72330 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[OAR–2002–0051; FRL–8003–6] 

RIN 2060–AJ78 

National Emission Standards for 

Hazardous Air Pollutants From the 

Portland Cement Manufacturing 

Industry 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; amendments. 

SUMMARY: On June 14, 1999, under the 

authority of section 112 of the Clean Air 

Act (CAA), the EPA promulgated 

national emission standards for 

hazardous air pollutants (NESHAP) for 

new and existing sources in the 

portland cement manufacturing 

industry. On December 15, 2000, the 

United States Court of Appeals for the 

District of Columbia Circuit (DC Circuit) 

remanded parts of the NESHAP for the 

portland cement manufacturing 

industry to EPA to consider, among 

other things, setting maximum 

achievable control technology (MACT) 

floor standards for hydrogen chloride 

(HCl), mercury, and total hydrocarbons 

(THC), and beyond-the-floor standards 

for metal hazardous air pollutants 

(HAP). This action provides EPA’s 

proposed rule amendments in response 

to those aspects of the court’s remand. 

DATES: Comments. Written comments 

must be received on or before January 

17, 2006. 

Public Hearing. If anyone contacts the 

EPA requesting to speak at a public 

hearing by December 12, 2005, a public 

hearing will be held within 

approximately 15 days following 

publication of this notice in the Federal 

Register. 

ADDRESSES: Comments. Submit your 

comments, identified by Docket ID No. 

OAR–2002–0051, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: U.S. Postal Service, send 

comments to: EPA Docket Center 

(6102T), Attention Docket ID No. OAR– 

2002–0051, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. Please 

include a duplicate copy, if possible. 

• Hand Delivery: In person or by 

courier, deliver comments to: EPA 

Docket Center (6102T), Attention Docket 

ID No. OAR–2002–0051, 1301 

Constitution Avenue, NW., Room B– 

108, Washington, DC 20004. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Please include a duplicate copy, if 

possible. 

We request that you also send a 

separate copy of each comment to the 

contact person listed below (see FOR

FURTHER INFORMATION CONTACT). 

Public Hearing. If a public hearing is 

held, it will be held at 10 a.m. at the 

EPA Facility Complex in Research 

Triangle Park, North Carolina or at an 

alternate site nearby. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Keith Barnett, EPA, Office of Air Quality 

Planning and Standards, Emission 

Standards Division, Minerals and 

Inorganic Chemicals Group (C504–05), 

Research Triangle Park, NC 27711; 

telephone number (919) 541–5605; 

facsimile number (919) 541–5600; email address barnett.keith@epa.gov. 

SUPPLEMENTARY INFORMATION: Regulated 

Entities. Entities potentially affected by 

this action are those that manufacture 

portland cement. Regulated categories 

and entities include: 

TABLE 1.—REGULATED ENTITIES TABLE

Category NAICS1 Examples of regulated entities 

Industry ....................................................... 32731 Owners or operators of portland cement manufacturing plants. 

State ........................................................... 32731 Owners or operators of portland cement manufacturing plants. 

Tribal associations ..................................... 32731 Owners or operators of portland cement manufacturing plants. 

Federal agencies ........................................ None None. 

1 North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that may potentially 

be regulated by this action. To 

determine whether your facility is 

regulated by this action, you should 

carefully examine the applicability 

criteria in 40 CFR 63.1340 of the rule. 

If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

Docket. The EPA has established an 

official public docket for this action 

under Docket ID Number OAR–2002– 

0051. The official public docket is the 

collection of materials that is available 

for public viewing both electronically 

and in printed form. This docket is 

available electronically through EPA 

Dockets at http://www.epa.gov/edocket. 

You may access the docket 

electronically to submit or view public 

comments, access the index of the 

contents of the official public docket, 

and access those documents in the 

public docket that are available 

electronically. Once in the system, 

select ‘‘search’’ and key in the 

appropriate docket identification 

number. 

The docket is also available in printed 

form at EPA, 1301 Constitution Avenue, 

NW., Room B–102, Washington, DC. 

The EPA Docket Center 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 Reading Room is (202) 566–1744. 

The telephone number for the EPA 

Docket Center is (202) 566–1742. A 

reasonable fee may be charged for 

copying docket materials. 

For public commenters, it is 

important to note that EPA’s policy is 

that public comments, whether 

submitted electronically or on paper, 

will be made available for public 

viewing in EPA’s electronic public 

docket as EPA receives them and 

without change, unless the comment 

contains copyrighted material, 

confidential business information (CBI), 

or other information whose disclosure is 

restricted by statue. Information claimed 

as CBI and other information whose 

disclosure is restricted by statute, will 

not be available for public viewing in 

EPA’s public docket. When EPA 

identifies a comment containing 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72331 

copyrighted material, EPA will provide 

a reference to that material, but not the 

material itself, in the version of the 

comments that is placed in EPA’s 

electronic public docket. The entire 

printed comment, including the 

copyrighted material, will be available 

in the printed public docket. Although 

not all docket materials may be 

available electronically, you may still 

access any of the publicly available 

docket material through the docket 

facility identified in this document. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to EPA’s electronic public 

docket. Hardcopy public comments that 

are mailed or delivered to the Docket 

will be scanned and placed in EPA’s 

electronic public docket. Where 

practical, physical objects will be 

photographed, and the photograph will 

be placed in EPA’s electronic public 

docket along with a brief description 

written by the docket staff. Tips for 

preparing your comments. You may 

submit comments electronically, by 

mail, by facsimile, or through hand 

delivery/courier. To ensure proper 

receipt by EPA, identify the appropriate 

docket identification number in the 

subject line on the first page of your 

comment. Please ensure that your 

comments are submitted within the 

specified comment period. Comments 

received after the close of the comment 

period will be marked late. The EPA is 

not required to consider these late 

comments. 

Our preferred method for receiving 

comments is electronically through EPA 

Dockets at http://www.epa.gov/edocket. 

The system is an anonymous access 

system, which means we will not know 

your identity, e-mail address, or other 

contact information unless you provide 

it in the body of your comment. 

In contrast to EPA’s electronic public 

docket, our e-mail system is not an 

anonymous access system. If you send 

an e-mail comment directly to the 

Docket without going through EPA’s 

electronic public docket, our e-mail 

system automatically captures your email address. E-mail addresses that are 

automatically captured by our e-mail 

system are included as part of the 

comment that is placed in the official 

public docket, and made available in 

EPA’s electronic public docket. 

If you submit an electronic comment, 

we recommend that you include your 

name, mailing address, and an e-mail 

address or other contact information in 

the body of your comment. Also include 

this contact information on the outside 

of any disk or CD–ROM you submit, and 

in any cover letter accompanying the 

disk or CD–ROM. This ensures that you 

can be identified as the submitter of the 

comment and allows EPA to contact you 

in case EPA cannot read your comment 

due to technical difficulties or needs 

further information on the substance of 

your comment. The EPA’s policy is that 

EPA will not edit your comment and 

any identifying or contact information 

provided in the body of a comment will 

be included as part of the comment that 

is placed in the official public docket, 

and made available in EPA’s electronic 

public docket. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Submitting comments containing CBI. 

Do not submit information that you 

consider to be CBI electronically 

through EDOCKET, regulations.gov, or 

e-mail. Send or deliver information 

identified as CBI only to the following 

address: OAQPS Document Control 

Office (C404–02), Attention: Keith 

Barnett, EPA, Research Triangle Park, 

NC 27711, Attention Docket ID No. 

OAR–2002–0051. You may claim 

information that you submit to EPA as 

CBI by marking any part or all of that 

information as CBI (if you submit CBI 

on disk or CD–ROM, mark the outside 

of the disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is CBI). Information so marked will not 

be disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

In addition to one complete version of 

the comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Worldwide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of today’s proposal will 

also be available through the WWW. 

Following the Administrator’s signature, 

a copy of this action will be posted on 

EPA’s Technology Transfer Network 

(TTN) policy and guidance page for 

newly proposed or promulgated rules at 

http://www.epa.gov/ttn/oarpg/. The 

TTN at EPA’s Web site provides 

information and technology exchange in 

various areas of air pollution control. 

Public Hearing. Persons interested in 

presenting oral testimony or inquiring 

as to whether a hearing is to be held 

should contact Ms. Janet Eck, EPA, 

Office of Air Quality Planning and 

Standards, Emission Standards 

Division, Coatings and Consumer 

Products Group (C539–03), Research 

Triangle Park, North Carolina 27711, 

telephone number (919) 541–7946, email address: eck.janet@epa.gov., at 

least 2 days in advance of the potential 

date of the public hearing. Persons 

interested in attending the public 

hearing must also call Ms. Eck to verify 

the time, date, and location of the 

hearing. The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning these proposed emission 

standards. 

Outline. The information presented in 

this preamble is organized as follows: 

I. Background 

II. Summary of the National Lime 

Association v. EPA Litigation 

III. EPA’s Proposed Response to the Remand 

A. Determination of MACT for Mercury 

Emissions 

B. Determination of MACT for HCl 

Emissions 

C. Determination of MACT for THC 

Emissions 

D. Evaluation of a Beyond-the-Floor 

Control Option for Non-Volatile HAP 

Metal Emissions 

IV. Other Issues on Which We are Seeking 

Comment 

V. Summary of Environmental, Energy, and 

Economic Impacts 

A. What facilities are affected by the 

proposed amendment? 

B. What are the air quality impacts? 

C. What are the water quality impacts? 

D. What are the solid waste impacts? 

E. What are the energy impacts? 

F. What are the cost impacts? 

G. What are the economic impacts? 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Analysis 

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 That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

I. Background 

Section 112(d) of the CAA requires 

EPA to set emissions standards for 

major stationary sources based on 

performance of the MACT. The MACT 

standards for existing sources must be at 

least as stringent as the average 

emissions limitation achieved by the 

best performing 12 percent of existing 

sources or the best performing five 

sources for source categories with less 

than 30 sources (CAA section 

112(d)(3)(A) and (B)). This level is 

called the MACT floor. For new sources, 

MACT standards must be at least as 

stringent as the control level achieved in 

practice by the best controlled similar 

72332 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

1Cement kilns which burn hazardous waste are 

in a separate class of source, since their emissions 

differ from portland cement kilns as a result of the 

hazardous waste inputs. Rules for hazardous wasteburning cement kilns are found at subpart EEE of 

part 63. 

2A new greenfield kiln is a kiln constructed prior 

to March 24, 1998 at a site where there are no 

existing kilns. 

source (CAA section 112(d)(3)). The 

EPA also must consider more stringent 

‘‘beyond-the-floor’’ control options. 

When considering beyond-the-floor 

options, EPA must consider not only the 

maximum degree of reduction in 

emissions of HAP, but must take into 

account costs, energy, and nonair 

environmental impacts when doing so. 

On June 14, 1999 (64 FR 31898), in 

accordance with these provisions, EPA 

published the final rule entitled 

‘‘National Emission Standards for 

Hazardous Air Pollutants From the 

Portland Cement Manufacturing 

Industry’’ (40 CFR part 63, subpart 

LLL).1

The legacy public docket for the final 

rule is Docket No. A–92–53. The final 

rule provides protection to the public by 

requiring portland cement 

manufacturing plants to meet emission 

standards reflecting the performance of 

the MACT. Specifically, the final rule 

established MACT-based emission 

limitations for particulate matter (as a 

surrogate for non-volatile HAP metals), 

dioxins/furans, and for greenfield 2 new 

sources, THC (as a surrogate for organic 

HAP). We considered, but did not 

establish limits for, THC for existing 

sources and HCl or mercury for new or 

existing sources. In response to the 

mandate of the District of Columbia 

Circuit arising from litigation 

summarized below in this preamble, we 

are proposing emission limitations 

reflecting MACT for these pollutants in 

today’s action. 

We have previously amended the 

Portland Cement NESHAP. Consistent 

with the terms of a settlement agreement 

between the American Portland Cement 

Alliance v. EPA, EPA adopted final 

amendments and clarifications to the 

rule on April 5, 2002 (76 FR 16614), July 

5, 2002 (67 FR 44766), and December 6, 

2002 (67 FR 72580). These amendments 

generally relate to applicability, 

performance testing, and monitoring. In 

today’s action, we are also proposing to 

further amend the rule to re-insert two 

paragraphs relating to the applicability 

of the portland cement new source 

performance standards that were 

deleted in error in a previous 

amendment. 

II. Summary of the National Lime 

Association v. EPA Litigation 

Following promulgation of the 

NESHAP for portland cement 

manufacturing, the National Lime 

Association and the Sierra Club filed 

petitions for review of the standards in 

the DC Circuit. The American Portland 

Cement Alliance, although not a party to 

the litigation, filed a brief with the court 

as amicus curiae. The court denied 

essentially all of the petition of the 

National Lime Association, but granted 

part of the Sierra Club petition. 

In National Lime Association v. EPA, 

233 F. 3d 625 (DC Cir. 2000), the court 

upheld EPA’s determination of MACT 

floors for particulate matter (PM) (as a 

surrogate for non-volatile HAP metals) 

and for dioxin/furan. However, the 

court rejected EPA’s determination that 

it need not determine MACT floors for 

the remaining HAP emitted by these 

sources, namely, mercury, other organic 

HAP (for which THC are a surrogate), 

and HC1 (233 F. 3d at 633). The court 

specifically rejected the argument that 

EPA was excused from establishing 

floor levels because no ‘‘technologybased pollution control devices’’ exist to 

control the HAP in question (Id. at 634). 

The court noted that EPA is also 

specifically obligated to consider other 

pollution-reducing measures including 

process changes, substitutions of 

materials inputs, or other modifications 

(Id.). The court remanded the rule to 

EPA to set MACT floor emission 

standards for HC1, mercury, and THC. 

