500 New Jersey Avenue, NW

7

th Floor

Washington, D.C. 20001

October 8, 2010

Mr. Keith Barnett

Metals and Minerals Group 

Office of Air Quality Planning and Standards

U.S. Environmental Protection Agency 

Research Triangle Park, NC 27711

Mr. Steve Silverman

Office of General Counsel

U.S. Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Re: Request for Clarification Regarding NESHAP Rule Compliance 

Date

Dear Keith and Steve, 

I am writing to clarify confusion that has arisen unnecessarily 

regarding the date for compliance with the recently promulgated portland 

cement national emission standard for hazardous air pollutants (NESHAP), 

published on September 9, 2010 (75 Fed. Reg. 54970). The confusion may 

have been created by the way Section 63.1351(b) was drafted, in that it 

makes reference to Table 1 in the regulatory text (Section 63.1343(b)), 

which contains only the emission standards themselves.

There can be no debate that the compliance date of the NESHAP is no 

sooner than September 9, 2013 for existing sources. While the final rule 

identifies an effective date of November 8, 2010, that date does not 

determine the deadline for compliance. Instead, the preamble and 

associated rule language are clear that the compliance date for existing 

sources is September 9, 2013. EPA has made this clear in both the text of 

the rule and preamble language.

First, the text of the rule specifies expressly that compliance is not 

required for existing sources until September 9, 2013.

“Section 63.1351(b): The compliance date for existing sources with the 

PM, mercury, THC, and HCl emissions limits in § 63.1343(b) which 
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became effective in November 8, 2010 will be September 9, 2013.” (75 

Fed. Reg 55063)

Second, under the subheading “What are EPA’s final actions on 

compliance dates?,” the Agency explained in the preamble that:

“For existing sources we proposed a compliance date of 3 years after 

the promulgation of the new emission limits for mercury, THC, PM, and 

HCl to take effect. This is the maximum period allowed by law. See 

section 112(i)(3)(A). We continue to believe a 3 year compliance 

period is justified because most facilities will have to install emissions 

control devices (and in some cases multiple devices) to comply with 

the proposed emissions limits. Therefore, we have retained a 3 year 

compliance data in this final rule.” (75 Fed. Reg. 54993)

Third, in discussing the facilities affected by the rule and assessing the 

economic impacts on the cement industry EPA also explained in the preamble:

“The impacts are presented for the year 2013, which will be the year 

that all existing kilns will have to be in compliance, and also the year 

that will represent approximately 5 years of new kiln construction 

subject to the amended NSPS emissions limits.” (75 Fed. Reg. 55020)

Fourth, under a subheading titled, “1. What are the affected sources?,” 

the Agency explained that: 

“We expect that by 2013, the year when all existing sources will be 

required to come into compliance, there will be 100 Portland cement 

manufacturing facilities located in the U.S. and Puerto Rico that we 

expect to be affected by these final amendments. Of these facilities, 

approximately 5 are complete new greenfield facilities. These facilities 

will operate 158 cement kilns and associated clinker coolers.” (75 Fed. 

Reg. 55020) 

The foregoing Agency explanations in the text of the rule and the 

preamble clearly express the Agency’s decision to set the compliance date 

for existing sources at September 9, 2013. As we would expect, there is no 

ambiguity in these statements. The Clean Air Act itself provides for up to 3 

years for compliance with new NESHAP standards, and in the September 9 

final rule, the Agency clearly elected to grant the cement industry the full 

three year time period to prepare for and then come into compliance with 

the new rule requirements by September 9, 2013 (with a potential one year 

extension to this time frame granted at the discretion of the Agency on a 

facility-by-facility basis). See CAA § 112(i)(3). 
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This full three-year period itself will create significant and 

unprecedented challenges for the industry; to shorten the time frame any 

further would present burdens truly insurmountable. Of particular concern in 

this regard are the new requirements addressing storage of clinker (Section 

63.1343(c), 75 Fed. Reg. 55052). It will be impossible for facilities to 

implement these requirements by November 8, 2010. Furthermore, these 

requirements were never officially proposed by EPA, and the industry, 

therefore, had no opportunity to comment on them. 

Finally, nowhere in the May 6, 2009 proposal or in the final rule, did 

the Agency suggest that there would be different compliance dates for 

various rule provisions. Had the Agency proposed such an approach, the 

industry would have strenuously objected. We therefore strongly oppose 

any circumstance where the Agency would—post promulgation—selectively 

and differentially implement multiple compliance deadlines for existing 

sources. Any such attempt by EPA would constitute an illegal change to the 

regulation, and require EPA to both reconsider and stay the implementation 

of the rule.

We therefore urge you to officially clarify, before November 8, 2010, 

that the compliance date for all of the new rule’s requirements on existing 

sources is September 9, 2013. 

I may be reached at (202) 408-9494 or aohare@cement.org to 

address any questions you may have regarding this matter. 

Sincerely, 

Andrew T. O’Hare

Vice President, Regulatory Affairs 

Cc: Peter Tsirigotis, OAQPS

Steve Fruh, OAQPS