State ofNew Mexjco l""t-,'-!'t''' - r-','· ''<~ \ ld:..l ·• [.LJ ~' ~~~ 

ENVIRONMENT DEPARTME.M'J?. FU\t.\:L·{G f:j 

SUSANA MARTINEZ 

Governor 

JOHN A. SANCHEZ 

Lieutenant Governor 

July 31,2014 

Mr. Ron Curry 

Office of the Secretary 14 ~UG 21 PH 

Harold Runnels Building 

1190 Saint Francis Drive, PO Box 5469 

Santa Fe, NM 87502-5469 

Telephone (505) 827-2855 Fax (505) 827-2836 

www .nmenv.state.nm.us 

Regional Administrator (6-A) 

U.S. Environmental Protection Agency, Region 6 

1445 Ross Avenue, Suite 1200 

Dallas, TX 75202-2733 

Dear Mr. Curry: 

RYAN FLYNN 

Cabinet Secretary 

BUTCH TONGATE 

Deputy Secretary 

On behalf of the State of New Mexico, I am pleased to submit to the Environmental Protection 

Agency the enclosed New Mexico State Implementation Plan (SIP) revision. The revision includes 

the repeal ofNew Mexico Administrative Code (NMAC) 20.2.12 NMAC- Cement Kilns. The repeal 

of this rule does not weaken the SIP, as the NSPS requirements for cement kilns codified in 40 CFR 

Part 60, Subpart Fare more stringent than those contained in 20.2.12 NMAC. In addition, there are 

no operating cement kilns within the jurisdiction of the New Mexico Environment Department. 

The hearing record for the SIP revision is attached, which includes hearing transcripts, exhibits, 

public notices, affidavits of publication, and notice of intent to testify. No public comments were 

received for this SIP revision. Included with the attached hard copy of the SIP revision is an 

electronic copy of the submittal provided on disk which I certify to be an exact duplicate of the hard 

copy. 

If there are any questions concerning this SIP submittal, please contact Michael Baca of my staff at 

(575) 647-7983. 

sm~ 

Ryan Flynn 

Secretary 

Enclosures 

cc: Mr. Guy Donaldson, EPA Region 6 

Mr. Michael Vonderheide, Director, Environmental Protection Division 

Mr. Richard Goodyear, Chief, Air Quality Bureau 
IN THE MAITER OF REVISIONS TO: 

20.2.12 NMAC -Cement Kilns 

ORDER AND STATEMENT OF REASONS 

FOR REGULATORY CHANGES 

This matter came before the New Mexico Envirorunental Improvement Board ("Board") 

upon a petition filed by the New Mexico Envirorunent Department ("NMED" or "Department"), 

proposing repeal of 20.2.12 NMAC. The Board heard testimony from the Department and 

admitted exhibits into the record. On July 11, 2014, the Board deliberated and voted to adopt the 

proposed amendments for the reasons that follow: 

STATEMENT OF REASONS 

1. The federal Clean Air Act ("CAA ")requires the U.S. Envirorunental Protection Agency 

("EPA") to promulgate standards of performance for new stationary sources. CAA § 111 

(42 U.S.C. § 7411). Regulations promulgated under this authority are known as New 

Source Performance Standards ("NSPS") and are contained in 40 C.F .R. Part 60. 

2. CAA § lll(c) provides for delegation to states of the authority to implement and enforce 

the standard promulgated under Section 111. 42 U.S.C. § 7411(c). 

3. CAA § 112 requires the EPA to promulgate regulations governing hazardous air 

pollutants. 42 U.S.C. § 7412. Regulations promulgated under this section are known as 

National Emission Standards for Hazardous Air Pollutants ("NESHAP''), contained in 40 

C.P.R. Part 61; and Maximrun Achievable Control Technology "(MAC'P') standards for 

hazardous air pollutants, contained in 40 C.P.R. Part 63. 

NMED Exh. 11- Statement of Reasons and Order 

Pagelof5 
4. New Mexico incorporates the federal standards contained in 40 C.F.R Parts 60 into the 

New Mexico Administrative Code (''NMAC") at 20.2.77. 

5. The New Mexico Environment Department (''NMED") periodically petitions the Board 

to update the dates of incorporation of the federal standards in 20.2.77, in order to 

incorporate recently promulgated revisions to the federal standards. See Exhibit NMED 

3, Test. of Michael Baca, at 2. 

6. Pursuant to 20.1.1.300.A NMAC, any person may petition the Board for repeal of 

regulations within the jurisdiction of the Board. 

7. On February 20, 2104, NMED filed a petition with the Board for a public hearing in this 

matter. See petition in Record Proper. 

8. On March 21, 2014, at a meeting conducted in compliance with the Open Meetings Act 

and other applicable requirements, the Board granted the Department's request for a 

hearing. 

9. On April30, 2014, Notice of Hearing was published in the New Mexico Register. See 

NMED Exhibit 9. 

10. On Apri130, 2014, Notice of Hearing was published in the Albuquerque Journal (in 

English and Spanish). See NMED Exhibit 9. 

11. NMED filed a Notice of Intent to Present Technical Testimony ("NOI'') on June 11, 

2014, in accordance with 20.1.1.302 NMAC. 

12. A hearing was held in this matter on July 11, 2014, in Santa Fe, New Mexico. 

13. The Board has the authority to repeal this regulation pursuant to NMSA 1978, § 74-2-

5.B. 

NMED Exh. 11- Statement of Reasons and Order 

Page 2of 5 
14. In considering the proposed SIP revisions, the board is required by the Air Quality 

Control Act, NMSA 1978, § 74-2-S.E to give the weight it deems appropriate to all facts 

and circumstances, including but not limited to: 

(1) character and degree of injury to or interference with health, welfare, 

visibility and property; 

(2) the public interest, including the social and economic value of the sources 

and subjects of air contaminants; and 

(3) technical practicability and economic reasonableness of reducing or 

eliminating air contaminants from the sources involved and previous experience with 

equipment and methods available to control the air contaminants involved. 

15. The federal NSPS are established by the EPA based on the best system of emission 

reductions which the Administrator of the EPA has determined has been adequately 

demonstrated, taking into account the costs of achieving such reductions and any non-air 

quality health and environmental impact and energy requirements. 42 U.S.C. § 

741l(a)(1). 

16. The federal MACT are established by the EPA for categories and subcategories of 

sources of emissions of hazardous air pollutants, based on the maximum degree of 

reduction of such emissions, where achievable, that the Administrator of the EPA has 

determined, taking into consideration the cost of achieving the reductions, any nonair 

quality health and environmental impacts and energy requirements. 42 U.S.C. § 

7412(d)(2). 

NMED Exh. 11- Statement of Reasons and Order 

Page 3 ofS 
17. In making it regulations pursuant to §74-2-S.E NMSA, the Board has given the weight it 

deems appropriate to all relevant facts and circumstances, including the NSPS and 

MACT standards established by the EPA, and including but not limited to: 

(1) character and degree of injury to or interference with health, welfare, 

visibility and property; 

(2) the public interest, including the social and economic value of the sources 

and subjects of air contaminants; and 

(3) technical practicability and economic reasonableness of reducing or 

eliminating air contaminants from the sources involved and previous experience with 

equipment and methods available to control the air contaminants involved. 

18. Because the NSPS and MACT have been incorporated by reference in 2IJ.2.77 NMAC 

and 20.2.82 NMAC, respectfully, this repeal will not result in substantial economic 

hardship for sources or any increase in air contaminant emissions, but will increase the 

efficiency of implementation of the regulations. See NMED Exhibit 3, Testimony of Rita 

Bates. This repeal will remove potentially confusing requirements for cement kilns and 

provide regulatory certainty while retaining the public health protections afforded under 

NSPS should a cement kiln be constructed within the Department's jurisdiction. See !d. 

This serves the public interest. 

19. According to Richard Goodyear, Chief, Air Quality ("Bureau"): "In consultation with the 

Bureau's permitting staff and after searching its database of facilities, it was found that 

no cement kilns exist in New Mexico outside of Bernalillo County or on Tribal Lands. 

Further, external sources of information from the United States Geological Survey and 

trade publications support this determination. The Bureau's permitting staff confirmed 

NMED Exh. 11 - Statement of Reasons and Order 

Page 4 of5 
that no permit applications for cement kilns are on record and they do not anticipate any 

in the near future." NMED Exhibit 8. 

20. The proposed repeal therefore satisfies the statutory requirements of the Air Quality 

Control Act, NMSA 1978, § 74-2-5.E. 

21. The notice and hearing requirements of NMSA 1978 Section 74-2-6 and 20.1.1 NMAC 

were satisfied in this rulemaking process. 

22. 20.2.12 NMAC is hereby repealed for any or all of the reasons stated above. 

ORDER 

By a unanimous vote of a quorum of the Board members, the proposed regulatory 

revisions were approved by the Board on July 11, 2014. Notice of the repeal of 20.2.12 NMAC 

shall be filed with the New Mexico State Records Center, and shall be submitted as expeditiously 

as possible by the Department to the EPA for approval of delegation authority. 

SIGNED this 181

b day of July, 2014. 

~ New Mexico Environmental Improvement Board 

1190 St. Francis Drive, Suite N4050 

Santa Fe, New Mexico 87505 

505-827-2855 

NMED Exh. 11 - Statement of Reasons and Order 

Page 5 of5 
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STATE OF NEW MEXICO 

BEFORE THE ENVIRONMENTAL IMPROVEMENT BOA 

IN THE MATTER OF PROPOSED REVISIONS TO: 

20.2.12 NMAC- Cement Kilns 

NEW MEXICO ENVIRONMENT DEPARTMENT'S 

NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY 

Pursuant to 20.1.1.302.A NMAC, the New Mexico Environment Department ("NMED" 

or "Depru1ment") hereby submits its Notice of Intent to present technical testimony in this 

proceeding. 

1. Person Represented By the Technical Witnesses. 

The New Mexico Environment Department, Environmental Protection Division, Air 

Quality Bureau. 

2. Name and Qualifications of Each Technical Witness. 

Michael Baca. Michael Baca is an Environmental Analyst in the Control Strategies 

Section of the Air Quality Bureau. He has worked in the Air Quality Bureau since July 2008. Mr. 

Baca holds a bachelor degree in Chemistry from Carleton College. His resume is attached as 

Exhibit I. 

Rita Bates. Rita Bates is the Section Chief of the Planning Section of the Air Quality 

Bureau. She has more than twenty years of experience in the environmental field, including 

fourteen years with the Department. In addition to her work for the Air Quality Bureau, Ms. 

Bates has worked in industry as an environmental coordinator and in environmental consulting 

as a project manager. Ms. Bates holds a bachelor of science in Biology from Humboldt State 

University. Her resume is attached as Exhibit 2. 
3. A Copy of the Direct Testimony of Each Witness in Narrative Form. 

A copy of the direct testimony of Mr. Baca is attached as Exhibit NMED 3. Mr. Baca will 

provide a brief summary of his testimony during the hearing. The Department does not intend to 

present direct testimony by Rita Bates, but may present her as a rebuttal witness, and will make 

her available to assist in answering questions that may go beyond the expertise of the direct 

witnesses. 

4. Text of Recommended Modifications to the Proposed Regulatorv Change 

The Department recommends that the Board adopt the proposed repeal of 20.2.12 NMAC 

as contained in Exhibit 4. 

5. List and Description of Exhibits 

The Department submits the following exhibits: 

NMED I 

NMED2 

NMED3 

NMED4 

NMEDS 

NMED6 

NMED7 

NMED8 

NMED9 

NMED 10 

NMED II 

Resume of Michael Baca 

Resume of Rita Bates 

Written Testimony of Michael Baca 

Proposed Revised Amendments to 20.2.12 NMAC 

78 Fed. Reg. 10006 (Feb. 12, 2013) (Promulgation ofNESHAP and NSPS) 

NRDC v. EPA, D.C. Cir., No. 10-1371,4/18114 

20.2.12 NMAC Emission Limit Conversion (Stringency Calculation) 

Negative Declaration of Cement Kilns in New Mexico 

Public Notice, Affidavits of Publication of Hearing Notice in New Mexico 

Register and Albuquerque Journal, and Open House Fact Sheet 

Letter to the Small Business Regulatory Advisory Commission and Reponses to 

Questionnaire 

Proposed Order and Statement of Reasons 

2 
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6. Reservation of Rights 

This Notice of Intent to Present Technical Testimony is based on the Department's 

petition. The Department reserves the right to call any person to testifY and to present any exhibit 

in response to another notice of intent or public comment filed in this matter or to any testimony 

or exhibit offered at the public hearing. The Department also reserves the right to call any person 

as a rebuttal witness and to present any exhibit in support thereof. 

Respectfully submitted, 

NEW MEXICO ENVIRONMENT DEPARTMENT 

Christopher N. Atencio 

Assistant General Counsel 

New Mexico Environment Department 

1190 St. Francis Drive, Suite N-4050 

Santa Fe, New Mexico 87505 

Telephone: (505) 827-0917 

christopher .atencio@state.nm.us 

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MICHAEL G. BACA 

EDUCATION 

September 1999-June 2004 

Bachelors Degree in Chemistry 

PROFESSIONAL 

July 2008-Present 

Carleton College 

New Mexico Environment Department, Air Quality Bureau 

Environmental Analyst-Advanced 

Northfield, MN 

• Represent the State of New Mexico as the ait quality liaison with border air quality 

agencies and stakeholders, participating in the Joint Advisory Committee and US EPA 

Border 2020 Progtam. 

• Develop and prepare technical testimony and exhibits for public hearings in front of 

the Environmental Improvement Board to present and defend air quality plans and 

rules for adoption in New Mexico, including state implementation plans required by 

US EPA. 

• Analyze ambient ait quality monitoring data and prepare technieal support documents 

for submission to the US EPA for high wind blowing dust events that cause air 

pollution episodes. 

• Conduct public education and outreach meetings and develop educational material 

regarding air quality, rule requirements and rule development. 

• Review and comment on Title V and PSD permits, Environmental Impact Statements 

and Environmental Assessments in the border region for compliance with federal and 

state rules and standards. 

• Manage air quality reseatch projects and contracts in the border area to ensure timely 

submission of dd.iverables and appropriate financial expenditures. 

February 2005-July ZOOS 

New .:to.fexic:o Environment Dep-artment, Field Operations 

Environmental Scientist and Specialist-Advanced 

• Review engineez.:ing plans and approve pennirs for construction of sMmming pool 

and bath facilities. 

• Oversee district operations to ensure adequate permitting and inspection of public 

swimming pool facilities. 

• Conduct training for swimming pool department staff and operators, 

• Permit and inspect testat.l.nlnts and food processors, swimming pool faciJities. and 

liquid waste disposal system installations for compliance with applicable regulations. 

• Investigate and resolve complaints against regulated entities to determine compliance 

with applicable regulations. 

• Conduct public education and outreach to help the regulated and general public 

comply with administrative requi.tements and state regulations. 

NMED EXHIBIT 1 
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RITA BATES 

EDUCATION 

HUMBOLDT STATE UNIVERSITY, ARCATA, C>,UFORNTA 

B.S., Bio/iJgy, 1990. Minor in Bottlf[J, emphasis in Ecology. 

ExPERIENCE 

STATE OF NEW MEXICO, ENVIRONMENT DEPARTMENT 

AIR QUAL11Y BUREAU, PLANNING & POLICY SECTION 

Section Chief, March 2005-pnm:nt 

Program Manaf!r (Natliral Sciences Manaf!r·2), March 2000- March 2005 

Environmental Specialist, December 1998- Morr:h 2000 

Environmental S cienti.rt, .AN!J'sf 1998- December 1998 

The Planning & Policy section of the Air Quality Bureau is responsible for the control 

strategy, dispersion modeling, emission inventory and small business assistance programs in 

tbe Air Quality Bureau. The control strategy section of the Air Quality Bureau is responsible 

for preparing state implementation plans, policies, and regulations for air quality. The 

modeling section ensures that all air dispersion modeling analyses submitted to our agency 

are accurate and complete. The Small Business Assistance Program assists small businesses 

in meeting air quality regulatory requirements. 

EMPIRE GROUP, LLC 

Empire, Nevada 

Environmental Coordinator, june 1996-July 1998 

Empire Group, LLC is the parent company for several entities which own and operate a 

geothermal pnwer plant, an onion and garlic dehydration plant, several ranches, and a garlic 

seed operation. In my position as environmental coordinator, I was responsible for 

permitting at ali facilities. 

JBR ENVIRONMENTAL CONSULTANTS, [NC. 

Reno, Nevada 

Emironmenta! Ana!Jst W, Reno Office Coordinator/ Mana!!" ju!J 1994 - ]11!J 1996 

Environmenta!Ana!Jst III, }11ly 1993- }11(y 1994 

Environmmta/Analyst I, June 1990-}H(y 1993 

1\s the manager of the Reno office, I supervised seven technical staff and one administrative 

employee. During my employment with JBR, I worked on and managed numerous NEPA, 

environmental permitting and baseline projects. 

NMED EXHIBIT 2 
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STATE OF NEW MEXICO 

BEFORE THE ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATIER OF PROPOSED REVISIONS TO 

20.2.12 NMAC- CEMENT KILNS. EIB 14-02 (R) 

WRITTEN TESTIMONY OF MICHAEL BACA 

Witness Qualifications: 

Michael Baca is an Environmental Analyst in the Control Strategies Section of the Air 

Quality Bureau. He has worked in the Air Quality Bureau since July 2008. Mr. Baca holds a 

bachelor degree in Chemistry from Carleton College. His resume is attached as Exhibit I. 

I I. INTRODUCTION 

2 Madame Chair and Members of the Board, I am here to present the New Mexico 

3 Environment Department's (NMED or Department) proposed repeal of20.2.12 New Mexico 

4 Administrative Code (NMAC)- Cement Kilns. NMED Exhibit 4 reflects the Department's 

5 proposed repeal in current NMAC format with deleted material designated in strikethrough 

6 format. 

7 

8 

9 

10 

II 

12 

13 

During my testimony, I will refer to 20.2.12 NMAC as Part 12. The Department is 

proposing repeal of Part 12 to remove the particulate matter (PM) emission limit for cement kilns 

from the New Mexico Administrative Code. The Board is authorized by the Air Quality Control 

Act, NMSA 1978 § 74-2-5 to repeal Part 12. The U.S. Environmental Protection Agency (EPA) 

promulgated amended new source performance standards (NSPS) for cement kilns on February 

12,2013. Those standards include a more stringent PM emission limit than currently contained 

in Part 12. The more stringent NSPS effectively renders Part 12 obsolete and wmecessary. 

14 II. REGULATORY BACKGROUND 

15 A. New Mexico's Cement Kilns Rule & NSPS Incorporation by Reference 

16 Part 12 was first adopted by the state after the first hearing for the New Mexico State 

I 7 Implementation Plan as Air Quality Control Regulation (AQCR) 502. The adoption became 

18 effective in February of 1970 with a PM emission limit of230 mg/m3 of exhaust gas. Since this 

19 time, no substantive changes have been made to the rule. The only changes have been to 

20 reformat it from the AQCR to NMAC first version format in 1995 and again to the NMAC 

21 second version format in 2002. 

22 

23 

24 

25 

The NSPS for cement kilns is codified at 40 CFR Part 60, Subpart F, which was adopted 

by reference in 20.2. 77 NMAC- New Source Performance Standards The Department 

periodically petitions the Board to update the dates of incorporation of the federal standards in 

20.2. 77 NMAC, in order to incorporate recently promulgated revisions to the federal standards. 

BACA TESTIMONY- PAGE I NMED EXHIBIT 3 
1 The NSPS was therefore adopted by the Board when it updated the incorporation by reference of 

2 40 CFR Part 60 in November 2013. 

3 B. EPA's NSPS for Cement Kilns 

4 Under Section Ill of the Clean Air Act (CAA), "Standards of Performance ofNew 

5 Stationary Sources," EPA sets national air emission standards for source categories which cause 

6 or contribute significantly to air pollution. Collectively these standards are commonly referred to 

7 as NSPS and are codified at 40 CFR Part 60. The NSPS are technology based and take into 

8 account the cost of using such technology as well as any other non-air quality, health, and 

9 environmental impact and energy requirements. They reflect the best system of emission 

10 reductions, and the level of control is commonly referred to as best demonstrated technology. 

11 The NSPS apply to new, reconstructed or modified sources at affected facilities at the time of 

12 proposal for the standard. 

13 The EPA promulgated Standards of Perfonnance for Cement Plants in December of 

14 1971 (36 FR 24876). As required by CAA § Ill, EPA periodically reviews and revises the 

15 NSPS, as necessary, to reflect advancements in technology and methods of reducing emissions. 

16 EPA has conducted four reviews of this NSPS, in June 1974 (39 FR 20793); November 1974 (39 

17 FR 39874); December 1988 (53 FR 50354); and September 2010 (53 FR 50354). 

18 EPA promulgated the September 2010 NSPS and national emission standards for 

19 hazardous air pollutants (NESHAP) concurrently. Following the promulgation of the standards, 

20 EPA received petitions to reconsider aspects of those amendments from the Portland Cement 

21 Association and several cement companies. In May of20ll, EPA granted reconsideration of ( 

22 various issues, and denied the petitions to reconsider on remaining issues (76 FR 28318). The 

23 denial of reconsideration was appealed to the U.S. Court of Appeals for the District of Colwnbia 

24 (D.C. Circuit). The D. C. Circuit opinion upheld the standards but found that EPA arbitrarily 

25 failed to grant reconsideration to consider the effect of the EPA's nonhazardous secondary 

26 materials (NHSM) rule on the standards. The NHSM rule had the effect of reclassifying some 

27 cement kilns as commercial and industrial solid waste incinerators (CISWI).1 

28 Responding to the D.C. Circuit remand, EPA recalculated emission limits in the 

29 NESHAP for existing kilns by excluding data from the cement kilns classified as CJSWI. On 

30 February 12, 2013, (78 FR 10006) EPA promulgated the final amendments to the NESHAP and 

31 conforming amendments to the NSPS for cement kilns, setting a PM emission limit of 0.07 

32 lb/ton clinker for modified and existing sources and a PM emission limit of 0.02 lb/ton clinker 

3 3 for new and reconstructed sources (Exhibit 5). Several environmental organizations petitioned 

34 the D.C. Circuit to review, among other things, the PM emission limits in the standards. On 

35 Aprill8, 2014 the D.C. Circuit upheld the emissions-related provisions of the rule.2 

1 See Portland Cement Ass'n v. EPA, 665 F. 3d 177, 186·189 (D.C. Cir. 20ll). 2 See NRDCv. EPA, D.C. Cir., No. 10·!371, 41181!4 (Attached herein as Exhibit 6). 

BACA TESTIMONY -PAGE 2 
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III. PROPOSED REPEAL OF PART 12 

The proposed repeal of Part 12 responds to a Department initiative and recommendations 

found in the report entitled Improving Environmental Permitting (IEP). Recognizing the 

importance of permitting to environmental protection and conducting business in the state, the 

NMED undertook a review of the permitting process and associated rules. Air Quality Bureau 

permitting and planning staff identified several rules that are outdated and evaluated them for 

repeal or amendment, including Part 12. Pursuant to the recommendations of the IEP report, the 

Department recommended repeal of the rule based on the following: 

• Part 12 has not been amended since adoption and the emission limits are now outdated in 

level and format. 

• Since adoption of Part 12, EPA promulgated an NSPS for cement kilns. The NSPS PM 

emission limits are more stringent than the state rule and would apply to new facilities 

(Exhibit 7). 

• The emission limits in Part 12 are based on mass of PM in the volume of stack gas, whereas, 

the NSPS emission limits are based mass of PM per ton of clinker produced. 

• In addition to limiting emissions from the cement kiln, the NSPS also limits emissions from 

the grinding, cooling and materials handling steps in the cement manufacturing process. 

• Currently, there are no cement manufacturing facilities under the jurisdiction of the 

Department (Exhibit 8). NMED does not anticipate any new kilns to be built in the near 

future. 

Repeal of Part 12 will benefit the state by removing potential confusion and ambiguity in 

the permitting process by providing greater regulatory certainty to manufacturing plants while 

retaining the public health protections afforded under the NSPS, should a cement kiln be 

constructed in New Mexico. 

IV. OUTREACH 

Outreach was conducted for the proposed repeal of Part 12 in the form of public notices 

(Exhibit 9) and an open house. Public notice was published in the New Mexico Register and in 

the Albuquerque Journal, in English and Spanish, on April 30, 2014. The Department provided 

an open house on June 4, 2014, at the Air Quality Bureau, 525 Camino de los Marquez, Santa 

Fe, NM 87505. The state received no comments from the public notices and had no attendance 

at the open house. 

The Department also complied with the Small Business Regulatory Relief Act (Exhibit 

I 0). The Act establishes a review process, not a standard or outcome. The Department must 

consider the effect of the proposed rule repeal on small businesses. If the Department identifies 

an adverse effect, it must consider the available methods to reduce the effect, but even if there 

are no such methods, the Board may approve the proposed rule repeal to accomplish the 

objectives of the applicable law. The Department does not foresee that the proposed repeal of 

Part 12 will have an adverse impact on the citizens or businesses ofNew Mexico. 

BACA TESTIMONY - PAGE 3 
I V. CONCLUSION 

2 This concludes my testimony to the Board on our proposed repeal of Part 12. I 

3 respectfully request that the Board adopt this proposed SIP change and rule repeal at the 

4 conclusion of this hearing. 

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BACA TESTIMONY- PAGE 4 
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I TITLE 291SN~qR(lNMENTAb PIWTISCH()N 

2 CH!,PTER l ,'>IR QIJAbiTY (STATEWIDE) 

3 PART 12 CEMENT KILNS 

4 

5 

6 10,1.1 1.1 ISSIJI~!G AGENCYt Eflyiraamental ImpFo••••oeflt BoOf<l. 

7 [ll '3WS; 2Q,2.1l.ll'IM.',C &n, 29 ~!M 'C 2.12,199 10'3llll21 

& 

9 lOololl.l SOOPEr All gee!Jfaphie areas with! a !hejaFistlio!ion of the Eoui.,amO!ltallmpr""""'"at Board. 

10 [II '39'9S; 29.2.12.2 NM.'.C &n, 29 l'IMAC 2.12.191 10011921 

11 

12 lO,l,U,J STATUTORY J',IJTHORITYr llwtiFe!lme!!tallmpro•IOmeot Ae;, l'II\ISA 19'78, seo!io• 71 I 

13 8(A)(4) am! ('7), and Ai• Quality Cofltrel Aet; NMSA 1978, sealieas '71 2 I else~ .• iMladiRg speeil\eolly, soeliaa 

14 71 2 S(AJ, (B) anEi (C). 

15 [II '39'9S; 29.2.12.HII lAC RR, 29 ~!MAC 2.12.192 191311G21 

16 

17 l9.l.ll.4 DIJRATION1 Po""""""'' 

18 [11/39'93; 29.2.12.4 NMAC &n, 2GNMAC 2.12.193 19.'31192] 

19 

20 lO.l,U,S EFFECTIVE DATEr l'le•;emher 39, 1995. 

21 {ll/JGI9S; 2G.2.12.HIM;I,C &n, 29 NMAC 2.12.191 191311921 

22 {TJ.e latest effeeti->'e sate efooy seetiea ia this PaFI is 10'31.102.1 

23 

24 :!0.2.12.6 OBJECTI\'E1 The el>jeetive efthis Part is Ia eslal!lisll porlieulote mOlter emission slaodords fer oeffieflt 

25 i<iiHs. 

26 [11'30'95; 2Q.2.12,UlMf.C RR, 20 NMAG 2.12.10> 101311021 

27 

28 20.l,U,7 DEFIN!TIQi>ISI IR ads~ias te tho toRRs deliaed ie 20.2.2 ~IMAC {!;)olie~iens), as ased ia tllis 

29 PaR: "PM" tBeans &fl air quality eeatrel regHiatiee tnuJer Title ~9, Chtll'ter l aftfie 1?-lev. Ueniea ." .. Eimifli!itati te 

30 Cede, ttHless etkerwise aateS; as adej3te9 SF ame•uleei ~· tke Beard. 

31 [ll/JWS; :Ml.2.12.7 ~!MAC &n, 2Q ~IMAC ::!.12.107 1001/02] 

32 

33 JQ,a,U.S AMENDMEI>IT Ai>ID SIJPERSESSIQN OF PBIQR REGIJLAT!()NS; This Part amenfls """ 

34 sap.,..edes Air Q•alili)• Ceetffll R<>gulotien ("AQCR") 502 COffient Kilas last filed Jao.....-t27, 1970. 

35 A. l .. ll refueaees ta i'.:QGR SQd in aft!\' ather rule shan he aeastFUed es a FefeFeAee te &his Part. 

36 8, The ameself!lun'lt and ssf~eFSessiea efAQCR SQ2 shall net affeet atty aetmislstRUive erjuo:iieial eafeFeemeHt aetjeft 

37 petldiag ea the effaetlve date efsuek ame&EIEReRt aer the •~alielit) ef aAy peRHit issueel purswatH *e :'-:QGR S02. 

38 [!!.'39.'9s;2Q.2,12.8~1MAC &n,20~11\U.C2.12.1Q61Q/31/G2] 

39 

40 29.2.12,9 t<12M.U,I9~ [RESiiiR'\lliDj 

41 

42 20.2.12,108 EMISSION LIMITA'RQNS• The owner er epemter efa eement l•iln sl>all•et permit, ea .. e; Stiffer er 

43 alte·N p&Aia~late matMf emissie&s in eueess efthe 23Q fflg.4R3 ef e)(haust gas. 

44 (W30.'95;2Q.2,12.!0HIMAC Rn,20NMAC2.12.!0810'3l'021 

45 

46 HISTORY OF 10.1.11 NMAC: 

47 Pre--NMAC History: The material in this part was derived from that previously filed with the Commission of 

48 Public Records-State Records Center and Archives. 

49 HSSD 70-1, Ambient Air Quality Standards And Air Quality Control Regulations, 01127no. 

50 

51 History of Repealed Material: {RESERVED] 

52 

53 Other History: 

54 20.2.12 NMAC 2 

55 HSSD 70-1, Ambient Air Quality Standards And Air Quality Control Regulations, (relating to that portion 

56 numbered 502) filed Q l/27/70, was renumbered into first version oftbe New Mexico Administrative Code as 20 

Proposed Repeal of20.2. 12 NMAC 

NMED EXHIBIT 4 
NMAC 2.12, Cement Kilns, filed 10/30/95. 

2 20 NMAC 2.12, Cement Kilns, filed 10/30/95, was renumbered, reformatted and replaced by 20.2.12 NMAC, 

3 Cement Kilns, effective I 0/31102. 

4 

Proposed Repeal of 20.2.12 NMAC 2 
( 

( 

( 

FEDERAL REGISTER 

Vol. 78 

No. 29 

Part II 

Tuesday, 

February 12, 2013 

Environmental Protection Agency 

40 CFR Parts 60 and 63 

National Emission Standards for Hazardous Air Pollutants for the Portland 

Cement Manufacturing Industry and Standards of Performance for Portland 

Cement Plants; Final Rule 

NMED EXHIBIT 5 
10006 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 63 

[EPA–HQ–OAR–2011–0817; FRL–9758–6] 

RIN 2060–AQ93 

National Emission Standards for 

Hazardous Air Pollutants for the 

Portland Cement Manufacturing 

Industry and Standards of 

Performance for Portland Cement 

Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On July 18, 2012, the EPA 

proposed amendments to the National 

Emission Standards for Hazardous Air 

Pollutants for the Portland Cement 

Manufacturing Industry and the 

Standards of Performance for Portland 

Cement Plants. This final action amends 

the national emission standards for 

hazardous air pollutants for the Portland 

cement industry. The EPA is also 

promulgating amendments with respect 

to issues on which it granted 

reconsideration on May 17, 2011. In 

addition, the EPA is amending the new 

source performance standard for 

particulate matter. These amendments 

promote flexibility, reduce costs, ease 

compliance and preserve health 

benefits. The amendments also address 

the remand of the national emission 

standards for hazardous air pollutants 

for the Portland cement industry by the 

United States Court of Appeals for the 

District of Columbia Circuit on 

December 9, 2011. Finally, the EPA is 

setting the date for compliance with the 

existing source national emission 

standards for hazardous air pollutants to 

be September 9, 2015. 

DATES: This final rule is effective on 

February 12, 2013. The EPA is setting 

the compliance date for existing open 

clinker storage piles to be February 12, 

2014. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2011–0817. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, for 

example, confidential business 

information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA West 

Building, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC. The Public 

Reading Room 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 Docket Center is (202) 

566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this final action, contact 

Ms. Sharon Nizich, Office of Air Quality 

Planning and Standards; Sector Policies 

and Programs Division, Minerals and 

Manufacturing Group (D243–04); 

Environmental Protection Agency; 

Research Triangle Park, NC 27111; 

telephone number: (919) 541–2825; fax 

number: (919) 541–5450; email address: 

nizich.sharon@epa.gov. For information 

about the applicability of the NESHAP 

or NSPS contact Mr. Patrick Yellin, 

Monitoring, Assistance and Media 

Programs Division (2227A), Office of 

Enforcement and Compliance 

Assurance, U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, Washington, DC 20460; 

telephone number (202) 654–2970; 

email address yellin.patrick@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this document. 

APCD air pollution control devices 

CAA Clean Air Act 

CBI confidential business information 

CDX Central Data Exchange 

CEMS continuous emission monitoring 

systems 

CEDRI Compliance and Emissions Data 

Reporting Interface 

CFR Code of Federal Regulations 

CISWI commercial and industrial solid 

waste incinerators 

CMS continuous monitoring system 

COMS continuous opacity monitoring 

system 

CO2 carbon dioxide 

CPMS continuous parametric monitoring 

system 

D/F dioxins and furans 

EPA Environmental Protection Agency 

ESP Electrostatic Precipitators 

ERT Electronic Reporting Tool 

FR Federal Register 

gr/dscf grains per dry standard cubic foot 

HAP hazardous air pollutants 

Hg mercury 

HCl hydrogen chloride 

ICR information collection request 

Lb/ton pound per ton 

MACT maximum achievable control 

technology 

meHg methylmercury 

NAICS North American Industry 

Classification System 

NAS National Academy of Science 

NESHAP National Emissions Standards for 

Hazardous Air Pollutants 

NHSM Nonhazardous Secondary Materials 

NOX Nitrogen Oxides 

NRC National Research Council 

NSPS new source performance standards 

NTTAA National Technology Transfer and 

Advancement Act 

oHAP Non-dioxin organic hazardous air 

pollutants 

OMB Office of Management and Budget 

PCA Portland Cement Association 

PM particulate matter 

ppm(v) (d,w) parts per million (by volume) 

(dry, wet) 

RATA Relative Accuracy Test Audit 

RfD reference dose 

RIA regulatory impact analysis 

RTC Response to Comment 

RTO regenerative thermal oxidizers 

SIP state implementation plan 

SO2 Sulphur Dioxide 

THC total hydrocarbons 

tpy tons per year 

TTN Technology Transfer Network 

mg/m3 micrograms per cubic meter 

UPL Upper Prediction Limit 

UMRA Unfunded Mandates Reform Act 

TEOM Tapered Element Oscillating 

Microbalance 

VCS voluntary consensus standards 

WWW worldwide web 

Background Information Document. 

On July 18, 2012 (77 FR 42368), the EPA 

proposed to amend the Portland cement 

manufacturing industry NESHAP and 

the Portland cement plant new source 

performance standards (NSPS). In this 

action, we are taking final action on this 

proposal. A summary of the public 

comments on the proposal and the 

EPA’s responses to those comments is 

available in Docket ID Number EPA– 

HQ–OAR–2011–0817. 

Organization of this Document. The 

information presented in this preamble 

is organized as follows: 

I. General Information 

A. Executive Summary 

B. Does this action apply to me? 

C. Where can I get a copy of this 

document? 

D. Judicial Review 

II. Background Information 

A. What is the statutory authority for these 

amendments? 

B. What actions preceded this final rule? 

III. Summary of Final Amendments to 

Subpart LLL and Subpart F 

A. Reconsideration of Standards 

B. Continuously Monitored Parameters for 

Alternative Organic HAP Standard (With 

THC Monitoring Parameter) 

C. Allowing Sources With Dry Caustic 

Scrubbers To Comply With HCl Standard 

Using Performance Tests 

D. Alternative PM Limit 

E. Coal Mills 

F. NESHAP Compliance Date Extension for 

Existing Sources 

G. Section 112 Eligibility To Be a New 

Source 

H. Other Testing and Monitoring Revisions 

I. Miscellaneous Amendments 

J. Standards During Periods of Startup and 

Shutdown 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10007 

K. Reporting for Malfunctions and 

Affirmative Defense for Violation of 

Emission Standards During Malfunctions 

L. What are the compliance dates of the 

standards? 

M. Open Clinker Storage Piles 

IV. Summary of Major Changes Since 

Proposal 

A. PM Parametric Monitoring 

B. Scaling for Continuous Parametric 

Monitoring of THC for Alternative OHAP 

Standard 

C. Work Practice Standard in Lieu of 

Numerical Emissions Limits for Periods 

of Startup and Shutdown 

V. Summary of Significant Comments and 

Responses 

A. Amendments to Existing Source and 

New Source Standards for PM Under 

CAA Sections 112(d) and 111(b) 

B. Mercury Standard 

C. Standards for Fugitive Emissions From 

Open Clinker Storage Piles 

D. September 9, 2015, Compliance Date for 

the Amended Existing Source Standards 

E. Eligibility to be a New Source Under 

NESHAP 

VI. Summary of Cost, Environmental, Energy 

and Economic Impacts 

A. What are the affected sources? 

B. How did EPA evaluate the impacts of 

these amendments? 

C. What are the air quality impacts? 

D. What are the water quality impacts? 

E. What are the solid waste impacts? 

F. What are the secondary impacts? 

G. What are the energy impacts? 

H. What are the cost impacts? 

I. What are the health effects of these 

pollutants? 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. General Information 

A. Executive Summary 

In this action the EPA is finalizing 

amendments to the NESHAP for 

Portland cement plants and to the NSPS 

for Portland cement plants. These 

amendments respond to petitions for 

reconsideration filed by the Portland 

cement industry and to a decision by 

the United States Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit). The EPA is retaining the stack 

emission standards for mercury, 

hydrogen chloride (HCl), and total 

hydrocarbons (THC) under the 

NESHAP, amending the stack emission 

standard for particulate matter (PM) 

under the NESHAP, and making a 

conforming amendment to the NSPS for 

PM. The amendments also include 

provisions which account for 

commingled HAP emissions from coal 

mills that are an integral part of the kiln, 

establish a continuous monitoring 

regime for parametric monitoring of PM, 

set work practice standards for startup 

and shutdown, and revise the 

compliance date for the PM, mercury, 

HCl, THC and clinker storage pile 

existing source standards under the 

NESHAP. The EPA is also retaining the 

affirmative defense for civil penalties for 

violations of emission limits occurring 

as a result of a malfunction. 

These amendments are based on 

sound technical and legal justifications, 

and result in cost savings and 

compliance flexibility for the Portland 

cement industry. This result is 

consistent with Executive Order 13563. 

1. Purpose of the Regulatory Action 

a. Need for the Regulatory Action 

The EPA is amending the NESHAP for 

the Portland cement source category and 

the NSPS for Portland cement plants 

issued under sections 112(d) and 111(b) 

of the Clean Air Act (CAA). The most 

significant amendment is to the 

NESHAP and NSPS for PM, to correct 

monitoring issues with the PM 

compliance regime as promulgated in 

the 2010 final rule. As a result of this 

amendment, the EPA is also setting a 

compliance date of September 9, 2015, 

for meeting the PM, mercury, HCl and 

THC existing source NESHAP. 

This final action also addresses the 

remand by the DC Circuit in Portland 

Cement Ass’n v. EPA, 665 F. 3d 177 (DC 

Cir. 2011). In that case, the court upheld 

all of the EPA’s methodology for 

establishing the Portland cement 

NESHAP, denied all petitions for review 

challenging the NSPS, but also held that 

the EPA had arbitrarily denied 

reconsideration of the NESHAP to take 

into account the effect of the EPA’s 

Nonhazardous Secondary Materials 

(NHSM) rule on the standards. The 

NHSM rule, issued after the NESHAP 

was promulgated, had the effect of 

reclassifying some cement kilns as 

commercial and industrial solid waste 

incinerators (CISWI) and thus could 

have an effect on the standards. The 

court also stayed the open storage 

clinker pile standards. 

We are also amending various 

implementation requirements to provide 

more compliance flexibility for affected 

sources. In addition, the amendments 

address the issues on which the EPA 

previously granted reconsideration. See 

76 FR 28318 (May 17, 2011). 

b. Legal Authority for the Regulatory 

Action 

These amendments implement 

sections 112(d) and 111(b) of the CAA. 

Section 112 of the CAA establishes a 

regulatory process to address emissions 

of hazardous air pollutants (HAP) from 

stationary sources. After the EPA 

identifies categories of sources emitting 

one or more of the HAP listed in section 

112(b) of the CAA, section 112(d) 

requires the EPA to promulgate 

technology-based NESHAP for those 

sources. Section 112(i)(3)(A) requires 

that the compliance date for existing 

sources shall be ‘‘as expeditiou[s] as 

practicable,’’ but not more than 3 years 

after a standard’s effective date. Section 

111 of the CAA requires that NSPS 

reflect the application of the best system 

of emission reductions achievable 

which, taking into consideration the 

cost of achieving such emission 

reductions, and any non-air quality 

health and environmental impact and 

energy requirements, the Administrator 

determines has been adequately 

demonstrated. 

2. Summary of Major Provisions 

a. PM Emission Standards 

As proposed, the EPA is amending the 

existing and new source PM standards 

in the NESHAP to require manual stack 

testing in lieu of PM continuous 

emission monitoring systems (CEMS) 

for compliance determinations and 

requiring that a site-specific parametric 

operating level be established using a 

PM continuous parametric monitoring 

system (CPMS). We are changing the 

numeric emissions value of those 

standards for existing sources to 0.07 

pounds per ton (lb/ton) clinker based on 

manual stack testing and 0.02 lb/ton 

clinker for new and reconstructed 

sources based on manual stack testing. 

The PM standards under the NSPS for 

modified sources are likewise amended 

to 0.07 lb/ton clinker based on manual 

stack testing and 0.02 lb/ton clinker for 

new and reconstructed sources based on 

manual stack testing. 

b. Response to Remand 

Consistent with the court’s remand, 

the EPA has removed all of the CISWI 

kilns from the database used to set the 

2010 existing source standards for PM, 

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10008 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

mercury, HCl and THC. This analysis 

informed the level of the final standards 

discussed immediately below. 

c. Other Emissions Standards 

As proposed, the EPA is changing the 

alternative organic HAP (oHAP) 

standard from 9 parts per million (ppm) 

to 12 ppm. The EPA is not changing the 

existing or new source standards for 

mercury, THC or HCl. 

d. Standards During Startup and 

Shutdown 

The EPA is amending the emission 

standards applicable during periods of 

startup and shutdown from numerical 

standards to work practice standards. 

e. Compliance Dates for NESHAP 

As proposed, the EPA is establishing 

a compliance date of September 9, 2015, 

for existing source standards for PM, 

mercury, HCl and THC. The EPA is 

establishing February 12, 2014, as the 

compliance date for the standards for 

existing open clinker storage piles. New 

source standards continue to apply to 

all sources which commenced 

construction or reconstruction after May 

6, 2009. 

f. Final Action on Reconsideration 

The EPA is also taking final action on 

the remaining issues on which it 

granted reconsideration on May 17, 

2011. 

3. Cost Impacts of These Amendments 

We estimate that revising the means 

of demonstrating compliance for the 

PM, alternative organic HAP standards 

and requiring work practices for open 

clinker storage piles will save industry 

$52 million annually. 

4. Summary of Final Standards 

Table 1 shows the final standards for 

the Portland Cement Manufacturing 

Industry NESHAP and the Portland 

Cement Plants NSPS. 

TABLE 1—EXISTING AND NEW SOURCE STANDARDS

Pollutant Existing source standard New source standard 

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

THC .................................................................... 24 ppmvd ......................................................... 24 ppmvd. 

PM ...................................................................... 0.07 lb/ton a clinker (3-run test average) ......... 0.02 lb/ton b clinker (3-run test average). 

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

Organic HAP (alternative to Total Hydrocarbons).12 ppmvd ......................................................... 12 ppmvd. 

aAlso applies to NSPS modified sources. 

bAlso applies to NSPS new and reconstructed sources. 

B. Does this action apply to me? 

Categories and entities potentially 

regulated by this final rule include: 

TABLE 2—INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS NESHAP AND NSPS FINAL ACTION

Category NAICS code a Examples of regulated entities 

Industry ..................................................... 327310 Portland cement manufacturing plants. 

Federal government .................................. ........................ Not affected. 

State/local/tribal government .................... ........................ Portland cement manufacturing plants. 

a North American Industry Classification System. 

Table 2 of this preamble is not 

intended to be exhaustive, but rather 

provides a guide for readers regarding 

entities likely to be regulated by this 

action. To determine whether your 

facility will be regulated by this action, 

you should examine the applicability 

criteria in 40 CFR 60.60 (subpart F) or 

in 40 CFR 63.1340 (subpart LLL). If you 

have any questions regarding the 

applicability of this final action to a 

particular entity, contact the appropriate 

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

C. Where can I get a copy of this 

document? 

In addition to being available in the 

docket, an electronic copy of this final 

action will also be available on the 

World Wide Web (WWW) through the 

EPA’s Technology Transfer Network 

(TTN). Following signature by the EPA 

Administrator, a copy of this final 

action will be posted on the TTN’s 

policy and guidance page for newly 

proposed or promulgated rules at the 

following address: http://www.epa.gov/ 

ttn/oarpg. The TTN provides 

information and technology exchange in 

various areas of air pollution control. In 

addition, more information can be 

obtained at the following address: 

http://www.epa.gov/airquality/cement. 

D. Judicial Review 

Under section 307(b)(1) of the CAA, 

judicial review of this final action is 

available only by filing a petition for 

review in the court by April 13, 2013. 

Under section 307(b)(2) of the CAA, the 

requirements established by the final 

rule may not be challenged separately in 

any civil or criminal proceedings 

brought by the EPA to enforce the 

requirements. 

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

further provides that ‘‘[o]nly 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.’’ This 

section also provides a mechanism for 

the EPA to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

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 (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10009 

1The company burns dried biosolids as a fuel 

which are not classified as solid wastes. Refer to the 

Docket, No. EPA–HQ–OAR–2011–0817–0482. 

Ariel Rios Building, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

II. Background Information 

A. What is the statutory authority for 

these amendments? 

Section 112 of the CAA establishes a 

regulatory process to address emissions 

of HAP from stationary sources. After 

the EPA has identified categories of 

sources emitting one or more of the HAP 

listed in section 112(b) of the CAA, 

section 112(d) requires us to promulgate 

NESHAP for those sources. For ‘‘major 

sources’’ that emit or have the potential 

to emit 10 tons per year (tpy) or more 

of a single HAP or 25 tpy or more of a 

combination of HAP, these technologybased standards must reflect the 

maximum reductions of HAP achievable 

(after considering cost, energy 

requirements and non-air quality health 

and environmental impacts) and are 

commonly referred to as maximum 

achievable control technology (MACT) 

standards. 

The statute specifies certain minimum 

stringency requirements for MACT 

standards, which are referred to as 

‘‘floor’’ requirements. See CAA section 

112(d)(3). Specifically, for new sources, 

the MACT floor cannot be less stringent 

than the emission control that is 

achieved in practice by the best 

controlled similar source. The MACT 

standards for existing sources can be 

less stringent than standards for new 

sources, but they cannot be less 

stringent than the average emission 

limitation achieved by the bestperforming 12 percent of existing 

sources (for which the Administrator 

has emissions information) in the 

category or subcategory (or the bestperforming five sources for categories or 

subcategories with fewer than 30 

sources). 

In developing MACT, we must also 

consider control options that are more 

stringent than the floor. We may 

establish standards more stringent than 

the floor based on the consideration of 

the cost of achieving the emissions 

reductions, any non-air quality health 

and environmental impacts, and energy 

requirements. See CAA section 

112(d)(2). 

Under section 112(i)(3)(A), 

compliance dates for existing sources 

shall ‘‘be as expeditiou[s] as 

practicable’’, but in no event later than 

3 years after the date of publication of 

the final rule in the Federal Register. 

The EPA may set a revised compliance 

date of a MACT standard when 

amending that standard, see NRDC v. 

EPA, 489 F. 3d 1364, 1373–74 (D.C. Cir. 

2007), but any such amended 

compliance date must still establish 

‘‘compliance as expeditiously as 

practicable.’’ 

Section 111(b) requires the EPA to set 

standards for emissions that ‘‘reflect the 

degree of emission limitation achievable 

through the application of the best 

system of emission reduction.’’ See CAA 

section 111(a)(1). In contrast to the 

NESHAP floor setting process, NSPS 

requires the EPA to take into account 

the ‘‘cost of achieving’’ emissions 

reductions, as well as health, 

environmental, and energy 

considerations. Id. 

B. What actions preceded this final rule? 

The history of this final rule, 

commencing with the 1999 standards 

and proceeding through the 

amendments issued in September 2009, 

is set out in detail in 75 FR 54970 (Sept 

9, 2010). The Portland Cement 

Association (PCA) and several cement 

companies filed petitions for 

reconsideration of aspects of those 

amendments (copies of the petitions are 

in the Portland Cement Reconsideration 

docket, EPA–HQ–OAR–2011–0817). On 

May 17, 2011, the EPA granted 

reconsideration of various issues, and 

denied the petitions to reconsider as to 

the remaining issues. See 76 FR 28318 

(May 17, 2011). On December 9, 2011, 

the D.C. Circuit issued an opinion 

upholding the NESHAP itself (as well as 

the section 111 NSPS), but finding that 

the EPA had arbitrarily failed to grant 

reconsideration to consider the effect of 

the EPA’s NHSM rule on the standards 

(76 FR 15456 (March 21, 2011)), The 

NHSM rule had the effect of 

reclassifying some cement kilns as 

commercial and solid waste 

incinerators. See Portland Cement Ass’n 

v. EPA, 665 F. 3d 177, 186–189 (D.C. 

Cir. 2011). The court did not stay any 

of the numerical emission standards, 

but did stay the work practice standards 

for open clinker storage piles pending 

the conclusion of the reconsideration 

process. See 665 F. 3d at 194. 

In this action, the EPA is responding 

to the court’s remand. For existing 

sources, the EPA had done so by 

removing all kilns classified as CISWI 

units from the data used to establish the 

2010 NESHAP standards. The EPA then 

recalculated each of the floors based on 

this dataset (the 2010 dataset minus 

CISWI units) and made beyond-the-floor 

determinations based on the 

recalculated floors. The EPA believes 

that this approach is properly 

responsive to the court’s remand. See 

665 F. 3d at 188 where the court 

referred favorably to this type of 

recalculation. For new sources, EPA 

used the same data as used to establish 

the 2010 floors—namely the 

performance of the best controlled 

similar sources as required by section 

112(d)(3). 

III. Summary of Final Amendments to 

Subpart LLL and Subpart F 

As discussed in the preamble of the 

proposed rule, 77 FR 42368, in this final 

action the EPA is finalizing several 

amendments to Subpart LLL and 

Subpart F. These amendments are 

summarized below. 

A. Reconsideration of Standards 

As noted above, EPA has responded 

to the action of the DC Circuit by 

removing all CISWI cement kilns from 

the database used to establish the 

existing source standards, and 

recalculating existing source floors and 

standards from that revised database. As 

described in the preamble of the 

proposal, the EPA had determined 

based on the final NHSM rule that there 

are 24 cement kilns which combust 

solid waste. 77 FR 42372. During the 

comment period, one company 

provided reliable information in its 

comments regarding the materials it 

processes indicating that one of these 

kilns is, in fact, a cement kiln (meaning 

that the EPA had properly classified it 

as a cement kiln in the 2010 

rulemaking).1 After reviewing the 

information provided, the EPA agrees 

that this source should not be classified 

as a CISWI kiln and, therefore, should 

not be removed from the Portland 

cement kiln database. We received no 

other comments concerning the 

identification of cement kilns and 

CISWI units. There are thus now 23 

kilns identified as combusting solid 

waste and therefore classified as CISWI 

units. As directed by the Court’s 

decision, we removed these 23 kilns 

from the database and recalculated the 

floors. This calculation resulted in the 

same floors as proposed in the July 2012 

proposal. 

Consistent with this analysis, the EPA 

is finalizing amendments to the 

emission standards as follows: 

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10010 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

2 If a source believes that monitoring nonmethane THC rather than total THC is a more 

reliable indicator of its oHAP emissions, it can 

submit an alternative monitoring request pursuant 

to the requirements of 40 CFR 63.8(f). 

1. PM Emission Standards 

The EPA is revising several provisions 

of the emission standards for PM as 

follows: 

• Changing the compliance basis for 

the PM standards from continuous 

monitoring with a PM CEMS to a 

manual three run stack test, amending 

the level and averaging time of the 

standard, and requiring a continuous 

parametric monitoring system using a 

CPMS. As a consequence, the EPA is 

also: 

• Amending PM standards under the 

NESHAP for existing sources to 0.07 lb/ 

ton clinker based on manual stack 

testing, and 0.02 lb/ton clinker for new 

and reconstructed sources based on 

manual stack testing; 

• Amending PM standards under the 

NSPS for modified sources to 0.07 lb/ 

ton clinker based on manual stack 

testing and 0.02 lb/ton clinker for new 

and reconstructed sources likewise 

based on manual stack testing; 

• Requiring that sources establish a 

site-specific parametric operating limit 

for PM, and requiring that the 

parametric limit be continuously 

monitored using a PM CPMS; 

• Requiring that sources retest once a 

year to reset the PM CPMS operating 

limit; 

• Adding a provision that, if a source 

exceeds that site-specific parametric 

operating limit, it must conduct 

corrective action including performing a 

Method 5 or 5I performance test within 

45 days; in addition, if the source 

exceeds that parametric limit four times 

in a calendar year, the source is 

presumed to be in violation of the PM 

emissions standard itself, subject to 

rebuttal by the source. 

2. Mercury Standard 

As proposed, the EPA is establishing 

a standard for mercury of 55 pounds per 

million (lb/MM) tons clinker for existing 

sources and is not changing the 

emission standard (21 lb/MM tons 

clinker) for new sources. The emission 

standard for existing sources is the same 

as the 2010 standard but is a beyond the 

floor standard. 

3. Other Emissions Standards 

As the Court requested, the EPA 

removed the CISWI units from the 

database and re-calculated the standards 

for THC and HCl. The standards remain 

the same as they were in the final 2010 

rule. See also 76 FR 21149, 21152, and 

21154 explaining why beyond the floor 

standards for THC and HCl are not 

justified. The 2010 rules provide an 

alternative to the THC standard whereby 

sources can meet a limit for non-dioxin 

organic HAP by measuring those HAP 

directly rather than meeting the 

standard for THC (a surrogate for nondioxin organic HAP). As proposed, the 

EPA is changing the level of the 

alternative non-dioxin organic HAP 

standard from 9 ppm to 12 ppm. Table 

3 summarizes the Final Existing and 

New Source Standards 

TABLE 3—EXISTING AND NEW SOURCE STANDARDS a

Pollutant Existing source standard New source standard 

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

THC .................................................................... 24 ppmvd ......................................................... 24 ppmvd. 

PM ...................................................................... 0.07 lb/ton clinker (3-run test average) ............ 0.02 lb/ton clinker (3-run test average). 

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

Organic HAPb .................................................... 12 ppmvd ......................................................... 12 ppmvd. 

aStandards for mercury and THC are based on a 30-day rolling average. The standard for PM is based on a three-run test. If using a CEMS 

to determine compliance with the HCl standard, the floor is also a 30-day rolling average. b If the source opts to comply with the THC emission limit, this standard does not apply. 

B. Continuously Monitored Parameters 

for Alternative Organic HAP Standard 

(With THC Monitoring Parameter) 

In addition to amending the level of 

the alternative oHAP standard (i.e., the 

standard whereby sources meet a 

standard for oHAP rather than for THC), 

the EPA is amending the provisions for 

the site-specific THC operating 

parameter for that alternative standard 

(where THC is a site-specific parameter 

monitored continuously to show 

compliance with the oHAP standard). 

The THC operating parameter is 

established based on THC levels 

measured during the successful stack 

test where oHAP are measured directly 

to demonstrate compliance. As 

amended, if compliance source testing 

of oHAP averages a value that is 75 

percent or less of the emission limit for 

oHAP, the facility is allowed to 

establish a THC parametric operating 

level corresponding to 75 percent of the 

oHAP emission limit. We are adopting 

this provision to avoid penalizing 

lower-emitting sources by burdening 

them with the most stringent parametric 

operating levels. The EPA is adopting a 

similar provision for continuous PM 

parametric monitoring, for the same 

reason (see Section IV.A below). 

Sources which show oHAP emissions in 

compliance, but greater than 75 percent 

of the standard, must establish the 

average THC concentration measured 

during the 3-hour organic HAP test and 

use that as the site-specific THC 

operating level. Thus, the parametric 

monitoring level for THC will be the 

level corresponding to oHAP levels of 

75 percent of the standard or the THC 

level of the oHAP performance test, 

whichever is higher.2 Compliance with 

the oHAP standard will be shown as a 

ratio of three test runs during mill-on 

conditions and three test runs during 

mill-off conditions, with the percentage 

of operating time spent in each 

condition determining the ratio. The 

parametric operating level will be set 

according to average THC values 

measured during these same test runs, 

or to the default value of 75 percent of 

the standard, as just explained. In 

addition, the EPA will allow facilities to 

extend the testing time of the oHAP 

performance test if they believe 

extended testing is required to 

adequately capture THC variability over 

time. This final rule further requires that 

the stack test for oHAP be repeated 

every 30 months to establish a new sitespecific THC parameter. 

C. Allowing Sources With Dry Caustic 

Scrubbers To Comply With HCl 

Standard Using Performance Tests 

The 2010 rule allows sources 

equipped with wet scrubbers to comply 

with the HCl standard by means of 

periodic performance tests rather than 

with continuous monitoring of HCl with 

a CEMS. Sources electing to comply by 

means of stack tests must establish 

continuously monitored parameters 

including liquid flow rate, pressure, and 

pH. Under this final rule, kilns with dry 

scrubbers may also demonstrate 

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compliance with the HCl emissions 

limit by means of an initial and periodic 

stack test rather than with continuous 

compliance monitoring with an HCl 

CEMS. If a kiln equipped with a dry 

scrubber chooses this alternative, this 

final rule requires that the sorbent 

injection rate used during a successful 

performance test be recorded and then 

continuously monitored to show that 

the injection rate remains at or above 

the rate used during the performance 

test. 

Where either wet or dry scrubbers are 

used, owners and operators may also 

establish sulfur dioxide (SO2) as an 

operating parameter, rather than, for 

example, sorbent injection rate, liquid 

injection rate or pressure drop. If the 

owner or operator of a scrubberequipped kiln makes this choice, it must 

establish the SO2 operating limit equal 

to the average of the HCl levels recorded 

during the HCl performance test, and 

meet that operating limit on a 30 day 

rolling average basis. If a source exceeds 

any established parameter level, it must 

retest for HCl in order to verify 

compliance with the HCl emissions 

standard and must verify or re-establish 

the parametric monitoring levels as 

well. 

At a minimum, a repeat performance 

test to confirm compliance with the HCl 

emissions limit is required every 30 

months. 

D. Alternative PM Limit 

The 2010 final rule established an 

alternative PM limit to accommodate 

situations where kilns combine exhaust 

gas from various operations. 77 FR 

42382. The equation establishing the 

alternative limit contained certain 

technical errors which the EPA 

proposed to correct. As proposed, this 

final rule revises the alternative PM 

equation so that it includes exhaust gas 

flows from all sources that would 

potentially be combined, including 

exhausts from the kiln, the alkali 

bypass, the coal mill, and the clinker 

cooler, for an existing kiln. The EPA is 

thus finalizing the following equation: 

PMalt = 0.0060 × 1.65 × (Qk + Qc + Qab

+ Qcm)/(7000) 

Where: 

PMalt = The alternative PM emission limit for 

commingled sources. 

0.0060 = The PM exhaust concentration 

(grains per dry standard cubic feet (gr/ 

dscf)) equivalent to 0.07 lb per ton 

clinker where clinker cooler and kiln 

exhaust gas are not combined. 

1.65 = The conversion factor of lb feed per 

lb clinker. 

Qk = The exhaust flow of the kiln (dscf/ton 

feed). 

Qc = The exhaust flow of the clinker cooler 

(dscf/ton feed). 

Qab = The exhaust flow of the alkali bypass 

(dscf/ton feed). 

Qcm = The exhaust flow of the coal mill (dscf/ 

ton feed). 

7000 = The conversion factor for grains (gr) 

per lb. 

If exhaust gases for any of the sources 

contained in the equation are not 

commingled and are exhausted through 

a separate stack, their value in the 

equation would be zero. The alternative 

PM equation for new sources is 

identical to the existing source equation 

except the PM exhaust concentration 

used in the equation is 0.002 gr/dscf, 

which is equivalent to the new source 

PM limit of 0.02 lb/ton clinker. 

E. Coal Mills 

The EPA discussed at length in the 

preamble to the proposed rule a 

potential regulatory regime to cover 

situations where a portion of the kiln 

exhaust is ducted to the coal mill. See 

77 FR 42383–85; see also the regulatory 

text at 77 FR 42398, 42402–06, 42408– 

09. To assure that cement kilns do not 

exhaust untreated HAP through coal 

mills, and to assure accurate accounting 

of commingled emissions so that cement 

kilns are not penalized for commingling 

emissions where it makes sense to do 

so, the EPA is finalizing rules applicable 

to kiln/coal mill emissions for two 

configurations. In one, a portion of the 

kiln exhaust is ducted to a coal mill, 

and then the coal mill exhaust is 

commingled with remaining kiln 

exhaust and discharged through the 

main kiln stack. In the other, a portion 

of the kiln exhaust is routed through the 

coal mill and discharged through the 

coal mill stack. 