The Sierra Club also challenged EPA’s 

decision not to set beyond-the-floor 

emission limits for mercury, THC, and 

non-volatile HAP metals (for which PM 

is a surrogate). The court only addressed 

the absence of beyond-the-floor 

emission limits for non-volatile HAP 

metals since EPA was already being 

required to reconsider MACT floor 

emission standards for mercury, THC, 

and HC1, and thus, by necessity, also 

must consider whether to adopt beyondthe-floor standards for these HAP. The 

Sierra Club argued, and the court 

agreed, that in considering beyond-thefloor standards for non-volatile HAP 

metals, EPA considered cost and energy 

requirements but did not consider 

nonair quality health and environmental 

impacts as required by the CAA (Id. at 

634–35). The court also found EPA’s 

analysis of beyond-the-floor standards 

deficient in its assertion that there were 

no data to support fuel switching 

(switching to natural gas) as a viable 

option of reducing emissions of nonvolatile HAP metals (Id. at 635). 

III. EPA’s Proposed Response to the 

Remand 

A. Determination of MACT for Mercury 

Emissions 

During development of the original 

NESHAP for portland cement 

manufacturing, we conducted MACT 

floor and beyond-the-floor analyses for 

kiln and in-line kiln/raw mill mercury 

emissions (63 FR 14182, March 24, 1998 

and 64 FR 31898, June 14, 1999). 

Although considered a metal HAP, 

mercury’s volatile nature precludes its 

control through application of typical 

PM controls such as fabric filters (FF) or 

electrostatic precipitators (ESP). At the 

time of the original rulemaking, we 

considered establishing an emission 

limit based on the use of activated 

carbon injection because a form of this 

control technology was demonstrated on 

medical waste incinerators and 

municipal waste combustors and was 

being used at one cement plant to 

reduce opacity from two non-hazardous 

waste (NHW) kilns. However, the 

placement of the carbon injection 

system ahead of the kiln PM control 

device (the configuration in use at these 

kilns) and the practice of recycling the 

cement kiln dust (CKD) collected by the 

PM control device back to the kiln, 

meant that the mercury was being 

revaporized and ultimately emitted to 

the atmosphere. Thus, the carbon 

injection systems alone did not control 

mercury emissions, and we concluded 

that carbon injection in this 

configuration could not be used as a 

basis for establishing a mercury 

emissions MACT floor for new or 

existing kilns (63 FR 14202, March 24, 

1999). Our conclusion that the single 

instance of an activated carbon injection 

system used at a portland cement plant, 

and the way in which it was used, could 

not provide the basis for a MACT floor 

was not contested by the petitioners. 

We also conducted a beyond-the-floor 

analysis of using activated carbon 

injection with an additional PM control 

device to reduce mercury emissions. 

Costs for the system would include the 

cost of the carbon injection system and 

an additional FF to collect the carbon 

separately from the CKD. Based on the 

low levels of mercury emissions from 

individual portland cement kilns, as 

well as the high cost per ton of mercury 

removed by the carbon injection/FF 

system, we determined that this beyondthe-floor option was not justified (63 FR 

14202, March 24, 1998). The petitioners 

also did not take issue with this 

conclusion. 

We did receive comments on the 

proposed NESHAP for portland cement 

manufacturing suggesting that fuel and/ 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72333 

or feed material switching or cleaning 

be considered as a means for reducing 

mercury emissions. In our response to 

these comments, we explained that feed 

and/or fossil-fuel switching or cleaning 

would be considered beyond-the-floor 

options. We also stated that we lacked 

data, and none were provided by the 

commenters, showing that such an 

option would consistently decrease 

mercury emissions. 

As directed in the court remand, we 

have reconsidered the issue of MACT 

floor standards for mercury. We still 

find that, for existing and new kilns, the 

MACT floor for mercury is no additional 

emissions reductions. 

We considered simply determining a 

floor based on the median of the 12 

percent of kilns demonstrating the 

lowest mercury emissions during a 

performance test. However, an 

emissions limit established by this 

method would reflect emission levels 

resulting from fuels/raw materials 

fortuitously available at the time of the 

performance test. These levels could not 

be replicated by the source conducting 

the test and could not be duplicated by 

other sources in the source category, 

unless they had access to the same fuels 

and raw materials available at the time 

of the emissions test (which of course, 

would never occur). Therefore, we 

could not demonstrate that any 

emission limit developed by this 

method would be achievable on a 

continuous basis without limiting 

sources to the same fuels and raw 

materials available during the 

performance test. 

We then examined the feasibility of 

using limits on the mercury content of 

the fuel and feed to the kiln. Mercury air 

emissions from portland cement 

manufacturing kilns originate from the 

feed materials (e.g., limestone, clay, 

shale, and sand, among others) and 

fossil fuels (e.g., coal, oil). In general, 

the amount of mercury emitted by a 

portland cement manufacturing kiln is 

proportional to the amount of mercury 

in the fuel and feed materials due to the 

volatile nature of mercury at the 

temperatures encountered in a cement 

kiln. 

Based on available data, the only feed 

material that contributes to mercury 

emissions is limestone, which is the 

main ingredient in portland cement 

production. The mercury content of 

limestone has been reported by the 

United States Geological Survey to 

range from 0.01 to 0.1 parts per million 

(ppm) and by the United States Bureau 

of Mines to range from 0.02 to 2.3 ppm. 

We considered setting an upper bound 

based on these data. However, we 

cannot say that these ranges actually 

cover the entire range of mercury a 

source could encounter over time. 

Therefore, we could not demonstrate 

that during a performance test a source 

could meet an emission limit set using 

these data. In other terms, we know of 

no way to quantify the variability of a 

cement kiln’s mercury emissions 

because of the constantly varying 

concentrations of mercury in raw 

material inputs. See Mossville 

Environmental Action Now v. EPA, 370 

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

must account for sources’ variability in 

establishing MACT floors). 

We also are not sure that a consistent 

source of low-mercury raw materials 

exists. We have no information to 

suggest the widespread availability of 

low-mercury limestone deposits. As 

with other trace materials in mineral 

deposits, mercury concentration varies 

widely between deposits as well as 

within deposits. 

Due to this variability, and the lack of 

data showing the general availability of 

low-mercury limestone, it is infeasible 

to set an emission limit (floor or 

otherwise) based on switching to lowmercury feed materials, or to establish 

some type of work practice mandating 

use of raw material with some specified 

properties relating to mercury. There are 

no data showing that a nationwide 

supply of low-mercury feed materials 

exists, and even if it did, the cost of 

shipping feed materials would preclude 

the use of this technique. Though costs 

may not be considered in determining a 

MACT floor, portland cement plants are 

typically located at or near a limestone 

quarry because the economics of the 

portland cement industry require 

minimal transportation costs. If we were 

to now require sources to ship raw low 

mercury limestone over potentially long 

distances to reduce mercury emissions, 

it would change the economics of the 

plant so significantly that the plant 

would not be the same class or type of 

source compared to facilities that 

happened to have low-mercury 

limestone located nearby (or, at least, 

had happened on a vein of low mercury 

limestone at the time of its performance 

test). Because limestone’s composition 

varies with location, limestone must be 

processed locally to be profitable, 

portland cement plants must formulate 

the mixture of limestone with other 

materials to attain the desired 

composition and performance 

characteristics of their product, and 

access to limestone is exclusive to each 

portland cement plant (i.e., no plant 

typically can gain access to another 

plant’s limestone). This exclusivity 

would preclude plants from mining 

from a common, low-mercury limestone 

quarry. In addition, we expect that even 

an individual cement kiln’s proprietary 

feed materials would experience 

significant mercury variability (i.e., 

within-quarry natural variability), so as 

mentioned previously, even the same 

kiln could not be expected to replicate 

its own mercury emissions results. 

We also evaluated the possibility of 

setting a mercury standard for greenfield 

new sources based on selection and 

blending of low-mercury raw materials, 

similar to the method we used to 

establish a greenfield limit on THC 

emissions based on the selection and 

blending of low-organic containing feed 

materials (63 FR 14202, March 24, 

1998). However, the situation for 

mercury is different from the situation 

for THC. In the case of THC, some 

facilities had already used the selection 

of low-organic feed materials as a 

control technique, indicating that this 

was a feasible technique and that access 

to suitable low-organic materials exists 

for greenfield sources. This is not the 

case for using the selection of a lowmercury feed material. Feed selection to 

control mercury has not been used in 

the portland cement industry, and we 

have found no data (nor has anyone 

supplied such data) to show that 

suitable low-mercury feed materials 

exist for greenfield sites (or for any other 

type of site). Metal concentrations in 

limestone (all metals, not just mercury) 

vary widely both within-quarry and 

quarry-to-quarry. Given this significant 

variation in concentration of metals in 

limestone for a given area, we believe it 

is implausible to assume the existence 

of any consistently low-mercury quarry 

sites. 

A secondary source of mercury 

emitted by portland cement kilns is 

coal, which portland cement plants 

burn as their primary fuel, with about 

90 percent of the total United States kiln 

capacity using coal, coke, or a 

combination of coal and coke as the 

primary fuel. The remainder use natural 

gas, oil, or some type of nonhazardous 

waste (such as tire derived fuel) as the 

primary fuel. The mercury content of 

coal ranges from 0.0 to 1.3 micrograms 

per gram (μg/g) with an average of 

approximately 0.09 μg/g. Using the 

mercury content of coal, coal 

requirements per ton of feed, heat input 

requirements, and the ratio of feed to 

clinker, we estimated the amount of 

mercury entering model kilns from coal 

and compared it with the total mercury 

input to kilns from feed materials. Based 

on average mercury concentrations of 

feed materials and coal, the largest 

contribution of mercury to kilns is from 

feed materials, which account for 

between 55 percent and 70 percent of 

72334 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

the mercury. Contributions of mercury 

from coal account for between 30 

percent (model precalciner kiln) and 45 

percent (model wet kiln) of the mercury 

input to kilns. 

We further examined the existence 

and availability of low-mercury coal. In 

1999, approximately 91 percent of the 

coal burned by the electric utility 

industry was bituminous and 

subbituminous coal types. Although 

bituminous and subbituminous coals 

are now believed to contain less 

mercury than lignite on a heating value 

basis, the variability in mercury across 

coal seams and within coal seams is too 

high to establish one coal type or 

selected deposit(s) as a designated lowmercury coal. Furthermore, mercury is 

not the only trace metal or potential 

HAP present in coal. When levels of 

mercury in coal are relatively low, 

concentrations of other HAP metals and 

other potential pollutants (such as 

chlorine, fluorine, and sulfur 

compounds) may be elevated. The 

availability of a low-mercury coal to the 

portland cement industry is even more 

questionable given the pre-existing 

supply and transportation relationship 

with electric utilities. For these reasons, 

EPA does not consider the use of a lowmercury coal by the portland cement 

industry a feasible practice, or that any 

standard based on such a practice 

would be achievable over time due to 

constant, uncontrollable variability. 

We also considered coal cleaning to 

reduce the mercury content of coal. 

However, we have determined that 

typical coal cleaning is effective for 

reducing mercury concentrations only 

in specific coals and, at this time, 

cannot be considered a mercury control 

technique for all coals. Advanced coal 

cleaning techniques are also being 

investigated for improved mercury 

removal potential. Like conventional 

cleaning techniques, the advanced 

cleaning techniques cannot be 

considered a mercury control technique 

for all coals at this time. (Study of 

Hazardous Air Pollutant Emissions from 

Electric Utility Steam Generating 

Units—Final Report to Congress, 

Volume 1, February 1998, pp. 13–36 

and 13–37). 

We also investigated reducing fuel 

mercury content by requiring facilities 

to switch to natural gas. Natural gas can 

contain trace amounts of mercury when 

fired, but the level is so low that 

mercury emissions due to natural gas 

combustion are essentially zero. 

Assuming complete conversion to 

natural gas, we estimated the quantity of 

natural gas that would be required to 

fuel the portland cement manufacturing 

industry. Annual clinker production for 

each of the four kiln types and average 

British thermal unit (Btu) requirements 

to produce a ton of clinker for each of 

the kiln types were used to project 

annual Btu’s needed if the portland 

cement industry switched completely to 

natural gas. Using an average heating 

value for natural gas of 1,000 Btu/cubic 

feet (cu. ft.), the annual clinker 

production by kiln type, and the average 

Btu requirements to produce a ton of 

clinker for each kiln type, we estimated 

the total nationwide natural gas 

requirement of the portland cement 

industry. Assuming a complete 

conversion to natural gas (as would be 

necessary if EPA were to adopt a 

standard reflecting mercury emission 

levels based on the use of natural gas), 

the portland cement industry would 

consume approximately 370 billion cu. 

ft. of natural gas annually or 1.6 percent 

of the total United States natural gas 

consumption (22.8 trillion cu. ft. in the 

year 2000) and 3.9 percent of total 

industrial natural gas consumption (9.6 

trillion cu. ft.). 

Although United States natural gas 

reserves would likely be adequate most 

of the time to handle a conversion by 

the portland cement manufacturing 

industry to 100 percent natural gas 

under normal conditions, supply is 

constrained by the number and 

production rate of United States wells, 

which is the source of most of the 

United States consumption of natural 

gas. Another obstacle to completely 

replacing coal with natural gas is the 

inadequacy of the existing natural gas 

infrastructure, including storage 

facilities, the pipeline distribution 

system, and compression facilities. 

