National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 5, 2002 (Volume 67, Number 129)]
[Rules and Regulations]
[Page 44766-44769]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jy02-3]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7240-5]
RIN 2060-AE78

National Emission Standards for Hazardous Air Pollutants From the
Portland Cement Manufacturing Industry

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; clarifications and correction.

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SUMMARY: On April 5, 2002, the EPA issued a direct final rule to amend
the national emission standards for hazardous air pollutants for the
portland cement industry. That action, in part, amended the monitoring
requirements for the industry. This action corrects the corresponding
table of monitoring requirements in the final rule and clarifies two
issues arising from explanatory language in the preamble to the direct
final rule amendments of April 5, 2002.
Section 553 of the Administrative Procedure Act, 5 U.S. C.
553(b)(3)(B), provides that, when an agency for good cause finds that
notice and public comment procedures are impracticable, unnecessary or
contrary to the public interest, the agency may issue a rule without
providing notice and an opportunity for public comment. We have
determined that there is good cause for making this rule final without
prior notice and comment procedure because it merely corrects a summary
table to reflect amended monitoring requirements and clarifies preamble
language from the direct final rule amendments. Both the proposed rule
and direct final rule amendments (as well as the Settlement Agreement
that occasioned these amendments) were subject to exhaustive notice and
comment (including comment on the matters addressed in this notice).
Thus, notice and comment are contrary to the public interest and
unnecessary. We find that the circumstances described constitute good
cause under 5 U.S.C. 553(b)(3)(B) and 553(d)(3) which authorizes an
agency to make a rule immediately effective where it finds that there
is good cause for doing so.

EFFECTIVE DATE: July 5, 2002.

ADDRESSES: Docket number A-92-53, containing supporting information
used in the development of this notice is available for public
inspection and copying between 8:00 a.m. and 5:30 p.m., Monday through
Friday (except for Federal holidays) at the following address: U.S.
Environmental Protection Agency, Air and Radiation Docket and
Information Center (6102), 401 M Street SW., Washington, DC 20460, or
by calling (202) 260-7548. A reasonable fee may be charged for copying
docket materials.
Effective August 27, 2002, the Office of Air and Radiation Docket
and Information Center will have a new address: 1301 Constitution
Avenue NW., Room B108, Washington, DC, 20460.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Wood, P.E., Minerals and
Inorganic Chemicals Group, Emission Standards Division (C504-05),
Office of Air Quality Planning and Standards, U.S. EPA, Research
Triangle Park, North Carolina 27711, telephone number (919) 541-5446,
facsimile number (919) 541-5600, electronic mail address:
wood.joe@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 44767]]

Docket. The docket is an organized and complete file of all the
information considered by EPA in the development of this direct final
rule. The docket is a dynamic file because material is added throughout
the rulemaking process. The docketing system is intended to allow
members of the public and industries involved to readily identify and
locate documents so that they can effectively participate in the
rulemaking process. Along with the proposed and promulgated rules and
their preambles, the contents of the docket will serve as the record in
the case of judicial review. The docket number for this rulemaking is
A-92-53.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of this action will also be available through the
WWW. Following 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: 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. If more information regarding the TTN
is needed, call the TTN HELP line at (919) 541-5384.
Regulated Entities. Entities potentially regulated by this action
are those that manufacture portland cement. Regulated categories and
entities include:

----------------------------------------------------------------------------------------------------------------
Examples of regulated
Category NAICS SIC entities
----------------------------------------------------------------------------------------------------------------
Industry........................... 32731.................... 3241..................... Owners or operators
of portland cement
manufacturing
plants.
State.............................. 32731.................... 3241..................... Owners or operators
of portland cement
manufacturing
plants.
Tribal associations................ 32731.................... 3241..................... Owners or operators
of portland cement
manufacturing
plants.
Federal agencies................... None..................... None..................... None.
----------------------------------------------------------------------------------------------------------------

