[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Rules and Regulations]
[Pages 28318-28326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12095]

[[Page 28318]]



40 CFR Parts 60 and 63

[EPA-HQ-OAR-2002-0051; EPA-HQ-OAR-2007-0877; FRL-9306-7]
RIN 2060-AQ93

National Emission Standards for Hazardous Air Pollutants From the 
Portland Cement Manufacturing Industry and Standards of Performance for 
Portland Cement Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial in part and grant in part of petitions to reconsider.


SUMMARY: The Environmental Protection Agency (EPA or Agency) is denying 
in part and granting in part the petitions to reconsider the final 
revised National Emission Standards for Hazardous Air Pollutants 
emitted by the Portland Cement Industry and the New Source Performance 
Standards for Portland Cement Plants issued under sections 112(d) and 
111(b) of the Clean Air Act, respectively. The EPA is also denying all 
requests that the EPA issue an administrative stay of the National 
Emission Standards for Hazardous Air Pollutants and the New Source 
Performance Standards.

DATES: This action is effective May 17, 2011.

ADDRESSES: The EPA's docket for this action is Docket ID No. EPA-HQ-
OAR-2002-0051. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information where disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the EPA's Docket Center, Public Reading Room, EPA West Building, Room 
3334, 1301 Constitution Avenue, NW., Washington, DC 20004. This Docket 
Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Keith Barnett, Office of Air 
Quality Planning and Standards; Sector Policies and Programs Division, 
Minerals and Manufacturing Group (D243-02); Environmental Protection 
Agency; Research Triangle Park, NC 27111; telephone number: (919) 541-
5605; fax number: (919) 541-5450; e mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: On August 6, 2010, the EPA signed a final 
rule establishing and amending various air emission limits applicable 
to the Portland cement industry. See 75 FR 54970 (Sept. 9, 2010). The 
rule establishes National Emission Standards for Hazardous Air 
Pollutants (NESHAP) for emissions of mercury, total hydrocarbons (THC), 
and particulate matter (PM) from new and existing cement kilns located 
at major and area sources, and for emissions of hydrochloric acid (HCl) 
from new and existing kilns located at major sources. The rule also 
establishes New Source Performance Standards (NSPS) for emissions of 
PM, nitrogen oxides, and sulfur dioxide at cement kilns that commence 
construction, modification, or reconstruction after June 16, 2008.
    Various entities representing both the regulated industry and the 
environmental community have petitioned the EPA for reconsideration of 
various standards in these rules, in particular the NESHAP. A number of 
industry petitioners also requested that the EPA issue an 
administrative stay of the NESHAP and NSPS. For the reasons stated 
below, the EPA is denying reconsideration on certain issues raised in 
the petitions and is granting reconsideration on a number of other 
issues. The EPA is also denying all requests that it issue an 
administrative stay.

I. Standard for Reconsideration

    Section 307(d)(7)(B) of the Clean Air Act (CAA) states that: ``Only 
an objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review. If the person raising an 
objection can demonstrate to the Administrator that it was 
impracticable to raise such objection within such time or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule, the 
Administrator shall convene a proceeding for reconsideration of the 
rule and provide the same procedural rights as would have been afforded 
had the information been available at the time the rule was proposed. 
If the Administrator refuses to convene such a proceeding, such person 
may seek review of such refusal in the United States court of appeals 
for the appropriate circuit (as provided in subsection (b)). Such 
reconsideration shall not postpone the effectiveness of the rule. The 
effectiveness of the rule may be stayed pending such reconsideration, 
however, by the Administrator or the court for a period not to exceed 
three months.''
    As to the first procedural criterion for reconsideration, a 
petitioner must show why the issue could not have been presented during 
the comment period, either because it was impracticable to raise the 
issue during that time or because the grounds for the issue arose after 
the period for public comment (but within 60 days of publication of the 
final action).
    In the EPA's view, an objection is of central relevance to the 
outcome of the rule only if it provides substantial support for the 
argument that the promulgated regulation should be revised. See, e.g., 
the EPA's Denial of the Petitions to Reconsider the Endangerment and 
Cause or Contribute Findings for Greenhouse Gases under Section 202 of 
the Clean Air Act, 75 FR 49556, 49561 (Aug. 13, 2010). This 
interpretation is appropriate in light of the criteria adopted by 
Congress in this and other provisions in section 307(d). Section 
307(d)(4)(B)(i) provides that ``[a]ll documents which become available 
after the proposed rule has been published and which the Administrator 
determines are of central relevance to the rulemaking shall be placed 
in the docket as soon as possible after their availability.'' This 
provision draws a distinction between comments and other information 
submitted during the comment period, and other documents which become 
available after publication of the proposed rule. The former are 
docketed irrespective of their relevance or merit, while the latter 
must be docketed only if a higher hurdle of central relevance to the 
rulemaking is met.
    For more extended discussions of the standard for reconsideration 
under section 307(d)(7)(B), please see 75 FR 49556, 49560-49563 (August 
13, 2010) and 76 FR 4780, 4786-4788 (January 26, 2011).

II. The Petitions for Reconsideration

A. Petition of the Portland Cement Association (PCA)

    1. PCA maintains that after the close of the comment period on the 
proposed cement NESHAP, the EPA proposed inter-related rules regulating

[[Page 28319]]

Commercial and Industrial Solid Waste Incinerators (CISWI) and 
proposing a definition of solid waste for non-hazardous secondary 
materials. Petition p. 2. PCA alleges that these proposed rules 
``eviscerate the statistical underpinning for the NESHAP rule.'' 
Petition p. 2. PCA states that under the proposed rule defining non-
hazardous secondary materials that are solid wastes (``solid waste 
definition rule''), many cement kilns would have been considered to be 
incinerators (i.e., units that combust ``solid waste,'' as that term is 
defined by the Administrator under RCRA, see section 129(g)(6)), rather 
than cement kilns. PCA further states that under the proposed waste 
definition rule, virtually all of the cement kilns comprising the pool 
of best performers for each of the cement NESHAP floors would be 
incinerators since they burn secondary materials that would have been 
defined as solid waste under the proposed solid waste definition rule. 
Although acknowledging that the EPA had discussed in the proposed 
cement NESHAP how it intended to classify cement kilns that burn 
secondary materials (Petition p. 8), PCA maintains that it had no 
notice of the potential impact of the CISWI rule and solid waste 
definition rule until the EPA proposed a definition of solid waste, 
and, in particular, that PCA was unaware of the potential practical 
implications of the issue until the EPA proposed a solid waste 
definition. Petition pp. 10, 12. Petitioners maintain that the EPA 
cannot permissibly classify the same kilns as affected sources under 
both rules, and requests that the EPA stay the Portland cement NESHAP 
administratively pending reconsideration of the issue.
    2. PCA next maintains that the EPA adopted standards for open 
clinker cooler piles in the NESHAP without giving proper notice of what 
those standards might be. Petition p. 11.
    3. PCA further requests reconsideration of the standards for 
startup and shutdown operations. PCA argues that the final standards 
deviated from those proposed, because the EPA had proposed that the 
same standards that apply during normal operation also apply during 
startup and shutdown operations, whereas the final rule adopts 
standards for startup and shutdown that differ from those applicable 
during normal operation. Petition p. 14. PCA maintains that it had no 
notice of the data on which such standards were based, because the 
standards are not based on emissions data. Id. p. 15. The petition 
further states that the standards for startup and shutdown were adopted 
in disregard of the requirements of section 112(d)(3) of the CAA, again 
largely because the standards are not based on emissions data. Id.
    4. In the final rule, the EPA adopted a provision establishing an 
affirmative defense to civil penalties for exceedances of emission 
standards which result from malfunction events. PCA requests that the 
EPA reconsider this affirmative defense provision, which it 
characterizes as overly cumbersome, and issued without notice and 
adequate opportunity for public comment. Id. at 16.
    5. PCA also requests that the EPA reconsider the standards for PM, 
including the new source standard for PM in the NSPS. Id. PCA alleges 
that the EPA ``reduce[d] the PM limits * * * dramatically'' between 
proposal and final rule, and that the change was based on information 
hand-picked by the EPA which information was not known to petitioners. 
Id. In a follow-up letter of December 14, 2010, PCA expanded on its 
petition to state that the key change between proposal and final rule, 
made without proper notice, was to express the PM standard as a 30-day 
average and to use a statistical methodology (Upper Prediction Limit, 
or UPL) in calculating that limit. December 14 Letter p. 3.
    6. PCA also requested that the EPA reconsider a number of issues of 
a more technical nature (many of which pertain to the standards for 
open clinker piles). Petition Exhibit 1.