In the case of a coal mill that receives 

and discharges a portion of the cement 

kiln exhaust, this final rule requires that 

the sum of the mercury, THC and HCl 

in the kiln exhaust diverted to the coal 

mill, and the kiln exhaust exhausted 

from the main kiln stack, must not 

exceed the subpart LLL emission limits 

for each respective HAP or HAP 

surrogate. The facility must document 

the contribution of the emissions 

diverted to the coal mill. For mercury, 

the rule allows tests to be performed 

downstream of the coal mill to take 

advantage of any mercury removal that 

occurs in the coal mill air pollution 

control device, and to avoid double 

counting emissions from mercury that 

becomes re-entrained in the coal. For 

THC and HCl, the rule allows tests to be 

performed upstream of the coal mill to 

avoid any THC or HCl that might be 

emitted by the coal. For owners and 

operators who believe that the impact of 

the testing location (upstream or 

downstream of the coal mill) would not 

result in their exceeding the kiln 

mercury, THC or HCl emissions limits 

and wish to conduct all their THC, HCl 

and mercury testing at a single location, 

this final rule allows testing either 

upstream or downstream of the coal 

mill. For sources complying with the 

alternate organic HAP limit, the facility 

would not be required to test for THC 

emissions, but would test for the organic 

HAP and add that concentration to the 

remaining emission points to estimate 

their total emissions for organic HAP. 

A cement kiln that commingles 

emissions from its coal mill with all 

other kiln exhaust emissions and 

discharges through a single stack could 

simply meet the kiln emission limits. In 

the case of PM, the additional flow from 

the coal mill would be accounted for in 

the equation used to determine PM 

contributions from commingled flows. 

See section D above. In this 

configuration, the source would also 

have the option of monitoring and/or 

testing kiln exhaust gases prior to the 

introduction of the coal mill exhaust 

gas, and testing the kiln gas diverted to 

the coal mill. In this case this final rule 

requires that the sum of the mercury, 

THC (or organic HAP if the source 

chooses the alternative organic HAP 

limit), and HCl in the kiln exhaust 

diverted to the coal mill plus the kiln 

exhaust measured in the main kiln 

exhaust must not exceed the subpart 

LLL emission limits for each respective 

HAP or HAP surrogate. 

The same provisions for coal mills 

also apply to kilns equipped with an 

alkali bypass. The one minor exception 

is that for PM, the summed PM 

emissions from the kiln and alkali 

bypass must be equal to or less than the 

PM limit in subpart LLL. Tests for PM 

from the alkali bypass must be 

conducted downstream of the alkali 

bypass air pollution control devices 

(APCD) to account for those emission 

reductions. 

With regard to PM, the EPA stated at 

proposal that where a coal mill receives 

and discharges a portion of the cement 

kiln exhaust, the kiln owner operator 

would have to demonstrate compliance 

with the 40 CFR 60 subpart Y standard 

for PM. Although the subpart Y 

standard is numerically higher than the 

subpart LLL PM standard, EPA assumed 

that control would be to the same level 

because the subpart Y PM standard is 

predicated on use of fabric filer control 

technology. 77 FR 42383/2. However, a 

commenter pointed out accurately that 

this proposal contravened the basic 

principle EPA indicated it was adopting 

here of not allowing diverted kiln 

emissions to meet a more lenient 

standard than required by the NESHAP, 

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10012 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

3We note that these changes required the agency 

to reprint sections of regulatory text. See e.g. 

63.1348(a)(3)(i). In reprinting these passages, EPA 

has not reopened, reconsidered, or otherwise 

reevaluated the substance of these provisions but 

rather is only making the needed technical 

alteration. 

and further indicated that EPA had 

failed to show that these diverted PM 

emissions were controlled as required 

by section 112(d)(2) and (3) of the Act. 

EPA agrees with this comment, and 

accordingly is indicating in the final 

rule that commingled emissions in this 

situation would be required to meet the 

subpart LLL NESHAP for PM. Because 

coal mill stacks are controlled with 

fabric filters, we project that they can 

meet the subpart LLL numeric standard 

without further controls. See 77 FR 

42383. Coal mill stacks will be required 

to meet annual PM performance testing 

and combine the measured emissions 

with PM emissions from the separated 

alkali stack, bypass stack, and/or main 

kiln as required in sections 60.62(b)(3), 

63.1349 and 63.1350 of this rule. 

This final rule also states that sources 

equipped with an alkali bypass stack or 

sources that exhaust kiln gases to a coal 

mill that exhausts through a separate 

stack are not required to install CEMS 

on these stacks. Instead of installing a 

CEMS, such sources may use the results 

of the initial and subsequent 

performance test to demonstrate 

compliance with the PM, THC, HCl and 

mercury emissions limits. Note that for 

the main kiln exhaust, the CEMS 

requirements remain. 

We expand on these monitoring 

provisions below. 

1. Mercury 

Although mercury from the kiln stack 

is monitored using a CEMS, mercury 

emissions from the coal mill are based 

on a periodic performance test and use 

of the gas flow rate to the coal mill. 

Performance tests for mercury must be 

conducted annually unless and until the 

tested mercury levels are below the 

method detection limits for two 

consecutive years, after which tests may 

be conducted every 30 months. The 

performance test results must be 

summed with the emissions from the 

kiln stack to determine compliance. The 

coal mill exhaust mercury emissions are 

calculated on a mass basis using the 

measured mercury concentration and 

the coal mill exhaust gas flow. The coal 

mill exhaust flow is established using a 

continuous monitoring system (CMS), or 

the design maximum flow rate. Mass 

mercury emissions from the coal mill 

would be summed with the hourly 

mercury emissions from the kiln 

measured by the mercury CEMS. Hourly 

mercury emissions are then summed to 

calculate the rolling 30-day mass 

mercury emissions. This number is then 

divided by the corresponding 30 days of 

clinker production to determine the 30- 

day rolling average. This final rule 

provides equations for summing 

emissions from the coal mill with the 

mercury emissions from the kiln to 

determine continuous compliance. To 

see an example calculation, see Section 

4 of the Portland Cement 

Reconsideration Technical Support 

Document (developed for the proposal), 

docket item EPA–HQ–OAR–2011–0817– 

0225. 

2. THC and HCl 

In this case, site specific kiln stack 

emission limits (to be continuously 

monitored) are to be calculated taking 

into consideration the volumetric 

exhaust gas flow rates and 

concentrations of all applicable effluent 

streams (kiln stack, coal mill and alkali 

bypass) for the kiln unit. In order to 

determine the flow rates and 

concentrations of THC and HCl in the 

coal mill and alkali bypass streams, the 

source must test every 30 months using 

the appropriate test method. For HCl, 

the performance test must be performed 

using Method 321 in Appendix A to 40 

CFR Part 63. For measurement of THC, 

Method 25A in Appendix A–7 to 40 

CFR Part 60 is required. With these data, 

the concentration of THC and HCl that 

must be monitored by the kiln CEMS in 

order to demonstrate compliance with 

the kiln MACT limit can be calculated 

using the equations in this final rule. As 

with mercury, the coal mill flow rate 

used to calculate the allowable main 

kiln stack THC and HCl concentrations 

can be based on a CMS, or on the 

maximum design flow rate. The sum of 

the kiln CEMS and the maximum 

emissions from the coal mill or alkali 

bypass must be at or below the subpart 

LLL limits for THC and HCl. See Section 

4 of Portland Cement Reconsideration 

Technical Support Document 

(developed for the proposal), docket 

item EPA–HQ–OAR–2011–0817–0225, 

for an example calculation. 

Also, as a result of these revisions, the 

EPA is revising the definition of kiln to 

include inline coal mills and adding a 

definition of inline coal mill. 

F. NESHAP Compliance Date Extension 

for Existing Sources 

This final rule establishes that the 

compliance date for the amended PM 

standard, and for the THC, mercury and 

HCl standards, for existing sources for 

kilns, clinker coolers and raw material 

dryers is September 9, 2015. This final 

rule also establishes February 12, 2014, 

as the compliance date for the existing 

open clinker storage pile work practice 

standards. A detailed discussion of 

these compliance dates can be found in 

Section V.D. below. 

G. Section 112 Eligibility To Be a New 

Source 

The EPA is not changing the date for 

new source eligibility under the 

NESHAP. Thus, a source that 

commenced construction or 

reconstruction after May 6, 2009, would 

remain subject to the section 112 new 

source standards. A more detailed 

discussion of this topic can be found 

below in Section V.E. 

H. Other Testing and Monitoring 

Revisions 

In this action we are finalizing the 

proposed corrections and clarifications 

to the 2010 rule including changes to: 

Equations for calculating rolling 

operating day emissions rates; 

procedures that include extraneous 

wording; and cross references and 

typographical errors in the rule.3

For sources that are required to 

monitor HCl emissions with a CEMS, 

we are revising the requirements for 

using HCl CEMS to define the span 

value for this source category, to include 

quality assurance measures for data 

collected under ‘‘mill off’’ conditions, 

and to clarify use of performance 

specification (PS) 15. This final rule also 

removes from the standard the oxygen 

correction factors for raw material 

dryers and makes minor, nonsubstantive changes to the sections and 

paragraphs below: 

• Section 60.62(d). 

• Section 60.63(b)(1)(i) and (ii), (b)(2), 

(f)(1), (2), (4), (5), (h)(1) and (6) through 

(9) (i). 

• Section 60.64(b)(2). 

• Section 60.66. 

• Section 63.1340(b)(1) and (6) 

through (8). 

• Section 63.1346(a) and (c) through 

(e). 

• Section 63.1348(a)(2), (3)(i) through 

(iii), (a)(4)(i)(A), (a)(4)(ii) and (iv). 

• Section 63.1348(b)(1)(i), (iii) and 

(iv). 

• Section 63.1348(b)(3), (5), (6)(i), (8) 

and (c)(2)(iv). 

• Section 63.1349(a), (b)(3), (d)(1) and 

(d)(2) and (e). 

• Section 63.1350(d)(1)(i) and (ii), (f), 

(f)(2)(i) and (iii), (f)(3), (f)(4), (g)(1) and 

(2), (k), l(2), (m)(3), (m)(10) and (11), (o) 

and (p). 

• Section 63.1352(b). 

• Section 63.1356. 

• In addition, we are adding 

requirements in section 63.1348(a), that 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10013 

a cement kiln that becomes subject to 

the rule after having been subject to the 

CISWI regulations, must meet all the 

initial compliance testing requirements 

even if they were previously subject to 

Subpart LLL. 

I. Miscellaneous Amendments 

We are also finalizing amendments to 

clarify various requirements in this final 

rule including issues of applicability, 

treatment of multiple sources that vent 

to a single stack, third party 

certification, definitions and use of bag 

leak detection systems when PM CPMS 

are in use. 

For raw material, clinker or finished 

product storage bins, we have clarified 

that the requirements of this final rule 

apply only at facilities that are a major 

source (see section 63.1340(b)(6)) and 

that affected sources that are subject to 

subpart OOO (standards for nonmetallic 

mineral processing) are not subject to 

the requirements of subpart LLL (see 

section 63.1340(c)). 

With regard to the NSPS, to clarify the 

recordkeeping and reporting 

requirement in section 60.65(a) to 

submit excess emission reports, we have 

added to section 60.61 of the NSPS a 

definition of ‘‘excess emissions’’ to 

mean ‘‘with respect to this subpart, 

results of any required measurements 

outside the applicable range (e.g., 

emissions limitations, parametric 

operating limits) that is permitted by 

this subpart. The values of 

measurements will be in the same units 

and averaging time as the values 

specified in this subpart for the 

limitations.’’ To clarify what data are 

used in the calculation of emissions, or 

used in the calculation of parametric 

levels that are used to demonstrate 

continuous compliance, we added to 

this section a definition of ‘‘operating 

day’’ to mean ‘‘a 24-hour period 

beginning at 12:00 midnight during 

which the kiln operates at any time. For 

calculating rolling 30-day average 

emissions, an operating day does not 

include the hours of operation during 

startup or shutdown.’’ The definition for 

‘‘operating day’’ in section 63.1341 of 

the NESHAP is revised to be consistent 

with the above definition. We also 

became aware that some raw material 

dryers may be used to dry materials 

other than kiln feed and we have 

revised the definition of ‘‘raw material 

dryer’’ in recognition of that fact. 

J. Standards During Periods of Startup 

and Shutdown 

In the 2010 final NESHAP, the EPA 

established separate standards for 

periods of startup and shutdown which 

differ from the main standards that 

apply during steady state operations. In 

this action, based on comments received 

and the EPA’s reconsideration of several 

technical issues related to startup and 

shutdown, the EPA is adopting work 

practices in place of these numerical 

standards. The rationale and provisions 

for the work practice standards are 

discussed in detail in section IV.C. 

The EPA is also clarifying the 

operating conditions during which these 

standards apply, including a definition 

of ‘‘startup’’ and ‘‘shutdown’’. Under the 

amended definition, startup begins 

when the kiln’s induced fan is turned 

on and fuel combustion is occurring in 

the main burner of the kiln. Startup 

ends when feed has been continuously 

fed to the kiln for at least 120 minutes 

or when the kiln feed rate exceeds 60 

percent of the kiln design limitation 

rate. Shutdown begins when continuous 

feed to the kiln is halted and ends when 

continuous kiln rotation ceases. 

The startup and shutdown-related 

changes include: 

• Adding a definition of startup and 

shutdown in section 63.1341, as 

described; 

• Adding section 63.1346(f) 

describing work practice standards to be 

met during periods of startup and 

shutdown; 

• Revising section 63.1347 to require 

that startup and shutdown procedures 

be included in the facility’s operation 

and maintenance plan; 

• Adding section 63.1355(f) requiring 

records of each startup and shutdown 

including the date, time and duration 

and the quantity of feed and fuel added 

to the kiln during startup and 

shutdown; 

• Adding section 63.1348(b)(9) 

requiring continuous compliance by 

operating all air pollution control 

devices during periods of startup and 

shutdown. 

K. Reporting for Malfunctions and 

Affirmative Defense for Violation of 

Emission Standards During 

Malfunctions 

The EPA added to the September 9, 

2010, final NESHAP rule an affirmative 

defense to civil penalties for violations 

of emissions limits that are caused by 

malfunctions. Various environmental 

advocacy groups, as well as the PCA, 

indicated that there had been 

insufficient notice of this provision. The 

EPA agreed and granted 

reconsideration. See 76 FR 28325 (May 

17, 2011). This action finalizes the 

EPA’s decision to retain the affirmative 

defense on reconsideration. 

The EPA is retaining in the final 

NESHAP rule an affirmative defense to 

civil penalties for violations of emission 

standards that are caused by 

malfunctions. See 40 CFR 63.1341 

(defining ‘‘affirmative defense’’ to mean, 

in the context of an enforcement 

proceeding, a response or defense put 

forward by a defendant, regarding 

which the defendant has the burden of 

proof, and the merits of which are 

independently and objectively 

evaluated in a judicial or administrative 

proceeding). We are also revising some 

of the regulatory provisions that specify 

the elements that are necessary to 

establish this affirmative defense as 

proposed with minor changes from 

proposal described later in this section. 

The source must prove by a 

preponderance of the evidence that it 

has met all of the elements set forth in 

section 63.1344. (See 40 CFR 22.24). 

The criteria are designed in part to 

ensure that the affirmative defense is 

available only where the event that 

causes a violation of the emission 

standard meets the narrow definition of 

malfunction in 40 CFR 63.2 (sudden, 

infrequent, not reasonably preventable 

and not caused by poor maintenance or 

careless operation). For example, to 

successfully assert the affirmative 

defense, the source must prove by a 

preponderance of the evidence that the 

violation ‘‘[w]as caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control, process 

equipment, or a process to operate in a 

normal or usual manner * * *.’’ The 

criteria also are designed to ensure that 

steps are taken to correct the 

malfunction, to minimize emissions in 

accordance with section 63.1344 and to 

prevent future malfunctions. 

Similar to actions taken in several 

other recent NESHAP amendments (see 

National Emissions Standards for 

Hazardous Air Pollutants From 

Secondary Lead Smelting, 77 FR 556, 

January 5, 2012, National Emission 

Standards for Hazardous Air Pollutant 

Emissions for Shipbuilding and Ship 

Repair (Surface Coating), and National 

Emission Standards for Wood Furniture 

Manufacturing Operations, 76 FR 72050, 

November 21, 2011), the EPA included 

an affirmative defense in the 2010 final 

rule and is retaining it in this rule (see 

section 63.1344). The affirmative 

defense provisions give the EPA the 

flexibility to both ensure that its 

emission standards are ‘‘continuous’’ as 

required by 42 U.S.C. § 7602(k), and 

account for unplanned upsets and thus 

support the reasonableness of the 

standard as a whole. In addition to the 

authority cited in support of the 

affirmative defense in the preamble to 

the proposed rule, the EPA notes that a 

recent court decision further supports 

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10014 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

the EPA’s authority to promulgate an 

affirmative defense. The United States 

Court of Appeals for the Fifth Circuit 

recently upheld the EPA’s view that an 

affirmative defense provision is 

consistent with section 113(e) of the 

Clean Air Act. Luminant Generation Co. 

LLC v. United States EPA, 2012 U.S. 

App. LEXIS 21223 (5th Cir. Oct. 12, 

2012) (upholding the EPA’s approval of 

affirmative defense provisions in a CAA 

State Implementation Plan). As 

discussed in the preamble to the 

proposed rule (77 FR 42379), the EPA’s 

view is that an affirmative defense to 

civil penalties for exceedances of 

applicable emission standards during 

periods of malfunction appropriately 

resolves an underlying tension inherent 

in many types of air regulation, to 

ensure continuous compliance while 

simultaneously recognizing that despite 

the most diligent of efforts, emission 

limits may be exceeded under 

circumstances beyond the control of the 

source. See generally, Virginia v. 

Browner, 80 F.3d 869, 878 (4th Cir. 

1996) (the EPA’s interpretation that 

resolved a tension within the CAA is 

reasonable). The EPA has used its 

section 301(a)(1) authority to issue 

regulations necessary to carry out the 

Act in a manner that appropriately 

balances these competing concerns. 

We are promulgating revisions to the 

affirmative defense provisions in section 

40 CFR 63.1344 as described at proposal 

(77 FR 42380) and making some minor 

additional revisions. The phrase 

‘‘emission limit’’ was changed to 

‘‘emission standards’’ to reflect that the 

affirmative defense could be applicable 

to certain work practice standards. The 

phrase, ‘‘Off-shift and overtime labor 

were used, to the extent practicable to 

make these repairs’’ was removed. The 

term ‘‘notification’’ to ‘‘reporting’’ was 

changed to reflect that the root cause 

analysis required under affirmative 

defense would be submitted with other 

periodic reporting. The term ‘‘and 

monitoring’’ was deleted because 

monitoring malfunctions are defined 

differently than malfunctions of process 

and control units and the affirmative 

defense is intended to apply to 

malfunctions to affected units that cause 

a failure to meet an emission standard. 

The word ‘‘however’’ was removed to 

incorporate more plain language into 

the regulation. The phrase ‘‘the 

respondent fails’’ was removed and 

replaced with ‘‘you fail’’ to incorporate 

more plain language into the regulation. 

The word ‘‘its’’ was replaced with 

‘‘your’’ to incorporate more plain 

language into the regulation. The phrase 

‘‘all of the’’ was replaced with ‘‘your’’ 

also to incorporate more plain language 

into the regulation. The phrase ‘‘air 

pollution control practice’’ was 

shortened to ‘‘good practices’’ to 

incorporate more plain language into 

the regulation. In addition, the written 

report required when asserting an 

affirmative defense was changed from a 

separate ‘‘semiannual’’ report to a report 

that is submitted with the first periodic 

compliance, deviation report or excess 

emission report due after the event. 

We are finalizing the reporting and 

recordkeeping associated with 

violations due to malfunctions as 

described at proposal (77 FR 42388) and 

making some minor additional revisions 

as described below. 

• Revising section 63.1354(b)(vii) for 

reporting and recordkeeping violations 

due to malfunctions. The phrase 

‘‘failure to meet a standard’’ was used to 

replace ‘‘deviation’’ in the requirement 

to report violations of the standard. This 

was changed because the EPA is not 

finalizing a definition of deviation in 

this subpart and the term is not defined 

in the general provisions. 

• Revising section 63.1354(c) for 

reporting a failure to meet a standard 

due to a malfunction. In addition, the 

phrase ‘‘failure to meet a standard’’ was 

used to replace ‘‘deviation’’ in the 

requirement to report violations of the 

standard. This was changed because the 

EPA is not finalizing a definition of 

deviation in this subpart and the term 

is not defined in the general provisions. 

• Revising section 63.1355(f) 

addressing recordkeeping during startup 

and shutdown. The proposed 

recordkeeping requirement applicable to 

startup and shutdown assumed that a 

numerical emission standard was 

applicable during startup and 

shutdown. In finalizing the work 

practice standards in 63.1346(f) there 

will no longer be a numerical emission 

standard applicable during startup and 

shutdown. As such the recordkeeping 

requirement must change to reflect the 

content of the work practice standard. 

Records must be kept of the date, time 

and duration of the periods when the 

work practice is applicable, as well as 

the fuel and feed data to demonstrate 

compliance with the work practice 

standard. 

L. What are the compliance dates of the 

standards? 

During the comment period, 

comments were received that confirmed 

the need for additional compliance 

time, since the revised standards can 

result in different compliance strategies 

relative to the 2010 final rule. Thus, as 

proposed, this final rule establishes the 

compliance date for the amended 

existing source standards including 

standards for PM, mercury, HCl and 

THC to be September 9, 2015. The 

existing source compliance date for the 

requirements for open clinker storage 

piles is February 12, 2014. New sources 

which commenced construction or 

reconstruction after May 6, 2009, would 

remain subject to the new source 

standards and a compliance date of 

February 12, 2013, or startup, whichever 

is later. 

M. Open Clinker Storage Piles 

The EPA has added work practice 

requirements for open clinker storage 

piles that will reduce fugitive dust 

emissions from these sources. This final 

rule also contains a definition of open 

clinker storage piles and requires that a 

source’s operation and maintenance 

plan include the steps the facility will 

take to minimize fugitive dust emissions 

from open clinker storage piles. A 

detailed discussion of these 

requirements can be found in section 

V.C below. 

IV. Summary of Major Changes Since 

Proposal 

A. PM Parametric Monitoring 

Changes to PM Parametric 

Monitoring. The EPA proposed the use 

of PM CPMS for continuous monitoring 

of PM emissions as a 30-day rolling 

average established by identifying the 

average PM CPMS response 

corresponding to the highest 1-hour PM 

compliance test. Failure to meet this 30- 

day rolling average would result in 

retesting, and more than four 

exceedances from the parametric limit 

in a year would be presumed (subject to 

possibility of rebuttal by the source) to 

be a violation of the emission standard 

itself. See 77 FR 42377. Industry 

commented that this requirement would 

trigger unnecessary retests for many 

facilities, especially for the loweremitting sources. The issue of increased 

compliance burden falling on the lower 

emitting sources is legitimate. Sources 

with especially low PM limits in their 

performance test would be most at risk 

of exceeding a parametric limit due to 

a few emission spikes, even though they 

would still be operating well under the 

actual PM compliance limit. We also 

received comment that the highest PM 

performance test run may represent, in 

some circumstances, a number higher 

than the PM emissions standard. To 

avoid this eventuality we have changed 

the final rule to require setting the PM 

operating limit equivalent to the average 

of the three PM performance tests, 

which constitutes the demonstration of 

compliance with the standard. To avoid 

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penalizing lower emitting facilities, the 

EPA has modified the way PM CPMS 

operating limits are established. Sources 

whose compliance with the PM 

emission standard are shown to be 75 

percent or below the emission limit in 

the PM method 5 compliance test will 

set their PM parametric operating limit 

to be a 30-day rolling average equivalent 

to that 75 percent level. In a recent rule 

(76 FR 15736, March 21, 2011), the EPA 

established 75 percent of the limit as a 

number that allows for compliance 

flexibility and is simultaneously 

protective of the emission standard, and 

the same technical basis is applicable 

here as well. Sources whose compliance 

with the PM emission standard are 

above 75 percent of the emission limit 

will establish their operating limit as a 

30-day rolling average equal to the 

average PM CPMS values recorded 

during the PM compliance test. It 

should be noted that this provision 

affects the allowable level of the 

parametric limit, but does not change 

the PM emission limit that must be met. 

B. Scaling for Continuous Parametric 

Monitoring of THC for Alternative 

OHAP Standard 

As explained in section III.B above, 

the EPA is adopting a scaling approach 

for parametric monitoring of THC under 

the alternative organic HAP standard 

which is conceptually similar to the one 

just discussed for parametric monitoring 

of PM. This provision affects the 

allowable level of the THC parametric 

limit, but does not change the oHAP 

emission limit that must be met. 

The EPA proposed the use of THC 

monitoring in conjunction with organic 

HAP compliance testing to determine a 

parametric operating limit option for 

monitoring continuous compliance with 

the alternative organic HAP standard. In 

the proposed rule the organic HAP 

parametric operating limit was 

established by correlating the highest of 

three organic HAP test results with the 

corresponding average THC 

concentration recorded by a parametric 

THC monitor. Industry commented that 

this requirement would trigger 

unnecessary retests for many facilities, 

especially for the best performing 

sources. Not wishing to penalize those 

sources showing good performance, and 

simultaneously wanting to be protective 

of the emission standard, the EPA is 

changing the way parametric THC 

operating levels are established. Sources 

whose compliance with the organic 

HAP emission standard are shown to be 

below 75 percent of the emission limit 

will set their operating limit to be a 30- 

day rolling average equivalent to that 75 

percent level. Sources whose 

compliance with the organic HAP 

emission standard are at or above 75 

percent of the emission limit will 

establish their operating limit as a 30- 

day rolling average equal to the average 

parametric THC values recorded during 

the organic HAP compliance test. 

Sources with an in-line kiln/raw mill 

will use the fraction of time the raw mill 

is on and the fraction of time that the 

raw mill is off, and calculate this limit 

as a weighted average of the THC levels 

measured during raw mill on and raw 

mill off testing. 

C. Work Practice Standard in Lieu of 

Numerical Emissions Limits for Periods 

of Startup and Shutdown 

Under section 112(h) of the Act, the 

EPA may adopt a work practice 

standard in lieu of a numerical emission 

standard only if it is ‘‘not feasible in the 

judgment of the Administrator to 

prescribe or enforce an emission 

standard for control of a hazardous air 

pollutant’’. This phrase is defined in the 

Act to apply to any situation ‘‘in which 

the Administrator determines that 

* * * the application of measurement 

methodology to a particular class of 

sources is not practicable due to 

technological and economic 

limitations.’’ CAA section 112(h)(1) and 

(2). In adopting numerical limits for 

startup and shutdown in the 2010 final 

NESHAP, the EPA rejected comments 

that it should adopt work practices as a 

standard during startup and shutdown. 

This was largely because the 

commenters had not addressed the issue 

of whether the requirements of section 

112(h) had been met. See docket item 

EPA–HQ–OAR–2002–0051–3464, pp. 

183–84. The EPA later denied petitions 

to reconsider this issue on the grounds 

that the agency had already provided 

ample opportunity for comment on the 

issue, which petitioners had used. See 

76 FR at 28323. The DC Circuit 

dismissed all challenges to the startup 

and shutdown provisions in the 

NESHAP (665 F 3d at 189). The EPA 

granted reconsideration on several 

technical issues related to startup and 

shutdown—specifically, monitoring of 

mercury and PM during startup and 

shutdown and having an HCl limit of 

zero for kilns not equipped with CEMS 

(see 76 FR at 28325), but these issues are 

no longer relevant based on the 

approach adopted in this final rule. 

In the proposed reconsideration rule, 

the EPA proposed to retain the 

numerical standards, but to use 

recordkeeping rather than 

measurements to document compliance 

with the numerical standard. 77 FR 

42382–83. EPA further solicited 

comment ‘‘on whether the numeric 

standards during startup and shutdown 

should be amended to provide work 

practices’’, and suggested what potential 

work practices might be. Id. at 42383. 

Some commenters supported retention 

of numerical standards, stating that 

nothing in the record supports a 

decision by the EPA that numeric 

standards are not feasible to measure. 

However, these commenters provided 

no supporting technical data. We also 

received comments opposing numeric 

limits and supporting work practices in 

their stead. Commenters stated that any 

numeric limit should be based on actual 

data gathered during startup and 

shutdown, which the proposed limits 

are not, and that measurement of 

emissions during startup and shutdown 

poses significant technical problems, 

mainly based on CEMS calibration 

issues, and the duration of startups and 

shutdowns. 

Industry has presented information 

specific to the cement industry to the 

EPA on technical issues associated with 

cement kilns measuring PM, mercury, 

THC and HCl during periods of startup 

and shutdown. See docket item EPA– 

HQ–OAR–2011–0817–0237[1] and PCA 

Meeting 9–15–11 monitoring 

presentation in the docket for this 

rulemaking, as well as their public 

comments. EPA has continued to 

evaluate these data. In light of all of 

these public comments and further 

evaluation of the data, the EPA has 

decided to establish work practice 

standards in lieu of numeric standards 

during startup and shutdown periods. 

The EPA is doing so because the 

application of measurement 

methodology is not practicable for 

technological and economic reasons. 

See CAA section 112(h)(2)(B). 

The operation of kilns at cement 

manufacturing plants is different from 

many other sources. Kiln startups can 

last days, during which time fuels are 

switched and temperatures and 

moisture conditions fluctuate 

substantially. Also, cement kilns have 

two types of inputs—raw feed that is 

changed into clinker in the kiln, and 

kiln fuel. The cement kiln is sized to 

accommodate not just exhaust gas flow 

from combustion, but the gases evolved 

from the calcination of limestone and 

moisture that evaporates from the kiln 

feed. As a result of these factors, the 

difference in gas flow characteristics of 

a cement kiln during steady state 

operation and startup/shutdown is more 

pronounced than that for other 

combustion source categories. In 

addition, cement kilns begin 

introducing feed as part of the startup 

process which further exacerbates the 

transient and fluctuating nature of these 

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4The application of measurement methodology 

during cement kiln startup and shutdown would 

also not be ‘‘practicable due to * * * economic 

limitation’’ within the meaning of section 

112(h)(2)(B) since it would just result in cost 

expended to produce analytically suspect 

measurements. 

operations not only because of the 

impact of this feed on the exhaust gases, 

but because raw materials and fuels are 

introduced at opposite ends of the kiln, 

which results in countercurrent flow of 

the solid material in the kiln and kiln 

exhaust gas, increasing the turbulence, 

transience and fluctuating conditions. 

The result is that conditions change 

constantly when cement kilns are in 

startup or shutdown mode. These 

conditions make stack measurements, 

both manual and continuous, for this 

source category unreliable because the 

constant shifting in conditions prevents 

any stack measurement from being 

representative of anything but 

conditions at that precise moment. For 

that reason manual stack tests, which 

take place over a period of a few hours, 

would not be presenting accurate 

information, since they would not be 

reliably measuring conditions across the 

duration of the test. 

There is no way to craft a testing 

regime to compensate for these testing 

issues at each kiln in a manner that can 

produce reliable and replicable results. 

Such modifications would be specific to 

that individual startup event—i.e. ad 

hoc and therefore not of general 

applicability or utility in showing 

compliance. Continuous measurements 

conducted during these periods for 

cement kilns are also subject to 

inaccuracies resulting from these 

rapidly changing conditions. The 

temperature changes of greater than one 

thousand degrees Fahrenheit, flue gas 

moisture changes greater than 20 

percent, and gas flow changes over 

several thousand cubic feet per minute, 

as well as other factors such as flue gas 

molecular weight swings, combine to 

create a complex matrix of measurement 

variables not accounted for in a cement 

kiln CEMS installation. That is, CEMS 

for PM, HCl, Hg, and THC are not able 

to reliably accommodate all of these 

transient shifting variables when 

measuring cement kiln startup and 

shutdown emissions. As noted above, 

these issues are further exacerbated by 

the fact that cement kilns have multiple 

inputs (fuel and feed), and the clinker 

production process generates higher gas 

flows than would be expected based on 

just the fuel inputs. This fact also means 

that flue gas flow rates cannot be 

accurately calculated from fuel inputs 

alone. 

The EPA regards situations where a 

measurement may yield a value which 

is analytically suspect, which is the case 

for cement kilns during startup and 

shutdown for the reasons just described, 

as being a situation where measurement 

is not ‘‘technologically practicable’’ 

within the meaning of section 

112(h)(2)(B) of the Act. Unreliable 

measurements raise issues of 

practicability and of feasibility and 

enforceability (see section 112(h)(1)).4

The EPA is not finalizing its proposed 

approach of setting numerical emission 

limits for startup and shutdown and 

requiring that sources certify 

compliance with those limits by keeping 

certain records certifying that they used 

certain fuels and did not introduce feed 

into the kiln. Under the proposal, 

sources would have had to certify 

compliance with the standards for the 

various organics based on assumed 

combustion conditions. As pointed out 

persuasively in the public comments, 

combustion conditions during startup 

and shutdown are too widely varying to 

either reliably measure or calculate 

emissions because combustion 

conditions change widely during startup 

and shutdown, sources indicated that 

they could not certify compliance based 

on an assumed combustion condition. 

See docket item EPA–HQ–OAR–2011– 

0817–0506, p. 11 (‘‘Until ideal 

combustion conditions can be met in 

the combustion chamber (adequate 

temperature and turbulence), the 

combustion process will be incomplete. 

While this should not impact fuelderived hazardous air pollutants 

(chlorine and mercury), it will impact 

the emissions of organics and possibly 

PM’’). In light of the measurement 

issues noted above and the fact that 

sources could not certify compliance 

under the proposed approach, the EPA 

is not finalizing the proposed approach 

of setting numerical limits for startup 

and shutdown and allowing sources to 

certify compliance with the limits by 

maintaining certain records. 

Instead, for the reasons explained 

above, the EPA is establishing work 

practice standards to demonstrate 

compliance with startup and shutdown. 

The work practices that apply during 

startup and shutdown are as follows: 

• During startup the kiln must 

initially use any one or combination of 

the following clean fuels: Natural gas, 

synthetic natural gas, propane, distillate 

oil, synthesis gas, and ultra-low sulfur 

diesel until the kiln reaches a 

temperature of 1200 degrees Fahrenheit. 

• Combustion of the primary kiln fuel 

may commence once the kiln 

temperature reaches 1200 degrees 

Fahrenheit. 

• All air pollution control devices 

must be turned on and operating prior 

to combusting any fuel. 

• You must keep records as specified 

in § 63.1355 during periods of startup 

and shutdown. 

For the purpose of identifying when 

the kiln is in a startup/shutdown mode 

and subject to work practices and when 

the kiln is subject to numerical emission 

limits, we are defining the beginning 

and ending of startup and shutdown. At 

proposal we defined startup as when the 

kiln’s induced fan is turned on and 

shutdown was defined as beginning 

when feed to the kiln is halted. 

Commenters noted that a kiln may have 

the induced draft (ID) fan operating 

even when the kiln is completely 

shutdown, no fuel is being burned, and 

there is no potential for emissions. 

Therefore, we changed the startup 

definition to be when a shutdown kiln 

turns on the ID fan and begins firing fuel 

in the main burner, because this is the 

point where the potential for emissions 

to occur begins. Startup ends when feed 

is being continuously introduced into 

the kiln for at least 120 minutes or until 

the feed rate exceeds 60 percent of the 

kiln design limitation rate. We added 

the duration/load element to the 

definition of startup because during 

startup a kiln must begin adding feed 

material to achieve steady state 

operation. After feed is first introduced 

it requires up to two hours or sufficient 

feed to achieve 60 percent of maximum 

operation to achieve a representative 

steady-state condition. (See meeting 

notes, PCA November 28, 2012, in the 

docket for this rulemaking). Shutdown 

begins when continuous feed to the kiln 

is halted and ends when the kiln 

rotation ceases. 

We believe these work practices, 

which include the requirement that all 

air pollution control devices be 

operating, will ensure that emissions 

during startup and shutdown will be 

lower than the standards that apply 

during steady state operations, given use 

of cleaner fuels, minimal raw material 

inputs, and operation of all control 

devices during these periods. See 77 FR 

42382 (noting that emissions during 

startup and shutdown would be 

expected to be lower than during steady 

state operations for these reasons). 

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5One commenter inaccurately stated that the 

proposed rule would essentially double the PM 

standard. As just explained, the existing source 

floor (and standard) increased from 0.04 30-day 

average to 0.05 lb/ton clinker 30-day average as a 

result of removing CISWI kilns. As a not-to-exceed 

standard, that same level is expressed as 0.07 lb/ 

ton clinker, the higher level reflecting the greater 

variability involved when basing the standard on 

the average of the three test runs rather than on 30 

days of measurements. 

6The commenter cites no legislative history to 

support its reading, nor is EPA aware of any. 

7 It also makes no sense to use PM CEMS not 

subject to a uniform calibration protocol. The 

results obtained would not be comparable. 

V. Summary of Significant Comments 

and Responses 

A. Amendments to Existing Source and 

New Source Standards for PM Under 

CAA Sections 112(d) and 111(b) 

1. Changes to Level and Averaging Time 

of Existing Source NESHAP 

The EPA proposed to amend the 

existing and new source standards for 

PM. The floor for the existing source 

standards increased from 0.04 lb/ton 

clinker to 0.05 lb/ton clinker as a result 

of removing CISWI kilns from the 

database. See Section 8.3, Portland 

Cement Reconsideration Technical 

Support Document, June 15, 2012, 

Docket item EPA–HQ–OAR–2011– 

0817–0225; see also 77 FR 42372/3. 

Second, the EPA proposed to change the 

compliance regime for the standard 

from use of PM CEMS to stack testing, 

a consequence being that the standard 

would no longer be expressed as a 30- 

day average but rather as the average of 

three test runs. The EPA thus proposed 

to express the recalculated floor (i.e. 

0.05 lb/ton clinker 30-day average 

resulting from the reanalysis) as .07 lb/ 

ton of clinker (average of three test 

runs). The 0.07 lb/ton clinker standard 

expresses the recalculated floor (i.e. 0.05 

lb/ton clinker) as a not-to-exceed value 

based on stack testing, using the Upper 

Prediction Limit equation to do so. See 

Portland Cement Reconsideration 

Technical Support Document, June 15, 

2012, Docket item EPA–HQ–OAR– 

2011–0817–0225.5

The EPA further proposed to use 

CPMS for continuous parametric 

monitoring. This system responds to 

changes in PM concentration and 

generates a corresponding milliamp 

output signal. 77 FR 42376–77. The 

proposed PM parametric level was 

correlated to the highest recorded value 

during three test runs. A source would 

meet this site-specific level on a 30-day 

rolling average. Failure to meet this 30- 

day rolling average would result in 

retesting, and more than four deviations 

from the parametric level in a year 

would be presumed (subject to 

possibility of rebuttal by the source) to 

be a violation of the emission standard 

itself. See 77 FR 42377. 

Our proposal to change the 

compliance regime from use of CEMS to 

stack tests reflected technical issues 

related to a PM CEMS’ reliability with 

measuring the Portland cement PM 

standard. Specifically, the EPA 

discussed the reliability of 

measurements, obtained using PM 

CEMS calibrated as required by the 

mandated PS 11, below the level of the 

2010 standard or the level of the 

recalculated PM floor. See 77 FR 42374– 

76. The EPA’s judgment at proposal was 

that as a result of PM measurement 

uncertainties, ‘‘this correlation will not 

be technically or practically achievable 

for a significant number of cement kiln 

sources.’’ Id. at 42376. 

One commenter challenged the 

necessity of amending the standard to a 

stack test regime (apparently not 

realizing that the existing source 

standard also changed as a result of 

removing CISWI kilns from the 

database). First, the commenter 

maintained that the EPA has no 

authority to voluntarily change a 

promulgated MACT standard to make 

the standard less stringent, based on the 

language of section 112(d)(7). The 

commenter further maintained that the 

EPA had not definitively shown that PM 

CEMS calibrated pursuant to PS 11 

could not be used to reliably measure 

the Portland cement PM standard. 

Specifically, the commenter stated that 

the various problems identified by the 

EPA at proposal are amenable to 

resolution by testing longer and more 

often, and argued that the EPA 

essentially admitted as much at 

proposal. The commenter noted that 

other technical problems, like the 

difficulty of accounting for varied 

particle sizes, could be resolved by 

using a beta gauge CEMS. The 

commenter dismissed the EPA’s 

technical reservations on these issues as 

arbitrary speculation. The commenter 

also stated that PM CEMS are already in 

successful use by cement plants both in 

this country and overseas. The 

commenter further believed that the 

EPA could resolve these technical issues 

by amending the PM CEMS Performance 

Specification rather than by amending 

the averaging time of the PM standard 

and changing its compliance basis. 

In response, we note first that we do 

not accept the commenter’s legal 

argument based on section 112(d)(7). 

Section 112(d)(7) states that ‘‘[n]o other 

emission standard * * * under this 

section shall be interpreted, construed 

or applied to diminish or replace the 

requirements of a more stringent 

emission limitation or other applicable 

requirement established pursuant to 

section 111 of this title, part C or D of 

this subchapter, or other authority of 

this chapter or a standard issued under 

State authority.’’ Although the 

commenter maintained that this 

provision unambiguously bars the EPA 

from amending the promulgated 

NESHAP to make it less stringent, we 

disagree. Indeed, it is hard to read the 

statutory language in such a way. On its 

face, the provision indicates that a 

section 112(d) standard does not 

supplant more stringent standards 

issued under some authority other than 

section 112(d). Nor does the 

commenter’s interpretation make sense. 

It would bar the EPA from amending a 

section 112(d) standard that was 

technically deficient or incorrect. This 

cannot have been Congress’ intent when 

adopting the technology-based section 

112(d) MACT regime.6 Moreover, when 

Congress adopted anti-backsliding 

provisions in the CAA, it did so 

explicitly. See CAA sections 172(e); 

110(l); and 193. There is no such 

explicit language in section 112(d)(7). 

Thus, the EPA does not read section 

112(d)(7) as precluding amendments to 

MACT standards which result in 

numerically less stringent standards, 

provided of course, that such standards 

are technically justified and otherwise 

consistent with the requirements of the 

Act. 

The commenter is also mistaken in 

asserting that sources can simply utilize 

PM CEMS not correlated to PS 11. The 

PS 11 requirements apply to all PM 

CEMS used by a cement kiln. See 

sections 63.1349(b)(1)(A) and 1350 

(b)(1) from the 2010 final rule (75 FR 

55057, 55059).7

With regard to the technical issues 

raised by this commenter, the EPA 

explained in detail at proposal the 

problems of correlating PM CEMS under 

PS 11 at cement plants (see 77 FR 

42374–42377). These obstacles are not 

resolvable simply by measuring more 

often and longer, as the commenter 

maintains. Extending the duration of the 

Method 5 test gives this reference 

method additional opportunity to 

collect more sample mass, but this is no 

guarantee that the time added to the test 

will collect enough particulate mass to 

resolve detection issues, especially 

when testing is conducted at the better 

performing (lower emitting) sources. 

Longer test runs inherently increase the 

variability of the PM CEMS data 

collected during the test, which may 

cause further difficulties with the 

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correlation between instrument and 

reference method. Nor does conducting 

a higher number of reference method 

tests resolve the difficulties with PS 11 

correlation created by greater 

uncertainty in the reference method at 

low levels. Put another way, more tests 

with high uncertainty and poor 

correlation do not improve the 

likelihood of passing PS 11 as there is 

no expectation of improving the 

mathematical relationship between the 

reference test and the instrument. 

Furthermore, PS 11 section 8.6 requires 

a minimum number of fifteen tests to 

develop a correlation curve, with no 

limit to the maximum number. 

Considering more than 15 tests when 

developing the correlation creates much 

difficulty in developing a precise 

mathematical relationship. Sources are 

allowed to discard 5 runs for any reason 

they wish, but must present at least 15 

test runs for the correlation calculation. 

Id. As a source increases the number of 

test runs beyond 20, any additional runs 

must be included in the correlation 

equation and at that point the ability of 

a source to satisfy PS 11 becomes more 

hampered with every test run. 

The EPA noted that special problems 

are posed by the size and variability of 

cement kiln-generated particulate. The 

EPA also noted that the standard lightscintillation type of PM CEMS would 

likely encounter higher variability for 

the same PM concentration, and have 

difficulty satisfying correlation 

protocols as a result. The EPA noted 

that beta gauge CEMS could potentially 

resolve at least some issues related to 

cement particle variability but noted 

further that these devices were largely 

untested in the cement industry, and 

none (so far as the EPA is aware) has 

successfully completed a PS 11 

certification. See 77 FR 42375/3. The 

commenter maintains that the existence 

of beta gauge CEMS resolves all 

questions as to their reliability in the 

cement industry, but the EPA reiterates, 

as it did at proposal, that there needs to 

be some assurance of the reliability of 

that methodology to certify with PS 11 

at low levels (as required by this final 

rule). That information does not 

presently exist. The commenter states 

that the EPA is being speculative as to 

potential difficulties with a different 

CEMS technology, but relative to 

Portland cement sources, it would be 

speculative to assume that beta gauge 

CEMS would successfully pass a PS 11 

certification to reliably and quantifiably 

measure compliance with the NESHAP, 

especially at the very low PM levels at 

some of the sources in the cement 

source category. 

The commenter also maintains that 

Tapered Element Oscillating 

Microbalance (TEOM) devices could be 

used in place of light scintillation PM 

CEMS. A TEOM is a device that uses a 

very thin, tapered, element vibrating at 

a known frequency that has a first 

principle relationship to the 

measurement of mass. Particles that 

impact the element also impact the 

harmonic vibration of the sensor which 

can be translated to a measurement of 

the particle mass. This is a more direct 

approach to measuring the actual mass 

of PM in stack gas, and has shown 

promise to operate very consistently at 

low levels in laboratory conditions. 

Several TEOMs are currently used for 

monitoring ambient PM levels at several 

non-cement, non-domestic industry 

installations. TEOMs that are capable of 

measuring stack gas are not currently 

available for sale in the U.S., though this 

may change in future years. Even so, 

with a monitor capable of more direct 

mass measurement of PM in stack gas, 

using PS 11 to certify one against 

Method 5 may be problematic at low PM 

concentrations. The EPA currently has 

no data to assess TEOM capabilities 

versus Method 5 at very low PM 

concentrations such as those presented 

by the better performing sources in this 

category. Were TEOM instrumentation 

commercially available, the EPA would 

need to conduct a re-evaluation of PM 

CEMS technology that included TEOM 

data to determine if this instrument 

could overcome the challenges posed by 

calibration with Method 5 at the very 

low PM levels emitted by some of the 

sources in the cement source category. 

As just explained, it is not speculation, 

but rather legitimate engineering 

caution that makes it appropriate not to 

require compliance with a rule based on 

an untested measurement methodology. 

The commenter further maintains that 

rather than amend the standard to 

change the compliance test 

methodology and averaging time, the 

EPA should revise PS 11 instead, 

evidently assuming that a revision can 

be done rapidly. The commenter’s 

assumption is mistaken. Performance 

specification development is a process 

that takes multiple years and involves 

data collection on types of technologies, 

field testing, comparison to reference 

measurement methodology, workgroup 

and stakeholder meetings, peer review, 

rule proposal and public comment 

period, as well as comment response 

and final promulgation of the 

Performance Specification. With the 

development of PA 12A for Mercury 

CEMS, the EPA invested a budget in 

excess of one million dollars to conduct 

technology and field studies, as well as 

to refine the analytical techniques and 

work through stakeholder concerns 

prior to proposal of the Performance 

Specification. The process from 

inception to final promulgation took 

over 5 years to complete. PS 11, at issue 

here, was over 3 years in development, 

from concept to final promulgation, and 

involved a budget of $250,000. Based on 

this past history, it is likely to result in 

a delay of 3 years or more were the EPA 

to delay promulgation of this final rule 

until we could undertake the process to 

research, propose and finalize solutions 

to PS 11 that may ameliorate some of 

the issues vis-a-vis the cement industry 

now present. Furthermore, such a 

process would not address the issues 

relating to measurement uncertainties 

using Method 5 at low PM 

concentration levels near its detection 

limit (i.e. below its practical 

quantitation limit of 3 mg), and so there 

would remain significant technological 

hurdles to clear before the EPA could 

require the use of PM CEMS in respect 

to this final rule. 

The commenter points to PM CEMS 

use by European cement kilns. This is 

a misplaced comparison. The European 

calibration and certification of this 

instrumentation is completely different 

than PS 11 requirements developed by 

the EPA. European monitoring is 

certified in a laboratory environment, 

and calibrated on site by the instrument 

vendor when installed. The EPA has a 

long history of requiring CEMS 

installations in the USA to meet more 

rigorous calibration and performance 

specification certification through a 

series of comparisons to reference 

Method 5 test measurements conducted 

on the stack with the flue gas matrix at 

the facility, not in a controlled 

laboratory. For a PM CEMS, this would 

be a correlation developed with Method 

5 as described in PS 11. The two 

certification regimes differ greatly in 

approach and simply adapting European 

certification standards to USA facilities 

does nothing to mitigate this difference. 

In summary, the EPA has carefully 

considered the issue and it is our 

engineering judgment that the PS 11 

correlation will not be technically or 

practically achievable for a significant 

number of cement kiln sources. This is 

due to the combination of the low 

emissions concentrations, PM CEMS 

measurement uncertainty factors, the 

variability in composition of cement 

PM, and need for extraordinarily long 

test runs to reduce Method 5 

uncertainty to a level that provides 

normal measurement confidence (i.e. 

greater than the 3 mg practical 

quantitation level of Method 5), plus the 

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8Because the EPA believes that these same issues 

pertain to measurements of the section 111(b) new 

source performance standard for modified sources, 

and because further controls would be both costly 

and not cost effective (see section V.A.3 below), the 

EPA is adopting the same amendment for modified 

new sources under the NSPS. 

9For example, an opacity instrument uses a series 

of filters to calibrate the analyzer and produce a 

‘‘percent opacity’’ output. Twenty five percent 

opacity likely correlates to a milliamp value near 

eight milliamps, or 4 milliamps plus 25 percent of 

the difference between 4 and 20 milliamps (again, 

4 milliamps). Fifty percent opacity would represent 

a signal near 12 milliamps, and so on, with 20 

milliamps representing a signal of 100 percent 

opacity. 

compounding uncertainties associated 

with source operational variability. The 

EPA further recognizes that these 

problems in developing PS 11 

correlations are most likely to adversely 

affect the lowest emitting sources in the 

category and are more likely to result in 

violations of the rule more often for 

these sources than for sources operating 

with higher PM emissions. This result 

would obviously be environmentally 

counterproductive. We are therefore 

amending the standard to be based on 

stack testing, and expressing the 

standard as a not-to-exceed (i.e., stack 

test Method 5 or 5I) standard of 0.07 lb/ 

ton clinker.8

Additional responses regarding these 

issues, including responses to issues 

raised in the comments from industry, 

are found in sections 3 and 4 of the 

Response to Comment document, which 

is found in the docket for this 

rulemaking. 

2. Issues Related to Use of CPMS for 

Parametric Monitoring 

To document continuous compliance 

with the Method 5 standard (i.e., 

parametric monitoring designed to 

monitor proper operation of PM 

controls), the EPA proposed that PM be 

monitored continuously using a CPMS. 

See 77 FR 42376–77. The parametric 

limit was to reflect the highest of the 

three method 5 test runs from the stack 

test, and would be averaged over 30- 

days. The EPA further proposed 

corrective action requirements in the 

event of exceeding the 30-day rolling 

average parametric limit, and a 

rebuttable presumption that four such 

exceedances in a calendar year showed 

a violation of the emission standard 

itself. 

With respect to the use of CPMS 

technology, the EPA has recognized that 

PM CEMS technology cannot meet PS 

11 requirements in all Portland cement 

installations, yet the EPA has also 

recognized that PM CEMS sensors are 

more sensitive and better at detecting 

small differences in PM concentration 

than other technologies such as opacity 

monitors (http://www.epa.gov/ttn/emc/ 

cem/pmcemsknowfinalrep.pdf) In 

considering the use of PM CEMS at 

Portland cement facilities we find that 

while using PM CEMS technology for 

continuous quantitative measurement of 

PM concentration as correlated to 

Method 5 with PS 11 is frequently not 

achievable (as stated in the preceding 

subsection of this preamble), using the 

same technology for continuous 

qualitative measurement of PM 

emissions is practicable in every 

instance. Given the information we have 

that shows PM CEMS technology to be 

more sensitive to in-stack PM 

concentration differences than opacity 

monitors and nepheolmeters, the EPA 

sees a distinct advantage in using these 

technologies for continuous parametric 

PM monitoring, rather than measuring 

some other parameter. 

In using a PM CEMS as a CPMS to 

conduct continuous qualitative 

monitoring of PM concentration in the 

stack, we are not interested in specific 

output information from the instrument 

(e.g. lbs/ton clinker). We only need to 

know that PM concentration increases 

or decreases. The signal output from the 

instrument need not be correlated to PM 

concentration through PS 11 trials to 

achieve this, but rather we can accept 

the native signal output from the 

instrument, as is, in milliamps, and 

track that signal to determine trends in 

PM emissions. In this final rule we are 

requiring PM CPMS instruments to 

employ a 4–20 milliamp output, which 

is a standard electronic signal output 

common to many CEMS.9 With a PM 

CPMS the milliamp output would not 

represent an opacity value, but like an 

opacity analyzer, the milliamps would 

increase as PM concentration increases 

and decrease as PM concentration 

decreases. We can then monitor the 

milliamp signal while conducting a 

Method 5 performance test and correlate 

the average milliamp signal to the 

average PM concentration during the 

testing. This relationship is notably 

coarser in terms of understanding the 

precise PM concentration in the stack, 

but the instrument’s sensitivity to 

changing PM concentration in the stack, 

and its changing milliamp signal output, 

does not deteriorate and may still be 

employed to qualitatively monitor PM 

emissions. 

The EPA received numerous 

comments about our proposed PM 

CPMS parametric monitoring approach. 

Industry commenters maintained that 

sources would have to continually retest 

unnecessarily, since CPMS measure an 

increase in PM CPMS values. This 

increase in PM CPMS values would (or 

at least, could) denote a modest rise in 

PM emissions, but actual stack 

emissions of PM could still be well 

below the limit. The EPA recognizes 

this concern as creating additional 

burden for facilities exhibiting good 

control of their PM emissions (see 

section IV.A above), and, therefore, we 

have modified the process by which a 

source would establish and comply with 

their PM CPMS operating limit in this 

final rule. In doing so we considered 

scaling options for PM CPMS signals, as 

they correspond with PM emissions, 

that were proposed by industry but 

found the options presented were not 

protective enough of the emission 

standard. After extensive analysis (see 

S. Johnson, memo to docket number 

EPA–HQ–OAR–2011–0817, 

’’Establishing an Operating Limit for PM 

CPMS’’, November 2012), we are 

promulgating a scaling factor of 75 

percent of the emission limit as a 

benchmark. See section IV.A above. As 

in the proposed rule, every source will 

need to conduct an annual Method 5 

test to determine compliance with the 

PM emissions limit, and during this 

testing will also monitor their PM CPMS 

milliamp output. Sources which emit 

PM less than 75 percent of their 

emission limit will be able to scale their 

PM CPMS milliamp output to determine 

where their PM CPMS would intersect 

75 percent of their allowed PM 

emissions, and set their operating level 

at that milliamp output. This alleviates 

many re-testing concerns for sources 

that operate well below the emission 

limit and provides them with greater 

operational flexibility while still 

assuring continuous compliance with 

the PM stack emission standard. It also 

creates an incentive for sources to select 

high efficiency PM controls when 

sources are evaluating potential 

compliance strategies. 

For sources whose Method 5 

compliance tests place them at or above 

75 percent of the emission standard, 

their operating level will be the average 

PM CPMS milliamp output during the 

three Method 5 test runs. This means 

their operating level is the milliamp 

output that correlates to their PM 

compliance determination, and not the 

highest average 1 hour run value that 

was in the proposed rule. Now that we 

are adopting a scaling factor, we no 

longer believe that it is also appropriate 

to establish the parametric limit based 

on the highest of the three runs (which 

moreover, could reflect a level higher 

than the level of the standard). 

Moreover, as noted below, we believe 

that on balance the 30 days of averaged 

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10020 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

10 In the proposed rule, the EPA referred to a 

measurement higher than the parametric limit as a 

‘‘deviation’’ and proposed a definition of deviation. 

See 77 FR 42398. The EPA is not including this 

terminology in this final rule. The term ‘‘deviation’’ 

is not in the Portland cement NESHAP rules (which 

date back to 1998), and has not proved necessary 

in practice. More important, the rule itself states 

what the consequences of measurements which 

exceed a parametric limit are (i.e. retesting, and in 

some instances, a presumptive violation of the 

emission standard itself), so that no further general 

regulatory provision (i.e. a generalized definition of 

‘deviation’ or similar term) is necessary. 

CPMS measurements provides ample 

operating cushion. 

In a recent rule (76 FR 15736, March 

21, 2011), the EPA established 75 

percent of the limit as a number that 

allows for compliance flexibility and is 

simultaneously protective of the 

emission standard. In this final rule we 

are utilizing that value so as not to 

impose unintended and costly retest 

requirements for the lowest emitting 

sources and to provide for more cost 

effective, continuous, PM parametric 

monitoring across the Portland cement 

sector. This approach was selected from 

among many considered as it provides 

the greatest amount of flexibility while 

demonstrating continuous compliance 

for sources which are the lower emitters 

in the category and is also effective in 

holding higher emitters to the emission 

standard. With this parametric 

monitoring approach in place we expect 

sources to evaluate control options that 

provide excellent PM emissions control 

and provide them greater operational 

flexibility below the standard. 

One commenter maintained that the 

use of a CPMS for parametric 

monitoring would be ‘‘egregious’’ since 

the milliamp output of the CPMS 

allowed a source to select operational 

parameters of tangential relation to PM 

emissions and would therefore not 

provide useful information as to proper 

PM control. The commenter also stated 

that monitoring of opacity would be 

preferable. An industry commenter 

likewise requested that continuous 

opacity monitors or bag leak detectors 

be used rather than CPMS. 

The EPA does not agree with these 

comments. First, the milliamp output of 

the CPMS reliably and sensitively 

indicates increasing or decreasing PM 

concentration in the stack. Where PM 

controls are failing, the PM CPMS signal 

will indicate the increasing 

concentration of PM in the stack. A 

source will need to monitor the trend 

from the PM CPMS daily reading to 

maintain compliance with the 30-day 

emission standard. Indeed, the EPA has 

sufficient confidence that four 

exceedances of the CPMS continuous 

measurements is a presumptive 

violation of the emission standard itself. 

Moreover, the CPMS is considerably 

more sensitive than an opacity monitor 

or bag leak detector at detecting 

fluctuations in PM level. An opacity 

monitor determines the percent of a 

light signal that is occluded across the 

stack diameter. Opacity analyzers 

operate on a zero to 100 percent scale, 

meaning they are capable of registering 

PM that completely occludes the far 

stack wall from the instrument light 

source. This amount of PM is roughly 

equivalent to a complete failure of the 

emission control device. A properly 

operating control device will emit five 

percent opacity or less, which is barely 

visible to the naked eye and on the low 

end of the opacity monitor capability. 

PM emissions that increase opacity two 

percent at this level may well exceed 

the emission standard, yet they only 

mildly deflect the opacity monitor 

output. This same 2 percent opacity 

increase is capable of registering 

changes of several milliamps on a PM 

CPMS when operating on the scale 

provided in this final rule. With several 

decimal fractions available between 

each milliamp to track signal output, 

and three or four milliamps representing 

1 percent opacity, the PM CPMS has a 

clear advantage in low PM 

concentration measurement over 

continuous opacity monitoring systems. 

Regarding baghouse leak detectors, the 

EPA has no information that shows 

them operating on the same sensitivity 

level as PM CPMS technology, and we 

do not require baghouse leak detection 

systems on sources where PM CPMS are 

in use for this reason. 

Industry commenters objected to the 

proposal that 4 calendar year 

exceedances 10 from the parametric limit 

would be a presumptive violation of the 

emission standard. Again, the EPA does 

not agree. First, the EPA may 

permissibly establish such a 

presumption by rule, assuming there is 

a reasonable factual basis to do so. See 

Hazardous Waste Treatment Council v. 

EPA, 886 F. 2d 355, 367–68 (DC Cir. 

1989) explaining that such 

presumptions can legitimately establish 

the elements of the agency’s prima facie 

case in an enforcement action. Second, 

there is a reasonable basis here for the 

presumption that four exceedances (i.e. 

increases over the parametric operating 

limit) in a calendar year are a violation 

of the emission standard. The 

parametric monitoring limit is 

established as a 30-day average of the 

averaged test value in the performance 

test, or the 75th percentile value if that 

is higher. In either instance, the 30-day 

averaging feature provides significant 

leeway to the owner operator not to 

deviate from the parametric operating 

level since the 30 measurements will 

significantly dampen variability in the 

single measurement (average of three 

test runs) that produced the parametric 

value. See 77 FR 42377/2 and sources 

there cited. The EPA acknowledges that 

the difference was even greater between 

the parametric level and the emission 

standard in the proposed rule (which 

was based on the highest measured test 

run). The EPA believes that the 30-day 

averaging feature plus the 75-percent 

scaling feature for the lower emitting 

sources now provides a sufficient 

operating cushion. See 77 FR 42377. 

3. Existing Source Beyond the Floor 

Determination 

The EPA proposed to use the floor 

levels for PM as the standard, rejecting 

more stringent standards on the grounds 

of poor cost effectiveness (after 

considering non-air environmental 

impacts and energy implications of a 

more stringent standard as well). See 77 

FR 42376. One commenter argued that 

the EPA should adopt a beyond the floor 

standard for PM, maintaining that such 

a standard was justified under the 

factors set out in section 112 (d)(2). 

The EPA disagrees, and is not 

adopting a beyond the floor standard. 

After considering the cost of the 

emission reductions attributable to such 

a standard, and the associated non-air 

and energy impacts of such a standard, 

the EPA determines that the standard is 

not ‘‘achievable’’ within the meaning of 

section 112 (d)(2). Specifically, the EPA 

estimates that a beyond the floor 

standard set at the level of the original 

(2010 final rule) standard would only 

result in 138 tpy—nationwide—of PM 

reduction (a value not questioned by 

any of the commenters). See Final 

Portland Cement Reconsideration 

Technical Support Document, December 

20, 2012. We further estimate that the 

cost of achieving this modest 

incremental reduction would be 

approximately $37 million (the 

estimated cost savings attributable to the 

amended PM standard (including 

savings attributable to ancillary PM 

controls related to collection of PM from 

the control of Hg, THC, and HCl). See 

Final Portland Cement Reconsideration 

Technical Support Document, December 

20, 2012, included in the rule docket, 

EPA–HQ–OAR–2011–0817. These total 

costs are high compared to the small 

nationwide emission reductions, and 

the cost effectiveness of these 

reductions is correspondingly high: 

approximately $268,000 per ton of PM 

removed. This is significantly higher 

cost effectiveness for PM than the EPA 

has accepted in other NESHAP 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10021 

11The commenter’s argument that section 112 

(d)(2)’s requirement that the EPA consider ‘‘the cost 

of achieving such emission reduction’’ limits the 

EPA to considerations of economic achievability, 

and not cost effectiveness, is misplaced. See 

Husqvarna AB v. EPA, 254 F. 3d 195, 200 (DC Cir. 