Natural gas pipelines are relatively 

scarce in many United States areas 

compared to other utilities and are not 

available in all areas in which portland 

cement manufacturing plants are 

located. Even where pipelines provide 

access to natural gas, supplies of natural 

gas may not be adequate at all times. For 

example, it is common practice for 

industrial users to have interruptible 

contracts for natural gas. An 

interruptible contract means that the 

industrial users get the lowest priority 

for available gas during periods of peak 

demand, such as the winter months. 

For these reasons, reducing fuel 

mercury content by requiring kilns to 

switch to natural gas is not feasible on 

a national basis. We are unable to 

identify any other potential lowmercury fuel that could serve as the 

basis of a MACT floor for mercury. 

We also considered setting a floor 

based on a worst case scenario of 

mercury in the fuel and feed material 

combined. However, even a worst case 

estimate based on the available data 

would not ensure that a source could 

consistently meet the standard because 

there may be situations where a source 

has an excursion resulting from the 

inherent variability of the feed/fuel 

mercury content. We could provide an 

exception to the standard that would 

allow the source to exceed the limit by 

showing its raw materials or fuel 

contained more mercury than 

previously thought. However, the result 

of this approach would be that we 

would be setting a worse-case standard 

that is simply a bureaucratic exercise 

imposing costs (such as costs for 

permitting, monitoring, and 

recordkeeping) with no emissions 

reductions. 

We are aware that in specific cases, a 

source has been able to reduce 

emissions of mercury by making 

changes to some of their raw materials. 

Facilities that are already purchasing 

materials used as additives or a specific 

type of coal can make changes that 

reduce the total mercury input to the 

kiln. However, as previously discussed, 

these control techniques are site 

specific, and we do not believe they can 

be used as the basis of a national rule. 

We are also aware that some cement 

kilns purchase fly ash from utility 

boilers as an additive feedstock. There 

is concern that as a result of controlling 

mercury in utility boilers, the purchased 

fly ash may now have a higher mercury 

content than is the current norm. The 

result would be that mercury emissions 

reductions achieved by controlling 

utility boilers would be offset by the 

release of this previously controlled 

mercury in a cement kiln when the fly 

ash is used as an additive. At this time, 

we are uncertain if the use of fly ash 

from utility boilers that are controlling 

their mercury emissions will be 

significant. One possible solution would 

be to ban the use of fly ash from a utility 

boiler that is controlling mercury as an 

additive to cement kiln feed. We are 

specifically soliciting comment on a 

potential ban, or any other methods to 

address this issue. 

Thus, EPA has systematically 

evaluated all possible means of 

developing a quantified floor standard 

for mercury emissions from these 

sources, both emission control 

technology and front end feed and fuel 

control. (See National Lime, 233 F. 3d 

at 634 (finding that EPA had erred in 

examining only technological (i.e., backend) controls in considering a level for 

a mercury floor). We have also been 

unable to devise any type of work 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72335 

3 Indeed, most of the options EPA considered are 

really beyond-the-floor alternatives, because they 

reflect practices that differ from those now in use 

by any existing source (including the lowest 

emitters). (Coal switching, switching to natural gas, 

and raw material switching are examples.) In EPA’s 

view, a purported floor standard which forces every 

source in a category to change its practices is a 

beyond-the-floor standard. Such a standard may not 

be adopted unless EPA takes into account costs, 

energy, and nonair environmental impacts. 

4Although this language arose in the context of 

a potential beyond-the-floor standard, EPA believes 

that the principle stated is generally applicable. The 

MACT standards are technology-based, and if there 

is no technology (i.e., no available means) to 

achieve a standard, i.e., for a source to achieve a 

standard whenever it is tested (as the rules require), 

then the standard is not an achievable one. 

practice standard that would result in 

mercury emissions reductions.3

It has been argued, however, that 

when considering floor standards, the 

means of attaining those standards is 

legally irrelevant. All that matters, the 

argument goes, is what emission level 

was measured in a test result and that 

such a measurement, by definition, 

must be considered to have been 

achieved in practice. The National Lime 

Association and the subsequent Cement 

Kiln Recyclers Coalition v. EPA, 255 F. 

3d 855 (DC Cir. 2001) decisions are said 

to mandate this result. 

The EPA disagrees. EPA’s position is 

that ‘‘achieved in practice’’ means 

achievable over time, since sources are 

required to achieve the standards at all 

times. 70 FR at 59436 (Oct. 12, 2005). 

This position has strong support in the 

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

658, 665 (DC Cir. 1999); Mossville 

Environmental Action Now v. EPA, 370 

F. 3d 1232, 1242 (DC Cir. 2004). Here, 

as just shown, there are no standards 

which are consistently achievable over 

time because of sources’ inability to 

control inputs. 

Second, National Lime and CKRC did 

not involve facts where the levels of 

performance reflected in performance 

tests are pure happenstance 

(composition of HAP in raw materials 

and fossil fuel used the day the test was 

conducted), but cannot be replicated or 

duplicated. Put another way, these cases 

did not consider situations where means 

of control are infeasible and where no 

source can duplicate a quantified level 

of emissions due to uncontrollable 

variability of raw materials and fuels. 

Indeed, the court has rejected standards 

based on raw material substitution 

where this means of control is not 

feasible. (See Sierra Club v. EPA, 353 F. 

3d 976, 988 (DC Cir. 2004) 

(‘‘substitution of cleaner ore stocks was 

not * * * a feasible basis on which to 

set emission standards. Metallic 

impurity levels are variable and 

unpredictable both from mine to mine 

and within specific ore deposits, 

thereby precluding ore-switching as a 

predictable and consistent control 

strategy’’).4 Moreover, the court has 

made clear that since standards must be 

met continuously (i.e., any single test 

can be a violation of the standard), 

MACT standards (including floor 

standards) must reflect maximum daily 

variability a source can experience in 

operation, including variability 

associated with HAP concentrations in 

raw materials (Mossville Environmental 

Action Now v. EPA, 370 F. 3d at 1242.) 

Here, as discussed above, that level of 

variability is beyond the control of any 

source and thus, cannot be accounted 

for in a floor standard. 

It is argued further, however, that 

even if individual sources (including 

those in the pool of best performing 

sources) cannot reduce HAP 

concentrations in raw materials and 

fossil fuels, they may achieve the same 

reductions by adding back-end 

pollution control. Applied here, the 

argument would be that even though no 

sources (not even the lowest emitters in 

the individual performance tests) can 

use fossil fuel or raw material 

substitution to achieve emission levels 

for mercury, they could achieve those 

levels by installing some type of backend pollution control technology such 

as activated carbon. The thrust of this 

argument is essentially to impermissibly 

bypass the beyond-the-floor factors set 

out in CAA section 112(d)(2) under the 

guise of adopting a floor standard. (See 

note three above.) Suppose that EPA 

were to adopt a floor standard 

dominated by emission levels reflecting 

mercury concentrations present in a few 

sources’ raw materials and fossil fuels 

during their performance tests. Suppose 

further that no source in the data base 

can achieve that floor standard without 

adding considerable back-end control 

equipment (at great cost and great 

additional energy utilization) because 

test results based on fossil fuel and raw 

material levels are neither replicable nor 

duplicable. In this situation, we believe 

that we would have improperly adopted 

a beyond-the-floor standard. Because 

the standard is nominally a floor, we 

would not have considered the beyondthe-floor factors (cost, energy, and 

nonair impacts) set out in section 

112(d)(2) of the CAA. Yet the standard 

would force all sources, including those 

‘‘best performing sources’’ whose 

performance ostensibly is the basis for 

the floor, to retrofit with control devices 

not presently in use. We can take such 

action only if the standard is 

‘‘achievable’’ under section 112(d)(2), 

meaning justified after considering cost, 

energy, and nonair environmental 

impacts. 

We evaluated a mercury beyond-thefloor standard for new and existing 

cement kilns based on use of activated 

carbon injection (ACI) with an 

additional PM control device. The total 

capital cost of an ACI system is 

estimated to range from $761,000 to $5.5 

million per kiln. The total annual costs 

of an ACI system are estimated to range 

from $477,000 to $3.7 million per kiln. 

These costs include the carbon injection 

system and an additional baghouse 

necessary to collect the carbon 

separately from the CKD. The cost per 

ton of mercury reduction for ACI 

applied to cement kilns ranges from 

$22.4 million to $56 million. The use of 

ACI for mercury control could also 

result in a co-benefit of additional 

control of dioxins and furans. However, 

the current NESHAP for portland 

cement mandates stringent levels of 

dioxin emissions based on the floor 

level of control. Even if ACI further 

reduces dioxin emissions to zero, the 

cost would be in the range of $2 billion 

to $7 billion per pound. Therefore, we 

do not consider the dioxin emission 

reduction co-benefit to be significant. 

We also note that the application of 

ACI would generate additional solid 

waste and increase energy use. We 

estimate that the per kiln impacts would 

be 95 to 1,600 tons per year (tpy) of 

solid waste and 526,200 to 9.3 million 

kilowatt hours (kWhr) of electricity 

demand. 

Based on the relatively low levels of 

existing mercury emissions from 

individual NHW cement kilns, the high 

costs (on both a dollars-per-year and a 

dollars-per-ton basis) of reducing these 

emissions by ACI, and the negative 

nonair environmental impacts, we are 

proposing that this beyond-the-MACTfloor option for reducing mercury from 

new and existing NHW kilns is not 

justified. 

B. Determination of MACT for HCl 

Emissions 

In developing the 1999 Portland 

Cement NESHAP we concluded that no 

add-on air pollution controls were being 

used whose performance could be used 

as a basis for the MACT floor for 

existing portland cement plants. For 

new source MACT, we identified two 

kilns that were using alkaline scrubbers 

for the control of sulfur dioxide (SO2) 

emissions. But we concluded that 

because these devices were operated 

only intermittently, their performance 

could not be used as a basis for the 

MACT floor for new sources. Alkaline 

scrubbers were then considered for 

72336 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

5None of these four kilns burn hazardous waste. 

6As explained above, standards reflecting these 

control practices (which we do not believe are 

feasible) would be beyond-the-floor standards 

because they would force changes in practice by all 

sources in the category, even the lowest emitters in 

the performance tests. 

beyond-the-floor controls. Using 

engineering assessments from similar 

technology operated on municipal waste 

combustors and medical waste 

incinerators, we estimated costs and 

emissions reductions. Based on the 

costs of control and emissions 

reductions that would be achieved, we 

determined that beyond-the-floor 

controls were not warranted (63 FR 

14203, March 24, 1998). 

We reexamined establishing a floor 

for control of HCl emissions from new 

portland cement sources. Since 

promulgation of the NESHAP, wet or 

dry scrubbers have been installed and 

are operating at a minimum of four 

portland cement plants.5 Only one of 

the plants has conducted emissions tests 

for HCl using EPA Method 321 of 

appendix A to 40 CFR part 63. All of the 

test results for HCl were below the 

detection limits of 0.2 to 0.3 parts per 

million by volume (ppmv) for the 

measurement method. 

Based on the presence of 

continuously operated alkaline 

scrubbers at portland cement plants, we 

believe that the performance of 

continuously operated alkaline 

scrubbers represents MACT for new 

sources, but we do not have sufficient 

test data to set an emission level. As 

noted above, the one source tested had 

HCl emission levels below the detection 

limit. However, we do not have data for 

the inlet to the source’s scrubber. In 

some cases, HCl emissions from cement 

kilns with no add-on controls are below 

1 ppmv, but can also be above 40 ppmv. 

We cannot determine if the low outlet 

concentration at the one tested source is 

solely due to the performance of the 

control device, or to a low inlet 

concentration. Therefore, we cannot 

state that any new cement kiln can 

reduce HCl emissions to levels below 

detection. 

However, section 112(d)(3) of the 

CAA states that new source MACT may 

be based on the performance of the best 

controlled similar source. Alkaline 

scrubbers designed for control of SO2

routinely achieve a 90 percent reduction 

in SO2 emissions when applied to coalfired boilers. Alkaline scrubbers are 

known to be more effective in removing 

HCl than SO2. Therefore, it is reasonable 

to assume that an alkaline scrubber can 

achieve a 90 percent emission reduction 

of HCl if the inlet loadings are 

comparable to those seen on coal-fired 

boilers. However, it is also known that 

the removal efficiency of a scrubber can 

decrease as the inlet loading decreases. 

For this reason, we evaluated the 

performance of alkaline scrubbers 

applied to combustion of municipal 

solid waste, which has an HCl 

emissions loading more similar to a 

cement kiln than a coal-fired boiler. 

Based on an engineering assessment of 

HCl scrubbers used in municipal waste 

combustion applications and on vendor 

design information, we determined an 

alkaline scrubber could achieve a 15 

ppmv HCl outlet concentration at low 

HCl inlet loadings, or at least a 90 

percent HCl emissions reduction at HCl 

inlet loadings of 100 ppmv or greater. 

Therefore, we are proposing a new 

source MACT for HCl emissions of 15 

ppmv at the control device outlet, or a 

90 percent HCl emissions reduction 

measured across the scrubber. 

Note that we are not proposing to 

retroactively impose this requirement 

on currently operating new sources. It 

will only apply to new sources that 

commence construction after December 

2, 2005. Currently operating sources 

classified as new under the 1999 

Portland Cement NESHAP would be 

required to meet the same requirements 

as existing sources. 

This approach is legally permissible 

and reasonable. The underlying 

principle for having new sources meet 

stricter standards (in the case of new 

source MACT standards, standards 

reflecting the performance of the best 

controlled similar source) is that such 

sources are essentially starting from 

scratch and, therefore, can most 

efficiently utilize the best means of 

pollution control. They will not need to 

retrofit. Sources classified as new under 

the 1999 Portland Cement NESHAP are 

not in this position. They have already 

commenced construction (and most 

likely started operating) and so are not 

in the position of a source starting de 

novo. Consequently, the only new 

sources for purposes of the proposed 

amendments are those commencing 

construction or reconstruction after 

December 2, 2005. We note that the 

position taken here is consistent with 

that proposed (and recently finalized) 

for hazardous waste combustion 

sources. See 69 FR 21363, April 20, 

2004. 

