floor for THC, 

which would become significantly more 

stringent because the revised data base 

would reflect cement kilns experiencing 

less variability in THC emissions.10

Given the minimal change in the 

standards, with the exception of the 

more stringent THC standard, kilns’ 

compliance strategy would be unaltered. 

TABLE 1—COMPARISON OF FLOORS WITH AND WITHOUT KILNS THAT COULD HAVE BEEN CISWI KILNS HAD THE

DEFINITION OF SOLID WASTE APPLIED 11

Pollutant Existing source floor— 

2010 Final Rule 

Existing source floor— 

CISWI kilns removed from 

inventory 

New source floor—2010 

Final Rule 

New source floor—CISWI 

kilns removed from 

inventory 

Mercury .............................. 55 lb/MM tons clinker ........ 58 lb/MM tons clinker ........ 21 lb/MM tons clinker ........ 24 lb/MM tons clinker. 

Total Hydrocarbons ........... 24 ppmvd .......................... 15 ppmvd .......................... 24 ppmvd .......................... 11 ppmvd. 

PM ..................................... 0.04 ................................... 0.05 ................................... 0.01 ................................... 0.01. 

HCl ..................................... 3 ppmvd ............................ 3 ppmvd ............................ 3 ppmvd ............................ 3 ppmvd. 

In this analysis, the EPA finds that 

none of the cement kilns would have 

been potentially CISWI due to the use 

of secondary material ingredients 

(though some kilns would potentially 

have been CISWI due to secondary fuels 

burned). This is because none of these 

secondary ingredient materials 

identified by PCA as being used in 

cement kilns is considered to be 

combusted. A typical dictionary 

definition of ‘‘combustion’’ is ‘‘an act or 

instance of burning’’ or ‘‘a chemical 

process (as an oxidation) accompanied 

by the evolution of light and heat.’’ 12

Cement kilns typically process 

ingredients in the cold regions of the 

kiln, where ingredients are gradually 

heated until they reach the temperature 

where clinker formation takes place. 

This is not a chemical process marked 

by the evolution of light and heat, and 

so is not combustion. Rather, it is 

analogous to cooking as opposed to 

burning.13 Cement kiln dust is also used 

as an ingredient and is sometimes 

processed in the hot end of the cement 

kiln. Due to its inorganic, essentially 

inert composition, this material is not 

combusted.14 Non-hazardous secondary 

materials used as an ingredient (as 

opposed to being combusted) in 

combustion units are not solid wastes 

under newly promulgated definitional 

rules (to be codified at 40 CFR section 

241.3 (b)(3)), assuming the legitimacy 

criteria in section 241.3 (d) are satisfied. 

The EPA’s analysis also reflects the 

results of Information Collection 

Requests (pursuant to section 114 of the 

CAA) regarding cement kilns’ use of 

tires as alternative fuels. Based on these 

ICR responses, the EPA finds that most 

of the responding cement kilns obtained 

tires from established tire programs as 

defined in newly promulgated part 241, 

and have reasonably established that the 

tires were not discarded and were 

handled as valuable commodities from 

the point of removal through arrival at 

the cement kiln and therefore would not 

have been solid wastes. The EPA does 

not interpret the certification required 

by section 60.2175(w) of the newlyadopted CISWI rule as requiring 

ultimate users to know the source of all 

tires obtained from an established tire 

collection program. This is a practical 

impossibility. In certifying, users also 

should not assume that tires from 

established programs which participate 

in occasional cleanup days were 

discarded. Rather, it is sufficient that 

the ultimate user verify that it is 

obtaining tires from an established tire 

collection program, which program can 

provide the user with reasonable 

assurance that it manages tires carefully 

from point of collection to point of 

burning and which does not receive 

tires which have been abandoned in 

landfills or otherwise. 

There are further practical 

considerations, which likewise indicate 

the relative lack of practical effect of the 

solid waste definition and CISWI 

standards on the NESHAP. First, cement 

kilns can choose whether to continue 

burning solid waste and being classified 

as incinerators, or not burn waste and 

remain classified as cement kilns. 