2001) (cost effectiveness properly considered in 

evaluating cost of compliance under CAA section 

213, a technology-based provision similar to section 

112 (d)(2)). The commenter’s further argument that 

the requirement in section 112 (d)(2) for standards 

to result in ‘‘the maximum degree of reduction in 

emissions of hazardous air pollutants * * * 

achievable’’ considering cost and other factors 

constrains the EPA’s ability to consider costeffectiveness or otherwise balance the statutory 

factors has likewise been rejected. See Sierra Club 

v. EPA, 325 F. 3d 374, 378 (DC Cir. 2003) (the EPA 

was left with great discretion in determining how 

to balance such factors when considering 

technology-based standards which are to result in 

maximum reductions achievable). 

standards. See 76 FR 15704 (March 21, 

2011) (rejecting $48,501 per ton of PM 

as not cost effective for PM emitted by 

CISWI energy recovery units); see also 

72 FR 53814, 53826 (Sept. 20, 2007) 

(proposing (and later accepting) cost 

effectiveness of $10,000 per ton for PM 

as reasonable in determining Generally 

Available Control Technology, and 

noting that the EPA had viewed cost 

effectiveness only as high as 

approximately $31,000 per ton as 

reasonable under its Title II program for 

mobile sources). A beyond the floor 

standard at the level of the 2010 

standard would also involve slightly 

higher energy use, although this is not 

a major factor in EPA’s decision. EPA is 

therefore not adopting a beyond the 

floor standard for PM at the level of the 

2010 standard. A standard even more 

stringent would likewise not be 

justified. See 76 FR 54988.11

4. New Source PM Standard Under 

Section 112(d)(3) 

One commenter challenged the 

methodology the EPA used in the 2010 

rulemaking to establish the new source 

floor and standard, maintaining that for 

new plants, the EPA’s floors must reflect 

the emission level achieved by the 

single best performing kiln in the 

category, not the best performing kiln 

for which the EPA happens to have 

emissions information. See section 

112(d)(3). The EPA did not reopen the 

methodology by which new source 

floors for this industry are determined. 

See 77 FR 42373 n. 3 (‘‘The EPA will 

not consider comments challenging the 

data and methodology for the new 

source standards since these are 

unchanged from the 2010 rule and the 

EPA is not reexamining any of these 

issues.’’) In any case, if the issue is 

(against the EPA’s view) deemed to be 

reopened, CAA section 112(d)(3) 

indicates that new source floors are to 

be based on ‘‘the emission control that 

is achieved in practice by the best 

controlled similar source, as determined 

by the Administrator’’ (emphasis 

supplied). This language affords 

considerable discretion for the agency to 

base the NESHAP new source floors on 

performance of sources for which the 

agency has emissions information. 

B. Mercury Standard 

The EPA explained at proposal that 

reanalysis of the mercury floor, after 

removing CISWI kilns, resulted in a 

floor of 58 lb/MM tons clinker 

produced—slightly higher than the 

previously calculated floor and standard 

of 55 lb/MM tons clinker produced. The 

EPA further proposed to adopt 55 

lb/MM tons clinker produced as a 

beyond-the-floor standard. See 77 FR 

42373. The new source standard was 

unchanged since the standard was based 

on the performance of the best 

performing similar source. 

The EPA is adopting the standards as 

proposed. One commenter challenged 

the appropriateness of adopting a 

beyond-the-floor standard, not for the 

industry as a whole, but for itself. As to 

this individual plant (Ash Grove, 

Durkee), the commenter maintained that 

the cost of attaining the three additional 

lb/MM ton clinker produced reduction 

(i.e., the difference between 58 and 55 

lb/MM tons clinker produced) was 

greater than the EPA estimated because 

it would require more than just 

additional carbon in an activated carbon 

injection system to achieve the 

incremental difference. According to the 

commenter, they have performed 

extensive testing and the addition of 

activated carbon per million actual 

cubic feet per minute of exhaust gas has 

little or no impact on mercury 

emissions. The commenter states that 

for plants such as Ash Grove’s Durkee 

plant, there is no known add-on control 

technology at this time that will assure 

achievement of the standard on a 

continuous basis. 

We note first that the commenter is 

somewhat over-estimating the 

incremental reduction of mercury 

actually needed. To achieve the 

emission standard, sources will need to 

operate their processes and controls so 

that they can achieve the average 

emissions level used in setting the 

existing source limit of 55 lb/MM ton— 

the so-called design level. See e.g. 77 FR 

42389/3 (estimating emissions 

attributable to this final rule based on 

design levels); see also discussion of 

design values in section VI.B below. 

That level is 31.7 lb/MM ton for the 

standard of 55 lb/MM ton. See 75 FR 

54976/3. The average for the 58 lb/MM 

ton is 34.1 lb/MM ton. The additional 

reduction needed is therefore 2.4 lb/MM 

tons, not 3 lb/MM tons as stated by the 

commenter. 

As the EPA has acknowledged 

repeatedly, due to the high levels of 

mercury in their limestone, mercury 

emissions from the Ash Grove Durkee 

plant are not typical of other plants in 

the industry. See, e.g. 75 FR 54978–79. 

As a result, this plant faces a 

particularly great challenge in meeting 

the mercury standard, whether the 

standard is 55 or 58 lb/MM tons. 

Because of their unique situation, we do 

not believe that the difficulties this 

facility is having in meeting the mercury 

standards can be generalized to the rest 

of the industry. Section 112(d)(2) of the 

Act posits an industry-wide standard. 

Having said this, our cost analysis 

conducted for the 2009 proposal and 

2010 final rule assumed that this plant 

would have to install multiple control 

systems in order to meet the limit for 

mercury. See Docket item EPA–HQ– 

OAR–2002–0051–3438. Therefore, if in 

this particular case the activated carbon 

injection (ACI) system cannot achieve 

the small additional reductions 

required, then the facility has other 

mercury control options available such 

as further dust shuttling, or treating 

cement kiln dust to remove mercury. 

Dust shuttling entails moving dust from 

within the kiln to other parts of the 

process and is considered a closed loop 

process, thereby not causing any waste 

impacts. In addition, any costs 

associated with dust shuttling have 

already been accounted for in the cost 

estimates the EPA has developed for 

this particular facility. 

The commenter alluded to control 

performance data that it shared with the 

EPA. We note that the commenter has 

provided pilot scale data as part of the 

2010 rulemaking (see Docket item EPA– 

HQ–OAR–2002–0051–2073), but has not 

provided data on the effects of 

increasing carbon injection on mercury 

emissions for a full scale facility. We 

note that in the electric utility industry, 

where there is significantly more 

experience with ACI, it is well 

established that higher carbon injection 

rates increase mercury removal 

(Sjostrom, S.; Durham, M.; Bustard, J. 

Martin, C.; ‘‘Activated Carbon Injection 

for Mercury Control: Overview’’, FUEL, 

89, 6, 1320 (2010)). There is no data to 

indicate that ACI systems in the cement 

industry would behave differently than 

those in the utility industry. Given the 

lack of data on the efficacy of increasing 

carbon injection rates on mercury 

removal for full scale cement 

operations, we cannot conclude that 

increasing carbon injection is not a 

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10022 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

reasonable approach for increasing 

mercury removal efficiency. 

C. Standards for Fugitive Emissions 

From Open Clinker Storage Piles 

The EPA proposed that cement kilns 

control fugitive emissions from open 

clinker storage piles, defined at proposal 

as ‘‘any clinker storage pile that is not 

completely enclosed in a building or 

structure’’. These piles would be 

controlled through the use of work 

practices which minimized emissions 

by means of (among others) partial 

enclosure, damping down the pile by 

chemical or physical means or shielding 

piles from wind. These work practices 

were drawn from permits for existing 

cement kilns, and every cement kiln 

appears to already be utilizing some 

type of work practice to minimize 

fugitive emissions from open clinker 

storage piles. See 77 FR 42378. Cement 

kiln sources were allowed to select from 

among the specified work practices and 

choose those most suitable for its 

operations. 

For both new and existing sources, 

the NESHAP is amended to require that 

one or more of the control measures 

identified in the rule be used to 

minimize fugitive dust emissions from 

open clinker storage piles. The work 

practices would apply to open clinker 

storage piles regardless of the quantity 

of clinker or the length of time that the 

clinker pile is in existence. 

In addition, the owner or operator 

must include as part of their operations 

and maintenance plan (required in 

§ 63.1347) the location of their open 

clinker storage piles and the fugitive 

dust control measures as specified in 

this rule that will be implemented to 

control fugitive dust emissions from 

open clinker piles. We agree with 

comments received that the list of 

allowed work practices reflects all of the 

available practices documented in 

cement kiln facility operating permits to 

control clinker storage pile fugitive 

emissions. The size, type and duration 

of a clinker pile may warrant different 

types of work practices. The final rule 

requires that one or more of a variety of 

work practices need to be employed, 

recognizing that the source will use the 

work practices that will be effective for 

the particular piles. Thus, the EPA has 

revised the list of work practices to be 

consistent with those listed in the 

proposal preamble. These are: Use of 

partial enclosures, using a water spray 

or fogging system, applying appropriate 

dust suppression agents, using a wind 

barrier and using a tarp. Commenters 

also requested that the EPA allow other 

work practices if approved by the 

delegated authority. Our regulations 

already provide procedures for sources 

to seek approval of alternative work 

practices. See section 112(h)(3) as 

implemented by 40 CFR 63.8(f). 

Several industry commenters stated 

that the definition of clinker pile is 

problematic as proposed because it was 

not limited by size or duration. 

Commenters note that it is not 

uncommon for small amounts of clinker 

to be dropped, or to fall off a frontloader onto the ground when being 

moved from a kiln to a storage location 

or from such a location to the grinding 

mill. Because these are small amounts of 

clinker, it is also not uncommon that 

these small quantities of clinker will 

remain where they were dropped and 

may not be picked up or removed until 

the necessary manpower becomes 

available; in some cases this could be 

multiple days. Another industry 

commenter noted that because of the 

short-term duration of temporary clinker 

stockpiles, the use of work practices 

similar to those proposed for clinker 

storage piles is not feasible. The 

industry trade association suggested the 

following definition: ‘‘Open clinker 

storage pile means an outdoor, 

unenclosed accumulation of clinker on 

the ground, which contains in excess of 

50,000 tons of clinker, and is utilized for 

a continuous period in excess of 180 

days.’’ Under this suggested approach, 

only a clinker storage pile meeting this 

definition would be subject to the work 

practice standards. 

We are not adopting this approach. 

We believe that the potential to emit 

may be different at different sites for a 

variety of reasons such as weather and 

traffic conditions. Nor did the 

commenter provide information 

indicating that open clinker storage 

piles of less than 50,000 tons or stored 

for less than 180 days are unlikely to 

produce fugitive emissions. Indeed, as a 

result of weather, traffic or other 

conditions, smaller piles stored for 

shorter periods have the evident 

potential to emit substantial levels of 

fugitive emissions. Nor is any such 

uniformly applicable distinction based 

on duration evident. Clinker piles can 

be temporary but be replaced by a new 

pile at the same (or nearby) location a 

few days later, with no essential 

difference in fugitive emissions. 

Nonetheless, we believe that the 

commenter is correct that spills are 

unavoidable, and that work practices 

designed for non-temporary piles cannot 

feasibly be applied in such 

circumstances. The commenter is also 

correct that work practices used for nontemporary piles would be misapplied to 

temporary piles attributable to cleaning 

storage structures. For these reasons, the 

definition of ‘‘open storage pile’’ 

excludes these types of piles. 

Specifically, the definition of open 

clinker storage pile does not include 

temporary piles of clinker that are the 

result of accidental spillage or 

temporary use of outdoor storage while 

clinker storage buildings are being 

cleaned. This final rule defines 

‘‘temporary’’ to mean piles that remain 

in place for 3 days or less from their 

generation (3 days accommodating 

weekend scheduling). This is sufficient 

time to either pick these spills up (the 

applicable work practice for these spills) 

or to cover them to prevent fugitive 

emissions. 

These final amendments will result in 

a cost savings to the industry as 

compared to the 2010 rule. As a result 

of requiring work practices instead of 

enclosures, we estimate that there will 

be a savings of $8.25 million annually. 

See Final Portland Cement 

Reconsideration Technical Support 

Document, December 20, 2012, in this 

rulemaking docket. 

D. September 9, 2015, Compliance Date 

for the Amended Existing Source 

Standards 

The EPA proposed to establish 

September 9, 2015, as the compliance 

date for the amended existing source 

NESHAP standards. The basic reason for 

the proposed compliance date was that 

the proposed change in the PM standard 

made possible different compliance 

alternatives for all of the stack emission 

standards, and that it could legitimately 

take two years from the original 

compliance date to implement these 

new compliance strategies. See 77 FR 

42385–87. Further, the amended 

compliance date would apply to all of 

the stack emission standards due to the 

interrelatedness of the standards: the 

mercury, THC and HCl standards all 

typically involve some element of PM 

generation and capture and so the 

controls must be integrated with PM 

control strategies. Id. at 42386. 

The record for this final rule supports 

the need for the September 9, 2015 

compliance date. With respect to PM 

control, as the EPA explained at 

proposal, plants now have the option of 

retaining electrostatic precipitators 

(ESP) with modification or downstream 

polishing baghouses, rather than 

replacing ESP with baghouses. Plants 

may also size baghouses differently 

(with or without incorporation of 

upstream or downstream polishing 

elements). The various types of sorbent 

injection strategies to control organics, 

mercury and HCl, are affected by the PM 

limits (and vice versa). Based on the 

facts of this record for this source 

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12For competitiveness reasons, kilns in this 

survey are identified by letter. The survey results 

are consistent with the EPA’s engineering 

understanding and judgment, and the EPA has no 

reason to dispute the overall survey results 

(although some details may be open to question). 13These examples were chosen at random by the 

EPA from the survey information provided in the 

comment. 

category, the type, size and 

aggressiveness of the controls for these 

HAP, as well as the PM controls, are not 

only interdependent but can all change 

as a result of the amended PM standard. 

In addition, the amended alternative 

oHAP standard affords additional 

compliance alternatives for control of 

non-dioxin organic HAP, including 

alternatives to use of Residual Thermal 

Oxidizers. See generally, Final Portland 

Cement Reconsideration Technical 

Support Document, section 3.1, 

December 2012, in the docket for this 

rulemaking. 

Determining, developing, installing, 

testing and otherwise implementing a 

different comprehensive HAP control 

regime takes time. Specifically, plants 

will need to conduct engineering 

studies, determine the most costeffective control strategy, seek contract 

bids, purchase equipment, install and 

test the new equipment. Below is an 

estimate of a timeline for a cement kiln 

to undertake these steps. 

TIME NEEDED TO PREPARE FOR COMPLIANCE

[Docket item EPA–HQ–OAR–2011–0817–0505–A1] 

Steps in preparing for compliance Time period 

New engineering study ................................................................................................................................................... January–April 2013. 

Selection of technology providers .................................................................................................................................. April–August 2013. 

Technology procurement ................................................................................................................................................ August–December 2013. 

Detailed technology design and final engineering ......................................................................................................... January–June 2014. 

Equipment fabrication and permitting ............................................................................................................................. June–December 2014. 

Construction and tying into existing operation ............................................................................................................... January–May 2015. 

Technology commissioning ............................................................................................................................................ June–August 2015. 

One commenter, sharply opposing 

any change in compliance date, 

maintained that all of this reasoning is 

hypothetical and that such a 

consequential extension could not 

legitimately rest on speculation. The 

EPA disagrees that this analysis is 

speculative. First, the EPA’s engineering 

judgment is that the changes in the PM 

standard and alternative oHAP 

standard, open up different compliance 

alternatives from those under the 2010 

rule. The EPA has indicated what those 

alternatives can be, and the time needed 

to determine, purchase, install and test 

them. Comments from the affected 

industry are consistent with the EPA’s 

engineering judgment as to the type of 

different compliance approaches now 

available for existing sources. 

The EPA’s engineering determinations 

as to the time needed for cement kilns 

to implement a different multi-HAP 

control strategy here are moreover 

consistent with the agency’s longstanding analysis (i.e. analysis not 

specific to the cement industry) of the 

time needed to install multipollutant 

control systems. See US EPA, 

Engineering and Economic Factors 

Affecting the Installation of Control 

Technologies for Multipollutant 

Strategies, EPA–600/R–02/073, October 

2002) (cited at 77 FR 42386). Therefore, 

the EPA estimated that it is normal for 

the development and implementation of 

new compliance measures to take 

between 15–27 months for single 

control systems, and longer for systems 

involving multiple controls for HAP and 

criteria pollutants, as is the case here. 

The record to this rule also contains 

a survey of 92 of the 97 domestic 

cement kilns currently in operation. 

These survey results document, on a 

kiln by kiln basis, alternative 

engineering strategies now available to 

these kilns as a result of the amended 

PM standard and also documents the 

time each kiln estimates would be 

needed to carry out these new 

compliance strategies. See Comments of 

PCA, Appendix D (EPA–HQ–OAR– 

2011–0817–0505). For example, kiln 

B12 has the option of modifying its ESP 

system using a hybrid ESP/baghouse 

filter system, or of using a cyclone 

upstream of the ESP. Steps needed to 

implement these possibilities include 

main stack evaluation, cooler stack 

testing, and evaluation, vendor/ 

contractor selection, final design, 

equipment procurement and fabrication, 

startup and commissioning, and 

demonstrating compliance. The plant 

has already commenced some of these 

steps, but provides reasonable time 

estimates for why it would take until 

September 2015 to complete them. Kiln 

Q 13 expects to be able to retain its ESP 

system (whereas it could not under the 

2010 final rule), but needs to resize its 

dust conveying system, upgrade the 

ESP, and utilize a larger activated 

carbon injection system differently from 

planned (since an ESP will not capture 

mercury as would a baghouse). Steps 

involved in developing and 

implementing a system include 

reviewing the structural integrity of the 

existing ESP, obtaining proposals on 

ESP upgrades, relocating an existing 

stack adjacent to the existing ESP, 

complete stack design, order equipment 

for ESP upgrades, order a new stack, 

contract construction, perform 

necessary construction, modify the ESP 

as needed, evaluate CEMS performance 

and conduct stack testing and make any 

adjustments to the integrated control 

system. Again, reasonable timelines for 

carrying out these steps are provided. 

Neither the EPA nor the industry has 

said definitively what each kiln will do 

and how long it will take. Until the 

standards are finalized, no such 

definitive pronouncement is possible. 

However, the record is quite specific 

that additional control strategies are 

now possible; what the range of those 

new control strategies are; that the 

strategies are interrelated so that the 

standards for PM, organics, mercury and 

HCl are all implicated; and the time 

needed to carry out the various 

strategies. Thus, the commenter is 

mistaken that the record regarding the 

need for a compliance date of 

September 2015 is merely conjectural. 

The EPA solicited comment on the 

possibility of a shorter extension for the 

stack emission standards, noting that by 

virtue of the 2010 final rule, the 

industry was not starting from scratch 

but could already undertake compliance 

steps. See 77 FR 42386/3. The survey 

results referred to above confirm that 

this is the case, since a number of plants 

(to their credit) indicated that they have 

taken preliminary steps toward 

compliance such as conducting stack 

testing, and testing various control 

strategies (e.g., survey results for kilns 

A, F and G). Nonetheless, many 

commenters made the evident point that 

this preliminary work could only go so 

far when there was uncertainty about 

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10024 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

14Sierra Club maintains that because the 

revisions to the PM standard leave that standard 

nearly as stringent as the 2010 standard, all that has 

effectively changed is the standard’s averaging time. 

Sierra Club likens this situation to the amendments 

to ancillary provisions like reporting at issue in 

Plywood MACT. This is incorrect. First, as 

explained in section V.A. above, the standard did 

increase numerically as a result of removing 

commercial incinerators from the database. 

Portland Cement Reconsideration Technical 

Support Document, June 15, 2012, Docket item 

EPA–HQ–OAR–2011–0817–0225. Second, although 

the amended PM standard is relatively as stringent 

as the 2010 standard (75 FR 54988/2 and 77 FR 

42389/3), it nonetheless affords different 

compliance options for all of the standards, as 

explained above and in further detail in the 

Response to Comment document. The standard 

allows flexibility for those days when emissions 

increase as a result of normal operating variability, 

without significantly affecting the long-term average 

performance for PM and affords different 

compliance opportunities as a result. Nor does the 

commenter consider the amendment to the 

alternative oHAP standard, which amendment 

likewise affords new compliance opportunities. 

15 In a variant of this argument, Sierra Club 

maintains that in a situation where the compliance 

date for an initial existing source MACT standard 

has not yet passed and the EPA amended that 

standard to make it more stringent, the EPA would 

nonetheless leave the predecessor less stringent 

standard in place and require compliance with it. 

Although this situation has not arisen, the EPA 

would presumably be governed by the same 

principle noted by the PCA court: is the technology 

basis for the standard changing in such a way as 

to require more time for compliance and in a way 

that negates the compliance strategy of the initial 

rule. (Of course, if the compliance date of a 

standard has already occurred and a standard is 

later amended, that compliance date would not 

change retroactively.) 

16Sierra Club maintains that PCA is 

distinguishable because it involved a standard 

which the EPA was compelled to change. First, the 

comment is factually mistaken. The EPA had 

granted reconsideration of the clinker pile 

standards but had not indicated that the standards 

would be amended. See 76 FR 28325/1 (May 17, 

2011). Nor did the court indicate that the pile 

standards must change. Rather, ‘‘[b]ecause EPA will 

now be receiving comments for the first time, the 

standards could likely change substantially.’’ 655 F. 

3d at 189 (emphasis supplied). Thus, the court 

effectively reset the compliance date because of a 

potential future change in the rule which could 

result in a compliance regime which differed from 

that in the 2010 final rule. This is directly parallel 

to the situation now presented by the amended PM 

and alternative oHAP standards. 

17An example is the startup and shutdown 

standard for HCl in the 2010 final rule. The EPA 

established this standard as zero on the mistaken 

assumption that no chlorine could be present in the 

kiln during there periods. See 76 FR 28325 

(granting consideration on this basis). The 

commenter’s approach would leave this technically 

infeasible standard and its compliance date in place 

without recourse. 

the final standard and uncertainty 

around which standard would 

determine their final control strategy. 

Moreover, even those plants which had 

begun preliminary compliance steps 

indicated (with specific timelines 

provided) that the remaining work 

would legitimately stretch through the 

summer of 2015. 

This same record refutes those 

comments maintaining that an even 

longer compliance extension is needed. 

Not only is this inconsistent with the 

EPA’s own estimates, but the industry 

survey results document that no further 

time is needed. See CAA section 

112(i)(3)(A) (compliance with CAA 

section 112(d) standards to be as 

expeditious as practicable). Therefore, 

the EPA is revising the compliance date 

for existing sources for PM, THC, HCl, 

and Hg to be September 9, 2015. 

However, the EPA is establishing 

February 12, 2014, as the compliance 

date for the standards for existing open 

clinker piles. These standards are not 

inter-related to the stack emission 

standards, and so need not be on the 

same timeline. The work practices we 

are adopting as the standards reflect 

practices already in place throughout 

the entire industry. The time needed to 

come into compliance consequently is 

to establish a reporting and 

recordkeeping apparatus, and in some 

instances to obtain approval (after 

appropriate demonstration) to use work 

practices not enumerated in the 

standard. The EPA estimates that these 

various steps should not exceed twelve 

months. Since section 112(i)(3)(A) 

requires compliance to be as 

expeditious as practicable, the EPA is 

establishing a 12 month compliance 

period for these standards. 

A compliance date for an amended 

standard must still be ‘‘as expeditiou[s] 

as practicable’’ and not more than 3 

years. We believe a compliance 

extension is appropriate where, as here, 

for the stack emission standards, the 

amended result in a compliance regime 

differs from the initial rule and 

additional time is needed to develop, 

install, and implement the controls 

needed to meet the amended standard. 

The EPA has shown that to be the case 

here, as explained above. 

The Sierra Club in its comments also 

argued that the EPA could not change 

the 2013 compliance date in the 2010 

final rule as a matter of law. The 

commenter rests this argument on CAA 

sections 112(d)(7) and 112(i)(3)(A). We 

have responded above to the argument 

based on section 112(d)(7). Section 

112(d)(7) simply is not an antibacksliding provision (or, at the least, 

does not have to be interpreted that 

way). 

CAA Section 112(i)(3)(A) states in 

relevant part: 

‘‘[a]fter the effective date of any 

emissions standard, limitation or 

regulation * * * the Administrator 

shall establish a compliance date or 

dates for each category or subcategory of 

existing sources, which shall provide for 

compliance as expeditiously as 

practicable, but in no event later than 3 

years after the effective date of such 

standard’’. 

In NRDC v. EPA (Plywood MACT), 

489 F. 3d 1364, 1373–74 (D.C. Cir. 2007) 

the court held that ‘‘only the effective 

date of Section 112 emissions standards 

matters when determining the 

maximum compliance date.’’ 489 F. 3d 

at 1373 (emphasis original). The EPA, 

therefore, lacked authority to extend the 

compliance date when it was only 

adjusting reporting terms. Id. at 1374. 

The opinion implies, however, that the 

EPA may reset the compliance date 

when the EPA amends the actual 

standard, as here. If the statute provided 

an absolute bar on the EPA extending an 

effective date, there was no reason for 

the court to distinguish the situation 

where the EPA amends some ancillary 

feature of the rule from the situation 

where the EPA amends the actual 

standard.14

The reason it makes sense for the EPA 

to have the authority to reestablish a 

compliance date when it amends a 

MACT standard is evident. In a 

technology-based regime like section 

112(d), if the technology basis of the 

standard changes with a change of the 

standard, it takes time to adopt the 

revised controls. This result fits the 

statutory text. 

Where the EPA has amended an 

existing source MACT standard, the 

compliance date for that amended 

standard must be as expeditious as 

practicable, and no later than 3 years 

from its effective date. Sierra Club 

argues that the original standard (the 

one that has been amended) must 

nonetheless take effect, but that 

standard no longer exists. It has been 

amended. Moreover, the result of Sierra 

Club’s approach would force sources to 

install one technology and rip it out in 

short order to install another. Congress 

cannot have mandated this result. See 

PCA v. EPA, 655 F. 3d at 189 (staying 

NESHAP standards for clinker piles— 

that is, effectively extending their 

compliance date—because ‘‘the 

standards could likely change 

substantially. Thus, industry should not 

have to build expensive new 

containment structures until the 

standard is finally determined.’’) 15 16

Moreover, in the extreme case where the 

initial standard was outright technically 

infeasible by any source (and was 

amended by the EPA to correct this 

defect), Sierra Club’s reading would 

leave sources with literally no legitimate 

compliance option.17 Technology-based 

standards simply do not work this way. 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10025 

E. Eligibility To Be a New Source Under 

NESHAP 

CAA section 112(a)(4) states that a 

new source is a stationary source if ‘‘the 

construction or reconstruction of which 

is commenced after the Administrator 

first proposes regulations under this 

section establishing an emissions 

standard applicable to such source.’’ As 

we explained previously, there is some 

ambiguity in the language ‘‘first 

proposes’’ and such language could 

refer to different dates in different 

circumstances, such as the first time the 

Agency proposes any standards for the 

source category, the first time the 

Agency proposes standards under a 

particular rulemaking record for the 

source category, or the first time the 

Agency proposes a particular standard. 

In the proposed reconsideration rule, 

the EPA proposed to retain May 6, 2009, 

as the date which determines new 

source eligibility and solicited comment 

on this issue. Industry commenters 

stated that we should change the date 

for determining new source status from 

May 9, 2009 to July 18, 2012, the date 

of the proposed reconsideration rule. In 

support, they asserted that they will not 

know what the final standards are until 

we finalize the reconsideration rule. We 

disagree with the commenters’ 

suggestion and are retaining the May 6, 

2009 date as the date that determines 

whether a source is a new source under 

CAA section 112(a)(4). 

As we explained at proposal, it is 

reasonable to retain the May 6, 2009 

date as the date the Agency ‘‘first 

proposed’’ standards for this source 

category. This is the date that EPA first 

proposed these standards under this 

particular rulemaking record. Today’s 

action is a reconsideration action, and 

although it revises the particulate matter 

new source standard, it is premised on 

the same general rulemaking record. It 

is thus reasonable to view the date EPA 

‘‘first proposes’’ standards to be the May 

2009 date. Further, industry 

commenters essentially advocate an 

approach whereby any time the Agency 

changes a new source standard, in any 

way, on reconsideration, the new source 

trigger date would change. Such a result 

is not consistent with Congress’ intent 

in defining the term ‘‘new source’’ in 

section 112(a)(4), to be the date the 

Agency ‘‘first proposes’’ standards. 

Furthermore, EPA notes that the new 

source standards finalized today are 

ones that will be met, in our view, using 

the same or similar control technologies 

as would be used to meet the standards 

issued in May 2010, and commenters 

have not disputed this conclusion. See 

77 FR 42387. 

VI. Summary of Cost, Environmental, 

Energy and Economic Impacts 

A. What are the affected sources? 

As noted in the proposed rule, the 

EPA estimates that by 2013 there will be 

100 Portland cement manufacturing 

facilities located in the U.S. and Puerto 

Rico that are expected to be affected by 

this final rule, and that approximately 5 

of those facilities are new greenfield 

facilities. All these facilities will operate 

156 cement kilns and associated clinker 

coolers. Of these kilns, 23 are CISWI 

kilns. These have been removed from 

our data set used to establish existing 

source floors. Based on capacity 

expansion data provided by the PCA, by 

2013 there will be 16 kilns and their 

associated clinker coolers subject to 

NESHAP new source emission limits for 

PM, mercury, HCl and THC, and 7 kilns 

and clinker coolers subject to the 

amended NSPS for nitrogen oxide and 

SO2. Some of these new kilns will be 

built at existing facilities and some at 

new greenfield facilities. 

B. How did the EPA evaluate the 

impacts of these amendments? 

For these final amendments, we 

determined whether additional control 

measures, work practices and 

monitoring requirements would be 

required by cement manufacturing 

facilities to comply with the amended 

rules, incremental to the 2010 final 

standards (since any other comparison 

would result in double counting). For 

any additional control measure, work 

practice or monitoring requirement we 

determined the associated capital and 

annualized cost that would be incurred 

by facilities required to implement the 

measures. Finally, we considered the 

extent to which any facility in the 

industry would find it necessary to 

implement any of the additional 

measures in order to comply with these 

final amendments. Using this approach, 

we assessed potential impacts from the 

proposed revisions. 

These final amendments to the 2010 

rule are expected to result in lower costs 

for the Portland cement industry. The 

final amendment to the PM standard 

affords alternative, less costly 

compliance opportunities for existing 

sources. See section V.D above. These 

could be utilizing existing PM control 

devices rather than replacing them (for 

example, retaining an ESP or a smaller 

baghouse), or supplementing existing 

PM control rather than replacing it 

(putting polishing controls ahead of the 

primary PM control device, for 

instance). Compliance strategies for the 

other HAP, all of which involve some 

element of PM control, also may be 

affected. Cost savings from these 

alternatives could be significant. There 

are also potential cost savings associated 

with the amended oHAP alternative 

standard (which now may be a viable 

compliance alternative for some sources 

since issues of reliable analytic 

measurement have been resolved). 

Following proposal, industry submitted 

kiln specific information on likely 

changes in compliance strategy resulting 

from the proposed amendments so that 

we are now better able to estimate 

potential savings resulting from the final 

amendments. Based on an industry 

survey of 18 Portland cement facilities 

(20 kilns) after proposal (see Docket 

item EPA–HQ–OAR–2011–0817–0505, 

Appendix D), it appears that the 

amendments may have the following 

effects, which may result in savings in 

capital and annual costs associated with 

implementing control technologies for 

these pollutants: 

• Regenerative thermal oxidizers 

(RTO) may not need to be installed due 

to the amended oHAP alternative. 

• Carbon injection rates may be 

lowered or not required for THC control. 

• Existing PM controls (ESP and 

baghouse) may not need to be replaced, 

but may instead be upgraded. 

• Additional PM controls may not 

have to be implemented. 

• Polishing and hybrid filter 

configurations may be implemented 

instead of total replacements. 

There are also certain costs, and cost 

savings, associated with other 

provisions of the final amendments. 

There may be a difference in costs of 

stack testing for PM and use of a CPMS, 

rather than use of a PM CEMS. In 

addition, there are cost savings when 

changing from a PM CEMS compliance 

demonstration to a CPMS 

demonstration. For example as part of 

the PS 11 calibration requirements, a 

minimum of 15 Method 5 test runs are 

required to develop a correlation curve, 

with no limit to the maximum number 

of test runs. Omitting the need for these 

multiple test runs will save the facility 

a minimum of $20,000 per kiln (each 

Method 5 test costs $5,000). At a savings 

of $20,000 per kiln, nationwide savings 

for 133 new and existing kilns, would 

be $2.7 million per year. However, the 

CPMS is the same type of device as a 

PM CEMS, so the capital cost of the 

CPMS would not be significantly 

different than the CEMS device. 

The final revisions to the alternative 

organic HAP standard (from 9 ppm to 12 

ppm, reflecting the analytic method 

practical quantitation limit) would 

allow more sources to select this 

compliance alternative and demonstrate 

compliance without needing to install 

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10026 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

very expensive and energy-intensive 

RTO. In addition, providing parametric 

monitoring flexibilities (not present in 

the 2010 final rule) will provide lower 

costs for the better-performing sources 

in the industry. See section IV.B above. 

We have quantified these savings (see 

Final Portland Cement Reconsideration 

Technical Support Document, December 

20, 2012, Section 3). 

The revisions to the standard for open 

clinker storage piles codify current 

fugitive dust control measures already 

required by most states, so no impacts 

are expected. These final standards 

would be significantly less expensive 

than the controls for open piles in the 

2010 final rule, which required 

enclosures in all instances. We estimate 

that the savings to industry over the 

2010 rule will be $8.25 million 

annually. See Final Portland Cement 

Reconsideration Technical Support 

Document, December 20, 2012, in this 

rulemaking docket. 

We have estimated the additional 

industry cost associated with the 

affirmative defense to civil penalties 

provisions. We estimate the additional 

cost is $3,258 per year for the entire 

industry. See Supporting Statement in 

the docket. 

One of the final revisions would allow 

sources that control HCl with dry 

scrubbers to use periodic performance 

testing and parametric monitoring rather 

than monitoring compliance with an 

HCl CEMS. This will provide those 

sources with additional flexibility in 

complying with the HCl standard. 

The revision to the alternative PM 

emissions limit provisions merely 

recognizes that sources other than the 

clinker cooler may combine their 

exhaust with the kiln exhaust gas and 

corrects the equation for calculating the 

alternative limit. Therefore, there 

should be no impacts from this revision. 

The amendments provide for work 

practices rather than numerical 

standards during periods of startup and 

shutdown. The work practice standards 

reflect common industry practices, so 

there should be no costs associated with 

them. There should also be substantial 

savings associated with the work 

practices. 

At an annual cost of about $51,000 

per year ($22,800 per Method 30B test 

for mercury + $8,000 per year for 

Method 25A test for THC + $20,000 per 

year for Method 321 test for HCl), the 

final revisions for new testing and 

monitoring of coal mills that use kiln 

exhaust gases to dry coal and exhaust 

through a separate stack are not 

expected to have significant impacts. 

The revisions would make existing 

kilns that undergo a modification, as 

defined by NSPS, subject to a PM 

standard of 0.07 lb/ton clinker, 3-run 

average. There may be less costly 

compliance alternatives under the 

amended standard, similar to 

alternatives available under the 

amended existing source NESHAP for 

PM. 

C. What are the air quality impacts? 

In these final amendments, emission 

limits for mercury, THC and HCl are 

unchanged from the 2010 rule. Thus, 

there is no change in emissions from the 

2010 rule for these HAP and HAP 

surrogates. The alternative HAP organic 

standard is being amended to 12 ppm, 

which is the analytic method practical 

quantitation limit based on the 

performance test method detection limit 

of 4 ppm. The impact on emission levels 

due to this change is not clear since 

measuring below the quantitation limit 

does not yield a value with enough 

certainty to represent the actual level. 

Thus, a measurement below 12 ppm 

could very well actually be 12 ppm or 

something less. For PM, the limit for 

existing sources changes from 0.04 lb/ 

ton clinker 30-day average to 0.07 lb/ton 

clinker based on stack testing. The PM 

limit for new sources also changed: To 

0.02 lb/ton clinker stack test from 0.01 

lb/ton clinker 30-day average. The final 

changes in the PM standards, while not 

significant in absolute terms, may result 

in a small increase in total nationwide 

emissions by allowing slightly more 

variability, although, as noted at 

proposal, we estimate that design values 

will be essentially identical under the 

2010 and this final standard. 77 FR 

42389. As explained in the impacts 

analysis for the 2010 rule (see Docket 

item EPA–HQ–OAR–2002–0051–3438), 

emission reductions were estimated by 

comparing baseline emissions to the 

long-term average emissions of the 

MACT floor kilns. As a practical matter, 

plants operate to comply with this lower 

average emissions level (the so-called 

design level), rather than the emissions 

limit, so that on those days where there 

is normal operating variability they do 

not exceed the emissions limit. See 77 

FR 42386–87. Under the 2010 rule, the 

average PM emissions from the existing 

floor kilns were 0.02296 lb/ton clinker. 

Under the amended standard, the 

average PM emissions of the existing 

floor kilns is calculated to be 0.02655 

lb/ton clinker although, as noted, this 

difference is less than the normal 

analytic variability in PM measurement 

methods and so must be viewed as 

directional rather than precisely 

quantitative. The average emissions for 

new kilns did not change as we believe 

new sources will have to adopt identical 

control strategies as under the 

promulgated standards. We, therefore, 

are not estimating an emission increase 

from new kilns. For existing kilns, with 

an increase in PM emissions under this 

final rule of 0.00359 lb/ton clinker 

compared to the 2010 rule, nationwide 

emissions of PM would increase by 138 

tons per year (0.00359 × 76,664,662/ 

2000). Thus, the EPA estimates that the 

main effect of this final rule for PM will 

be to provide flexibility for those days 

when emissions increase as a result of 

normal operating variability, but would 

not significantly alter long-term average 

performance for PM. Nonetheless, as 

explained in section V.D above, this 

change does allow for changes in 

compliance strategies in the form of 

types, sizes and sequencing of treatment 

trains. 

Emission reductions under the 2010 

rule and this final rule, in 2015, are 

compared in Table 4. 

TABLE 4—COMPARISON OF NATIONWIDE PM EMISSIONS FROM 2010 RULE TO FINAL RULE IN 2015 

Kiln type 2010 rule Final rule Increment 

Emissions limit (lb/ton clinker .............................. Existing ......................... 0.04 ..............................

(30-day average with a 

CEMS).

0.07 ..............................

(3-run stack test) 

NA 

MACT average emissions for compliance (lb/ton 

clinker.

Existing ......................... 0.02296 ........................ 0.02655 ........................ 0.00359 

2010 baseline emissions (CISWI kilns removed) 

(tons/yr).

....................................... 11,433 .......................... 11,433 .......................... NA 

Nationwide emissions reduction (tons/yr) ........... Total ............................. 10,540 .......................... 10,402 .......................... ¥138 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10027 

18Although dust shuttling is likely to be one 

element of mercury compliance strategy, the 

amount of dust shuttling would not increase 

incremental to the 2010 final rule since the 

standards for new and existing sources are the same 

in the 2010 final rule and these amendments. 

Moreover, as explained in section V.B above, even 

with respect to the high mercury feed source, dust 

shuttling entails moving dust from within the kiln 

to other parts of the process and is considered a 

closed loop process, thereby not causing any waste 

impacts. 

One commenter noted that the 

compliance extension will result in two 

additional years of HAP emissions at 

pre-standard levels, noting especially 

the emission of PM, noting further that 

fine PM (PM2.5) is causally associated 

with mortality and serious morbidity 

effects at a population level. See, e.g., 77 

FR 38909 (June 29, 2012). We note first 

that these rules are technology-based, 

not risk-based, and that there are 

compelling reasons to amend the PM 

standard and to establish new 

compliance dates for existing sources as 

a result of technological limitations with 

the 2010 rule PM standard, and the new 

compliance opportunities afforded as a 

result of the amendment to that 

standard. See section V.D above. We 

also question the commenter’s premise 

that all of the predicted emission 

reductions and benefits would accrue if 

the existing source CEM-based PM 

standards took effect in September 2013. 

As explained at length in section V.A 

above and in other comment responses, 

PM CEMS would not reliably measure 

the level of the PM standard in many 

instances. One cannot assume the full 

range of emission reductions (and 

consequent health benefits) would 

accrue in the real world if the emission 

measurements themselves are uncertain. 

Thus, in a meaningful sense, today’s 

amendments result in a regime where 

the required emission reductions will be 

reliably measured, so that the rule’s 

health benefits will reliably occur. 

D. What are the water quality impacts? 

At proposal, we believed that none of 

the amendments being proposed would 

have significant impacts on water 

quality and that to the extent that the 

revision affecting dry caustic scrubbers 

encourages their use, some reduction in 

water consumption may occur although 

we had no information upon which to 

base a quantified estimate. We received 

no comments questioning this 

assessment. Further, in reviewing the 

industry survey information on the 

impacts of the proposed changes, only 

1 of the 20 kilns for which information 

was provided was considering the 

addition of a wet scrubber, although it 

was also evaluating a dry scrubber (see 

docket item EPA–HQ–OAR–2011–0817– 

0505, Appendix D, kiln S). Therefore, 

we continue to believe that these final 

amendments will not significantly 

impact water quality. 

E. What are the solid waste impacts? 

None of the amendments being 

finalized with this final rule are 

expected to have any solid waste 

impacts.18

F. What are the secondary impacts? 

Indirect or secondary air quality 

impacts include impacts that will result 

from the increased electricity usage 

associated with the operation of control 

devices as well as water quality and 

solid waste impacts (which were just 

discussed) that will occur as a result of 

these amendments. Because we are 

finalizing revisions that slightly reduce 

the stringency of the existing source 

emission limits for PM from the 

promulgated 2010 limits, we project that 

some facilities will alter their strategy 

for complying with the standards for the 

four pollutants to achieve compliance at 

a lower cost than possible under the 

original standard. The survey results 

discussed in section V.D above confirm 

the EPA’s engineering judgment. Other 

facilities in the survey that were not 

able to meet the THC limit or the 

alternative organic HAP limit in the 

2010 rule were considering the 

installation of RTO. Because some of 

these facilities may now meet the limit 

without the installation of an RTO, we 

have estimated a reduction of 24,702 

tons per year less CO2 emissions being 

emitted to the atmosphere (equivalent to 

2 less RTO’s being installed). As a result 

of the organic HAP limit being revised 

from 9 ppm to 12 ppm, these sources 

responded that they now had other less 

costly alternatives. The additional 

compliance time was also cited as a 

factor that would gives sources the 

additional time they needed to consider 

other HAP control alternatives to RTO. 

As the industry survey highlights, these 

types of determinations will be made for 

each facility based on site-specific 

characteristics such as process type, 

equipment age, existing air pollution 

controls, raw material and fuel 

characteristics, economic factors and 

others. In general, this survey indicates 

that the combination of the revised 

limits for PM and organic HAP as well 

as the September 2015 compliance date 

will give sources the opportunity to 

develop less costly and less aggressive 

compliance strategies. We do not have 

enough information to quantify the 

impact of overall secondary impacts, 

(with the exception of the CO2

reductions noted above), but we believe 

the impacts would in fact be reduced 

relative to the 2010 rule since less 

energy is expected to be needed for 

facilities that can retain and upgrade 

their current controls, instead of for 

example, installing additional controls 

in series. 

G. What are the energy impacts? 

As discussed in the preceding section, 

because of the final revisions to the PM 

emission limits, the organic HAP limits 

and the compliance date extension, 

some facilities will develop more cost 

effective and less energy intensive 

compliance strategies. For three of the 

facilities (five kilns) that were part of 

the industry survey, all five kilns 

required significant changes to meet the 

2010 THC standard, in part because they 

were not pursuing the alternative 

organic HAP alternative standard due to 

analytic measurement uncertainties. See 

docket item EPA–HQ–OAR–2011–0817– 

0505, Appendix D (kilns A, C and D, 

and F and G). Prior to the proposed 

revisions, all five of the kilns were 

considering RTO as a control option as 

well as other options including catalytic 

ceramic filtration, a relatively new 

technology and as yet, not completely 

demonstrated technology for the cement 

industry. In response to the survey of 

what changes, if any, the facilities 

would make in response to the proposed 

revisions, all three facilities indicated 

that the amended organic HAP limit or 

the September 2015 compliance date 

allowed them to consider the use of less 

capital intensive alternatives and to 

continue testing alternatives for THC 

reduction other than the highly energyintensive RTO for the five kilns 

involved. Although we cannot 

accurately predict for the entire industry 

the extent to which these site-specific 

compliance strategies may affect energy 

demands, the industry survey results 

indicate a trend toward less energy 

intensive strategies than RTO, and as 

noted above, we predict a reduction in 

CO2 emissions due to less energy use as 

a result of two fewer kilns installing 

RTOs. 

H. What are the cost impacts? 

Under the cost scenario discussed 

above, we estimate that there could be 

savings of approximately $52 million 

associated with alternative compliance 

strategies for meeting amended PM 

standards, making corresponding 

adjustments in compliance strategies for 

the organic HAP and requiring work 

practice for open clinker storage piles. 

Table 5 summarizes the costs and 

emissions reductions of this final action. 

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10028 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

19U.S. Environmental Protection Agency (U.S. 

EPA). 2009. Integrated Science Assessment for 

Particulate Matter (Final Report). EPA–600–R–08– 

139F. National Center for Environmental 

Assessment-RTP Division. Available on the Internet 

at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?

deid=216546. 

20U.S. Environmental Protection Agency (U.S. 

EPA). 2011. Regulatory Impact Analysis for the 

Federal Implementation Plans to Reduce Interstate 

Transport of Fine Particulate Matter and Ozone in 

27 States; Correction of SIP Approvals for 22 States. 

Office of Air and Radiation, Research Triangle Park, 

NC. Available on the Internet at http:// 

www.epa.gov/airtransport/pdfs/FinalRIA.pdf. 

21Agency for Toxic Substances and Disease 

Registry (ATSDR). Medical Management Guidelines 

for Hydrogen Chloride. Atlanta, GA: U.S. 

Department of Health and Human Services. 

Available online at http://www.atsdr.cdc.gov/mmg/ 

mmg.asp?id=758&tid=147#bookmark02. 

22U.S. Environmental Protection Agency (U.S. 

EPA). 1995. Integrated Risk Information System File 

of Hydrogen Chloride. Research and Development, 

National Center for Environmental Assessment, 

Washington, DC. This material is available 

electronically at http://www.epa.gov/iris/subst/ 

0396.htm. 

TABLE 5—SUMMARY OF THE COSTS AND EMISSION REDUCTIONS OF THE FINAL AMENDMENTS TO THE PORTLAND CEMENT

MANUFACTURING INDUSTRY NESHAP RELATIVE TO THE 2010 RULE abcde

Proposed amendment Annualized cost 

PM emissions 

reduction 

2010 rule 

PM emissions 

reduction 

2012 rule 

Emission 

change tpy 

Revised PM, oHAP standard ..................... ($42.2 million)f ........................................... 10,540 tons ...... 10,402 tons ...... 138 increase. 

Replace PM CEMS with PM CPMS .......... ($2.7 million) ............................................... 0.

Coal Mill Testing ........................................ $1.3 million ................................................. 0.

Open clinker storage pile work practices ... ($8.25 million) ............................................. 0.

Total .................................................... ($51.85 million).

aParentheses indicate cost savings. All costs are in 2005 dollars. 

bWe also estimate that there will be a one-time cost of $25,000 for each facility to revise their operation and maintenance plan to include procedures to minimize emissions during periods of startup and shutdown. cEmissions reductions are the total once full compliance is achieved in 2015. 

dFull compliance costs will not occur until September 9, 2015. 

e Note emission reductions published in the 2010 rule included CISWI kilns, but the reductions in this table reflect reductions since CISWI kilns 

were removed from the database. f Includes cost savings due to revised PM standard. 

The cost information in Table 5 is in 

2005 dollars at a discount rate of 7 

percent. The EPA did not have 

sufficient information to quantify the 

overall change in benefits or impacts in 

emissions for 2013 to 2015. 

With regard to the coal mill 

monitoring requirements in this action, 

sources with integral coal mills that 

exhaust through a separate exhaust 

would potentially incur a capital cost of 

$36,000 to install a continuous flow 

meter. The annualized cost of a flow 

meter is $11,000. Because this final rule 

allows the use of maximum design flow 

rate instead of installing flow meters, we 

believe that most facilities will take 

advantage of this and will not incur 

these costs. Annual testing at these coal 

mills for mercury, THC and HCl will 

cost about $51,000 ($22,800 per Method 

30B test for mercury + $8,000 per year 

for Method 25A test for THC + $20,000 

per year for Method 321 test for HCl). 

Using information supplied by the 

industry (see docket item EPA–HQ– 

OAR–2011–0817–0612), approximately 

26 facilities would be affected by these 

requirements for an annual cost of $1.3 

million. Costs for coal mills to meet the 

PM limits for this NESHAP are not 

included, since all equipment and 

monitoring are in place to meet 

requirements of Subpart Y and thus are 

not considered additional costs. 

With the final change to PM CPMS 

instead of CEMS, it is estimated that the 

elimination of the PS correlation tests 

will result in a savings of $20,000 per 

kiln. 

I. What are the health effects of these 

pollutants? 

In this section, we provide a 

qualitative description of benefits 

associated with reducing exposure to 

PM2.5, HCl and mercury. Controls 

installed to reduce HAP would also 

reduce ambient concentrations of PM2.5

as a co-benefit. Reducing exposure to 

PM2.5 is associated with significant 

human health benefits, including 

avoiding mortality and morbidity from 

cardiovascular and respiratory illnesses. 

Researchers have associated PM2.5

exposure with adverse health effects in 

numerous toxicological, clinical and 

epidemiological studies (U.S. EPA, 

2009).19 When adequate data and 

resources are available and a regulatory 

impact analysis (RIA) is required, the 

EPA generally quantifies several health 

effects associated with exposure to 

PM2.5 (e.g., U.S. EPA, 2011).20 These 

health effects include premature 

mortality for adults and infants, 

cardiovascular morbidities such as heart 

attacks, hospital admissions and 

respiratory morbidities such as asthma 

attacks, acute and chronic bronchitis, 

hospital and emergency department 

visits, work loss days, restricted activity 

days and respiratory symptoms. 

Although the EPA has not quantified 

certain outcomes including adverse 

effects on birth weight, pre-term births, 

pulmonary function and other 

cardiovascular and respiratory effects, 

the scientific literature suggests that 

exposure to PM2.5 is also associated with 

these impacts (U.S. EPA, 2009). PM2.5

also increases light extinction, which is 

an important aspect of visibility (U.S. 

EPA, 2009). 

HCl is a corrosive gas that can cause 

irritation of the mucous membranes of 

the nose, throat and respiratory tract. 

Brief exposure to 35 ppm causes throat 

irritation, and levels of 50 to 100 ppm 

are barely tolerable for 1 hour.21 The 

greatest impact is on the upper 

respiratory tract; exposure to high 

concentrations can rapidly lead to 

swelling and spasm of the throat and 

suffocation. Most seriously exposed 

persons have immediate onset of rapid 

breathing, blue coloring of the skin and 

narrowing of the bronchioles. Exposure 

to HCl can lead to RADS, a chemicallyor irritant-induced type of asthma. 

Children may be more vulnerable to 

corrosive agents than adults because of 

the relatively smaller diameter of their 

airways. Children may also be more 

vulnerable to gas exposure because of 

increased minute ventilation per 

kilograms and failure to evacuate an 

area promptly when exposed. HCl has 

not been classified for carcinogenic 

effects.22

Mercury in the environment is 

transformed into a more toxic form, 

methylmercury (MeHg). Because 

mercury is a persistent pollutant, MeHg 

accumulates in the food chain, 

especially the tissue of fish. When 

people consume these fish, they 

consume MeHg. In 2000, the National 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10029 

23National Research Council (NRC). 2000. 

Toxicological Effects of Methylmercury. 

Washington, DC: National Academies Press. 

24U.S. Environmental Protection Agency (U.S. 

EPA). 1997. Mercury Study Report to Congress, 

EPA–HQ–OAR–2009–0234–3054. December. 

Available on the Internet at http://www.epa.gov/hg/ 

report.htm. 

25Amorim, M.I.M., D. Mergler, M.O. Bahia, H. 

Dubeau, D. Miranda, J. Lebel, R.R. Burbano, and M. 

Lucotte. 2000. Cytogenetic damage related to low 

levels of methyl mercury contamination in the 

Brazilian Amazon. An. Acad. Bras. Science. 72(4): 

497–507. 

26Agency for Toxic Substances and Disease 

Registry (ATSDR). 1999. Toxicological Profile for 

Mercury. U.S. Department of Health and Human 

Services, Public Health Service, Atlanta, GA. 

27U.S. Environmental Protection Agency (EPA). 

2002. Integrated Risk Information System (IRIS) on 

Methylmercury. National Center for Environmental 

Assessment. Office of Research and Development. 

Available online at http://www.epa.gov/iris/subst/ 

0073.htm. 

28 International Agency for Research on Cancer 

(IARC). 1994. IARC Monographs on the Evaluation 

of Carcinogenic Risks to Humans and their 

Supplements: Beryllium, Cadmium, Mercury, and 

Exposures in the Glass Manufacturing Industry. 

Vol. 58. Jalili, H.A., and A.H. Abbasi. 1961. 

Poisoning by ethyl mercury toluene sulphonanilide. 

Br. J. Indust. Med. 18(Oct.):303–308 (as cited in 

NRC 2000). 

Academy of Science (NAS) Study was 

issued which provides a thorough 

review of the effects of MeHg on human 

health (National Research Council 

(NRC), 2000).23 Many of the peerreviewed articles cited in this section 

are publications originally cited in the 

MeHg Study. In addition, the EPA has 

conducted literature searches to obtain 

other related and more recent 

publications to complement the material 

summarized by the NRC in 2000. 

In its review of the literature, the NAS 

found neurodevelopmental effects to be 

the most sensitive and best documented 

endpoints and appropriate for 

establishing an oral reference dose (RfD) 

(NRC, 2000); in particular NAS 

supported the use of results from 

neurobehavioral or neuropsychological 

tests. The NAS report noted that studies 

in animals reported sensory effects as 

well as effects on brain development 

and memory functions and support the 

conclusions based on epidemiology 

studies. The NAS noted that their 

recommended endpoints for an RfD are 

associated with the ability of children to 

learn and to succeed in school. They 

concluded the following: ‘‘The 

population at highest risk is the 

children of women who consumed large 

amounts of fish and seafood during 

pregnancy. The committee concludes 

that the risk to that population is likely 

to be sufficient to result in an increase 

in the number of children who have to 

struggle to keep up in school.’’ 

The NAS summarized data on 

cardiovascular effects available up to 

2000. Based on these and other studies, 

the NRC concluded that ‘‘Although the 

data base is not as extensive for 

cardiovascular effects as it is for other 

end points (i.e. neurologic effects) the 

cardiovascular system appears to be a 

target for MeHg toxicity in humans and 

animals.’’ The NRC also stated that 

‘‘additional studies are needed to better 

characterize the effect of methylmercury 

exposure on blood pressure and 

cardiovascular function at various stages 

of life.’’ 

Additional cardiovascular studies 

have been published since 2000. The 

EPA did not to develop a quantitative 

dose-response assessment for 

cardiovascular effects associated with 

MeHg exposures, as there is no 

consensus among scientists on the doseresponse functions for these effects. In 

addition, there is inconsistency among 

available studies as to the association 

between MeHg exposure and various 

cardiovascular system effects. The 

pharmacokinetics of some of the 

exposure measures (such as toenail 

mercury levels) are not well understood. 

The studies have not yet received the 

review and scrutiny of the more wellestablished neurotoxicity data base. 

The Mercury Study 24 noted that 

MeHg is not a potent mutagen but is 

capable of causing chromosomal 

damage in a number of experimental 

systems. The NAS concluded that 

evidence that human exposure to MeHg 

caused genetic damage is inconclusive; 

they note that some earlier studies 

showing chromosomal damage in 

lymphocytes may not have controlled 

sufficiently for potential confounders. 

One study of adults living in the 

Tapajo ́ s River region in Brazil (Amorim 

et al., 2000) reported a direct 

relationship between MeHg 

concentration in hair and DNA damage 

in lymphocytes; as well as effects on 

chromosomes.25 Long-term MeHg 

exposures in this population were 

believed to occur through consumption 

of fish, suggesting that genotoxic effects 

(largely chromosomal aberrations) may 

result from dietary, chronic MeHg 

exposures similar to and above those 

seen in the Faroes and Seychelles 

populations. 

Although exposure to some forms of 

mercury can result in a decrease in 

immune activity or an autoimmune 

response (ATSDR, 1999), evidence for 

immunotoxic effects of MeHg is limited 

(NRC, 2000).26

Based on limited human and animal 

data, MeHg is classified as a ‘‘possible’’ 

human carcinogen by the International 

Agency for Research on Cancer (IARC, 

1994) and in Integrated Risk Information 

System (IRIS) (U.S. EPA, 2002).27 28 The 

existing evidence supporting the 

possibility of carcinogenic effects in 

humans from low-dose chronic 

exposures is tenuous. Multiple human 

epidemiological studies have found no 

significant association between mercury 

exposure and overall cancer incidence, 

although a few studies have shown an 

association between mercury exposure 

and specific types of cancer incidence 

(e.g., acute leukemia and liver cancer) 

(NRC, 2000). 

There is also some evidence of 

reproductive and renal toxicity in 

humans from MeHg exposure. However, 

overall, human data regarding 

reproductive, renal and hematological 

toxicity from MeHg are very limited and 

are based on either studies of the two 

high-dose poisoning episodes in Iraq 

and Japan or animal data, rather than 

epidemiological studies of chronic 

exposures at the levels of interest in this 

analysis. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

3821, January 21, 2011) and any changes 

made in response to OMB 

recommendations have been 

documented in the docket for this 

action. An RIA was prepared for the 

September 2010 final rule and can be 

found at: http://www.epa.gov/ttn/ecas/ 

regdata/RIAs/ 

portlandcementfinalria.pdf. http:// 

www.epa.gov/ttn/ecas/regdata/RIAs/ 

portlandcementfinalria.pdf. 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the OMB 

under the Paperwork Reduction Act, 44 

U.S.C. 3501, et seq. 

The Information Collection Request 

(ICR) document prepared by the EPA 

has been assigned the EPA ICR number 

1801.11 for the NESHAP; there are no 

additional recordkeeping and reporting 

requirements for the NSPS. The 

information requirements are based on 

notification, recordkeeping and 

reporting requirements in the NESHAP 

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10030 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

General Provisions (40 CFR part 63, 

subpart A), which are mandatory for all 

operators subject to national emissions 

standards. These recordkeeping and 

reporting requirements are specifically 

authorized by CAA section 114 (42 

U.S.C. 7414). All information submitted 

to the EPA pursuant to the 

recordkeeping and reporting 

requirements for which a claim of 

confidentiality is made is safeguarded 

according to agency policies set forth in 

40 CFR part 2, subpart B. 

We are finalizing new paperwork 

requirements for the Portland Cement 

Manufacturing source category in the 

form of a requirement to incorporate 

work practices for periods of startup and 

shutdown and fugitive dust control 

measures for clinker piles into their 

existing operations and maintenance 

plan. 

This final rule also includes new 

paperwork requirements for 

recordkeeping of malfunctions, as 

described in 40 CFR 63.454(g) 

(conducted in support of the affirmative 

defense provisions, as described in 40 

CFR 63.456). 

When a malfunction occurs, sources 

must report the event according to the 

applicable reporting requirements of 40 

CFR part 63, subpart LLL. An 

affirmative defense to civil penalties for 

violations of emission limits that are 

caused by malfunctions is available to a 

source if it can demonstrate that certain 

criteria and requirements are satisfied. 

The criteria ensure that the affirmative 

defense is available only where the 

event that causes a violation of the 

emission limit meets the narrow 

definition of malfunction in 40 CFR 63.2 

(sudden, infrequent, not reasonable 

preventable and not caused by poor 

maintenance and or careless operation) 

and where the source took necessary 

actions to minimize emissions. In 

addition, the source must meet certain 

notification and reporting requirements. 

For example, the source must prepare a 

written root cause analysis and submit 

a written report to the Administrator 

documenting that it has met the 

conditions and requirements for 

assertion of the affirmative defense. 

The EPA is adding the paperwork and 

recordkeeping associated with the 

affirmative defense to civil penalties for 

malfunctions to the estimate of burden 

in the ICR. To provide the public with 

an estimate of the relative magnitude of 

the burden associated with an assertion 

of the affirmative defense position 

adopted by a source, the EPA has 

provided administrative adjustments to 

the ICR that show what the notification, 

recordkeeping and reporting 

requirements associated with the 

assertion of the affirmative defense 

might entail. The EPA’s estimate for the 

required notification, reports and 

records for any individual incident, 

including the root cause analysis, totals 

$3,258, and is based on the time and 

effort required of a source to review 

relevant data, interview plant 

employees and document the events 

surrounding a malfunction that has 

caused a violation of an emissions limit. 

The estimate also includes time to 

produce and retain the record and 

reports for submission to the EPA. The 

EPA provides this illustrative estimate 

of this burden because these costs are 

only incurred if there has been a 

violation and a source chooses to take 

advantage of the affirmative defense. 

Given the variety of circumstances 

under which malfunctions could occur, 

as well as differences among sources’ 

operation and maintenance practices, 

we cannot reliably predict the severity 

and frequency of malfunction-related 

excess emissions events for a particular 

source. It is important to note that the 

EPA has no basis currently for 

estimating the number of malfunctions 

that would qualify for an affirmative 

defense. Current historical records 

would be an inappropriate basis, as 

source owners or operators previously 

operated their facilities in recognition 

that they were exempt from the 

requirement to comply with emissions 

standards during malfunctions. Of the 

number of excess emissions events 

reported by source operators, only a 

small number would be expected to 

result from a malfunction (based on the 

definition above), and only a subset of 

violations caused by malfunctions 

would result in the source choosing to 

assert the affirmative defense. Thus, we 

expect the number of instances in which 

source operators might be expected to 

avail themselves of the affirmative 

defense will be extremely small. For this 

reason, we estimate no more than two 

such occurrences per year for all sources 

subject to subpart LLL over the 3-year 

period covered by this ICR. We expect 

to gather information on such events in 

the future and will revise this estimate 

as better information becomes available. 