In order to show compliance with the 

15 ppmv emission limit, we are 

proposing to require a performance test 

using one of the following EPA 

methods: 

(1) Method 26/26A of Appendix A to 

40 CFR part 60. Method 26A must be 

used when HCl could be associated with 

PM (for example, the association of HCl 

with water droplets emitted by sources 

controlled by a wet scrubber); otherwise 

you may use Method 26. 

(2) Method 320 or 321 of Appendix A 

to 40 CFR part 63. 

(3) ASTM Method D6735–01, 

Standard Test Method for Measurement 

of Gaseous Chlorides and Fluorides 

from Mineral Calcining Exhaust 

Sources—Impinger Method, provided 

that specific provisions in 40 CFR 

63.1349, paragraphs (b)(5)(iii)(A) 

through (F) are followed. These test 

methods are consistent with the HCl test 

methods used in similar standards. To 

determine compliance with the percent 

reduction requirement we are proposing 

to require the source to test at the 

scrubber inlet and outlet using one of 

the above methods and calculate a 

percent reduction based on the 

concentration difference (corrected to 7 

percent oxygen) divided by the inlet 

concentration and multiplied by 100. 

We also reexamined the MACT floor 

for existing sources. We first considered 

setting the floor based on the 

performance of an alkaline scrubber. 

However, because only four facilities 

currently have operating alkaline 

scrubbers, the performance of alkaline 

scrubbers would not be indicative of the 

median of the top 12 percent of the 

source category. Therefore, we 

examined other alternatives that might 

constitute a floor. Because HCl 

emissions originate from chlorine in 

feed and fuel materials, we considered 

the use of feed/fuel selection as a 

potential option to reduce the amount of 

chlorine entering the kiln. Under this 

option, low-chlorine fuel and/or feed 

materials would be used to lower HCl 

emissions from kilns. However, this 

option presents the same problems 

previously discussed for using lowmercury containing feed and fuels. We 

have no data indicating the widespread 

availability of low-chlorine deposits of 

feed, or whether such deposits even 

exist. As with other contaminants, 

concentrations are variable between 

deposits as well as within deposits. The 

result is that uniformly low-chlorine 

feed is not available on a widespread 

basis. Furthermore, there is no 

information that a low-chlorine deposit 

of feed materials is likely also to be low 

in mercury, other metal HAP, or organic 

HAP material. Such limitations and 

uncertainties make this an unrealistic 

option. We also considered the option of 

changing to a low-chlorine fuel, such as 

natural gas. This option was also 

determined to be infeasible due to limits 

on gas availability as previously 

discussed in the mercury MACT 

determination 6

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72337 

7Noncancer risk assessments typically use a 

metric called the Hazard Quotient (HQ) to assess 

risks of exposures to noncarcinogens. The HQ is the 

ratio of a receptor’s potential exposure (or modeled 

concentration) to the health reference value or 

threshold level (e.g., Reference Concentration) for 

an individual pollutant. The HQ values less than 

1.0 indicate that exposures are below the health 

reference value or threshold level and, therefore, 

such exposures are without appreciable risk of 

effects in the exposed population. HQ values above 

1.0 do not necessarily imply that adverse effects 

will occur, but that the likelihood of such effects 

in a given population increases as HQ values 

exceed 1.0. See http://www.epa.gov//ttn/atw/nata/ 

gloss1.html. 

Another control technique we 

considered was a work practice control 

based on the use of the kiln and PM 

control. Because the kiln and PM 

control system contain large amounts of 

alkaline CKD, the kilns themselves 

remove a significant amount of HCl 

(which reacts with the CKD and is 

captured as particulate). See 69 FR 

21259, April 20, 2004. We considered 

setting an emission limit based on 

reported kiln HCl emissions which 

reflects this natural scrubbing. However, 

this approach has some of the 

limitations previously discussed 

regarding establishing a floor for 

mercury. The HCl emissions at any one 

time are a function of the chlorine 

content of the feed materials and fuel. 

We could not state that the levels of HCl 

emissions from any one kiln could be 

duplicated by other kilns, or by the 

tested kiln on a continuous basis. We 

also have no data that would allow us 

to establish a typical percent reduction 

in HCl emissions resulting from the 

alkaline environment in the kiln. 

There are total HCl emissions 

reductions data for cement kilns that 

fire hazardous waste (a separate class of 

cement kiln, as noted earlier). These 

data indicate that 80 percent of the kilns 

achieve at least a 95 percent reduction 

in total chlorine emissions at the kiln 

outlet compared to the total chlorine in 

the feed material (69 FR 21259, April 

20, 2004). However, the hazardous 

waste being burned in the kiln has a 

significant amount of chlorine 

compared to the fuel and feed materials 

of a cement kiln that does not burn 

hazardous waste. As previously noted, 

the overall percent reduction of HCl 

goes down as the total amount of HCl 

present is reduced. Therefore, the 

percent reduction seen in kilns that 

burn hazardous waste is not applicable 

to kilns that do not fire hazardous 

waste. 

It is nonetheless clear that all cement 

kilns will reduce emissions of HCl due 

to the kilns’ alkaline operating 

conditions. We cannot measure the 

extent of emission reduction over time 

due to the types of variability just 

discussed. Because we cannot set a 

numeric emission limit and 

consequently cannot prescribe or 

enforce an emission standard within the 

meaning of section 112(h) of the CAA, 

we are proposing a floor for existing 

facilities as the work practice of 

operating the cement kiln under normal 

operating conditions and operating a 

particulate control device to capture 

HCl present in or adsorbed on the kiln 

particulate and have added this 

language in 40 CFR 63.1344. 

We are proposing to allow existing 

sources and new sources commencing 

construction before the publication date 

of the proposed amendments 1 year 

after publication of the final 

amendments to be in compliance with 

the amendment as proposed. The CAA 

requires compliance with MACT 

standards ‘‘as expeditiously as 

practicable,’’ and in virtually no case 

longer than 3 years after promulgation 

of the standard (CAA section 

112(i)(3)(A)). Because the proposed 

amendment does not require the 

installation of a control device, we do 

not believe a 3-year compliance date is 

the most expeditious compliance date. 

We considered proposing a compliance 

date as the date the rule amendment is 

promulgated as proposed. However, as 

discussed below, we are proposing a 

compliance date of 1 year after 

publication of the final amendments for 

the amended THC/carbon monoxide 

(CO) requirements. We believe it is more 

reasonable to have one compliance date 

for all the proposed rule amendments. 

We do not believe this decision will 

measurably change the environmental 

benefits of the HCl standard. 

We also evaluated requiring the use of 

an alkaline scrubber as a beyond-thefloor control option for existing sources. 

Based on the estimated performance, 

annual HCl emissions reductions 

estimates range from 12 tpy of HCl and 

27 tpy of SO2, to 200 tpy of HCl and 600 

tpy of SO2, per kiln. The total capital 

cost of installing an alkaline scrubber on 

an existing kiln is estimated to range 

from $1.1 to $5.1 million per kiln. The 

total annual cost is estimated to range 

from $336,000 to $1.7 million per kiln 

(Docket No. A–92–53). The cost per ton 

of HCl removed ranges from $8,500 to 

$28,000. In addition, the beyond-thefloor option would result in per-kiln 

nonair environmental impacts of 5,000 

to 84,100 tons of scrubber slurry for 

disposal, 4.7 to 107 million gallons of 

additional water usage, and increased 

electricity use of 219,300 to 2.4 million 

kWhr. We do not consider these costs 

and nonair environmental impacts 

reasonable for the emissions reductions 

achieved. 

We are proposing a format of volume 

per volume concentration for the 

emission limit. The specific units of the 

emission limit are ppmv (corrected to 7 

percent oxygen) or a percent reduction. 

These formats have historically been 

used by EPA for many air emission 

standards and are consistent with the 

format of the NESHAP for cement kilns 

that burn hazardous waste. The 

concentration is corrected to 7 percent 

oxygen to put concentrations measured 

in stacks with different oxygen 

concentrations on a common basis, and 

because the typical range of oxygen 

concentrations in cement kiln stack gas 

is from 5 to 10 percent oxygen, we 

consider 7 percent representative. The 

HCl concentration or percent reduction 

will be measured during an initial 

performance test and at least every 5 

years thereafter. During this test, you 

will establish scrubber operating 

parameters, including pH and liquid-togas ratio, and continuously monitor 

these parameters. 

The EPA also solicits comment on 

adopting alternative risk-based emission 

standards for HCl pursuant to section 

112(d)(4) of the CAA. Both existing and 

new portland cement sources could be 

eligible for such standards. The EPA is 

considering two possible approaches for 

establishing such standards. Alternative 

risk-based standards would be based on 

national exposure standards determined 

by EPA to ensure protection of public 

health with an ample margin of safety 

and that do not pose adverse 

environmental impacts. 

Under the first approach, dispersion 

modeling of representative worst-case 

sources (or, preferably, all sources) 

within the portland cement category 

would be conducted to establish a level 

for comparison with the risk-based 

national standards. This would be done 

by determining that the annual HCl 

emissions rate for a cement kiln’s 

emissions do not result in chronic 

human exposures which might exceed a 

Hazard Quotient (HQ) of 1.0.7

Also under this approach, the same 

risk-based national standards would be 

established for each source category. 

The EPA has proposed a substantially 

similar approach for HCl and total 

chlorine emissions from hazardous 

waste-burning cement kilns (see 

proposed CAA section 112(d) standards 

at 69 FR 21305, April 20, 2004), and 

adopted similar approaches (again for 

HCl) in CAA section 112(d) rules for 

lime kilns (69 FR 394, January 5, 2004) 

and pulp and paper facilities (66 FR 

3180, January 12, 2001). 

In determining the appropriate riskbased standard on a national basis, EPA 

72338 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

8Flat terrain is terrain that rises to a level not 

exceeding one half the stack height within a 

distance of 50 stack heights. Simple elevated terrain 

is terrain that rises to a level exceeding one half the 

stack height, but that does not exceed the stack 

height within a distance of 50 stack heights. 

would use the reference concentration 

(RfC) for HCl that is currently published 

in EPA’s Integrated Risk Information 

System as the denominator in the 

calculation of HQ mentioned in the 

previous paragraph. The RfC is defined 

as an estimate of a continuous 

inhalation exposure for a given duration 

to the human population (including 

susceptible subgroups) that is likely to 

be without an appreciable risk of 

adverse health effects over a lifetime. As 

such, HQ values at or below 1.0 should 

be considered to provide public health 

protection with an ample margin of 

safety and, thus, can be used to develop 

the national risk-based emission 

standards. Due to data limitations 

regarding the universe of cement kiln 

sources nationwide, EPA is not 

currently able to conduct a national 

analysis to determine if all cement kilns 

are emitting HCl at a rate that would 

meet the risk-based standards. However, 

EPA is prepared to evaluate 

documentation submitted in public 

comment. 

Under the second approach, the riskbased standards would be developed on 

a source-by-source basis, with sources 

choosing whether to seek an alternative 

risk-based limit. The risk-based 

standards would consist of a nationally 

applicable, uniform algorithm—again 

using the national exposure level for 

HCl just discussed. We would use this 

algorithm to establish site-specific 

emission limitations based on sitespecific input from each source 

choosing to use this approach. Such 

risk-based standards would provide a 

uniform level of risk reduction. The 

EPA proposed this approach for 

hazardous waste combustion sources 

(69 FR 21297, April 20, 2004) and 

adopted it for industrial boilers (69 FR 

55218, September 13, 2004). 

Sources would then calculate an HCl 

emission rate either by applying values 

from a look-up table provided by EPA, 

applicable to sources located in either 

flat or simple elevated terrain,8 or, if the 

source is located in a different type of 

terrain, conduct a site-specific 

compliance demonstration. Sources 

using look-up tables would have to use 

the stack height and stack diameter from 

their kiln and the distance between the 

stack and the property boundary. At this 

time, due to data limitations regarding 

the universe of cement kiln sources 

nationwide, EPA cannot develop lookup tables for this source category. 

However, EPA is prepared to evaluate 

any information submitted in public 

comment and, if appropriate, use it as 

the basis for developing such look-up 

tables. If EPA is unable to develop lookup tables for the final rule, only sitespecific risk assessments could be used 

as the basis for implementing this 

approach. For the site-specific 

demonstration, a source may use any 

scientifically accepted, peer-reviewed 

risk assessment methodology to 

calculate an annual average HCl 

emission rate limit. To determine that 

emission rate limit, the site-specific 

demonstration must: (1) Estimate longterm inhalation exposures through 

estimation of annual or multiyear 

average ambient concentrations; (2) 

estimate the inhalation exposure for the 

actual individual most exposed to the 

facility’s emissions from hazardous 

waste combustors, considering locations 

where people reside and where people 

congregate for work, school, or 

recreation; (3) use site-specific, qualityassured data wherever possible; (4) use 

health-protective default assumptions 

wherever site-specific data are not 

available, and (5) contain adequate 

documentation of the data and methods 

used for the assessment so that it is 

transparent and can be reproduced by 

an experienced risk assessor and 

emissions measurement expert. 

These eligibility demonstrations 

would then be reviewed and approved 

or disapproved by the permitting 

authority. Permitting procedures, 

compliance demonstration 

requirements, and subsequent 

compliance monitoring requirements 

would be established in a manner 

similar to the proposed approach for 

hazardous waste combusters (69 FR 

21302, April 20, 2004). 