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 the EPA is now
aware could potentially be regulated by this action. To determine
whether your facility, company, business organization, etc., is
regulated by this action, you should carefully examine the
applicability criteria in Sec. 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.
Background. On June 14, 1999, we published in the Federal Register
the final rule entitled, ``National Emission Standards for Hazardous
Air Pollutants From the Portland Cement Manufacturing Industry'' (40
CFR part 63, subpart LLL). The American Portland Cement Alliance (APCA)
petitioned the United States Court of Appeals for the District of
Columbia Circuit for review of the final rule under section 307(b)(1)
of the Clean Air Act (CAA). The APCA and the EPA negotiated and agreed
to the terms of a Settlement Agreement and its implementation. As
agreed to under the terms of the Settlement Agreement, EPA issued
direct final amendments (67 FR 16614, April 5, 2002) to improve
implementation of the rule primarily in areas of applicability,
emissions testing, and monitoring (there were no amendments to the
emission standards themselves). After publication of the direct final
rule amendments, commenters requested a correction to the rule and
clarification of preamble language to better reflect provisions in the
Settlement Agreement and to avoid regulatory misinterpretations. In
response to these comments, we are issuing the final rule amendments.
Kiln Production Rate Not an Operating Limit. In the preamble to the
April 5, 2002, direct final amendments, we explained why we amended
Sec. 63.1349(b) to require that performance testing be conducted under
representative conditions rather than under ``the highest load or
capacity reasonably expected to occur'' (67 FR 16616). We stated, ``If
the kiln is operated under a condition not representative of the
condition during the performance test, e.g., the kiln is operated at a
production rate higher than the production rate at which it was tested,
the performance test will need to be re-conducted and temperature
limit(s) reestablished.'' Although we did not receive any comments on
the amended regulatory text, ``* * * when the affected source is
operating at the representative performance conditions in accordance
with Sec. 63.7(e)'' (67 FR 16619), we did receive comments addressing
specifically the example we gave of a supposedly unrepresentative
condition, which they felt conflicted with the intent of the regulatory
amendment. Our intent was to make the rule more consistent with the
General Provisions language that performance tests be conducted under
representative conditions and to provide guidance on the
representativeness of a particular operating condition. Today, we are
clarifying that if a source operates at a higher production level than
that at which it tested, the previous performance test may not have
been representative of operating conditions and emissions at that
higher production level. Whether the test was representative depends on
how much higher actual production levels are than those that existed
during the performance test and on other factors affecting the
effectiveness of the pollution control equipment; the ultimate measure
being whether any of these changes may adversely affect compliance with
the emission standards. The production rate of a kiln is only one of
many indicators (i.e., potentially relevant indicia) of representative
operating conditions. In addition, the production rate may be
temporarily and slightly higher than the rate at which the kiln was
operating during a performance test and still be representative. A
source is not automatically required to conduct a performance test if
the source's operating conditions vary from those in place during the
most recent prior performance test. However, the burden is on the
source to demonstrate that it is able to comply with the emission
limits when operating under the alternative operating conditions. That
is, it is the source's ultimate burden of persuasion to demonstrate
that its performance testing conditions remain representative. This is
in accordance with the general principle that the party claiming an
exception to an established protective rule has the burden of
justifying that exception. See Beth Israel Hospital v. NLRB, 437 U.S.
482, 493, 502 (1978); see also Hazardous Waste Treatment Council v.
EPA, 886 F. 2d 355, 366-67 (D.C. Cir. 1989) (permissible for agency to
assign ultimate burden of persuasion).
Both commenters stated that the example we gave suggests that
production limits are established by the performance test, and that
this conflicts with the Settlement Agreement and our letter to the APCA
(April 17, 2002), where we explicitly stated that the production rate
is not an operating limit. The example in the preamble does

