[Federal Register: January 14, 2009 (Volume 74, Number 9)]
[Rules and Regulations]
[Page 1927-1937]
[DOCID:fr14ja09-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-1147; FRL-8758-8]

Approval and Promulgation of Implementation Plans; Texas; Control
of Emissions of Nitrogen Oxides (NOX) From Cement Kilns

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing approval of revisions to the Texas State
Implementation Plan (SIP). We are approving the rules in 30 TAC Chapter
117 that the State submitted on May 30, 2007, concerning control of
emissions of NOX from cement kilns operating in Bexar,
Comal, Ellis, Hays, and McLennan Counties. We are approving the
nonsubstantive renumbering of the rules for all five counties. We also
are approving the substantive changes to the rules for Ellis County,
based on a determination that the rules for Ellis County meet the
NOX Reasonably Available Control Technology (RACT)
requirements for cement kilns operating in the Dallas Fort Worth (D/FW)
1997 8-hour ozone nonattainment area. We are taking this action under
section 110 and part D of the Federal Clean Air Act (the Act, or CAA).

DATES: This rule will be effective on February 13, 2009.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2007-0523. All documents in the docket are
listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information or other information whose 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 www.regulations.gov or in hard
copy at the Air Planning Section (6PD-L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file
will be made available by appointment for public inspection in the
Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m.
weekdays except for legal holidays. Contact the person listed in the
FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment.
If possible, please make the appointment at least two working days in
advance of your visit. There will be a 15 cent per page fee for making
photocopies of documents. On the day of the visit, please check in at
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas,
Texas.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>, fax
(214) 665-7263, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA.

Table of Contents

I. Background
    A. What are we approving?
    B. Who submitted written comments to us?
    C. How are we responding to those written comments?
    D. What sections of the May 30, 2007 submittal will become part
of Texas SIP?
    E. What sections of the May 30, 2007 submittal will not become a
part of Texas SIP?
    F. What Texas Counties will this rulemaking affect?
    G. What are the NOX control emissions requirements
that we approved for Texas under the 1-hour ozone SIP?
    H. What are the NOX control emissions requirements
that we are approving for Texas under the 8-hour ozone SIP?
    I. What are the compliance schedules for NOX
emissions from cement kilns that we are approving?
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

A. What are we approving?

    The EPA approved 30 TAC, Chapter 117, NOX cement kilns
rules at 69 FR 15681 published on March 26, 2004, as NOX
control emissions requirements for Texas under the 1-hour ozone SIP. On
May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter 117,
``Control of Air Pollution from Nitrogen Compounds,'' as a revision to
the Texas SIP. On July 11, 2008 (73 FR 39911), we proposed approval of
the May 30, 2007

