EPA Will Reconsider Cement Kiln Rules But Denies Requests for Major Changes

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The Environmental Protection Agency denied an industry group's request to reconsider how its emissions standards for cement kilns and solid waste incinerators overlap. Instead, the agency agreed only to reconsider several technical changes to the cement kiln emissions standards.

The reconsideration notice, signed by EPA Administrator Lisa Jackson May 11, said the agency will not reconsider the emissions limits in the new source performance standards and national emissions standards for hazardous air pollutants for the cement industry; the monitoring provisions in the rules; or requirements that the facilities meet the applicable hazardous air pollutant emissions limits during periods when equipment is starting up, shutting down, or malfunctioning.

EPA said it would only grant reconsideration of provisions in the rules that “did not receive adequate opportunity for public notice and comment” as well as other items it described as “minor technical aspects.”

EPA also denied requests to stay the rules during the reconsideration period so that the health benefits of the required controls would not be delayed.

The reconsideration notice, which will be published in the Federal Register, addresses petitions for reconsideration EPA received from the Portland Cement Association, Eagle Materials Inc., the Natural Resources Defense Council, and Earthjustice.

On Sept. 9, 2010, EPA issued both new source performance standards and national emissions standards for hazardous air pollutants for the portland cement industry. The rules require major-source cement kilns and smaller area-source kilns to control emissions of mercury, total hydrocarbons, and particulate matter (75 Fed. Reg. 54,970; 41 ER 1813, 8/13/10).

Overlap, Reconsideration Cause Uncertainty.

Andrew O'Hare, vice president of regulatory affairs at the Portland Cement Association, told BNA the potential overlap and conflict between EPA's emissions standards for cement kilns and its new source performance standards for commercial and industrial solid waste incinerators was the industry's most pressing concern. Many of the materials kilns burn to produce cement would qualify as wastes under EPA's incinerator rule. That would subject the cement kilns to the more stringent incinerator standards, O'Hare said.

Though EPA will not reconsider the interaction between the two rules, it plans a separate reconsideration process for the incinerator rule.

“That's what presents the significant uncertainty, which makes it difficult for my members to begin planning” to comply with the rules, O'Hare said.

EPA issued the new source performance standards for hazardous air pollutants for commercial and industrial solid waste incinerators March 21 (76 Fed. Reg. 15,704; 42 ER 614, 3/25/11).

O'Hare said the Portland Cement Association said it intends to address the overlap between the cement kiln and solid waste incinerator rules in a brief it is preparing for a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the cement standards (Portland Cement Association v. EPA, D.C. Cir., No. 10-1358, 11/5/10; 41 ER 2501, 11/12/10).

Briefs from the industry and environmental groups are due May 16.

Addressing Technical Changes.

Those provisions EPA did agree to reconsider are “minor technical aspects” of the rule, the agency said.

EPA's reconsideration process will review the requirement for cement kilns to control emissions from open clinker storage piles, the particulate matter emissions limit for modified cement kilns, site-specific alternate compliance requirements for emissions of total hydrocarbons, and allowing facilities with dry scrubbing systems to use hydrogen chloride stack tests as an alternative to continuous emissions monitoring for the pollutant.

O'Hare praised EPA for reconsidering the requirement for cement kilns to build large storage facilities for open clinker piles because it “has the most potential cost associated with it” for affected facilities.

EPA also agreed to reconsider a provision known as “affirmative defense,” which would exempt cement kilns from civil penalties if they can demonstrate that they exceeded emissions limits as a result of malfunctioning equipment. The environmental group said allowing cement kilns to apply affirmative defense for violations would effectively remove the courts from determinations of civil penalties.

Both Earthjustice and the Portland Cement Association asked EPA to reconsider that provision because it had not been included in the proposed rule.

“The Clean Air Act says they have to reconsider stuff they didn't propose for comment,” James Pew, an attorney at Earthjustice, told BNA.

Though EPA has agreed to reconsider several provisions in the rule, Pew said it is no guarantee the agency will actually revise the requirements.

While Earthjustice had considered petitioning EPA to reconsider the lack of greenhouse gas emissions limits for cement kilns, Pew said that provision was not included in its request.

By Andrew Childers

EPA's reconsideration notice for the national emissions standards for hazardous air pollutants and new source performance standards for cement kilns and a related fact sheet are available at http://www.epa.gov/ttn/oarpg/new.html.

For more information, contact Keith Barnett in EPA's Office of Air Quality Planning and Standards at (919) 541-5605 or barnett.keith@epa.gov.