[[Page 44768]]

not, however, impose a production limit or establish the production
rate as an operating limit. We are clarifying and reiterating language
from the Settlement Agreement and from our letter to APCA that the
production rate is not a parameter for which operating limits are
established, and the production rate measured during dioxin/furan (D/F)
or particulate matter (PM) performance test is not an operating limit
for the source. Section 63.1344 of the rule lists all of the operating
limits that kilns are subject to as part of the requirements of the
NESHAP. Those operating limits relate to the D/F emission standards and
include only temperature limits and limits pertaining to the use of
activated carbon injection. Section 63.1344 makes no mention of a
kiln's production rate as an operating limit, and indeed this was our
intent in drafting the final rule. This means that if the kiln
production rate exceeds the production rate during the previous
performance test, it is not in violation of any operating parameter
requirement. This does not mean, however, that a change in production
rate (or change in any other operating practice which is not a
parametric monitoring requirement established in the rule) is
irrelevant in determining whether the kiln is operating in compliance
with the emission limit.
One of the commenters stated that the aforementioned example in the
April 5, 2002, preamble conflicts with Sec. 63.1349(e)(1) and (2) of
the newly amended rule which state that if a source plans to undertake
a change in operations that may adversely affect compliance with an
applicable D/F or PM standard, the source must conduct a new
performance test. As such, the facility would only be required to re-
conduct the performance test if it determines that an increase in the
production rate may adversely affect compliance (and, of course, that
this determination is correct).
We are clarifying today that a source would need to re-conduct a
performance test if the current operation is not representative of the
operation during the previous performance test such that the change in
operation may adversely affect compliance. As discussed above,
production rate levels that are only slightly higher than the
production rate levels achieved during the previous performance test
may not adversely affect compliance, and therefore, may still be
representative. Although increased production rates would tend to
increase exhaust gas stream flow rates and, therefore, potentially
diminish control device effectiveness, there are other factors which
may be more important in controlling emissions and determining whether
compliance is adversely affected. For example, temperature of the
exhaust gas plays an important role in D/F formation and for this
reason, the rule requires the source to establish temperature operating
limits. Regarding the PM emission limit, although the mass emission
rate of PM may increase with an increase in production rate, compliance
may not necessarily be adversely affected since the format of the
standard is in pounds of PM per ton of dry feed, and an increase in
production rate would allow for some increase in the mass emission rate
of PM. However, as stated above, the burden is on the source to
demonstrate that they are able to comply with the emission limits when
operating under conditions which vary from those in place during the
most recent prior performance test.
In summary, there is no operating limit associated with the
production rate. Further, the example we gave in the April 5, 2002,
preamble wasn't meant to create the presumption that an increase in
production rate beyond the production rate during the previous
performance test automatically means that the kiln must be retested.
Production rate could be relevant in determining representativeness of
the original test, but in some cases, an increase may not adversely
affect emissions, and the effect of other operating factors (such as
exhaust gas stream temperature) should not be discounted since they may
often affect emissions more. Although the source has to show that it
was tested under representative conditions, we expect that there are
situations where a source can show that an increase in the production
rate does not adversely affect compliance.
Only Transfer Points Used to Convey Coal from the Mill to the Kiln
are Potential Affected Sources. This issue concerns the interface
between the new source performance standards (NSPS) for coal
preparation plants (40 CFR part 60, subpart Y) and the portland cement
NESHAP (40 CFR part 63, subpart LLL). The direct final amendments
correctly revise Sec. 63.1356 of the final rule to clarify that the
systems used to convey and transfer coal from the coal mill to the kiln
at portland cement plants that are major sources of hazardous air
pollutants are not subject to the NSPS for coal preparation plants.
However, the industry trade association believes the April 5, 2002,
preamble language confuses the issue. In response, we clearly state
that the only subpart Y sources potentially subject to subpart LLL
requirements at major sources are the transfer points used to convey
coal from the mill to the kiln. Other subpart Y transfer points (such
as those transferring coal from a barge to a coal pile) would continue
to be subject to subpart Y requirements, as appropriate.
Monitoring Requirements for Raw Mills and Finish Mills (Table 1 to
Sec. 63.1350). Consistent with the Settlement Agreement, we revised the
monitoring requirements for raw mills and finish mills to allow for the
use of continuous monitoring systems in lieu of daily visible emission
monitoring. Our direct final rule amendments correctly reflect these
new options in Sec. 63.1350(m). However, we inadvertently omitted the
new options from Table 1 to Sec. 63.1350 (Monitoring Requirements).
Today's rule amendments correct Table 1 to include the continuous
monitoring system options for raw mills and finish mills.