B. Petition of Eagle Materials

    Eagle Materials challenges application of the NESHAP's monitoring 
requirements to sources equipped with monovents (vents on the top of a 
control device rather than a single stack). Although acknowledging that 
this issue was presented during the public comment period, Eagle 
Materials maintains that the EPA's disposition of the issue was based 
on technical assumptions which are unfounded and unanticipated by Eagle 
and other commenters. Eagle Materials also maintains that the EPA 
adopted standards for clinker storage piles without providing adequate 
notice of what those standards might be.

C. Petitions of Sierra Club, Downwinders at Risk, Friends of Hudson, 
Huron Environmental Activist League, Desert Citizens Against Pollution, 
Montanans Against Toxic Burning, and the Natural Resources Defense 

    A number of environmental groups filed petitions requesting that 
the EPA reconsider the provision establishing an affirmative defense to 
civil penalties for emission exceedances demonstrated to have occurred 
as a result of a malfunction event (as defined). The petitions maintain 
that the EPA adopted this provision without adequate notice and 
opportunity for public comment.

III. Decision on Issues Raised in the Petitions

A. Issues on Which the EPA Is Denying Reconsideration

1. Relationship Between Portland Cement NESHAP, Solid Waste Definition 
and CISWI Rule
    PCA maintains that ``EPA proposed the CISWI/`solid waste' 
definition rules after the comment period closed on the NESHAP rule, 
foreclosing any real opportunity for PCA to assess and comment on the 
impacts of the NESHAP. Indeed, it was not until EPA proposed the 
subsequent CISWI/`solid waste' rules that * * * PCA had notice with any 
real specificity of the number of cement facilities that may end up 
being regulated as CISWI facilities.'' Petition p. 8. The EPA is 
denying rehearing on this issue because the petitioners have failed to 
demonstrate that it was impracticable to raise their objection during 
the public comment period. In addition, the fact that some cement kilns 
may have a later change of regulatory classification after the NESHAP 
is promulgated is not an issue of central relevance to the outcome of 
the NESHAP rule, as required by the statutory standard for 
reconsideration. Finally, as discussed below, even if the impacts of 
the solid waste rule had been assessed, it would not have made a 
significant difference in the final Portland Cement NESHAP.
    a. Was it impractical to raise the objection within the comment 
    Section 307(d)(7)(B) requires the EPA to grant reconsideration of 
an issue ``[i]f the person raising the objection can demonstrate to the 
Administrator that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment''. PCA could have objected 
during the comment period on the proposed Portland Cement NESHAP to 
EPA's classification of all Portland cement kilns burning secondary 
materials \1\ as cement kilns. In the

[[Page 28320]]

proposed Portland Cement NESHAP, the EPA proposed to classify all 
cement kilns, including those burning secondary materials, as cement 
kilns for the NESHAP rulemaking, and explained why it was doing so. The 
EPA discussed the interplay between the cement kiln NESHAP and the 
forthcoming rules for incinerators which burn solid waste, noting that 
``some Portland cement kilns combust secondary materials as alternative 
fuels''. 74 FR at 21138. The EPA then stated that because there was no 
regulatory definition of solid waste that would distinguish which of 
these alternative fuels burned by cement kilns were wastes and which 
were not, the EPA would therefore classify all of the units as cement 
kilns. Id. The EPA reasoned that unless and until the Agency adopts a 
definition of solid waste classifying the alternative fuels, cement 
kilns burning secondary materials as fuels or otherwise using secondary 
materials are lawfully classified as cement kilns and rules for cement 
kilns therefore would apply to them. Id. The EPA also articulated the 
principle of which PCA states it lacked notice: The NESHAP would be 
based on the performance of all devices which were cement kilns at the 
time of the Portland Cement NESHAP rulemaking. Id. The EPA further 
found that combustion of secondary materials as alternative fuels by 
cement kilns ``did not have any appreciable effect on the amount of 
hazardous air pollutants (HAP) emitted by any source.'' Id. The record 
for the proposed rule included an inventory of every material burned by 
a large group of cement kilns over a 30-day period, including all of 
those comprising the pool of best performers for mercury.\2\

    \1\ A ``secondary material'' is a material that can potentially 
be classified as a solid waste under the Resource Conservation and 
Recovery Act when recycled. 50 FR 616 n. 4 (Jan. 4, 1985). Under the 
newly adopted regulatory definition of solid waste, secondary 
materials encompass ``any material that is not the primary product 
of a manufacturing or commercial process, and can include post-
consumer material, off-specification commercial chemical products or 
manufacturing chemical intermediates, post-industrial material, and 
scrap.'' 40 CFR 241.2.
    \2\ See docket item EPA-HQ-OAR-2002-0051-2043.

    Neither PCA nor any other commenter objected to any aspect of the 
issue of the interplay between the cement kiln NESHAP and the CISWI/
waste definition rules during the comment period.\3\ PCA has 
consequently failed to satisfy the requirement of section 307(d)(7)(B) 
that it was impractical to raise the issue during the public comment 
period or that the grounds for their objection arose after the close of 
the comment period.

    \3\ Two commenters ( 2816 and 2846) noted EPA's 
approach. One of these commenters approvingly summarized EPA's 
position to classify all cement kilns as cement kilns, based on 
their status at the time of the NESHAP. The other commenter simply 
summarized EPA's position. Neither of these comments is an objection 
putting EPA on notice that a commenter disagreed with EPA's approach 
or otherwise raising ``with reasonable specificity'' (section 
307(d)(7)(B)) any issue that EPA's approach was objectionable for 
legal or policy reasons.