Second, burning alternative fuels 

(whether classified as solid wastes or 

not) does not appreciably affect cement 

kilns’ HAP emissions. 74 FR at 21138; 

Comments of PCA, Docket EPA–HQ– 

RCRA–2008–0329 (Aug. 3, 2010) (p. 27) 

(same). Thus, the measured performance 

of cement kilns that forms the basis of 

the standards in the NESHAP remains 

technically sound since that 

performance would remain the same 

whether or not kilns burn ‘‘solid waste’’ 

alternative fuels. 

Finally, PCA points out that until 

there is a solid waste regulatory 

definition and a CISWI rule, its 

members lack the information to make 

a rational choice as to which source 

category to be subject to—whether or 

not to continue burning secondary 

materials and whether to invest 


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immediately in the pollution control 

equipment and operational practices 

necessary for most kilns to comply with 

the Portland Cement NESHAP. Petition 

p. 18. The EPA has now adopted both 

a regulatory solid waste definition for 

non-hazardous secondary materials and 

CISWI standards, which should provide 

the basis for kilns to make these 

decisions within the necessary 

investment timeframe. 

Conclusion 

The EPA proposed to classify cement 

kilns burning secondary materials as 

cement kilns in the proposed rule, 

explained why it would do so, and 

finalized the NESHAP rule using the 

approach proposed. No objections to 

that approach were raised to the EPA 

during the rulemaking. We further reject 

the position that a solid waste definition 

adopted any time after promulgation of 

a NESHAP compels reexamination of 

the NESHAP because it alters the 

NESHAP’s fundamental premises. The 

EPA appropriately develops NESHAPs, 

including the Portland Cement 

NESHAP, based on the information 

available to it at the time of the 

rulemaking and it is undisputed that the 

units in question here were cement 

kilns at the time of the final cement 

NESHAP. The EPA thus concludes that 

reconsideration here is neither required 

nor appropriate under section 

307(d)(7)(B). 

2. Standards During Periods of Startup 

and Shutdown 

PCA maintains that the NESHAP’s 

limits that apply during periods of 

startup and shutdown do not meet the 

requirements of CAA section 112(d)(2) 

because the standards rest on 

engineering estimates of performance 

rather than on performance data, and 

that the EPA failed to provide adequate 

notice and opportunity for comment. 

Petition pp. 14–16. With respect to the 

startup and shutdown standards, PCA 

has not demonstrated that it was unable 

to raise its objections during the public 

comment period. Indeed, it did so. The 

EPA proposed that the same standards 

apply during startup and shutdown 

conditions as during normal operating 

conditions, and solicited any data 

which might show that some other 

standard would be more appropriate. 74 

FR at 21162. PCA commented at length 

on these proposed standards. PCA 

Comments, pp. 7–8, 11–13. In response 

to PCA’s own comment that the 

proposed startup and shutdown 

standards should not be normalized to 

units of production (PCA Comment of 

Sept. 4, 2009 at 7–8, EPA–HQ–OAR– 

2002–0051–2922.1), the EPA modified 

the proposed standards so that they are 

expressed as stack concentrations. 75 FR 

at 54991. 

PCA’s main contention is that the 

EPA based the standards for startup and 

shutdown on its engineering judgment, 

so that commenters have had no 

opportunity to comment on emissions 

data supporting those conclusions. 

Petition p. 15. PCA is correct that the 

standards reflect the EPA’s engineering 

judgment, but the EPA may permissibly 

rely on engineering judgment in 

developing floor standards in a 

NESHAP. Sierra Club v. EPA, 167 F.3d 

658, 665 (DC Cir. 1999); National Lime, 

233 F.3d at 632; Mossville 

Environmental Action Now v. EPA, 370 

F.3d 1232, 1241–42 (DC Cir. 2004); see 

also CAA section 112(d)(3)(A). 

Furthermore, neither PCA nor any other 

commenter provided emissions data for 

startup and shutdown operations, 

despite the EPA’s request. 74 FR at 

21162. 

Under these circumstances, the EPA 

believes that the petitioner both had the 

opportunity to raise its objections 

during the public comment period and 

did so. Reconsideration is therefore 

neither required nor appropriate. 

The EPA, however, is granting 

reconsideration of one issue related to 

standards during startup and shutdown. 