C. Determination of MACT for THC 

Emissions 

During the development of the 1999 

Portland Cement NESHAP, EPA 

identified no add-on air pollution 

control technology being used in the 

portland cement industry whose 

performance could be used as a basis for 

establishing a MACT floor for 

controlling THC emissions (the 

surrogate for organic HAP) from existing 

sources. The EPA did identify two kilns 

using a system consisting of a 

precalciner (with no preheater), which 

essentially acts as an afterburner to 

combust organic material in the feed. 

The precalciner/no preheater system 

was considered a possible basis for a 

beyond-the-floor standard for existing 

kilns and as a possible basis for a MACT 

floor for new kilns. However, this 

system was found to increase fuel 

consumption relative to a preheater/ 

precalciner design, to emit six times as 

much SO2, two and one half times as 

much oxides of nitrogen (NOX), and 1.2 

times as much carbon dioxide (CO2) as 

a preheater/precalciner kiln of 

equivalent clinker capacity. Taking into 

account the adverse energy and 

environmental impacts, we determined 

that the precalciner/no preheater design 

did not represent MACT (63 FR 14202, 

March 24, 1998). We also considered 

feed material selection for existing 

sources as a MACT floor technology and 

concluded that this option is not 

available to existing kilns, or to new 

kilns located at existing plants because 

these facilities generally rely on existing 

raw material sources located close to the 

source due to the cost of transporting 

the required large quantities of feed 

materials. However, for new greenfield 

kilns, feed material selection as 

achieved through appropriate site 

selection and feed material blending is 

considered new source MACT (63 FR 

14202, March 24, 1998). 

We have reexamined MACT for THC 

for both new and existing facilities. 

Since the publication of the final 

NESHAP, we have promulgated 

standards for cement kilns that fire 

hazardous waste (40 CFR 63.1204(a)(5)) 

and proposed a revision to these 

standards (40 CFR 63.1220(a)(5)) (69 FR 

21379, April 20, 2004). We are 

proposing to incorporate the same 

standards in the Portland Cement 

NESHAP. The proposed standards are 

shown in the following table: 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72339 

TABLE 2.—PROPOSED THC/CO EMISSIONS LIMITS FOR CEMENT KILNS

Proposed emission limit 

ppmv THC 3 4 Averaging period 

Existing kiln ........................ No Alkali bypass 6 20 or 100 ppmv CO 1 ........ Hourly. 

w/bypass ........................... Main 5 ................................ No limit .............................. N/A. 

Alkali Bypass 6 .................. 10 or 100 ppmv CO 1 ........ Hourly. 

New kiln at an existing 

plant.

No Alkali Bypass 6 20 or 100 ppmv CO 1 ........ Hourly. 

w/bypass ........................... Main 5 ................................ No limit .............................. N/A. 

Alkali Bypass 6 .................. 10 or 100 ppmv CO 1 ........ Hourly. 

New kiln at greenfield facility.No Alkali Bypass 6 20 or (50 THC and 100 

ppmv CO) 2.

20 is hourly, 50 is monthly. 

w/bypass ........................... Main 5 ................................ 50 and ............................... Monthly. 

Alkali Bypass 6 .................. 10 or 100 ppmv CO 1 ........ Hourly. 

1Sources that choose to meet the hourly CO standard, must also meet the THC standard at performance test. 

2Sources that choose to meet the 50/100 standard, must also meet the 20 ppmv THC standard at performance test. 

3 ppmv means parts per million on a dry volume basis. 

4 Measured as propane and corrected to seven percent oxygen. 

5 Main kiln stack. 

6Alternately, a facility may meet the alkali bypass standard if they use a midkiln gas sampling system that diverts a sample of kiln gas that 

contains levels of carbon dioxide or hydrocarbons representative of levels in the kiln. 

Our rationale for applying these 

standards to cement kilns firing 

hazardous waste may be found 

beginning at 64 FR 52885, September 

30, 1999. Essentially, the THC and CO 

standards guarantee that the kiln will 

operate under good combustion 

conditions and will minimize formation 

(and hence, emissions) of organic HAP. 

We believe that the control of THC 

emissions from cement kilns which do 

not fire hazardous waste should be no 

more difficult to control than emissions 

for kilns that do fire hazardous waste 

because good combustion practices are 

maintainable by either type of kiln, and 

the hazardous waste cement kilns 

would be the more challenged in that 

regard. Therefore, cement kilns that do 

not fire hazardous waste should be able 

to achieve the same emission limits 

showing good combustion conditions as 

kilns that fire hazardous waste. Both 

types of kilns use the same feedstock 

materials and fossil fuels, and it would 

be expected that lack of any hazardous 

waste feed for a NHW cement kiln 

should make it easier to control the 

combustion process. Because we have 

no data upon which to set a different 

standard, and because these levels are 

indicative of good combustion in any 

case, the use of the standards for cement 

kilns firing hazardous waste is 

appropriate here. 

The proposed standards have 

different limits based on the sampling 

location. As noted above, the THC 

emission limits are based on good 

combustion practices. However, even 

with good combustion organic material 

in the limestone, feed material can be 

volatilized by the gases at the cold end 

of the kiln where feed is introduced, 

resulting in increased THC emissions. 

Therefore, measuring THC in the alkali 

bypass or at the midpoint of the kiln 

using a midkiln gas sampling system 

should result in a more accurate 

assessment of kiln combustion 

conditions. For this reason, we are 

proposing different standards if an 

alkali bypass or midkiln gas sampling 

system are available, and are requiring 

THC and CO measurements be made in 

the alkali bypass or midkiln gas 

sampling system, if available. 

We are proposing to use the term 

‘‘midkiln gas sampling system’’ to 

denote the situation where the source 

which does not have an alkali bypass 

can take a sample of kiln gas that is 

representative of the CO or THC levels 

in the kiln. We are allowing a midkiln 

gas sampling system to be used if 

present on the kiln. We are not aware 

of any NWH cement kiln that has a 

midkiln gas sampling system, but we are 

aware of one cement kiln that burns 

hazardous waste that does. If a facility 

does not have an alkali bypass or a 

midkiln gas sampling system, we are not 

requiring that one be installed. In this 

case, the facility should make THC or 

CO measurements in the main stack. 

However, we also do not preclude a 

facility from installing a midkiln gas 

sampling system if desired. 

The performance levels shown on the 

table above are for both new and 

existing sources (with the exception of 

new greenfield kilns, which have a 50 

ppmv standard measured in the main 

stack as discussed below). We believe 

that good combustion conditions are 

indicative of the performance of the 

median of the best performing 12 

percent of existing sources. We have no 

data to show that good combustion 

conditions in a new kiln result in any 

different level of performance than good 

combustion conditions in an existing 

kiln. 

The promulgated standards for 

cement kilns that fire hazardous waste 

also include a requirement that facilities 

electing to monitor CO in lieu of THC 

must also meet the THC emission level 

during a THC performance test. We are 

proposing to include this requirement in 

the Portland Cement NESHAP. The 

reason for this requirement is that there 

can be cases where low CO emissions 

may not be indicative of low THC 

emissions. The purpose of the THC 

performance test is to definitely 

establish that monitoring of CO for a 

specific facility will provide an accurate 

surrogate for THC, and so assure that 

good combustion conditions exist. We 

recognize for kilns with no alkali bypass 

or midkiln gas sampling system, there is 

a possibility that organic materials in 

the limestone feed could potentially 

result in high test results. However, we 

believe that for the short duration of a 

THC performance test, a facility could 

potentially use feed blending to 

minimize the contribution of the feed 

material. (Note that though we believe it 

is possible over the short term to obtain 

enough low organic feed material to 

pass a performance test, we do not 

believe it is possible to do so over the 

long term, except for greenfield kilns 

where the limestone feed mine can be 

sited with limestone organic materials 

content in mind.) However, the result of 

this requirement is that during 

performance tests, some facilities will 

be required to temporarily meet THC 

emission levels at the main stack that 

are below the new source floor for 

greenfield kilns of 50 ppmv. Therefore, 

we are specifically soliciting comment 

72340 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

on the necessity of retaining the 

requirement of a THC performance test 

when a facility elects to monitor CO and 

the achievability of the THC limits 

during testing, and further soliciting test 

data that may support other emissions 

levels. 

We are not proposing any change to 

the current THC requirement for new 

greenfield kilns of 50 ppmv measured in 

the main stack, because this 

requirement was not challenged. We are 

not reconsidering this requirement. 

However, we are including the 50 ppmv 

standard in the proposed rule language 

to provide a complete picture of the 

THC standards as a convenience to the 

reader. 

We are proposing that all of the THC/ 

CO standards in the table above be met 

on a continuous basis (based on an 

hourly average) and be monitored using 

a continuous emissions monitor (CEM). 

For sources electing to meet a THC 

standard, we are proposing to retain the 

requirement that the monitor meet 

performance specification 8A contained 

in appendix A of 40 CFR part 60 and to 

add the additional quality assurance 

requirements contained in procedure 1 

of appendix F to 40 CFR part 63. We are 

proposing that continuous monitors for 

CO must meet performance 

specification 4B contained in 40 CFR 

part 60 and adding the additional 

quality assurance requirements 

contained in procedure 1 of appendix F 

to 40 CFR part 63. These are the same 

performance specification requirements 

contained in the NESHAP for cement 

kilns that fire hazardous waste, and we 

consider these requirements to be 

appropriate for NHW kilns. If a facility 

elects to meet an alternative CO 

standard in lieu of a THC standard, we 

are proposing that they do not have to 

continuously monitor for THC, but must 

use EPA Method 25A in appendix A of 

40 CFR part 60 to demonstrate 

compliance with a THC standard every 

5 years during a performance test. 

We are proposing to allow existing 

sources and new sources commencing 

construction before the publication date 

of the proposed amendments 1 year 

after publication of the final 

amendments to be in compliance with 

the amendments as proposed. The CAA 

requires compliance with MACT 

standards ‘‘as expeditiously as 

practicable,’’ and in virtually no case 

longer than 3 years after promulgation 

of the standard (CAA section 

112(i)(3)(A)). Because the proposed 

standards do not require the installation 

of a control device, we do not believe 

a 3-year compliance date is the most 

expeditious compliance date. We 

believe 1 year is sufficient for a source 

to purchase, install, and test a 

monitoring system. However, we are 

specifically soliciting comment and 

supporting data on the proposed 

requirement. 

We also considered beyond-the-floor 

options for existing sources of 

substituting raw materials with lower 

organic contents. However, except for 

new greenfield kilns, we determined 

this beyond-the-floor option was not 

feasible. As previously discussed, 

facilities are limited to obtaining 

limestone (which contains the majority 

of the organic material that contributes 

to THC emissions) from a co-located or 

a nearby mine. It is not possible to set 

a national standard based on the 

assumption that all affected sources will 

have access to limestone with low 

organic content. In the case of a 

greenfield facility, this is not the case 

because the mine site can be selected 

with the limestone organic content as a 

criterion. As noted at proposal of the 

Portland Cement NESHAP, selection of 

sites with low organic content limestone 

has been used for at least two existing 

sites (63 FR 14202, March 24, 1998). 

However, this option is limited to new 

kilns at greenfield facilities. 

At proposal of the Portland Cement 

NESHAP, we considered the use of a 

precalciner/no preheater system as the 

basis for new source MACT and the 

basis for a beyond-the-floor option for 

existing sources. However, due to the 

adverse energy impacts and secondary 

air impacts, this option was determined 

not to represent best control for new 

sources or an acceptable beyond-thefloor alternative for existing sources (63 

FR 14202, March 24, 1998). 

For the THC emission standard, we 

proposed to retain the volume per 

volume concentration emission limit 

format. The specific units of the 

emission limit are ppmv (as propane, 

corrected to 7 percent oxygen). This 

emission limit format has historically 

been used by EPA for many air emission 

standards. This format is consistent 

with the format of the NESHAP for 

cement kilns that burn hazardous waste. 

The concentration is corrected to 7 

percent oxygen to put concentrations 

measured in stacks with different 

oxygen concentrations on a common 

basis, and because the typical range of 

oxygen concentrations in cement kiln 

stack gas is from 5 to 10 percent oxygen, 

we consider 7 percent representative. 

The THC or CO concentration can be 

monitored directly with the CEM 

required by the proposed standard. The 

reference or calibration gas for the CEM 

is propane, and the THC data analyzed 

in the development of the proposed 

standard were referenced to propane. 

Therefore, propane is the appropriate 

reference compound for concentration 

data. 

For the 10 and 20 ppmv THC and 100 

ppmv CO limits, we are proposing to 

demonstrate compliance using a CEM 

and a 1-hour averaging period. If a 

facility elects to continuously monitor 

CO, we are proposing to require that the 

source also meet the THC limit during 

a 3-hour performance test using EPA 

Method 25A. The reason for the THC 

performance test requirement is to 

ensure that monitoring CO will be 

representative of low THC emissions 

(and hence, good combustion 

conditions, as explained earlier). We are 

proposing to retain the 1-hour averaging 

period specified in the NESHAP for 

cement kilns that burn hazardous waste. 

D. Evaluation of a Beyond-the-Floor 

Control Option for Non-Volatile HAP 

Metal Emissions 

In our MACT determination for PM 

(the surrogate for non-volatile HAP 

metals), we concluded that welldesigned and properly operated FF or 

ESP designed to meet the new source 

performance standards (NSPS) for 

portland cement plants represent the 

MACT floor technology for control of 

PM from kilns and in-line kiln/raw 

mills. Because no technologies were 

identified for existing or new kilns that 

would consistently achieve lower 

emissions than the NSPS, EPA 

concluded that there was no beyondthe-floor technology for PM emissions 

(63 FR 14199, March 24, 1998). 