We estimate 86 facilities will be 

subject to all final standards. The 

remaining 14 facilities will only be 

subject to the open clinker pile 

standards in this action. The annual 

monitoring, reporting and 

recordkeeping cost for this source 

(averaged over the first three years after 

the effective date of the standards) for 

these amendments to subpart LLL is 

estimated to be $352,814 per year for the 

industry. This includes 496 labor hours 

per year at a total labor cost of $47,806 

per year, and total non-labor capital and 

operation and maintenance costs of 

$305,008 per year. This estimate 

includes reporting and recordkeeping 

associated with the requirements for 

open clinker storage piles. The total 

burden to the federal government 

(averaged over the first three years after 

the effective date of the standard) as a 

result of these amendments is estimated 

to be 263 hours per year at a total labor 

cost of $11,885 per year. Burden is 

defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impact 

of this rule on small entities, small 

entity is defined as: (1) A small business 

whose parent company has no more 

than 750 employees based on the size 

definition for the affected NAICS code 

(327310), as defined by the Small 

Business Administration size standards; 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district or special district 

with a population of less than 50,000; 

and (3) a small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

We estimate that 3 of the 26 existing 

Portland cement entities are small 

entities and comprise 3 plants. After 

considering the economic impacts of 

this final rule on small entities, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. Of 

the three affected small entities, all are 

expected to incur an annual compliance 

cost of less than 1.0 percent of sales to 

comply with these amendments to the 

2010 final rule (reflecting potential 

controls on piles, which are likely to 

have lower cost when compared to the 

2010 rule requirements because these 

plants already have requirements for 

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control of open clinker storage piles in 

their title V permits). 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, the 

EPA nonetheless adopted amendments 

which should reduce the impact of this 

final rule on small entities. For example, 

we are expanding the provision that 

allows periodic HCl performance tests 

as an alternative to HCl CEMS for 

sources equipped with wet scrubbers to 

also apply to those sources that use dry 

scrubbers. This final rule also adds an 

option for sources using wet or dry 

scrubbers for HCl control to use SO2 as 

a monitored parameter. If these sources 

already have a CEMS for SO2, then this 

will provide operational flexibility. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local 

and tribal governments, in the aggregate, 

or the private sector in any one year. As 

discussed earlier in this preamble, there 

is an actual savings to the industry of 

$52 million per year. Thus, this final 

rule is not subject to the requirements 

of section 202 and 205 of the UMRA. 

This final action is also not subject to 

the requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

final action contains no requirements 

that apply to such governments, 

imposes no obligations upon them, and 

will not result in expenditures by them 

of $100 million or more in any one year 

or any disproportionate impacts on 

them. 

E. Executive Order 13132: Federalism 

This final action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. None of the 

affected facilities are owned or operated 

by State governments. Thus, Executive 

Order 13132 does not apply to this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action may have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). The EPA is aware of one tribally 

owned Portland cement facility 

currently subject to subpart LLL and 

that will be subject to this final rule. 

The provisions of this final rule are not 

expected to impose new substantial 

direct compliance costs on Tribal 

governments since the same control 

technologies that are necessary under 

the current NESHAP will be needed to 

meet the final emissions limits. The 

EPA has tried to reduce the impact of 

this final rule on Tribal owned facilities. 

For example, we are expanding the 

provision that allows periodic HCl 

performance tests as an alternative to 

HCl CEMS for sources equipped with 

wet scrubbers to also apply to those 

sources that use dry sorbent injection 

(i.e., dry scrubbing systems). This final 

rule adds an option for sources using 

wet or dry scrubbers for HCl control to 

use SO2 as a monitored parameter. If 

these sources already have a CEMS for 

SO2, then this will provide operational 

flexibility. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 5– 

501 of the Executive Order has the 

potential to influence the regulation. 

This action is not subject to Executive 

Order 13045 because it is based solely 

on technology performance. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

The amendments do not require the use 

of additional controls as compared to 

the 2010 rule and may allow the 

industry to reduce its cost of 

compliance by increasing the industry’s 

flexibility to institute different and less 

costly control strategies than under the 

2010 rule. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113 (15 U.S.C. 272 note), directs 

the EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by VCS 

bodies. NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable VCS. 

This final rulemaking does not 

involve technical standards. Therefore, 

the EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(February 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

An analysis of demographic data was 

prepared for the 2010 final rule and can 

be found in the docket for that 

rulemaking (See docket item EPA–HQ– 

OAR–2002–0051–3415). The impacts of 

the 2010 rule, which assumed full 

compliance, are expected to be 

unchanged as a result of this action. 

Therefore, beginning from the date of 

full compliance, the EPA has 

determined that this final rule will not 

have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations because it increases the 

level of environmental protection for all 

affected populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income populations. In 

addition, the full benefits of this final 

rule will not result until 2015 due to the 

final amended compliance date but the 

demographic analysis showed that the 

average of populations in close 

proximity to the sources, and thus most 

likely to be affected by the sources, were 

similar in demographic composition to 

national averages. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801, et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that, before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

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10032 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this final rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This final rule will be effective 

on February 12, 2013. 

List of Subjects in 40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Reporting and 

recordkeeping requirements. 

Dated: December 20, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 60—[AMENDED] 

■ 1. The authority citation for part 60 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

Subpart F—[AMENDED] 

■ 2. Section 60.61 is amended by adding 

paragraphs (e) and (f) to read as follows: 

§ 60.61 Definitions. 

* * * * * 

(e) Excess emissions means, with 

respect to this subpart, results of any 

required measurements outside the 

applicable range (e.g., emissions 

limitations, parametric operating limits) 

that is permitted by this subpart. The 

values of measurements will be in the 

same units and averaging time as the 

values specified in this subpart for the 

limitations. 

(f) Operating day means a 24-hour 

period beginning at 12:00 midnight 

during which the kiln operates at any 

time. For calculating rolling 30-day 

average emissions, an operating day 

does not include the hours of operation 

during startup or shutdown. 

* * * * * 

■ 3. Section 60.62 is amended by: 

■ a. Removing and reserving paragraph 

(a)(1)(i), revising paragraph (a)(1)(ii) and 

adding paragraph (a)(1)(iii); 

■ b. Removing and reserving paragraph 

(a)(2); 

■ c. Revising paragraphs (b)(1)(i) and 

(ii); 

■ d. Removing paragraph (b)(2); 

■ e. Redesignating paragraphs (b)(3) and 

(4) as (b)(2) and (3); 

■ f. Revising newly designated 

paragraph (b)(3); and 

■ g. Revising paragraph (d). 

The revisions read as follows: 

§ 60.62 Standards. 

(a) * * * 

(1) * * * 

(ii) 0.02 pound per ton of clinker if 

construction or reconstruction of the 

kiln commenced after June 16, 2008. 

(iii) Kilns that have undergone a 

modification may not discharge into the 

atmosphere any gases which contain PM 

in excess of 0.07 pound per ton of 

clinker. 

* * * * * 

(b) * * * 

(1) * * * 

(i) 0.02 pound per ton of clinker if 

construction or reconstruction of the 

clinker cooler commences after June 16, 

2008. 

(ii) 0.07 pound per ton of clinker if 

the clinker cooler has undergone a 

modification. 

* * * * * 

(3) If the kiln has a separated alkali 

bypass stack and/or an inline coal mill 

with a separate stack, you must combine 

the PM emissions from the bypass stack 

and/or the inline coal mill stack with 

the PM emissions from the main kiln 

exhaust to determine total PM 

emissions. 

* * * * * 

(d) If you have an affected source 

subject to this subpart with a different 

emissions limit or requirement for the 

same pollutant under another regulation 

in title 40 of this chapter, you must 

comply with the most stringent 

emissions limit or requirement and are 

not subject to the less stringent 

requirement. 

■ 4. Section 60.63 is amended by: 

■ a. Revising paragraphs (b)(1)(i) and 

(ii); 

■ b. Adding paragraph (b)(1)(iii); 

■ c. Revising paragraphs (b)(2) and (3); 

■ d. Removing paragraph (b)(4); 

■ e. Revising paragraphs (c) through (f); 

■ f. Revising paragraph (g) introductory 

text; 

■ g. Revising paragraph (g)(2); 

■ h. Revising paragraph (h) introductory 

text; 

■ i. Revising paragraphs (h)(1) and (6); 

■ j. Revising paragraph (h)(7) 

introductory text; 

■ k. Revising paragraph (h)(8) 

introductory text; 

■ l. Revising paragraph (h)(9); 

■ m. Revising paragraph (i) introductory 

text; and 

■ n. Revising paragraph (i)(1) 

introductory text and (i)(1)(i). 

The revisions and addition read as 

follows: 

§ 60.63 Monitoring of operations. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Install, calibrate, maintain, and 

operate a permanent weigh scale system 

to measure and record weight rates of 

the amount of clinker produced in tons 

of mass per hour. The system of 

measuring hourly clinker production 

must be maintained within ±5 percent 

accuracy or 

(ii) Install, calibrate, maintain, and 

operate a permanent weigh scale system 

to measure and record weight rates of 

the amount of feed to the kiln in tons 

of mass per hour. The system of 

measuring feed must be maintained 

within ±5 percent accuracy. Calculate 

your hourly clinker production rate 

using a kiln specific feed-to-clinker ratio 

based on reconciled clinker production 

rates determined for accounting 

purposes and recorded feed rates. This 

ratio should be updated monthly. Note 

that if this ratio changes at clinker 

reconciliation, you must use the new 

ratio going forward, but you do not have 

to retroactively change clinker 

production rates previously estimated. 

(iii) For each kiln operating hour for 

which you do not have data on clinker 

production or the amount of feed to the 

kiln, use the value from the most recent 

previous hour for which valid data are 

available. 

(2) Determine, record, and maintain a 

record of the accuracy of the system of 

measuring hourly clinker production 

rates or feed rates before initial use (for 

new sources) or by the effective 

compliance date of this rule (for existing 

sources). During each quarter of source 

operation, you must determine, record, 

and maintain a record of the ongoing 

accuracy of the system of measuring 

hourly clinker production rates or feed 

rates. 

(3) If you measure clinker production 

directly, record the daily clinker 

production rates; if you measure the 

kiln feed rates and calculate clinker 

production, record the daily kiln feed 

and clinker production rates. 

(c) PM Emissions Monitoring 

Requirements. (1) For each kiln or 

clinker cooler subject to a PM emissions 

limit in § 60.62, you must demonstrate 

compliance through an initial 

performance test. You will conduct your 

performance test using Method 5 or 

Method 5I at appendix A–3 to part 60 

of this chapter. You must also monitor 

continuous performance through use of 

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a PM continuous parametric monitoring 

system (PM CPMS). 

(2) For your PM CPMS, you will 

establish a site-specific operating limit. 

If your PM performance test 

demonstrates your PM emission levels 

to be below 75 percent of your emission 

limit you will use the average PM CPMS 

value recorded during the PM 

compliance test, the milliamp 

equivalent of zero output from your PM 

CPMS, and the average PM result of 

your compliance test to establish your 

operating limit equivalent to 75 percent 

of the standard. If your PM compliance 

test demonstrates your PM emission 

levels to be at or above 75 percent of 

your emission limit you will use the 

average PM CPMS value recorded 

during the PM compliance test 

demonstrating compliance with the PM 

limit to establish your operating limit. 

You will use the PM CPMS to 

demonstrate continuous compliance 

with your operating limit. You must 

repeat the performance test annually 

and reassess and adjust the site-specific 

operating limit in accordance with the 

results of the performance test. 

(i) Your PM CPMS must provide a 4– 

20 milliamp output and the 

establishment of its relationship to 

manual reference method measurements 

must be determined in units of 

milliamps. 

(ii) Your PM CPMS operating range 

must be capable of reading PM 

concentrations from zero to a level 

equivalent to two times your allowable 

emission limit. If your PM CPMS is an 

auto-ranging instrument capable of 

multiple scales, the primary range of the 

instrument must be capable of reading 

PM concentration from zero to a level 

equivalent to two times your allowable 

emission limit. 

(iii) During the initial performance 

test or any such subsequent 

performance test that demonstrates 

compliance with the PM limit, record 

and average all milliamp output values 

from the PM CPMS for the periods 

corresponding to the compliance test 

runs (e.g., average all your PM CPMS 

output values for three corresponding 2- 

hour Method 5I test runs). 

(3) Determine your operating limit as 

specified in paragraphs (c)(4)(i) through 

(c)(5) of this section. If your PM 

performance test demonstrates your PM 

emission levels to be below 75 percent 

of your emission limit you will use the 

average PM CPMS value recorded 

during the PM compliance test, the 

milliamp equivalent of zero output from 

your PM CPMS, and the average PM 

result of your compliance test to 

establish your operating limit. If your 

PM compliance test demonstrates your 

PM emission levels to be at or above 75 

percent of your emission limit you will 

use the average PM CPMS value 

recorded during the PM compliance test 

to establish your operating limit. You 

must verify an existing or establish a 

new operating limit after each repeated 

performance test. You must repeat the 

performance test at least annually and 

reassess and adjust the site-specific 

operating limit in accordance with the 

results of the performance test. 

(4) If the average of your three Method 

5 or 5I compliance test runs are below 

75 percent of your PM emission limit, 

you must calculate an operating limit by 

establishing a relationship of PM CPMS 

signal to PM concentration using the PM 

CPMS instrument zero, the average PM 

CPMS values corresponding to the three 

compliance test runs, and the average 

PM concentration from the Method 5 or 

5I compliance test with the procedures 

in (c)(4)(i)(A) through (D) of this section. 

(i) Determine your PM CPMS 

instrument zero output with one of the 

following procedures. 

(A) Zero point data for in-situ 

instruments should be obtained by 

removing the instrument from the stack 

and monitoring ambient air on a test 

bench. 

(B) Zero point data for extractive 

instruments should be obtained by 

removing the extractive probe from the 

stack and drawing in clean ambient air. 

(C) The zero point can also can be 

obtained by performing manual 

reference method measurements when 

the flue gas is free of PM emissions or 

contains very low PM concentrations 

(e.g., when your process is not 

operating, but the fans are operating or 

your source is combusting only natural 

gas) and plotting these with the 

compliance data to find the zero 

intercept. 

(D) If none of the steps in paragraphs 

(c)(4)(i)(A) through (C) of this section 

are possible, you must use a zero output 

value provided by the manufacturer. 

(ii) Determine your PM CPMS 

instrument average in milliamps, and 

the average of your corresponding three 

PM compliance test runs, using 

equation 1. 

Where: 

X1 = The PM CPMS data points for the three 

runs constituting the performance test, 

Y1 = The PM concentration value for the 

three runs constituting the performance 

test, and 

n = The number of data points. 

(iii) With your PM CPMS instrument 

zero expressed in milliamps, your three 

run average PM CPMS milliamp value, 

and your three run average PM 

concentration from your three PM 

performance test runs, determine a 

relationship of lb/ton-clinker per 

milliamp with equation 2. 

Where: 

R = The relative lb/ton clinker per milliamp 

for your PM CPMS. 

Y1 = The three run average PM lb/ton 

clinker. 

X1 = The three run average milliamp output 

from you PM CPMS. 

z = the milliamp equivalent of your 

instrument zero determined from (c)(4)(i) 

of this section. 

(iv) Determine your source specific 

30-day rolling average operating limit 

using the lb/ton-clinker per milliamp 

value from Equation 2 above in 

Equation 3, below. This sets your 

operating limit at the PM CPMS output 

value corresponding to 75 percent of 

your emission limit. 


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10034 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

Where: 

Ol = The operating limit for your PM CPMS 

on a 30-day rolling average, in 

milliamps. 

L = Your source emission limit expressed in 

lb/ton clinker. 

z = Your instrument zero in milliamps, 

determined from (1)(i). 

R = The relative lb/ton-clinker per milliamp 

for your PM CPMS, from Equation 2. 

(5) If the average of your three PM 

compliance test runs is at or above 75 

percent of your PM emission limit you 

must determine your operating limit by 

averaging the PM CPMS milliamp 

output corresponding to your three PM 

performance test runs that demonstrate 

compliance with the emission limit 

using Equation 4. 

Where: 

X1 = The PM CPMS data points for all runs 

i. 

n = The number of data points. 

Oh = Your site specific operating limit, in 

milliamps. 

(6) To determine continuous 

compliance, you must record the PM 

CPMS output data for all periods when 

the process is operating, and use all the 

PM CPMS data for calculations when 

the source is not out-of-control. You 

must demonstrate continuous 

compliance by using all quality-assured 

hourly average data collected by the PM 

CPMS for all operating hours to 

calculate the arithmetic average 

operating parameter in units of the 

operating limit (milliamps) on a 30 

operating day rolling average basis, 

updated at the end of each new kiln 

operating day. Use Equation 5 to 

determine the 30 kiln operating day 

average. 

Where: 

Hpvi = The hourly parameter value for hour 

i. 

n = The number of valid hourly parameter 

values collected over 30 kiln operating 

days. 

(7) Use EPA Method 5 or Method 5I 

of appendix A to part 60 of this chapter 

to determine PM emissions. For each 

performance test, conduct at least three 

separate runs under the conditions that 

exist when the affected source is 

operating at the highest load or capacity 

level reasonably expected to occur. 

Conduct each test run to collect a 

minimum sample volume of 2 dscm for 

determining compliance with a new 

source limit and 1 dscm for determining 

compliance with an existing source 

limit. Calculate the average of the 

results from three consecutive runs to 

determine compliance. You need not 

determine the particulate matter 

collected in the impingers (‘‘back half’’) 

of the Method 5 or Method 5I 

particulate sampling train to 

demonstrate compliance with the PM 

standards of this subpart. This shall not 

preclude the permitting authority from 

requiring a determination of the ’’back 

half’’ for other purposes. 

(8) For PM performance test reports 

used to set a PM CPMS operating limit, 

the electronic submission of the test 

report must also include the make and 

model of the PM CPMS instrument, 

serial number of the instrument, 

analytical principle of the instrument 

(e.g. beta attenuation), span of the 

instruments primary analytical range, 

milliamp value equivalent to the 

instrument zero output, technique by 

which this zero value was determined, 

and the average milliamp signals 

corresponding to each PM compliance 

test run. 

(d) You must install, operate, 

calibrate, and maintain a CEMS 

continuously monitoring and recording 

the concentration by volume of NOX

emissions into the atmosphere for any 

kiln subject to the NOX emissions limit 

in § 60.62(a)(3). If the kiln has an alkali 

bypass, NOX emissions from the alkali 

bypass do not need to be monitored, and 

NOX emission monitoring of the kiln 

exhaust may be done upstream of any 

commingled alkali bypass gases. 

(e) You must install, operate, 

calibrate, and maintain a CEMS for 

continuously monitoring and recording 

the concentration by volume of SO2

emissions into the atmosphere for any 

kiln subject to the SO2 emissions limit 

in § 60.62(a)(4). If you are complying 

with the alternative 90 percent SO2

emissions reduction emissions limit, 

you must also continuously monitor and 

record the concentration by volume of 

SO2 present at the wet scrubber inlet. 

(f) The NOX and SO2 CEMS required 

under paragraphs (d) and (e) of this 

section must be installed, operated and 

maintained according to Performance 

Specification 2 of appendix B of this 

part and the requirements in paragraphs 

(f)(1) through (5) of this section. 

(1) The span value of each NOX CEMS 

monitor must be set at 125 percent of 

the maximum estimated hourly 

potential NOX emission concentration 

that translates to the applicable 

emissions limit at full clinker 

production capacity. 

(2) You must conduct performance 

evaluations of each NOX CEMS monitor 

according to the requirements in 

§ 60.13(c) and Performance 

Specification 2 of appendix B to this 

part. You must use Methods 7, 7A, 7C, 

7D, or 7E of appendix A–4 to this part 

for conducting the relative accuracy 

evaluations. The method ASME PTC 

19.10–1981, ‘‘Flue and Exhaust Gas 

Analyses,’’ (incorporated by reference— 

see § 60.17) is an acceptable alternative 

to Method 7 or 7C of appendix A–4 to 

this part. 

(3) The span value for the SO2 CEMS 

monitor is the SO2 emission 

concentration that corresponds to 125 

percent of the applicable emissions 

limit at full clinker production capacity 


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and the expected maximum fuel sulfur 

content. 

(4) You must conduct performance 

evaluations of each SO2 CEMS monitor 

according to the requirements in 

§ 60.13(c) and Performance 

Specification 2 of appendix B to this 

part. You must use Methods 6, 6A, or 

6C of appendix A–4 to this part for 

conducting the relative accuracy 

evaluations. The method ASME PTC 

19.10–1981, ‘‘Flue and Exhaust Gas 

Analyses,’’ (incorporated by reference— 

see § 60.17) is an acceptable alternative 

to Method 6 or 6A of appendix A–4 to 

this part. 

(5) You must comply with the quality 

assurance requirements in Procedure 1 

of appendix F to this part for each NOX

and SO2 CEMS, including quarterly 

accuracy determinations for monitors, 

and daily calibration drift tests. 

(g) For each CPMS or CEMS required 

under paragraphs (c) through (e) of this 

section: 

* * * * * 

(2) You may not use data recorded 

during the monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, or 

required monitoring system quality 

assurance or control activities in 

calculations used to report emissions or 

operating levels. A monitoring system 

malfunction is any sudden, infrequent, 

not reasonably preventable failure of the 

monitoring system to provide valid data. 

Monitoring system failures that are 

caused in part by poor maintenance or 

careless operation are not malfunctions. 

An owner or operator must use all the 

data collected during all other periods 

in reporting emissions or operating 

levels. 

* * * * * 

(h) You must install, operate, 

calibrate, and maintain instruments for 

continuously measuring and recording 

the stack gas flow rate to allow 

determination of the pollutant mass 

emissions rate to the atmosphere for 

each kiln subject to the PM emissions 

limits in § 60.62(a)(1)(ii) and (iii) and 

(b)(1)(i) and (ii), the NOX emissions 

limit in § 60.62(a)(3), or the SO2

emissions limit in § 60.62(a)(4) 

according to the requirements in 

paragraphs (h)(1) through (10), where 

appropriate, of this section. 

(1) The owner or operator must install 

each sensor of the flow rate monitoring 

system in a location that provides 

representative measurement of the 

exhaust gas flow rate at the sampling 

location of the NOX and/or SO2 CEMS, 

taking into account the manufacturer’s 

recommendations. The flow rate sensor 

is that portion of the system that senses 

the volumetric flow rate and generates 

an output proportional to that flow rate. 

* * * * * 

(6) The flow rate monitoring system 

must be designed to measure a 

minimum of one cycle of operational 

flow for each successive 15-minute 

period. 

(7) The flow rate sensor must be able 

to determine the daily zero and upscale 

calibration drift (CD) (see sections 3.1 

and 8.3 of Performance Specification 2 

in appendix B to this part for a 

discussion of CD). 

* * * * * 

(8) You must perform an initial 

relative accuracy test of the flow rate 

monitoring system according to section 

8.2 of Performance Specification 6 of 

appendix B to this part, with the 

exceptions noted in paragraphs (h)(8)(i) 

and (ii) of this section. 

* * * * * 

(9) You must verify the accuracy of 

the flow rate monitoring system at least 

once per year by repeating the relative 

accuracy test specified in paragraph 

(h)(8) of this section. 

* * * * * 

(i) Development and Submittal (Upon 

Request) of Monitoring Plans. To 

demonstrate compliance with any 

applicable emissions limit through 

performance stack testing or other 

emissions monitoring (including PM 

CPMS), you must develop a site-specific 

monitoring plan according to the 

requirements in paragraphs (i)(1) 

through (4) of this section. This 

requirement also applies to you if you 

petition the EPA Administrator for 

alternative monitoring parameters under 

§ 60.13(3)(i). If you use a bag leak 

detector system (BLDS), you must also 

meet the requirements specified in 

paragraph § 63.1350(m)(10) of this 

chapter. 

(1) For each continuous monitoring 

system (CMS) required in this section, 

you must develop, and submit to the 

permitting authority for approval upon 

request, a site-specific monitoring plan 

that addresses paragraphs (i)(1)(i) 

through (iii) of this section. You must 

submit this site-specific monitoring 

plan, if requested, at least 30 days before 

the initial performance evaluation of 

your CMS. 

(i) Installation of the CMS sampling 

probe or other interface at a 

measurement location relative to each 

affected process unit such that the 

measurement is representative of 

control of the exhaust emissions (e.g., 

on or downstream of the last control 

device); 

* * * * * 

■ 5. Section 60.64 is revised to read as 

follows: 

§ 60.64 Test methods and procedures. 

(a) In conducting the performance 

tests and relative accuracy tests required 

in § 60.8, you must use reference 

methods and procedures and the test 

methods in appendix A of this part or 

other methods and procedures as 

specified in this section, except as 

provided in § 60.8(b). 

(b)(1)You must demonstrate 

compliance with the PM standards in 

§ 60.62 using EPA method 5 or method 

5I. 

(2) Use Method 9 and the procedures 

in § 60.11 to determine opacity. 

(3) Any sources other than kilns 

(including associated alkali bypass and 

clinker cooler) that are subject to the 10 

percent opacity limit must follow the 

appropriate monitoring procedures in 

§ 63.1350(f), (m)(1)through (4), (10) and 

(11), (o), and (p) of this chapter. 

(c) Calculate and record the rolling 30 

kiln operating day average emission rate 

daily of NOX and SO2 according to the 

procedures in paragraphs (c)(1) and (2) 

of this section. 

(1) Calculate the rolling 30 kiln 

operating day average emissions 

according to equation 6: 


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10036 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

Where: 

E30D = 30 kiln operating day average emission 

rate of NOX or SO2, lb/ton of clinker. 

Ci = Concentration of NOX or SO2 for hour 

i, ppm. 

Qi = Volumetric flow rate of effluent gas for 

hour i, where 

Ci and Qi are on the same basis (either wet 

or dry), scf/hr. 

P = 30 days of clinker production during the 

same time period as the NOX or SO2

emissions measured, tons. 

k = Conversion factor, 1.194 × 10 7 for 

NOX and 1.660 × 10 7 for SO2, lb/scf/ 

ppm. 

n = Number of kiln operating hours over 30 

kiln operating days. 

(2) For each kiln operating hour for 

which you do not have at least one valid 

15-minute CEMS data value, use the 

average emissions rate (lb/hr) from the 

most recent previous hour for which 

valid data are available. 

(d)(1) Within 60 days after the date of 

completing each performance test (see 

§ 60.8) as required by this subpart you 

must submit the results of the 

performance tests conducted to 

demonstrate compliance under this 

subpart to the EPA’s WebFIRE database 

by using the Compliance and Emissions 

Data Reporting Interface (CEDRI) that is 

accessed through the EPA’s Central Data 

Exchange (CDX) (http://www.epa.gov/ 

cdx). Performance test data must be 

submitted in the file format generated 

through use of the EPA’s Electronic 

Reporting Tool (ERT) (see http:// 

www.epa.gov/ttn/chief/ert/index.html). 

Only data collected using test methods 

on the ERT Web site are subject to this 

requirement for submitting reports 

electronically to WebFIRE. Owners or 

operators who claim that some of the 

information being submitted for 

performance tests is confidential 

business information (CBI) must submit 

a complete ERT file including 

information claimed to be CBI on a 

compact disk, flash drive or other 

commonly used electronic storage 

media to the EPA. The electronic media 

must be clearly marked as CBI and 

mailed to U.S. EPA/OAPQS/CORE CBI 

Office, Attention: WebFIRE 

Administrator, MD C404–02, 4930 Old 

Page Rd., Durham, NC 27703. The same 

ERT file with the CBI omitted must be 

submitted to the EPA via CDX as 

described earlier in this paragraph. At 

the discretion of the delegated authority, 

you must also submit these reports, 

including the CBI, to the delegated 

authority in the format specified by the 

delegated authority. For any 

performance test conducted using test 

methods that are not listed on the ERT 

Web site, you must submit the results of 

the performance test to the 

Administrator at the appropriate 

address listed in § 63.13. 

(2) Within 60 days after the date of 

completing each CEMS performance 

evaluation test as defined in § 63.2, you 

must submit relative accuracy test audit 

(RATA) data to the EPA’s CDX by using 

CEDRI in accordance with paragraph 

(d)(1) of this section. Only RATA 

pollutants that can be documented with 

the ERT (as listed on the ERT Web site) 

are subject to this requirement. For any 

performance evaluations with no 

corresponding RATA pollutants listed 

on the ERT Web site, you must submit 

the results of the performance 

evaluation to the Administrator at the 

appropriate address listed in § 63.13. 

(3) For PM performance test reports 

used to set a PM CPMS operating limit, 

the electronic submission of the test 

report must also include the make and 

model of the PM CPMS instrument, 

serial number of the instrument, 

analytical principle of the instrument 

(e.g. beta attenuation), span of the 

instruments primary analytical range, 

milliamp value equivalent to the 

instrument zero output, technique by 

which this zero value was determined, 

and the average milliamp signals 

corresponding to each PM compliance 

test run. 

(4) All reports required by this 

subpart not subject to the requirements 

in paragraphs (d)(1) and (2) of this 

section must be sent to the 

Administrator at the appropriate 

address listed in § 63.13. The 

Administrator or the delegated authority 

may request a report in any form 

suitable for the specific case (e.g., by 

commonly used electronic media such 

as Excel spreadsheet, on CD or hard 

copy). The Administrator retains the 

right to require submittal of reports 

subject to paragraph (d)(1) and (2) of 

this section in paper format. 

■ 6. Section 60.65 is revised to read as 

follows: 

§ 60.65 Recordkeeping and reporting 

requirements. 

(a) Each owner or operator required to 

install a CPMS or CEMS under sections 

§ 60.63(c) through (e) shall submit 

reports of excess emissions. The content 

of these reports must comply with the 

requirements in § 60.7(c). 

Notwithstanding the provisions of 

§ 60.7(c), such reports shall be 

submitted semiannually. 

(b) Each owner or operator of facilities 

subject to the provisions of § 60.63(c) 

through (e) shall submit semiannual 

reports of the malfunction information 

required to be recorded by § 60.7(b). 

These reports shall include the 

frequency, duration, and cause of any 

incident resulting in deenergization of 

any device controlling kiln emissions or 

in the venting of emissions directly to 

the atmosphere. 

(c) The requirements of this section 

remain in force until and unless the 

Agency, in delegating enforcement 

authority to a State under section 111(c) 

of the Clean Air Act, 42 U.S.C. 7411, 

approves reporting requirements or an 

alternative means of compliance 

surveillance adopted by such States. In 

that event, affected sources within the 

State will be relieved of the obligation 

to comply with this section, provided 

that they comply with the requirements 

established by the State. 

■ 7. Section 60.66 is amended by 

revising paragraph (b) introductory text 

to read as follows: 

§ 60.66 Delegation of authority. 

* * * * * 

(b) In delegating implementation and 

enforcement authority to a State, local, 

or tribal agency, the approval authorities 

contained in paragraphs (b)(1) through 

(4) of this section are retained by the 

Administrator of the U.S EPA and are 

not transferred to the State, local, or 

tribal agency. 

* * * * * 

PART 63—NATIONAL EMISSION 

STANDARDS FOR HAZARDOUS AIR 

POLLUTANTS FOR SOURCE 

CATEGORIES 

■ 8. The authority citation for part 63 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart LLL—[Amended] 

■ 9. Section 63.1340 is amended by 

revising paragraphs (b)(1), (b)(6) through 

(9), and (c) to read as follows: 

§ 63.1340 What parts of my plant does this 

subpart cover? 

* * * * * 

(b) * * *: 

(1) Each kiln including alkali 

bypasses and inline coal mills, except 

for kilns that burn hazardous waste and 

are subject to and regulated under 

subpart EEE of this part; 

* * * * * 

(6) Each raw material, clinker, or 

finished product storage bin at any 

portland cement plant that is a major 

source; 

(7) Each conveying system transfer 

point including those associated with 

coal preparation used to convey coal 

from the mill to the kiln at any portland 

cement plant that is a major source; 

(8) Each bagging and bulk loading and 

unloading system at any portland 

cement plant that is a major source; and 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10037 

1When using ASTM D6348–03, the following 

conditions must be met: 

(1) The test plan preparation and implementation 

in the Annexes to ASTM D6348–03, Sections A1 

through A8 are mandatory; (2) For ASTM D6348– 

03 Annex A5 (Analyte Spiking Technique), the 

percent R must be determined for each target 

analyte (see Equation A5.5); (3) For the ASTM 

D6348–03 test data to be acceptable for a target 

analyte percent R must be 70 percent ≥ R ≤ 130 

percent; and (4) The percent R value for each 

compound must be reported in the test report and 

all field measurements corrected with the 

calculated percent R value for that compound using 

the following equation: Reported Result = The 

measured concentration in the stack divided by the 

calculated percent R value and then the whole term 

multiplied by 100. 

(9) Each open clinker storage pile at 

any portland cement plant. 

(c) Onsite sources that are subject to 

standards for nonmetallic mineral 

processing plants in subpart OOO, part 

60 of this chapter are not subject to this 

subpart. Crushers are not covered by 

this subpart regardless of their location. 

* * * * * 

■ 10. Section 63.1341 is amended by: 

■ a. Removing definitions of ‘‘Enclosed 

storage pile,’’ and ‘‘Inactive clinker 

pile’’; 

■ b. Adding a definition for ‘‘In-line coal 

mill,’’ ‘‘Open clinker storage pile,’’ 

‘‘Startup,’’ and ‘‘Shutdown’’ in 

alphabetical order; and 

■ c. Revising definitions for ‘‘Kiln,’’ 

‘‘New source,’’ ‘‘Operating day,’’ ‘‘Raw 

material dryer,’’ and ‘‘Total organic 

HAP,’’. 

The additions and revisions read as 

follows: 

§ 63.1341 Definitions. 

* * * * * 

In-line coal mill means those coal 

mills using kiln exhaust gases in their 

process. Coal mills with a heat source 

other than the kiln or coal mills using 

exhaust gases from the clinker cooler are 

not an in-line coal mill. 

* * * * * 

Kiln means a device, including any 

associated preheater or precalciner 

devices, inline raw mills, inline coal 

mills or alkali bypasses that produces 

clinker by heating limestone and other 

materials for subsequent production of 

portland cement. Because the inline raw 

mill and inline coal mill are considered 

an integral part of the kiln, for purposes 

of determining the appropriate 

emissions limit, the term kiln also 

applies to the exhaust of the inline raw 

mill and the inline coal mill. 

* * * * * 

New source means any source that 

commenced construction or 

reconstruction after May 6, 2009, for 

purposes of determining the 

applicability of the kiln, clinker cooler 

and raw material dryer emissions limits 

for mercury, PM, THC, and HCl. 

* * * * * 

Open clinker storage pile means a 

clinker storage pile on the ground for 

more than three days that is not 

completely enclosed in a building or 

structure. 

Operating day means any 24-hour 

period beginning at 12:00 midnight 

during which the kiln operates for any 

time. For calculating the rolling 30-day 

average emissions, kiln operating days 

do not include the hours of operation 

during startup or shutdown. 

* * * * * 

Raw material dryer means an impact 

dryer, drum dryer, paddle-equipped 

rapid dryer, air separator, or other 

equipment used to reduce the moisture 

content of feed or other materials. 

* * * * * 

Shutdown means the cessation of kiln 

operation. Shutdown begins when feed 

to the kiln is halted and ends when 

continuous kiln rotation ceases. 

* * * * * 

Startup means the time from when a 

shutdown kiln first begins firing fuel 

until it begins producing clinker. 

Startup begins when a shutdown kiln 

turns on the induced draft fan and 

begins firing fuel in the main burner. 

Startup ends when feed is being 

continuously introduced into the kiln 

for at least 120 minutes or when the 

feed rate exceeds 60 percent of the kiln 

design limitation rate, whichever occurs 

first. 

* * * * * 

Total organic HAP means, for the 

purposes of this subpart, the sum of the 

concentrations of compounds of 

formaldehyde, benzene, toluene, 

styrene, m-xylene, p-xylene, o-xylene, 

acetaldehyde, and naphthalene as 

measured by EPA Test Method 320 or 

Method 18 of appendix A to this part or 

ASTM D6348–03 1 or a combination of 

these methods, as appropriate. If 

measurement results for any pollutant 

are reported as below the method 

detection level (e.g., laboratory 

analytical results for one or more 

sample components are below the 

method defined analytical detection 

level), you must use the method 

detection level as the measured 

emissions level for that pollutant in 

calculating the total organic HAP value. 

The measured result for a multiple 

component analysis (e.g., analytical 

values for multiple Method 18 fractions) 

may include a combination of method 

detection level data and analytical data 

reported above the method detection 

level. The owner or operator of an 

affected source may request the use of 

other test methods to make this 

determination under paragraphs 

63.7(e)(2)(ii) and (f) of this part. 

* * * * * 

■ 11. Section 63.1343 is revised to read 

as follows: 

§ 63.1343 What standards apply to my 

kilns, clinker coolers, raw material dryers, 

and open clinker storage piles? 

(a) General. The provisions in this 

section apply to each kiln and any alkali 

bypass associated with that kiln, clinker 

cooler, raw material dryer, and open 

clinker storage pile. All D/F, HCl, and 

total hydrocarbon (THC) emissions limit 

are on a dry basis. The D/F, HCl, and 

THC limits for kilns are corrected to 7 

percent oxygen. All THC emissions 

limits are measured as propane. 

Standards for mercury and THC are 

based on a rolling 30-day average. If 

using a CEMS to determine compliance 

with the HCl standard, this standard is 

based on a rolling 30-day average. You 

must ensure appropriate corrections for 

moisture are made when measuring 

flow rates used to calculate mercury 

emissions. The 30-day period means 30 

consecutive kiln operating days 

excluding periods of startup and 

shutdown. All emissions limits for 

kilns, clinker coolers, and raw material 

dryers currently in effect that are 

superseded by the limits below continue 

to apply until the compliance date of 

the limits below, or until the source 

certifies compliance with the limits 

below, whichever is earlier. 

(b) Kilns, clinker coolers, raw material 

dryers, raw mills, and finish mills. (1) 

The emissions limits for these sources 

are shown in Table 1 below. PM limits 

for existing kilns also apply to kilns that 

have undergone a modification as 

defined in subpart A of part 60 of title 

40. 

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10038 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

TABLE 1—EMISSIONS LIMITS FOR KILNS, CLINKER COOLERS, RAW MATERIAL DRYERS, RAW AND FINISH MILLS

If your source is a 

(an): 

And the operating 

mode is: And if is located at a: Your emissions limits are: 

And the units of the 

emissions limit are: 

The oxygen 

correction 

factor is: 

1. ............. Existing kiln ............. Normal operation ..... Major or area source PM 1 0.07 .................

D/F 2 0.2 ...................

Mercury 55 ...............

THC 3 4 24 ................

lb/ton clinker ............

ng/dscm (TEQ) ........

lb/MM tons clinker ...

ppmvd ......................

NA. 

7 percent. 

NA. 

7 percent. 

2. ............. Existing kiln ............. Normal operation ..... Major source ............ HCl 3 ....................... ppmvd ...................... 7 percent. 

3. ............. Existing kiln ............. Startup and shutdown.Major or area source Work practices .........

(63.1346(f)) 

NA ............................ NA. 

4. ............. New kiln ................... Normal operation ..... Major or area source PM 0.02 ...................

D/F 2 0.2 ...................

Mercury 21 ..............

THC 3 4 24 ................

lb/ton clinker ............

ng/dscm (TEQ) ........

lb/MM tons clinker ...

ppmvd ......................

NA. 

7 percent. 

NA 

7 percent. 

5. ............. New kiln ................... Normal operation ..... Major source ............ HCl 3 ....................... ppmvd ...................... 7 percent. 

6. ............. New kiln ................... Startup and shutdown.Major or area source Work practices .........

(63.1346(f)) 

NA ............................ NA. 

7. ............. Existing clinker cooler.Normal operation ..... Major or area source PM 0.07 ................... lb/ton clinker ............ NA. 

8. ............. Existing clinker cooler.Startup and shutdown.Major or area source Work practices .........

(63.1348(b)(9)) 

NA ............................ NA. 

9. ............. New clinker cooler ... Normal operation ..... Major or area source PM 0.02 ................... lb/ton clinker ............ NA. 

10. ........... New clinker cooler ... Startup and shutdown.Major or area source Work practices .........

(63.1348(b)(9)) 

NA ............................ NA. 

11. ........... Existing or new raw 

material dryer.

Normal operation ..... Major or area source THC 3 4 24 ................ ppmvd ...................... NA. 

12. ........... Existing or new raw 

material dryer.

Startup and shutdown.Major or area source Work practices .........

(63.1348(b)(9)) 

NA ............................ NA. 

13. ........... Existing or new raw 

or finish mill.

All operating modes Major source ............ Opacity 10 ............... percent ..................... NA. 

1The initial and subsequent PM performance tests are performed using Method 5 or 5I and consist of three 1-hr tests. 

2 If the average temperature at the inlet to the first PM control device (fabric filter or electrostatic precipitator) during the D/F performance test 

is 400 °F or less this limit is changed to 0.40 ng/dscm (TEQ). 3 Measured as propane. 

4Any source subject to the 24 ppmvd THC limit may elect to meet an alternative limit of 12 ppmvd for total organic HAP. 

(2) When there is an alkali bypass 

and/or an inline coal mill with a 

separate stack associated with a kiln, the 

combined PM emissions from the kiln 

and the alkali bypass stack and/or the 

inline coal mill stack are subject to the 

PM emissions limit. Existing kilns that 

combine the clinker cooler exhaust and/ 

or coal mill exhaust with the kiln 

exhaust and send the combined exhaust 

to the PM control device as a single 

stream may meet an alternative PM 

emissions limit. This limit is calculated 

using Equation 1 of this section: 

Where: 

PMalt = Alternative PM emission limit for 

commingled sources. 

0.006 = The PM exhaust concentration (gr/ 

dscf) equivalent to 0.070 lb per ton 

clinker where clinker cooler and kiln 

exhaust gas are not combined. 

1.65 = The conversion factor of ton feed per 

ton clinker. 

Qk = The exhaust flow of the kiln (dscf/ton 

feed). 

Qc = The exhaust flow of the clinker cooler 

(dscf/ton feed). 

Qab = The exhaust flow of the alkali bypass 

(dscf/ton feed). 

Qcm = The exhaust flow of the coal mill (dscf/ 

ton feed). 

7000 = The conversion factor for grains (gr) 

per lb. 

For new kilns that combine kiln 

exhaust and clinker cooler gas the limit 

is calculated using the Equation 2 of this 

section: 

Where: 

PMalt = Alternative PM emission limit for 

commingled sources. 

0.002 = The PM exhaust concentration (gr/ 

dscf) equivalent to 0.020 lb per ton 

clinker where clinker cooler and kiln 

exhaust gas are not combined. 

1.65 = The conversion factor of ton feed per 

ton clinker. 

Qk = The exhaust flow of the kiln (dscf/ton 

feed). 

Qc = The exhaust flow of the clinker cooler 

(dscf/ton feed). 

Qab = The exhaust flow of the alkali bypass 

(dscf/ton feed). 

Qcm = The exhaust flow of the coal mill (dscf/ 

ton feed). 

7000 = The conversion factor for gr per lb. 

(c) Open clinker storage pile. The 

owner or operator of an open clinker 

storage pile must prepare, and operate 

in accordance with, the fugitive dust 

emissions control measures, described 

in their operation and maintenance plan 

(see § 63.1347 of this subpart), that is 

appropriate for the site conditions as 

specified in paragraphs (c)(1) through 


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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10039 

(3) of this section. The operation and 

maintenance plan must also describe 

the measures that will be used to 

minimize fugitive dust emissions from 

piles of clinker, such as accidental 

spillage, that are not part of open clinker 

storage piles. 

(1) The operation and maintenance 

plan must identify and describe the 

location of each current or future open 

clinker storage pile and the fugitive dust 

emissions control measures the owner 

or operator will use to minimize fugitive 

dust emissions from each open clinker 

storage pile. 

(2) For open clinker storage piles, the 

operations and maintenance plan must 

specify that one or more of the following 

control measures will be used to 

minimize to the greatest extent 

practicable fugitive dust from open 

clinker storage piles: Locating the 

source inside a partial enclosure, 

installing and operating a water spray or 

fogging system, applying appropriate 

chemical dust suppression agents, use 

of a wind barrier, compaction, use of 

tarpaulin or other equally effective 

cover or use of a vegetative cover. You 

must select, for inclusion in the 

operations and maintenance plan, the 

fugitive dust control measure or 

measures listed in this paragraph that 

are most appropriate for site conditions. 

The plan must also explain how the 

measure or measures selected are 

applicable and appropriate for site 

conditions. In addition, the plan must 

be revised as needed to reflect any 

changing conditions at the source. 

(3) Temporary piles of clinker that 

result from accidental spillage or clinker 

storage cleaning operations must be 

cleaned up within 3 days. 

(d) Emission limits in effect prior to 

September 9, 2010. Any source defined 

as an existing source in § 63.1351, and 

that was subject to a PM, mercury, THC, 

D/F, or opacity emissions limit prior to 

September 9, 2010, must continue to 

meet the limits shown in Table 2 to this 

section until September 9, 2015. 

■ 12. Section 63.1344 is revised to read 

as follows: 

§ 63.1344 Affirmative Defense for Violation 

of Emission Standards During Malfunction. 

In response to an action to enforce the 

standards set forth in § 63.1343(b) and 

(c) and § 63.1345 and you may assert an 

affirmative defense to a claim for civil 

penalties for violations of such 

standards that are caused by 

malfunction, as defined at 40 CFR 63.2. 

Appropriate penalties may be assessed 

if you fail to meet your burden of 

proving all of the requirements in the 

affirmative defense. The affirmative 

defense shall not be available for claims 

for injunctive relief. 

(a) Assertion of affirmative defense. 

To establish the affirmative defense in 

any action to enforce such a standard, 

you must timely meet the reporting 

requirements in paragraph (b) of this 

section, and must prove by a 

preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner; and 

(ii) Could not have been prevented 

through careful planning, proper design 

or better operation and maintenance 

practices; and 

(iii) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(iv) Was not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and 

(2) Repairs were made as 

expeditiously as possible when a 

violation occurred; and 

(3) The frequency, amount, and 

duration of the violation (including any 

bypass) were minimized to the 

maximum extent practicable; and 

(4) If the violation resulted from a 

bypass of control equipment or a 

process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(5) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment, 

and human health; and 

(6) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(7) All of the actions in response to 

the violation were documented by 

properly signed, contemporaneous 

operating logs; and 

(8) At all times, the affected source 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(9) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct, and eliminate the 

primary causes of the malfunction and 

the violation resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of any emissions that were the 

result of the malfunction. 

(b) Report. The owner or operator 

seeking to assert an affirmative defense 

shall submit a written report to the 

Administrator with all necessary 

supporting documentation, that it has 

met the requirements set forth in 

paragraph (a) of this section. This 

affirmative defense report shall be 

included in the first periodic 

compliance, deviation report or excess 

emission report otherwise required after 

the initial occurrence of the violation of 

the relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance, deviation report or 

excess emission report is due less than 

45 days after the initial occurrence of 

the violation, the affirmative defense 

report may be included in the second 

compliance, deviation report or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard. 

■ 13. Section 63.1345 is revised to read 

as follows: 

§ 63.1345 Emissions limits for affected 

sources other than kilns; clinker coolers; 

new and reconstructed raw material dryers. 

The owner or operator of each new or 

existing raw material, clinker, or 

finished product storage bin; conveying 

system transfer point; bagging system; 

bulk loading or unloading system; raw 

and finish mills; and each existing raw 

material dryer, at a facility which is a 

major source subject to the provisions of 

this subpart must not cause to be 

discharged any gases from these affected 

sources which exhibit opacity in excess 

of 10 percent. 

■ 14. Section 63.1346 is amended by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Revising paragraph (a)(1); 

■ c. Revising paragraphs (c) through (f); 

and 

■ d. Adding paragraph (g) 

The revisions read as follows: 

§ 63.1346 Operating limits for kilns. 

(a) The owner or operator of a kiln 

subject to a D/F emissions limitation 

under § 63.1343 must operate the kiln 

such that the temperature of the gas at 

the inlet to the kiln PM control device 

(PMCD) and alkali bypass PMCD, if 

applicable, does not exceed the 

applicable temperature limit specified 

in paragraph (b) of this section. The 

owner or operator of an in-line kiln/raw 

mill subject to a D/F emissions 

limitation under § 63.1343 must operate 

the in-line kiln/raw mill, such that: 

(1) When the raw mill of the in-line 

kiln/raw mill is operating, the 

applicable temperature limit for the 

main in-line kiln/raw mill exhaust, 

specified in paragraph (b) of this section 

and established during the performance 

test when the raw mill was operating, is 

not exceeded, except during periods of 

startup and shutdown when the 

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temperature limit may be exceeded by 

no more than 10 percent. 

* * * * * 

(c) For an affected source subject to a 

D/F emissions limitation under 

§ 63.1343 that employs sorbent injection 

as an emission control technique for D/ 

F control, you must operate the sorbent 

injection system in accordance with 

paragraphs (c)(1) and (2) of this section. 

(1) The rolling three-hour average 

activated sorbent injection rate must be 

equal to or greater than the sorbent 

injection rate determined in accordance 

with § 63.1349(b)(3)(vi). 

(2) You must either: 

(i) Maintain the minimum activated 

carbon injection carrier gas flow rate, as 

a rolling three-hour average, based on 

the manufacturer’s specifications. These 

specifications must be documented in 

the test plan developed in accordance 

with § 63.7(c), or 

(ii) Maintain the minimum activated 

carbon injection carrier gas pressure 

drop, as a rolling three-hour average, 

based on the manufacturer’s 

specifications. These specifications 

must be documented in the test plan 

developed in accordance with § 63.7(c). 

(d) Except as provided in paragraph 

(e) of this section, for an affected source 

subject to a D/F emissions limitation 

under § 63.1343 that employs carbon 

injection as an emission control 

technique you must specify and use the 

brand and type of sorbent used during 

the performance test until a subsequent 

performance test is conducted, unless 

the site-specific performance test plan 

contains documentation of key 

parameters that affect adsorption and 

the owner or operator establishes limits 

based on those parameters, and the 

limits on these parameters are 

maintained. 

(e) For an affected source subject to a 

D/F emissions limitation under 

§ 63.1343 that employs carbon injection 

as an emission control technique you 

may substitute, at any time, a different 

brand or type of sorbent provided that 

the replacement has equivalent or 

improved properties compared to the 

sorbent specified in the site-specific 

performance test plan and used in the 

performance test. The owner or operator 

must maintain documentation that the 

substitute sorbent will provide the same 

or better level of control as the original 

sorbent. 

(f) No kiln may use as a raw material 

or fuel any fly ash where the mercury 

content of the fly ash has been increased 

through the use of activated carbon, or 

any other sorbent, unless the facility can 

demonstrate that the use of that fly ash 

will not result in an increase in mercury 

emissions over baseline emissions (i.e., 

emissions not using the fly ash). The 

facility has the burden of proving there 

has been no emissions increase over 

baseline. Once the kiln is in compliance 

with a mercury emissions limit 

specified in § 63.1343, this paragraph no 

longer applies. 

(g) During periods of startup and 

shutdown you must meet the 

requirements listed in (g)(1) through (4) 

of this section. 

(1) During startup you must use any 

one or combination of the following 

clean fuels: natural gas, synthetic 

natural gas, propane, distillate oil, 

synthesis gas (syngas), and ultra-low 

sulfur diesel (ULSD) until the kiln 

reaches a temperature of 1200 degrees 

Fahrenheit. 

(2) Combustion of the primary kiln 

fuel may commence once the kiln 

temperature reaches 1200 degrees 

Fahrenheit. 

(3) All air pollution control devices 

must be turned on and operating prior 

to combusting any fuel. 

(4) You must keep records as 

specified in § 63.1355 during periods of 

startup and shutdown. 

■ 15. Section 63.1347 is amended by 

revising paragraph (a)(1) to read as 

follows: 

§ 63.1347 Operation and maintenance plan 

requirements. 

(a) * * * 

(1) Procedures for proper operation 

and maintenance of the affected source 

and air pollution control devices in 

order to meet the emissions limits and 

operating limits, including fugitive dust 

control measures for open clinker piles, 

of §§ 63.1343 through 63.1348. Your 

operations and maintenance plan must 

address periods of startup and 

shutdown; 

* * * * * 

■ 16. Section 63.1348 is amended by: 

■ a. Revising paragraphs (a) 

introductory text and (a)(1) and (2); 

■ b. Adding two sentences to paragraph 

(a)(3)(i); 

■ c. Revising paragraph (a)(3)(ii); 

■ d. Revising paragraphs (a)(3)(iii) and 

(iv); 

■ e. Revising paragraphs (a)(4) through 

(8); 

■ f. Revising paragraph (b); and 

■ g. Revising paragraph (c)(2)(iv). 

The revisions and additions read as 

follows: 

§ 63.1348 Compliance requirements. 

(a) Initial Performance Test 

Requirements. For an affected source 

subject to this subpart, you must 

demonstrate compliance with the 

emissions standards and operating 

limits by using the test methods and 

procedures in §§ 63.1349 and 63.7. Any 

cement kiln that has been subject to the 

requirements of subpart CCCC or 

subpart DDDD of 40 CFR Part 60, and 

is now electing to cease burning 

nonhazardous solid waste and become 

subject to this subpart, must meet all the 

initial compliance testing requirements 

each time it becomes subject to this 

subpart, even if it was previously 

subject to this subpart. 

NOTE to paragraph (a): The first day 

of the 30 operating day performance test 

is the first day after the compliance date 

following completion of the field testing 

and data collection that demonstrates 

that the CPMS or CEMS has satisfied the 

relevant CPMS performance evaluation 

or CEMS performance specification 

(e.g., PS 2, 12A, or 12B) acceptance 

criteria. The performance test period is 

complete at the end of the 30th 

consecutive operating day. See 

§ 63.1341 for definition of operating day 

and § 63.1348(b)(1) for the CEMS 

operating requirements. The source has 

the option of performing the compliance 

test earlier then the compliance date if 

desired. 

(1) PM Compliance. If you are subject 

to limitations on PM emissions under 

§ 63.1343(b), you must demonstrate 

compliance with the PM emissions 

standards by using the test methods and 

procedures in § 63.1349(b)(1). 

(2) Opacity Compliance. If you are 

subject to the limitations on opacity 

under § 63.1345, you must demonstrate 

compliance with the opacity emissions 

standards by using the performance test 

methods and procedures in 

§ 63.1349(b)(2). Use the maximum 6- 

minute average opacity exhibited during 

the performance test period to 

determine whether the affected source is 

in compliance with the standard. 

(3) * * * 

(i) * * * The owner or operator of a 

kiln with an in-line raw mill must 

demonstrate compliance by conducting 

separate performance tests while the 

raw mill is operating and while the raw 

mill is not operating. Determine the D/ 

F TEQ concentration for each run and 

calculate the arithmetic average of the 

TEQ concentrations measured for the 

three runs to determine continuous 

compliance. 

(ii) If you are subject to a D/F 

emissions limitation under § 63.1343(b), 

you must demonstrate compliance with 

the temperature operating limits 

specified in § 63.1346 by using the 

performance test methods and 

procedures in § 63.1349(b)(3)(ii) through 

(b)(3)(iv). Use the arithmetic average of 

the temperatures measured during the 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10041 

three runs to determine the applicable 

temperature limit. 

(iii) If activated carbon injection is 

used and you are subject to a D/F 

emissions limitation under § 63.1343(b), 

you must demonstrate compliance with 

the activated carbon injection rate 

operating limits specified in § 63.1346 

by using the performance test methods 

and procedures in § 63.1349(b)(3)(v). 

(iv) If activated carbon injection is 

used, you must also develop a carrier 

gas parameter (either the carrier gas flow 

rate or the carrier gas pressure drop) 

during the initial performance test and 

updated during any subsequent 

performance test conducted under 

§ 63.1349(b)(3) that meets the 

requirements of § 63.1349(b)(3)(vi). 

Compliance is demonstrated if the 

system is maintained within +/- 5 

percent accuracy during the 

performance test determined in 

accordance with the procedures and 

criteria submitted for review in your 

monitoring plan required in section 

63.1350(p). 

(4)(i) THC Compliance. If you are 

subject to limitations on THC emissions 

under § 63.1343(b), you must 

demonstrate compliance with the THC 

emissions standards by using the 

performance test methods and 

procedures in § 63.1349(b)(4)(i). You 

must use the average THC concentration 

obtained during the first 30 kiln 

operating days after the compliance date 

of this rule to determine initial 

compliance. 

(ii) Total Organic HAP Emissions 

Tests. If you elect to demonstrate 

compliance with the total organic HAP 

emissions limit under § 63.1343(b) in 

lieu of the THC emissions limit, you 

must demonstrate compliance with the 

total organic HAP emissions standards 

by using the performance test methods 

and procedures in § 63.1349(b)(7. 

(iii) If you are demonstrating initial 

compliance, you must conduct the 

separate performance tests as specified 

in § 63.1349(b)(7) while the raw mill of 

the inline kiln/raw mill is operating and 

while the raw mill of the inline kiln/raw 

mill is not operating. 

(iv) The average total organic HAP 

concentration measured during the 

separate initial performance test 

specified by § 63.1349(b)(7) must be 

used to determine initial compliance. 

(v) The average THC concentration 

measured during the initial performance 

test specified by § 63.1349(b)(4) must be 

used to determine the site-specific THC 

limit. Using the fraction of time the 

inline kiln/raw mill is on and the 

fraction of time that the inline kiln/raw 

mill is off, calculate this limit as a 

weighted average of the THC levels 

measured during raw mill on and raw 

mill off testing using one of the two 

approaches in § 63.1349(b)(7)(vii) or 

(viii) depending on the level of organic 

HAP measured during the compliance 

test. 

(5) Mercury Compliance. If you are 

subject to limitations on mercury 

emissions in § 63.1343(b), you must 

demonstrate compliance with the 

mercury standards by using the 

performance test methods and 

procedures in § 63.1349(b)(5). You must 

demonstrate compliance by operating a 

mercury CEMS or a sorbent trap based 

CEMS. Compliance with the mercury 

emissions standard must be determined 

based on the first 30 operating days you 

operate a mercury CEMS or sorbent trap 

monitoring system after the compliance 

date of this rule. 

(i) In calculating a 30 operating day 

emissions value using an integrating 

sorbent trap CEMS, assign the average 

Hg emissions concentration determined 

for an integrating period (e.g., 7 day 

sorbent trap monitoring system sample) 

to each relevant hour of the kiln 

operating days spanned by each 

integrated sample. Calculate the 30 kiln 

operating day emissions rate value using 

the assigned hourly Hg emissions 

concentrations and the respective flow 

and production rate values collected 

during the 30 kiln operating day 

performance test period. Depending on 

the duration of each integrated sampling 

period, you may not be able to calculate 

the 30 kiln operating day emissions 

value until several days after the end of 

the 30 kiln operating day performance 

test period. 

(ii) For example, a sorbent trap 

monitoring system producing an 

integrated 7-day sample will provide Hg 

concentration data for each hour of the 

first 28 kiln operating days (i.e., four 

values spanning 7 days each) of a 30 

operating day period. The Hg 

concentration values for the hours of the 

last 2 days of the 30 operating day 

period will not be available for 

calculating the emissions for the 

performance test period until at least 

five days after the end of the subject 

period. 

(6) HCl Compliance. If you are subject 

to limitations on HCl emissions under 

§ 63.1343(b), you must demonstrate 

initial compliance with the HCl 

standards by using the performance test 

methods and procedures in 

§ 63.1349(b)(6). 

(i) For an affected source that is 

equipped with a wet scrubber, tray 

tower or dry scrubber, you may 

demonstrate initial compliance by 

conducting a performance test as 

specified in § 63.1349(b)(6)(i). You must 

determine the HCl concentration for 

each run and calculate the arithmetic 

average of the concentrations measured 

for the three runs to determine 

compliance. You must also establish 

appropriate site-specific operational 

parameter limits. 

(ii) For an affected source that is not 

equipped with a wet scrubber, tray 

tower or dry scrubber, you must 

demonstrate initial compliance by 

operating a CEMS as specified in 

§ 63.1349(b)(6)(ii). You must use the 

average of the hourly HCl values 

obtained during the first 30 kiln 

operating days that occur after the 

compliance date of this rule to 

determine initial compliance. 

(7) Commingled Exhaust 

Requirements. If the coal mill exhaust is 

commingled with kiln exhaust in a 

single stack, you may demonstrate 

compliance with the kiln emission 

limits by either: 

(i) Performing required emissions 

monitoring and testing on the 

commingled coal mill and kiln exhaust, 

or 

(ii) Perform required emission 

monitoring and testing of the kiln 

exhaust prior to the reintroduction of 

the coal mill exhaust, and also testing 

the kiln exhaust diverted to the coal 

mill. All emissions must be added 

together for all emission points, and 

must not exceed the limit per each 

pollutant as listed in S63.1343(b). 

(b) Continuous Monitoring 

Requirements. You must demonstrate 

compliance with the emissions 

standards and operating limits by using 

the performance test methods and 

procedures in §§ 63.1350 and 63.8 for 

each affected source. 

(1) General Requirements. (i) You 

must monitor and collect data according 

to § 63.1350 and the site-specific 

monitoring plan required by 

§ 63.1350(p). 

(ii) Except for periods of startup and 

shutdown, monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, and 

required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), you must operate the 

monitoring system and collect data at all 

required intervals at all times the 

affected source is operating. 

(iii) You may not use data recorded 

during monitoring system malfunctions, 

repairs associated with monitoring 

system malfunctions, or required 

monitoring system quality assurance or 

control activities in calculations used to 

report emissions or operating levels. A 

monitoring system malfunction is any 

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10042 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

sudden, infrequent, not reasonably 

preventable failure of the monitoring 

system to provide valid data. 

Monitoring system failures that are 

caused in part by poor maintenance or 

careless operation are not malfunctions. 

You must use all the data collected 

during all other periods in assessing the 

operation of the control device and 

associated control system. 

(iv) Clinker Production. If you are 

subject to limitations on mercury 

emissions (lb/MM tons of clinker) under 

§ 63.1343(b), you must determine the 

hourly production rate of clinker 

according to the requirements of 

§ 63.1350(d). 

(2) PM Compliance. If you are subject 

to limitations on PM emissions under 

§ 63.1343(b), you must use the 

monitoring methods and procedures in 

§ 63.1350(b) and (d). 

(3) Opacity Compliance. If you are 

subject to the limitations on opacity 

under § 63.1345, you must demonstrate 

compliance using the monitoring 

methods and procedures in § 63.1350(f) 

based on the maximum 6-minute 

average opacity exhibited during the 

performance test period. You must 

initiate corrective actions within one 

hour of detecting visible emissions 

above the applicable limit. 