This is the standard for HCl during 

startup and shutdown for kilns 

equipped with wet scrubbers but which 

do not use a continuous emissions 

monitor (CEM) to measure compliance. 

See issue B.4 below. 

3. Standards for Particulate Matter 

PCA states that in the final rule ‘‘EPA 

dramatically deviated from the range of 

possible limits that it had proposed for 

particulate matter * * * by almost 90 

per cent’’ for new facilities and by nearly 

50 percent for existing facilities. Petition 

p. 16. PCA further maintains that this 

change resulted from ‘‘cherry picked’’ 

data, with the expanded dataset 

‘‘arbitrarily and capriciously biased 

towards top performers,’’ those with 

new baghouses. Id. PCA further states 

that it was unable to comment on these 

data because the EPA did not make the 

data available until after promulgation 

of the final rule, and that the limits may 

not be achievable for sources that use 

wet scrubbers for acid gas control due 

to loadings of re-entrained particulate. 

Id. at 17. PCA raises the same issues 

with respect to the PM limit in the 

NSPS, which is identical to the new 

source standard under the NESHAP. Id. 

This part of PCA’s petition is largely 

mistaken, and does not present any 

grounds requiring the EPA to reconsider 

the PM standard in either the NESHAP 

or the NSPS. Indeed, PCA’s public 

comments suggested a different PM 

limit than proposed based largely on the 

additional performance data for which 

they now claim lack of notice. PCA 

Comments at p. 86 and App. 1 to those 

comments. See docket items EPA–HQ– 

OAR–2002–0051–2922.1 and 2922.2, 

September 4, 2009. Much of this 

information had already been submitted 

to the EPA by PCA and individual PCA 

members in the parallel NSPS 

rulemaking as well. See National 

Emission Standards for Hazardous Air 

Pollutants from the Portland Cement 

Manufacturing Industry Response to 

Comments Received on Proposed Rule 

(Aug. 6, 2010) (‘‘RTC’’) p. 155. See 

docket item EPA–HQ–OAR–2002–0051– 

3464. PCA thus not only had an 

opportunity to comment on the data 

used by the EPA for the final standard, 

but did so. 

Nor did the EPA ‘‘cherry pick’’ among 

those data. See RTC at pp. 155, and 

153–55 demonstrating the opposite: 

PCA had used the data selectively in 

constructing the alternative standard 

suggested in its comments, but the 

EPA’s analysis used all of the additional 

data from the pool of best performing 

sources for PM. 

PCA is also mistaken in its claim that 

it lacked opportunity to present its 

objection that the PM standard is based 

on unrepresentative performance 

because it was based on performance of 

plants with newly-installed baghouses. 

Indeed, it raised this issue in its public 

comments. PCA Comments at 86; see 

also RTC at pp. 155–56 indicating that 

baghouse performance can improve over 

time but is characterized by operating 

variability both when a baghouse is new 

and throughout its operating life. 

Commenters likewise raised the issue of 

baghouse performance decreasing due to 

re-entrained particulate resulting from 

use of wet scrubbers for acid gas control, 

and the EPA responded by citing data 

showing that PM levels from a cement 

kiln baghouse decreased after the kiln 

installed a wet scrubber to control its 

acid gas emissions. RTC at p. 158. Since 

there was ample notice and opportunity 

for comment on these issues (and, as 

just indicated, actual comment), the 

EPA is not required to reconsider them. 

In its December 14, 2010, letter, PCA 

takes a different tack, stating that the 

PM standard in the final NESHAP and 

NSPS is expressed as a 30-day rolling 

average rather than as a 1-day average 

(as at proposal), and that the EPA used 

a statistical equation, the Upper 

Prediction Limit at the 99th percentile 

(UPL 99) to construct that limit. 

December 14 letter pp. 3–4. The letter 


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15PCA is not correct, however, that the standard 

became dramatically more stringent. If expressed as 

a not-to-exceed limit, as at proposal, the final 

existing source standard under the NESHAP would 

be approximately 0.07 lb/ton clinker, or only about 

12 per cent more stringent than proposed. This 

slight increase in stringency results from 

corrections to the UPL equation used at proposal, 

corrections made in response to comments 

submitted by PCA. The additional performance data 

for PM actually made the standard less stringent 

(the net slight increase in stringency resulting, as 

noted from the revised UPL equation to the new 

data set). Development of the MACT Floors for the 

Final NESHAP for Portland cement (EPA, August 6, 

2010, Docket # 4550) at p. 16. 