    Petitioners maintain that ``it was impossible for PCA to provide 
informed comments on the interplay between the CISWI/`solid waste' 
definition rules and the NESHAP rule'' until the Agency proposed those 
rules on April 29, 2010, after the close of the comment period in the 
NESHAP. Petition p. 10. Acknowledging that the EPA had already raised 
the issue in the proposed cement NESHAP, petitioners maintain that 
``[a] generic comment is not adequate to put stakeholders on fair 
notice that the CISWI/`solid waste' definition rules could 
fundamentally change the scope of the NESHAP source category.'' Id.\4\ 
But the EPA's discussion at proposal was not generic. It was a 
considered discussion stating the approach to classification the EPA 
intended to adopt (and did adopt) in the final rule, citing moreover to 
the EPA's Advance Notice of Proposed Rulemaking (74 FR 42, January 2, 
2009) which had discussed the universe of secondary materials burned by 
units including cement kilns, and the considerations the Agency might 
use in ultimately classifying these materials by rule as waste or non-
wastes. The administrative record likewise contained item-by-item 
accounting--cited to by the EPA when presenting the issue of kiln 
classification for public comment--of every secondary material burned 
by a large group of cement kilns over an extended period.

    \4\ Nonetheless, had the final solid waste definition been in 
place at the time of the final Portland Cement NESHAP rulemaking, 
there would have been only modest change in the scope of the NESHAP 
source category and the final standards would have been largely 
unaltered. See Table 1 below.

    PCA appears to be stating that although the EPA had raised the 
issue of kiln classification at proposal, the practical implications of 
the EPA's approach were not clear until the EPA proposed a solid waste 
definition and CISWI standards. But the EPA stated that it would 
classify all cement kilns as cement kilns during the NESHAP rulemaking 
unless a final definition of solid waste changed their regulatory 
status prior to the completion of the section 112 Portland Cement 
NESHAP. That issue was unaltered by the EPA issuing a proposed solid 
waste definition and proposed CISWI standards. Just like the proposed 
cement NESHAP, the final cement NESHAP was based on the performance of 
units classified as cement kilns at the time of the cement NESHAP 
rulemaking. This included all cement kilns burning alternative fuels. 
PCA's objection is no different before the proposed solid waste 
definition and CISWI rules than after that proposal. The same issue is 
presented now as was presented at proposal: Whether devices which are 
classified as cement kilns in the absence of a regulatory waste 
definition are properly so classified if they were burning secondary 
materials that might ultimately be classified as solid wastes. 
Moreover, the type of secondary materials the cement kilns were burning 
was well-documented in the NESHAP administrative record (and known to 
PCA in any case).\5\ PCA's decision not to comment on the issue because 
of perceived lack of practical effect was their choice, not the result 
of lack of notice. For this reason, PCA's statement that it could not 
gauge the impact of the NESHAP until the proposed waste definition/
CISWI rule appeared (Petition p. 10) misses the point. Those impacts 
were going to be the same because the EPA had made clear that it would 
continue to classify cement kilns as cement kilns so long as that 
remained their legal status. This status remained the same throughout 
the rulemaking.

    \5\ Fuels Use in Portland Cement Kilns, April 25, 2011.

    b. Are petitioners' objections of central relevance to the outcome 
of the rule?
    Section 307(b)(7)(B) also requires that for reconsideration to be 
required, objections must be ``of central relevance to the outcome of 
the rule.'' The EPA does not believe that is the case here, for reasons 
both legal and practical.
    The EPA believes that it validly based the NESHAP on the 
performance of devices which were cement kilns at the time of the 
rulemaking. See section 112(d)(3)(A) which states that maximum 
achievable control technology (MACT) floors for existing sources are to 
reflect performance of sources for which the EPA has emissions 
information, indicating that standards are to reflect sources' legal 
status and performance at the time of the rulemaking.\6\ Later rules

[[Page 28321]]

that prospectively establish the classification of certain of the 
alternative fuels that these kilns burned does not alter these kilns' 
status--cement kilns--at the time of the cement NESHAP rulemaking. This 
is all that matters. The solid waste definition rule adopted a half 
year after the signature of the Portland Cement NESHAP rule is not 
relevant to the cement kilns' classification at the time of the NESHAP 

    \6\ There is no valid argument that cement kilns burning 
alternative fuels were already commercial and solid waste 
incinerators at the time of the NESHAP rulemaking. First, all of 
these kilns certified that they were cement kilns in compliance with 
the 1999 MACT standards for the Portland Cement category (pursuant 
to 40 CFR sections 63.1353(b)(5) and 63.9(h)). Second, the status of 
these alternative fuels as solid wastes or not solid wastes could 
not be determined in the absence of a regulatory definition 
addressing the status of those fuels. 74 FR at 21138. Although there 
is a statutory definition of solid waste in the Resource 
Conservation and Recovery Act (at section 1004 (27)), that 
definition does not apply directly to section 129, but must be 
implemented by means of an EPA-promulgated regulation. See CAA 
section 129(g)(6) (``the ter[m] `solid waste' * * * shall have the 
meanin[g] established by the Administrator pursuant to the Solid 
Waste Disposal Act''.) Equally important, the status of alternative 
fuels cannot be determined from the statutory definition alone (as 
illustrated by the different regulatory classifications of different 
alternative fuels in the recently-adopted definition of non-
hazardous secondary materials, and the significant changes between 
proposal and final rule that EPA made in classifying alternative 

    PCA argues, however, that the situation here is controlled by the 
DC Circuit's opinion in NRDC v. EPA, 489 F. 3d 1250 (DC Cir. 2007) 
(``Boiler MACT''). Petition p. 8. We disagree. In that case, the EPA 
had adopted a definition of ``solid waste incineration unit'' which 
classified ``commercial or industrial waste'' to include only solid 
waste combusted in units which do not recover energy. 489 F. 3d at 
1258. The EPA issued MACT standards predicated upon no boilers being 
incinerators due to their energy recovery purpose and design. The court 
held that the definition was impermissible in that it classified units 
burning solid waste as boilers rather than as commercial and industrial 
solid waste incineration units and noted that ``[t]he effect of these 
definitions is to substantially reduce the number of commercial or 
industrial waste combustors subject to section 129's standards''. Id. 
The court continued:

    [Since the Court is requiring] EPA to revise the CISWI 
Definitions Rule * * *, the Boilers Rule will need to be revised as 
well because the universe of boilers subject to its standards will 
be far smaller and more homogenous after all CISWI units * * * are 
removed from its coverage. Given the likelihood (if not certainty) 
that the Boilers Rule will change substantially as a result of our 
vacatur of the challenged ``solid waste'' definition, we believe the 
Boilers Rule should be vacated in its entirety and remanded for EPA 
to repromulgate after revising the CISWI Definitions Rule. 489 F. 3d 
at 1261.

    The NESHAP rule at issue in Boiler MACT was thus promulgated when 
there was a definition of commercial and industrial wastes (as 
incorporated in the definition of solid waste incinerator, 489 F. 3d at 
1261), which classified all units as either boilers or incinerators, 
albeit improperly. Here, in contrast, there was no regulatory 
definition of solid waste that determined (or otherwise addressed) the 
status of the alternative fuels burned by cement kilns. Thus, cement 
kilns burning alternative fuels or other secondary materials were not 
classified as incinerators during the cement NESHAP rulemaking, but as 
cement kilns. The cement NESHAP therefore was and is based exclusively 
on the performance of cement kilns, as properly classified at the time 
of the rulemaking.\7\ PCA states that the EPA cannot promulgate a 
NESHAP rule based on calculations that include CISWI units, but the EPA 
has not done that. Petition p. 10. All of the cement kilns were cement 
kilns during the NESHAP rulemaking.