Administrative Requirements

Under Executive Order 12866, Regulatory Planning and Review,
(58 FR 51735, October 4, 1993), this action is not a ``significant regulatory
action'' and is, therefore, not subject to review by the Office of
Management and Budget. Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, does not apply to this
action. Because this action is not subject to notice-and-comment
requirements under the Administrative Procedure Act or any other
statute, it is not subject to the regulatory flexibility provisions of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or sections 202
and 205 of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This rule also is not subject to Executive Order 13045, Protection of
Children from Environmental Health Risks and Safety Risks,
(62 FR 19885, April 23, 1997) because 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 regulation. This
rule is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks. This rule is not subject to Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use because it is not a significant regulatory action
under Executive Order 12866. This rule does not have any federalism
implications under Executive Order 13132, Federalism. The Paper
Reduction Act and the National Technology Transfer and Advancement Act
do not apply here. The Congressional Review Act, 5

[[Page 44769]]

U.S.C. 801 et seq., as added by the Small Business Regulatory
Enforcement Fairness Act of 1996, generally provides that before a rule
may take effect, the agency promulgating the rule must submit a rule
report, which includes a copy of the rule, to each House of the
Congress and to the Comptroller General of the United States. Section
808 allows the issuing agency to make a rule effective sooner than
otherwise provided by the Congressional Review Act if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement (5 U.S.C. 808(2)). As stated
previously, EPA has made such a good cause finding, including the
reasons therefore, and established an effective date of July 5, 2002.
The EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 63

Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

Dated: June 26, 2002.
Robert Brenner,
Acting Assistant Administrator for Air and Radiation.

For the reasons stated in the preamble, title 40, chapter 1, part
63 of the Code of Federal Regulations is 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]

2. Table 1 to Sec. 63.1350, entitled ``Monitoring Requirements,''
is amended by revising the entry for raw mills and finish mills at
major sources/opacity to read as follows:

Sec. 63.1350 Monitoring requirements.

* * * * *

Table 1 to Sec. 63.1350.--Monitoring Requirements
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Affected source/pollutant or Monitor type/ Monitoring
opacity operation/process requirements
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* * * *
* * *

Raw mills and finish mills Method 22 visible Conduct daily 6-
at major sources/opacity. emissions test. minute Method 22
(This requirement visible emissions
does not apply to a test while mill is
raw mill or finish operating at
mill equipped with representative
a continuous performance
opacity monitor or conditions; if
bag leak detection visible emissions
system.). are observed,
initiate corrective
action within 1
hour and conduct
follow up Method 22
test. If visible
emissions are
observed, conduct
30-minute Method 9
test.
.......................... Continuous opacity Install, operate,
monitor, if and maintain in
applicable. accordance with
general provisions
and with PS-1. A
six-minute average
greater than 10%
opacity is a
violation.
.......................... Bag leak detection Install, operate,
system, if and maintain in
applicable. accordance with
Sec. 63.1350(m).
Operate and
maintain such that
alarm is not
activated and alarm
condition does not
exist for more than
5% of the total
operating time in a
6-month period. If
alarm sounds,
initiate corrective
action.
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[FR Doc. 02-16644 Filed 7-3-02; 8:45 am]
BILLING CODE 6560-50-P

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National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry

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