submittal. Today, we are finalizing our July 11, 2008, proposed
approval.
    In this rulemaking, we are approving the nonsubstantive renumbering
of the rules for cement kilns operating in Bexar, Comal, Ellis, Hays,
and McLennan Counties. We are approving the substantive changes to the
rules for cement kilns operating in Ellis County as meeting the Act's
RACT requirements for NOX emissions for the cement kiln
source category in the D/FW 1997 8-hour ozone nonattainment area.
    The State's adopted source cap calculation for the cement plants in
Ellis County includes all kilns in operation at the three impacted
accounts, i.e., Ash Grove, Texas, L.P. (AG); TXI Operations, L.P.
(TXI); and Holcim, L.P. (Holcim). No operating kiln in Ellis County is
exempt from the source cap. The State chose 1.7 lb NOX/ton
of clinker for dry preheater-precalciner or precalciner kilns and 3.4
lb NOX/ton of clinker for wet kilns, as the emission factors
for calculating the source cap for the RACT rule. The NOX
source cap for cement manufacturing plants in Ellis County, Texas is
calculated by (a) multiplying the average annual production rate in
tons plus one standard deviation for the calendar years 2003, 2004, and
2005 from all wet kilns by 3.4 pound NOX/ton, (b)
multiplying the average annual production rate in tons plus one
standard deviation for the calendar years 2003, 2004, and 2005 from all
dry kilns by 1.7 pound NOX/ton, and (c) adding the computed
products in ``a'' and ``b'' together and dividing the sum by ((2000
(pounds/ton) x (365 (days/year)). Thus, producing a total allowable
NOX limit, in tons per day, on a 30-day rolling average
basis as a cap not to be exceeded. The source cap only applies during
the D/FW ozone season (March 1-October 31). See 117.3123(b).
    The rule provides multiple layers of flexibility by: (i) Providing
for one NOX limit during the ozone season (March 1 through
October 31), and another NOX limit during the non-ozone
season (November 1 through end-of February) within the D/FW area; (ii)
incorporating actual production rates that were provided by the
affected companies to the State, then adding one standard deviation to
the production rates as a part of rule development, for source cap
allowance determination to account for production variability; (iii)
not mandating a specific post combustion control technology; (iv)
allowing the source to decide its method of compliance with the source
cap; (v) determining compliance with the source cap on a 30-day rolling
average basis; and (vi) including all types of existing kilns.
Therefore, multiple layers of flexibility have been built into the rule
for compliance purposes.
    As stated in our proposal, EPA has defined RACT as the lowest
emission limitation that a particular source can meet by applying a
control technique that is reasonably available considering
technological and economic feasibility. See 44 FR 53761, September 17,
1979. Ozone nonattainment areas classified as moderate or above must
meet RACT requirements as provided in sections 182(b)(2) and 182(f) of
the Act. These two sections, taken together, establish the requirements
for Texas to submit a NOX RACT regulation for cement kilns
(a major source of NOX ) in ozone nonattainment areas
classified as moderate (such as D/FW) and above. Section 183(c) of the
Act provides that we will issue technical documents, which identify
alternative controls for stationary sources of NOX. The EPA
publishes the NOX related Alternative Control Techniques
(ACTs) documents for this purpose. The information in the ACT documents
is generated from literature sources and contacts, control equipment
vendors, EPA papers, engineering firms, and Federal, State, and local
regulatory agencies. States can use information in the EPA ACTs to
develop their RACT regulations. For a listing of EPA's ACT-related
documents, including the ACT document for Cement Manufacturing, see
http://www.epa.gov/ttn/naaqs/ozone/ctg_act/index.htm (URL dated April
22, 2008).
    The public comment period for our 73 FR 39911 proposal expired on
August 11, 2008. We received written comments during the public comment
period and we respond to those comments below.

B. Who submitted written comments to us?

    We received written comments on our July 11, 2008 (73 FR 39911)
proposal from AG, TXI, and Holcim during the public comment period.
Holcim's comments were submitted on this proposed action and on the
proposed action to conditionally approve the D/FW area's 1997 8-hour
ozone attainment demonstration SIP.

C. How are we responding to those written comments?

    Our responses to those written comments received are as follows:
    Comment #1: AG indicated that the applicable source cap in the rule
for Ellis County is achievable, AG intends to comply with the source
cap limit, and supports its approval by EPA.
    Response to Comment #1: We appreciate the AG's statement that it
intends to comply with the source cap limit in the rule.
    Comment #2: AG, TXI, and Holcim claim that the rule for Ellis
County exceeds RACT and has negligible value to air quality planning.
The State's photochemical modeling demonstrates that NOX
reductions from the cement plants would not have a measurable impact on
the critical ozone monitors in the D/FW area. Thus, the stringent
emission limitation is not a necessary component of the Texas SIP. TCEQ
has not performed any analysis indicating that a high level of
reduction of NOX emissions from the Ellis County cement
kilns would result in the D/FW area coming into compliance with the
1997 8-hour ozone standard.
    Response to Comment #2: As discussed previously, RACT is a
requirement of section 182 of the Act, and, regardless of whether the
controls are necessary for attainment of the 1997 8-hour ozone NAAQS in
the D/FW ozone nonattainment area, the SIP must include rules that meet
the VOC and NOX RACT requirements of the Act. In Appendix J
of the D/FW attainment demonstration SIP submission, entitled ``RACT
Analysis,'' Texas identifies (1) all Control Techniques Guidelines
(CTG) source categories of VOC and NOX emissions within the
D/FW area; (2) all non-CTG major sources of VOC and NOX
emissions; (3) the state regulation that implements or exceeds RACT for
each applicable CTG source category or non-CTG major emission source;
and describes the basis for concluding that these regulations fulfill
RACT. TCEQ in Appendix J, pages J-3 to J-5 and Table J-1, specifically
says that State rules that were consistent with or more stringent than
the current control technologies and methodologies implemented in other
moderate nonattainment areas were also determined to fulfill RACT
requirements for the D/FW area. Texas views the cement kiln rules to be
RACT for the D/FW area. It is not appropriate for EPA to question a
State's choice of RACT control, as long as the statutory requirements
of the Act are met. Florida Power & Light Co. v. EPA, 650 F.2d 570 (5th
Cir. 1981). Moreover, States may adopt regulations that are more
stringent than those required under the Act. See section 116 of the
Act. To meet the statutory requirements, states are to look at
available controls to conclude whether they are reasonably available
for a specific source or source category. Furthermore, a State is to
evaluate RACT for a source or source category by examining existing EPA
guidance documents as well as other available information, e.g., EPA's
BACT/RACT/

