[Federal Register Volume 67, Number 129 (Friday, July 5, 2002)]
[Rules and Regulations]
[Pages 44766-44769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16644]


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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: 
[email protected].

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:

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                                                                                           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.
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    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