In National Lime Association v. EPA, 

the court held that EPA had failed to 

adequately document that substituting 

natural gas for coal was an infeasible 

control option, and also had not 

assessed nonair environmental impacts 

when considering beyond-the-floor 

standards for HAP metals (233 F. 3d at 

634–35). As a result, the court remanded 

the beyond-the-floor determination for 

HAP metals for further consideration by 

EPA. 

In our reexamination of a beyond-thefloor MACT control standard for HAP 

metals, we considered both fuel 

switching and changing to feed 

materials with a lower metals content. 

Both of these options suffer from the 

problems previously discussed for using 

low-mercury fuels/feed materials to 

reduce mercury emissions. These 

problems are that low-metals fuels and 

feed are not universally available (Sierra 

Club v. EPA, 353 F. 3d at 988 

(substitution of alternative raw materials 

not feasible, so ‘‘EPA reasonably refused 

to set beyond-the-floor standards * * * 

based on a requirement that smelters 

switch’’ raw materials)). In addition, we 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72341 

determined that even if low-metals fuel/ 

feeds were available, the cost of 

requiring sources to use them would be 

unreasonable, indeed prohibitive. More 

detailed information on this analysis 

may be found in the docket for the 

proposed amendments. Because the cost 

of this beyond-the-floor is prohibitive, 

we did not perform a detailed analysis 

of the nonair environmental impacts. 

There should be no water quality 

impacts for this option since no 

additional water is needed. Any effects 

on solid waste generation would be 

expected to be minimal because the 

same amount of CKD would be 

generated. Likewise, energy 

implications are minimal because the 

same amount of energy use would 

occur. Nonetheless, for reasons of the 

high costs relative to the potential 

emissions reductions, EPA is not 

proposing a beyond-the-floor standard 

based on material or fuel substitution, 

even if this were a feasible alternative. 

IV. Other Issues on Which We Are 

Seeking Comment 

On April 5, 2002, we amended the 

introductory text of 40 CFR 63.1353(a) 

to make it more clear that affected 

sources under the Portland Cement 

NESHAP were not subject to 40 CFR 

part 60, subpart F (67 FR 16615, April 

20, 2002). In making this change, we 

inadvertently deleted paragraphs (a)(1) 

and (2) of 40 CFR 63.1353. The language 

in these paragraphs is still necessary for 

determining the applicability of 40 CFR 

part 60, subpart F. We are proposing to 

reinstate these paragraphs as originally 

written in the final rule. 

On April 5, 2002, we also amended 40 

CFR 63.1340(c) to read as follows: 

For portland cement plants with on-site 

nonmetallic mineral processing facilities, the 

first affected source in the sequence of 

materials handling operations subject to this 

subpart is the raw material storage, which is 

just prior to the raw mill. Any equipment of 

the on-site nonmetallic mineral processing 

plant which precedes the raw material 

storage is not subject to this subpart. In 

addition, the primary and secondary crushers 

of the on-site nonmetallic mineral processing 

plant, regardless of whether they precede the 

raw material storage, are not subject to this 

subpart. Furthermore, the first conveyor 

transfer point subject to this subpart is the 

transfer point associated with the conveyor 

transferring material from the raw material 

storage to the raw mill. 

This amendment implemented part of 

a settlement agreement between EPA 

and the Portland Cement Association 

(PCA), which was signed September 7, 

2001. However, the PCA has since 

brought to our attention what they 

considered to be a misinterpretation of 

the amended rule text for a specific 

facility in Pennsylvania. The facility in 

question has a limestone raw materials 

storage area followed by conveyers and 

other raw materials storage, all of which 

feed into a bin labeled ‘‘raw mill feed 

bin.’’ The PCA claimed that the raw mill 

feed bin was the first point subject to 

the Portland Cement NESHAP, not the 

limestone raw materials storage area. 

We had interpreted the first point 

subject to the Portland Cement NESHAP 

as the limestone raw materials storage 

area. The PCA based their claim on the 

specific rule text ‘‘raw material storage, 

which is just prior to the raw mill’’ and 

the use of the term, ‘‘the first conveyor 

transfer point subject to this subpart,’’

rather than the term ‘‘conveyers.’’ They 

noted that the raw mill feed bin met the 

definition of raw material storage 

because it contained raw material, was 

‘‘just prior’’ to the raw mill, and there 

was only one conveyer between the raw 

mill feed bin and the raw mill. The PCA 

also stated that during the negotiation, 

they had made it clear that this was the 

proper interpretation of this language. 

In an effort to resolve this issue, we 

first reviewed the documentation 

leading up to the settlement agreement. 

In a letter dated December 27, 1999, the 

PCA’s counsel wrote ‘‘the final rule 

applies to sources with on-site 

nonmetallic mineral processing 

facilities for which the secondary 

crusher is located in the sequence of 

materials handling operation at a point 

after the first transfer point associated 

with the conveyer transferring material 

from raw material storage to the raw 

mill’’ (docket No. A–92–53). He noted 

that these sources ‘‘are required to 

comply with the standards under NSPS, 

40 CFR part 60, subpart OOO, for 

nonmetallic mineral processing 

operations.’’ In the last version of the 

settlement agreement, the section 

concerning the revised rule language 

discussed above was titled 

‘‘applicability of the final rule to 

crushers.’’ Based on these documents, 

we do not see any written evidence that 

the rule language had any purpose other 

than to clarify that secondary crushers 

were not subject to the Portland Cement 

NESHAP. 

In addition, we believe the PCA 

interpretation is not reasonable when 

reading the entire final NESHAP. The 

paragraph also states that ‘‘In addition, 

the primary and secondary crushers of 

the on-site nonmetallic mineral 

processing plant, regardless of whether 

they precede the raw material storage, 

are not subject to this subpart.’’ If a 

facility has a crusher after raw material 

storage, then the raw material storage is 

not ‘‘just prior’’ to the raw mill based on 

the PCA interpretation of the meaning of 

‘‘just prior.’’ In addition, there cannot be 

just one ‘‘conveyer,’’ there are two—the 

conveyer between raw material storage 

and the crusher, and a conveyer 

between the crusher and the raw mill. 

Given these facts, we believe that the 

rule language as written is open to more 

than one interpretation. 

In our review, we also observed that 

the original Portland Cement NSPS were 

promulgated in 1971. At that time, we 

established the portland cement source 

category to include raw materials 

storage. We interpret this to mean any 

storage that would be required by a 

typical cement plant, regardless of any 

co-located nonmetallic minerals 

operation. In 1985, we promulgated the 

Nonmetallic Minerals Operations NSPS. 

In order to avoid potential overlap, we 

specifically stated in 40 CFR 60.670 that 

a source subject to the Portland Cement 

NSPS was not subject to the 

Nonmetallic Minerals Operations NSPS. 

We further stated that once any 

emission point source became subject to 

the Portland Cement NSPS, all emission 

point sources that follow in the process 

are exempt from the Nonmetallic 

Minerals Operations NSPS. The CAA 

specifically states that, if possible, the 

NSPS and NESHAP source categories 

should be the same (section 112(c)(1)). 

Based on that requirement, we believe 

we should continue to include any raw 

materials emissions source that would 

be potentially subject to the Portland 

Cement NSPS as an affected source 

under the Portland Cement NESHAP. 

As an example, if we were to accept 

the PCA interpretation, two storage bins 

at the facility in question, which have 

no connection with the nonmetallic 

minerals operation, but are obviously 

part of the portland cement plant, 

would not be covered by the Portland 

Cement NESHAP, only because a 

nonmetallic minerals operation was 

present at the same plant site. We do not 

believe that this result is sensible. 

We believe it is important to continue 

to cover all raw materials storage and 

handling points under the Portland 

Cement NESHAP, the source category to 

which these raw material storage 

operations relate. Though these points 

may not be the majority of the emission 

inventory at a particular facility, they 

could, in specific situations, contribute 

significantly to a facility’s fugitive PM 

emissions. We note that the actual rule 

requirements are mainly for EPA 

Method 22 of 40 CFR part 60, appendix 

A, reporting and recordkeeping. 

Facilities already have to perform daily 

EPA Method 22 observations on certain 

equipment. We believe that the further 

requirement to make monthly to annual 

observations of visible emissions from 

72342 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

materials handling points imposes a 

minor burden and contributes 

significantly to reducing fugitive dust 

problems that may occur at these types 

of facilities. 

We are soliciting comment on the best 

resolution of this issue. We are 

considering (but are not limiting 

ourselves to) the following options: 

(1) Changing the wording of 40 CFR 

63.1340(c) to make it clear that all raw 

materials storage and handling is 

covered by the NESHAP, but that 

crushers (regardless of their location) 

are not. 

(2) Including crushers as an affected 

source in the Portland Cement NESHAP 

and incorporating the current 

requirements applicable to crushers 

contained in 40 CFR part 60, subpart 

OOO (and correspondingly, exempting 

crushers covered by the Portland 

Cement NESHAP from 40 CFR part 60, 

subpart OOO). 

V. Summary of Environmental, Energy, 

and Economic Impacts 

A. What Facilities Are Affected by the 

Proposed Amendments? 

We estimate that there are 

approximately 118 cement plants 

currently in operation. These 118 plants 

have a total of 210 cement kilns. We 

estimate that five new kilns will be 

subject to the proposed amendments by 

the end of the 5th year after 

promulgation of the amendments. We 

assumed that all new kilns would be at 

brownfield sites, because this 

assumption avoids an underestimation 

of costs for THC monitoring. 

B. What Are the Air Quality Impacts? 

The variation in hydrocarbon 

emissions from kilns makes it difficult 

to quantify impacts on a national basis 

with any accuracy. Reported 

hydrocarbon emission test results range 

from less than 1 ppmv dry basis (at 7 

percent oxygen) to over 140 ppmv dry 

basis (Docket A–92–53) measured at the 

main kiln 

For 52 kilns tested for hydrocarbon 

emissions (Docket A–92–53), 

approximately 25 percent had emissions 

of hydrocarbons that exceeded the 

proposed 20 ppmv THC limit at the 

main stack. The average hydrocarbon 

emissions for the kilns exceeding 20 

ppmv was 62.5 ppmv. Based on a model 

kiln producing 650,000 tpy of clinker, 

emissions reductions as a result of the 

standard would vary depending on the 

combustion practices in use. Kilns 

operating at or just above the 20 ppmv 

main stack limit would experience little 

or no emissions reductions as a result of 

the proposed emissions limits. For an 

existing kiln exceeding the proposed 20 

ppmv emissions limit and currently 

emitting near the average hydrocarbon 

level of 62.5 ppmv, the improvement in 

combustion practices would result in a 

reduction of about 141 tpy for a 650,000 

tpy kiln. A kiln with poor combustion 

practices and emitting at the highest 

reported hydrocarbon level of 142 ppmv 

would experience emissions reductions 

of over 403 tpy. 

The proposed HCl emissions limits 

are based on current operation practices, 

and we are not able to quantify 

emissions reductions for existing 

sources. For new sources for which we 

are proposing a quantified standard, we 

estimate the emissions reductions for a 

typical new kiln to be 107 tpy per kiln. 

Based on five new kilns becoming 

subject to the final NESHAP, the 

emissions reductions will be 535 tpy of 

HCl in 5 years. 

The proposed HCl standards for new 

sources will also result in concurrent 

control of SO2 emissions. The SO2

emissions reductions for a typical new 

kiln will be 322 tpy. The emissions 

reductions 5 years after promulgation of 

the final standards will be 1,610 tpy. 

Note that we have determined that 

reducing SO2 emissions also results in 

a reduction in fine particle emissions 

because some SO2 is converted to 

sulfates in the atmosphere. Therefore, 

the proposed HCl standards will also 

result in a reduction in emissions of fine 

PM. 

In addition to the direct air emissions 

impacts, there will be secondary air 

impacts that result in the increased 

electrical demand generated by new 

sources’ control equipment. These 

emissions will be an increase in 

emissions of pollutants from utility 

boilers that supply electricity to the 

portland cement facilities. We estimate 

these increases to be 11 tpy of NOX, 6 

tpy of CO, 19 tpy of SO2, and 0.55 tpy 

of PM at the end of the 5th year after 

promulgation. 

C. What Are the Water Quality Impacts? 

There should be no water quality 

impacts for the proposed amendments. 

The requirement for new sources to use 

alkaline scrubbers to control HCl will 

produce a scrubber slurry liquid waste 

stream. However, we are assuming the 

scrubber slurry produced will be 

dewatered and disposed of as solid 

waste. Water from the dewatering 

process will be recycled back to the 

scrubber. 

D. What Are the Solid Waste Impacts? 

The only solid waste impact will be 

the generation of scrubber slurry that is 

assumed to be dewatered and disposed 

of as solid waste. The amount of solid 

waste produced is estimated as 228,000 

tpy in the 5th year after promulgation of 

the amendments. 

E. What Are the Energy Impacts? 

Requiring new kilns to install and 

operate alkaline scrubbers will result in 

increased energy use due to the 

electrical requirements for the scrubber 

and increased fan pressure drops. We 

estimate the additional electrical 

demand to be 4.9 million kWhr per year 

by the end of the 5th year. 

F. What Are the Cost Impacts? 

The proposed rule amendments 

would require all existing sources (area 

and major) to install and operate 

monitors (if not already present) and 

perform performance tests. In our cost 

analysis, we assumed that all existing 

facilities would elect to meet the 

alternative CO emission limits. 