(i) COMS. If you install a COMS in 

lieu of conducting the daily visible 

emissions testing, you must demonstrate 

compliance using a COMS such that it 

is installed, operated, and maintained in 

accordance with the requirements of 

§ 63.1350(f)(4)(i). 

(ii) Bag leak determination system 

(BLDS). If you install a BLDS on a raw 

mill or finish mill in lieu of conducting 

the daily visible emissions testing, you 

must demonstrate compliance using a 

BLDS that is installed, operated, and 

maintained in accordance with the 

requirements of § 63.1350(f)(4)(ii). 

(4) D/F Compliance. If you are subject 

to a D/F emissions limitation under 

§ 63.1343(b), you must demonstrate 

compliance using a CMS that is 

installed, operated and maintained to 

record the temperature of specified gas 

streams in accordance with the 

requirements of § 63.1350(g). 

(5)(i) Activated Carbon Injection 

Compliance. If you use activated carbon 

injection to comply with the D/F 

emissions limitation under § 63.1343(b), 

you must demonstrate compliance using 

a CMS that is installed, operated, and 

maintained to record the rate of 

activated carbon injection in accordance 

with the requirements § 63.1350(h)(1). 

(ii) If you use activated carbon 

injection to comply with the D/F 

emissions limitation under § 63.1343(b), 

you must demonstrate compliance using 

a CMS that is installed, operated and 

maintained to record the activated 

carbon injection system gas parameter 

in accordance with the requirements of 

§ 63.1350(h)(2). 

(6) THC Compliance. (i) If you are 

subject to limitations on THC emissions 

under § 63.1343(b), you must 

demonstrate compliance using the 

monitoring methods and procedures in 

§ 63.1350(i) and (j). 

(ii) THC must be measured either 

upstream of the coal mill or in the coal 

mill stack. 

(7) Mercury Compliance. (i) If you are 

subject to limitations on mercury 

emissions in § 63.1343(b), you must 

demonstrate compliance using the 

monitoring methods and procedures in 

§ 63.1350(k). If you use an integrated 

sorbent trap monitoring system to 

determine ongoing compliance, use the 

procedures described in § 63.1348(a)(5) 

to assign hourly mercury concentration 

values and to calculate rolling 30 

operating day emissions rates. Since you 

assign the mercury concentration 

measured with the sorbent trap to each 

relevant hour respectively for each 

operating day of the integrated period, 

you may schedule the sorbent trap 

change periods to any time of the day 

(i.e., the sorbent trap replacement need 

not be scheduled at 12:00 midnight nor 

must the sorbent trap replacements 

occur only at integral 24-hour intervals). 

(ii) Mercury must be measured either 

upstream of the coal mill or in the coal 

mill stack. 

(8) HCl Compliance. If you are subject 

to limitations on HCl emissions under 

§ 63.1343(b), you must demonstrate 

compliance using the performance test 

methods and procedures in 

§ 63.1349(b)(6). 

(i) For an affected source that is not 

equipped with a wet scrubber, tray 

tower or a dry sorbent injection system, 

you must demonstrate compliance using 

the monitoring methods and procedures 

in § 63.1350(l)(1). 

(ii) For an affected source that is 

equipped with a wet scrubber, tray 

tower or a dry sorbent injection system, 

you may demonstrate compliance using 

the monitoring methods and procedures 

in § 63.1350(l)(2). 

(iii) HCl may be measured either 

upstream of the coal mill or in the coal 

mill stack. 

(iv) As an alternative to paragraph 

(b)(8)(ii) of this section, you may use an 

SO2 CEMS to establish an SO2 operating 

level during your initial and repeat HCl 

performance tests and monitor the SO2

level using the procedures in 

§ 63.1350(l)(3). 

(9) Startup and Shutdown 

Compliance. In order to demonstrate 

continuous compliance during startup 

and shutdown, all air pollution control 

devices must be operating. 

(c) * * * 

(2) * * * 

(iv) The performance test must be 

completed within 360 hours after the 

planned operational change period 

begins. 

* * * * * 

■ 17. Section 63.1349 is amended by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Revising paragraph (b)(1); 

■ c. Revising paragraph (b)(3) 

introductory text; 

■ d. Revising paragraphs (b)(3)(v) and 

(vi); 

■ e. Revising paragraphs (b)(4), (5), and 

(6); 

■ f. Adding paragraph (b)(7) and (8); and 

■ g. Revising paragraphs (c), (d)(1) 

introductory text, (d)(1)(ii), (d)(2), and 

(e). 

The revisions and additions read as 

follows: 

§ 63.1349 Performance testing 

requirements. 

(a) You must document performance 

test results in complete test reports that 

contain the information required by 

paragraphs (a)(1) through (10) of this 

section, as well as all other relevant 

information. As described in 

§ 63.7(c)(2)(i), you must make available 

to the Administrator prior to testing, if 

requested, the site-specific test plan to 

be followed during performance testing. 

For purposes of determining exhaust gas 

flow rate to the atmosphere from an 

alkali bypass stack or a coal mill stack, 

you must either install, operate, 

calibrate and maintain an instrument for 

continuously measuring and recording 

the exhaust gas flow rate according to 

the requirements in paragraphs 

§ 63.1350(n)(1) through (10) of this 

subpart or use the maximum design 

exhaust gas flow rate. For purposes of 

determining the combined emissions 

from kilns equipped with an alkali 

bypass or that exhaust kiln gases to a 

coal mill that exhausts through a 

separate stack, instead of installing a 

CEMS on the alkali bypass stack or coal 

mill stack, you may use the results of 

the initial and subsequent performance 

test to demonstrate compliance with the 

relevant emissions limit. 

* * * * * 

(b)(1) PM emissions tests. The owner 

or operator of a kiln subject to 

limitations on PM emissions shall 

demonstrate initial compliance by 

conducting a performance test using 

Method 5 or Method 5I at appendix A– 

3 to part 60 of this chapter. You must 

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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10043 

also monitor continuous performance 

through use of a PM continuous 

parametric monitoring system (PM 

CPMS). 

(i) For your PM CPMS, you will 

establish a site-specific operating limit. 

If your PM performance test 

demonstrates your PM emission levels 

to be below 75 percent of your emission 

limit you will use the average PM CPMS 

value recorded during the PM 

compliance test, the milliamp 

equivalent of zero output from your PM 

CPMS, and the average PM result of 

your compliance test to establish your 

operating limit. If your PM compliance 

test demonstrates your PM emission 

levels to be at or above 75 percent of 

your emission limit you will use the 

average PM CPMS value recorded 

during the PM compliance test to 

establish your operating limit. You will 

use the PM CPMS to demonstrate 

continuous compliance with your 

operating limit. You must repeat the 

performance test annually and reassess 

and adjust the site-specific operating 

limit in accordance with the results of 

the performance test. 

(A) Your PM CPMS must provide a 4– 

20 milliamp output and the 

establishment of its relationship to 

manual reference method measurements 

must be determined in units of 

milliamps. 

(B) Your PM CPMS operating range 

must be capable of reading PM 

concentrations from zero to a level 

equivalent to three times your allowable 

emission limit. If your PM CPMS is an 

auto-ranging instrument capable of 

multiple scales, the primary range of the 

instrument must be capable of reading 

PM concentration from zero to a level 

equivalent to three times your allowable 

emission limit. 

(C) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, record and average all 

milliamp output values from the PM 

CPMS for the periods corresponding to 

the compliance test runs (e.g., average 

all your PM CPMS output values for 

three corresponding 2-hour Method 5I 

test runs). 

(ii) Determine your operating limit as 

specified in paragraphs (b)(1)(iii) 

through (iv) of this section. If your PM 

performance test demonstrates your PM 

emission levels to be below 75 percent 

of your emission limit you will use the 

average PM CPMS value recorded 

during the PM compliance test, the 

milliamp equivalent of zero output from 

your PM CPMS, and the average PM 

result of your compliance test to 

establish your operating limit. If your 

PM compliance test demonstrates your 

PM emission levels to be at or above 75 

percent of your emission limit you will 

use the average PM CPMS value 

recorded during the PM compliance test 

to establish your operating limit. You 

must verify an existing or establish a 

new operating limit after each repeated 

performance test. You must repeat the 

performance test at least annually and 

reassess and adjust the site-specific 

operating limit in accordance with the 

results of the performance test. 

(iii) If the average of your three 

Method 5 or 5I compliance test runs is 

below 75 percent of your PM emission 

limit, you must calculate an operating 

limit by establishing a relationship of 

PM CPMS signal to PM concentration 

using the PM CPMS instrument zero, 

the average PM CPMS values 

corresponding to the three compliance 

test runs, and the average PM 

concentration from the Method 5 or 5I 

compliance test with the procedures in 

(a)(1)(iii)(A) through (D) of this section. 

(A) Determine your PM CPMS 

instrument zero output with one of the 

following procedures. 

(1) Zero point data for in-situ 

instruments should be obtained by 

removing the instrument from the stack 

and monitoring ambient air on a test 

bench. 

(2) Zero point data for extractive 

instruments should be obtained by 

removing the extractive probe from the 

stack and drawing in clean ambient air. 

(3) The zero point may also be 

established by performing manual 

reference method measurements when 

the flue gas is free of PM emissions or 

contains very low PM concentrations 

(e.g., when your process is not 

operating, but the fans are operating or 

your source is combusting only natural 

gas) and plotting these with the 

compliance data to find the zero 

intercept. 

(4) If none of the steps in paragraphs 

(a)(1)(iii)(A)(1) through (3) of this 

section are possible, you must use a zero 

output value provided by the 

manufacturer. 

(B) Determine your PM CPMS 

instrument average in milliamps, and 

the average of your corresponding three 

PM compliance test runs, using 

equation 3. 

Where: 

X1 = The PM CPMS data points for the three 

runs constituting the performance test. 

Y1 = The PM concentration value for the 

three runs constituting the performance 

test. 

n = The number of data points. 

(C) With your instrument zero 

expressed in milliamps, your three run 

average PM CPMS milliamp value, and 

your three run PM compliance test 

average, determine a relationship of lb/ 

ton-clinker per milliamp with Equation 

4. 

Where: 

R = The relative lb/ton-clinker per milliamp 

for your PM CPMS. 

Y1 = The three run average lb/ton-clinker PM 

concentration. 

X1 = The three run average milliamp output 

from you PM CPMS. 

z = The milliamp equivalent of your 

instrument zero determined from 

(b)(1)(iii)(A). 

(D) Determine your source specific 30- 

day rolling average operating limit using 

the lb/ton-clinker per milliamp value 

from Equation 4 in Equation 5, below. 

This sets your operating limit at the PM 

CPMS output value corresponding to 75 

percent of your emission limit. 


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10044 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

Where: 

Ol = The operating limit for your PM CPMS 

on a 30-day rolling average, in 

milliamps. 

L = Your source emission limit expressed in 

lb/ton clinker. 

z = Your instrument zero in milliamps, 

determined from (1)(i). 

R = The relative lb/ton-clinker per milliamp 

for your PM CPMS, from Equation 4. 

(iv) If the average of your three PM 

compliance test runs is at or above 75 

percent of your PM emission limit you 

must determine your operating limit by 

averaging the PM CPMS milliamp 

output corresponding to your three PM 

performance test runs that demonstrate 

compliance with the emission limit 

using Equation 6. 

Where: 

X1 = The PM CPMS data points for all runs 

i. 

n = The number of data points. 

Oh = Your site specific operating limit, in 

milliamps. 

(v) To determine continuous 

operating compliance, you must record 

the PM CPMS output data for all periods 

when the process is operating, and use 

all the PM CPMS data for calculations 

when the source is not out-of-control. 

You must demonstrate continuous 

compliance by using all quality-assured 

hourly average data collected by the PM 

CPMS for all operating hours to 

calculate the arithmetic average 

operating parameter in units of the 

operating limit (milliamps) on a 30 

operating day rolling average basis, 

updated at the end of each new kiln 

operating day. Use Equation 7 to 

determine the 30 kiln operating day 

average. 

Where: 

Hpvi = The hourly parameter value for hour 

i. 

n = The number of valid hourly parameter 

values collected over 30 kiln operating 

days. 

(vi) For each performance test, 

conduct at least three separate test runs 

under the conditions that exist when the 

affected source is operating at the 

highest load or capacity level reasonably 

expected to occur. Conduct each test 

run to collect a minimum sample 

volume of 2 dscm for determining 

compliance with a new source limit and 

1 dscm for determining compliance 

with an existing source limit. Calculate 

the average of the results from three 

consecutive runs, including applicable 

sources as required by (D)(viii), to 

determine compliance. You need not 

determine the particulate matter 

collected in the impingers (‘‘back half’’) 

of the Method 5 or Method 5I 

particulate sampling train to 

demonstrate compliance with the PM 

standards of this subpart. This shall not 

preclude the permitting authority from 

requiring a determination of the ‘‘back 

half’’ for other purposes. 

(vii) For PM performance test reports 

used to set a PM CPMS operating limit, 

the electronic submission of the test 

report must also include the make and 

model of the PM CPMS instrument, 

serial number of the instrument, 

analytical principle of the instrument 

(e.g. beta attenuation), span of the 

instruments primary analytical range, 

milliamp value equivalent to the 

instrument zero output, technique by 

which this zero value was determined, 

and the average milliamp signals 

corresponding to each PM compliance 

test run. 

(viii) When there is an alkali bypass 

and/or an inline coal mill with a 

separate stack associated with a kiln, the 

main exhaust and alkali bypass and/or 

inline coal mill must be tested 

simultaneously and the combined 

emission rate of PM from the kiln and 

alkali bypass and/or inline coal mill 

must be computed for each run using 

Equation 8 of this section. 

Where: 

EC = Combined hourly emission rate of PM 

from the kiln and bypass stack and/or 

inline coal mill, lb/ton of kiln clinker 

production. 

EK = Hourly emissions of PM emissions from 

the kiln, lb. 

EB = Hourly PM emissions from the alkali 

bypass stack, lb. 

EC = Hourly PM emissions from the inline 

coal mill stack, lb. 

P = Hourly clinker production, tons. 

(ix) The owner or operator of a kiln 

with an in-line raw mill and subject to 

limitations on PM emissions shall 

demonstrate initial compliance by 

conducting separate performance tests 

while the raw mill is under normal 

operating conditions and while the raw 

mill is not operating. 

* * * * * 


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(3) D/F Emissions Tests. If you are 

subject to limitations on D/F emissions 

under this subpart, you must conduct a 

performance test using Method 23 of 

appendix A–7 to part 60 of this chapter. 

If your kiln or in-line kiln/raw mill is 

equipped with an alkali bypass, you 

must conduct simultaneous 

performance tests of the kiln or in-line 

kiln/raw mill exhaust and the alkali 

bypass. You may conduct a performance 

test of the alkali bypass exhaust when 

the raw mill of the in-line kiln/raw mill 

is operating or not operating. 

* * * * * 

(v)(A) If sorbent injection is used for 

D/F control, you must record the rate of 

sorbent injection to the kiln exhaust, 

and where applicable, the rate of 

sorbent injection to the alkali bypass 

exhaust, continuously during the period 

of the Method 23 test in accordance 

with the conditions in § 63.1350(m)(9), 

and include the continuous injection 

rate record(s) in the performance test 

report. Determine the sorbent injection 

rate parameters in accordance with 

paragraphs (b)(3)(vi) of this section. 

(B) Include the brand and type of 

sorbent used during the performance 

test in the performance test report. 

(C) Maintain a continuous record of 

either the carrier gas flow rate or the 

carrier gas pressure drop for the 

duration of the performance test. If the 

carrier gas flow rate is used, determine, 

record, and maintain a record of the 

accuracy of the carrier gas flow rate 

monitoring system according to the 

procedures in appendix A to part 75 of 

this chapter. If the carrier gas pressure 

drop is used, determine, record, and 

maintain a record of the accuracy of the 

carrier gas pressure drop monitoring 

system according to the procedures in 

§ 63.1350(m)(6). 

(vi) Calculate the run average sorbent 

injection rate for each run and 

determine and include the average of 

the run average injection rates in the 

performance test report and determine 

the applicable injection rate limit in 

accordance with § 63.1346(c)(1). 

(4) THC emissions test. (i) If you are 

subject to limitations on THC emissions, 

you must operate a CEMS in accordance 

with the requirements in § 63.1350(i). 

For the purposes of conducting the 

accuracy and quality assurance 

evaluations for CEMS, the THC span 

value (as propane) is 50 ppmvd and the 

reference method (RM) is Method 25A 

of appendix A to part 60 of this chapter. 

(ii) Use the THC CEMS to conduct the 

initial compliance test for the first 30 

kiln operating days of kiln operation 

after the compliance date of the rule. 

See 63.1348(a). 

(iii) If kiln gases are diverted through 

an alkali bypass or to a coal mill and 

exhausted through a separate stack, you 

must calculate a kiln-specific THC limit 

using Equation 9: 

Where: 

Cks = Kiln stack concentration (ppmvd). 

Qab = Alkali bypass flow rate (volume/hr). 

Cab = Alkali bypass concentration (ppmvd). 

Qcm = Coal mill flow rate (volume/hr). 

Ccm = Coal mill concentration (ppmvd). 

Qks = Kiln stack flow rate (volume/hr). 

(iv) THC must be measured either 

upstream of the coal mill or the coal 

mill stack. 

(v) Instead of conducting the 

performance test specified in paragraph 

(b)(4)of this section, you may conduct a 

performance test to determine emissions 

of total organic HAP by following the 

procedures in paragraphs (b)(7) of this 

section. 

(5) Mercury Emissions Tests. If you 

are subject to limitations on mercury 

emissions, you must operate a mercury 

CEMS or a sorbent trap monitoring 

system in accordance with the 

requirements of § 63.1350(k). The initial 

compliance test must be based on the 

first 30 kiln operating days in which the 

affected source operates using a mercury 

CEMS or a sorbent trap monitoring 

system after the compliance date of the 

rule. See § 63.1348(a). 

(i) If you are using a mercury CEMS 

or a sorbent trap monitoring system, you 

must install, operate, calibrate, and 

maintain an instrument for 

continuously measuring and recording 

the exhaust gas flow rate to the 

atmosphere according to the 

requirements in § 63.1350(k)(5). 

(ii) Calculate the emission rate using 

Equation 10 of this section: 

Where: 

E30D = 30-day rolling emission rate of 

mercury, lb/MM tons clinker. 

Ci = Concentration of mercury for operating 

hour i, mg/scm. 

Qi = Volumetric flow rate of effluent gas for 

operating hour i, where Ci and Qi are on 

the same basis (either wet or dry), scm/ 

hr. 

k = Conversion factor, 1 lb/454,000,000 mg. 

n = Number of kiln operating hours in a 30 

kiln operating day period. 

P = 30 days of clinker production during the 

same time period as the mercury 

emissions measured, million tons. 

(6) HCl emissions tests. For a source 

subject to limitations on HCl emissions 

you must conduct performance testing 

by one of the following methods: 

(i)(A) If the source is equipped with 

a wet scrubber, tray tower or dry 

scrubber, you must conduct 

performance testing using Method 321 

of appendix A to this part unless you 

have installed a CEMS that meets the 

requirements § 63.1350(l)(1). For kilns 

with inline raw mills, testing should be 

conducted for the raw mill on and raw 

mill off conditions. 

(B) You must establish site specific 

parameter limits by using the CPMS 

required in § 63.1350(l)(1). For a wet 

scrubber or tray tower, measure and 

record the pressure drop across the 

scrubber and/or liquid flow rate and pH 

in intervals of no more than 15 minutes 

during the HCl test. Compute and record 

the 24-hour average pressure drop, pH, 

and average scrubber water flow rate for 

each sampling run in which the 

applicable emissions limit is met. For a 

dry scrubber, measure and record the 

sorbent injection rate in intervals of no 

more than 15 minutes during the HCl 

test. Compute and record the 24-hour 

average sorbent injection rate and 

average sorbent injection rate for each 

sampling run in which the applicable 

emissions limit is met. 

(ii)(A) If the source is not controlled 

by a wet scrubber, tray tower or dry 

sorbent injection system, you must 

operate a CEMS in accordance with the 

requirements of § 63.1350(l)(1). See 

§ 63.1348(a). 

(B) The initial compliance test must 

be based on the 30 kiln operating days 

that occur after the compliance date of 

this rule in which the affected source 

operates using a HCl CEMS. Hourly HCl 

concentration data must be obtained 

according to § 63.1350(l). 

(iii) As an alternative to paragraph 

(b)(6)(i)(B) of this section, you may 

choose to monitor SO2 emissions using 

a CEMS in accordance with the 


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10046 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

requirements of § 63.1350(l)(3). You 

must establish an SO2 operating limit 

equal to the highest 1 hour average 

recorded during the HCl stack test. This 

operating limit will apply only for 

demonstrating HCl compliance. 

(iv) If kiln gases are diverted through 

an alkali bypass or to a coal mill and 

exhausted through a separate stack, you 

must calculate a kiln-specific HCl limit 

using Equation 11: 

Where: 

Cks = Kiln stack concentration (ppmvd). 

Qab = Alkali bypass flow rate (volume/hr). 

Cab = Alkali bypass concentration (ppmvd). 

Qcm = Coal mill flow rate (volume/hr). 

Ccm = Coal mill concentration (ppmvd). 

Qks = Kiln stack flow rate (volume/hr). 

(7) Total Organic HAP Emissions 

Tests. Instead of conducting the 

performance test specified in paragraph 

(a)(4) of this section, you may conduct 

a performance test to determine 

emissions of total organic HAP by 

following the procedures in paragraphs 

(a)(7)(i) through (v) of this section. 

(i) Use Method 320 of appendix A to 

this part, Method 18 of Appendix A of 

part 60, ASTM D6348–03 or a 

combination to determine emissions of 

total organic HAP. Each performance 

test must consist of three separate runs 

under the conditions that exist when the 

affected source is operating at the 

representative performance conditions 

in accordance with § 63.7(e). Each run 

must be conducted for at least 1 hour. 

(ii) At the same time that you are 

conducting the performance test for 

total organic HAP, you must also 

determine a site-specific THC emissions 

limit by operating a THC CEMS in 

accordance with the requirements of 

§ 63.1350(j). The duration of the 

performance test must be at least 3 

hours and the average THC 

concentration (as calculated from the 1- 

minute averages) during the 3-hour test 

must be calculated. You must establish 

your THC operating limit and determine 

compliance with it according to 

paragraphs (a)(7)(vii)through (viii)of this 

section. It is permissible to extend the 

testing time of the organic HAP 

performance test if you believe extended 

testing is required to adequately capture 

THC variability over time. 

(iii) If your source has an in-line kiln/ 

raw mill you must use the fraction of 

time the raw mill is on and the fraction 

of time that the raw mill is off and 

calculate this limit as a weighted 

average of the THC levels measured 

during raw mill on and raw mill off 

testing. 

(iv) If your organic HAP emissions are 

below 75 percent of the organic HAP 

standard and you determine your 

operating limit with paragraph 

(b)(7)(vii) of this section your THC 

CEMS must be calibrated and operated 

on a measurement scale no greater than 

180 ppmvw, as carbon, or 60 ppmvw as 

propane. 

(v) Your THC CEMS measurement 

scale must be capable of reading THC 

concentrations from zero to a level 

equivalent to two times your highest 

THC emissions average determined 

during your performance test, including 

mill on or mill off operation. Note: This 

may require the use of a dual range 

instrument to meet this requirement and 

paragraph (b)(7)(iv) of this section. 

(vi) Determine your operating limit as 

specified in paragraphs (a)(7)(vii) and 

(viii) of this section. If your organic HAP 

performance test demonstrates your 

average organic HAP emission levels are 

below 75 percent of your emission limit 

(9 ppmv) you will use the average THC 

value recorded during the organic HAP 

performance test, and the average total 

organic HAP result of your performance 

test to establish your operating limit. If 

your organic HAP compliance test 

results demonstrate your average 

organic HAP emission levels are at or 

above 75 percent of your emission limit, 

your operating limit is established as the 

average THC value recorded during the 

organic HAP performance test. You 

must establish a new operating limit 

after each performance test. You must 

repeat the performance test no later than 

30 months following your last 

performance test and reassess and adjust 

the site-specific operating limit in 

accordance with the results of the 

performance test. 

(vii) If the average organic HAP 

results for your three Method 18 and/or 

Method 320 performance test runs are 

below 75 percent of your organic HAP 

emission limit, you must calculate an 

operating limit by establishing a 

relationship of THC CEMS signal to the 

organic HAP concentration using the 

average THC CEMS value corresponding 

to the three organic HAP compliance 

test runs and the average organic HAP 

total concentration from the Method 18 

and/or Method 320 performance test 

runs with the procedures in 

(a)(7)(vii)(A) and (B) of this section. 

(A) Determine the THC CEMS average 

values in ppmvw, and the average of 

your corresponding three total organic 

HAP compliance test runs, using 

Equation 12. 

Where: 

x ̄ = The THC CEMS average values in 

ppmvw. 

Xi= The THC CEMS data points for all three 

runs i. 

Yi= The sum of organic HAP concentrations 

for test runs i. and 

n = The number of data points. 

(B) You must use your three run 

average THC CEMS value, and your 

three run average organic HAP 

concentration from your three Method 

18 and/or Method 320 compliance tests 

to determine the operating limit. Use 

equation 13 to determine your operating 

limit in units of ppmvw THC, as 

propane. 


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Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 10047 

Where: 

Tl = The 30-day operating limit for your THC 

CEMS, ppmvw. 

Y1 = The average organic HAP concentration 

from Eq. 12, ppmv. 

X1 = The average THC CEMS concentration 

from Eq. 12, ppmvw. 

(viii) If the average of your three 

organic HAP performance test runs is at 

or above 75 percent of your organic HAP 

emission limit, you must determine 

your operating limit using Equation 14 

by averaging the THC CEMS output 

values corresponding to your three 

organic HAP performance test runs that 

demonstrate compliance with the 

emission limit. If your new THC CEMS 

value is below your current operating 

limit, you may opt to retain your current 

operating limit, but you must still 

submit all performance test and THC 

CEMS data according to the reporting 

requirements in paragraph (d)(1) of this 

section. 

Where: 

X1 = The THC CEMS data points for all runs 

i. 

Y1 = The organic HAP total value for runs 

i. 

n = The number of data points. 

Th = Your site specific operating limit, in 

ppmvw THC. 

(ix) If your kiln has an inline kiln/raw 

mill, you must conduct separate 

performance tests while the raw mill is 

operating (‘‘mill on’’) and while the raw 

mill is not operating (‘‘mill off’’). Using 

the fraction of time the raw mill is on 

and the fraction of time that the raw 

mill is off, calculate this limit as a 

weighted average of the THC levels 

measured during raw mill on and raw 

mill off compliance testing with 

Equation 15. 

Where: 

R = Operating limit as THC, ppmvw. 

y = Average THC CEMS value during mill on 

operations, ppmvw. 

t = Percentage of operating time with mill on. 

x = Average THC CEMS value during mill off 

operations, ppmvw. 

(1-t) = Percentage of operating time with mill 

off. 

(x) To determine continuous 

compliance with the THC operating 

limit, you must record the THC CEMS 

output data for all periods when the 

process is operating and the THC CEMS 

is not out-of-control. You must 

demonstrate continuous compliance by 

using all quality-assured hourly average 

data collected by the THC CEMS for all 

operating hours to calculate the 

arithmetic average operating parameter 

in units of the operating limit (ppmvw) 

on a 30 operating day rolling average 

basis, updated at the end of each new 

kiln operating day. Use Equation 16 to 

determine the 30 kiln operating day 

average. 

Where: 

Hpvi = The hourly parameter value for hour 

i, ppmvw. 

n = The number of valid hourly parameter 

values collected over 30 kiln operating 

days. 

(xi) Use EPA Method 18 or Method 

320 of appendix A to part 60 of this 

chapter to determine organic HAP 

emissions. For each performance test, 

conduct at least three separate runs 

under the conditions that exist when the 

affected source is operating at the 

highest load or capacity level reasonably 

expected to occur. If your source has an 

in-line kiln/raw mill you must conduct 

three separate test runs with the raw 

mill on, and three separate runs under 

the conditions that exist when the 

affected source is operating at the 

highest load or capacity level reasonably 

expected to occur with the mill off. 

Conduct each Method 18 test run to 

collect a minimum target sample 

equivalent to three times the method 

detection limit. Calculate the average of 

the results from three runs to determine 

compliance. 

(xii) If the THC level exceeds by 10 

percent or more your site-specific THC 

emissions limit, you must 

(A) As soon as possible but no later 

than 30 days after the exceedance, 

conduct an inspection and take 

corrective action to return the THC 

CEMS measurements to within the 

established value; and 

(B) Within 90 days of the exceedance 

or at the time of the annual compliance 

test, whichever comes first, conduct 

another performance test to determine 

compliance with the organic HAP limit 

and to verify or re-establish your sitespecific THC emissions limit. 

(8) HCl Emissions Tests with SO2

Monitoring. If you choose to monitor 

SO2 emissions using a CEMS to 

demonstrate HCl compliance, follow the 

procedures in (b)(8)(i) through (ix) of 

this section and in accordance with the 

requirements of § 63.1350(l)(3). You 

must establish an SO2 operating limit 

equal to the average of the SO2

emissions recorded during the HCl stack 

test. This operating limit will apply only 

for demonstrating HCl compliance. 

(i) Use Method 321 of appendix A to 

this part to determine emissions of HCl. 

Each performance test must consist of 

three separate runs under the conditions 

that exist when the affected source is 

operating at the representative 

performance conditions in accordance 

with § 63.7(e). Each run must be 

conducted for at least one hour. 

(ii) At the same time that you are 

conducting the performance test for 

HCl, you must also determine a sitespecific SO2 emissions limit by 


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10048 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

operating an SO2 CEMS in accordance 

with the requirements of § 63.1350(l). 

The duration of the performance test 

must be three hours and the average SO2

concentration (as calculated from the 

1-minute averages) during the 3-hour 

test must be calculated. You must 

establish your SO2 operating limit and 

determine compliance with it according 

to paragraphs (b)(8)(vii) and (viii)of this 

section. 

(iii) If your source has an in-line kiln/ 

raw mill you must use the fraction of 

time the raw mill is on and the fraction 

of time that the raw mill is off and 

calculate this limit as a weighted 

average of the SO2 levels measured 

during raw mill on and raw mill off 

testing. 

(iv) Your SO2 CEMS must be 

calibrated and operated according to the 

requirements of § 60.63(f). 

(v) Your SO2 CEMS measurement 

scale must be capable of reading SO2

concentrations consistent with the 

requirements of § 60.63(f), including 

mill on or mill off operation. 

(vi) If your kiln has an inline kiln/raw 

mill, you must conduct separate 

performance tests while the raw mill is 

operating (‘‘mill on’’) and while the raw 

mill is not operating (‘‘mill off’’). Using 

the fraction of time the raw mill is on 

and the fraction of time that the raw 

mill is off, calculate this limit as a 

weighted average of the THC levels 

measured during raw mill on and raw 

mill off compliance testing with 

Equation 17. 

Where: 

R = Operating limit as SO2, ppmvw. 

y = Average SO2 CEMS value during mill on 

operations, ppmvw. 

t = Percentage of operating time with mill on, 

expressed as a decimal. 

x = Average SO2 CEMS value during mill off 

operations, ppmvw. 

t¥1 = Percentage of operating time with mill 

off, expressed as a decimal. 

(vii) To determine continuous 

compliance with the SO2 operating 

limit, you must record the SO2 CEMS 

output data for all periods when the 

process is operating and the SO2 CEMS 

is not out-of-control. You must 

demonstrate continuous compliance by 

using all quality-assured hourly average 

data collected by the SO2 CEMS for all 

operating hours to calculate the 

arithmetic average operating parameter 

in units of the operating limit (ppmvw) 

on a 30 operating day rolling average 

basis, updated at the end of each new 

kiln operating day. Use Equation 18 to 

determine the 30 kiln operating day 

average. 

Where: 

Hpvi = The hourly parameter value for hour 

i, ppmvw. 

n = The number of valid hourly parameter 

values collected over 30 kiln operating 

days. 

(viii) Use EPA Method 321 of 

appendix A to part 60 of this chapter to 

determine HCl emissions. For each 

performance test, conduct at least three 

separate runs under the conditions that 

exist when the affected source is 

operating at the highest load or capacity 

level reasonably expected to occur. If 

your source has an in-line kiln/raw mill 

you must conduct three separate test 

runs with the raw mill on, and three 

separate runs under the conditions that 

exist when the affected source is 

operating at the highest load or capacity 

level reasonably expected to occur with 

the mill off. 

(ix) If the SO2 level exceeds by 10 

percent or more your site-specific SO2

emissions limit, you must 

(A) As soon as possible but no later 

than 30 days after the exceedance, 

conduct an inspection and take 

corrective action to return the SO2

CEMS measurements to within the 

established value. and 

(B) Within 90 days of the exceedance 

or at the time of the annual compliance 

test, whichever comes first, conduct 

another performance test to determine 

compliance with the HCl limit and to 

verify or re-establish your site-specific 

SO2 emissions limit. 

(c) Performance Test Frequency. 

Except as provided in § 63.1348(b), 

performance tests are required at regular 

intervals for affected sources that are 

subject to a dioxin, organic HAP or HCl 

emissions limit and must be repeated 

every 30 months except for pollutants 

where that specific pollutant is 

monitored using CEMS. Tests for PM are 

repeated every 12 months. 

(d) Performance Test Reporting 

Requirements. (1) You must submit the 

information specified in paragraphs 

(d)(1) and (2) of this section no later 

than 60 days following the initial 

performance test. All reports must be 

signed by a responsible official. 

* * * * * 

(ii) The values for the site-specific 

operating limits or parameters 

established pursuant to paragraphs 

(b)(1), (3), (6), and (7) of this section, as 

applicable, and a description, including 

sample calculations, of how the 

operating parameters were established 

during the initial performance test. 

(2) As of December 31, 2011 and 

within 60 days after the date of 

completing each performance 

evaluation or test, as defined in § 63.2, 

conducted to demonstrate compliance 

with any standard covered by this 

subpart, you must submit the relative 

accuracy test audit data and 

performance test data, except opacity 

data, to the EPA by successfully 

submitting the data electronically to the 

EPA’s Central Data Exchange (CDX) by 

using the Electronic Reporting 

Tool(ERT) (see http://www.epa.gov/ttn/ 

chief/ert/ert_tool.html/). 

(e) Conditions of performance tests. 

Conduct performance tests under such 

conditions as the Administrator 

specifies to the owner or operator based 

on representative performance of the 

affected source for the period being 

tested. Upon request, you must make 

available to the Administrator such 

records as may be necessary to 

determine the conditions of 

performance tests. 

■ 18. Section 63.1350 is amended by: 

■ a. Revising paragraphs (a) through (d); 

■ b. Revising paragraph (f) introductory 

text; 


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■ c. Revising paragraphs (f)(1)(iv) 

through (f)(1)(vi); 

■ d. Revising paragraphs (f)(2)(i) and 

(f)(2)(iii); 

■ e. Revising paragraphs (f)(3) and (f)(4); 

■ f. Revising paragraph (g)(1) 

introductory text; 

■ g. Revising paragraphs (g)(2) and 

(g)(4); 

■ h. Revising paragraph (h)(1)(ii); 

■ i. Revising paragraphs (i)(1) and (i)(2); 

■ j. Revising paragraph (k); 

■ k. Revising paragraph (l); 

■ l. Revising paragraph (m) introductory 

text; 

■ m. Revising paragraphs (m)(3) and 

(m)(7)(i); 

■ n. Revising introductory text for 

paragraphs (m)(9) and (m) (10); 

■ o. Revising paragraph (m)(10)(i) 

through (m)(10)(vii), and paragraph 

(m)(11)(v); 

■ p. Revising introductory text for 

paragraphs (n), (o), and (p); 

■ q. Removing and reserving paragraph 

(n)(3); and 

■ r. Revising introductory text for 

paragraphs (p)(1), (p)(2), and (p)(5). 

The revisions and additions read as 

follows: 

§ 63.1350 Monitoring requirements. 

(a)(1) Following the compliance date, 

the owner or operator must demonstrate 

compliance with this subpart on a 

continuous basis by meeting the 

requirements of this section. 

(2) All continuous monitoring data for 

periods of startup and shutdown must 

be compiled and averaged separately 

from data gathered during other 

operating periods. 

(3) For each existing unit that is 

equipped with a CMS, maintain the 

average emissions or the operating 

parameter values within the operating 

parameter limits established through 

performance tests. 

(4) Any instance where the owner or 

operator fails to comply with the 

continuous monitoring requirements of 

this section is a violation. 

(b) PM monitoring requirements. (1)(i) 

PM CPMS. You will use a PM CPMS to 

establish a site-specific operating limit 

corresponding to the results of the 

performance test demonstrating 

compliance with the PM limit. You will 

conduct your performance test using 

Method 5 or Method 5I at appendix A– 

3 to part 60 of this chapter. You will use 

the PM CPMS to demonstrate 

continuous compliance with this 

operating limit. You must repeat the 

performance test annually and reassess 

and adjust the site-specific operating 

limit in accordance with the results of 

the performance test using the 

procedures in § 63.1349(b)(1) (i) through 

(vi) of this subpart. You must also repeat 

the test if you change the analytical 

range of the instrument, or if you 

replace the instrument itself or any 

principle analytical component of the 

instrument that would alter the 

relationship of output signal to in-stack 

PM concentration. 

(ii) To determine continuous 

compliance, you must use the PM CPMS 

output data for all periods when the 

process is operating and the PM CPMS 

is not out-of-control. You must 

demonstrate continuous compliance by 

using all quality-assured hourly average 

data collected by the PM CPMS for all 

operating hours to calculate the 

arithmetic average operating parameter 

in units of the operating limit 

(milliamps) on a 30 operating day 

rolling average basis, updated at the end 

of each new kiln operating day. 

(iii) For any exceedance of the 30 

process operating day PM CPMS average 

value from the established operating 

parameter limit, you must: 

(A) Within 48 hours of the 

exceedance, visually inspect the APCD; 

(B) If inspection of the APCD 

identifies the cause of the exceedance, 

take corrective action as soon as 

possible and return the PM CPMS 

measurement to within the established 

value; and 

(C) Within 30 days of the exceedance 

or at the time of the annual compliance 

test, whichever comes first, conduct a 

PM emissions compliance test to 

determine compliance with the PM 

emissions limit and to verify or reestablish the PM CPMS operating limit 

within 45 days. You are not required to 

conduct additional testing for any 

exceedances that occur between the 

time of the original exceedance and the 

PM emissions compliance test required 

under this paragraph. 

(iv) PM CPMS exceedances leading to 

more than four required performance 

tests in a 12-month process operating 

period (rolling monthly) constitute a 

presumptive violation of this subpart. 

(2) [Reserved] 

(c) [Reserved] 

(d) Clinker production monitoring 

requirements. In order to determine 

clinker production, you must: 

(1) Determine hourly clinker 

production by one of two methods: 

(i) Install, calibrate, maintain, and 

operate a permanent weigh scale system 

to measure and record weight rates in 

tons-mass per hour of the amount of 

clinker produced. The system of 

measuring hourly clinker production 

must be maintained within ±5 percent 

accuracy, or 

(ii) Install, calibrate, maintain, and 

operate a permanent weigh scale system 

to measure and record weight rates in 

tons-mass per hour of the amount of 

feed to the kiln. The system of 

measuring feed must be maintained 

within ±5 percent accuracy. Calculate 

your hourly clinker production rate 

using a kiln-specific feed to clinker ratio 

based on reconciled clinker production 

determined for accounting purposes and 

recorded feed rates. Update this ratio 

monthly. Note that if this ratio changes 

at clinker reconciliation, you must use 

the new ratio going forward, but you do 

not have to retroactively change clinker 

production rates previously estimated. 

(iii) [Reserved] 

(2) Determine, record, and maintain a 

record of the accuracy of the system of 

measuring hourly clinker production (or 

feed mass flow if applicable) before 

initial use (for new sources) or by the 

effective compliance date of this rule 

(for existing sources). During each 

quarter of source operation, you must 

determine, record, and maintain a 

record of the ongoing accuracy of the 

system of measuring hourly clinker 

production (or feed mass flow). 

(3) If you measure clinker production 

directly, record the daily clinker 

production rates; if you measure the 

kiln feed rates and calculate clinker 

production, record the hourly kiln feed 

and clinker production rates. 

(4) Develop an emissions monitoring 

plan in accordance with paragraphs 

(p)(1) through (p)(4) of this section. 

* * * * * 

(f) Opacity Monitoring Requirements. 

If you are subject to a limitation on 

opacity under § 63.1345, you must 

conduct required opacity monitoring in 

accordance with the provisions of 

paragraphs (f)(1)(i) through (vii) of this 

section and in accordance with your 

monitoring plan developed under 

§ 63.1350(p). You must also develop an 

opacity monitoring plan in accordance 

with paragraphs (p)(1) through (4) and 

paragraph (o)(5), if applicable, of this 

section. 

(1) * * * 

(iv) If visible emissions are observed 

during any Method 22 performance test, 

of appendix A–7 to part 60 of this 

chapter, you must conduct 30 minutes 

of opacity observations, recorded at 15- 

second intervals, in accordance with 

Method 9 of appendix A–4 to part 60 of 

this chapter. The Method 9 performance 

test, of appendix A–4 to part 60 of this 

chapter, must begin within 1 hour of 

any observation of visible emissions. 

(v) Any totally enclosed conveying 

system transfer point, regardless of the 

location of the transfer point is not 

required to conduct Method 22 visible 

emissions monitoring under this 

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paragraph. The enclosures for these 

transfer points must be operated and 

maintained as total enclosures on a 

continuing basis in accordance with the 

facility operations and maintenance 

plan. 

(vi) If any partially enclosed or 

unenclosed conveying system transfer 

point is located in a building, you must 

conduct a Method 22 performance test, 

of appendix A–7 to part 60 of this 

chapter, according to the requirements 

of paragraphs (f)(1)(i) through (iv) of this 

section for each such conveying system 

transfer point located within the 

building, or for the building itself, 

according to paragraph (f)(1)(vii) of this 

section. 

* * * * * 

(2)(i) For a raw mill or finish mill, you 

must monitor opacity by conducting 

daily visible emissions observations of 

the mill sweep and air separator PM 

control devices (PMCD) of these affected 

sources in accordance with the 

procedures of Method 22 of appendix 

A–7 to part 60 of this chapter. The 

duration of the Method 22 performance 

test must be 6 minutes. 

* * * * * 

(iii) If visible emissions are observed 

during the follow-up Method 22 

performance test required by paragraph 

(f)(2)(ii) of this section from any stack 

from which visible emissions were 

observed during the previous Method 22 

performance test required by paragraph 

(f)(2)(i) of the section, you must then 

conduct an opacity test of each stack 

from which emissions were observed 

during the follow up Method 22 

performance test in accordance with 

Method 9 of appendix A–4 to part 60 of 

this chapter. The duration of the 

Method 9 test must be 30 minutes. 

(3) If visible emissions are observed 

during any Method 22 visible emissions 

test conducted under paragraphs (f)(1) 

or (2) of this section, you must initiate, 

within one-hour, the corrective actions 

specified in your operation and 

maintenance plan as required in 

§ 63.1347. 

(4) The requirements under paragraph 

(f)(2) of this section to conduct daily 

Method 22 testing do not apply to any 

specific raw mill or finish mill equipped 

with a COMS or BLDS. 

(i) If the owner or operator chooses to 

install a COMS in lieu of conducting the 

daily visible emissions testing required 

under paragraph (f)(2) of this section, 

then the COMS must be installed at the 

outlet of the PM control device of the 

raw mill or finish mill and the COMS 

must be installed, maintained, 

calibrated, and operated as required by 

the general provisions in subpart A of 

this part and according to PS–1 of 

appendix B to part 60 of this chapter. 

(ii) If you choose to install a BLDS in 

lieu of conducting the daily visible 

emissions testing required under 

paragraph (f)(2) of this section, the 

requirements in paragraphs (m)(1) 

through (m)(4), (m)(10) and (m)(11) of 

this section apply. 

(g) * * * 

(1) You must install, calibrate, 

maintain, and continuously operate a 

CMS to record the temperature of the 

exhaust gases from the kiln and alkali 

bypass, if applicable, at the inlet to, or 

upstream of, the kiln and/or alkali 

bypass PMCDs. 

* * * * * 

(2) You must monitor and 

continuously record the temperature of 

the exhaust gases from the kiln and 

alkali bypass, if applicable, at the inlet 

to the kiln and/or alkali bypass PMCD. 

* * * * * 

(4) Calculate the rolling three-hour 

average temperature using the average of 

180 successive one-minute average 

temperatures. See § 63.1349(b)(3). 

* * * * * 

(h) * * * 

(1) * * * 

(ii) Each hour, calculate the threehour rolling average activated carbon 

injection rate for the previous three 

hours of process operation. See 

§ 63.1349(b)(3). 

* * * * * 

(i) * * * 

(1) You must install, operate, and 

maintain a THC continuous emission 

monitoring system in accordance with 

Performance Specification 8A of 

appendix B to part 60 of this chapter 

and comply with all of the requirements 

for continuous monitoring systems 

found in the general provisions, subpart 

A of this part. The owner or operator 

must operate and maintain each CEMS 

according to the quality assurance 

requirements in Procedure 1 of 

appendix F in part 60 of this chapter. 

(2) Performance tests on alkali bypass 

and coal mill stacks must be conducted 

using Method 25A in appendix A to 40 

CFR part 60 and repeated annually. 

* * * * * 

(k) Mercury Monitoring Requirements. 

If you have a kiln subject to an 

emissions limitation on mercury 

emissions, you must install and operate 

a mercury continuous emissions 

monitoring system (Hg CEMS) in 

accordance with Performance 

Specification 12A (PS 12A) of appendix 

B to part 60 of this chapter or an 

integrated sorbent trap monitoring 

system in accordance with Performance 

Specification 12B (PS 12B) of appendix 

B to part 60 of this chapter. You must 

monitor mercury continuously 

according to paragraphs (k)(1) through 

(5) of this section. You must also 

develop an emissions monitoring plan 

in accordance with paragraphs (p)(1) 

through (4) of this section. 

(1) You must use a span value for any 

Hg CEMS that represents the mercury 

concentration corresponding to 

approximately two times the emissions 

standard and may be rounded up to the 

nearest multiple of 5 mg/m3 of total 

mercury or higher level if necessary to 

include Hg concentrations which may 

occur (excluding concentrations during 

in-line raw ‘‘mill off’’ operation). As 

specified in PS 12A, Section 6.1.1, the 

data recorder output range must include 

the full range of expected Hg 

concentration values which would 

include those expected during ‘‘mill 

off’’ conditions. Engineering judgments 

made and calculations used to 

determine the corresponding span 

concentration from the emission 

standard shall be documented in the 

site-specific monitoring plan and 

associated records. 

(2) In order to quality assure data 

measured above the span value, you 

must use one of the two options in 

paragraphs (k)(2)(i) and (ii) of this 

section. 

(i) Include a second span that 

encompasses the Hg emission 

concentrations expected to be 

encountered during ‘‘mill off’’ 

conditions. This second span may be 

rounded to a multiple of 5 mg/m3 of total 

mercury. The requirements of PS 12A, 

shall be followed for this second span 

with the exception that a RATA with 

the mill off is not required. 

(ii) Quality assure any data above the 

span value established in paragraph 

(k)(1) of this section using the following 

procedure. Any time two consecutive 

one-hour average measured 

concentration of Hg exceeds the span 

value you must, within 24 hours before 

or after, introduce a higher, ‘‘above 

span’’ Hg reference gas standard to the 

Hg CEMS. The ‘‘above span’’ reference 

gas must meet the requirements of PS 

12A, Section 7.1, must be of a 

concentration level between 50 and 150 

percent of the highest hourly 

concentration measured during the 

period of measurements above span, 

and must be introduced at the probe. 

Record and report the results of this 

procedure as you would for a daily 

calibration. The ‘‘above span’’ 

calibration is successful if the value 

measured by the Hg CEMS is within 20 

percent of the certified value of the 

reference gas. If the value measured by 

the Hg CEMS exceeds 20 percent of the 

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certified value of the reference gas, then 

you must normalize the one-hour 

average stack gas values measured above 

the span during the 24-hour period 

preceding or following the ‘‘above span’’ 

calibration for reporting based on the Hg 

CEMS response to the reference gas as 

shown in equation 19: 

Only one ‘above span’ calibration is 

needed per 24 hour period. 

(3) You must operate and maintain 

each Hg CEMS or an integrated sorbent 

trap monitoring system according to the 

quality assurance requirements in 

Procedure 5 of appendix F to part 60 of 

this chapter. During the RATA of 

integrated sorbent trap monitoring 

systems required under Procedure 5, 

you may apply the appropriate 

exception for sorbent trap section 2 

breakthrough in (k)(3)(i) through (iv) of 

this section: 

(i) For stack Hg concentrations >1 mg/ 

dscm, ≤10% of section 1 mass; 

(ii) For stack Hg concentrations ≤1 mg/ 

dscm and >0.5 mg/dscm, ≤20% of 

section 1 mass; 

(iii) For stack Hg concentrations ≤0.5 

mg/dscm and >0.1 mg/dscm, ≤50% of 

section 1 mass; and 

(iv) For stack Hg concentrations ≤0.1 

mg/dscm, no breakthrough criterion 

assuming all other QA/QC 

specifications are met. 

(4) Relative accuracy testing of 

mercury monitoring systems under PS 

12A, PS 12B, or Procedure 5 must be 

conducted at normal operating 

conditions. If a facility has an inline raw 

mill, the testing must occur with the 

raw mill on. 

(5) If you use a Hg CEMS or an 

integrated sorbent trap monitoring 

system, you must install, operate, 

calibrate, and maintain an instrument 

for continuously measuring and 

recording the exhaust gas flow rate to 

the atmosphere according to the 

requirements in paragraphs (n)(1) 

through (10) of this section. If kiln gases 

are diverted through an alkali bypass or 

to a coal mill and exhausted through 

separate stacks, you must account for 

the mercury emitted from those stacks 

by following the procedures in (k)(5)(i) 

through (iv) of this section: 

(i) Develop a mercury hourly mass 

emissions rate by conducting annual 

performance tests using Method 29, or 

Method 30B, to measure the 

concentration of mercury in the gases 

exhausted from the alkali bypass and 

coal mill. 

(ii) On a continuous basis, determine 

the mass emissions of mercury in lb/hr 

from the alkali bypass and coal mill 

exhausts by using the mercury hourly 

emissions rate, the exhaust gas flow rate 

and hourly mercury emission rate to 

calculate hourly mercury emissions in 

lb/hr. 

(iii) Sum the hourly mercury 

emissions from the kiln, alkali bypass 

and coal mill to determine total mercury 

emissions. Using hourly clinker 

production, calculate the hourly 

emissions rate in pounds per ton of 

clinker to determine your 30 day rolling 

average. 

(iv) If mercury emissions from the 

coal mill are below the method 

detection limit for two consecutive 

annual performance tests, you may 

reduce the frequency of the performance 

tests of coal mills to once every 30 

months. If the measured mercury 

concentration exceeds the method 

detection limit, you must revert to 

testing annually until two consecutive 

annual tests are below the method 

detection limit. 

(6) If you operate an integrated 

sorbent trap monitoring system 

conforming to PS 12B, you may use a 

monitoring period at least 24 hours but 

no longer than 168 hours in length. You 

should use a monitoring period that is 

a multiple of 24 hours (except during 

relative accuracy testing as allowed in 

PS 12B). 

(l) HCl Monitoring Requirements. If 

you are subject to an emissions 

limitation on HCl emissions in 

§ 63.1343, you must monitor HCl 

emissions continuously according to 

paragraph (l)(1) or (2) and paragraphs 

(m)(1) through (4) of this section or, if 

your kiln is controlled using a wet or 

dry scrubber or tray tower, you 

alternatively may parametrically 

monitor SO2 emissions continuously 

according to paragraph (l)(3) of this 

section. You must also develop an 

emissions monitoring plan in 

accordance with paragraphs (p)(1) 

through (4) of this section. 

(1) If you monitor compliance with 

the HCl emissions limit by operating an 

HCl CEMS, you must do so in 

accordance with Performance 

Specification 15 (PS 15) of appendix B 

to part 60 of this chapter, or, upon 

promulgation, in accordance with any 

other performance specification for HCl 

CEMS in appendix B to part 60 of this 

chapter. You must operate, maintain, 

and quality assure a HCl CEMS installed 

and certified under PS 15 according to 

the quality assurance requirements in 

Procedure 1 of appendix F to part 60 of 

this chapter except that the Relative 

Accuracy Test Audit requirements of 

Procedure 1 must be replaced with the 

validation requirements and criteria of 

sections 11.1.1 and 12.0 of PS 15. If you 

install and operate an HCl CEMS in 

accordance with any other performance 

specification for HCl CEMS in appendix 

B to part 60 of this chapter, you must 

operate, maintain and quality assure the 

HCl CEMS using the procedure of 

appendix F to part 60 of this chapter 

applicable to the performance 

specification. You must use Method 321 

of appendix A to part 63 of this chapter 

as the reference test method for 

conducting relative accuracy testing. 

The span value and calibration 

requirements in paragraphs (l)(1)(i) and 

(ii) of this section apply to HCl CEMS 

other than those installed and certified 

under PS 15. 

(i) You must use a span value for any 

HCl CEMS that represents the intended 

upper limit of the HCl concentration 

measurement range during normal 

inline raw ‘‘mill on’’ operation. The 

span value should be a concentration 

equivalent to approximately two times 

the emissions standard and it may be 

rounded to the nearest multiple of 5 

ppm of HCl. The HCl CEMS data 

recorder output range must include the 

full range of expected HCl concentration 

values which would include those 

expected during ‘‘mill off’’ conditions. 

Engineering judgments made and 

calculations used to determine the 

corresponding span concentration from 

the emission standard shall be 

documented in the site-specific 

monitoring plan and associated records. 

(ii) In order to quality assure data 

measured above the span value, you 

must use one of the two options in 

paragraphs (l)(1)(ii)(A) and (B) of this 

section. 

(A) Include a second span that 

encompasses the HCl emission 

concentrations expected to be 


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encountered during ‘‘mill off’’ 

conditions. This second span may be 

rounded to a multiple of 

5 mg/m3 of total HCl. The requirements 

of the appropriate HCl monitor 

performance specification, shall be 

followed for this second span with the 

exception that a RATA with the mill off 

is not required. 

(B) Quality assure any data above the 

span value established in paragraph 

(1)(1)(i) of this section using the 

following procedure. Any time the 

average measured concentration of HCl 

exceeds or is expected to exceed the 

span value for greater than two hours 

you must, within a period 24 hours 

before or after the ‘above span’ period, 

introduce a higher, ‘above span’ HCl 

reference gas standard to the HCl CEMS. 

The ‘above span’ reference gas must 

meet the requirements of the applicable 

performance specification and be of a 

concentration level between 50 and 100 

percent of the highest hourly 

concentration measured during the 

period of measurements above span, 

and must be introduced at the probe. 

Record and report the results of this 

procedure as you would for a daily 

calibration. The ‘above span’ calibration 

is successful if the value measured by 

the HCl CEMS is within 20 percent of 

the certified value of the reference gas. 

If the value measured by the HCl CEMS 

is not within 20 percent of the certified 

value of the reference gas, then you 

must normalize the stack gas values 

measured above span as described in 

paragraph (l)(1)(ii)(C) below. If the 

‘above span’ calibration is conducted 

during the period when measured 

emissions are above span and there is a 

failure to collect the required minimum 

number of data points in an hour due to 

the calibration duration, then you must 

determine the emissions average for that 

missed hour as the average of hourly 

averages for the hour preceding the 

missed hour and the hour following the 

missed hour. 

(C) In the event that the ‘above span’ 

calibration is not successful (i.e., the 

HCl CEMS measured value is not within 

20 percent of the certified value of the 

reference gas), then you must normalize 

the one-hour average stack gas values 

measured above the span during the 24- 

hour period preceding or following the 

‘above span’ calibration for reporting 

based on the HCl CEMS response to the 

reference gas as shown in Equation 20: 

Only one ‘above span’ calibration is 

needed per 24-hour period. 

(2) Install, operate, and maintain a 

CMS to monitor wet scrubber or tray 

tower parameters, as specified in 

paragraphs (m)(5) and (7) of this section, 

and dry scrubber, as specified in 

paragraph (m)(9) of this section. 

(3) If the source is equipped with a 

wet or dry scrubber or tray tower, and 

you choose to monitor SO2 emissions, 

monitor SO2 emissions continuously 

according to the requirements of 

§ 60.63(e) through (f) of part 60 subpart 

F of this chapter. If SO2 levels increase 

above the 30-day rolling average SO2

operating limit established during your 

performance test, you must: 

(i) As soon as possible but no later 

than 48 hours after you exceed the 

established SO2 value conduct an 

inspection and take corrective action to 

return the SO2 emissions to within the 

operating limit; and 

(ii) Within 60 days of the exceedance 

or at the time of the next compliance 

test, whichever comes first, conduct an 

HCl emissions compliance test to 

determine compliance with the HCl 

emissions limit and to verify or reestablish the SO2 CEMS operating limit. 

(m) Parameter Monitoring 

Requirements. If you have an operating 

limit that requires the use of a CMS, you 

must install, operate, and maintain each 

continuous parameter monitoring 

system (CPMS) according to the 

procedures in paragraphs (m)(1) through 

(4) of this section by the compliance 

date specified in § 63.1351. You must 

also meet the applicable specific 

parameter monitoring requirements in 

paragraphs (m)(5) through (11) that are 

applicable to you. 

* * * * * 

(3) Determine the 1-hour block 

average of all recorded readings. 

* * * * * 

(7) * * * 

(i) Locate the pH sensor in a position 

that provides a representative 

measurement of wet scrubber or tray 

tower effluent pH. 

* * * * * 

(9) Mass Flow Rate (for Sorbent 

Injection) Monitoring Requirements. If 

you have an operating limit that 

requires the use of equipment to 

monitor sorbent injection rate (e.g., 

weigh belt, weigh hopper, or hopper 

flow measurement device), you must 

meet the requirements in paragraphs 

(m)(9)(i) through (iii) of this section. 

These requirements also apply to the 

sorbent injection equipment of a dry 

scrubber. 

* * * * * 

(10) Bag leak detection monitoring 

requirements. If you elect to use a fabric 

filter bag leak detection system to 

comply with the requirements of this 

subpart, you must install, calibrate, 

maintain, and continuously operate a 

BLDS as specified in paragraphs 

(m)(10)(i) through (viii) of this section. 

(i) You must install and operate a 

BLDS for each exhaust stack of the 

fabric filter. 

(ii) Each BLDS must be installed, 

operated, calibrated, and maintained in 

a manner consistent with the 

manufacturer’s written specifications 

and recommendations and in 

accordance with the guidance provided 

in EPA–454/R–98–015, September 1997. 

(iii) The BLDS must be certified by 

the manufacturer to be capable of 

detecting PM emissions at 

concentrations of 10 or fewer milligrams 

per actual cubic meter. 

(iv) The BLDS sensor must provide 

output of relative or absolute PM 

loadings. 

(v) The BLDS must be equipped with 

a device to continuously record the 

output signal from the sensor. 

(vi) The BLDS must be equipped with 

an alarm system that will alert an 

operator automatically when an increase 

in relative PM emissions over a preset 

level is detected. The alarm must be 

located such that the alert is detected 

and recognized easily by an operator. 

(vii) For positive pressure fabric filter 

systems that do not duct all 

compartments of cells to a common 

stack, a BLDS must be installed in each 

baghouse compartment or cell. 

* * * * * 

(11) * * * 

(v) Cleaning the BLDS probe or 

otherwise repairing the BLDS; or 

* * * * * 

(n) Continuous Flow Rate Monitoring 

System. You must install, operate, 

calibrate, and maintain instruments, 

according to the requirements in 


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paragraphs (n)(1) through (10) of this 

section, for continuously measuring and 

recording the stack gas flow rate to 

allow determination of the pollutant 

mass emissions rate to the atmosphere 

from sources subject to an emissions 

limitation that has a pounds per ton of 

clinker unit. 

* * * * * 

(o) Alternate Monitoring 

Requirements Approval. You may 

submit an application to the 

Administrator for approval of alternate 

monitoring requirements to demonstrate 

compliance with the emission standards 

of this subpart, except for emission 

standards for THC, subject to the 

provisions of paragraphs (o)(1) through 

(6) of this section. 

* * * * * 

(p) Development and Submittal (Upon 

Request) of Monitoring Plans. If you 

demonstrate compliance with any 

applicable emissions limit through 

performance stack testing or other 

emissions monitoring, you must 

develop a site-specific monitoring plan 

according to the requirements in 

paragraphs (p)(1) through (4) of this 

section. This requirement also applies to 

you if you petition the EPA 

Administrator for alternative monitoring 

parameters under paragraph (o) of this 

section and § 63.8(f). If you use a BLDS, 

you must also meet the requirements 

specified in paragraph (p)(5) of this 

section. 

(1) For each CMS required in this 

section, you must develop, and submit 

to the permitting authority for approval 

upon request, a site-specific monitoring 

plan that addresses paragraphs (p)(1)(i) 

through (iii) of this section. You must 

submit this site-specific monitoring 

plan, if requested, at least 30 days before 

your initial performance evaluation of 

your CMS. 

* * * * * 

(2) In your site-specific monitoring 

plan, you must also address paragraphs 

(p)(2)(i) through (iii) of this section. 

* * * * * 

(5) BLDS Monitoring Plan. Each 

monitoring plan must describe the items 

in paragraphs (p)(5)(i) through (v) of this 

section. At a minimum, you must retain 

records related to the site-specific 

monitoring plan and information 

discussed in paragraphs (m)(1) through 

(4), (m)(10) and (11) of this section for 

a period of 5 years, with at least the first 

2 years on-site; 

* * * * * 

■ 19. Section 63.1351 is amended by 

revising paragraphs (c) and (d) and 

adding paragraph (e) to read as follows: 

§ 63.1351 Compliance dates. 

* * * * * 

(c) The compliance date for existing 

sources for all the requirements that 

became effective on February 12, 2013, 

except for the open clinker pile 

requirements will be September 9, 2015. 

(d) The compliance date for new 

sources is February 12, 2013, or startup, 

whichever is later. 

(e) The compliance date for existing 

sources with the requirements for open 

clinker storage piles in § 63.1343(c) is 

February 12, 2014. 

■ 20. Section 63.1352 is amended by 

revising paragraph (b) to read as follows: 

§ 63.1352 Additional test methods. 

* * * * * 

(b) Owners or operators conducting 

tests to determine the rates of emission 

of specific organic HAP from raw 

material dryers, and kilns at Portland 

cement manufacturing facilities, solely 

for use in applicability determinations 

under § 63.1340 of this subpart are 

permitted to use Method 320 of 

appendix A to this part, or Method 18 

of appendix A to part 60 of this chapter. 