16The argument that the UPL equation 

underestimates variability of PM control 

performance because it underestimated variability 

for performance of THC is misleading. The UPL 

equation measures potential variability based on the 

within-source variance and between-source 

variance of the data set to which it is applied. 74 

FR at 21141. The EPA’s initial data set for THC was 

comparatively sparse, and did not fully reflect the 

best-performing sources’ within-source variation 

and between-source variation. The EPA was able to 

gather additional performance data between 

proposal and comment to expand those data (and 

to calculate variability directly from the data; see 

75 FR at 54980 n. 22). However, the problem was 

not the UPL equation but the data set to which it 

was applied. It also should be noted that baghouses 

controlling PM (the control device for all of the best 

performing cement kilns) are relatively impervious 

to input loadings, performing relatively constantly 

regardless of incoming ash load. 70 FR at 59449 

(Oct. 12, 2005); 72 FR at 54879 (Sept. 27, 2007). 

Baghouse variability thus can be assessed especially 

reliably by standard statistical means, such as the 

UPL equation. Id. 

17Former section 63.1340(c) stated: ‘‘For Portland 

cement plants with on-site nonmetallic mineral 

processing facilities, the first affected source in the 

sequence of materials handling operations subject 

to this subpart is the raw material storage, which 

is just prior to the raw mill. Any equipment of the 

on-site nonmetallic mineral processing plant which 

precedes the raw material storage is not subject to 

this subpart. In addition, the primary and secondary 

crushers of the on-site nonmetallic mineral 

processing plant, regardless of whether they 

precede the raw material storage, are not subject to 

this subpart. Furthermore, the first conveyor 

transfer point subject to this subpart is the transfer 

point associated with the conveyor transferring 

material from the raw material storage to the raw 

mill.’’ 

asserts that PCA lacked notice of either 

issue. 

PCA is correct that the final standard 

is expressed as a 30-day standard (met 

by averaging 30 daily observations per 

month). 75 FR at 54988.15 The EPA 

stated at proposal that it was 

considering adopting a PM standard 

whereby compliance would be 

measured with a CEM, and that CEMbased standards would be expressed as 

30-day numbers. The EPA further had 

presented the statistical means of 

converting individual measurements 

into 30-day averages by means of the 

UPL 99 equation. 74 FR at 21157, 21158, 

21141–42. PCA’s comments criticized 

use of the UPL 99 equation both 

generally, and for a PM standard 

specifically (PCA Comments pp. 5, 86), 

and documented their view that the 

UPL equation underestimated 

variability for PM generally and 

underestimated the projected 99th 

percentile of the distribution of PM 

values (PCA Comments at App. 2 p. ES– 

7 and App. 2 p. 5–5). See also the EPA’s 

responses at 75 FR at 59474–76; 

Development of the MACT Floors for 

the final Portland Cement NESHAP (the 

EPA, August 6, 2010, docket item EPA– 

HQ–OAR–2002–0051–4550) at pp. 2–4, 

9–10, 17, explaining why the UPL 99 

equation is a reasonable statistical tool 

for assessing variability, including 

variability over a 30-day measuring 

period.16 PCA and member companies 

likewise submitted detailed comments 

questioning the reliability and 

suitability of PM CEMs and urged the 

EPA not to require their use in 

measuring the standard. RTC at pp. 

163–67. The EPA consequently does not 

accept the contention that commenters 

lacked notice of these issues and that 

reconsideration is either required or 

appropriate. 

The EPA, however, is granting 

reconsideration of two standards related 

to PM, the NSPS for PM as applied to 

modified sources, and the alternative 

PM compliance alternative for sources 

that commingle certain internal exhaust 

gas streams. See issues B. 6 and B. 9 

below. 

4. Monovents 

Petitioner Eagle Materials claims that 

it lacked notice of the EPA’s basis for 

requiring use of CEMs for all cement 

kilns, including those having monovent 

exhaust configurations (vents on the top 

of a control device rather than a single 

stack). This issue was presented at 

proposal, and the company submitted 

comments on the issue, as the petitioner 

acknowledges. Petition at pp. 3, 5–9. 