Therefore, the impacts include the costs 

to install and operate a CO monitor and 

the cost for a performance test to 

measure THC every 5 years. We 

estimated a range of annualized capital 

costs based on 3 percent and 7 percent 

social discount factors. 

The total capital cost for existing 

sources is estimated to be $159,545 per 

kiln (2003 dollars), and $33.5 million 

nationally, based on 210 operating kilns. 

The total annualized cost per kiln is 

estimated to range from $37,500 to 

$41,700 depending on the discount 

factor. Total national annualized costs 

are estimated to range from $7.9 million 

to $8.8 million. 

The cost estimates above assume all 

kilns will have to install a CO monitor. 

This assumption may significantly 

overestimate the costs because CO 

monitors may already be installed at 

some existing kilns, either as a 

requirement under a State permit or as 

a means of optimizing combustion 

control. In addition, the estimates above 

do not take into account any reduced 

fuel costs resulting from improved 

combustion management. 

The costs for new sources include the 

CO monitor, an alkaline wet scrubber, 

and THC and performance tests. The 

total capital cost per kiln is estimated to 

be $2.3 million. The cumulative capital 

cost in the fifth year is estimated to be 

$11.5 million. The estimated total 

annualized cost per new kiln will range 

from $741,300 to $800,800. National 

annualized costs will range from $3.7 

million to $4.0 million. 

G. What Are the Economic Impacts? 

The EPA conducted an economic 

analysis of the proposed amendments to 

the NESHAP which have cost 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72343 

implications. These are the 

requirements to test for THC and 

monitor for THC or CO for new and 

existing kilns or in-line raw mill/kilns, 

and the cost to install and operate a wet 

scrubbing system for new kilns or inline raw mill/kilns. The EPA assessed 

earlier portland cement regulations with 

greater per source costs, and those costs 

did not have a significant effect on the 

cost of goods produced. Since the 

conditions that produced those 

conclusions still exist today, EPA 

asserts these new regulations will not 

have a discernible impact on the 

portland cement market. 

We note that the highest cost per kiln 

resulting from the proposed 

amendments will be the cost of alkaline 

scrubbers for new kilns. This additional 

requirement represents less than 1.5 

percent of the expected revenue stream 

for a typical new kiln. We do not 

consider this to be economically 

significant. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’ and, therefore, subject to 

Office of Management and Budget 

(OMB) review and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way, the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

It has been determined that the 

proposed amendments are not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 and 

is, therefore, not subject to OMB review. 

B. Paperwork Reduction Act 

The information collection 

requirements in the existing rule were 

submitted to and approved by OMB 

under the Paperwork Reduction Act, 44 

U.S.C. 3501, et seq., and assigned OMB 

control No. 2060–0416. An Information 

Collection Request (ICR) document was 

prepared by EPA (ICR No. 1801.02) and 

a copy may be obtained from Susan 

Auby by mail at Office of Environmental 

Information, Collection Strategies 

Division (2822T), U.S. EPA, 1200 

Pennsylvania Avenue, NW., Washington 

DC 20460, by e-mail at 

auby.susan@epa.gov, or by calling (202) 

566–1672. A copy may also be 

downloaded from the Internet at 

http://www.epa.gov/icr. 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 1801.05. 

The information requirements are 

based on notification, recordkeeping, 

and reporting requirements in the 

NESHAP General Provisions (40 CFR 

part 63, subpart A), which are 

mandatory for all operators subject to 

national emission standards. These 

recordkeeping and reporting 

requirements are specifically authorized 

by section 114 of the CAA (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. 

These requirements include 

installation of a continuous monitor at 

all existing sources and a performance 

test to measure THC, and the 

requirement for new sources to a 

performance test to measure HC. We 

expect these additional requirements to 

affect 118 facilities over the first 3 years. 

The estimated annual average burden is 

outlined below. 

Affected entity Total hours Labor costs Total annual 

O&M costs Total costs 

Industry ............................................................................................................ 15,413 $983,325 $791,800 $2,500,000 

Implementing Agency ...................................................................................... 502 30,037 NA 48,037 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

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 EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, including the use of 

automated collection techniques, EPA 

has established a public docket for the 

proposed amendments, which includes 

this ICR, under Docket ID No. OAR–

2002–0051. Submit any comments 

related to the ICR for the proposed 

amendments to EPA and OMB. See 

ADDRESSES section at the beginning of 

this notice for where to submit 

comments to EPA. Send comments to 

OMB at the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after December 2, 2005, a comment 

to OMB is best assured of having its full 

effect if OMB receives it by January 3, 

2006. The final rule will respond to any 

OMB or public comments on the 

information collection requirements 

contained in the proposed amendments. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

72344 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

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 today’s proposed rule amendments 

on small entities, small entity is defined 

as: (1) A small business that has fewer 

than 750 employees; (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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule 

amendments on small entities, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

The small entities directly regulated by 

the proposed rule amendments are 

small businesses. We determined there 

are six or seven small businesses in this 

industry out of a total of 44. Each small 

business operates a single plant with 

one or more kilns. The total annualized 

cost per kiln is estimated to range from 

$37,500 to $41,700 depending on the 

discount factor. The revenue for the 

entire small business sector is estimated 

to be around $260 million (2003 

dollars). The compliance cost is 

estimated to be less than 0.3 percent of 

small business revenue. For new 

sources, which will incur higher costs 

because new kilns must install alkaline 

scrubbers for control of HC1 emissions, 

the cost of control is estimated to be less 

than 1.5 percent of the expected revenue 

from a new kiln. We currently do not 

have any information on plans for small 

businesses to build new kilns. 

Although the proposed rule 

amendments will not have a significant 

economic impact on a substantial 

number of small entities, EPA 

nonetheless has tried to reduce the 

impact of the proposed amendments on 

small entities. The proposed emission 

standards are representative of the floor 

level of emissions control, which is the 

minimum level of control allowed 

under the CAA. Further, the costs of 

required performance testing and 

monitoring have been minimized by 

specifying emissions limits and 

monitoring parameters in terms of 

surrogates for HAP emissions, which are 

less costly to measure. The EPA is also 

allowing affected firms up to 1 year 

from the effective date of the final rule 

amendments to comply, which could 

lessen capital availability concerns. 

We continue to be interested in the 

potential impacts of the proposed rule 

amendments on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any 1 year. Before 

promulgating a rule for which a written 

statement is needed, section 205 of the 

UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective, or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA has determined that the 

proposed rule amendments do 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 1 year, nor do the 

amendments significantly or uniquely 

impact small governments, because they 

contain no requirements that apply to 

such governments or impose obligations 

upon them. Thus, today’s proposed rule 

amendments are not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

E. Executive Order 13132, Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that 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.’’

The proposed rule amendments do 

not have federalism implications. The 

proposed rule amendments 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, because State 

and local governments do not own or 

operate any sources that would be 

subject to the proposed rule 

amendments. Thus, Executive Order 

13132 does not apply to the proposed 

rule amendments. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on the 

proposed rule amendments from State 

and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ The proposed rule 

amendments do not have tribal 

implications, as specified in Executive 

Order 13175, because tribal 

governments do not own or operate any 

sources subject to today’s action. Thus, 

Executive Order 13175 does not apply 

to the proposed rule amendments. 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72345 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that are based on 

health or safety risks, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the rule. The proposed rule 

amendments are not subject to 

Executive Order 13045 because they are 

based on technology performance and 

not on health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy, Supply, 

Distribution, or Use 

The proposed rule amendments are 

not subject to Executive Order 13211 (66 

FR 28355, May 22, 2001) because they 

are not a significant regulatory action 

under Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA) of 1995, Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. The VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable VCS. 

The proposed rule amendments 

involve technical standards. The EPA 

proposes to cite Method 25A of 40 CFR 

part 60, appendix A; Performance 

Specification (PS) 4B of 40 CFR part 60, 

appendix B; and ASTM Method D6735–

01 (as an alternative to EPA Methods 

26/26A, 320, and 321). 

Consistent with the NTTAA, EPA 

conducted searches to identify VCS in 

addition to these EPA methods. No 

applicable VCS were identified for PS 

4B and ASTM Method D6735–01. 

The standard ASTM D6735–01, 

‘‘Standard Test Method for 

Measurement of Gaseous Chlorides and 

Fluorides from Mineral Calcining 

Exhaust Sources—Impinger Method,’’ is 

cited as an acceptable alternative to EPA 

Method 320 to measure hydrogen 

chloride emissions from mineral 

calcining exhaust sources for the 

purposes of the final NESHAP, provided 

that the additional requirements 

described in paragraphs (b)(5)(iii)(A) 

through (F) of 40 CFR 63.1349 are 

followed. Also, ASTM D6735–01 is 

itself a VCS. 

In addition to the VCS EPA cites in 

the proposed rule amendments, the 

search for emissions measurement 

procedures identified two additional 

VCS. The EPA determined that both of 

the standards identified for measuring 

air emissions or surrogates subject to 

emissions standards in the proposed 

amendments were impractical 

alternatives to EPA test methods. 

Therefore, EPA does not intend to adopt 

these standards for this purpose. The 

reasons for this determination for the 

two methods can be found in Docket ID 

No. OAR–2002–0051. 

Section 63.1349 of 40 CFR part 63 

lists the EPA testing methods included 

in the proposed rule amendments. 

Under 40 CFR 63.7(f) and 63.8(f) of 

subpart A of the General Provisions, a 

source may apply to EPA for permission 

to use alternative test methods or 

alternative monitoring requirements in 

place of any of the EPA testing methods, 

performance specifications, or 

procedures. 

The EPA welcomes comments on this 

aspect of the proposed rulemaking and, 

specifically, invites the public to 

identify potentially-applicable VCS and 

to explain why such standards should 

be used in the proposed rule 

amendments. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, and Reporting and 

recordkeeping requirements. 

Dated: November 21, 2005. 

Stephen L. Johnson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, part 63 of 

the Code of the Federal Regulations is 

proposed to be amended as follows: 

PART 63—[AMENDED] 

1. The authority citation for part 63 

continues to read as follows: 

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

Subpart LLL—[AMENDED] 

1. Section 63.1341 is amended by 

adding the following definition in 

alphabetical order to read as follows: 

§ 63.1341 Definitions. 

* * * * * 

Midkiln gas sampling system means a 

device which the Administrator 

determines on a case-by-case basis 

diverts a sample of kiln gas that 

contains levels of carbon monoxide (CO) 

or hydrocarbons representative of the 

levels in the kiln. 

* * * * * 

2. Section 63.1342 is revised to read 

as follows: 

§ 63.1342 Standards: General. 

Table 1 to this subpart provides cross 

references to the 40 CFR part 63, subpart 

A, general provisions, indicating the 

applicability of the general provisions 

requirements to subpart LLL. 

3. Section 63.1343 is amended by: 

a. Revising paragraph (a); 

b. Adding paragraphs (b)(4) through 

(b)(6); 

c. Revising paragraph (c)(4); 

d. Adding paragraphs (c)(5) and (c)(6); 

e. Revising paragraphs (e) 

introductory text and (e)(2); and 

f. Adding paragraph (e)(3) and (f) to 

read as follows: 

§ 63.1343 Standards for kilns and in-line 

kiln/raw mills. 

(a) General. The provisions in this 

section apply to each kiln, each in-line 

kiln/raw mill, and any alkali bypass 

associated with that kiln or in-line kiln/ 

raw mill. All gaseous and D/F emission 

limits are on a dry basis, corrected to 7 

percent oxygen. All total hydrocarbon 

(THC) emission limits are measured as 

propane. The block averaging periods to 

demonstrate compliance are hourly for 

100 parts per million by volume (ppmv) 

CO limit and both the 10 and 20 ppmv 

total hydrocarbon (THC) limits, and 

monthly for 50 ppmv THC limits. 

(b) * * * 

(4)(i) Contain more than 20 ppmv 

THC from the main stack if the source 

has no alkali bypass or midkiln gas 

sampling system; or 

(ii) Contain more than 100 ppmv CO 

in the main stack if the source has no 

alkali bypass or midkiln gas sampling 

system. However, the source must 

demonstrate during the performance test 

that the main stack gas contains no more 

than 20 ppmv THC. 

72346 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

(5)(i) Contain more than 10 ppmv 

THC in the alkali bypass or midkiln gas 

sampling system; or 

(ii) Contain more than 100 ppmv CO 

in the alkali bypass or midkiln gas 

sampling system. However, the source 

must demonstrate during the 

performance test that the alkali bypass 

or midkiln gas sampling system gas 

contains no more than 10 ppmv THC. 

(6) Contain more than 15 ppmv 

hydrogen chloride (HCl) if the source is 

a new or reconstructed source that 

commenced construction after 

December 2, 2005, unless the source 

demonstrates a 90 percent reduction in 

HCl emissions measured across an addon control device, such as an alkaline 

scrubber. New sources that commenced 

construction prior to December 2, 2005, 

must meet the operating limits specified 

in § 63.1344(f). 

* * * * * 

(c) * * * 

(4)(i) Contain more than 20 ppmv 

THC in the main stack if there is no 

alkali bypass or midkiln gas sampling 

system; or 

(ii) Contain more than 50 ppmv THC 

and 100 ppmv CO in the main stack gas 

if there is no alkali bypass or midkiln 

gas sampling system. However, the 

source must demonstrate during the 

performance test that the main stack gas 

contains no more than 20 ppmv THC. 

(5)(i) Contain more than 50 ppmv 

THC in the main stack and 10 ppmv 

THC in the alkali bypass or midkiln gas 

sampling system, or 

(ii) Contain more than 50 ppmv THC 

in the main stack and 100 ppmv CO in 

the alkali bypass or midkiln gas 

sampling system. However, the source 

must demonstrate during the 

performance test that the alkali bypass 

or midkiln gas sampling system 

contains no more than 10 ppmv THC. 