    \7\ As noted earlier, all cement kilns certified to EPA that 
they were cement kilns in compliance with the applicable section 
112(d) standards for cement kilns up to and through the time of the 
amendments to the Portland Cement NESHAP.

    Moreover, although the EPA recognizes that there is case authority 
that agencies are compelled to reopen rules when the rules' fundamental 
factual basis (or other essential premise) is altered by later 
events,\8\ the EPA does not believe that the factual basis of the 
NESHAP has changed. The units on which the standard was based were 
cement kilns at the time of the NESHAP rulemaking, and, consistent with 
section 112(d)(3), the EPA based the NESHAP on that classification.

    \8\ See Geller v. FCC, 610 F. 2d 973, 979-80 (DC Cir. 1979) 
(rules justified as needed to encourage passage of Federal copyright 
legislation, without any further justification that the rules were 
in the public interest, may have lacked any nexus with the public 
interest after passage of the copyright legislation and the Federal 
Communications Commission could therefore be compelled to reexamine 
the rule); RSR v. EPA, 102 F. 3d 1266, 1270 (DC Cir. 1997) (noting 
that in Geller the sole basis for the challenged rule had ``long 
since evaporated'' and that agency was compelled to reexamine the 
rule in light of the ``abnormal circumstances'' of the case).

    PCA also states that the EPA committed to reconsider the cement 
NESHAP once the CISWI/``solid waste'' definition rules were finalized. 
Petition p. 11. This is incorrect. The EPA never committed to reopening 
a promulgated rule for the cement source category or any other. In the 
preamble to the proposed cement NESHAP, the EPA stated: ``EPA is basing 
all determinations as to source classification on the emissions 
information now available, as required by section 112(d)(3), and will 
necessarily continue to do so until the solid waste definition 
discussed above is promulgated.'' 74 FR at 21138; see also 75 FR at 
54972 which contains similar language. This statement means no more 
than it says: if the EPA had promulgated a final definition of solid 
waste that changed the classification of these kilns during the 
rulemaking, then the EPA would have based that NESHAP on that new 
classification. That did not occur during the Portland Cement NESHAP 
rulemaking. The quoted language cannot fairly be read to say that the 
EPA would revise standards for source categories properly classified at 
the time of the NESHAP based on a post-promulgation definition of solid 
waste whether that category be Portland cement kilns, lime kilns, or 
any other source category which once burned secondary materials later 
defined as solid waste.
    The implications of PCA's position are that all NESHAPs have to be 
reopened and amended if units in the source category were burning 
secondary material that were classified post-promulgation as solid 
wastes by a later rule. Potential examples are lime kilns, chemical 
recovery units, as well as cement kilns (including the 1999 dioxin 
standard for cement kilns, which was not reopened as part of the 2010 
rulemaking amending the NESHAP). The EPA does not accept this position. 
All of the NESHAPs are properly based on the units' classification at 
the time of the rulemaking.\9\ PCA's position is disruptive to the 
rulemaking process and would potentially lead to frequent and 
substantial uncertainty for the regulated community and other 

    \9\ For the same reason, EPA cannot be deemed to have 
constructively reopened the NESHAP when it issued the solid waste 
definition and CISWI rules. Nothing in the later rules changes the 
kilns' status as cement kilns at the time of the cement NESHAP 

    The EPA similarly disagrees with the premise that the Agency cannot 
develop standards for any source category which burns materials which 
might ultimately be classified as solid waste until developing and 
finalizing a solid waste definition rule. This conflicts with the EPA's 
obligations under the statute, consent decrees, and settlement 
agreements (including the settlement agreement requiring the EPA to 
issue the NESHAP for Portland cement by August 2010) to complete 
NESHAPs for source categories listed pursuant to section 112(c)(1) by 
dates certain. The EPA's obligation in fact is to issue NESHAPs based 
on the emissions information before it at the time of the rulemaking 
(see section 112(d)(3)(A)), which is what it did here. NESHAPs are thus 
necessarily based on the snapshot-in-time assessment of performance 
within a source category, which necessarily includes the status of 
sources in that category at that moment

[[Page 28322]]

in time. To do otherwise makes the process unworkable.
    Moreover, although not necessary to the decision to deny 
reconsideration, the EPA has evaluated the practical implications of 
the solid waste definition and CISWI standards that it recently 
adopted. If the newly-adopted solid waste definition had been 
applicable at the time cement kilns conducted the performance testing 
used as the basis for the MACT standards and at the time of 
promulgation of the final Portland Cement NESHAP, 23 cement kilns (by 
the EPA's estimate) out of 146 would have been classified as 
incinerators. If these units were removed from the pool of cement 
kilns, the floors--with one exception--would have remained either 
identical or essentially identical and, since the EPA adopted the 
floors as the standards, the standards would likewise have remained 
identical or essentially identical. The one floor that would change 
appreciably is the floor for THC, which would become significantly more 
stringent because the revised data base would reflect cement kilns 
experiencing less variability in THC emissions.\10\ Given the minimal 
change in the standards, with the exception of the more stringent THC 
standard, kilns' compliance strategy would be unaltered.

    \10\ Nor would EPA alter any of its determinations not to adopt 
more stringent beyond-the-floor standards.

   Table 1--Comparison of Floors With and Without Kilns That Could Have Been CISWI Kilns Had the Definition of
                                            Solid Waste Applied \11\
                                                        Existing source                       New source floor--
                                    Existing source   floor--CISWI kilns  New source floor--      CISWI kilns
            Pollutant              floor--2010 Final     removed from       2010 Final Rule      removed from
                                         Rule              inventory                               inventory
Mercury.........................  55 lb/MM tons       58 lb/MM tons       21 lb/MM tons       24 lb/MM tons
                                   clinker.            clinker.            clinker.            clinker.
Total Hydrocarbons..............  24 ppmvd..........  15 ppmvd..........  24 ppmvd..........  11 ppmvd.
PM..............................  0.04..............  0.05..............  0.01..............  0.01.
HCl.............................  3 ppmvd...........  3 ppmvd...........  3 ppmvd...........  3 ppmvd.

    In this analysis, the EPA finds that none of the cement kilns would 
have been potentially CISWI due to the use of secondary material 
ingredients (though some kilns would potentially have been CISWI due to 
secondary fuels burned). This is because none of these secondary 
ingredient materials identified by PCA as being used in cement kilns is 
considered to be combusted. A typical dictionary definition of 
``combustion'' is ``an act or instance of burning'' or ``a chemical 
process (as an oxidation) accompanied by the evolution of light and 
heat.'' \12\ Cement kilns typically process ingredients in the cold 
regions of the kiln, where ingredients are gradually heated until they 
reach the temperature where clinker formation takes place. This is not 
a chemical process marked by the evolution of light and heat, and so is 
not combustion. Rather, it is analogous to cooking as opposed to 
burning.\13\ Cement kiln dust is also used as an ingredient and is 
sometimes processed in the hot end of the cement kiln. Due to its 
inorganic, essentially inert composition, this material is not 
combusted.\14\ Non-hazardous secondary materials used as an ingredient 
(as opposed to being combusted) in combustion units are not solid 
wastes under newly promulgated definitional rules (to be codified at 40 
CFR section 241.3 (b)(3)), assuming the legitimacy criteria in section 
241.3 (d) are satisfied.