LAER Clearinghouse, ACTs. RACT can change over time as new technology
becomes available or the cost of existing technology adjusts. Today's
RACT determination for a source category can be more stringent than a
previous determination and thus controls previously considered ``beyond
RACT'' could be considered RACT for sources now.
    We disagree that the rules for cement kilns in the D/FW area will
have a negligible value to the area's air quality planning. The rules
should result in 9.7 tons per day (TPD) of reduction in NOX
emissions for the D/FW area, which is a significant improvement. See
section 9 at 73 FR 39914 of our proposal. The EPA has reviewed the
impact of emission reductions at the cement kilns in the D/FW area and
determined that such reductions are beneficial to reducing ozone levels
in the D/FW nonattainment area especially in much of Tarrant and Parker
Counties.
    Today's action only concerns approving the nonsubstantive
renumbering of the NOX cement kiln rules into the Texas SIP,
and approving the substantive changes to the NOX cement kiln
rules for Ellis County as meeting the Act's NOX RACT
requirement. Therefore, any comments on the State's choices of control
strategies in the D/FW area's attainment demonstration SIP are not
relevant. In a separate proposed action published on July 14, 2008 at
73 FR 40203, EPA has taken comment on whether the cement kilns rule, in
combination with the other State and Federal Measures, will result in
attainment of the 1997 8-hour ozone NAAQS, and we will respond to
Holcim's comments on these issues in a final action on that proposal.
Additionally, we note that EPA is required to approve a SIP revision if
it meets the Act's requirements, and cannot second guess the State's
choices if the plan meets the minimum requirements of the Act. The Act
assigns to the states initial and primary responsibility for
formulating a plan to achieve the NAAQS. It is up to the State to
prepare SIPs, which contain specific pollution control measures. The
EPA is charged with evaluating the SIP revision submittal, and if it
meets the minimum statutory criteria, the EPA must approve it. Train v.
NRDC, 421 U.S. 60 (1975). It is not EPA's role to rule out the State's
choice of components of its SIP submittal so long as the plan is
adequate to meet the standards mandated by EPA. See Train v. NRDC at
79-80, and see Union Electric v. EPA, 427 U.S. 246 (1976). The EPA
disapproves a SIP submittal only if it fails to meet the minimum
statutory requirements. Seabrook v. Costle, 659 F.2d 1349 (5th Cir.
1981). A state may impose stricter limitations than the Act requires.
See section 116 of the Act; Union Electric at 265.
    Comment #3: TXI states that Table 5, section 9 of EPA's proposal
fails to mention the alternative NOX control options allowed
under the Texas 1-hour ozone NOX SIP will be available to
Ellis County cement kilns during the non-ozone season.
    Response to Comment #3: While Table 5, section 9 of EPA's proposal
is factually correct, it does not specifically mention the alternative
NOX control option. TCEQ removed these options for cement
kilns in Ellis County during the D/FW area's ozone season; EPA
recognizes these compliance options are available during the non-ozone
season (November 1st through the end of February). For the other four
counties, which are not a part of the D/FW 8-hour ozone nonattainment
area, cement kilns' NOX alternative control options continue
to remain in effect year round. See section 117.3110.
    Comment #4: TXI and Holcim commented that improvement in the D/FW
ozone situation should come from mobile sources, not the cement kilns.
    Response to Comment #4: This comment is not relevant to today's
action because this action solely reviews the Ellis County cement kiln
rules for purposes of the NOX RACT requirement of the Act.
Holcim provided the same comment, however, on our proposed action to
conditionally approve the D/FW 1997 8-hour ozone attainment
demonstration SIP. We will address this comment in the final rulemaking
action on that SIP. See the response to comment 2 of this
document for more detail.
    Comment #5: TXI and Holcim expressed support for TCEQ not adopting
the ``high control'' option for the Ellis County kilns, due to
technical issues associated with the Selective Catalytic Reduction
(SCR), and Low Temperature Oxidation (LoTOx) technologies. They further
claim that neither SCR nor LoTOx technology constitutes RACT for the
control of NOX from the Midlothian Cement kilns.
    Response to Comment #5: We agree that the current State-adopted
level of NOX control for cement kilns in the D/FW area meets
the RACT requirement for these sources at this time. We note, however,
that air pollution control technology continues to advance and the
State may need to consider additional NOX controls at cement
plants as it develops the SIP required for the 2008-revised ozone
standard.
    Comment #6: TXI commented that the NOX emission factors
used in the source cap equation are possibly the lowest specifications
adopted by a state agency in the United States because the selected
emission specification for the preheater/precalciner kilns of 1.7 lb
NOX/ton of clinker represents a significant reduction from
NOX specification of 1.95 lb NOX/ton of clinker
that has been selected as BACT in recent permitting actions for new PH/
PC kilns. Adoption of these very low NOX emission
specifications in the source cap equation is extremely aggressive.
    Response to Comment #6: We agree that these levels are more
aggressive than levels previously included in certain permits issued by
the State. We have concluded that, at a minimum, these levels are
consistent with RACT. While the commenter implies (but does not
directly allege) that the levels are beyond RACT, the Act does not
preclude the State from adopting controls that are more stringent than
the minimum level required.
    We note that this is not the first time TCEQ has adopted a rule in
Chapter 117 to meet RACT that is more stringent than past permits' BACT
decisions. We recognize that compliance with the levels in the Texas
rules will require significant effort from the cement plant owners and
operators.
    Comment #7: TXI and Holcim state that adoption of the source cap
equation is inequitable and does not allow them to have a significant
production increase. Holcim claims that over 60% of the total
NOX reductions anticipated from the source cap requirement
will be from Holcim's two kilns, despite the fact that there are eight
other cement kilns operating in Ellis County. Holcim comments that TCEQ
has unfairly targeted Holcim as a source of emission reductions in
Ellis County. TXI finds the rule to be retroactive because the source
cap is based upon the average production for 2003, 2004, and 2005. This
figure allegedly does not include the increase in production allowed by
a permit issued in late 2005. To meet the source cap, TXI may have to
shutdown its wet kilns while operating its dry kiln.
    Response to Comment #7: The primary role of the statutory RACT
requirement is to impose controls upon existing facilities and
equipment. RACT has been a requirement of the Act since 1977. Congress
through the 1977 Clean Air Act Amendments imposed stricter minimum
requirements by placing RACT limitations on nonattainment areas. CAA
Section 172(b)(3), 42 U.S.C. 7502(b)(3) (1977). The use of the term