The petitioner disagrees with the EPA’s 

response (which indicated that a source 

could install a separate stack for 

measurement purposes or seek an 

alternative monitoring regime on a sitespecific basis pursuant to the authority 

at 40 CFR section 63.7 (f), RTC at pp. 75, 

120, 145–46, 172–73), but this does not 

demonstrate that there was a lack of 

opportunity to comment on the issue. 

The EPA is consequently not granting 

this petition. 

Although we are denying the request 

for reconsideration of the monitoring 

provisions for facilities with monovents, 

we note further that these types of 

monitoring issues tend to be very site 

specific, and there will likely be 

individual cases where the national rule 

will be impractical. The provisions of 

section 63.7(f) of the General Provisions 

exist for this purpose and we believe 

that issues related to monitoring 

facilities with monovents are best 

handled on a case-by-case basis under 

that rule. These provisions have been 

used in similar situations to authorize 

cost-effective, environmentally 

appropriate alternative monitoring and, 

to our knowledge, have not in and of 

themselves required the construction of 

a single stack. 

5. Emissions From Crushers 

Crushers are machines designed to 

reduce large rocks from a quarry into 

gravel-sized feed. See section 63.1341 

(definition of ‘‘crusher’’). Crushers are 

typically located at the limestone 

quarry. In 2002, the EPA and the PCA 

entered into a settlement agreement 

regarding the 1999 NESHAP for the 

industry and, as part of that agreement, 

agreed to clarify that crushers are not 

part of the Portland cement source 

category. The EPA did so but used 

convoluted language 17 which created 

unnecessary confusion about collateral 

issues such as the regulatory status of 

other types of equipment such as storage 

bins. In the 2005 rule proposing to 

amend the NESHAP, the EPA proposed 

to eliminate the confusing language and 

simply state that crushers are not part of 

the Portland cement source category, 

and indicated in the preamble to the 

2006 final rule that it intended to 

finalize this language. See 70 FR at 

72341–42 (Dec. 2, 2005) and 71 FR at 

76532 (Dec. 20, 2006). The EPA 

neglected to include the necessary rule 

language, and proposed to add it in this 

rulemaking. 74 FR at 21163. The final 

rule states that ‘‘[c]rushers are not 

covered by this subpart regardless of 

their location.’’ Section 63.1340 (c); see 

also RTC at p. 212 (explaining these 

actions and citing to earlier regulatory 

history). 

PCA asks that the EPA reconsider its 

decision and restore the amended 

regulatory text quoted below. Petition 

Exhibit 1. The EPA has provided 

numerous opportunities to comment on 

this issue so reconsideration is clearly 

not compelled under section 307 

(d)(7)(B). Nor is reconsideration 

appropriate. The former regulatory text 

created confusion about collateral issues 

and failed to indicate clearly its 

ostensible subject—that crushers are not 

regulated under the Portland Cement 

NESHAP. The EPA has amended the 

rule to make this clear. Doing so is 

consistent with the 2001 Settlement 

Agreement on this point, the object of 

which was to make clear that crushers 


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were not regulated under the NESHAP. 

In any case, nothing in that settlement 

agreement prevents the EPA from 

amending its regulations if it is 

appropriate to do so. The agreement in 

fact states that ‘‘[n]othing in this 

Agreement shall be construed to limit or 

modify the EPA’s discretion to alter, 

amend, or revise, or to promulgate 

regulations that supersede, the 

regulations identified in section III of 

this Agreement.’’ 

B. Issues on Which the EPA Is Granting 

Reconsideration 

1. Standards for Clinker Storage Piles 

PCA and Eagle Materials both 

maintain that the EPA did not provide 

sufficient notice of the standards it 

might adopt for clinker storage piles. 

Although the EPA did give notice that 

it might adopt standards for these units 

(74 FR at 21163), the petitioners are 

correct that the Agency did not give 

sufficient notice of what those standards 

might be. The EPA is consequently 

granting the petition as to this issue. For 

the same reason, the EPA is granting the 

petition as to all of the miscellaneous 

issues pertaining to clinker storage piles 

(issues 1–4 in Exhibit 1 to PCA’s 

Petition for Reconsideration). 