    \11\ In this analysis, nine of the eleven floor kilns for the 
final cement NESHAP remain cement kilns. One of the two floor kilns 
for THC would be a CISWI, although removing this kiln from the 
cement kiln data base would result in a significantly more stringent 
THC standard under the NESHAP because this kiln had more associated 
variability in its performance than the other kilns ranked closest 
to it. For PM, two of six kilns remain classified as cement kilns. 
For HCl, two of three floor kilns remain cement kilns, but there are 
a whole group of cement kilns that performed identically to the 
floor kiln for HCl that was, for purposes of our analysis, 
reclassified as a CISWI so there would be no effect on the standard. 
75 FR at 54894 (standard based on analytic method detection limit 
times a variability factor rather than on the measured values 
because those values were so close to the analytic method minimum 
detection limit). See the memorandum Revised Floors Without Kilns 
That Would Have Been CISWI Kilns Had the Solid Waste Definition 
Applied, dated April 25, 2011.
    \12\ Webster's Ninth New Colleg1ate Dictionary. Merriam-Webster 
Inc. 1990.
    \13\ See Combustion in a Cement Kiln and Cement Kilns' Use of 
Tires as Fuel dated April 25, 2011.
    \14\ Id.

    The EPA's analysis also reflects the results of Information 
Collection Requests (pursuant to section 114 of the CAA) regarding 
cement kilns' use of tires as alternative fuels. Based on these ICR 
responses, the EPA finds that most of the responding cement kilns 
obtained tires from established tire programs as defined in newly 
promulgated part 241, and have reasonably established that the tires 
were not discarded and were handled as valuable commodities from the 
point of removal through arrival at the cement kiln and therefore would 
not have been solid wastes. The EPA does not interpret the 
certification required by section 60.2175(w) of the newly-adopted CISWI 
rule as requiring ultimate users to know the source of all tires 
obtained from an established tire collection program. This is a 
practical impossibility. In certifying, users also should not assume 
that tires from established programs which participate in occasional 
cleanup days were discarded. Rather, it is sufficient that the ultimate 
user verify that it is obtaining tires from an established tire 
collection program, which program can provide the user with reasonable 
assurance that it manages tires carefully from point of collection to 
point of burning and which does not receive tires which have been 
abandoned in landfills or otherwise.
    There are further practical considerations, which likewise indicate 
the relative lack of practical effect of the solid waste definition and 
CISWI standards on the NESHAP. First, cement kilns can choose whether 
to continue burning solid waste and being classified as incinerators, 
or not burn waste and remain classified as cement kilns. Second, 
burning alternative fuels (whether classified as solid wastes or not) 
does not appreciably affect cement kilns' HAP emissions. 74 FR at 
21138; Comments of PCA, Docket EPA-HQ-RCRA-2008-0329 (Aug. 3, 2010) (p. 
27) (same). Thus, the measured performance of cement kilns that forms 
the basis of the standards in the NESHAP remains technically sound 
since that performance would remain the same whether or not kilns burn 
``solid waste'' alternative fuels.
    Finally, PCA points out that until there is a solid waste 
regulatory definition and a CISWI rule, its members lack the 
information to make a rational choice as to which source category to be 
subject to--whether or not to continue burning secondary materials and 
whether to invest

[[Page 28323]]

immediately in the pollution control equipment and operational 
practices necessary for most kilns to comply with the Portland Cement 
NESHAP. Petition p. 18. The EPA has now adopted both a regulatory solid 
waste definition for non-hazardous secondary materials and CISWI 
standards, which should provide the basis for kilns to make these 
decisions within the necessary investment timeframe.
    The EPA proposed to classify cement kilns burning secondary 
materials as cement kilns in the proposed rule, explained why it would 
do so, and finalized the NESHAP rule using the approach proposed. No 
objections to that approach were raised to the EPA during the 
rulemaking. We further reject the position that a solid waste 
definition adopted any time after promulgation of a NESHAP compels 
reexamination of the NESHAP because it alters the NESHAP's fundamental 
premises. The EPA appropriately develops NESHAPs, including the 
Portland Cement NESHAP, based on the information available to it at the 
time of the rulemaking and it is undisputed that the units in question 
here were cement kilns at the time of the final cement NESHAP. The EPA 
thus concludes that reconsideration here is neither required nor 
appropriate under section 307(d)(7)(B).
2. Standards During Periods of Startup and Shutdown
    PCA maintains that the NESHAP's limits that apply during periods of 
startup and shutdown do not meet the requirements of CAA section 
112(d)(2) because the standards rest on engineering estimates of 
performance rather than on performance data, and that the EPA failed to 
provide adequate notice and opportunity for comment. Petition pp. 14-
16. With respect to the startup and shutdown standards, PCA has not 
demonstrated that it was unable to raise its objections during the 
public comment period. Indeed, it did so. The EPA proposed that the 
same standards apply during startup and shutdown conditions as during 
normal operating conditions, and solicited any data which might show 
that some other standard would be more appropriate. 74 FR at 21162. PCA 
commented at length on these proposed standards. PCA Comments, pp. 7-8, 
11-13. In response to PCA's own comment that the proposed startup and 
shutdown standards should not be normalized to units of production (PCA 
Comment of Sept. 4, 2009 at 7-8, EPA-HQ-OAR-2002-0051-2922.1), the EPA 
modified the proposed standards so that they are expressed as stack 
concentrations. 75 FR at 54991.
    PCA's main contention is that the EPA based the standards for 
startup and shutdown on its engineering judgment, so that commenters 
have had no opportunity to comment on emissions data supporting those 
conclusions. Petition p. 15. PCA is correct that the standards reflect 
the EPA's engineering judgment, but the EPA may permissibly rely on 
engineering judgment in developing floor standards in a NESHAP. Sierra 
Club v. EPA, 167 F.3d 658, 665 (DC Cir. 1999); National Lime, 233 F.3d 
at 632; Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 1241-
42 (DC Cir. 2004); see also CAA section 112(d)(3)(A). Furthermore, 
neither PCA nor any other commenter provided emissions data for startup 
and shutdown operations, despite the EPA's request. 74 FR at 21162.
    Under these circumstances, the EPA believes that the petitioner 
both had the opportunity to raise its objections during the public 
comment period and did so. Reconsideration is therefore neither 
required nor appropriate.
    The EPA, however, is granting reconsideration of one issue related 
to standards during startup and shutdown. This is the standard for HCl 
during startup and shutdown for kilns equipped with wet scrubbers but 
which do not use a continuous emissions monitor (CEM) to measure 
compliance. See issue B.4 below.
3. Standards for Particulate Matter
    PCA states that in the final rule ``EPA dramatically deviated from 
the range of possible limits that it had proposed for particulate 
matter * * * by almost 90 per cent'' for new facilities and by nearly 
50 percent for existing facilities. Petition p. 16. PCA further 
maintains that this change resulted from ``cherry picked'' data, with 
the expanded dataset ``arbitrarily and capriciously biased towards top 
performers,'' those with new baghouses. Id. PCA further states that it 
was unable to comment on these data because the EPA did not make the 
data available until after promulgation of the final rule, and that the 
limits may not be achievable for sources that use wet scrubbers for 
acid gas control due to loadings of re-entrained particulate. Id. at 
17. PCA raises the same issues with respect to the PM limit in the 
NSPS, which is identical to the new source standard under the NESHAP. 
    This part of PCA's petition is largely mistaken, and does not 
present any grounds requiring the EPA to reconsider the PM standard in 
either the NESHAP or the NSPS. Indeed, PCA's public comments suggested 
a different PM limit than proposed based largely on the additional 
performance data for which they now claim lack of notice. PCA Comments 
at p. 86 and App. 1 to those comments. See docket items EPA-HQ-OAR-
2002-0051-2922.1 and 2922.2, September 4, 2009. Much of this 
information had already been submitted to the EPA by PCA and individual 
PCA members in the parallel NSPS rulemaking as well. See National 
Emission Standards for Hazardous Air Pollutants from the Portland 
Cement Manufacturing Industry Response to Comments Received on Proposed 
Rule (Aug. 6, 2010) (``RTC'') p. 155. See docket item EPA-HQ-OAR-2002-
0051-3464. PCA thus not only had an opportunity to comment on the data 
used by the EPA for the final standard, but did so.
    Nor did the EPA ``cherry pick'' among those data. See RTC at pp. 
155, and 153-55 demonstrating the opposite: PCA had used the data 
selectively in constructing the alternative standard suggested in its 
comments, but the EPA's analysis used all of the additional data from 
the pool of best performing sources for PM.
    PCA is also mistaken in its claim that it lacked opportunity to 
present its objection that the PM standard is based on unrepresentative 
performance because it was based on performance of plants with newly-
installed baghouses. Indeed, it raised this issue in its public 
comments. PCA Comments at 86; see also RTC at pp. 155-56 indicating 
that baghouse performance can improve over time but is characterized by 
operating variability both when a baghouse is new and throughout its 
operating life. Commenters likewise raised the issue of baghouse 
performance decreasing due to re-entrained particulate resulting from 
use of wet scrubbers for acid gas control, and the EPA responded by 
citing data showing that PM levels from a cement kiln baghouse 
decreased after the kiln installed a wet scrubber to control its acid 
gas emissions. RTC at p. 158. Since there was ample notice and 
opportunity for comment on these issues (and, as just indicated, actual 
comment), the EPA is not required to reconsider them.
    In its December 14, 2010, letter, PCA takes a different tack, 
stating that the PM standard in the final NESHAP and NSPS is expressed 
as a 30-day rolling average rather than as a 1-day average (as at 
proposal), and that the EPA used a statistical equation, the Upper 
Prediction Limit at the 99th percentile (UPL 99) to construct that 
limit. December 14 letter pp. 3-4. The letter