(6) Contain more than 15 ppmv HCl 

if the source is a new source that 

commenced construction after 

December 2, 2005, unless the source 

demonstrates a 90 percent reduction in 

HCl emissions measured across an addon control device, such as an alkaline 

scrubber. New sources that commenced 

construction prior to December 2, 2005 

must meet the operating limits specified 

in § 63.1344(f). 

* * * * * 

(e) Greenfield/area sources. No owner 

or operator of a greenfield kiln or a 

greenfield in-line kiln/raw mill at a 

facility that is an area source subject to 

the provisions of this subpart shall 

cause to be discharged into the 

atmosphere from these affected sources 

any gases which: 

* * * * * 

(2)(i) Contain more than 20 ppmv 

THC in the main stack if there is no 

alkali bypass or midkiln gas sampling 

system; or 

(ii) Contain more than 50 ppmv THC 

and a 100 ppmv CO in the main stack. 

However, the source must demonstrate 

at performance test that the main stack 

gas contains no more than 20 ppmv 

THC. 

(3)(i) Contain more than 50 ppmv 

THC in the main stack and 10 ppmv 

THC from the alkali bypass or midkiln 

gas sampling system; or 

(ii) Contain 50 ppmv THC in the main 

stack and 100 ppmv CO in the alkali 

bypass or midkiln gas sampling system. 

However, the source must demonstrate 

at its performance test that the alkali 

bypass or midkiln gas sampling system 

contains no more than 10 ppmv THC 

limit. 

(f) Existing, reconstructed, or new 

brownfield/area sources. No owner or 

operator of an existing, reconstructed, or 

new brownfield kiln or an existing, 

reconstructed, or new brownfield in-line 

kiln/raw mill at a facility that is an area 

source subject to the provisions of this 

subpart shall cause to be discharged into 

the atmosphere any gases which: 

(1)(i) Contain more than 20 ppmv 

THC in the main stack if the source has 

no alkali bypass or midkiln gas 

sampling system; or 

(ii) Contain more than 100 ppmv CO 

if the source has no alkali bypass or 

midkiln gas sampling system. However, 

the source must demonstrate at 

performance test that the gas in the 

main stack contains no more than 20 

ppmv THC. 

(2)(i) Contain more than 10 ppmv 

THC in the alkali bypass or midkiln gas 

sampling system; or 

(ii) Contain 100 ppmv CO in the alkali 

bypass or midkiln gas sampling system. 

However, the source must demonstrate 

at performance test that the gas in the 

alkali bypass or midkiln gas sampling 

system contains no more than 10 ppmv 

THC. 

4. Section 63.1344 is amended by 

adding paragraph (f) to read as follows: 

§ 63.1344 Operating limits for kilns and inline kiln/raw mills. 

* * * * * 

(f) Existing kilns and in-line kilns/raw 

mills must continuously operate the 

cement kiln under normal operating 

conditions and operate a particulate 

control device to capture HCl present in 

or adsorbed on the kiln particulate, 

including particulate in the alkali 

bypass (if present). 

5. Section 63.1349 is amended by: 

a. Revising paragraph (b) introductory 

text; 

b. Revising paragraph (b)(4); 

c. Adding paragraphs (b)(5) and (b)(6); 

d. Revising paragraph (c); and 

e. Removing paragraph (f) to read as 

follows: 

§ 63.1349 Performance testing 

requirements. 

* * * * * 

(b) Performance tests to demonstrate 

initial compliance with this subpart 

shall be conducted as specified in 

paragraphs (b)(1) through (6) of this 

section. 

* * * * * 

(4) The owner or operator of an 

affected source subject to limitations on 

emissions of THC shall demonstrate 

initial compliance with the THC limit as 

follows: 

(i) If the owner or operator elects not 

to meet the alternative CO emission 

limit of 100 ppmv, they must 

demonstrate compliance with the 

appropriate THC emissions limit by 

operating a continuous emission 

monitor in accordance with 

Performance Specification 8A of 

appendix B to part 60 of this chapter 

and meet the quality assurance 

procedures specified in procedure 1 of 

appendix F to this part. 

(ii) If the source elects to comply with 

a THC emission limit by meeting the 

alternative CO emissions limit, they 

must demonstrate compliance by 

operating a continuous emission 

monitor in accordance with 

Performance Specification 4B of 

appendix B to part 60 of this chapter 

and meet the quality assurance 

procedures specified in procedure 1 of 

appendix F to this part. They must also 

demonstrate compliance with the 

appropriate THC emissions limit during 

the performance test using EPA Method 

25A of appendix A to part 60 of this 

chapter. They must calibrate with 

propane and report the THC results as 

propane. 

(iii) The duration of the performance 

test(s) shall be 3 hours, and the average 

THC/CO concentration during the 3- 

hour performance test shall be 

calculated. The owner or operator of an 

in-line kiln/raw mill shall demonstrate 

initial compliance by conducting 

separate performance tests while the 

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

under normal operating conditions and 

while the raw mill of the in-line kiln/ 

raw mill is not operating. 

(5) To determine compliance with an 

emission limit for HCl you must use one 

of the following test methods: 

(i) Method 26/26A of appendix A to 

part 60 of this chapter. Method 26A 

must be used when HCl could be 

associated with PM (for example, the 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 72347 

association of HCl with water droplets 

emitted by sources controlled by a wet 

scrubber); otherwise you may use 

Method 26. 

(ii) Method 320 or 321 of appendix A 

to part 63 of this chapter. 

(iii) ASTM Method D6735–01, 

Standard Test Method for Measurement 

of Gaseous Chlorides and Fluorides 

from Mineral Calcining Exhaust 

Sources—Impinger Method, provided 

that the provisions in paragraphs 

(b)(5)(iii)(A) through (F) of this section 

are followed. 

(A) A test must include three or more 

runs in which a pair of samples is 

obtained simultaneously for each run, 

according to section 11.2.6 of ASTM 

Method D6735–01. 

(B) You must calculate the test run 

standard deviation of each set of paired 

samples to quantify data precision, 

according to Equation 1 of this section: 

RSD C

C a Eq a

a

= −

+





 



 () . 100 2

2

 Absolute Value C1

C1

 1 a

a

Where: 

RSDa = The test run relative standard 

deviation of sample pair a, percent. 

C1a and C2a = The HCl concentrations, 

milligram/dry standard cubic 

meter(mg/dscm), from the paired 

samples. 

(C) You must calculate the test 

average relative standard deviation 

according to Equation 2 of this section: 

RSD

RSD

p

TA Eq

a

a

P

= =

∑

1 ( . 2)

Where: 

RSDTA = The test average relative 

standard deviation, percent. 

RSDa = The test run relative standard 

deviation for sample pair a. 

p = The number of test runs, ≥3. 

(D) If RSDTA is greater than 20 

percent, the data are invalid and the test 

must be repeated. 

(E) The post-test analyte spike 

procedure of section 11.2.7 of ASTM 

Method D6735–01 is conducted, and the 

percent recovery is calculated according 

to section 12.6 of ASTM Method 

D6735–01. 

(F) If the percent recovery is between 

70 percent and 130 percent, inclusive, 

the test is valid. If the percent recovery 

is outside of this range, the data are 

considered invalid, and the test must be 

repeated. 

(6) To determine compliance with the 

90 percent reduction for HCl, you must 

measure the HCl concentration at the 

inlet and outlet of the alkaline scrubber 

using one of the test methods specified 

in paragraph (b)(4) of this section. The 

concentrations should be determined on 

a dry basis, corrected to 7 percent 

oxygen. The percent reduction is then 

calculated as the difference between the 

inlet and outlet concentration divided 

by the inlet concentration times 100. 

(c) Except as provided in paragraph 

(e) of this section, performance tests 

required under paragraphs (b)(1) 

through (b)(2) and (b)(4) through (b)(5) 

of this section shall be repeated every 5 

years, except the owner or operator of a 

kiln, in-line kiln/raw mill, or clinker 

cooler is not required to repeat the 

initial performance test of opacity for 

the kiln, in-line kiln/raw mill, or clinker 

cooler. 

* * * * * 

6. Section 63.1350 is amended by: 

a. Revising paragraphs (h) and (n); 

and 

b. Adding paragraph (o) to read as 

follows: 

§ 63.1350 Monitoring requirements. 

* * * * * 

(h) The owner or operator of an 

affected source subject to a limitation on 

THC emissions under this subpart shall 

comply with the monitoring 

requirements of paragraphs (h)(1) 

through (3) of this section to 

demonstrate continuous compliance 

with the THC emission standard: 

(1) An owner or operator shall install, 

calibrate, maintain, and operate a 

continuous THC emissions monitor 

meeting the requirements of 

Performance Specification 8A of 

appendix B to part 60 of this chapter 

and meet the quality assurance 

procedures specified in procedure 1 of 

appendix F to this part. If the owner or 

operator elects to meet an alternative CO 

emission limit, then they must install, 

calibrate, maintain, and operate a 

continuous CO emissions monitor 

meeting the requirements of 

Performance Specification 4B of 

appendix B to part 60 of this chapter 

and meet the quality assurance 

procedures specified in procedure 1 of 

appendix F to this part. 

(2) The owner or operator of a 

greenfield raw material dryer, the main 

exhaust of a greenfield kiln, or the main 

exhaust of a greenfield in-line kiln/raw 

mill, that elects to meet the alternative 

Co emissions limit is not required to 

calculate hourly rolling averages in 

accordance with section 4.9 of 

Performance Specification 8A. 

(3) Any CO or THC emissions that 

exceed the emission limits in § 63.1343 

using the averaging periods specified in 

§ 63.1343 is a violation of the standard. 

* * * * * 

(n) An owner or operator of an 

affected source subject to HCl emissions 

must comply by establishing and 

complying with the following operating 

parameter limits for a wet scrubber. 

(1) If your source is equipped with a 

high energy wet scrubber such as a 

venturi, hydrosonic, collision, or free jet 

wet scrubber, you must establish a limit 

on minimum pressure drop across the 

wet scrubber on an hourly rolling 

average as the average of the test run 

averages. 

(2) If your source is equipped with a 

low energy wet scrubber such as a spray 

tower, packed bed, or tray tower, you 

must establish a minimum pressure 

drop across the wet scrubber based on 

manufacturer’s specifications. You must 

comply with the limit on an hourly 

rolling average. 

(3) If your source is equipped with a 

low energy wet scrubber, you must 

establish a limit on minimum liquid 

feed pressure to the wet scrubber based 

on manufacturer’s specifications. You 

must comply with the limit on an 

hourly rolling average. 

(4) You must establish a limit on 

minimum pH on an hourly rolling 

average as the average of the test run 

averages. 

(5) You must establish limits on either 

the minimum liquid to gas ratio or both 

the minimum scrubber water flowrate 

and maximum flue gas flowrate on an 

hourly rolling average as the average of 

the test run averages. 

(o) An owner or operator of an 

affected source subject to an HCl 

emissions limit and using a dry scrubber 

must comply by establishing and 

meeting all of the following operating 

parameter limits specified in paragraphs 

(o)(1) through (o)(3) of this section. 

(1) Minimum sorbent feedrate. You 

must establish a limit on minimum 

sorbent feedrate on an hourly rolling 

average as the average of the test run 

averages. 


EP02DE05.000</MATH> EP02DE05.001</MATH>
72348 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Proposed Rules 

(2) Minimum carrier fluid flowrate or 

nozzle pressure drop. You must 

establish a limit on minimum carrier 

fluid (gas or liquid) flowrate or nozzle 

pressure drop based on manufacturer’s 

specifications. 

(3) Sorbent specifications. (i) You 

must specify and use the brand (i.e., 

manufacturer) and type of sorbent used 

during the comprehensive performance 

test until a subsequent comprehensive 

performance test is conducted, unless 

you document in the site-specific 

performance test plan required under 

§ 63.1207(e) and (f) key parameters that 

affect adsorption and establish limits on 

those parameters based on the sorbent 

used in the performance test. 

(ii) 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 used in the 

performance test and conforms to the 

key sorbent parameters you identify 

under paragraph (o)(3) of this section. 

You must record in the operating record 

documentation that the substitute 

sorbent will provide the same level of 

control as the original sorbent. 

7. Section 63.1351 is amended by 

adding paragraphs (c) and (d) to read as 

follows: 

§ 63.1351 Compliance dates. 

* * * * * 

(c) The compliance date for an 

affected source that commenced 

construction on or before December 2, 

2005, subject to the revised THC and 

HCl emissions limits proposed on 

December 2, 2005, will be 1 year after 

publication of the final amendments. 

(d) The compliance date for an 

affected source that commenced 

construction after December 2, 2005, 

subject to the revised THC and HCl 

emissions limits proposed on December 

2, 2005, will be startup or the effective 

date of the final amendments, 

whichever is later. 

8. Section 63.1356 is amended by 

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

as follows: 

§ 63.1356 Exemption from new source 

performance standards. 

(a) * * * 

(1) Kilns and in-line kiln/raw mills, as 

applicable, under 40 CFR 60.60(b), 

located at area sources are subject to PM 

and opacity limits and associated 

reporting and recordkeeping, under 40 

CFR part 60, subpart F. 

(2) Greenfield raw material dryers, as 

applicable under 40 CFR 60.60(b), 

located at area sources, are subject to 

opacity limits and associated reporting 

and recordkeeping under 40 CFR part 

60, subpart F. 

* * * * * 

[FR Doc. 05–23419 Filed 12–1–05; 8:45 am] 

BILLING CODE 6560–50–P