■ 21. Section 63.1353 is amended by 

adding paragraph (b)(6) to read as 

follows: 

§ 63.1353 Notification Requirements. 

* * * * * 

(b) * * * 

(6) Within 48 hours of an exceedance 

that triggers retesting to establish 

compliance and new operating limits, 

notify the appropriate permitting agency 

of the planned performance tests. The 

notification requirements of §§ 63.7(b) 

and 63.9(e) do not apply to retesting 

required for exceedances under this 

subpart. 

■ 22. Section 63.1354 is amended by: 

■ a. Removing and reserving paragraphs 

(b)(4) and (5); 

■ b. Revising paragraph (b)(9)(vi); 

■ c. Adding paragraph (b)(9)(vii); and 

■ d. Revising paragraph (c). 

The revisions read as follows: 

§ 63.1354 Reporting requirements. 

* * * * * 

(b) * * * 

(9) * * * 

(vi) For each PM, HCl, Hg, and THC 

CEMS or Hg sorbent trap monitoring 

system, within 60 days after the 

reporting periods, you must submit 

reports to the EPA’s WebFIRE database 

by using the Compliance and Emissions 

Data Reporting Interface (CEDRI) that is 

accessed through the EPA’s Central Data 

Exchange (CDX) (www.epa.gov/cdx). 

You must use the appropriate electronic 

reporting form in CEDRI or provide an 

alternate electronic file consistent with 

the EPA’s reporting form output format. 

For each reporting period, the reports 

must include all of the calculated 30- 

operating day rolling average values 

derived from the CEMS or Hg sorbent 

trap monitoring systems. 

(vii) In response to each violation of 

an emissions standard or established 

operating parameter limit, the date, 

duration and description of each 

violation and the specific actions taken 

for each violation including inspections, 

corrective actions and repeat 

performance tests and the results of 

those actions. 

* * * * * 

(c) Reporting a failure to meet a 

standard due to a malfunction. For each 

failure to meet a standard or emissions 

limit caused by a malfunction at an 

affected source, you must report the 

failure in the semi-annual compliance 

report required by § 63.1354(b)(9). The 

report must contain the date, time and 

duration, and the cause of each event 

(including unknown cause, if 

applicable), and a sum of the number of 

events in the reporting period. The 

report must list for each event the 

affected source or equipment, an 

estimate of the volume of each regulated 

pollutant emitted over the emission 

limit for which the source failed to meet 

a standard, and a description of the 

method used to estimate the emissions. 

The report must also include a 

description of actions taken by an owner 

or operator during a malfunction of an 

affected source to minimize emissions 

in accordance with § 63.1348(d), 

including actions taken to correct a 

malfunction. 

■ 23. Section 63.1355 is amended by 

revising paragraphs (f) and (g)(1) and 

adding paragraph (h) to read as follows: 

§ 63.1355 Recordkeeping Requirements. 

* * * * * 

(f) You must keep records of the date, 

time and duration of each startup or 

shutdown period for any affected source 

that is subject to a standard during 

startup or shutdown that differs from 

the standard applicable at other times, 

and the quantity of feed and fuel used 

during the startup or shutdown period. 

(g)(1) You must keep records of the 

date, time and duration of each 

malfunction that causes an affected 

source to fail to meet an applicable 

standard; if there was also a monitoring 

malfunction, the date, time and duration 

of the monitoring malfunction; the 

record must list the affected source or 

equipment, an estimate of the volume of 

each regulated pollutant emitted over 

the standard for which the source failed 

to meet a standard, and a description of 

mstockstill on DSK4VPTVN1PROD with RULES2

10054 Federal Register / Vol. 78, No. 29 / Tuesday, February 12, 2013 / Rules and Regulations 

the method used to estimate the 

emissions. 

* * * * * 

(h) For each exceedance from an 

emissions standard or established 

operating parameter limit, you must 

keep records of the date, duration and 

description of each exceedance and the 

specific actions taken for each 

exceedance including inspections, 

corrective actions and repeat 

performance tests and the results of 

those actions. 

■ 24. Section 63.1356 is revised to read 

as follows: 

§ 63.1356 Sources with multiple emissions 

limit or monitoring requirements. 

If an affected facility subject to this 

subpart has a different emissions limit 

or requirement for the same pollutant 

under another regulation in title 40 of 

this chapter, the owner or operator of 

the affected facility must comply with 

the most stringent emissions limit or 

requirement and is exempt from the less 

stringent requirement. 

■ 25. Section 63.1357 is amended by 

revising paragraphs (a)(1) and (2) to read 

as follows: 

§ 63.1357 Temporary, conditioned 

exemption from particulate matter and 

opacity standards. 

(a) * * * 

(1) Any PM and opacity standards of 

part 60 or part 63 of this chapter that are 

applicable to cement kilns and clinker 

coolers. 

(2) Any permit or other emissions or 

operating parameter or other limitation 

on workplace practices that are 

applicable to cement kilns and clinker 

coolers to ensure compliance with any 

PM and opacity standards of this part or 

part 60 of this chapter. 

* * * * * 

■ 26. Table 3 to Subpart LLL of Part 63 

is revised by revising the entries for 

63.6(e)(3), 63.7(b), and 63.9(e) to read as 

follows: 

TABLE 3—TO SUBPART LLL OF PART 63—APPLICABILITY OF GENERAL PROVISIONS

Citation Requirement Applies to 

Subpart LLL Explanation 

*******

63.6(e)(3) .......... Startup, Shutdown Malfunction Plan No .............. Your operations and maintenance plan must address periods of startup 

and shutdown. See § 63.1347(a)(1). 

*******

63.7(b) .............. Notification period ............................ Yes ............ Except for repeat performance test caused by an exceedance. See 

§ 63.1353(b)(6) 

*******

63.9(e) .............. Notification of performance test ...... Yes ............ Except for repeat performance test caused by an exceedance. See 

§ 63.1353(b)(6) 

* * * * * * * 

[FR Doc. 2012–31633 Filed 2–11–13; 8:45 am] 

BILLING CODE 6560–50–P 

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USCA Cctse #10-1371 Document #1~88926 Filed: 04/18/2014 

2Jlnit.e.h ~tnt.es C1Inurt of J\ppeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued October 24, 2013 Decided April 18, 2014 

No. 10-1371 

NATURAL RESOURCES DEFENSE COUNCIL, 

PETITIONER 

v. 

ENVIRONMENTAL PROTECTION AGENCY AND GINA 

MCCARTIIY, IN HER OFFICIAL CAPACITY AS ADMINJSTRA TOR, 

U.S. ENVIRONMENTAL PROTECTION AGENCY, 

RESPONDENTS 

CEMEX, INC., ET AL., 

INTERVENORS 

Consolidated with 10-!378, 13-1112 

On Petitions for Review of Final Actions of the 

United States Environmental Protection Agency 

James S. Pew and Seth L. Johnson argued the causes for 

petitioners. With them on the briefs were John Walke, 

Meleah Geertsma, and Avinash Kar. 

Matthew R. Oakes, Attorney, U.S. Department of Justice, 

argued the cause for respondents. With him on the brief were 

NMED EXHIBIT 6 

Page 1 of 18 
USCA Case #10-1371 Document #1438926 Filell: 04/1812014 

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Robert G. Dreher, Acting Assistant Attorney General, and 

Steven E. Silverman, Attorney, U.S. Environmental Protection 

Agency. Daniel R. Dertke and T Monique Peoples, 

Attorneys, U.S. Department of Justice, entered appearances. 

Carter G. Phillips argued the cause for intervenors. With 

him on the briefs were Roger R. Martella Jr., Timothy K 

Webster, Ryan C. Morris, William M Bumpers, Debra J. 

Jezouit, Michael B. Schon, Deborah E. Jennings, Chel M. 

Thompson, Beth S. Ginsberg, Jason T. Morgan, Ashley C. 

Parrish, Cynthia A.M. Stroman, and Richard G. Stoll. 

Russell S. Frye and Richard G. Stoll were on the brief for 

amici curiae SSM Coalition, et al. in support of respondents. 

Before: KAVANAUGH and SRINIVASAN, Circuit Judges, 

and EDWARDS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge 

KAVANAUGH. 

KAVANAUGH, Circuit Judge: Portland cement is the key 

ingredient in concrete. The basic process for making Portland 

cement is much the same today as it was when the material 

was first developed nearly 200 years ago. Cement 

manufacturers pulverize limestone and minerals, and then 

heat those raw materials to several thousand degrees. The 

resulting substance, called clinker, is then cooled and ground 

into a fine gray powder. This powder - called Portland 

cement - is later combined with sand, rocks, and water to 

make concrete. 

The grinding and heating involved in cement 

manufacturing has an unfortunate side effect: It releases into 

the air a number of hazardous air pollutants, most notably 

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mercury, hydrochloric acid, hydrocarbons, and particulate 

matter. This case concerns EPA's efforts to develop rules 

under the Clean Air Act to limit emissions of those pollutants 

from cement plants. 

In a previous decision, we considered EPA's first attempt 

to create emission standards for the cement industry, and we 

found the agency's action arbitrary and capricious. See 

Portland Cement Association v. EPA, 665 F.3d 177 (D.C. Cir. 

20ll). Following our ruling, EPA went back to the drawing 

board and developed the emission standards at issue here, the 

2013 Rule. 

Several environmental organizations, including the 

Natural Resources Defense Council and the Sierra Club, have 

petitioned for review of the 2013 Rule, arguing primarily that 

certain aspects of the Rule contravene the Clean Air Act. 

They also challenge EPA's decision to create an affirmative 

defense for private civil suits in which plaintiffs sue sources 

of pollution and seek penalties for violations of emission 

standards. EPA's affirmative defense would be available to 

defendants in cases where an "unavoidable" malfunction had 

resulted in impermissible levels of emissions. 

We conclude that the emissions-related provisiOns of 

EPA's 2013 Rule are permissible but that the affirmative 

defense for private civil suits exceeds EPA's statutory 

authority. We therefore grant the petitions in part and vacate 

the portion of the Rule pertaining to the affirmative defense. 

We deny the petitions in all other respects. 

I 

Section 112 of the Clean Air Act, 42 U.S.C. § 7412, 

requires EPA to establish technology-based emission 

standards for major sources of certain hazardous air 

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pollutants. Emission standards must reflect "the maximum 

degree of reduction in emissions" that EPA determines is 

"achievable," taking into consideration "the cost of achieving 

such emission reduction, and any non-air quality health and 

environmental impacts and energy requirements." 42 U.S.C. 

§ 7412(d)(2). The resulting standards are commonly known 

as the "maximum achievable control technology," or 

"MACT" standards. See National Lime Association v. EPA, 

233 F.3d 625,630 (D.C. Cir. 2000). 

EPA uses a two-step process for establishing MACT 

standards. The agency begins by setting a minimum 

stringency level, or "floor," based on the results achieved by 

the best-performing similar sources. See 42 U.S.C. 

§ 7412(d)(3). Once EPA sets the statutory floor, it then 

determines, considering cost and the other factors listed in 

Section 112(d)(2), whether a more restrictive standard is 

"achievable," and if so then adopts that standard. EPA calls 

these stricter requirements "beyond-the-floor" standards. 

Sierra Club v. EPA, 479 F.3d 875, 877 (D.C. Cir. 2007). 

When EPA sets an emission standard, it also determines a 

schedule for compliance with that standard. For existing 

sources, EPA must "provide for compliance as expeditiously 

as practicable, but in no event later than 3 years after the 

effective date" of the emission standard. 42 U.S.C. 

§ 7412(i)(3)(A). 

In 2010, pursuant to its Section 112 authority, EPA 

promulgated National Emission Standards for Hazardous Air 

Pollutants from the Portland Cement Manufacturing Industry 

and Standards of Performance for Portland Cement Plants, 75 

Fed. Reg. 54,970 (Sept. 9, 2010). That 2010 Rule set or 

revised emissions limits for mercury, hydrogen chloride, total 

hydrocarbons (a surrogate for organic hazardous air pollutants 

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such as benzene and formaldehyde), and particulate matter (a 

surrogate for certain non-mercury metals). Cement plants 

would be required to comply with the new standards 

beginning in September 2013. 75 Fed. Reg. at 54,993. 

In addition to establishing emission standards, the 2010 

Rule created an affirmative defense in private civil suits when 

violations of the standards occurred because of "unavoidable" 

malfunctions. See id. at 54,993, 55,053. The affirmative 

defense replaced a previous EPA policy creating an 

exemption from emissions limitations during malfunction 

events. In a prior decision, this Court struck down that 

exemption because it was inconsistent with the requirement 

that emission standards apply continuously. See Sierra Club 

v. EPA, 551 F.3d 1019, 1027-28 (D.C. Cir. 2008). 

Industry groups petitioned this Court for review and we 

found the 2010 Rule arbitrary and capricious and remanded to 

EPA. We ruled specifically that, in calculating the floor for 

MACT purposes, EPA had arbitrarily included in its dataset 

information from cement kilns properly classified as 

commercial incinerators, which are regulated under a separate 

provision of the Act. See Portland Cement Association v. 

EPA, 665 F.3d 177, 186-89 (D.C. Cir. 2011). 

In our 20 II decision, however, we did not vacate the 

emission standards set forth in the 2010 Rule or stay its 

implementation pending EPA's reconsideration process, 

stating that "it is unlikely that significant changes will be 

made to the standards upon reconsideration." !d. at 189. 

On remand, however, EPA made several relevant 

changes to the Portland cement emission standards. See 

National Emission Standards for Hazardous Air Pollutants for 

the Portland Cement Manufacturing ,Industry and Standards of 

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Perfonnance for Portland Cement Plants, 78 Fed. Reg. I 0,006 

(Feb. 12, 2013) (the 2013 Rule). 

First, consistent with our Portland Cement opinion, EPA 

revised its dataset to exclude commercial incinerators. When 

recalculated using the revised data, the maximum emissions 

level for particulate matter - the floor - was ultimately 

revised from 0.04 lb/ton to 0.07 lb/ton of clinker for existing 

kilns. Seeid. at 10,017-19. And EPA declined tore-adoptthe 

more stringent, 0.04 Jb/ton limit of the 2010 Rule as a 

beyond-the-floor standard. The agency reasoned that 

achieving that additional increment of particulate reduction 

would not be cost effective on a cost-per-ton basis. See id. at 

I 0,020-21. 

Second, citing additional compliance strategies afforded 

cement manufacturers by the revised particulate standard, 

EPA established a new compliance date of September 2015 

for that standard. See id. at 10,014. EPA further concluded 

that although the emissions limits for mercury, hydrochloric 

acid, and hydrocarbons remained the same as in the 2010 

Rule, the new September 2015 compliance date would also 

apply to those emission standards. According to EPA, 

coordinating the compliance date for particulate matter, 

mercury, hydrochloric acid, and hydrocarbons was essential 

because the latter standards "all typically involve some 

element of [particulate matter) generation and capture and so 

the controls must be integrated with [particulate matter] 

control strategies." Jd. at 10,022. 

The 2013 Rule also retained the affirmative defense for 

private civil suits when the defendant violated emission 

standards due to an unavoidable malfunction. EPA explained 

that in its view, the affirmative defense was necessary to 

resolve a "tension" between the Clean Air Act's requirement 

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that emission standards apply at all times and the fact that 

emission limits may sometimes be exceeded for reasons 

beyond the control of the source. See id at 10,014. 

NRDC, the Sierra Club, and other environmental 

organizations have petitioned for review of various aspects of 

the 2013 Rule. In Part II of this opinion, we address 

petitioners' arguments regarding the emission standards for 

particulate matter. In Part Ill, we address petitioners' 

challenge to the compliance schedule implementing some of 

the 2013 Rule's emission standards. In Pa1t IV, we consider 

whether EPA's decision to create the affirmative defense to 

civil penalties for certain malfunction-related events exceeds 

the agency's statutory authority. 

II 

We first consider petitioners' challenges to the emission 

standards for particulate matter. 

A 

The 2013 Rule ultimately set the em1ss1ons level for 

particulate matter at 0.07 lb/ton of clinker for existing kilns. 

The 2010 Rule had set the level at 0.04 lb/ton of clinker. 

Petitioners argue that the 20 13 Rule weakens the particulate 

matter standard in violation of Section 112(d)(7) of the Clean 

Air Act, 42 U.S. C.§ 7412(d)(7). That provision, titled "Other 

requirements preserved," states: 

No emission standard or other requirement 

promulgated under this section shall be interpreted, 

construed or applied to diminish or replace the 

requirements of a more stringent emission limitation 

or other applicable requirement established pursuant to 

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section 7411 of this title, part C or D of this 

subchapter, or other authority of this chapter or a 

standard issued under State authority. 

(emphases added). Petitioners maintain that EPA violated 

Section 112(d)(7) because the 2013 Rule's particulate matter 

standards "diminish or replace" the more stringent standards 

in the 2010 Rule. 

EPA responds that such a reduction does not violate 

Section 112(d)(7). In EPA's view, the most natural reading of 

Section 112( d)(7) is that "other authority" refers to authority 

other than Section 112 and other than the parts of the Clean 

Air Act specifically enumerated in Section 112( d)(7). Stated 

another way, EPA suggests that Section 112(d)(7) is simply a 

savings clause that makes clear that Section 112 does not 

supersede the requirements of other, more restrictive 

provisions of the Act. 

By contrast, petitioners say that "other authority" of the 

Act includes Section 112 itself, as well as other provisions in 

the Act. Petitioners read the statute as an anti-backsliding 

restriction on EPA's ability to voluntarily reduce the 

stringency of any emission standard issued under Section 112. 

As EPA points out, however, when Congress has sought 

to include that sort of anti -backsliding provision in the Clean 

Air Act, it has done so directly and explicitly. Cf, e.g., 42 

U.S.C. § 7410(1) ("The Administrator shall not approve a 

revision of a [State Implementation Plan] if the revision 

would interfere with any applicable requirement concerning 

attainment and reasonable further progress"); id. § 7502(e) 

(specifying pollution control requirements if "the 

Administrator relaxes a national primary ambient air quality 

standard"). Section 112(d)(7) contains no such language. 

Furthermore, EPA argues that petitioners' interpretation of 

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Section 112(d)(7) would mean that any change to a rule 

issued under Section 112- even a necessary change made just 

for technical reasons or because there was a calculation error 

- would be impermissible if the change made the standard 

less stringent. EPA says that it would be extraordinary if the 

statute precluded that kind of necessary change. 

In wading through this back-and-forth, we ultimately 

need not decide whether EPA's reading is the better or only 

reading of this statutory provision, but simply whether it is a 

permissible reading. EPA administers the Clean Air Act, and 

we must defer to its reasonable interpretation of any 

ambiguities in the statute. See Chevron US.A. Inc. v. NRDC, 

467 U.S. 837, 843-44 (1984). Here, even if the statute does 

not compel EPA's reading, and indeed even if EPA's reading 

is not the better reading, the statute at a minimum is 

sufficiently ambiguous on this point to permit EPA's reading 

of "other authority." Because EPA's reading is at least 

reasonable, we reject petitioners' argument and rule for EPA 

at Chevron step two. 

B 

Petitioners also contend that EPA should have set a more 

restrictive particulate matter standard when considering 

whether to set "beyond-the-floor" standards. Petitioners 

argue in particular that EPA misinterpreted the statute to 

allow it to consider cost-effectiveness when setting beyondthe-floor standards. 

Under Section 112(d), EPA must require "the maximum 

degree of reduction in emissions" that EPA determines is 

"achievable." 42 U.S.C. § 7412(d)(2). To determine that 

emission level, EPA first establishes a minimum stringency 

level, or "floor," based on the emission results achieved by 

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the best-performing sources in the category at issue. See id. 

§ 7412(d)(3). Once EPA sets the statutory floor, it then 

determines, based on cost and the other factors listed in 

Section 112( d)(2), whether a more restrictive, beyond-thefloor standard is achievable. 1 

When it promulgated the 2013 Rule, EPA rejected 

petitioners' argument to set a 0.04 lblton limit as a beyondthe-floor standard. 78 Fed. Reg. at I 0,020. EPA estimated 

that a beyond-the-floor standard set at the 0.04 1b/ton level 

would result in a reduction of 138 tons of particulate matter 

per year, at a cost of $37 million. ld. Based on those 

estimates, EPA noted that the cost-effectiveness of the 

potential beyond-the-floor standard - $268,000 per ton of 

particulate matter removed -was substantially lower than the 

cost-effectiveness of other emission standards previously 

rejected by EPA. See 78 Fed. Reg. at 10,021. 

Petitioners take issue with EPA's consideration of costeffectiveness as a component of the Section 112( d)(2) cost 

analysis. Petitioners contend that "cost" for purposes of the 

statute only concerns whether "the standard is too expensive 

for industry to achieve," in essence, whether the standards 

would bankrupt the industry. Pet'rs Br. 34. 

1 In relevant part, the statute reads: "Emissions standards 

promulgated under this subsection and applicable to new or existing 

sources of hazardous air pollutants shall require the maximum 

degree of reduction in emissions of the hazardous air pollutants 

subject to this section (including a prohibition on such emissions, 

where achievable) that the Administrator, taking into consideration 

the cost of achieving such emission reduction, and any non-air 

quality health and environmental impacts and energy requirements, 

determines is achievable for new or existing sources in the category 

or subcategory .... " 42 U.S.C. § 7412(d)(2)(emphasis added). 

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EPA says that Congress afforded it wide latitude in 

deciding how to balance cost and other considerations when 

determining that maximum achievable reduction in emissions. 

According to EPA, Section 112 does not command EPA to 

use a particular form of cost analysis. In taking cost into 

account, EPA contends that it may determine whether the 

proposed emission levels would be cost-effective. Indeed, 

EPA notes that this Court has previously recognized EPA's 

authority to consider cost-effectiveness in setting standards 

under nearly identical provisions of the Clean Air Act. See, 

e.g., Husqvarna AB v. EPA, 254 F.3d 195, 200 (D.C. Cir. 

2001) ("Because section 213 does not mandate a specific 

method of cost analysis, we find reasonable the EPA's choice 

to consider costs on the per ton of emissions removed 

basis."); National Association of Clean Water Agencies v. 

EPA, 734 F.3d 1115, 1156-57 (D.C. Cir. 2013) (citing 

Husqvarna; EPA could consider cost-effectiveness in setting 

a beyond-the-floor standard under Section 129(a)(2) of the 

Act). 

Again on this issue as with the first, we need not decide 

whether EPA's reading is the only reading of this provision. 

Even if the statute does not compel EPA's approach, and even 

if EPA's reading is not the better reading, we conclude that it 

is still at least a reasonable reading given the various potential 

meanings of "cost" in this context. Therefore, we reject 

petitioners' argument that EPA was required to exclude 

consideration of cost-effectiveness and to set a beyond-thefloor standard of 0.04 lb/ton of clinker. 

III 

Next, we consider petitioners' claim that EPA acted 

unreasonably in setting a compliance date of September 2015 

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for the emission standards for particulate matter, mercury, 

hydrochloric acid, and hydrocarbons. 

Under Section 112(i)(3)(A) of the Clean Air Act, EPA 

must require compliance with emission standards for existing 

sources "as expeditiously as practicable, but in no event later 

than 3 years after the effective date of such standard." 42 

U.S.C. § 7412(i)(3)(A). Petitioners here contend that EPA 

violated this timing provision by "extending" the compliance 

deadline for the 2010 Rule from September 2013 to 

September 2015. 

As applied to the particulate matter standard, there is a 

basic flaw in petitioners' argument: The 2013 Rule did not 

simply "extend" the deadline for complying with the 2010 

Rule. Rather, the 2013 Rule established new particulate 

matter standards with a new effective date of February 2013, 

and a new compliance date of September 2015. EPA 

concluded that any earlier date of compliance would not be 

practicable because of the multi-year timeline for upgrading 

the technology necessary to ensure compliance. See 78 Fed. 

Reg. at I 0,024. As we have ruled before, EPA may reset the 

compliance date for an emission standard when it introduces a 

new standard with a new effective date, as was the case for 

particulate matter in the 2013 Rule. See NRDC v. EPA, 489 

F.3d 1364 (D.C. Cir. 2007). 

According to petitioners, even if EPA could change the 

compliance date for the particulate matter standard, the 

agency could not do the same for the mercury, hydrochloric 

acid, and hydrocarbon standards. The 20 l 0 Rule set the 

emission levels for those pollutants, and the 2013 Rule did not 

alter the emission levels for those pollutants. This situation 

does indeed present a bit of a conundrum. On the one hand, 

we know under the terms of the statute that EPA has set a 

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compliance date of 2015 as the date that is as expeditious as 

practicable for particulate matter. On the other hand, our 

prior decision did not vacate the prior 2010 Rule, and the 

compliance date for the other pollutants as set forth in that 

Rule would otherwise be 20 13. 

This conundrum is resolved when one realizes that it 

would be irrational and even absurd to have different 

compliance dates for the different pollutants. EPA explained 

that the technology is such that it would be senseless to have 

different compliance dates. See 78 Fed. Reg. at 10,024. Even 

petitioners do not deny that the compliance date for all the 

pollutants should be the same. To be sure, they want 2013 not 

2015 as the compliance date. But they recognize the general 

undesirability of a compliance date of 2013 for some of the 

pollutants and of 2015 for other pollutants. See Tr. of Oral 

Argument at I 0-11. Finally and perhaps most importantly, 

our prior decision in this case also recognized, at least 

implicitly, that there must be a single compliance date for all 

of the pollutants. See Portland Cement Association, 665 F.3d 

at 189. Our decision necessarily relied on an assumption that 

if EPA did not alter the level for any of the pollutants, the date 

would be 2013. But if EPA changed the level for one of the 

pollutants, the compliance date for all the pollutants would 

move together. Petitioners' argument for a 2013 compliance 

date would be inconsistent with our prior decision. 

In short, we reject petitioners' argument about the 2015 

compliance date. 

IV 

We next consider petitioners' challenge to the affirmative 

defense that EPA created for cases of "unavoidable" 

malfunctions. 

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Section 304(a) of the Clean Air Act, 42 U.S.C. § 7604(a), 

allows individuals to file citizen suits in federal district court 

against sources that violate emission standards. Under the 

law as originally enacted, a court could order only injunctive 

relief as a remedy for a violation. But as part of the 1990 

amendments to the Act, Congress expanded the citizen suit 

provision to give district courts authority to impose "any 

appropriate civil penalties," which may include monetary 

penalties. 42 U.S.C. § 7604(a). 

In the 2010 Rule, EPA created an affirmative defense to 

Section 304(a) for certain emissions violations caused by 

"unavoidable" malfunctions. Under the affirmative defense, 

the district court may assess penalties only if violators "fail to 

meet [their] burden of proving all of the requirements in the 

affirmative defense." 78 Fed. Reg. at 10,039. EPA retained 

the affirmative defense when it promulgated the 2013 Rule. 

See 40 C.F .R. § 63.1344. 

Petitioners now argue that the affirmative defense 

exceeds EPA's statutory authority and that it is for the courts 

to decide whether to create an affirmative defense in these 

private civil suits, not EPA. We agree. 

The threshold question is whether petitioners have 

standing to challenge EPA's adoption of the affirmative 

defense. Petitioners are environmental associations with 

individual members across the country. EPA's affirmative 

defense would immunize certain emissions that petitioners 

contend should be penalized. Some of petitioners' members 

will suffer from those higher emissions, according to their 

affidavits. A ruling in their favor would prevent those 

emissions and help alleviate that harm. That's good enough. 

Petitioners have shown injury-in-fact, causation, and 

redressability, and they thus have standing under Article III. 

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We turn, then, to the substance of petitioners' challenge 

to the affirmative defense. 

Section 304(a) grants "any person" the right to 

"commence a civil action" against any person "who is alleged 

to have violated (if there is evidence that the alleged violation 

has been repeated) or to be in violation of' an emission 

standard or limitation under the Clean Air Act. 42 U.S.C. 

§ 7604(a). The statute further provides that the federal district 

courts "shall have jurisdiction, without regard to the amount 

in controversy or the citizenship of the parties, to enforce such 

an emission standard or limitation ... and to apply any 

appropriate civil penalties." !d. 

When determining whether civil penalties are 

appropriate, district courts look to Section ll3(e)(l) of the 

Act, which directs courts to "take into consideration (in 

addition to such other factors as justice may require) the size 

of the business, the economic impact of the penalty on the 

business, the violator's full compliance history and good faith 

efforts to comply, the duration of the violation as established 

by any credible evidence ... , payment by the violator of 

penalties previously assessed for the same violation, the 

economic benefit of noncompliance, and the seriousness of 

the violation." 42 U.S.C. § 7413(e)(l). 

Section 304(a) creates a private right of action, and as the 

Supreme Court has explained, "the Judiciary, not any 

executive agency, determines 'the scope' - including the 

available remedies - 'of judicial power vested by' statutes 

establishing private rights of action." City of Arlington v. 

FCC, 133 S. Ct. 1863, 1871 n.3 (2013) (emphasis added) 

(quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 

(1990)). Section 304(a) is in keeping with that principle. By 

its terms, Section 304(a) clearly vests authority over private 

Paqe 15 of 18 
USCA C<1se #10-1371 Document #1·~38926 r"iled: Q.:J/18/2014 

16 

suits in the courts, not EPA. As the language of the statute 

makes clear, the courts determine, on a case-by-case basis, 

whether civil penalties are "appropriate." By contrast, EPA's 

ability to determine whether penalties should be assessed for 

Clean Air Act violations extends only to administrative 

penalties, not to civil penalties imposed by a court. See 42 

U.S.C. § 7413(d)(2)(B) (Administrator may "compromise, 

modify, or remit, with or without conditions, any 

administrative penalty"). To the extent that the Clean Air Act 

contemplates a role for EPA in private civil suits, it is only as 

an intervenor. See id. § 7604(c)(2). EPA also of course could 

seek to participate as an amicus curiae. 

EPA argues that its proposed affirmative defense simply 

fleshes out the statutory requirement that penalties be applied 

only when "appropriate." But under this statute, deciding 

whether penalties are "appropriate" in a given private civil 

suit is a job for the courts, not for EPA. When a private suit is 

filed, the defendant can argue that penalties should not be 

assessed, based on the factors in Section 113(e)(l) such as the 

defendant's "full compliance history and good faith efforts to 

comply." !d. § 7413(e)(l). EPA can support that argument as 

intervenor or amicus, to the extent such status is deemed 

appropriate by the relevant court. But under the statutory 

scheme, the decision whether to accept the defendant's 

argument is for the court in the first instance, not for EPA. 

EPA alternatively contends that it is permitted to create 

the affirmative defense because of Section 30l(a)(l) of the 

Clean Air Act. See 78 Fed. Reg. at 10,014. That provision 

authorizes EPA's Administrator to "prescribe such regulations 

as are necessary to carry out his functions under" the Act. 42 

U.S.C. § 760l(a)(l). But we have consistently held that 

EPA's authority to issue ancillary regulations is not openended, particularly when there is statutory language on point. 

( 
( 

( 

( 

USCA Case #10-1371 Docu~ent #1488926 Filed: 0<1/18/2014 Paoe 17 of 18 

17 

See, e.g., American Petroleum lnstilute v. EPA, 52 F.3d 1113, 

1119 (D.C. Cir. 1995) ("the general grant of rulemaking 

power to EPA cannot trump specific portions of the CAA''); 

NRDC v. Reilly, 976 F.2d 36, 41 (D.C. Cir. 1992) (EPA 

cannot use its general rulemaking authority as justification for 

adding to a statutorily specified list); Sierra Club v. EPA, 719 

F.2d 436, 453 (D.C. Cir. 1983) (same); see also Gonzales v. 

Oregon, 546 U.S. 243, 264-65 (2006) ("It would 

go ... against the plain language of the text to treat a 

delegation for the 'execution' of [the Attorney General's] 

functions as a further delegation to define other functions well 

beyond the statute's specific grants of authority."). Those 

precedents establish a simple and sensible rule: EPA cannot 

rely on its gap-filiing authority to supplement the Clean Air 

Act's provisions when Congress has not left the agency a gap 

to fill. So it is here. 

On a different tack, EPA notes that Section 304(a)(1) 

does not expressly deny EPA the ability to create an 

affirmative defense, and EPA emphasizes that this Court has 

frequently recognized the need for flexibility in the 

administrative process. EPA Br. 46. That's true. But the 

suggestion implicit in EPA's argument - that we should 

"presume a delegation of power absent an express 

withholding of such power"- is "plainly out of keeping with 

Chevron .... " Railway Labor Executives' Association v. 

National Mediation Board, 29 F.3d 655, 671 (D.C. Cir. 1994) 

(en bane). 

Finally, EPA suggests that an affinnative defense for 

malfunctions is necessary to account for the tension between 

requirements that emissions limitations be "continuous" and 

the practical reality that control technology can fail 

unavoidably. See 78 Fed. Reg. at tO,O 14. That is a good 

argument for EPA to make to the courts- and for the courts 
USCA Case #10-1371 Document #1,188926 Filed: 04/18/2014 

18 

to then consider- in future civil cases when this issue arises. 

But it does not suffice to give EPA authority to create an 

affirmative defense. 2 

••• 

We grant the petitions for review with regard to EPA's 

affirmative defense and vacate those portions of the 2013 

Rule pertaining to the defense. We deny the petitions in all 

other respects. 

So ordered. 

2 The Fifth Circuit recently upheld EPA's partial approval of 

an affirmative defense provision in a State Implementation Plan. 

See Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013). 

We do not here confront the question whether an affirmative 

defense may be appropriate in a State Implementation Plan. 

Pn!Je 18 of 18 
( 

( 

Under CAA § II 0 (I) revisions to a State Implementation Plan (SIP) cannot be made, if those 

revisions would interfere with attainment requirements and reasonable further progress. In order 

to repeal20.2.12 NMAC (Part 12) and remove it from the NM SIP, NMED must demonstrate 

that the PM emission limits in the existing Part 12 are less stringent than either the NSPS or 

NESHAP for this sector and that the repeal of the existing Part 12 will not relax applicable 

federal emission standards. 

The following calculation demonstrates that the PM emission limits contained in Part 12 are less 

stringent than the NSPS or NESHAP. A number of assumptions and engineering judgments 

must be made in order to compare the differing formats of the emission limits. First, compliance 

with the emission limit contained in 20.2.12 NMAC would be based on an EPA Method 5 stack 

test described in 40 CFR Part 60, Ap~. A-3. Second, there are no standard conversion factors to 

use when converting from 230 rng/rn as used in Part 12 PM emission limit to 0.07 lb/ton clinker 

as used in the NSPS and NESHAP PM emission limit for existing sources (least stringent 

emission limit). Under the federal standards, an alternative PM emission limit exists for sources 

that combine exhaust gas flows from the kiln, the alkali bypass, the coal mill, and the clinker 

cooler. In the eqilation for determining the alternative PM limit, EPA lists 0.0060 grain per dry 

standard cubic feet (gr/dscf) equivalent to 0.07 lb/ton clinker where, clinker cooler and kiln 

exhaust gas are not combined. All other conversions use standard air quality conversion factors. 

To express 230 rng/rn3 in lb/ton clinker we must first convert the limit to gr/dscf. In this 

conversion we use I dscf= 0.02832 rn3 and I rng = 0.01543 gr. 

Convert rng to gr, 

(230 rng/rn3

) • (0.0 1543 gr/rng) = 3.5489 gr/rn3 

Then convert rn3 to dscf, 

(3.5489 gr/rn3

) * (0.0283 rn

3

/dscf) = 0.10043 gr/dscf 

Using the ratio of 0.0060 gr/dscf to 0.07 lb/ton clinker we can solve the following proportion. 

0.07lbfton 

0.0060 grjdscf 

=--.;;.• __ 0.10043 grfdscf 

Solving for x gives us, 

(0.07lb/ton)(0.10043 grfdscf) 

x= 0.0060 gr{dscf 

So, 

x = 1.17 lb/ton clinker 

The conversion and proportion tells us that 230 rng/rn3 would be the equivalent of 1.17 lb/ton 

clinker which is approximately 17 times greater than the emission limit in the NSPS or 

NMED EXHIBIT 7 
NESHAP. This demonstrates that the PM emission limit in Part 12 is less stringent than the 

NSPS or NESHAP for this sector and that repealing the rule would not relax the federal emission 

standards. 

( 
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( 

( 

SUSANA MARTINEZ 

Governor 

JOHN A SANCHEZ 

Lieutenant Governor 

NEW MEXICO 

ENVIRONMENT DEPARTMENT 

525 Camino de los Marquez 

Suite I 

Santa Fe, New Mexico, 87505 

Phone (505) 476-4300 Fax (505) 476-4375 

www.nmenv.state.nm.us 

Memorandum 

RYAN FLYNN 

Cabinet Secretacy 

BliTCHTONGATE 

Deputy Secretary 

Date: June I 0, 2014 

To: 

From: 

Subject: 

File 

Richard L. Goodyear, P.E., Chief, Air Quality Bureau fiP 

Repeal of20.2.12 NMAC- Cement Kilns, Negative Declaration 

In response to concerns about the efficiency of environmental permitting by the Department, Air 

Quality Bureau staff identified several rules that are outdated and evaluated each for repeal or 

amendment. Rule 20.2.12 NMAC- Cement Kilns (Part 12) was identified as a candidate for 

repeal due to outdated emission limits. 

In order to repeal Part 12, U.S. EPA, Region VI, requested that we make a negative declaration 

certifying that no cement kilns exist in New Mexico under the Department's jurisdiction. In 

consultation with the Bureau's permitting staff and after searching our database of facilities, we 

found that no cement kilns exist in New Mexico outside of Bernalillo County or on Tribal Lands. 

Further, external sources of information from the United States Geological Survey and trade 

publications support this determination. 

The Bureau's permitting staff confirmed that no permit applications for cement kilns are on 

record and they do not anticipate any in the near future. 

NMED EXHIBIT 8 
( 

( 

CL/\-22-J\ tH-J/93) 

( 

AFFIDAVIT OF PUBLICATION 

STATE OF NEW MEXICO 

County or Bel'llalillo ss 

Lincl;-t l\llacl':;tclwJI, being duly sworn, t!ecJar~.·:; and s11yx thnt sh~ i.'l Clmcsilit•d Advertising Managel' 

of The AlhuqUl'I'(JIIc Jounwl, <llld I hat thi~ ncw~pttpcr il'l dul}' qunliriL•tl lo publi.'ilJ legal notice~ or 

;ulverUSL'II1l.' nts within tile llll'illlilll-! of section 3, Chap\CI' 167, St>:;:;ion Lmvs or J 9,17' and thtll pilyment 

1 hl'I'L'forc hw~ been made of asse~S(!d as court cos!; thai" the notfc. copy of which i:i hC'reto fiHiiCht:>d, 

was ll~lj:;l~~~ :;ai.I~~lpc:w in tl.1c. n·guhu· da. ily edi~ij9, feu·_ I_ limes, the fil•st publication being on 

the ~_L)d~y of ----.L(/2:._~--::_ __ , 20____{_7:md the subst•quent consecutive puhlicfllions on 

- - .-··---·----· - ---------··---·-· 20 __ . 

I ' . (\ 

lJvv'l:lc,_Dlfi~~Aiv&v.v __ Sworn :~nd suh:;cribl'd hl'J'ore lliL', i'l Notary Public, in ;mel 

StniL'Il1L'nl· to t.:omc nt l'lld of monlh. 

i\CCOUN'f Nl!M13El( _ ~O~}'i:_i!}_·_ 

NMED EXHIBIT 9 
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f:lGJRI Mtnii'iWa!Q( EliW<iRmf'<IICII~thni!rl! Ot!t•l!.l 

I' 0.&115409 

S.11~3 Fo, Nl.l 81502 

Ph:FA: ($05)62'1·1-12;, fa.'( !00!::) 

8:!1·G:Hti 

Atrt mombc1 ol lho ~~tnt>tlll pu~ 

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( 

Invoice 

In\'oicc Numhor: NM/1-201-1- 201 

Dalr: 

~ --- ---- -

llill Tu: ~li<•lwclllilCil (575) fi-17-79R3 

I Air Quality nun:au 

, 515 Camino de los /\-1;lrquc7. #I 

Sa111<1 fe, NM 87505 

E-Mail: michacl.baca I @s!atc.nm.us 

51512014 

FV1.:.l· :1'.:: I 1 ~., -_., ...• ·• ' .. , -.I j , I _.! 

Mt\Y I 2 <'014 

Comrn i«ion of Public RcC<ll'<b 

Administrative L:~w Divison 

1205 Camino Carlos Rcy 

Sanla Fe. NM 87507 

Phone: (505) 476-7~07 

Fax: (505)'176-7910 

. -· - -- ··c-::-:=-----:--:---;c-· Sltip To (ir dirrc-rcnt addn•!tis): 

Air Quality 13un::ru 

525 Camino d!.: los Marqucz;li I 

Silnta fc, NII-I R7505 

srtc ,\uthoril.lltion 

Louis!.! Wood 

~ Phone Num!lci'J D:1lc Rcqur~l~l-f_Dn_~c_Shi~~~~~ _, 

. Clnl) 476-1875 4/J0/2014 1 

t --- - - -- --

! l)nymcnt Method: 

! l~aymcnl ~\mount: 

- -~ ~R~veu uc C~cic1- ~!1il !.:.riccl' 

43102 Sl.OO - --------- ---- ~ubloi:JI 

Dl'Sl'riplion -----::-:-- ------- -- Columnar inch Nolkc 

Tutnl -l 

$-12.00 \ 

s-n.nlll 

for lnlt•rrlnl Usr Onl)' 

r----- --- - i•aymcnt Am011111 1--· _ ---::--,--,-

r\ltlotlnt l>ue · $•/2.00 : Pun.:ha:;c Onk•r i'\umber: 667000·00001120~22 

Swte Rl'cortl\· Ctwter nut! An:llh•ex 

Please pay pmmptly to Vendor Number 0000000 729 Commission of Pu/Jiic R,•eortlf 

Vorm SI~C-2002.-03- Hcvisrd Sl'ptt·mhe,· 2006 
New Mexico Commission of Public Records 

Administrative Law Division 

1205 Camino Carlos Rcy 

Santa fc, NM 87507 

505-476-7907 

Affidavit of J>nblica!iOf! in the New Mexil!_o_ !J~glster 

I, Matthew Ortiz , cerlil'y lhallhe agency noted below has published legalnolices or ruks in 

the New Mexico Regisler, and thnt payment has been assessed by invoice lor said legal notice 

or publication, which appeared on the dale and in the volume and issue number noted below. 

Dat<• ol'l'ublicalion: 4/J0/201·1 Agrnt·y: 

Volum<•: XXV Issue#: R Air Quality llnrcau 

Contact: Midwcl Oaca ln\'Oi<'<' #: NMR-2014- 201 

Amount: $42.00 

Dc.'icrirltiun: 

Notice 

(sea I) 

525 Camino de los Mnt·quez //I 

Santa Fe, NM 87505-

Nlltkl.! oi"Rutcntakin~ I karing 

Stnte of New M!.!xie.:o, County of Snnl:t fc 

Signed and afrtnncd before me on Monday, May 05, 2014 

by Mallhew Ortiz 

Notary PnhVc: cf&tyj.t? \})0oc) 

Louise Wo<!5J~ [My conuni.J' .. ~'j}'"~J:'.e~. 'res:~ 1 <) J "7 

AfJian!: /' LA .. ---(~l'l Publish<·r, ,._J,.", Mexico li<·gister (./ Date: 5/5/2014 

-Coph•s vflhe puh/i,\·hed mafr:rial doc.:umemed in this aj}iclavil are endo.1w/-. 

Form SRC~2UIJ2-04 Revise,! July 2007 

( 
( 

( 

N<·w 1\Jrxico H<•gistor/ Volume XXV, Numh<•r· 8 I Apri130, 21114 217 

Noficcs of H.ulemaldng and Proposed Rules 

NEW 1"EXICO ECONOMIC 

DEVELOI'~II·:NT 

DEl',\ HTi\1 ENT 

pllfll!ISc of I he h..:arin,g i;;. In nmsido..·r the 

11Wil~r of HB 1-l-UJ (R). pn1p11St'd rep .. ·:d 

and rcpl;u:cme111 to the N .. ·w :'-.·k·xic-o Slate 

lmpk·mcnl.llion Plrrn ("SIP") I"L'gnrdillg 

Ail' Qua!il,v Colli rol Rt'!!lllaliun Part W 

(CrJJ{{ilrmi~v /oJ rlw ,\)all• lmf4,•mellflll;on 

l'lalll!{li·.m.v,orJafirm /'Jan:;, l'roxram.•·. 

mt,/ Prr?i•'Cts) NI.'W 1\h.'xktJ Administratirc 

Code- ("·:W.2.1J'1 NMt\C"). 

The El'OflOIIlk 0!.'\o.'loprnl'nl Dcp;Jrlmo.•nt 

crmo or Ot:p•u1m .. :nt") h\:r!.!hy givo:s no1il.·l· 

th:H thl' D~.·parunc-nl will <.'ondU!.'I il puhlic 

h ... ·aring il!i indi,,:;Jh.'ll to uhl:lill input WI 

;JmCJK.Iing the follow in!! nrk: 

5.5.50 1'\Mt\C {lndu:;;triol Dcwlopm!!lll 

Training. Program). 

The /Htlp(•scd rubnakin_g ncdous spcdlh: 

m I he J,,h Tr.tining /nc~.·nfive Prognun 

may he acl"l'Sscd on April JO, 2014 on the 

Dt:parlnll:nt's website (hUnil.~UDl~l..!l1 

Qjz./JT/P) or nbtaincd from Sara Haring ot 

the cuntactbelow. 

A puhlic lh.'Hriug rl'garding the rule:> wil! he 

held on Friday. f!.·lay 30, 20/./ :11/he CNt\1 

Workl'on:c Training Ccnll'r, 5()00 E;1g_lt: 

Rork A\-~ .• NE, Alhuqucrqu¢, f\:1\1. The 

lime fnr the hearing on the prtlJlOSl'd rules i.~ 

t);OU t\1\l MDT. 

JnJct· .. ·~tcd individuals may l..:slify ;II the 

puiJiic hcnring or submit 11 riu .. ·n comments 

r~gan..ling the proposed rukm<1ki11g rcbtintt 

to I he job ·rmining I nc~nlive l'ro,grarn 

to Sara Haring. JTIP Program Managcr, 

New ~kxico Economic D .. ·vclopm .. ·nt 

JJcpartlllcnl, P.O. llo;'\ 200UJ !-ianta Fe, New 

~~ .. ·,ko8750·1-500J, or S}ra.Jmti!u.::it~i!ll:, 

l!J.llJI.::; (505) 827-02-19. \\'riuen COII111lt'nls 

musl IJ~: rccch•cd no lnta than 5:00 pm on 

Friday, ;>.by 23, 20 I~. 

Individuals wid1 di·mhilitks who require 

this inJ'orm:Jtiun iu an ulternative for111a1 

tll' nc..:tl any form of nu.'\iliflry nid lo nHcnd 

or partidpalc in I hi::; hcuring nrc ash·1l1o 

contact Therl.'se Varda <IS soon ns po~siiJI .. ·. 

The D~pnrtnlcllt rcqu~sls 01 least ten tlays 

;ulvanccd nolil'c lo provide rcqu..:sted 

spc-ci<tl accommodnlions. 

NE.W MEXICO 

ENVIRONMENTAL 

IMI'IWVEMENT IJOARD 

NEW 1\.-IF.XJCO ENVJHON.\IJ·:NTI\L 

li\JJ'ROVEMENT rJOARn 

MHICE 01' IWLf'..\ 11\KIXG IIEI\HING 

Thc Nl'W Mexico Envimnmclll:1l 

lmpn>H:m.:nl rloarJ ("'Board") will holll il 

pul•lk h..:arinr~ rm July J I, 20JcJ at 9:UO rr.111. 

111 !he No.:11' M\'\ku Slulc Caritnl lluildiug, 

Room 307. in Snnta Fe. New 1\k-.:ko. Till' 

Tlw prupuucnt orthis rc:.:ulalory rcp .. ·al 

;Uttl repln..:emL'III is lhl' NL'W fo.. k.'\im 

l·:n\oii'OIIIIWill Dcp·;lrtmcnt (''Ni\fED"J. 

Thl.'. pmpos.:: oflhc public hL·arin!! is to 

con~ider and take llos:;ib/c a~tion on n 

r~·litiun from the Nl\JE!J to n:pe:1l o111d 

r .. ·pLt~.·c 20.2.99 NrviAC. The propo . ..;~..-d 

rcp..:al and replitl'l'llll'Jll of 20.2.99 N,\•IAC 

is in l"l'='Jlon:-:c lo amendments is:-.ued by 

tbl! EnvinmnJenlal Prot .. ·clion Agency 

limunry 2·1, 2008 arK! ,\larch 1·1, 2012 to 

40 CFR Par1 93, Suhparlt\ • ( 'ouformi~l' 

10 StllfL' or f."e,/,•rrtllmfJ/emt•JJtalion Plans 

of7i·awporlulion f'lcms, l'ml~l'lllll.'i, and 

flrc!it'l'/.1' DetvloJ1t>cl. fi1111h•d tW .·lflJll'o\'l'd 

1111d,•r 'fi"t/,• 13 U.S. C. ul'lhl• Fcdl!l'c11 

Trau.till.aws. 41J CFR IJJ Subpart A was 

umcnlkd to nllow :.l;llcs to streamline. tl1eir 

ro..•gtllaliiii\S nnd climili:Jk' th~.: prcl\'isitms 

unrl'lnlt'd to impk·mcntaHon hy the Slatl.'. 

Upon ndoption hy lhe Bu;ml, the r..:pc;tl 

und rcphleCmcntnf 20.2.99 N;>.I/\C would 

he ~uhmilll'd lo EPA fur im:orpornliun into 

New t\kxko's SIP. 

Thl.' N.\!ED will hn:U an inronnational 

c1pen house on the JlrDJlll:\l'tl rl!pl'UI and 

n.:pl:1ccmcu1 uf20.2.99 N~IAC ot the 

NMED Ail' Quality Hurcau UJlkc, 52) 

Cmninu de los Marquez, Suite I. Smnn Pe, 

N~1\ Ml·xicn from 12:00 p.m.~ 2:30 p.rn. 

till ~Illy 16. 201,1. I' or qu~:akms fl.'!!arding 

the open lwust:, plca:\e contact Cindy 

I lnllenhL·rg. at 505·476-4356 or •.:inlh:O. 

hrrl.lcl!ll .. 'I".Yll~\i.l~. 

Fullt~x\ ofNMEIJ's propn.,.etl rcvbcd 

rq,~ulatiiHIS :m; n\·ailable on NMED's 

\\\'b siiC' ul W\\ 1\".rHlll'O\' si;.Ul'.tl!H.lli or by 

contoo..·ting Ciully llollcnherg nl (505) 476-

•1356 ur ~lu<.l..YJJ~11.h:n~ .. ·rg_~f~B.Iill~,llill..m. 

The proposed rcdSL'd regulation m:1y also 

he examined dt1ring ollicc hours utI he Air 

Qwllily llure;nl office. 525 Camino do..• Ins 

f\l;lrqu .. ·t. Suill.' I. Sanla Fe, Nl·w Mc,,ko. 

Tit\.' h~.::1ring 11 ill h .. · a.:clllducl..:tl in 

nccordan .. ·a.: with 20. 1.1 Nl\ lAC 

(Rulc111:1l·.:ill!! Pmt·edurL'S- Envirunmental 

lll1provcnwnll1t~<lrtl), the l:nvinmmcnt;ll 

Improvement 1\cl, N:\rSA 11)71-:, Sl·ctiun 

7·1-1·'), tlw Air t,!unlil)' Control Acl, N;o..ISA 

1978, Scl·lion 7·1-2-6, und olhl•r applkahle 

1)1 tlt'\.'tlllfl'\i, 

All intercsl\'d pcrsnns will be ~iwn 

fl'asnnahle OJlllnrtullily <II lht' hearing In 

submit rl•lo.:v/Ult cviden .. ·l.', data, liews :111d 

argtmwnts, orally or in \I riling.. to imrodw .. ·~· 

1.'.\hihits, and ILil".'\alllin.: wirnc-sscs. Pcrsnns 

\I" ish in!! 10 prl.'sent IC"dlnlea! le.~liiiiiiiiY must 

Jik \\it lithe lllt:mlu \lritl~·n nuliL'C ofi11tent 

Ill do so. T!w nutkt: ufintenl shnJJ: 

(!) idcu1i(y th..: r.-.. ·rson !Or \lhmn lh~· 

wiln~·ss(cs) \\ill h:sti(r; 

(2) idcnlil)' e;u:h t .. ·chnkul wihlt'ss that 

lhL· pC"rson inlcnd.s to present and stale- Llll' 

qunlilk;1linns nfthc wilnl.'ss. including n 

de-scription of 1l1eir educatitm und work 

h<ld!!rotmd; 

(3) inclmle 11 copy of the direct tC"SiiJnony of 

l'JICh IL·chnic:L! witness in narrmivc 

(4) list nnd nttad1 l.'llch 1.'.\:hihil mllicipatl'd to 

be olli:retl by that person at lhe hearing; ~nd 

(S) allal·h the text nf fill}' fCCillllmemled 

nJollifkations to the- pmpm;ctl new and 

revised regulations. 

NotiC'l'S of into..·nt /Or lh~ h~:aring must bc 

r~·~.· .. ·ived in thc Ollkt' ul'thc llttart..l not !n1er 

tllilu5:0il pm un Juue 20, 21)14, anJ shnultl 

rciCr\.'nc .. • the dodctnumhcr, EJIJ 1·1-0J 

(R). and the d;ltc of the h .. ·aring. Notkcs of 

intent to pr .. ·sent tec-hnicul testimony should 

ht· suhmitlt:d Ia: 

Pam Caslilneda, Bomd Adrninistralor 

Environmcnl:lllmprovcmr..'nll!oard 

f). 0. Box 5469 

San1:1 rc, NM 1-17502 

l'hone: (l05) 827·2·125, Fu> (l05) 827-0310 

Any mcmbcr of I he: gencml public may 

t .. ·stify ntthc hearing. No prior nolili~o::~tiun 

is J'C(Jllil"l't..l to prcsr..'nt non-tcchnic:ll 

ll.'slimony <It the hearing. Any such member 

may .rlso ofl~·r c.xhibits in conm·ction with 

his testimony, so Jon~ as Jill! l'.'l:hibi! is not 

unlluly rcpctitious or th~ !l.'slinwny. 

t\ mc:mbcr of the gcncrnl puh!k who wish .. ·s 

to submit a wrillcn Slatcm\.'nl for the rc.:orll, 

in lieu or providing orallc.~timony ill th .. · 

hl'aring.. shall fllc the wrillen st:11em..:nl prior 

to I he hL·ariJl!;(, ur submit it :llthc hl'arin(!. 

Persons lmving. a disability nnt..l needing 

help in hl'ing a part nl'this hearing proc ... .-s 

sllOlllll~.:uniOiel Juan Cnrf(IS Oorrego or 

the Ntv!ED l·lurnan lksoun:es Bm .. ·;tu hy 

July 1,201•1 all'.O.Bo:~2riiJO, 1190St. 

Francis Driw, Sm1111 Fe, New Mexico. 

X7502, tckphonc 505-827-0·1:!4 orcmail 

jtEU.t.::!.!.l:b.'&l2!m~gf!.:ft.ISlah;.nm.l!·'i. TDY 

llSlTS please <ICeL'SS his number vin thr..' N .. ·w 

f\!l'.\ko Rcby Nl'fwork at J./-:(J0-6W-X331. 

'1'11c I ~o;1rd may make a t..ll'ci:-:ion on 

!he propo:.t•d ro:vi:; .. ·d t\:gulariuns at the 
218 Nt•w 1\h·xico Ht•gislrr I Vnlum~ XXV, NumberS I AJlrif 30, 2014 

cm1du:>if1n of !h .. • he<lri:l!!. or the Board 

may conv\!'nc a m~ctil1~· ulit-r 1h~ hL·:trhlg tu 

~,;1)/l:Jitkrtlclion (\Ill h.: Jll'nf}>lS:tL 

NEW MF.:XICO 

ENVIHONMENTAL 

IMPROVEMENT IJOARD 

NEW AIEXICO GNVIRONMI'NTAL 

IMPROVEMENT llOAIHJ 

NOTICE OF UUI,E~fAKfl\ ti l li!ARIJ\,;U 

Tho: New 1\l,•xic" l~nvirumncm:ll 

lmproV\,'lllCnt lltlotn! (''llCl<lnl") w1ll hoM 

a puhlic hcarln,g uu July ll, 2UJ4 <tl 9;00 

u,m. al the Sial~ Cupilvl Building. Room 

301, ·l 1JO Old Santa Fco Tmil, Santa Fl', N!!w 

Mexico. The purpo~L' tlf th~· h~·ntitlg is lo 

con:;id'-'r the m~Ucr of No. r:JB 14~02(R), 

propo~J revision ro the New ML•x!co Swh.' 

lmplentt:ntatlon Plan ("SIP'') regarding Air 

Qualily Control J{e~u!ation f'art f2 of 2il2 

New Mexico Admitllstrn:tive Code (Cement 

Kilns) ("20.2.12 NMAC"). 

The pn,po~lcnt of thi~ ~gulultlry 

lltloplion and n:vislun is !he New Mc-xieo 

J:n,.iroMneiH Depurmwut (''Ni\ffiD*'). 

The fllJfJHI!ll' nf tht• publk hl•aring is to 

con:-lder and take pus .. dhl~ ac~ion nn 11 

pctiliMt frorn 1'-'~Wn to n.'JK'nl20.2, 12 

N~ I1\C. The proposl·~l n..·p .. ·lll is in r..::>ponsc 

to th~ U.S. Environmt•nlal Pmt~t.:lion 

Agency's (''EPA") fdn\lary 12. 2013 

otnh.·ndnw!Hs to 1h~· Ji.·d~·mt N~'\\ Smm:-c 

P~;riOnnrmt.:c S!;~Ol.f<~rd, 40 CFR J'>art 60, 

Subpart F- Slandards of Perf1l!1lKIIICC for 

Pt)rt!Jnd Ccmctll Plants. ll'ndtljlt~:d by the 

Bonrd. Uw n:pcnl aJ'20.1. 12 NMAC would 

be submiHcJ to EPr\ fm ill!.'IWpor-Jiinn Into 

New fvl~xko's SIP. 

The f\:'\·1ED \\ill ho:;t <m informationt~l opc11 

hnusc tHlthc proposed n:pcal vf21),2.12 

NMAC :n tlu~ NMl::D Air Qua!iJy Burcnu 

onk..:, 525 Cnminn del los 1\tnrqoez. Sui!c 

I, S~mlaPe, :-.ie-wlVk,icofrom 12:00p.1rL~ 

3:00p.m, on hmc 4, 20!:J. To nltcnd lhc 

inlhnnaliol\al opl!n hoUS\\ pkasc ~,·onlacl 

rvlkhad Baca a! :575-647~7983 nr mkl:ad. 

b;,1ca lt11 :>!:!hUim,us 

The pmpn'>ctl re\'bl·d rq~ulnllon mny he 

reviewed during r<!'~ular bu:;iJl(':>.« hours nt 

the NrvJED 1\it Quality O.uro.:au o/lic-c, 525 

Cmnl:lo del los !'vlantucz. Sui!~.· I, S:H)Ia 

f(:', Ncq: Mc ... io.:o. Full t~t.\t ofN~·lFD".s 

propust·d ruvi,ctl r..-gu!alitm~ are anJiiabk· 

un NMEI}':> web site nt wv•·w.rnncnv.s!alc. 

Hfll.ll:>, or by comncting Michacr Oaca ni 

515-(vl1·11)XJ or miclwd.bar:;1l i(r;;I;Hc. 

nrn.us, 

Tlk: ho•;,fi;lg wiH be corn!ucfcd in 

ou.:\·,lf\li!nt\! with 20.1.1 NMi\C 

(Rul\·makinJ,! l'ro,·c,lurc~- I 'nvimAI1il'll1Jl 

Imprn,·o.:n1cnt Uru1d). 1ltc Envimnm~·n1al 

lmpnw.:mcnl Act, N.\JS,.\ 197ltS.:rti"n 

7·1· t·IJ. th\' Air QLmlity t 'nn!ml i\ct S\.'l'lion, 

N~~SA 1978, 74·2·6.and {llho:r applil·ah!c 

jWf)fCllt!l\':', 

AI! inlcrt'$lcd pcr;;m1s will [,e gir~o·n 

feo!4mnh1c tlpportunity ut th1.• hl.'miug to 

suhmit r!.'lcvanl e\'idclll"C. data .. viC\\.~ ttnd 

nrgumcnh., omlly ur in \1 rilin~. iu intrvdm:~· 

c:..:hihit.s. an1l1u l'Xmnln~ willl~·s~._._,., l\:r:oun~> 

wb!1inJ:t l~lJlr~·;.:~,·,,t h.:dmkaii\'S!lmony musl 

fik wHh the U!l;Lrd a wrill\'ll nnth:~..· nr in!l'lll 

tu 1!11 so. The 1w1k~· of inlL'111:-:hall; 

()) i1fcnLiJ~· tlK' jll.:rSt\fl fOf whont the 

\\ ilnt'S*.'s) wit! h:.stil)·: 

(2) it!ctltil) l';u.:h !t't'hnknl wiiJh.•,ss ihJ"I 

tho.: p~r...;.,lll inh:mls 11,1 pt\:scnt and stuk' the 

qua!Hiculions nfd1e wilncss, including a 

do:scriplion o!"ihclr .:duca1i<m ami work 

bn1•kgroontl; 

(3) indud~ ;1 l.'npy or !lie direct ll'stimony o( 

ench 1\.'chnk;tl witnl..'ss in fi<IITllll\'1! J'urm: 

(:!j li~t and Hllaeh e:JdJcxhibil nntl.:ij'llllt!tllo 

be on\.·retll,y thni person nl lh!.' ho.:arlug: an\1 

(5) illlltt:'h lh~:> ll'\1 of nny rccmt1!llcndl'tl 

mru:!iiiculion:: to lh~:! J:>rOI'k.)S.:tl lll'W nnd 

r..:\'isl!<f l'l'1:!Uhl!i1111S. 