2. Affirmative Defense to Civil Penalties 

for Exceedances Occurring During 

Malfunctions 

Various petitioners representing 

environmental advocacy groups, as well 

as PCA, assert that the EPA adopted in 

the final rule an affirmative defense to 

civil penalties for exceedances of 

applicable emission standards during 

periods of malfunction. Section 63.1344. 

The petitioners are correct that there 

was not a proper opportunity to 

comment on this provision at proposal, 

and the EPA is therefore granting these 

petitions as to this issue. 

3. Continuously Monitored Parameters 

for Alternative THC Standard 

Section 63.1343(b)(1) provides two 

options for meeting a standard for 

organic HAP. One is to meet a THC 

standard of 24 parts per million by 

volume dry (ppmvd); the other is to 

meet a limit of 9 ppmvd of total organic 

HAP. If the source elects to meet the 

total organic HAP standard, a site 

specific THC limit is established based 

on the THC results during the 

performance test used to establish 

compliance with the total organic HAP 

limit. Section 63.1348(a)(4)(v). 

PCA has noted that the site specific 

THC limit can unintentionally deprive 

kilns of operating flexibility where kilns 

have measured total organic HAP 

comfortably below the alternative 

standard. For example, if a kiln has 

measured total organic HAP of 3 ppmvd 

and site specific levels of THC of 15 

ppmvd during the performance test, it 

would be de facto subject to a 

considerably more stringent THC 

standard than if it were subject to the 

main THC standard. 

The EPA believes that the issue of 

unnecessarily constrained operating 

flexibility is worthy of reexamination 

and therefore is granting reconsideration 

of this issue. 

4. HCl Limit of Zero During Startup for 

Sources That Do Not Have a CEM 

The final cement NESHAP provides 

that existing and new kilns have a 

standard of zero for HCl when operating 

at startup and shutdown and when 

compliance is measured by means other 

than a CEM. Section 63.1343(b) Table 1 

note 4. Kilns equipped with wet 

scrubbers may elect to comply with the 

HCl standard by means of performance 

tests rather than a CEM, so the practical 

effect of this provision is that wetscrubber equipped kilns electing to 

comply by means of stack testing rather 

than continuous monitoring of HCl with 

a CEM would be subject to the emission 

limit of zero during startup and 

shutdown. See sections 63.1348(a)(6)(i) 

and 63.1349(b)(6)(i)(a). PCA indicates in 

its petition that the EPA is incorrect in 

finding that HCl is formed only from 

burning normal fuel (75 FR at 54992). 

PCA maintains that HCl can be formed 

by oxidizing chlorides in the raw 

materials present in the kiln regardless 

of the type of fuels used, and so can be 

present in emissions during startup and 

shutdown. PCA urges that the same 

limit (3 ppmvd) apply during startup as 

applies to all other kilns during all 

operating conditions. Petition Exhibit 1. 

The EPA is granting reconsideration 

on this issue since PCA’s petition may 

have technical merit. 

5. Allowing Sources With Caustic 

Scrubbers To Comply With HCl 

Standard Using Performance Tests 

As just noted, the final rule allows 

sources equipped with wet scrubbers 

(and tray towers) to comply with the 

HCl standard by means of performance 

tests rather than with continuous 

monitoring of HCl with a CEM. (Sources 

electing to comply by means of stack 

tests do establish continuously 

monitored parameters—liquid flow rate, 

pressure and pH (see section 

63.1350(m)(5)–(7)). PCA indicates that 

this compliance option should not be 

limited to wet scrubber equipped units, 

but should also be available for units 

equipped with caustic scrubbers, in part 

because some sources will be equipped 

with dry scrubbers (due to water 

shortages) and should have the same 

operating flexibilities as wet scrubberequipped kilns. 

The EPA is granting reconsideration 

to consider the issue of whether dry 

scrubber-equipped kilns should have 

the option of complying by means of 

stack tests rather than continuous 

monitoring. 

6. Alternative PM Limit 

Some kilns combine kiln exhaust gas 

with exhaust gas from other unit 

operations, including the clinker cooler. 