``retroactive'' by TXI is misleading in that the RACT controls will
apply to TXI's existing sources, but TXI is provided sufficient time to
install the controls by a date well after TCEQ has promulgated the RACT
regulations.
    As discussed previously in response to comment 2 of this
document, EPA cannot reject the State regulations because they may
apply in an inequitable manner. While TXI alleges it may have to shut
down some of its units to operate others, the Act does not preclude the
State from adopting controls that are more stringent than the minimum
level required. The Act gives the States exclusive control in selecting
which sources to regulate and to what degree, and EPA does not have
authority to second guess the State's choices so long as the programs
adopted meet the minimum statutory requirements. See Union Electric v.
EPA, 427 U.S. 246 (1976).
    Comment #8: Holcim commented that the ERG cement kiln study cannot
be relied upon by TCEQ to establish the NOX controls imposed
on the Ellis County cement kilns in the source cap rule. Holcim
contends that the ERG cement kiln study is internally inconsistent,
inaccurate in its assessment of available NOX control
technologies for the Ellis County cement kilns, incomplete in that it
did not fully analyze the impacts of kiln feedstocks on the viability
of add-on NOX control technologies or address other tasks
included in the Scope of Work, and is unreliable as a basis for
NOX controls for the Ellis County kilns. It inaccurately
estimates the level of reductions achievable using SNCR on some of the
Ellis County kilns. Holcim commented that the ERG Final Report fails to
include retrofitting costs such as new ID fans for all kilns necessary
for utilizing SCR and LoTOx systems. Holcim further claims that the
limestone and raw materials used in Ellis County kilns are different
from the limestone, and raw materials used by other plants in the
world, and deficiencies in the ERG Report is not scientifically or
factually valid, and is not a reliable basis for TCEQ's adoption of the
Source Cap Rule or EPA's approval of TCEQ's SIP. Holcim also
incorporates by reference the comments on the ERG Final Report that
were submitted to the State.
    Response to Comment #8: As an initial matter, we note that we
cannot second guess the State's conclusions, so long as our review
determines that the rules developed meet the minimum statutory
requirements. Holcim appears to be claiming that the rules are too
stringent because they are based on a study with which Holcim finds
fault. However, even if such claim were true, we cannot disapprove the
rules when they meet the minimum statutory requirements for RACT. Any
requirement beyond the basic RACT level of control is not a basis for
EPA to disapprove the rule, as the CAA leaves the choice to the State
to determine whether to go beyond the minimum statutory requirements of
the Act.
    The referenced study can be found in Appendix I of the D/FW 1997 8-
hour ozone attainment demonstration SIP revision submittal and is
available on the TCEQ's Web site at www.tceq.state.tx.us/
implementation/air/sip/BSA_settle.html. The ERG, Inc. prepared the
Report, and it is entitled ``Assessment of NOX Emissions
Reduction Strategies for Cement Kilns--Ellis County: Final Report,''
dated July 14, 2006. The State relied upon it as well as all other
available documentation to determine what should be RACT for the cement
kilns.
    This Report was prepared because of a study conducted on behalf of
TCEQ pursuant to an April 22, 2005, settlement agreement in a lawsuit
brought against EPA by Blue Skies Alliance and others. The TCEQ, the
Portland Cement Association, several counties, and others were
permitted by the Court to intervene. The Portland Cement Association