[[Page 28324]]

asserts that PCA lacked notice of either issue.
    PCA is correct that the final standard is expressed as a 30-day 
standard (met by averaging 30 daily observations per month). 75 FR at 
54988.\15\ The EPA stated at proposal that it was considering adopting 
a PM standard whereby compliance would be measured with a CEM, and that 
CEM-based standards would be expressed as 30-day numbers. The EPA 
further had presented the statistical means of converting individual 
measurements into 30-day averages by means of the UPL 99 equation. 74 
FR at 21157, 21158, 21141-42. PCA's comments criticized use of the UPL 
99 equation both generally, and for a PM standard specifically (PCA 
Comments pp. 5, 86), and documented their view that the UPL equation 
underestimated variability for PM generally and underestimated the 
projected 99th percentile of the distribution of PM values (PCA 
Comments at App. 2 p. ES-7 and App. 2 p. 5-5). See also the EPA's 
responses at 75 FR at 59474-76; Development of the MACT Floors for the 
final Portland Cement NESHAP (the EPA, August 6, 2010, docket item EPA-
HQ-OAR-2002-0051-4550) at pp. 2-4, 9-10, 17, explaining why the UPL 99 
equation is a reasonable statistical tool for assessing variability, 
including variability over a 30-day measuring period.\16\ PCA and 
member companies likewise submitted detailed comments questioning the 
reliability and suitability of PM CEMs and urged the EPA not to require 
their use in measuring the standard. RTC at pp. 163-67. The EPA 
consequently does not accept the contention that commenters lacked 
notice of these issues and that reconsideration is either required or 

    \15\ PCA is not correct, however, that the standard became 
dramatically more stringent. If expressed as a not-to-exceed limit, 
as at proposal, the final existing source standard under the NESHAP 
would be approximately 0.07 lb/ton clinker, or only about 12 per 
cent more stringent than proposed. This slight increase in 
stringency results from corrections to the UPL equation used at 
proposal, corrections made in response to comments submitted by PCA. 
The additional performance data for PM actually made the standard 
less stringent (the net slight increase in stringency resulting, as 
noted from the revised UPL equation to the new data set). 
Development of the MACT Floors for the Final NESHAP for Portland 
cement (EPA, August 6, 2010, Docket  4550) at p. 16.
    \16\ The argument that the UPL equation underestimates 
variability of PM control performance because it underestimated 
variability for performance of THC is misleading. The UPL equation 
measures potential variability based on the within-source variance 
and between-source variance of the data set to which it is applied. 
74 FR at 21141. The EPA's initial data set for THC was comparatively 
sparse, and did not fully reflect the best-performing sources' 
within-source variation and between-source variation. The EPA was 
able to gather additional performance data between proposal and 
comment to expand those data (and to calculate variability directly 
from the data; see 75 FR at 54980 n. 22). However, the problem was 
not the UPL equation but the data set to which it was applied. It 
also should be noted that baghouses controlling PM (the control 
device for all of the best performing cement kilns) are relatively 
impervious to input loadings, performing relatively constantly 
regardless of incoming ash load. 70 FR at 59449 (Oct. 12, 2005); 72 
FR at 54879 (Sept. 27, 2007). Baghouse variability thus can be 
assessed especially reliably by standard statistical means, such as 
the UPL equation. Id.

    The EPA, however, is granting reconsideration of two standards 
related to PM, the NSPS for PM as applied to modified sources, and the 
alternative PM compliance alternative for sources that commingle 
certain internal exhaust gas streams. See issues B. 6 and B. 9 below.
4. Monovents
    Petitioner Eagle Materials claims that it lacked notice of the 
EPA's basis for requiring use of CEMs for all cement kilns, including 
those having monovent exhaust configurations (vents on the top of a 
control device rather than a single stack). This issue was presented at 
proposal, and the company submitted comments on the issue, as the 
petitioner acknowledges. Petition at pp. 3, 5-9. The petitioner 
disagrees with the EPA's response (which indicated that a source could 
install a separate stack for measurement purposes or seek an 
alternative monitoring regime on a site-specific basis pursuant to the 
authority at 40 CFR section 63.7 (f), RTC at pp. 75, 120, 145-46, 172-
73), but this does not demonstrate that there was a lack of opportunity 
to comment on the issue. The EPA is consequently not granting this 
    Although we are denying the request for reconsideration of the 
monitoring provisions for facilities with monovents, we note further 
that these types of monitoring issues tend to be very site specific, 
and there will likely be individual cases where the national rule will 
be impractical. The provisions of section 63.7(f) of the General 
Provisions exist for this purpose and we believe that issues related to 
monitoring facilities with monovents are best handled on a case-by-case 
basis under that rule. These provisions have been used in similar 
situations to authorize cost-effective, environmentally appropriate 
alternative monitoring and, to our knowledge, have not in and of 
themselves required the construction of a single stack.
5. Emissions From Crushers
    Crushers are machines designed to reduce large rocks from a quarry 
into gravel-sized feed. See section 63.1341 (definition of 
``crusher''). Crushers are typically located at the limestone quarry. 
In 2002, the EPA and the PCA entered into a settlement agreement 
regarding the 1999 NESHAP for the industry and, as part of that 
agreement, agreed to clarify that crushers are not part of the Portland 
cement source category. The EPA did so but used convoluted language 
\17\ which created unnecessary confusion about collateral issues such 
as the regulatory status of other types of equipment such as storage 
bins. In the 2005 rule proposing to amend the NESHAP, the EPA proposed 
to eliminate the confusing language and simply state that crushers are 
not part of the Portland cement source category, and indicated in the 
preamble to the 2006 final rule that it intended to finalize this 
language. See 70 FR at 72341-42 (Dec. 2, 2005) and 71 FR at 76532 (Dec. 
20, 2006). The EPA neglected to include the necessary rule language, 
and proposed to add it in this rulemaking. 74 FR at 21163. The final 
rule states that ``[c]rushers are not covered by this subpart 
regardless of their location.'' Section 63.1340 (c); see also RTC at p. 
212 (explaining these actions and citing to earlier regulatory 