Nndi.'L'~ urinlenl lhr th~ hearing. nms1 0..: 

n:rciwd irt 111c C lllitl' oflh~ Board l1t>l later 

ll1an ;5:00pm on Jum: 20, 2014 <111tl shttuld 

rcfercn(:~· the dod:d munher, liiB H·H1{1{), 

nrn:l1hc date ol'lhl' hl.':u·ing, Nnlicc." of 

inh:n! 10 jWCS~o'llllo.:l'lmical h:s\iinony slwulU 

be :.ubmitit."t! to; 

Pam C'asla~t.l;l, Uunrd Adminislfntor 

Environmcn!<tllmprov"·m~m f.lt,;wtl 

1).0. lln.\ 5-16•) 

S,tni>t Ft.:, NM K75U2 

l'hnne: (505) X27·2·115. fnx (505) 827-0) I 0 

Any mo:mbcr of II«: general publk may 

h..·:-.lil)' at lhe hl!<ll'ing. N•t prior nolilic-atilm 

i:> 1\!<,JI.Iil'l..'d [O pti.'SI.'I\1 llOIH..:o.:hnk<li 

testimony >!I the h~·aring. Any such mcmt:n:r 

may also olr~r l'Xhibits in couno.:clion wi!h 

his lc:->timony, :-:o long as the exhibit is not 

Unduly fl.'fll.:li!iOIIO\ or the h.·,.,timony. 

i\ membl.!r of 1hc g,•ncral puh!ic who '\ic:h~.~ 

to StJhrnil a\\ rittcn sl<!h.:mcnt ror the record, 

in I it:u ofpmvidin~ ornf h.'$limony at the 

fll'>Jdng. shalf fill.' the wriHc:n slalcm(;fit prior 

to the hen ring, or sulnuil il nl!hc ltl.';.lrill~'·· 

Pcr:-nns h:n ill~ 11 dlsnhilily ru1.:l nct.•tling 

hl!lp in b\·in!! a p;trt of thi..; lh.':1riU¢1 P"'o.:l·S:\ 

shouftl con1.1.:t Juan Cm Ius llorr~.·~~~ of 

th.: N~fED llurnan He sources Bw·cau- hy 

lllnc 2h, 201•1 Hi P.O. llnx S.Jf,9, IIIJI) Si. 

Fruw.:is: Orin:, Sani.1 Fe, Nt'W 1\k\lco. 

X7502, tdephnnc 50S-i(~1·H l2·1 or email 

jllillh.'>llitl'-llllfrt';.:i>'ll.\t;Jll'.lllll.tli. TI)Y 

us.~r . ..; plc.l,'i\:' <~t.:t\.'S.'> his number ;la 111.- New 

t>k:'>iilo l{d:l,\' Nt.'l\\url;: ai1-XlJt).(j)IJ-8JJJ. 

The Board may mah· a 1kcb;!,m on 

tf11! PfO/)OSl';l rt.·t·i:wd r~~ul:Hion:~ at thL' 

\'vndu:~inn oftlh.' hl'llrln!!- ar lite !h1:1H! may 

\'llfl\ ~lien f11t.'cling nt olml.'r da!l.' !o i.'IM\:-lilkr 

at.·iion on the prdp;1.:.11L 

NEW MEXICO 

ENVIRONI\IENTAL 

IMI'IWVEMENT llOARD 

NEW ~~E~IC'O ENVIRONoiENTAL 

l~dPROVEMI~NT BO,\RD 

NOTICI' OF R\JLE~IAKII\G IIEAI\IN<i 

'l'ht.: New 1>1cxiro Environm~rual 

fmpm\'l.'men! Bo:trd ("Hoanf') will ho1!] 

a puhlil.! hc;Jring on Jl!ly ll. 201·1 nt 9:00 

u.m. in ROtlm J07 at th..: Slillc Capil:d In 

Sunlu Fe. New fvlo.:xico. The purpn:>o.; nflhc 

hi.!<Uing i~ to ~.·on:~ith:r the maliL'f of No. EIB 

14-0l{R), proJ>OSI.'d rcvlslons to ihc New 

Mcxko Stntc fmpkmenlalion Plan ("SIP'') 

rcg,ardfng Air Qu.tlily Conlrlll Rt.•t:.ul;Jiiftn 

l',u1 7·1 ul'20.2 New Mc ... ico Admini:-tradve 

Cmk {Po:rrnit;o; -J'n.:wmiun oJ'Si~nilicanl 

lkteriomtilm) ( .. 20.2.74 N1\·IAC''j, 

·1 he pwpon~tnt v!"this Ngulmory 

at.lt\ption am! rl!\'i~iun is thi! ;..!c\\' ,\kxico 

Envimnrncnt DcjMiilu<:ltt ("N~IED'·). 

111e purpo:<c lll' the publi.: lt!!nrint:: i.~ to 

cous:idcr anti mkl' po~sihlc action nn a 

petition from NMJ~J) 10 r..:\·isc 20.2.7·1 

NMAC. The prupu!-i\."tl rc;>isJpm; an: 

iu fl.'!'>ptlll:!C to the U.S. Environmental 

Proh:ctiun Agency's ("EPA") Dcct•mlx:r 

9, 20 J 3, nmt.·n~..hncnts IO fcJ.:ral ruk~ :10 

CFR 5 !.!66nrnl.'i2.2 !, Th~· nmcndm;:nt'\ 

hy the EPA to th;: ICdcr.11 mlcs addr~..-s;; the 

.January .22. 20! 3, Unill•o.l SJ<tles Coun of 

t\ppc;lls ror the I.>islrkt or Columbia Circuit 

vm.:nlur and rl.'rnnnd ofhvo prevention of 

:~i!tnilk:~nl rlctcrinralion jlruvisionslhat 

w~tre pmmulgaled by Ei"t\ in 2010. Thll: 1wo 

provisions include tho: Signilkotnl lmll::tc! 

L(:\'ClS {Sll.s) and Significant Monitoring 

Cont't.'tUr:niMs (S\-IC) lbr partit:ulah.: 

nwlh.:r 2..5mkrons in:<it.l! ami ks:-;{P1\lu), 

Thl! CoUJ1's VIR'Ut\lr uftbc f'MJ, SIL:; nnd 

the SMC m~·an:-> thnt these pro,ision:; .:::111 

no long~-r be relict! upon by ~ither permit 

:tpplk'ilnts or jll.'rmiHing nuthorilk:-:, ·me 

NMED is propo~ing to remove the PNI .• 1 

SJL~ pmvhion aw.l r<i.ls\·lh~ I'Mp SMC 

provbitm thai were itwurporakd f!llv 

:w.2.7-11\'.\!AC in 1\iay 2UJ L lfadopt~·J 

hy !he Board. I he rcvisit•wi tu10.2.7~ 

NMA(' \mold b~.• sHhmiuc .. l to El}t\ !Vr 

itwnrpnr;1tion h)IO New 1\.lc~ko's Sll'. 

The Nfi.IE!l will ho:a :~n hlfonn;ulolnril !)pl!n 

hnthl' on !ht• pn.1pns~·tl rcli~ions lo 10.2.1-! 

( 
( 

( 

( 

New 1\le~ku !lt•giskr I Volume XXV, Numbel' H I April30, 2014 219 

NM:\C a! the NI\JEIJ t\ir Qu:llilr IJUI\'•lU 

Ollke. 5~5 (';uuirh\ .!d loi> t\i.lrqul.'l. :iUJh' 

L Sanl.l Fe. N..:w l'dc!>.lcl') from 12;01) p.m.~ 

J;OO p.m. on Jun\l4. :::Ol·L To ulh.:nd the 

inl()rr:mtiNl<tl op~nlwu~ .. ., pl..•as~.• cnnhll.'l 

G,1il Cool.:e :li .'i05-476~·1.i 19 nr 1::1il. 

l:t'ot.. .. ·•i :;tat~.nm.us. 

Thl!' prnpo.~l·J revise-d n:gui<HiiHl HH.l)' be 

r.:• kwcd durin!,! fl'gular hu:\in~.s\1 hours at 

1hc- NMEO t\irQl!ality lhifl'H\1 ullin:, 525 

C;unino tld los 1\·JanJ~l\'/.,_ Suit~ l, Sunlu 

F~. New ivh:x1co. Full h.\\l o!' Nl\ !f!IT:> 

pmposcd r..:\ i!'..:tl n:gul;Jlion i:\ avotilflh(c 

on N,\rED's \\"1.'h silt!' at www.nm.:nv.:;:hth:. 

11m. us. or by c~mlading Gail Cooke at (505} 

-H6-4J 19 or !,!:lilxnnkL"tf .st;JJt•.mu.us. 

ll».• h..:aring will I~ cmHIU\.'h:d in 

accorJanc~o.• will! 20.1.1 NMAC 

!Ruh:mat;ing Ptoe.:dllr.::>- Envil'tmmcnwl 

lmprove:mcnl Bm1rd). th•: Envimnlltt'ttl;d 

lmpron:rncnl Act. Nf'..JSA 1978,Scc!itHl 

74~ 1~9. till' Air Qualily Ctmtrol Act ~li'..:tion, 

NMSA 1978,7•1-2~6, auLI ''liter >~P!llicahlc 

fl/'t}l.'('dllfl.'::. 

All inl::rcstl'tl pl.'rsnn::; will hi! given 

1\'iiSO!l.lbl..; opportunity nt the lwnring to 

::;ubmit n:ic\'!lntcvidcm·l', tb!tl, Vic\\:\ and 

ur~·.wnt.\nts. orally or in writing, 10 inlrodm;.: 

~.'\hihit->,and to \!.'lt:arnin~.· wiltle:.:..;;~..·~. l)~.·rsons 

wish in~ to prc:'cnl h:dmical h::Himuny must 

Iii~ with th.; Doanl a written ll<Jik~.·~~fint~tnl 

lll Uo ,s~1. The notic>.! uf im~·nl shall; 

{I) hkn!il)· the l'll.'rson lOr whom th1.· 

witn!.!".s:.(~.-s) will 11.•;.,1ify; 

(2) id-.·nHIY each icdmieal \\ itw:.S:..'i Uml 

dlC perscm im~·nds to prcscn! otnd :amc 1h~: 

tJUali!kalion~ of the witness.. incluclin~ a 

d.:snlption ofthdr education and work 

ht1d.grountl: 

{3) indud..: a t:op)' ol"!he direcl tt: ... timony of' 

t..•nch h!choicnl wlUlC.~.S it! [l;trr:lliv.: form: 

(4) lis! and awu:l; each -.·xhihil ;u1tidpal~·~lto 

h~ om:n:d h)' thai perSon n1 the h~·:1rin~; nncl 

{51 nuuch tll~ t('xt ur uny rccommclllh.:tl 

mo..Jllk;Jlion~ to lhc propoSl!d IH,:w anU 

rcYiscd rcgulntiPI):>. 

Nolie\:;; of intent f\:;r the hl':lri!l,!!: mu:.l hi! 

n.:..:dv-.xl In the Olli:cc- of !h.:: Hoard not !tHa 

r!tau .>:00 pm on lm:: 20, 201.f tl'ld should 

!'di:n.:1l .. -c !he dl1d:ct number, Em l·i~OitR), 

anli the dut;; orl~H; hcariO¥. Notices of 

ir:t<.'nt to prcs~n! technh.'af it::slilnony should 

he suhmitkd tn: 

Ptwl Castalh:tb, iloanJ AdmlniS11<liOt 

E.nvinl!lmcnt<d hnpruvcment Boanl 

P,O, nox 5 i6!J 

S;uH<l F~·. i\!,\J 875112 

l'hmk.": (505} K27-1.J2.'i, Filx (505) S?7~0J I() 

:\ny memll<.·roflh.: g~·n.:ml public may 

t.:~.1IIY ;11 the !waring. Nn pdor notifl(.';lliun 

is n·11Uirei! to pn:SI.'nllkl::-l~::hni~·.ll 

h·slimnny at 1he 11..:-.;uine:-. Any :>udl!IH,'IIIhl'r 

may alsooff~·r C\hihits in CllJII\l,'Ction >,\ ilh 

his t~·stimony. so lou~ as the ~·-\hihit is Ml 

unduly rep~titious of lh!.!" t\.·stimony. 

I\ mcmhcr oftl1c gl'lleral puhli~· \\ lhl ~~ b-h~s 

tu ;;uhmit ot \Hillen si:Ucnwnt fnr tht: ro,'\;'01';.1, 

in lieu nt' providing ural tc~!im~my a! the 

lw:win~. ;;Jmllti!c rftl.' wriu~·n swl\'ml.'m J)rhtr 

!o the lw:trlng. ur submit it m the hc;uintr1\•n:nns l!aving n t.Hsability and lli:C>Iin~ 

hdp in Jn.:ing. n IMrl ofthi!\ hl~Jrhlt_! procc::$ 

should coulat·t Juau Carlos Hntn:go of 

!he N:>.IED Hmmm Rcst>UI'l\."S llun:au by 

Jtmc Jt),JOIJ nt P.O. Bnx 2tll Hl, I 19U 

!\!, Fr;1nds: !)rh·c. Santa fc. Nc~\· t.ft·x[c01 

S7)U2, h:l~pllntlc 505-827·0-12·1 or ~.·mall 

ju.1ncarlm;.h,ltT\.",gn"~fstnlt.".nm,tt'\. TDV 

us..·rs ph:as~.· ;~c~..·c;.;;s his number \·ia I h...- N\'W 

Mt•li.it:l.l Rday N.:t\\mk at 1·800··fl:''l·XJJ I. 

The !Joan! ma)' m:1kc n d\-'t'islon on 

the pwr~oM"'.I n:visl'd 1\'gu/aliOns al th.: 

C(lndu::ion or the hl'arin~. or the lhmrt! may 

l'(.lOVl'HC !I lllCl'lillg ill a hi!Crll:lli! lfl CI)IJSiJ.II.'"f 

n\."tinn CHI th...: pmpo:>.1f. 

NEW MEXICO 

ENVIRONMENTAL 

IMPROVEMENT BOARD 

NE\\' MEXICO EN\'II<ONMENTAL 

I~IPROVEMI:NT liOAIUJ 

NOTICE 01' PUIILIC IIEAIUI\G 

TO CONSIDER f'IWI'OSEIJ 

MII,NIJ~II;I\TS TO 20.7,3;~MAC • 

LIQUIIJ WASTE OISI'OMLAND 

TllEADIENT 

'J111.! Nvw i\kxko Eil\•inlnmenhll 

lmpnwemcnt l3o\\rd (Board) will hold 

u puhlk lwarln~ lll!~innin!!. m 9:01) tl.n'!. 

on Friday, Jirly t I, 2()J.I, am! cuntic:ufng 

thcrcalia ns nl'Cl's:mry o.llh..: i\'cw M.:.-.: ku 

St:lht Clfjlilnl Buildiug, Room 307. 490 

OIU Sanht l'l' Trnil, Santa r~-. N'cw Mcxkn. 

Tbe h~·;dng location may ch;mge prior to 

the ltl•:trlng Jut~. and lhos~ inl!:n::.tcd in 

altcnding..:;bould dv.::-.·k th\.': EIH \\d1sl!c: 

!ll!rrt/\nvw.rulWl!r,~ltt~.Jill1.mL~ilil privr to 

I he hearing. 'lllC jlUrpusc of th~ hc;JI"ill~ i:; 

IO COt\S:itJ.:r propHSl'd am.:ndll1Cl11.S to Lfquid 

Wa-ae Disr~·s~lll'lnt! Trc:umcnl Rules, 

20.7.3 N~·IAC (Ruks). The 1\'t:\v fvicsico 

Erwirrmmetl!J),.1ltlr(nH.-nt (:-.tMED) i:; the 

j)ro;10nc!lt 11f Uw nmcmlme111s to tilt! Rules. 

'lllC:tut!\'JJdnu·tH:> jlf(lpo.~~d by NMEI> !o 

:w.7.J N:>.MC would illl'rl':t~.:: !hl' scurc 

ortlk: r .. :gnl:uions ti·om the curr.·nt 2.000 

~nltnns per 1by or /c:;s tJt'!iquid was1c 

rwdvctl by a.11 un-silc o.yskln, w 5,000 

~·a/11ms p..:r dt\Y m "-'""· ~~u.:h th.a! lk'nnits fOr 

ewwlui.II'):L'I' on-sill· liquid w:t~h· sy:Hcms 

that 11rc curr~·ntl~ !\'t;Uiatc11 b~ N:v!I:D's 

Cimund \\';~t~·r Quality Dun.:au \\ ould be 

tron-~r~·tn·tl to th~ Dep;ln:m~·nJ'sl,iquitl 

Wast..: l'rogmm. 

l11 addl!lllll, lhc prnp<.ls~·d mncndmcnls 

inchN.k Sl.'h.'r,tl other mi1wr dt:mg~s 

and darllk:ninns In rumnt tldinititlns. 

r~·g.tdmiun::. !lfid pro.:,·durc:;. Pka.-;1! nolc 

!lmt li.JffH;tUin};! and minor kdmkal dliln~t·:s 

in the rcgul;!liuns olhtr tl!iln thu.'\C proptlhl!d 

h~'lll:ti!hiHt'rS 111<1)' ~~ pntjWS.;ti ill tht: 

hearing. In ad,!itiom.. th\! Huard may make 

nth'.!r .:h;mge:; ll:'l lll~~-:::mry tn accomplish 

ll!c purpos.; of providing puhlk hcal!h and 

;;al'~l)' in n:~p1m:1c tu p11blk t..'umml'nl:i nnd 

C\'idL'th:e pr.:s\:'nled ut the lll'aring. 

The propMcd ch:mg.l's nwy hL" rl·vh!wl.'d 

dt:ri11g r-:guh1r husinc~s hours. <tl th.: uliiL·~ 

uJ' thc Etwirnumcntal hntli'I.WL'mcnt lloatd 

loctU\.'d in lh~ llarl,Jid R11nnL•Is: BniiJing, 

1190 Sl. Frand:: Uri\ c. R11<1m :--.r .. 2J50 Santa 

Pc. NM. S7505.1n adtlilion,a copy of the 

Nt..IED pn;pn .. ..,.,.>tl amt.'fldmenls is pos!C'd on 

lhe NMED wcb:.ile nl http;//www.nm<?JIV. 

:>.!nte.nm,tls/fnd/f2iquit!Wa:>l~o/. 

Thl! hL'lil"ill!! will be conduch:tl in 

Hn'<~ninnt:e with :w_ l.l NI\JAC 

(HulemaLing Ptt~~.Cdu:-.._~- En\·ironmc:nlnl 

lmpro\\'nlClll Do.1rd), 1he Enviromul."ntal 

!mptowmcn! Act, Sec lien 74·1 -9 NMSt\ 

197~. ond oUn·r rlf!!llk.ubJc pttK'~·dures, 

· l\11 inh:rcst~·u J>crson:\ will be ~ti\'L'n 

fl'USiln:.Jhlt:: QJ)I~lrtunity at the hearing to 

stthlllit rckvanl cvitkncl!, data, views :md 

arg.umcnH. orally or iu writiltg., hl itumJn~:c: 

c:xhihils, :u1d IH cxmnini! witncSS~.·s, t\ny 

person whn '' tsh(:s tn suhmil ;1 nmt· 

h:ehnicul wriuen ;.tatcm..:nt fur the record 

in lk1: ~}foml teslimony mu~t file :mch 

~l:tll'lllCill prior lo llil' clo:."C of the !waring, 

Pur"'u:mllu 20.1, IJU2 NMAC, pcrs.ms 

\\ ishiug lo pl'l:sent l..:dmic;tl tc;;timony nm~l 

Ill;.· with 1hc Ounnl a written notice uf intem 

to do so Oil or o~.:rmc 5:00p.m, on June 20, 

:!014. Tl!c oolice of intent sbnll: 

• illvntify the pl.'r:-.on nr L·ntity fnr 

whom the \V1Ulcs:(c:o) wil! \cstify; 

~ idcnti(v cnch tcchnicnlwilncss 

that th.: J'lt.:t~on intc11ds w pn.:~:cnt 

and slate lh~ quaJili..:alit.!nS or the 

witnt:.~._. indmnn¥ a •k~:eriplion 

or I lis or !1~·r r.:dm:a!i1m nnt! l\11rk 

~ll'k~I'OUil\1; 

~ i:tt·Ju<lc a WilY of !he direct 

cc:.:timony of c:t~h kdmk:tl 

wilncss !n narmthc form; 
221) ~Jew i\lnico Rcgislcr/ Volume XXV, Number 8/ April30, 201~ 

fl'CQI111lWtld,·d llhkliti~·atk•n" to 

1h~.: flrPpn~;.·,! rl.'~ulatnry dt:m~e. 

::.mtl 

~ list :mJ all:l~.:h all \·~hihlt:o 

:lllrklfl<!!~d hl hr.' oH\·1~tl by thou 

fl\'I'Silft a! 1ho: lk•miog. illl.'lu .. ling 

nny prQfHl:\l'll sw~<.·ml·nl or rt--.Jsnns: 

!"or udoptltm oft he ruks. 

NEW 1\IEXICO 

DEI'ARTMENT 

OF FINANG: AND 

ADMINISTRATION 

BOARD OF f'INI\NCE 

NO'I'ICii OF 1!0,\RI) (JF FIN.WCIJ 

IHJLF 

Nolici..'S ofint...-nt EJr lh~ lwating lllll:>l be 

rcct>h nl in th~ Onit.'t' of !he Enviroument•tl 

lmpnwcmenl H0t1rd no lalcr tlwn 5:00p.m. 

011 Jm:::: 20. 2014 und shoulti r\'l'c1'en~:c 

l]lc nnmc orth~ r..:gulation. tJw d;1tc or 

the hc:!rin~, <md dockt.'t 11um~r EJI~ 14· 

O·l(R}, Notict::s orinh:nl to prc~nt technknl 

tcs.timony shnuhl h..: suhrnith.·d to: 

!'am Cn;;t.m.:,fa. Adrninistmtor of llo;m!s 

u<1d Commissions: 

Olftc~ of the Environm,nl;:t! lmprnvemenl 

Board 

llurolJ Runnd~ Ouildlng 

1190 St. Fran;;f,o: Dr.,l{onru N~2150 

Santa Pc, Nlvl X75U2 

r\ny pt'rsnn who wishe;; 10 may olli.:r uon~ 

t~dmk:1l puhHc comment nt tht:: ho:;tring, or 

submit ;t non·l~chnicnf writtl'll slat~llll'l!l 

in l!eu o( oral h::;.timony nt or before the 

hl.':tring. Wriu~.-·n comments fe'!;ardilll:'! !he 

pwposcd n•v!siun" moy l'!e :l!ldr~·:;st:d hi ~Is. 

f',;1tn Cll:<lflil.:dn., Administmtor of Hoard~ 

nud Conunls~ions, at the above adUi'I:S.'-. 

and should rel'cr'l.'llt't ilt}!.:k~t number· EJB 

1·1-01(1!). 

lfyoc are an in1lividu;11 wL!h a dboJh!lity and 

yno rcqdre ns.sisl:mce orm1 au:o.:iliary aid, 

e.g, slpnlang1.wgc inlCil)fCter, !l') purtkipalc 

in uny aspwt ~lflllis protl'.'iil. pi;:;1J.c cmltnci 

Juan-Cnrlus Hor~l'l!O hy JttnC' II. 201 'l. 

The Jll•r:.;.,mne! Savko::: flun.·.au ~:an be 

r~:.ldlt-'tl all h.: New i\lt.·xh:o Ell'.·irontut'nt 

l~p.lrtmcn!, I ! 90 St. fr.mcis Drln~. S.mta 

Fo, NM K7502. (505) ~17-2N·I4. Tl111 or 

l'DY u:<l.-"!':i 1\ln)' tll."','<:~:i 1his number viu dtl' 

N~w tvksko Rt'l;1y Nci\H1rk (Albth]ucrque 

TllD us\,':rs: (505} 275·7333; out~kk of 

;\lhuqucrqul.': l-300·659~ 1779 {voil:..:): 

1"J'Y ustrs: J.SOOw659-S33 I}. Copk•s urthl.!' 

rrupOSI,.'d i'ln'k!Udmcnt~ nJfl bo.: tlV<ti!ahli! in 

altcnmtiv~.: formJO ifrctlUl'SICd hy June 11. 

2014. 

The Hoard may mnkc a ~kd:·don on 

the pmpo.~\'()1\').'.ulutory chnnp:C" a! lh~ 

~:rtndu:;ion of !h¢ Jh.·m·illJ!, or lh!! H1';Jl',J 

may cum-enc :1 mt.~!ing !dkr 1h .. · hcnrin¢ lu 

cou~liler a~·l[tm im the pn~posaL 

The- Stall .. ' lloar.l offin:l!lcl.!' is in the prm:l.':>s 

or n•visin~ one or it:- rult''i: o~Jic;llillll or 

:1 l'orti(m of the St;tte's (im)>.,i Ht.'t:l'ipls T;t\ 

ltl1.'1\"m ... •nt. Copies vi' the \'.~>i:aing rule mnl 

proposed dmng~o:s :m: availnhle broom 

Wi, Jlaraan f-kmorial !ld!ding, Santa F\-, 

NM R750 I nod on th~ llo>~nl of Flna1we 

wchs i 1 e. h!IJ1://mnt!lltslnl~: Jllll.\1 s.-1ltlard 

'ltf_Financ,.'.<tsps, The BoorJ will J..:Of!Sitkr 

adopting thl.': pmpuscC rule n1 iB June 17, 

20 !4 nll"eiing:, whkh take-s pluee nt 9:00 

urn in !ht! Governor's c,,!Jimn Room, Sta!c 

Crpf!;)l huildinJ:l. Plca:>c mail or ddivcr 

\~rill\.'11 comm~:nt.s 1111 !lie pmpo$c.J .:hang .. ~ 

to St~·plmnk Schan.lin Clark~'. JNI !kl!;mn 

Mc-morlnllluil~liu,g, Santi\ Fe, N:"d R1SU I hy 

~·Ia)' 30,201-1. 

NI~W MEXICO Gt\ivm 

COMMISSION 

S'f,\TE CAM!: COM~IISSION I'UilLIC 

~II:E'Tli'iG 

,\Nil lllJLE MAIW<O NO'fiC£ 

On Tbursd:~y,l\IRy 15, 20.4, beginning 

fit 9:00a.m., in the Nation:tl HisjJ:IIIic 

Cultural Center, Salon Honm, locmcd Ill 

17UJ 4-'k Stnwt SW, A!buqutrquc, Ni\t 

87102, the Stille Game Comm!ssimt will 

me..:t in puhlic sc10slon to hc;~r nnd cmt-;itkr 

nt:!hlll as npprupri:1!c on the fnllowing: 

Scli.!Cilun or Dirr:clor aud s~..·crl.'kHJ to th~,; 

:)!,l!C Gmuc Commission. Revocations, 

Rcttu~:s! to ()oolify thr: Ytmlh 1-Jun!i!l¥ Club 

fmm LHs CrttCl'S to Hect•ive nr Submit 

Y11U!h Rl.·c!picnts fut Donatt·ll Lkcn;;t·:;; or 

Pcnnb:, Rcscrv!J1~ Two Ell\ Ucensc'i for 

Non·Prof:! Wi:>I!·Granlin!'l Organilatlt~n. 

Pmhibliions for Hwttll'l:l and Tnking 

Nongml1c Specie!' ~111 Wildlik Man;tgcm~·m 

An:as. Awards of E:.e~ltt'!ICI.', fnillltlion of 

Dct:r Rule D~vc!opm~:nl 19.31.13 Nf\t!AC 

lbr Itt .. • 201S<:Wl9 St•astlns, lniLi<llion of 

Elk Rule De\'dopnwm !9.31.14 NM/\C 

fhr lhc 2015-.:!1!!9 S..:;unn'i, Fis.:;1l Y.:nr 

2016 lnitiatiM of Budgd Dcv.:lopmt:nl. 

Fe.; l~cvlcw for Spc~:lal JJrawings., Shllo!lng 

Spurts J'rtJ~:ram. Tcrk Dcdsi()n Ruling,. nn<.! 

Leas.: of Slate G;~m~ Commb:;ion Property 

loc:l!Cd <H I ON$ Ridwrd<; r\Vl', S:m.ta rc, 

NM. ;\dditionnlly, they will hc..r ;m;! 

t'<>n;;idcr n~.:!inn ;1s <~pprvpri<lli! ;)JI prnrw:w~l 

and liMI amcndnwub to lh(· Ji:dlowiug 

mh:s: PrnptlS~o:t! !•whibitiM of u~inj!, Drl\!1\'~ 

ror lltmting ( 19.3 I, 10 N,\-!AC), Fin:1l 

l'n,pt~!'inl~ !u the l4wdhm ltuh! !I)J 1 .~I 

NMAC fnr the :WI5~~019 s~·asmis, Final 

Prorn,,~:lls lu tlt~ [tJrhary SlW\'I\ Orvx olntl 

P~·rshm lb.::..: l{u!c 19.3f.I2N,\Ii\C'.J'i.1r 

llw 20 I 5~2U 19 s~·a~nu~. MlgJ~llory G:1mc 

Bird lh1k Dc\·dopmcllt ·IV31.fl N~IAC 

for lhe 201·1~21) 15 :'il'.!suns, Torl\v\ Ruk· 

lkwloprtlt-'liii9.JI.J6 N~I,\C fc;thc 

2tll5~20 19 s~·n:mns. Pronglmm Anh:lt;pc 

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NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD 

NOTICE OF RULEMAKING HEARING 

The New Mexico Environmental Improvement Board ("Board") will hold a public hearing on July I I, 2014 at 9:00 

a.m. at the State Capitol Building, Room 307,490 Old Santa Fe Trail, Santa Fe, New Mexico. The purpose of the 

hearing is to consider the matter of No. EIB 14-02(R), proposed revision to the New Mexico State Implementation 

Plan ("SIP") regarding Air Quality Control Regulation Part 12 of20.2 New Mexico Administrative Code (Cement 

Kilns) ("20.2.12 NMAC"). 

The proponent of this regulatory adoption and revision is the New Mexico Environment Department ("NMED"). 

The purpose of the public hearing is to consider and take possible action on a petition from NMED to repeal 20.2.12 

NMAC. The proposed repeal is in response to the U.S. Environmental Protection Agency's ("EPA") February 12, 

2013 amendments to the federal New Source Performance Standard, 40 CFR Part 60, Subpart F- Standards of 

Performance for Portland Cement Plants. If adopted by the Board, the repeal of 20.2.12 NMAC would be submitted 

to EPA for incorporation into New Mexico's SIP. 

The NMED will host an informational open house on the proposed repeal of20.2.12 NMAC at the NMED Air 

Quality Bureau Office, 525 Camino del los Marquez, Suite 1, Santa Fe, New Mexico from 12:00p.m.~3:00p.m. on 

June 4, 2014. To attend the informational open house, please contact Michael Baca at 575~647-7983 or 

michael.bacal@state.nm.us. 

The proposed revised regulation may be reviewed during regular business hours at the NMED Air Quality Bureau 

office, 525 Camino del los Marquez, Suite 1, Santa Fe, New Mexico. Full text ofNMED's proposed revised 

regulations are available on NMED's web site at www.nmenv.state.nm.us, or by contacting Michael Baca at 575-

647-7983 or michael.bacal@state.nm.us. 

The hearing will be conducted in accordance with 20.1.1 NMAC (Rulemaking Procedures- Environmental 

Improvement Board), the Environmentallmprovement Act, NMSA 1978,Section 74~1-9, the Air Quality Control 

Act Section, NMSA 1978,74-2-6, and other applicable procedures. 

All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, data, views 

and arguments, orally or in writing, to introduce exhibits, and to examine witnesses. Persons wishing to present 

technical testimony must file with the Board a written notice of intent to do so. The notice of intent shall: 

(I) identify the person for whom the witness(es) will testify; 

(2) identify each technical witness that the person intends to present and state the qualifications of the witness, 

including a description of their education and work background; 

(3) include a copy of the direct testimony of each technical witness in narrative form; 

(4) list and attach each exhibit anticipated to be offered by that person at the hearing; and 

(5) attach the text of any recommended modifications to the proposed new and revised regulations. 

Notices of intent for the hearing must be received in the Office of the Board not later than 5:00 pm on June 20, 2014 

and should reference the docket number, EIB 14-02(R), and the date of the hearing. Notices of intent to present 

technical testimony should be submitted to: 

Pam Castaneda, Board Administrator 

Environmental Improvement Board 

P.O. Box 5469 

Santa Fe, NM 87502 

Phone: (505) 827-2425, Fax (505) 827-0310 

Any member of the general public may testify at the hearing. No prior notification is required to present nontechnical testimony at the hearing. Any such member may also offer exhibits in connection with his testimony, so 

long as the exhibit is not unduly repetitious of the testimony. 
A member of the general public who wishes to submit a written statement for the record, in lieu of providing oral 

testimony at the hearing, shall file the written statement prior to the hearing, or submit it at the hearing. 

Persons having a disability and needing help in being a part of this hearing process should contact Juan Carlos 

Borrego of the NMED Human Resources Bureau by June 26, 2014 at P.O. Box 5469, 1190 St. Francis Drive, Santa 

Fe, New Mexico, 87502, telephone 505-827-0424 or email juancarlos.borrego@state.nm.us. IDY users please 

access his number via the New Mexico Relay Network at 1-800-659-8331. 

The Board may make a decision on the proposed revised regulations at the conclusion of the hearing, or the Board 

may convene a meeting at a later date to consider action on the proposal. 
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LA JUNTA DE MEJORA DEL MEDIO AMEIENTE DE NUEVO MEXICO 

NOTIFICACION DE REUNION PUBUCA Y AUDIENCIA DE REGLAMENTACI6N 

La Junta de Mejora del Medio Ambiente de Nuevo Mexico ("Junta") celebranl una audiencia publica el II de julio 

de 2014, a las 9:00 a.m., en Ia sal a 307 del Capitolio Estatal, situado en 490 Old Santa Fe Trail en Santa Fe, Nuevo 

Mhico. La finalidad de Ia audiencia es considerar el asunto de EIB 14~02(R), propuesta revisiOn a! Plan de 

lmplementaci6n del Estado de Nuevo Mexico ("SIP") relativa ala Parte 12 de Ia Regulacion de Control de Ia 

Calidad del A ire del C6digo Administrative de Nuevo Mexico 20.2 (Homos de Ccmento) C'20.2.12 NMAC"). 

El proponente de esta adopcl6n y revisi6n reguJadora es el Departamento del Medio Amblente de Nuevo Mexico 

("NMED"). 

La finalidad de Ia audiencia pilbHca es considerar y posiblemente tomar acci6n sobre una petici6n de NMED para 

revocar 20.2.12 NM.AC, La propuesta revocaci6n es en respuesta a las enmiendas del 12 de febrero de 2013 de la 

Agencia de Protecci6n Ambicntal de los EE.UU. ("EPA") a Ia regia federal de Estindares de Rendimiento de 

Fuentes Nuevas, 40 CFR Parte 60, Subparte F- Estandares de Rendimiento para las plantas de cemento portland, 

Tras la adopci6n porIa Junta, la revocaci6n de 20.2.12 NiviAC seria enviada a Ia EPA para su incorporaci6n en el 

SIP de Nuevo Mexico. 

EJ NM:ED patrocinani unajomada infonnativa de puertas abiertas sobre la revocaci6n propuesta de 20.2.12 NMAC 

en la Oficina del Departamento de Calldad del Aire del NMED, 525 Del Camino los Marquez, Suite I, Santa Fe, 

Nuevo Mexico de 12:00p.m.-3:00p.m. el 04 dejunio de 2014. Para asistir a lajornada informativa de puertas 

abiertas, por favor, p6ngase en contacto con Michael Baca en el (575) 64 7-7983 o michaetbacal@state.nm.us. 

La regulaci6n revisada propuesta podni ser examinada en horario de oficina en la Oticina de la Agencia de Calidad 

del Aire del NMED, en 525 Del Camino los Marquez, Suite I, Santa Fe, Nuevo Mexico. El sitio en Ia Web del 

NMED, \1/WW.nmenv.state.nm.us ofrece ei texto completo de Ia revisiOn propuesta; tambien se puede obtener 

contactando Michael Baca, llamando al telefuno (575) 647-7983 o envillndole un corrco electr6nico a 

michael.bacal@state.nm.us, 

La audiencia se reali:zarit de conforrnidad con 20. J .l NMAC (Procedimientos de Regtarnenta.ci6n- La Junta para Ia 

Mejora del Medio Ambiente), la Ley de Mejora del Medio Ambiente, Secci6n 74-1-9 NMSA 1978, Ia Ley de 

Control de Calidad del Aire, Secck\n, 74-2-6 NMSA 1978, y otros procedimientos aplicables. 

Todas las personas intere:sada.s tenddn oportunidad razonable en Ia audiencia de presentar pruebas~ datos, opiniones 

y argumentos importantes. ya sea en forma verbal o por escrito, asi como de presentar anexos e interrogar testigos. 

Las personas que deseen entregar testlmonios tetnicos deben presentar ante In junta una notificaci6n por escrito de 

su intenci6n. La notificaci6n de intenei6n debenl: 

(l) identificar ala persona para quien testificanl(n) el(los) testigo(s); 

(2) identificar a cada uno de los testigos t6cnicos que las personas desean presentar y declarar ~as cualificaciones de 

los misrnos, incluyendo una descripci6n de sus antecedentes de educaci6n y trabajo; 

(3) resumir o incluir una copia del testimonio directo de cada testigo tecnico y decJarar Ia dumci6n prevista del 

testimonio de ese testigo; 

(4) enumerar y describir. o adjuntar, cada uno de los anexos que dicha persona previ! ofrecer en Ia audiencia; y 

(5} adjuntar el texto de cualquier modiflcaci6n recomendada a las regulaciones propuestas nuevas y revis:adas. 

Las notificaciones de intenci6n para Ia audiencia deben ser recibidas en la Oficina de Ia Junta a mas: tarda.r a. !as 5:00 

p.m., el20 de junio de 2014, y hacer referencia al ntlmcro de expediente, E!B 14-02(R), y Ia fecha de Ia audiencia. 

Las notificacJones de lntencl6n para presentar testimonios tecnicos se deben entregar a: 

Pam Castaneda, Administradora de Ia Junta 

Oficina de la Junta de Mejora del Medio Amblente 

Harold Runnels Building 

P.O. Box 5469 

Santa Fe, NM 87502 
Telefono: (505) 827-2425, Fax (505) 827-0310 

Cualquier miembro del pUblico en general puede testificar en la audiencia. Nose requiere notificaci6n previa para 

presentar testimonies no tecnicos en Ia audiencia. Los miembros del pUblico tam bien pueden ofrecer anexos en 

relaci6n con su testimonio, en tanto no sean repeticiones excesivas de su testimonio. 

Los miembros del pUblico en general que deseen presentar una declaraci6n por escrito para el registro, en vez de 

ofrecer testimonio verbal en Ia audiencia, presentanin la declaraci6n por escrito antes de Ia audiencia, o Ia 

presentarB.n en Ia misma. 

Las personas con discapacidad y que necesiten ayuda para ser parte de este proceso de Ia audiencia debenin 

contactar a Juan Carlos Borrego de la oficina de recurso humanos NMED por 26 dejunio, 2014, P.O. Box 5469, 

1190 St. Francis Drive, Santa Fe, Nuevo Mtxico, 87502, telefono 505-827-0424 o correo electr6nico 

juancarlos.borrego@state.nm.us. Los usuaries de TDY de ben acceder a su nUmero a traves de Ia Red de Difusi6n de 

Nuevo Mexico, al 1-800-659-8331. 

La junta puede tomar Ia decisiOn sobre las regulaciones propuestas revisadas a Ia conclusiOn de Ia audiencia, o bien 

acordar una reuni6n para una fecha posterior a fin de considerar las acciones sobre Ia propuesta. 

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Environmental Protection Division-Air Quality Burea 

FACT SHEET 

PROPOSED REPEAL OF 20.2.12 NMAC-CEMENT KILNS 

OVERVIEW OF ACTION 

• Cement manufacturing is an energy-intensive process that grinds and heats a mixture of raw materials 

such as limestone, clay, sand and iron ore in a rotary kiln. The resulting product, called clinker, is cooled, 

ground and then mixed with a small amount of gypsum to produce cement. Mixing cement with water, 

sand, gravel or crushed stone forms a slurry that hardens into concrete. Mortar, stucco and most grout use 

cement as a basic ingredient, as well. 

• On July 11,2014, the New Mexico Environment Department (NMED) will propose repealing the rule that 

limits particulate matter (PM) emissions from cement kilns (20.2.12 NMAC or Part 12) to the 

Environmental Improvement Board (EIB). If approved by the board, the rule would no longer be part of 

the New Mexico Administrative Code (NMAC) or the NM State Implementation Plan (SIP). 

• Part 12 was adopted at the first hearing held for the NM SIP in I970. Since that time, the rule has not 

changed and the level and format of the PM emission limits have become outdated and unnecessary. 

Additionally, there are no cement kilns under NMED's jurisdiction (excludes Bernalillo County and 

Tribal Lands). 

• The U.S. Environmental Protection Agency (EPA) amended the New Source Performance Standards 

(NSPS) for new, modified or reconstructed cement kilns in February 2013. In addition to setting PM 

emission limits for the cement kiln, the NSPS also limits emissions from the grinding, cooling and 

materials-handling steps in the manufacturing process. 

• The NSPS PM emission limit for kilns is more stringent than that contained in Part I2. If a cement kiln 

were to be constructed in New Mexico, NMED would apply the more stringent NSPS requirements during 

the permitting process. 

HOW TO PARTICIPATE 

• The proposed rule repeal, public notice and request for hearing can be viewed at the Air Quality Bureau's 

website at www.nmenv.state.nm.us/aqb/prop regs. Questions may be directed to Michael Baca by 

telephone at 575-524-6300 or email at michael.baca1@state.nm.us. 

• All interested persons will be given reasonable opportunity at the hearing to submit relevant evidence, 

data, views and arguments, orally or in writing, to introduce exhibits and to examine witnesses. 

• Persons wishing to present technical testimony must file a written notice of intent with the EIB. Please 

see the public notice or 20.1.1 NMAC for the required information to include in a notice of intent. 

Notices of intent must be received by the Office of the Board no later than 5:00pm on June 20, 2014. 

• Persons having a disability and needing help in being a part of this hearing process should contact Juan 

Carlos Borrego by June 26, 2014 by telephone 505-827-0424 or email at juancarlos.borrego@state.nm.us. 

TDY users please access his number via the New Mexico Relay Network at 1-800-659-8331. 

New Mextco Envrronment Department 1190 St. Francts Dnve, Santa Fe, NM 87505 

800-219-6157 www .nmenv.state.nm.us 
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SUSANA MARTINEZ 

Governor 

JOHN A. SANCHEZ 

Lieutenant Governor 

April 4, 2014 

NEW MEXICO 

ENVIRONMENT DEPARTMENT 

Office of General Counsel 

Harold Runnels Building 

1190 Saint Frnncis Drive (87505) 

PO Box 5469, Santa Fe, NM 87502-5469 

Phone (505) 827-2990 Fax (505) 827-1628 

www.runeuv.state.nm.us 

Jeffrey M. Kendall, General Counsel 

Small Business Regulatory Advisory Commission 

clo Ms. Dora Dominguez 

New Mexico Economic Development Department 

1 I 00 St. Francis Drive 

Santa Fe, New Mexico 87501 

Re: Proposed Repeal of 20.2.12 NMAC- Cement Kilns 

Dear Ms. Dominguez, 

RYAN FLYNN 

Cabinet Secretary 

BUTCH TONGA Til 

Deputy Secretary 

The New Mexico Environment Department ("Department'~ hereby provides notice to the Smail Business 

Regulatory Advisory Commission, pursuant to the Small Business Regulatory Relief Act ("Act"), NMSA 

1978, §§ 1 4-4A-I et seq. that the Environmental Protection Division, Air Quality Bureau ("Bureau") has 

submitted a petition to the Environmental Improvement Board ("EIB") for repeal of20.2.12 NMAC. 

On February 12, 2013, the U.S. Environmental Protection Agency (EPA) amended the federal New 

Source Performance Standard (NSPS) regulations, 40 CFR Part 60, Subpart F (Part 60, Subpart F). The 

amendments to Part 60, Subpart F implement Clean Air Act provisions establishing emission standards 

for cement kilns that cause, or contribute significantly to, air pollution which may endanger public health 

or welfare. 

EPA's amendments to Part 60, Subpart F require cement plants to limit emissions of nitrogen oxides 

(NOx), sulfur dioxide (S02) and particulate matter (PM), whereas Part 12 of20.2 NMAC-Cement Kilns 

(Part 12) only sets an emission limit standard for PM, leaving other pollutants subject to tlle NSPS. NOx 

contributes to the formation of ozone and particle pollution; similarly, SO, contributes to particle 

pollution. Currently, the major differences between Part 12's PM emission limits and the NSPS are the 

fonnat and level of allowable emissions. The amended NSPS PM emission limit uses a normalized 

parameter of lblton of clinker based on the output of a cement plant, but Part 12 uses a form based on PM 

concentration contained in tl1e gas leaving the cement kiln stack (mglm1). TI1is difference may cause 

undue confusion for regulated entities during the permitting process. 

Finally, there currently are no cement kilns under New Mexico's jurisdiction. Due to this and the outdated 

emission limits now contained in Part 12, the New Mexico Environment Department believes repeal of 

Part 12 would benefrt the state by removing potential confusion regarding the emission limit and provide 

a mechanism to protect public health through the federal regulations should a cement kiln be consttucted 

within New Mexico. 

NMED EXHIBIT 10 
The Environmental Improvement Board ("EJB") will hold a hearing on the proposed regulatory 

amendments (Docket No. EIB !4-02(R)) currently scheduled for Friday, July II, 2014. For details 

regarding the time and location of the hearing please check the EIB website at: 

http:/fwww.nmenv.state.nm.us!eibl. 

Pursuant to Section 14-4A-4 of the Act, the Department does not anticipate that the proposed regulatory 

amendments will have any adverse effect on small businesses. If you require further information about 

these proposed regulatory amendments, please call me at (505) 827-0917. 

Sincerely, 

l~::)J/~- ,_/ 

Christopher N. Atencio, Esq. 

Assistant General Counsel 

New Mexico Environment Department 

cc: Jeffrey Kendall, General Counsel 

Michael Vonderheide, NMED EPD Director 

Richard Goodyear, AQB Chief 

Rita Bates, A QB 
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From: 

To: 

Cc: 

Subject: 

Date: 

Attachments: 

Atendo, Christopher, NMENV 

pominquez Dora EDD 

Kendall Jeff NMENY 

SBRAC NMED Proposed Rule Olanges 

Thursdi!ly, May OS, 2014 2:36:41 PM 

SBRAC PM2 5 and 20 2 12 NAMC Ouestionnalrg dop; 

Good afternoon, Ms. Dominguez. 

I have spoken with staff and prepared the attached overviews based on your questions and the 

template you provided to Mr. Kendall. I was having a little difficulty with the formatting in the 

template you provided, but I took those questions and provided answers in the attached document. 

Please let me know if you have any questions or require any additional information. 

Thank you, 

Chris 

Christopher N. Atencio 

Assistant General Counsel 

New Mexico Environment Department 

1190 St. Francis Drive, Suite N-4050 

Santa Fe, New Mexico 87505 

Telephone (505) 827-0917 

Email christopher atencio@state nm us 

THIS MESSAGE IS INTENDED ONLY FOR THE USE OFTHE INDIVIDUAL OR ENTITY TO WHICH IT IS 

ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT 

FROM PUBLIC DISCLOSURE UNDER APPLICABLE LAW. 

If the recipient of this message is not the intended recipient, or an employee or agent of the 

intended recipient, you are hereby notified that any dissemination, distribution or copying of this 

message is strictly prohibited. If this message has been received in error, please notify us 

immediately by telephone and destroy the message you received. 
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Repeal of 20.2.12 NMAC 

I. Proposed Rule Title: Repeal of20.2.12 NMAC- Cement Kilns 

2. Initiating Agency or Rule Sponsor: New Mexico Environment Department ("NMED")- Air 

Quality Bureau 

3. What is the benefit of the rule as proposed: The proposed regulatory change repeals 20.2.12 

NMAC, which establishes particulate matter emission standards for cement kilns. On February 

12, 2013, EPA amended 40 CFR Part 60, Subpart F that establishes emission standards for 

cement kilns. These regulations are more protective of air quality than 20.2.12 NMAC because 

they set emissions limit for nitrogen oxides as well as sulfur dioxide, not just particulate matter. 

In addition, the EPA regulations normalize the particulate matter emissions parameter to lb./ton 

of clinker based on the output of a plant. 20.2.12 NMAC uses a mg/m3 parameter. This change 

will reduce confusion. 

4. What is the proposed rule trying to accomplish: There are currently no cement kilns within 

NMED'sjurisdiction, though there is one in Bernalillo County. Repeal of20.2.12 NMAC will 

remove a less stringent and unused regulation from the New Mexico Administrative Code while 

ensuring that more stringent protections remain in place through federal regulations. 

5. What is the purpose, benefit, and intent of tbe proposed rule change, revision, amendment, 

or withdrawal: See Answers to 3 and 4. 

6. What would be the process of implementing the propose change: NMED has submitted a rule 

change petition to the Environmental Improvement Board ("EIB"). The EIB scheduled a hearing 

to consider the petition for July II, 2014. Notice has been published in the New Mexico Register 

as well the Albuquerque Journal. Those wishing to present technical testimony before the EIB at 

the hearing must submit a notice of intent to present technical testimony no later than June 20, 

2014. The hearing procedures can be found in 20.1.1 NMAC. 

7. Other Notes: NMED does not anticipate that the proposed regulatory amendment will have any 

adverse effect on small business. Currently, there are no cement kilns within NMED's 

jurisdiction, and thus, no businesses will be affected if this change is approved by the EIB. 
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STATEOFNEWMEXICO 

BEFORE THE ENVIRONMENTAL IMPROVEMENT BOARD 

IN THE MATTER OF PROPOSED REVISIONS TO: 

20.2.12 NMAC- Cement Kilns 

No. EIB 14-02 (R) 

ORDERANDSTATEMENTOFREASONS 

FOR REGULATORY CHANGES 

This matter comes before the New Mexico Environmental Improvement Board ("Board"} 

upon a petition filed by the New Mexico Environment Department ("NMED" or "Department"}, 

proposing repeal of20.2.12 NMAC. The Board heard testimony from the Department and 

admitted exhibits into the record. On July 11, 2014, the Board deliberated and voted to adopt the 

proposed amendments for the reasons that follow: 

STATEMENT OF REASONS 

1. The federal Clean Air Act ("CAA''} requires the U.S. Environmental Protection Agency 

("EPA"} to promulgate standards of performance for new stationary sources. CAA § Ill 

( 42 U.S.C. § 7411 ). Regulations promulgated under this authority are known as New 

Source Performance Standards ("NSPS") and are contained in 40 C.F.R. Part 60. 

2. CAA § lll(c) provides for delegation to states of the authority to implement and enforce 

the standard promulgated under Section 11 L 42 U.S.C. § 7411(c}. 

3. CAA § 112 requires the EPA to promulgate regulstions governing hazardous air 

pollutants. 42 U.S.C. § 7412. Regulations promulgated under this section are known as 

National Emission Standards for Hazardous Air Pollutants ("NESHAP"), contained in 40 

C.F.R. Part 61; and Maximum Achievable Control Technology "(MACT"} standards for 

hazardous air pollutants, contained in 40 C.F.R. Part 63. 

NMED Exh. II - Proposed Statement of Reasons and Order 

Page I of4 

NMED EXHIBIT 11 
4. New Mexico incorporates the federal standards contained in 40 C.F.R Parts 60 into the 

New Mexico Administrative Code (''NMAC") at 20.2.77. 

5. The New Mexico Environment Department ("NMED") periodically petitions the Board 

to update the dates of incorporation of the federal standards in 20.2. 77, in order to 

incorporate recently promulgated revisions to the federal standards. See Exhibit NMED 

3, Test. of Michael Baca, at 2. 

6. Pursuant to 20.1.1.300.A NMAC, any person may petition the Board for repeal of 

regulations within the jurisdiction of the Board. 

7. On February 20,2104, NMED filed a petition with the Board for a public hearing in this 

matter. See petition in Record Proper. 

8. On March 21,2014, at a meeting conducted in compliance with the Open Meetings Act 

and other applicable requirements, the Board granted the Department's request for a 

hearing. 

9. On April30, 2014, Notice of Hearing was published in the New Mexico Register. See 

NMED Exhibit 9. 

I 0. On April 30, 2014, Notice of Hearing was published in the Albuquerque Journal (in 

English and Spanish). See NMED Exhibit 9. 

II. NMED filed a Notice oflntent to Present Technical Testimony ("NOI") on June II, 

2014, in accordance with 20.1.1.302 NMAC. 

12. A hearing was held in this matter on July II, 2014, in Santa Fe, New Mexico. 

13. The Board has the authority to repeal this regulation pursuant to NMSA 1978, § 74-2-

5.B. 

NMED Exh. II - Proposed Statement of Reasons and Order 

Page2of4 

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14. In considering the proposed SIP revisions, the Board is required by the Air Quality 

Control Act, NMSA 1978, § 74-2-5.E to give the weight it deems appropriate to all facts 

and circumstances, including but not limited to (1) character and degree of injury to or 

interference with health, welfare, visibility and property; (2) the public interest, including 

the social and economic value of the sources and subjects of air contaminants; and (3) 

technical practicability and economic reasonableness of reducing or eliminating air 

contaminants from the sources involved and previous experience with equipment and 

methods available to control the air contaminants involved. 

15. The federal NSPS are established by the EPA based on the best system of emission 

reductions which have been adequately demonstrated, taking into account the costs of 

achieving such reductions and any non-air quality health and environmental impact and 

energy requirements. 42 U.S. C. § 741l(a)(l). 

16. The federal MACT are established by the EPA for categories and subcategories of 

sources of emissions of hazardous air pollutants, based on the maximum degree of 

reduction of emissions achievable, taking into consideration the cost of achieving the 

reductions, any nonair quality health and environmental impacts and energy 

requirements. 42 U.S.C. § 7412(d)(2). 

17. EPA's determination ofNSPS and MACT standards therefore considers the character and 

degree of injury to or interference with health, and welfare; the public interest, including 

the social and economic value of the sources and subjects of air contaminants; and the 

technical practicability and economic reasonableness of reducing or eliminating air 

contaminants from the sources involved. 

NMED Exh. II- Proposed Statement of Reasons and Order 

Page 3 of4 
18. Because the NSPS and MACT have been incorporated by reference in 20.2.77 NMAC 

and 20.2.82 NMAC, respectfully, this repeal will not result in any increase in economic 

hardship for sources or any increase in air contaminant emissions, but will increase the 

efficiency of implementation of the regulations. See NMED Exhibit 3, Test. Michael 

Baca, at 3. This repeal will remove potentially confusing requirements for cement kilns 

and provide regulatory certainty while retaining the public health protections afforded 

under NSPS should a cement kiln be constructed within the Department's jurisdiction. 

See !d. This serves the public interest. 

19. The proposed repeal therefore satisfies the statutory requirements of the Air Quality 

Control Act, NMSA 1978, § 74-2-S.E. 

20. The notice and hearing requirements of NMSA 1978 Section 74-2-6 and 20.1.1 NMAC 

were satisfied in this rulemaking process. 

21. 20.2.12 NMAC is hereby repealed for any or all of the reasons stated above. 

ORDER 

By ____ vote of a quorum of the Board members, the proposed regulatory 

revisions were approved by the Board on July II, 2014. Notice of the repeal of20.2.12 NMAC 

shall be filed with the New Mexico State Records Center, and shall be submitted as expeditiously 

as possible by the Department to the EPA for approval of delegation authority. 

Dated:-----------

On Behalf of the Board 

NMED Exh. II - Proposed Statement of Reasons and Order 

Page 4 of4 
1 

2 

STATE OF NEW MEXICO 

ENVIRONMENTAL IMPROVEMENT BOARD 

3 No. EIB 14-02(R) 

4 IN THE MATTER OF PROPOSED REVISIONS TO: 

20.2.12 NMAC - CEMENT KILNS 

5 

6 

7 

8 

9 

10 

11 

12 

13 TRANSCRIPT OF PROCEEDINGS 

14 

15 BE IT REMEMBERED that on the 11th day of July, 

16 2014, the above-entitled matter came on for hearing and 

17 deliberations before the New Mexico Environmental 

18 Improvement Board, taken at the State Capitol Building, 

19 Room 307, Santa Fe, New Mexico, at the hour of 10:01 

20 a.m. 

21 

22 

23 

24 

25 

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1 
1 A P P E A R A N C E S 

2 For the Environmental Improvement Board: 

3 

4 

5 

6 

DEBORAH PEACOCK 

GREGORY H. FULFER 

JAMES R. CASCIANO 

JOHN MICHAEL VOLKERDING 

ELIZABETH RYAN 

MATTHEW HOLT 

JOSEPH M. DWORAK 

7 Assistant Attorney General 

Civil Division 

8 Office of the Attorney General 

Post Office Drawer 1508 

9 Santa Fe, New Mexico 87504-1508 

(505) 827-6986 

10 jdworak@nmag.gov 

11 For the New Mexico Environment Department: 

12 CHRISTOPHER N. ATENCIO 

Assistant General Counsel 

13 Office of General Counsel 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

New Mexico Environment Department 

1190 St. Francis Drive 

Suite N-4050 

Santa Fe, New Mexico 87505 

(505) 827-0917 

christopher.atencio@state.nm.us 

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2 
1 INDEX 

2 PAGE 

3 WITNESSES: 

4 MICHAEL BACA and RITA BATES 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Direct Examination of Michael Baca 6 

by Mr. Atencio 

Examination by the Board 13 

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3 
1 EXHIBITS 

2 ADMITTED 

3 NMED: 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Exhibit 1. Resume of Michael Baca 

Exhibit 2. Resume of Rita Bates 

Exhibit 3. Written Testimony of Michael 

Baca 

Exhibit 4. Proposed revised amendments to 

20.2.12 NMAC 

Exhibit 5. Federal Register Volume 78, 

Number 29, February 12, 2013, 40 CFR 

Parts 60 and 63 

Exhibit 6. NRDC v. EPA, DC Cir., 

No. 10-1371, 4/18/14 

Exhibit 7. 20.2.12 NMAC emission limit 

conversion (stringency calculation) 

Exhibit 8 . NMED Memorandum, June 10, 2013 

Exhibit 9 . Affidavits of publication 

Exhibit 10. NMED letter, April 14, 2013 

Exhibit 11. Order and Statement of 

Reasons for Regulatory Changes 

KATHY TOWNSEND COURT REPORTERS 

13 

13 

13 

13 

13 

13 

13 

13 

13 

13 

13 

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4 
1 MS. PEACOCK: Okay. We'll move on to EIB 

2 14-02, and our Hearing Officer again is Member Ryan. 

3 

4 

5 

6 

Thank you. 

I'll hand it over. 

MS. RYAN: All right. 

Good morning again. 

7 Again, I'm designated by the Board as Hearing 

8 Officer for this hearing which is being held to consider 

9 amendments to 20.2.12 NMAC regarding cement kilns. This 

10 is docketed as EIB Number 14-02. 

11 I'd like to refer to my previous statements 

12 regarding our rulemaking procedures and how this hearing 

13 will be conducted as I stated in Hearing 14-01. 

14 Mr. Atencio, are there any preliminary matters 

15 to address before we begin? 

16 MR. ATENCIO: No, Madam Hearing Officer, none 

17 at this time. 

18 MS. RYAN: Okay. 

19 Then I'll ask you to again introduce your 

20 witnesses. 

21 MR. ATENCIO: Thank you. 

22 Madam Hearing Officer, members of the Board, 

23 with me today is Michael Baca of the Department's Air 

24 Quality Bureau and Ms. Rita Bates. 

25 Mr. Baca will testify this morning regarding 

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6 

1 the Department's proposed repeal of Part 12, 20.2.12, 

2 cement kilns. And Ms. Bates is available to provide 

3 testimony on policy matters for the Bureau or any other 

4 questions that may arise. 

5 Excuse me. 

6 As I stated in the previous hearing, the 

7 Department submitted along with its notice of intent to 

8 present technical testimony the written testimony of 

9 Mr. Baca in this hearing as well as supporting exhibits. 

10 Included in that is the Department's small business 

11 regulatory relief notification. 

12 And to begin, I'd call Mr. Baca and begin his 

13 testimony. 

14 MICHAEL BACA and RITA BATES 

15 having been first duly sworn or affirmed, was 

16 examined and testified as follows: 

17 DIRECT EXAMINATION 

18 BY MR. ATENCIO: 

19 Q. Please state your name. 

20 A. Michael Baca. 

21 Q. Where are you currently employed? 

22 A. With New Mexico Environment Department, Air 

23 Quality Bureau. 

24 Q. What is your current title? 

25 A. Environmental analyst advanced. 

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1 Q. How long have you held this position with the 

2 Bureau? 

3 A. For six years. 

4 Q. Mr. Baca, can you please describe your duties 

5 with the Bureau. 

6 A. I am the Department's air quality border 

7 liaison to stakeholders as well as local, state and 

8 federal governments and agencies in New Mexico, Texas 

9 and Mexico. 

10 I also prepare air quality rules and plans for 

11 New Mexico to present before the Environmental 

12 Improvement Board. 

13 And lastly, I prepare technical support 

14 documents to submit to the Environmental Protection 

15 Agency for air quality pollution episodes on days 

16 impacted by blowing dust and wildfire smoke. 

17 Q. Would you briefly describe your educational 

18 background. 

19 A. I have a bachelor's degree in chemistry from 

20 Carleton College in Northfield, Minnesota. 

21 Q. Mr. Baca, is a copy of your resume included in 

22 the Department's notice of intent to present technical 

23 testimony? 

24 A. Yes, it is. It is attached as Exhibit 1. 

25 Q. Did you develop proposed -- the proposed 

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1 regulatory repeal that is the subject of this hearing? 

2 A. Yes. It is included as Exhibit 4. 

3 Q. Did you provide prefiled written testimony for 

4 this hearing? 

5 A. Yes. It is included as Exhibit 3. 

6 Q. Do you adopt that testimony under oath today? 

7 A. Yes, I do. 

8 Q. Mr. Baca, would you please explain the 

9 proposed repeal of Part 12. 

10 A. Repeal of Part 12 will remove the particulate 

11 matter emission limit for cement kilns from the New 

12 Mexico Administrative Code. 

13 Part 12 was adopted by the state after the 

14 first hearing for the New Mexico State Implementation 

15 Plan as Air Quality Control Regulation 502, effective in 

16 February of 1970. Since this time, no substantive 

17 changes have been made to the rule. 

18 The federal Environmental Protection Agency 

19 sets national air emission standards for source 

20 categories which cause or contribute significantly to 

21 air pollution. Collectively these standards are known 

22 as New Source Performance Standards, or NSPS, and 

23 National Emission Standards for Hazardous Air 

24 Pollutants, or NESHAP. 

25 The NSPS for cement kilns is codified at 40 

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1 CFR Part 60, Subpart F, which was adopted by reference 

2 in 20.2.77 NMAC, New Source Performance Standards. 