See 75 FR at 54988. The final cement 

NESHAP seeks to accommodate these 

situations by providing for a site 

specific PM limit for commingled flows 

from the kiln and clinker cooler. Section 

63.1343(b)(2). PCA points out, however, 

that other flows can be commingled as 

well. PCA Petition Exhibit 1 (referring to 

coal mill exhaust and exhaust from an 

alkali by-pass as instances of additional 

flows). Without an allowance for these 

additional flows, the site specific PM 

limit could be stricter than the EPA 

intended (since the PM concentration 

will be divided by a lower number in 

the implementing equation), and could 

penalize the environmentally beneficial 

practice of commingling these flows, a 

practice resulting in significant energy 

savings. 75 FR at 54988. The EPA 

therefore grants reconsideration on this 

issue. 

7. Monitoring for Mercury and PM 

During Periods of Startup and 

Shutdown 

The standards for the four main 

pollutants regulated by the NESHAP 

(mercury, THC/organic HAP, HCl, and 

PM) are all measured continuously. This 

is true of the standards applying during 

normal operation and those that apply 

during startup/shutdown. However, two 

of the standards—for mercury and for 

PM—are normalized to production units 

during normal operation and expressed 

on a concentration basis during startup/ 

shutdown. See 75 FR at 54991–92. 

PCA suggests in its petition that 

cement companies would like to utilize 

the same monitoring device for both 

standards, but that this could pose 

operational obstacles if sorbent traps are 

used as the continuous monitoring 

device. Petition Exhibit 1. This is 

because data from a sorbent trap cannot 

be readily disaggregated, meaning that a 

dedicated trap would be needed to 

monitor startup and shutdown and a 

different sorbent trap used for normal 

operation. (Data from a CEM can be 

disaggregated, so that it is possible to 

evaluate data from startup/shutdown 


jdjones on DSK8KYBLC1PROD with RULES
28326 Federal Register / Vol. 76, No. 95 / Tuesday, May 17, 2011 / Rules and Regulations 

and normal operation from 

measurements taken by a single PM and 

mercury CEM.) PCA questions if this 

was the EPA’s intent. 

The EPA is granting the petition to 

consider the question of types of 

continuous monitoring allowed during 

startup and shutdown for mercury and 

PM. 

8. Coal Mills (NESHAP and NSPS) 

In the EPA’s recent amendments to 

the Standards for Performance for Coal 

Mills, we exempted coal mills at cement 

manufacturing facilities whose only 

heat source was kiln exhaust. See 74 FR 

51952, October 8, 2009. This change 

was made in response to comment from 

PCA. PCA argued that coal mills were 

similar to inline raw mills. In the case 

of inline raw mills, we consider the raw 

mill to be an integral part of the kiln. 

PCA requested the same treatment for 

coal mills, and the EPA agreed. 

However, in the amendments to the 

Portland Cement NESHAP and NSPS, 

the EPA did not address coal mills. This 

omission was due to the lack of 

information on emissions from coal 

mills. The EPA is granting 

reconsideration to reconsider the status 

of coal mills under the cement 

NESHAP. 

9. PM Standard for Modified Sources 

Under the NSPS 

The EPA adopted the level of the new 

source standard under the NESHAP as 

the NSPS for both new and modified 

kilns. 75 FR at 54996. As PCA notes in 

its petition, there need not be functional 

equivalence between the NESHAP and 

NSPS PM limits for modified kilns, and 

further comment on the issue is 

appropriate. Petition p. 17. PCA also 

notes that the NSPS for modified kilns 

could have associated costs which need 

to be accounted for pursuant to CAA 

section 111(a)(1). Since such kilns 

would not be subject to the section 

112(d) new source standard, any costs 

for such modified kilns to control PM to 

the new source limit could not be 

attributed to the section 112(d) new 

source limit. In addition, PCA notes that 

existing Portland cement kilns cannot 

be assumed to find ways to avoid 

triggering the NSPS modification 

criteria when making physical or 

operational changes due to the 

stringency of the newly adopted 

standards for PM. 

The EPA believes that PCA’s 

arguments on this point have merit and 

warrant reconsideration of the NSPS 

standard for PM for modified kilns. 