    \17\ Former section 63.1340(c) stated: ``For Portland cement 
plants with on-site nonmetallic mineral processing facilities, the 
first affected source in the sequence of materials handling 
operations subject to this subpart is the raw material storage, 
which is just prior to the raw mill. Any equipment of the on-site 
nonmetallic mineral processing plant which precedes the raw material 
storage is not subject to this subpart. In addition, the primary and 
secondary crushers of the on-site nonmetallic mineral processing 
plant, regardless of whether they precede the raw material storage, 
are not subject to this subpart. Furthermore, the first conveyor 
transfer point subject to this subpart is the transfer point 
associated with the conveyor transferring material from the raw 
material storage to the raw mill.''

    PCA asks that the EPA reconsider its decision and restore the 
amended regulatory text quoted below. Petition Exhibit 1. The EPA has 
provided numerous opportunities to comment on this issue so 
reconsideration is clearly not compelled under section 307 (d)(7)(B). 
Nor is reconsideration appropriate. The former regulatory text created 
confusion about collateral issues and failed to indicate clearly its 
ostensible subject--that crushers are not regulated under the Portland 
Cement NESHAP. The EPA has amended the rule to make this clear. Doing 
so is consistent with the 2001 Settlement Agreement on this point, the 
object of which was to make clear that crushers

[[Page 28325]]

were not regulated under the NESHAP. In any case, nothing in that 
settlement agreement prevents the EPA from amending its regulations if 
it is appropriate to do so. The agreement in fact states that 
``[n]othing in this Agreement shall be construed to limit or modify the 
EPA's discretion to alter, amend, or revise, or to promulgate 
regulations that supersede, the regulations identified in section III 
of this Agreement.''

B. Issues on Which the EPA Is Granting Reconsideration

1. Standards for Clinker Storage Piles
    PCA and Eagle Materials both maintain that the EPA did not provide 
sufficient notice of the standards it might adopt for clinker storage 
piles. Although the EPA did give notice that it might adopt standards 
for these units (74 FR at 21163), the petitioners are correct that the 
Agency did not give sufficient notice of what those standards might be. 
The EPA is consequently granting the petition as to this issue. For the 
same reason, the EPA is granting the petition as to all of the 
miscellaneous issues pertaining to clinker storage piles (issues 1-4 in 
Exhibit 1 to PCA's Petition for Reconsideration).
2. Affirmative Defense to Civil Penalties for Exceedances Occurring 
During Malfunctions
    Various petitioners representing environmental advocacy groups, as 
well as PCA, assert that the EPA adopted in the final rule an 
affirmative defense to civil penalties for exceedances of applicable 
emission standards during periods of malfunction. Section 63.1344. The 
petitioners are correct that there was not a proper opportunity to 
comment on this provision at proposal, and the EPA is therefore 
granting these petitions as to this issue.
3. Continuously Monitored Parameters for Alternative THC Standard
    Section 63.1343(b)(1) provides two options for meeting a standard 
for organic HAP. One is to meet a THC standard of 24 parts per million 
by volume dry (ppmvd); the other is to meet a limit of 9 ppmvd of total 
organic HAP. If the source elects to meet the total organic HAP 
standard, a site specific THC limit is established based on the THC 
results during the performance test used to establish compliance with 
the total organic HAP limit. Section 63.1348(a)(4)(v).
    PCA has noted that the site specific THC limit can unintentionally 
deprive kilns of operating flexibility where kilns have measured total 
organic HAP comfortably below the alternative standard. For example, if 
a kiln has measured total organic HAP of 3 ppmvd and site specific 
levels of THC of 15 ppmvd during the performance test, it would be de 
facto subject to a considerably more stringent THC standard than if it 
were subject to the main THC standard.
    The EPA believes that the issue of unnecessarily constrained 
operating flexibility is worthy of reexamination and therefore is 
granting reconsideration of this issue.
4. HCl Limit of Zero During Startup for Sources That Do Not Have a CEM
    The final cement NESHAP provides that existing and new kilns have a 
standard of zero for HCl when operating at startup and shutdown and 
when compliance is measured by means other than a CEM. Section 
63.1343(b) Table 1 note 4. Kilns equipped with wet scrubbers may elect 
to comply with the HCl standard by means of performance tests rather 
than a CEM, so the practical effect of this provision is that wet-
scrubber equipped kilns electing to comply by means of stack testing 
rather than continuous monitoring of HCl with a CEM would be subject to 
the emission limit of zero during startup and shutdown. See sections 
63.1348(a)(6)(i) and 63.1349(b)(6)(i)(a). PCA indicates in its petition 
that the EPA is incorrect in finding that HCl is formed only from 
burning normal fuel (75 FR at 54992). PCA maintains that HCl can be 
formed by oxidizing chlorides in the raw materials present in the kiln 
regardless of the type of fuels used, and so can be present in 
emissions during startup and shutdown. PCA urges that the same limit (3 
ppmvd) apply during startup as applies to all other kilns during all 
operating conditions. Petition Exhibit 1.
    The EPA is granting reconsideration on this issue since PCA's 
petition may have technical merit.
5. Allowing Sources With Caustic Scrubbers To Comply With HCl Standard 
Using Performance Tests
    As just noted, the final rule allows sources equipped with wet 
scrubbers (and tray towers) to comply with the HCl standard by means of 
performance tests rather than with continuous monitoring of HCl with a 
CEM. (Sources electing to comply by means of stack tests do establish 
continuously monitored parameters--liquid flow rate, pressure and pH 
(see section 63.1350(m)(5)-(7)). PCA indicates that this compliance 
option should not be limited to wet scrubber equipped units, but should 
also be available for units equipped with caustic scrubbers, in part 
because some sources will be equipped with dry scrubbers (due to water 
shortages) and should have the same operating flexibilities as wet 
scrubber-equipped kilns.
    The EPA is granting reconsideration to consider the issue of 
whether dry scrubber-equipped kilns should have the option of complying 
by means of stack tests rather than continuous monitoring.
6. Alternative PM Limit
    Some kilns combine kiln exhaust gas with exhaust gas from other 
unit operations, including the clinker cooler. See 75 FR at 54988. The 
final cement NESHAP seeks to accommodate these situations by providing 
for a site specific PM limit for commingled flows from the kiln and 
clinker cooler. Section 63.1343(b)(2). PCA points out, however, that 
other flows can be commingled as well. PCA Petition Exhibit 1 
(referring to coal mill exhaust and exhaust from an alkali by-pass as 
instances of additional flows). Without an allowance for these 
additional flows, the site specific PM limit could be stricter than the 
EPA intended (since the PM concentration will be divided by a lower 
number in the implementing equation), and could penalize the 
environmentally beneficial practice of commingling these flows, a 
practice resulting in significant energy savings. 75 FR at 54988. The 
EPA therefore grants reconsideration on this issue.
7. Monitoring for Mercury and PM During Periods of Startup and Shutdown
    The standards for the four main pollutants regulated by the NESHAP 
(mercury, THC/organic HAP, HCl, and PM) are all measured continuously. 
This is true of the standards applying during normal operation and 
those that apply during startup/shutdown. However, two of the 
standards--for mercury and for PM--are normalized to production units 
during normal operation and expressed on a concentration basis during 
startup/shutdown. See 75 FR at 54991-92.
    PCA suggests in its petition that cement companies would like to 
utilize the same monitoring device for both standards, but that this 
could pose operational obstacles if sorbent traps are used as the 
continuous monitoring device. Petition Exhibit 1. This is because data 
from a sorbent trap cannot be readily disaggregated, meaning that a 
dedicated trap would be needed to monitor startup and shutdown and a 
different sorbent trap used for normal operation. (Data from a CEM can 
be disaggregated, so that it is possible to evaluate data from startup/

