NESHAPs From the Portland Cement Industry

Astute observers will remember that EPA tried this on a little less detailed level on April 5^th, 2002 when they stated that the kiln production rate was not an operating limit but then went on to give a contradictory example; “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.” EPA even tries to hedge their bets in the July 5^th 2002 explanation by slyly claiming that “we did not receive any comments on the amended regulatory text but, 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.” A relevant portion of the preamble text of the July 5^th 2002 Federal Register is provided below for ease of reference.

Kiln Production Rate Not an Operating Limit. In the preamble to the April 5, 2002, direct final amendments, we explained why we amended § 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 § 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).

It only takes a moment to realize that what the EPA is saying from a practical point is that if you exceed the production rate you achieved during your test by too much then you have to retest. The question immediately comes to mind, is this required test before or after the fine that is going to result from going over the production rate achieved during my compliance testing? Without a clear indication of what is “too much” EPA invites states and regions to take action for any exceedance.