IV. Requests for an Administrative Stay 

PCA also requests that the EPA issue 

an administrative stay of the rule 

pursuant to section 705 of the 

Administrative Procedure Act (APA), 

which authorizes an agency, when it 

finds that ‘‘justice so requires’’ to 

‘‘postpone the effective date of action 

taken by it, pending judicial review. 

Petition p. 6. PCA also alludes to the 

authority in section 307(d)(7)(B) of the 

CAA under which the EPA may issue a 

stay for up to three months if it grants 

a petition to reconsider a final rule. 

First, the effective date of the 

NESHAP and NSPS—November 8, 

2010—has already passed and thus a 

stay under APA section 705 is not 

appropriate. See 76 FR 4780, 4800 (Jan. 

26, 2011) (‘‘[p]ostponing an effective 

date implies action before the effective 

date arrives’’). 

Section 307(d)(7)(B) of the CAA 

authorizes the EPA to stay a rule’s 

effectiveness for three months during 

reconsideration. Since the EPA is 

largely denying the petitions to 

reconsider and is not granting 

reconsideration as to challenges to the 

principal standards in the NESHAP or 

NSPS, an administrative stay is not 

appropriate under that authority. 

In reaching these conclusions, the 

EPA evaluated not only the legal 

applicability of the statutory provisions 

cited in PCA’s petition, but also the 

merits criteria for granting stays—the 

likelihood of success on the merits, 

possibility of irreparable harm to the 

petition, harm to other parties, and the 

ultimate public interest. As discussed 

above, the EPA believes that the 

NESHAP is validly based on the 

performance of cement kilns. The EPA’s 

technical evaluation of kilns’ 

performance is also sound because 

burning alternative fuels (whether or not 

those fuels are classified as solid waste) 

does not appreciably effect the amount 

of HAP cement kilns emit. 

The EPA also does not believe that the 

industry is facing the prospect of 

irreparable harm. As explained above, 

the industry’s legitimate concern of 

having to make critical investment 

decisions without knowing the final 

rules on waste classification and 

standards for solid waste incinerators 

has been rectified by the EPA’s issuance 

of a final regulatory definition of nonhazardous secondary materials that are 

solid waste and CISWI standards. In 

addition, given the similarity of many of 

the emissions limits, the compliance 

strategy for either rule would be 

expected to be similar. 

Moreover, the EPA does not believe 

that a stay of the rules’ compliance date 

is in the public interest. The standards 

in the rule are projected to result in 

significant health benefits (thousands of 

serious health incidences avoided, 

including thousands fewer acute 

myocardial infarctions) and the rules’ 

monetized benefits are projected to 

substantially exceed the rules’ social 

costs. 75 FR at 55027 Table 13 and 

55028 (social costs estimated at $926 to 

950 million (2005$) and net monetized 

benefits are estimated at $6.5 billion to 

$18 billion (2005$ and a 7 percent 

discount rate). Cement kilns’ mercury 

emissions are among the highest of any 

emitting source category, and contribute 

significantly to the national inventory of 

airborne mercury. 75 FR at 54979 

(cement industry contributes 7.5 tons of 

mercury emissions per year to national 

inventory of 50 tons per year). We note 

that mercury is a potent and 

bioaccumulative neurotoxin that 

remains in the environment for an 

extended period of time. As a result, the 

additional mercury that would be 

emitted as the result of a stay of the rule 

would remain in the environment for 

many years. The NESHAP here for the 

first time adopts statutorily-compliant 

limits to control those emissions. The 

EPA does not believe it in the public 

interest to delay those controls. 

V. Conclusion 

For all of the reasons discussed above, 

the petitions to reconsider the final 

NESHAP and NSPS for Portland cement 

plants are denied in part and granted in 

part. The EPA likewise denies the 

petitions for an administrative stay. 

Dated: May 11, 2011. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2011–12095 Filed 5–16–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR 191, 192, 193, and 195 

[Docket No. PHMSA–2011–0121] 

Pipeline Safety: National Pipeline 

Mapping System Data Submissions 

and Submission Dates for Gas 

Transmission and Gathering Systems 

and Liquefied Natural Gas Annual 

Reports 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Issuance of advisory bulletin. 


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