[[Page 28326]]

and normal operation from measurements taken by a single PM and mercury 
CEM.) PCA questions if this was the EPA's intent.
    The EPA is granting the petition to consider the question of types 
of continuous monitoring allowed during startup and shutdown for 
mercury and PM.
8. Coal Mills (NESHAP and NSPS)
    In the EPA's recent amendments to the Standards for Performance for 
Coal Mills, we exempted coal mills at cement manufacturing facilities 
whose only heat source was kiln exhaust. See 74 FR 51952, October 8, 
2009. This change was made in response to comment from PCA. PCA argued 
that coal mills were similar to inline raw mills. In the case of inline 
raw mills, we consider the raw mill to be an integral part of the kiln. 
PCA requested the same treatment for coal mills, and the EPA agreed. 
However, in the amendments to the Portland Cement NESHAP and NSPS, the 
EPA did not address coal mills. This omission was due to the lack of 
information on emissions from coal mills. The EPA is granting 
reconsideration to reconsider the status of coal mills under the cement 
9. PM Standard for Modified Sources Under the NSPS
    The EPA adopted the level of the new source standard under the 
NESHAP as the NSPS for both new and modified kilns. 75 FR at 54996. As 
PCA notes in its petition, there need not be functional equivalence 
between the NESHAP and NSPS PM limits for modified kilns, and further 
comment on the issue is appropriate. Petition p. 17. PCA also notes 
that the NSPS for modified kilns could have associated costs which need 
to be accounted for pursuant to CAA section 111(a)(1). Since such kilns 
would not be subject to the section 112(d) new source standard, any 
costs for such modified kilns to control PM to the new source limit 
could not be attributed to the section 112(d) new source limit. In 
addition, PCA notes that existing Portland cement kilns cannot be 
assumed to find ways to avoid triggering the NSPS modification criteria 
when making physical or operational changes due to the stringency of 
the newly adopted standards for PM.
    The EPA believes that PCA's arguments on this point have merit and 
warrant reconsideration of the NSPS standard for PM for modified kilns.

IV. Requests for an Administrative Stay

    PCA also requests that the EPA issue an administrative stay of the 
rule pursuant to section 705 of the Administrative Procedure Act (APA), 
which authorizes an agency, when it finds that ``justice so requires'' 
to ``postpone the effective date of action taken by it, pending 
judicial review. Petition p. 6. PCA also alludes to the authority in 
section 307(d)(7)(B) of the CAA under which the EPA may issue a stay 
for up to three months if it grants a petition to reconsider a final 
    First, the effective date of the NESHAP and NSPS--November 8, 
2010--has already passed and thus a stay under APA section 705 is not 
appropriate. See 76 FR 4780, 4800 (Jan. 26, 2011) (``[p]ostponing an 
effective date implies action before the effective date arrives'').
    Section 307(d)(7)(B) of the CAA authorizes the EPA to stay a rule's 
effectiveness for three months during reconsideration. Since the EPA is 
largely denying the petitions to reconsider and is not granting 
reconsideration as to challenges to the principal standards in the 
NESHAP or NSPS, an administrative stay is not appropriate under that 
    In reaching these conclusions, the EPA evaluated not only the legal 
applicability of the statutory provisions cited in PCA's petition, but 
also the merits criteria for granting stays--the likelihood of success 
on the merits, possibility of irreparable harm to the petition, harm to 
other parties, and the ultimate public interest. As discussed above, 
the EPA believes that the NESHAP is validly based on the performance of 
cement kilns. The EPA's technical evaluation of kilns' performance is 
also sound because burning alternative fuels (whether or not those 
fuels are classified as solid waste) does not appreciably effect the 
amount of HAP cement kilns emit.
    The EPA also does not believe that the industry is facing the 
prospect of irreparable harm. As explained above, the industry's 
legitimate concern of having to make critical investment decisions 
without knowing the final rules on waste classification and standards 
for solid waste incinerators has been rectified by the EPA's issuance 
of a final regulatory definition of non-hazardous secondary materials 
that are solid waste and CISWI standards. In addition, given the 
similarity of many of the emissions limits, the compliance strategy for 
either rule would be expected to be similar.
    Moreover, the EPA does not believe that a stay of the rules' 
compliance date is in the public interest. The standards in the rule 
are projected to result in significant health benefits (thousands of 
serious health incidences avoided, including thousands fewer acute 
myocardial infarctions) and the rules' monetized benefits are projected 
to substantially exceed the rules' social costs. 75 FR at 55027 Table 
13 and 55028 (social costs estimated at $926 to 950 million (2005$) and 
net monetized benefits are estimated at $6.5 billion to $18 billion 
(2005$ and a 7 percent discount rate). Cement kilns' mercury emissions 
are among the highest of any emitting source category, and contribute 
significantly to the national inventory of airborne mercury. 75 FR at 
54979 (cement industry contributes 7.5 tons of mercury emissions per 
year to national inventory of 50 tons per year). We note that mercury 
is a potent and bioaccumulative neurotoxin that remains in the 
environment for an extended period of time. As a result, the additional 
mercury that would be emitted as the result of a stay of the rule would 
remain in the environment for many years. The NESHAP here for the first 
time adopts statutorily-compliant limits to control those emissions. 
The EPA does not believe it in the public interest to delay those 

V. Conclusion

    For all of the reasons discussed above, the petitions to reconsider 
the final NESHAP and NSPS for Portland cement plants are denied in part 
and granted in part. The EPA likewise denies the petitions for an 
administrative stay.

    Dated: May 11, 2011.
Lisa P. Jackson,
[FR Doc. 2011-12095 Filed 5-16-11; 8:45 am]