3 In September of 201C, EPA promulgated the NSPS 

4 and NESHAP for cement manufacturing plants concurrently. 

5 Following the promillgation of the standards, EPA 

6 received petitions to reconsider aspecrs of those 

7 amendments from industry groups and business. EPA 

8 granted reconsideration of various issues and denied the 

9 petitions to reconsider on remaining issues. 

lC The denial of reconsideration was appealed to 

11 the US Court of Appeals for the District of Columbia. 

12 The DC Circuit opinion upheld the standards but found 

13 that EPA arbitrarily failed to grant reconsideration on 

14 the emission limit calculation and remanded the rule to 

15 EPA. 

16 EPA recalculated emission limits in the NESHAP 

17 for cement kilns, and on February 12th, 2013, EPA 

18 promulgated the final amendments to the NESHAP and 

19 conforming amendments to the NSPS. 

20 Several environmental organizations petitioned 

21 the DC Circuit to review, among other things, the PM 

22 emission limits in the standards. On April 18th, 2014, 

23 the DC Circuit upheld the emissions-related provisions 

24 of the rule. 

25 Q. Mr. Baca, why is this repeal needed? 

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10 

1 A. Recognizing the importance of permitting to 

2 environmental protection and conducting business in the 

3 State of New Mexico, NMED ~ndertook a review of the Air 

4 Quality's permitting and -- permitting process and 

5 associated rules. Pursuant to the findings of this 

6 review, the Department recommended repeal of Part 12. 

7 The federal emissions standards include a more 

8 stringent emission limit for particulate matter than 

9 contained in Part 12. The more stringent NSPS 

10 effectively renders Part 12 obsolete and unnecessary. 

11 Repeal of Part 12 will benefit the state by 

12 removing potential confusion and ambiguity in the 

13 permitting process by providing greater regulatory 

14 certainty to manufacturing plants, while retaining the 

15 public health protections afforded under the NSPS should 

16 a cement kiln be constructed under the Department's 

17 jurisdiction. 

18 Q. Mr. ~aca, who will be affected by the proposed 

19 repeal? 

20 A. The Department does not foresee that the 

2: proposed repeal of Part 12 will have an adverse impact 

22 on the citizens or businesses of New Mexico. Currently 

23 there are no cement manufacturing plants under the 

24 jurisdiction of the Department. 

25 But if the proposed repeal were adopted, 

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1 future cement kilns within the Department's jurisdiction 

2 would be subject to the provisions of 40 CFR Part 60, 

3 Subpart F. 

4 Q. Does the proposed repeal satisfy New Mexico 

5 State statute 74-2-S.E? 

6 A. Yes. Repealing Part 12 and using the already 

7 incorporated 40 CFR Part 60, Subpart F will be 

8 protective of public health, welfare, visibil~ty and 

9 property by providing more stringent requirements for 

10 cement kilns. 

11 By repealing Part 12, future applicants will 

12 be assured less confusion in the permitting process. 

13 This will result in greater regulatory certainty to 

14 manufacturing plants. NMED believes that repeal of Part 

15 12 is in the public interest, including the social and 

16 economic value of the source and subjects of air 

17 contaminants. 

18 In light of the Court of Appeals decision 

19 upholding the federal standards for cement kilns in 

20 order to bring regulation of cement kilns in line with 

21 federal standards and because the NSPS has been 

22 incorporated by reference in 20.2.77 NMAC, NMED is 

23 confident the proposed repeal protects the technical 

24 practicability and economic reasonableness of reducing 

25 or eliminating air contaminants from sources involved in 

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1 previous experience using equipment and methods 

2 available to control the air contaminants involved. 

3 Q. Did the Department provide public notice of 

4 this proposal? 

5 A. Yes, we did. The EIB's rulemaking regulations 

6 require that notice be published in a newspaper of 

7 general circulation and the New Mexico Register. The 

8 notice was published in English and Spanish in the 

9 Albuquerque Journal and in the New Mexico Register on 

10 April 30th, 2014. The notices are contained in 

11 Exhibit 9. 

12 In addition, the Air Quality Bureau held an 

13 open house at our Santa Fe office on June 4th, 2014. We 

14 did not receive any comments on the proposed repeal, and 

15 we -- and nobody attended the open house. 

16 Q. Does the Department recommend the repeal of 

17 Part 12? 

18 A. Yes. The Department respectfully requests 

19 that the Board repeal Part 12 in order to improve 

20 regulatory efficiency while maintaining the protections 

21 for public health and welfare. 

22 Q. Thank you, Mr. Baca. 

23 Madam Hearing Officer, I have no more 

24 questions for Mr. Baca. 

25 I'd move for the admission of Exhibits 1 

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1 through 11. 

2 

3 

4 

5 

MS. RYAN: So moved and admitted. 

(Exhibits NMED 1 through 11 admitted into 

evidence.) 

MS. RYAN: Okay. Does the Board have any 

6 questions? 

7 EXAMINATION 

8 BY THE BOARD: 

9 

10 

MS. PEACOCK: I do. 

Going to your proposed order and statement of 

11 reasons, which is Exhibit 11, page 3. 

12 Paragraph 14, you said, "In considering the 

13 proposed SIP revisions." 

14 

15 

16 

Should that be "repeal" instead of "SIP 

revisions" or which wording? 

MS. BATES: I would say it would be revisions 

17 because it is a revision to the state's State 

18 Implementation Plan. We're not repealing the entire 

13 

19 SIP, which is -- includes a lot of regulations and plans 

20 that the Board has approved. So I would recommend that 

21 it's a revision to our SIP and not the repeal of a SIP. 

22 MS. PEACOCK: Okay. 

23 On that same page, in paragraph 15, when I 

24 read 42 USC 7411 (a) (1), the language is that the 

25 administrator of the EPA has determined that these have 

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1 been adequately demonstrated, but you chose not to add 

2 language about the administrator. 

3 And what is the reason for that? 

4 And I have 42 USC here if you need to look at 

5 that. 

6 MR. ATENCIO: I'll see it, if I might. 

7 MS. PEACOCK: I'll give you the next one, too. 

8 That goes to the next paragraph. 

9 MR. ATENCIO: Okay. Thank you. 

10 MS. PEACOCK: So what I'm getting at is right 

11 now your proposed statement of reasons says "based on 

12 the best system of emission reductions which have been 

13 adequately demonstrated," but when I read 42 USC, a more 

14 appropriate sentence would be "which the administrator 

15 of the EPA has determined has been adequately 

16 demonstrated. • 

17 And you specifically used all of the wording 

18 in that except for the language about the administrator. 

19 MR. ATENCIO: That was an oversight on my 

20 part. I apologize. And we have no problem with adding 

21 that language. 

22 MS. PEACOCK: That language? Okay. 

23 And then likewise on paragraph 16 -- I gave 

24 you the page from 42 USC 7412 -- the administrator 

25 language is also missing from that proposed paragraph. 

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1 MS. BATES: No problem. 

2 MR. ATENCIO: Likewise. 

3 MS. PEACOCK: Okay. 

4 On page 4 of the proposed statement of 

5 reasons, paragraph 18, towards -- it's the fourth line, 

6 and it says "See NMED Exhibit 3," and could you show me 

7 on -- in that exhibit where that language is 

8 demonstrated? 

9 MR. BACA: I believe that would be in 

10 Section III on page 12 -- of Proposed Repeal of Part 12. 

11 MS. BATES: Page 3 of Exhibit 3, Section III. 

12 I believe, Madam Chair, that it's implied in 

13 the last paragraph in Section III, "by removing 

14 potential confusion and ambiguity in the permitting 

15 process,• would increase the efficiency of 

16 implementation of the regulation. So I believe it is 

17 implied although it is not explicitly stated. 

18 MS. PEACOCK: Okay. I'm lost. 

19 Where is that again? 

20 MS. BATES: On page 3 of Exhibit 3, under the 

21 Section III, the final paragraph. 

22 MS. PEACOCK: Oh, okay. 

23 So nowhere does it say does not result in 

24 economic hardship. 

25 MR. BACA: Not specifically. 

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1 MS. PEACOCK: Okay. 

2 MS. BATES: I would state in our testimony now 

3 that we do not believe that this would result in 

4 economic hardship and that, since these sources are 

5 already required to meet the EPA requirements under the 

6 NSPS, what this amend -- what this repeal does is make 

7 it less confusing to sources about what they have to do 

8 and make them subject to two different requirements. 

9 So I do -- I am stating now that this will not 

10 result in economic hardship to sources. 

11 MS. PEACOCK: And would you further state that 

12 it will not result in any increase in air contaminant 

13 emissions but will increase the efficiency of 

14 implementation of the regulations? 

15 

16 

17 

18 questions. 

19 

20 the Board? 

21 

MS. BATES: Yes. I totally state that. 

MR. HOLT: Not to put words in your mouth. 

MS. PEACOCK: I don't have any other 

MS. RYAN: Are there any more questions from 

Okay. Is there anyone here today in the 

22 audience that have any questions? 

23 Seeing no one raise their hands, do you have 

24 any closing remarks? 

25 MR. BACA: No. 

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1 MR. ATENCIO: No. 

2 MS. RYAN: Okay. 

3 Is there any reason to leave the record open 

4 in this matter? 

5 Okay. The record is closed. 

6 And I move this back to the Chairman. 

7 MS. PEACOCK: Okay. We'll have deliberations 

8 now, and we can refer to Exhibit 11. 

9 First I'll ask the question, is there a motion 

10 to adopt the repeal and SIP revisions as proposed by the 

11 Department? 

12 MR. HOLT: So moved. 

13 MS. PEACOCK: Is there a second? 

14 MS. RYAN: Second. 

15 MS. PEACOCK: It has been moved and seconded. 

16 Any discussion? 

17 MS. RYAN: No. I have some 

18 MS. PEACOCK: That's after. 

19 MS. RYAN: That's after. 

20 MS. PEACOCK: Okay. All in favor? 

21 (Simultaneous responses.) 

22 MS. PEACOCK: Any opposed? 

23 Okay. It's unanimous. 

24 So now we can move on to the proposed Order 

25 and Statement of Reasons for Regulatory Changes. 

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1 On page 1, does anyone have any suggested 

2 changes? 

3 And thank you again for providing this draft 

4 statement of reasons for our review. 

5 MR. ATENCIO: Welcome. 

6 MS. PEACOCK: Page 2, any suggested changes? 

7 Okay. Page 3, on paragraphs 15 and 16, I 

8 alluded to th~s during the hearing, that on paragraph 

9 15, second line, I'd like it to read "reductions which 

10 the administrator of the EPA has determined has been 

11 adequately demonstrated,." 

12 On paragraph 16, line 3, I'd like to recommend 

13 the language read "reduction of such emissions, where 

14 achievable, that the administrator of the EPA has 

15 determined, taking into consideration the cost of 

16 achieving the." 

17 Any other suggestions on page 3? 

18 MR. HOLT: Paragraph 17, I think it's our 

19 obligation to consider the character and degree of 

20 injury, et cetera, and here we seem to be deferring to a 

21 determination already made by the EPA. 

22 I would rewrite that then to strike EPA's 

23 determination, replace that with the word "the." So it 

24 would read "The NSPS and MACT standards, established by 

25 the EPA, therefore considers the character and degree of 

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1 injury,• and goes on with the rest of the paragraph. 

2 MS. PEACOCK: Let me repeat this back to you. 

3 ''The NSPS and MACT standards, established by 

4 the EPA, therefore considers the character• 

5 MR. HOLT: Standards consider. 

6 MS. PEACOCK: Consider. 

7 Okay. Any other suggestions? 

8 MS. RYAN: I 1 i ;.oe it. 

9 MR. VOLKERDING: I had one question, and I 

10 don't really want to muck it up. 

11 MR. HOLT: But --

12 MR. VOLKERDING: The wording is actually --

13 when it says what the determination is considering, the 

14 verbiage is actually the New Me xi co requirements, it's 

15 not actually executive verbiage that the feds say when 

16 they do an NSPS or MACT determination. And so I don't 

17 know if that's -- if that's critical, but it doesn't --

18 it doesn't track exactly to what the federal 

19 requirements are. 

20 So I don't know if we want to just take out 

21 EPA entirely and just say the Board or --

22 MS. PEACOCK: Meaning the Board has therefore 

23 considered? 

24 MR. VOLKE:RDING: Right. 

25 Or if we want to leave EPA in there, then I 

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1 think we need to use the language that they actually 

2 consider, because it's slightly different. And I don't 

3 have that language right in front of me to look it up, 

4 but --

5 MS. RYAN: On the next page, on page 4, 

6 paragraph 19, you know, the proposed language is that we 

7 consider that specific section. 

8 And I'm okay with paragraph 17 as it reads in 

9 that we would be stating that the NSPS and MACT 

10 standards -- that those standards set by the EPA do 

11 consider these factors. That's how I read it. 

12 MR. VOLKERDING: Right. And they do consider 

13 those factors but not as worded, that that's -- that's 

14 my only point. And I don't know if it's a huge point. 

15 MR. CASCIANO: And I don't think that we've 

16 seen evidence that they -- NSPS and MACT consider the 

17 impacts the same way the State of New Mexico does with 

18 these same words. 

19 MR. VOLKERDING: Right. 

20 MR. CASCIANO: So I'm not comfortable with 

21 those words applied to NSPS and MACT. 

22 And I do agree that it's covered in 18. So I 

23 don't know if we want to just strike 17. 

24 

25 

MS. RYAN: Strike 17? 

MR. CASCIANO: Either that or we make our 

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1 determination that because EPA has New Source 

2 Performance Standards and Maximum Achievable Control 

3 Technology rules, that we think that's protect~ve of all 

4 these factors in the State of New Mexico. 

5 MR. VOLKERDING: Right. 

6 MR. CASCIANO: I think that's what John's 

7 saying. 

8 MS. PEACOCK: So is the proposal to delete 17 

9 altogether? 

10 MS. RYAN: Well, we could -- we could just say 

11 the Board has -- the Board determines that the NSPS and 

12 MACT standards established by the EPA do consider these 

13 factors. 

14 MS. PEACOCK: I like mentioning the factors, 

15 since they're only referring to the statutory section in 

16 18, so it's nice to mention the factors. 

17 MS. RYAN: Urn-hum. 

18 Yeah. We can just make it the Board has 

19 determined, and make it a Board determination. 

20 MR. VOLKERDING: I think that would work for 

21 me, for my concern. 

22 MS. PEACOCK: Is there a -- does everyone 

23 agree? 

24 MR. CASCIANO: With that - what's the wording 

25 you're proposing? 

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1 MS. RYAN: I think I just said "The Board 

2 determines" -- at the beginning of paragraph 17, "The 

3 Board determines that" -- and then the changes that Matt 

4 already suggested. 

5 MS. PEACOCK: So ''The Board determines that 

6 the NSPS and MACT standards, established by the EPA, 

7 therefore consider the character." 

8 MR. HOLT: I'm fine with that. 

9 MR. VOLKERDING: I think that would be okay. 

10 I mean, it's still not again, that's not what the EPA 

11 considers, but I guess we could say we decided they did, 

12 which is basically what the sentence is saying. 

13 MS. RYAN: Urn-hum. 

14 MS. PEACOCK: urn-hum. 

15 MR. HOLT: And I'm not sure I read it that 

16 way. I don't think we care what they consider. I think 

17 we have to consider those things. And as suggested here 

18 would reflect that we have. 

19 MS. RYAN: Right. 

20 MR. VOLKERDING: And I -- yeah. I would agree 

21 with you. I'm not sure that's what the words -- I'm not 

22 reading it to say that, but I agree with you, that's 

23 what our job would be. 

24 MR. HOLT: Okay. Let me reread this. 

25 MR. VOLKERDING: I'm not always really good at 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
23 

1 words, though. 

2 MR. CASCIANO: And 17 follows 15, which 

3 discusses New Source Performance Standards and what they 

4 do, and 16, which discusses MACT and what it does. I 

5 just think we need to better word it for 17. 

6 MS. RYAN: I think the point is -- is that we 

7 believe that those standards consider these factors that 

8 we also have to consider and we're relying on the 

9 we've relied on those standards set by the EPA to we 

10 believe -- we believe that those standards satisfy our 

11 requirements in 74-2-5 .E. 

12 You see what I'm saying? 

13 MR. VOLKERDING: Yeah. 

14 MS. RYAN: And we've and, you know, in 

15 other statements of reasons we have made -- previously 

16 made statements before that we're relying on some 

17 federal standard that, you know, the EPA has considered 

18 these factors and we agree with them. We've done that a 

19 lot before in other statements of reasons, including the 

20 14-01 that we just voted on, I believe. 

21 MS. PEACOCK: Okay. So our rule states that 

22 in making its regulations the Board shall give the 

23 weight it deems appropriate to all relevant facts and 

24 circumstances presented at the public hearing, including 

25 but not limited to the three criteria. 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
24 

1 We could go with language more closely aligned 

2 with that. 

3 MS. RYAN: In our statement of reasons we just 

4 adopted in 14-01, paragraph 20 is virtually identical to 

5 what we're discussing here. We've already voted on. 

6 I'm not suggesting we go back to 14-01. 

7 

8 

9 

10 

MR. VOLKERDING: Right. 

MS. RYAN: I'm just saying this is a common 

paragraph and we can change it. I'm just 

MR. VOLKERDING: Right. I guess what -- and 

11 where I may be having more hang-up is on MACT, they have 

12 very specific economic things that they look at when 

13 they're determining the impact of those regulations, and 

14 it is very different from what New Mexico may be looking 

15 

16 

17 

at. And so I -- that's my only, I guess, hang-up. 

MS. PEACOCK: Okay. I'd like to make a 

suggestion. It could read ''The Board has given the 

18 weight it deems appropriate to all relevant facts and 

19 circumstances presented at the public hearing, including 

20 the NSPS and MACT standards established by the EPA, 

21 including but not limited to," and then list the three 

22 statutory requirements. 

23 

24 

25 

MS. RYAN: I like that. 

MR. VOLKERDING: Yeah. I'm good with that. 

MS. PEACOCK: Okay. 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - E'ax (505) 243-3606 
25 

1 On the next page, paragraph 18, I recommend 

2 that the citation of "See NMED Exhibit 3, Testimony of 

3 Michael Baca" be changed to ''Testimony of Rita Bates," 

4 and refer to the hearing. 

5 MR. VOLKERDING: Okay. 

6 MS. PEACOCK: And one other suggestion I have, 

7 if you could all look at Exhibit 8. 

8 This was significant to me in my approval, 

9 that "In consultation with the Bureau's permitting staff 

10 and after searching our database of facilities, we found 

11 that no cement k~lns exist in New Mexico outside of 

12 Bernalillo County or on Tribal Lands. Further, external 

13 sources of information from USGS and trade publications 

14 support this determination." 

15 And ''The Bureau's permitting staff confirmed 

16 that no permit applications for cement kilns are on 

17 record and they do not anticipate any in the near 

18 future." 

19 I would like to propose we include that as 

20 modified in the statement of reasons. 

21 MR. VOLKERDING: I think that would be good. 

22 MS. RYAN: I agree. Just add a paragraph. 

23 MS. PEACOCK: Urn-hum. Add a paragraph 

24 somewhere where appropriate. 

25 MS. RYAN: Urn-hum. 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
26 

1 MS. PEACOCK: Okay. 

2 Any other suggestions? 

3 MS. RYAN: In paragraph :8, again, second line 

4 is "this repeal will not result in any increase in 

5 economic hardship." I just hate making strong 

6 statements like that, like result in -- ~n substantial 

7 economic hardship. 

8 MS. PEACOCK: Any substantial increase? 

9 MS. RYA~: Deleting "in any increase'' and 

10 so read "the repeal will not result in substantial 

11 economic hardship." 

12 MS. PEACOCK: Okay. 

13 Any objections to that language? 

14 Okay. Anything else? 

15 I'll entertain a motion to adopt the Order and 

16 Statement of Reasons for Regulatory Changes as proposed 

17 by the Department and as modified during these 

18 deliberations by the Board. 

19 

20 

21 

22 

23 

24 

25 

MS. RYAN: Second. 

MS. PEACOCK: Okay. Any discussion? 

Okay. All in favor? 

(Simultaneous responses.) 

MS. PEACOCK: Any opposed? 

Okay. It's unanimous. 

Break? 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

27 

Okay. We'll be taking a break. 

Thank you. 

(Proceedings adjourned at 10:32 a.m.) 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
28 

1 STATE OF NEW MEXICO 

2 ss. 

3 COUNTY OF BERNALILLO 

4 

5 

6 I, CHERYL ARREGUIN, the officer before whom the 

7 foregoing proceedings was taken, do hereby certify that 

8 I personally recorded the proceedings by machine 

9 shorthand; that said transcript is a true record of the 

10 proceedings; that I am neither attorney nor counsel for, 

11 nor related to or employed by any of the parties to the 

12 action in which this proceeding is taken, and that I am 

13 not a relative or employee of any attorney or counsel 

14 employed by the parties hereto or financially interested 

15 in the action. 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

My Commission Expires: 

NOTARY PUBLIC 

CCR License Number: 21 

Expires: 12/31/2014 

12/12/15 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
1 

1 [5]- 4:4, 7:24, 

12:25, 13:3, 18:1 

10 ~]- 4:17,4:19 

10-1371 [1]- 4:14 

10:01 [1]-1:19 

10:32[1]- 27:3 

11 [5]- 4:20, 13:1, 

13:3,13:11,17:8 

1190[1]- 2:14 

11th [1]- 1:15 

12[17]-4:11, 6:1, 

8:9, 8:10, 8:13, 10:6, 

10:9,10:10,10:11, 

10:21,11:6,11:11, 

11:15, 12:17, 12:19, 

15:10 

12112115 [1]- 28:20 

12131/2014 [1]-

28:18 

12th [1[- 9:17 

13 [12]- 3:7, 4:4, 4:5, 

4:6,4:8,4:10,4:13, 

4:15,4:17,4:18,4:19, 

4:20 

14~[- 4:19, 13:12 

14-01 [4]- 5:13, 

23:20, 24:4, 24:6 

14-02{2]- 5:2, 5:10 

1<W2(R [11- 1:3 

15[4]-13:23, 18:7, 

18:9,23:2 

1508 [1]- 2:8 

16[4]-14:23, 18:7, 

18:12, 23:4 

17 ~]- 18:18, 20:8, 

20:23, 20:24, 21:8, 

22:2, 23:2, 23:5 

18 [5[- 15:5, 20:22, 

21:16,25:1,26:3 

18th [1[- 9:22 

19 [1}- 20:6 

1970 [1]- 8:16 

2 

2 [2]- 4:5, 18:6 

20[1]- 24:4 

20.2.12 [5]- 1:4, 4:9, 

4:15, 5:9, 6:1 

20.2.77[2]- 9:2, 

11:22 

2010 f1j- 9:3 

2013 [4]- 4:11' 4:17, 

4:19, 9:17 

2014[4]- 1:16, 9:22, 

12:10, 12:13 

110 Twelfth 

21 [1]- 28:18 

29[11- 4:11 9 Albuquerque [1]-

r------------' 12:9 

1----------- I aligned [11- 24:1 3 9[2]-4:18,12:11 alluded[1]-18:8 

3 {12]- 4:6, 8:5, 

13:11, 15:6, 15:11, 

15:20, 18:7, 18:12, 

18:17, 25:2 

307[11-1:19 

30th{1]-12:10 

4 

4[4]-4:8, 8:2,15:4, 

20:5 

4118114(1)-4:14 

40 [41- 4:11' 8:25, 

11:2,11:7 

42(4]-13:24, 14:4, 

14:13, 14:24 

4th [1]-12:13 

A 

a.m 121- 1:20, 27:3 

above-entitled 111-

1 :16 

achievable [11-

18:14 

Achievable [11- 21:2 

achieving {1]-18:16 

action !21- 28:12, 

28:15 

add~~- 14:1, 25:22, 

25:23 

adding 111- 14:20 

addition [1]-12:12 

addreSS[1]- 5:15 

adequately !41 -

14:1,14:13,14:15, 

r---------==------i 18:11 

5 adjourned 111- 27:3 

5[1]-4:10 

502[11- 8:15 

505~1- 2:9,2:15 

6 

612]-3:5,4:13 

60[41-4:12,9:1, 

11:2,11:7 

63 [1]- 4:12 

7 

7[1]- 4:15 

74-2-S.E [2{- 11 :5, 

23:11 

7411(a)(1 [11-13:24 

7412 [1]- 14:24 

78[1]-4:10 

Administrative !11-

8:12 

administrator [7] -

13:25, 14:2, 14:14, 

14:18, 14:24, 18:10, 

18:14 

admission !11 -

12:25 

ADMITTED [11- 4:2 

admitted !21 -13:2, 

13:3 

adopt [3J- 8:6, 

17:10, 26:15 

adopted 141 - 8:13, 

9:1' 10:25, 24:4 

advanced 111- 6:25 

adverse[1]-10:21 

affected !11 -10:18 

affidavits [1]- 4:18 

afflnned !11- 6:15 

afforded 111- 10:15 

agencies !11 - 7:8 

8 .Agency[2J- 7:15, 

f-------=------1 8:18 

agree [6]- 20:22, 

21:23, 22:20, 22:22, 

23:18, 25:22 

altogether[1J- 21:9 

ambiguity 121 -

10:12, 15:14 

amend 111- 16:6 

amendments [51 -

4:8,5:9,9:7, 9:18, 

' 9:19 

anafyst 111- 6:25 

anticipate 111- 25:17 

apologize 111- 14:20 

appealed 111-9:10 

Appeals 121 - 9:11, 

11:18 

applicants 111-

11:11 

applications 111-

25:16 

applied 111- 20:21 

appropriate [4] -

14:14, 23:23, 24:18, 

25:24 

approval 111- 25:8 

approved 111- 13:20 

April [3]- 4:19, 9:22, 

12:10 

arbitrarily 111- 9:13 

arise 111- 6:4 

ARREGUIN [11- 28:6 

aspects !11- 9:6 

Assistant [1]- 2:12 

asslstantt1J- 2:7 

associated [1]-10:5 

assured[1]-11:12 

ATENCIO [10J- 2:12, 

5:16,5:21,6:18,14:6, 

14:9, 14:19, 15:2, 

17:1' 18:5 

Atencio 121- 3:6, 

5:14 

attached !11- 7:24 

attended !11- 12:15 

attorney !21- 28:10, 

28:13 

Attorney [21 - 2:7, 

2:8 

audience [11- 16:22 

available [21- 6:2, 

12:2 

6:12, 6:20, 7:4, 7:21' 

8:8, 9:25, 10:18, 

12:22, 12:24, 25:3 

bachelor's 111- 7:19 

background !11-

7:18 

based[1J-14:11 

BATES [BJ- 3:4, 

6:14, 13:16, 15:1, 

15:11,15:20,16:2, 

16:15 

Bates [-41- 4:5, 5:24, 

6:2, 25:3 

BE[1]-1:15 

begin [31- 5:15, 6:12 

beginning 111- 22:2 

believea[1]-11:14 

benefltt1J-10:11 

Bernalillo !11- 25:12 

BERNALILLO [11-

28:3 

best[1J-14:12 

better 111- 23:5 

blowing 111-7:16 

BOARD [21- 1:1, 

13:8 

Board 1221- 1:18, 

2:2, 3:7, 5:7, 5:22, 

7:12, 12:19, 13:5, 

13:20, 16:20, 19:21' 

19:22,21:11,21:18, 

21:19,22:1,22:3, 

22:5, 23:22, 24:17, 

26:18 

bordert1J- 7:6 

break !21- 26:25, 

27:1 

brlefly111- 7:17 

bring !11 - 11 :20 

Building 111-1:18 

Bureau [6]- 5:24, 

6:3, 6:23, 7:2, 7:5, 

12:12 

Bureau's 121- 25:9, 

25:15 

business [3]- 6:10, 

9:7, 10:2 

businesses 111 -

10:22 

BYt2J-6:18, 13:8 

c 8 [2]- 4:17, 25:7 

827-0917 [1]- 2:15 

827-6986 [1]- 2:9 

87504-1508 [1]- 2:9 

87505 {1]- 2:15 

Air [61- 5:23, 6:22, 

8:15, 8:23, 10:3, 

12:12 

B __ _ _ _ ___ ___ calculation 121-

alrt9J- 7:6, 7:10, 

7:15, 8:19, 8:21, 

11:16,11:25,12:2, 

16:12 

BACAt5J- 3:4, 6:14, 

15:9, 15:25, 16:25 

Baca [16]- 3:5, 4:4, 

4:7, 5:23, 5:25, 6:9, 

4:16, 9:14 

Capitol 111 - 1 :18 

care 111-22:16 

Carleton [11- 7:20 

CASCIANO [7]- 2:4, 

1 

KATHY TOWNSEND COURT REPORTERS ____ L_ __________ __ 

Street, Northwest, Albuquerque, New Mexico 

(505) 243-5018 - Fax (505) 243-3606 

87102 
20:15, 20:20,20:25. 

21:6, 21:24, 23:2 

cat.~g<>rlear11- 8:20 

CCR 111 • 28:18 

CEMENT[1J·1:4 

cement(14J- 5:9, 

6:2,8:11, 8:25,9:4, 

9:17, 10:16, 10:23, 

11:1,11:10,11:19, 

11:20,25:11,25:16 

cettalntyrn- 10:14. 

11:13 

certify 111- 28:7 

cetera!tt-18:20 

CFR[4J·4:11, 9:1, 

11:2.11:7 

Chair[t]-15:12 

Chairman 111- 17:6 

change [11- 24:9 

changed [1J- 25:3 

Chang .. !31· 4:21, 

17:25, 26:16 

changes [4J- 8:17, 

18:2, 18:6,22:3 

ctutracter[4J- 18:19, 

18:25. 19:4. 22:7 

chemistry(t]- 7:19 

CHERYL111· 28:6 

chose [11-14:1 

CHRISTOPHER [11· 

2:12 

christopher. 

atencio@state.nm. 

us {1J- 2:16 

Clr111. 4:13 

Circuit [3)- 9:12, 

9:21,9:23 

clrculatlon(1!·12:7 

clrcumst.nces t2J23:24, 24:19 

citation 111- 25:2 

elflzenst1J-10:22 

clvU 111 • 2:7 

cl0118d 111. 17:5 

closely 111- 24:1 

closing 111- 16:24 

Code 111- 8:12 

codified 111· 8:25 

coUecttvely[1J ~ 8:21 

College 111 • 7:20 

Columbia 111 • 9:11 

comfortable 111 ~ 

20:20 

comments [>J12:14 

Commission (1J ~ 

28:20 

common 111- 24:8 

concern 111- 21:21 

.. concurrently 11;:.f· . 0 

9:4 .. 

conducted 111- 5:13 

conducth'lg 111- database (1)- 25~10 

10:2 : days[1J·7:15 

, confidoni[1J·11:23 1 DCt4J·4:13,9:12, 

confirmed 111 ~ 9:21, 9:23 

25:15 DEBORAH 111· 2:3 

conforming (11 - decided f1J - 22:11 

9:19 decision(1J-11:18 

confusing :11- 16:7 deems {2J- 23:23, 

ccnfualon!3)- 24:18 

10:12,11:12,15:14 deforrlng[1J·18:20 

consider[15J- 5:8, degroo [lJ- 7:19, 

18:19, 19:5, 19:6, 18:19, 18:25 

20:2, 20:7, 20:11, delete 111- 21:8 

20:12, 20:16, 21:12, deleting [1[· 25:9 

22:7, 22:16, 22:17, dellberatlcna [3[ • 

23:7, 23:8 1:17, 17:7,26:18 

consideratton 111 -

18:15 

considered [2] -

19:23,23:17 

considering !21-

13:12, 19:13 

considers Pl18:25, 19:4,22:11 

constructed ['II -

10:16 

consultation [11-

: 25:9 

contained 121- 10:9, 

12:10 

contaminant !11-

16:12 

contaminant. 131-

11:17,11:25,12:2 

conttfbute 111 8:20 

control 111 - 12:2 

Conln>II2J· 8:15, 

21:2 

eonvel'$1on 111-4:16 

copy (11- 7:21 

coatttJ-18:15 

Counself2J- 2:12, 

2:13 

eounael [21 ~ 28:10, 

26:13 

County [11- 25:12 

COUNTY111· 28:3 

Courtt2l- 9:11, 

11:18 

covered [1J ~ 20:22 

criteria 111- 23:25 

erltleal 111 ~ 19:17 

currentr11- 6:24 

demonstrated [4J -

14:1, 14:13, 14:16, 

15:8 

demonstrated~ [11-

18:11 

denial[tJ- 9:10 

denied n · 9:8 

Department {121-

2:11, 2:13,6:7, 6:22, 

10:6, 10:20, 10:24, 

12:3, 12:16, 12:18, 

17:11,26:17 

Departmenrsm5:23, 6:1,6:10,7:6, 

7:22, 10:16, 11:1 

deacribe121· 7:4, 

7:17 

-igna1ed l'i • 5:7 

detGnninaticn (7) -

18:21, 18:23,19:13, 

19:16,21:1,21:19, 

25:14 

detennlned rs1 -

13:25, 14:15, 18:10, 

18:15,21:19 

determines t•J2U1, 22:2,22:3, 

22:5 

detanninlng !11-

24:13 

develop 111 - 7:25 

different (Jl- 16:8, 

20:2, 24:14 

Dl .... tm· 3:5 

DIRECT MJ· 6:17 

discusses[2J- 23:3, 

23'4 

discussing 111- 24:5 

discussion [2J -

17:16, 26:20 

Dlvlslon[1J- 2:7 

docketed 111· 5:10 

documents 111-7:14 

donop[-23:18 

draft(1[· 18:3 

Drawar111-2:8 

Drlve[1J- 2:14 

duly !1l- 6:15 

during[2l- 18:8, 

26:17 

dust[1J- 7:16 

duties (11 - 7;4 

DWORAK 111- 2:6 

E 

economic ]9]-

11:16, 11:24, 15:24, 

16:4, 16:10, 24:12, 

26:5,26:7,26:11 

educational Pl -

7:17 

effeetive(1J ~ 8:15 

offoctlve1y 111 -

10:10 

effleleney l3l -

12:20,15:15, 16:13 

El8[~·1:3, 5:1, 

5:10 

EIB's 111 ~ 12:5 

elth&r[1J- 20:25 

ellmlnating 111M 

11:25 

ELIZABETH 111 • 2:5 

emit:s:lon tBJ- 4:15, 

8:11,8:19,9:14, 9:16, 

9:22, 10:8,14:12 

Emission (1J- 8:23 

emiasions[4l - 9:23, 

10:7, 16:13, 18:13 

emlaslons..telated 

[1[· 9:23 

employed {3J - 6:21, 

28:11,28:14 

employee 111 • 28:13 

Engllsh[1i-12:8 

entertain 111- 26:15 

entire[1J-13:18 

ontirely111 -19:21 

entided p;-1:16 

Environment [JJ -

2:11' 2:13, 6:22 

environmental f3:)-

6:25, 9:20. 10:2 

EIMRONMENTAL 

Environmental rsJ1:17,2:2, 7:11,7:14, 

8:18 

I EPA 1<'11- 4:13, 9:3, 

' 9:5, 9:7, 9:13, 9:15, 

: 9:16, 9:17, 13:25, 

. 14:15, 16:5, 18:10, 

18:14, 18:21, 18.25, 

19:4, 19:21,19:25, 

20:10, 21:1, 21:12, 

22:6, 22:10, 23:9, 

23:17, 24:20 

EPA's 111- 18:22 

episodes 111- 7:15 

equlpment[iJ- 12:1 

establlshad [51-

18:24. 19:3, 21'12, 

22:6,24:20 

et[1[· 18:20 

evlden00[2]-13:4, 

20:16 

exactly [1]- 19:18 

EXAMINATION :>i • 

6:17, 13:7 

Examination 1:21 -

3:5,3:7 

examlnedt1J ~ 6:16 

except!1J-14:18 

$XCUOf1:!-6:5 

eueutlvep]-19:15 

Exhlbl1~11· 4:4, 

4:6,4:8,4:10, 4:13, 

4:15,4:17,4:18,4:19, 

4:20, 7:24, 8:2, 8:5, 

12:11,13:11,15:6, 

15:11,15:20,17:8. 

25:2,25:7 

exhlblt~l- 4:5, 15:7 

Exhlbl1a[:IJ·12:25, 

13:3 

exlllbl1a 111· 6:9 

exist 111- 25:11 

experienc&{1J-12.1 

Expl""' 121- 28:18, 

: 28:20 

explain 111- 8:8 

e<pllcltly~J-15:17 

external ttl- 25:12 

F 

fatlllttest1J ~ 25:10 

factors (&l ~ 20:11, 

20:13,21:4,21:13, 

21:14, 21:16, 23:7, 

23:18 

facts ;21- 23:23, 

24:18 

failed f11 • 9:13 

favor~[-17:20, 

' 26:21 

Fot4J·1 :19, 2:9, 

2 

! Olatrk::t ttl- 9:11 

-~~-···· ~~...L..~ KATHY TOWNSEND COURT REPORTERS ~---L~- ........ ~~-J 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
~215,12~;-----r1;~~1221 -126:8,269 

Februaryp]-4:11, I. hearing(12J 1:16, ! lndustry[1J-9:7 

LlcenseJ11· 28:16 12:9, 19:14,20:17, 

lighii1J-11:16 21:4,24:14,25:11 

8:16, 9:17 • 5:8, 5:12. 6:6, 6:9, , lnformaUon [1[- Ukew1se(2J-14:23, 1 MichaalreJ ~ 3:5,4:4, 

f&deralm-7:8, 6:1,8:4,8:14,18:8, 25:13 15:2 ' 4:6, 5:23, 6:20, 25:3 

8:18, 10:7, 11:19, 23:24, 24:19, 25:4 injury~; -18:20, limKt•J- 4:15, 6:11, 1 MICHAEL t'l- 2:4, 

11:21, 19:16,23:17 Heanng[O]- 5:2. 19:1 9:14, 10:8 i 3:4,6:14 

Federai[1J~ 4:10 5:7,5:13,5:16,5:22, instead !11-13:14 limited 121-23:25. mightr11- 14;6 

fedS!1J-19:15 112:23 lntent[2!-6:7, 7:22 24:21 r.nnnesotet1J·7:20 

flnai~J-9:18, 15:21 heldi>J-5:6, 7:1, lnte""'ti1J-11:15 limits [21· 9:16, 9:22 mlaslng 11:- 14:25 

financially 111- 12:12 interut.d 111- 28:14 llner>J-11:20, 15:5, modllledt21·25:20, 

28:14 herebyt1J-26:7 lntrodue&[1J-5:19 18:9, 18:12,26:3 26:17 

findings [1]-10:5 hereto [11- 26:14 involved [2J- 11:25, ll&tt11· 24:21 morning &21- 5:6, 

flnepJ¥22:8 HOLT[9J-2:5, 12:2 loc&IJ1l- 7:7 5:25 

first(3J- 6:15, 8:14, 16:16. 17:12, 18:18, issues 121-9:8, 9:9 look£41 ~ 14:4, 20:3, j motion [2]- 17:9, 

17:9 19:5,19:11,22:6. ITI1J·1:15 24:12.25:7 ! 26:15 

following 111-9:5 22:15,22:24 

follows 121-6:16, hour111 -1:19 

23:2 hOV ... [;21·12:13, 

foregoing [11- 28:7 

foAJStHH1]-10:20 

fourth 111- 15:5 

Franci8J1J- 2:14 

front til~ 20:3 

FULFER 111- 2:3 

future t>l· 11:1, 

I 11:11,25:18 

G 

12:15 

hvga11J - 20:14 

hum[sJ-21:17, 

22:13, 22:14,25:23, 

25:25 

id&ntlcal 111- 24:4 

111141 . 15:10, 15:11' 

15:13,15:21 

Generai[4J- 2:7, Impact~~~ 10:21, 

2:8,2:12,2:13 24:13 

general!lJ-12:7 1: lmpac.tedt1J-7:16 

given[1J- 24:17 , impacts (11- 20:17 

governments 111 - : Implementation [21 -

7:6 : 15:16. 16:14 

grantt1J-9:13 ! lmplementation{21· 

granted£11- 9:6 

1

. 8:14, 13:18 

g....ter~J-10:13, lmplladi2J-15:12, 

11:13 I 15:17 

GREGORY 111 ~ 2:3 · Importance !1lgroupst1J- 9:7 I 10:1 

1 guo .. f.l[-22:11, ! lmprovai1J-12:19 

124·1···

0

. 

2

4:_1Hs ___ -ll /~PROVEMENT 111-

1 Improvement ~1-

----.• 1:16,2:2,7:12 

hand {11 - 5:4 

bands 111- 16:23 

hangi2J-24:11, 

24:15 

hang .. up!2J- 24:11, 

24:15 

hardship[~ 15:24, 

16:4. 16:10,26:5, 

26:7,26:11 

bate {1]- 26:5 

Hazardous (iJ- 8:23 

healthl'lJ-10:15, 

' IN[1J·1:4 

! include t2J 

: 25:19 

10:7, 

i included [41- 6:10, 

1 7:21. a:2. 8:5 

: includes 111- 13:19 

i lncludtng[SJ-11:15, 

I 23:19,23:24,24:19, 

: 24:21 

incorporated 121-

11:7.11:22 

Increase (6)- 15:15, 

16:12, 1613,26:4, 

---~~~·~ looklngt11·24:14 mouthi1J·16:16 

J lost£11~15:18 j movet4J-5:1, 

·~--~~------4 12:25, 17:6, 17:24 

JAMES 111· 2:4 

jdworakCJnmag. 

M ' moved 131-13:2, 

,--~~---~-: 17:12, 17:15 

govr11- 2:10 machtne[1]- 26:8 

jobpJ-22:23 MACTI111·1824, 

JOHN111- 2:4 19:3, 19:16,20:9, 

John'st1J- 21:6 20:16,20:21,21:12, 

JOSEPHJ1J. 2:6 22:6, 23:4,24:11, 

Journal [1J- 12:9 24:20 

Julyl1i·1:15 Medemr•l-5:16, 

June[21·4:17, 5:22.12:23,15:12 

12:13 maintaining [11-

: jurisdiction [)J- 12:20 

•l' 10:17, 10:24, 11:1 . manufac:turtng[4J-

~~--~K-- j ~~~;!o 14, 1023. 

. ~ Matl[1]- 22:3 

I MATTER111-1:4 

ldln{1J-10:16 matter[4J-1:16, 

kilnst11J· 5:9.6:2. 6:11, 10:8, 17:4 

8:11.8:25,9:17,11:1, molteiS[2J- 5:14, 

11:10,11:19,11:20. ' 6:3 

25:11, 25:16 

KILNS l'l • 1 :4 

known !11 ~ 8:21 

r 

' language 

Londs l1J ~25:12 [131 ~ 

13:24, 14:2, 14:18, 

14:21, 14:22, 14:25, 

15:7, 16:13,20:1, 

20:3. 20:6, 24:1, 

26:13 

lastp]-15:13 

1Utlyj1J· 7:13 

leave (21- 17:3, 

19:25 

lesS(2j ~ 11:12,16:7 

letler[1)~4:19 

liaison {1J ~ 7:7 

MATTHEW[1J- 2:5 

Maximum(1J- 21:2 

mean [1J- 22:10 

meaning t<J -19:22 

meett1J-16:5 

Memb&r{1J- 5:2 

mernb•rs111- 5:22 

MemQrandum 111-

4:17 

mention (1)- 21:16 

mentioning 111 • 

21:14 

metbOdS[1)- 12:1 

MEl<ICO ~l- 1:1, 

28:1 

Mexico 1221 ~ 1:17, 

1:19,2:9, 2:11,2:13, 

2:15,6:22, 7:8. 7:9, 

7:11, 8:12,8:14, 10:3, 

10:22, 11:4, 12:7, 

MR l42l- 5:16, 5:21, 

6:18, 14:6, 14:9, 

114:19, 15:2, 15:9, 

: 15:25, 16:16, 16:25. 

: 17:1, 17:12,18:5, 

1 18:16,19:5,19:9, 

! 19:11, 19•12, 19:24, 

: 20:12,20:15, 20:19. 

1

20:20, 20:25, 21:5, 

21:6, 21:20, 21:24, 

: 22:8,22:9. 22:15, 

22:20, 22:24, 22:25. 

23:2, 23:13,24:7, 

24:10.24:24,25:5, 

25:21 

MS l7QJ- 5:1, 5:5, 

5:18,13:2, 13:5,13:9, 

13:16, 13:22, 14:7, 

14:10.14:22, 15:1, 

15:3, 15:11, 15:16, 

15:20, 15:22, 16:1, 

16:2, 16:11' 16:15, 

16:17, 16:19, 17:2, 

17:7, 17:13, 17'14. 

17:15, 17:17, 17:18, 

17:19, 17:20, 17:22, 

18:6, 19:2, 19:6, 19:8, 

19:22, 20:5, 20:24, 

21:8,21:10,21:14, 

21:17, 21:22,22:1, 

22:5, 22:13. 22:14, 

22:19,23:6,23:14, 

23:21' 24:3, 24:6, 

24:16, 24:23. 24:25, 

25:6, 25:22, 25:23, 

25:25, 26:1. 26:3, 

26:8, 26:9, 26:12, 

26:19,26:20,26:23 

muckt1!- 19:10 

TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 

3 
N OFr~-1:1, 1:4, 

:~--~:.~ .. ~-"'" 1:13,28:1,28:3 

17:15, 17:18, 

17·22, 18:6, 

19:6, 19:22, 

N-4050[1)-2:14 

nante'(iJ- 6:19 

national (1!- 8:19 

National l'l - 8:23 

near[1J- 25:17 

need !31- 14:4, 20:1, 

23:5 

needed (11 - 9:25 

NESHAP !<l • 8:24, 

9:4, 9•16, 9:18 

NEW[2J·1:1, 28:1 I New[25[·1:17,1:19, 

' 2:9,2:11,2:13,2:15, 

6:22, 7:8, 7:11' 8:11' 

8:14,8:22,9:2, 10:3, 

10:22,11:4, 12:7, 

12:9, 19:14,20:17, 

21:1' 21:4,23:3, 

24:14, 25:11 

newspapar[1J-12:6 

n•xt[4J- 14:7, 14:6, 

20:5. 25:1 

nicer11-21:16 

NMACr~·1:4,4:9, 

4:15, 5:9, 9:2, 11:22 

NMEP !91· 4:3. 4:17, 

4:19, 10:3, 11:14, 

11:22, 13:3,15:6, 

25:2 

nobody!11·12:15 

nona (11- 5:16 

Northfteld 111· 7:20 

NOTARY!•J-28:17 

notlcers< • 6:7, 7:22. 

12:3, 12:6, 12:8 

noticee(1J-12:10 

notification 111 ~ 

6:11 

nowhere 111 - 15:23 

~ NRDC(1J- 4:13 

NSPS£1~ • 8:22, 

8:25, 9.3, 9:19, 10:9, 

10:15.11:21. 16:6, 

18:24, 19:3, 19:16, 

: 20:9,20:16,20:21, 

21:11' 22:6, 24:20 

Numberp]-4:11, 

5:10, 28:18 

offiteliJ-12:13 

Office~~- 2:8, 2:8. 

2:13 

Officer JSi ~ 5:2, 5:8. 

5:16, 5:22. 12:23 

offleerttl ~ 28:6 

011&~)-14:7, 16:23, 

19:9,25:6 

open(3J-12:13, 

12:15, 17•3 

opiniORf1J ~ 9:12 

opposed[:t]-17:22, 

26:23 

order~J-11:20, 

12:19, 13:10 

Order r•J· 4:20, 

17:24. 26:15 

org•nizatlons [11 -

9:20 

outsldOI11· 25:11 

overslgh!!1J·14:19 

21:8,21:14, 21:22, 

22:5, 22:14, 23:21, 

24:16, 24:25, 25:6, 

25:23,26:1,26:8, 

26:12, 26:20, 26:23 

Perfonnance [4J ~ 

8:22, 9:2, 21:2, 23:3 

pormlt[1[ • 25:16 

pennmtng!BJ-10:1, 

10:4, 10:13, 11:12, 

15:14, 25:9,25:15 

peraonaDy f1J - 28:8 

petitioned 111- 9:20 

pelitlons (2]- 9:6, 

9:9 

Plant2J·8:15, 13:18 

plan1121- 7:10, 

13:19 

plan11 [4]- 9:4, 

10:14. 10:23, 11:14 

PM111· 9:21 

p po!ntpJ-20:14, !-_ .. __ _:___ .. __ .........c 23:6 

PAGEt1J· 3:2 

page[14J~ 13:11, 

13:23. 14:24, 15:4, 

15:10,15:11, 15:20, 

18:1, 18:6,18:7, 

18:17.20:5, 25:1 

. paragraph [211 -

i 13:12.13:23,14:8, 

: 14:23, 14:25, 15:5, 

1

: 15:13,15:21, 18:8, 

. 18:12, 18:18, 19:1, 

' 20:6, 20:8, 22:2, 24:4, 

i 24:9,25:1,25:22. 

: 25:23, 26:3 

1 paragraphs [1)· 

. 18:7 

i part!'r-14:20 

! Part(1$J- 6:1, 8:9, 

i 8:10.8:13.9:1, 10:6, 

110:9, 10:10, 10:11, 

' 10:21,11:2,11:6, 

i 11:7, 11:11, 11:14, 

: 12:17, 12:19, 15:10 

particulate {21- 8:10, 

10:8 

policy [1) .. 6:3 

PoRutants 11l- 8:24 

pollution f.ll - 7:15, 

8:21 

position {1) ~ 7:1 

Poo![1J· 2:8 

potential DJ -10:12, 

15:14 

prac11cabRity!11-

11:24 

preflled [1J· 8:3 

preliminary Ill .. 

5:14 

P"'pare (2] • 7:10, 

7:13 

present (Jl- 6:8, 

7:11, 7:22 

pnoaentod 121 • 

23:24, 24:19 

previous ("31- 5:11. 

6:6, 12:1 

previously ftl23:15 

problem (21- 14:20, 

15:1 

procedures [1Jb 08:6 i partioo•~·28:11, 5,12 

:::..__ ___ ~ 26:14 pro<eedlng[1JPano<•i·4:12 28, 2 I PEACOCK~•J-Z.J, PROCEEDINGS[1]- ' objectiOR$[1]~ : 5:1,13:9,13:22,14:7. 1

:

13 · 26:13 i 14:10. 14:22, 15:3, Proceedings 1

,

1 .. 

obllgadon[1J·18:19 I 15:18,15:22, 16:1, : 27'3 

obsoletepJ-10;10 ; 16:11, 16:17, 17:7, I ~roceedlngspJKATHY TOWNSEND COURT 

28:7, 28:6, 28:10 

proce-&S{4J -10:4. 

10:13, 11:12, 15:15 

1 promulgated !21-

, 9:3,9:18 

promulgation 111 • 

'9:5 

property£11·11:9 

propoeal (2] .. 12:4, 

'

i 21:8 

propose{1J· 25:19 

Proposed f.ll- 4:8, 

15:10 

proposeci!WI- 6:1, 

7:25,8:9, 10:18. 

10:21, 10:25, 11:4, 

11:23, 12:14, 13:10, 

! 13:13, 14:11, 14:25, 

15:4, 17:10, 17:24, 

20:6,26:16 

PROPOSEP111 • 1:4 

proposing t1!-

21:25 

ProtectiOn [2J- 7:14, 

' 8:18 

I prote<.tlon[1J·10:2 

, protections [21-

. 10:15, 12:20 

protective 12)· 11:8, 

21:3 

protects [1J- 11:23 

provide [3J· 6:2. 8:3, 

12:3 

prov!dlng[:ll10:13, 11:9, 18:3 

! provistons121 - 9:23, 

. 11:2 

PUBLIC 111 • 28:17 

public [11·10:15, 

11:8,11:15, 12:3, 

12:21, 23:24,24:19 

publlcatl()n [11- 4:18 

publications !11-

25:13 

1 published t:il· 12:6, 

: 12:8 

1 pursuantf1J·10:5 

put [1). 16:16 

Q 

Quality~[ 5:24, 

6.23, 8:15, 12:12 

! quality !31· 7:5, 

• 7:10, 7:15 

Quality's 111 .. 10:4 

queetions [61- 6:4. 

12:24.13:6, 16:18, 

16:19, 16:22 

REPORTERS 

R 

ralset11 ~ 

read J9J ~ 

14:13, 18:9, 

18:24, 20:11' 22:15, 

24:17,26:10 

reading 111- 22:22 

readS!1l ~ 20:8 

really!'J -19:10, 

22:25 

reason (21 ~ 14:3, 

17:3 

reaaonablenft8S {11 ~ 

11•24 

' Reasons 131- 4:21, 

17:25, 26:16 

reasons (31 - 13:11, 

14:11, 15:5, 18:4, 

23:15, 23:19, 24:3, 

25:20 

recateulated 111 -

9:16 

receive{1J-12:14 

i received [1J- 9:6 

recognizing f1J10:1 

recommend 141 -

: 12•16, 13:20, 18:12, 

' 25:1 

recommended [1)-

10:6 

reconsider 121- 9:6, 

9:9 

reconsideration [31-

9:8, 9:10,9:13 

record 141- 17:3, 

17:5,25:17,28:9 

recorded 111 ~ 28:8 

reducing r11 - 11:24 

reduction [11- 16:13 

reductions !Zl -

14:12. 18:9 

refer [31- 5:11. 17:8, 

25:4 

re-..ce!'J- 9:1, 

11:22 

referring 111- 21:15 

reflect111- 22:18 

regardtng !31- 5:9, 

5:12, 5:25 

Reglster~J- 4:10, 

12:7, 12:9 

regulation 111 -

11:20, 15:16 

Regulatlont1i- 8:15 

regulations [SJ -

12:5, 13:19, 16:14, 

23:22, 24:13 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 

4 
i ... ~ .. ----------

1 regulatory [&l ~ 6: 11 , 

' 8.1. 10:13, 11:13, 

12'20 

Regulatory [3] -

4:21' 17:25, 26:16 

related 121- 9:23, 

28:11 

, relative[1J ~ 28:13 I ......... t 121- 23:23. 

' 24:18 

relied 111- 23:9 

relieff1J- 6:11 

relying 121- 23:8, 

23:16 

remaining 111- 9:9 

remanded ttl w 9:14 

remarks 111- 16:24 

FIEMEMBEREDPJ-

' 1:15 

' remowpJ w 8:10 

removing [2)- 10:12, 

15:13 

renders [1]-10;10 

Repeal!tJ-15:10 

repol 12~- 6:1, 8:1, 

8:9.8:10, 9:25, 10:6, 

10:11, 10:19, 10:21. 

10:25, 11:4, 11:14. 

11:23, 12:14, 12:16, 

12:19, 13:14, 13:21, 

16:6, 17:10, 26:4, 

26:10 

"'pealing PI - 11 :6, 

11:11. 13:18 

"'P"Iti1)- 19:2 

repi&C.Ofl)-18:23 

requaatalll-12:16 

requil'9!tJ-12:6 

requlred£1)-16:5 

requl1'9ments 111 ~ 

11:9,16:5, 16:8, 

19:14, 19:19,23:11, 

24:22 

-[1)-22:24 

. ....peottully [1)-

112:18 

' responsest2l ~ 

17:21' 26:22 

rftt(1j-19:1 

resultr&J-11:13, 

15:23, 16:3, 16:10. 

16:12,26:4,26:6, 

26:10 

r&SUR\8(3] ~ 4:4, 4:5, 

7:21 

retaining!lJ-10:14 

I'GYiswl41-9:21, 

10:3, 10:6, 18:4 

revlsed 111- 4:8 

revision 121- 13:17, 

• 13:21 

I REYISIONS[1J -1:4 

1 rBVialona(4!-13:13, 

I

. 13:15, 13:16, 17:10 

"'write[11-18:22 

RJTA121- 3:4, 6:14 

. Rita [;lJ- 4:5, 5:24, 

1 25:3 

~ RoomttJ~ 1:19 

rule t•J- 8:17, 9:14, 

9:24,23:21 

rulemak1ng [2] • 

5:12, 12:5 

1'UlHi3]-7:10, 10:5, 

21:3 

RYAN[29J-2:5, 5:5, 

5:18.13:2,13:5, 

16:19, 17:2, 17:14, 

17:17,17:19, 19:8, 

20:5, 20:24, 21:10, 

21:17.22:1.22:13, 

22:19, 23:6, 23:14, 

: 24:3, 24:8, 24:23, 

: 17:21, 26:22 I SIPIS]-13:13, 

. 13:14, 13:19,13:21, 

17:10 

six Ill~ 7:3 

ollghUy111- 20:2 

small 111- 6:10 

smoke ttl~ 7:16 

soelal[tJ-11:15 

somewhenJ(tl25:24 

source[2J- 6:19. 

11:16 

Source 141- 8:22, 

9:2,21:1,23:3 

SOUrtee{SJ -11:25, 

16:4,167,16:10, 

25:13 

Spanlllh 111- 12:8 

spec;ific 121- 20:7. 

24:12 

speetncally{2}~ 

14:17, 15:25 

! 25:22, 25:25, 26:3, •• [11- 28:2 

l

: 26:9,26:19 I SI[1J- 2:14 

Ftyant1J- 5:2 , stofi[2J-25:9, 25:15 

---""' stakeholders m- :--5 :7:7 

r 

.. -- ..... ~standardi1J-23:17 standards p&J- santai<J-1:19, 2:9, 

2:15,12.13 8:19,8:21,95,9:12. 

' 9:22, 10:7, 11:19, satisfy! )~ 11 , 1121 1824193 

23:10 ' : ' : ' : ' 

searching til- 25:10 

second (51~ 17:13, 

17:14, 18:9,26:3, 

. 26:19 

seconded(1J-17:15 

Section (4J- 15:10, 

15:11.15:13, 15:21 

section rtl· 20:7, 

21:15 

Me{2}~ 14:6,23:12 

i Seei2)-15:6, 25:2 I seeing 111- 16:23 

seem 111- 18:20 

sentene&{2J-14:14, 

22:12 

September 111- 9:3 

Set[ll- 20:10, 23:9 

sets [11- 6:19 

several (1! • 9:20 

shall ~l - 23:22 

shorthand 111- 28:9 

showp:-15:6 

significant 111- 25:6 

slgnlflcanUyt>J· 

8:20 

Simultaneous [2J 

19:5,20:10,21:12. 

22:6. 23:7' 23:9, 

23:10, 24:20 

StandardS lSI- 6:22, 

8:23, 9:2, 21:2, 23:3 

STATE~J -1:1,28:1 

statom- 6:19,7:7, 

8:13, 10:11,16:2, 

: 16:11,16:15 

· statom-1:18, 8:14. 

10:3,11:5,13:17, 

20:17, 21:4 

stete'Si11-13:17 

Statement m- 4:20, 

17:25,26:16 

statement !51 -

13:10,14:11, 15:4, 

18:4, 24:3, 25:20 

statements !5)-

5:11' 23:15, 23:16, 

23:19,26:6 

&tates ftl- 23:21 

statlngl21-16:9, 

20:9 

statute[t]-11:5 

I 

statutory!2J-21:15, 

24:22 

1 still rn- 22:10 

strike (31 ~ 18.22, 

' 20:23, 20:24 

! stringency;H- 4:16 

atrlng&nt[31- 10:8, 

. 10:9, 11:9 

strong f11 ~ 26:5 

I 

subject[3J· 8:1, 

11 :2, 16:8 

subjeets 111 w 11:16 

submit 111 - 7:14 

submitted 111- 6:7 

Subpart [3J - 9:1, 

• 11:3, 11:7 

substantial 131-

26:6, 26:8, 26:10 

substantive 111 ~ 

8:16 

suggested [4)-18:1, 

' 18:6, 22:4,22:17 

I suggesting til- 24:6 

ougaa-n~J24:17, 25:6 

suggestions £3J-

. 18:17, 19:7,26:2 

Suit& 111- 2:14 

: support[2]-7:13 

! 25:14 

supporting !11- 6:9 

sworn 111- 6:15 

system[1J·14:12 

T 

b:K:hnleal [41 - 6:8, 

17:13,7:22,11:23 

! Technolog)fi1J21:3 

testified f1J- 6:16 

testify 111- 5:25 

Testlmony[3J- 4:6, 

25:2, 25:3 

'I teattmony !81 ~ 6:3, 

6:8, 6:13, 7:23,8:3, 

8:6, 16:2 

Tex.u t1l· 7:6 

THE~~- 1:4, 13:8 

tberefore(4J-16:25, 

19:4,19:22,22:7 

three t2J- 23:25, 

: 24:21 

I -~n-6:24 

rom-1:4 

today[>)- 5:23, 8:6, 

16:21 

totally 11)- 16:15 

towarda[JJ· 15:5 

traekf1J- 19:18 

trade 111- 25:13 

5 

: transetlpt!1l- 28:9 , 

·~ TRANSCRIPT [1J- [ 

1:13 

: 

. Tribalt1J-25:12 

true [11- 26:9 

J 

i two 111- 16:8 

..... -··· 

: U I 

um.hum]SJ- 21:17, 

22:13, 22:14, 25:23, 

' 25:25 

unanimous !21-

17:23, 26:24 

underreJ- 6:6, 

10•15 10•16, 10•23, 

15:20, 16:5 

undertookf1J-10:3 

unnecessary{ll10:10 

up 1•1 -19:10, 20:3, 

24:11, 24:15 

upheld 1~- 9:12, 

9:23 

upholding (11-

11 :19 

US11J-9:11 

USCt<J-13:24, 

14.4, 14:13, 14:24 

USGS111- 25:13 

v 

value(t]-11:16 

various [11· 9:6 

verbiage t2l ~ 19:14, 

19:15 

, vlriually[!J-24:4 

: visibility 111 -11:8 

VOL.KERDING 11n -

1 2:4. 19:9. 1s:12. 

' 19:24, 20:12,20:19, 

21:5, 21:20, 22.9, 

22:20,22:25,23:13, 

24:7, 24:10, 24:24. 

25:5,25:21 

Volumet1J-4:10 

voted 121- 23:20, 

. 24:5 

w 

weight 121- 23:23, 

24:18 

welcome 111- 18:5 

wetfare{2J-11:8, 

12:21 

wildfire ttl w 7:16 

...-, 

----'----~ .... ·-- KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 
\MTNESSES 111- 3:3 

witnesses 111 - 5:20 

word 121- 18:23, 

23:5 

worded 111- 20:13 

wording [41- 13:15, 

14:17,19:12,21:24 

words [5]- 16:16, 

20:18, 20:21,22:21, 

23:1 

written {31- 4:6, 6:8, 

8:3 

y 

years 111- 7:3 

KATHY TOWNSEND COURT REPORTERS 

110 Twelfth Street, Northwest, Albuquerque, New Mexico 87102 

(505) 243-5018 - Fax (505) 243-3606 

6