represented Holcim's interests in the lawsuit. The Settlement Agreement
was filed with the Federal District Court for the Northern District of
Texas in June 2005.
    Pursuant to paragraph A.3.b. of the Settlement Agreement entitled,
``Cement Kiln Control Technology Study,'' TCEQ was required to meet
with Plaintiffs, EPA, and the Portland Cement Association to review and
comment upon the proposed scope of work to contract with a consultant
to perform a cement kiln study to evaluate the potential availability
of new air pollution control technologies for cement kilns in the D/FW
area. The proposed scope of work also was to include consideration of
SCR and to evaluate and establish what type of controls may be
technically and economically applied to the three cement plants in
Ellis County. Holcim participated in the meetings on the proposed scope
of work. The TCEQ's choice of a contractor was required to be made with
consultation with the Plaintiffs, EPA, and the Portland Cement
Association. Holcim participated in the choice of contractor. Midway
through the study's progress, the contractor was required to identify
to the Plaintiffs, EPA, and the Portland Cement Association, a list of
cement kilns with advanced NOX emission reduction
technologies being analyzed as part of the study. Holcim received this
information. TCEQ was required to establish channels of communication
with the Parties for technical air quality issues and make a good faith
effort to address problems identified by the Parties. TCEQ also was
required to meet with the Parties on other issues of interest and
concern in the cement kiln matter. Holcim was involved in the
communications and meetings with TCEQ and provided comments on the
Draft Report and the final. The EPA has not been provided with any
legal document filed with the Federal District Court asserting that
TCEQ failed to meet its legal obligations under the Settlement
Agreement of making a good faith effort to address any problems
identified by Holcim.
    The ERG Report evaluated the applicability, availability, technical
feasibility, and cost-effectiveness of NOX control
technologies for cement kilns located in the D/FW area beyond the
requirements of the NOX rules in the SIP at the time of the
Report (i.e., rules adopted by the State in 2003 and approved by EPA at
69 FR 15681 (March 24, 2004)). The Report is consistent with EPA's ACT
(2000) document, proposed New Source Performance Standard (NSPS) for
Portland cement plants at 73 FR 34072 (June 16, 2008), and the BACT/
RACT/LAER Clearinghouse.
    Comment #9: Holcim commented that for its two PH/PC kilns, the TCEQ
proposed equation at section 117.3123(b) for calculating a
NOX source cap would establish an emission rate of 2.84 TPD
of NOX emissions per PH/PC kiln, with a plant-wide
NOX emission limit of 5.68 TPD (2.84 TPD x 2 kilns). In its
comments to the State, Holcim alternatively proposed a plant-wide
NOX limit of 8.5 tons per day to be applied during the ozone
season only. The TCEQ, however, adopted the equation at section
117.3123(b) for calculating a NOX source cap that
establishes a more stringent emission rate than Holcim had requested,
without going through another round of public comment and hearing.
    Response to Comment #9: Courts have consistently held that an
agency is not required to start over with a new notice of proposed
rulemaking, if the final rule is a ``logical outgrowth'' of the
proposed rule. It is an established administrative law principle that
after hearing all public comments, the agency may end up substantially
revising the original proposed rule. What is required is that the
proposal notice should be sufficiently descriptive of the `subjects and
issues involved' so that interested parties may offer informed
criticism and

comments. See Ethyl Corp. v. EPA, 541 F.2d 1, 48 (DC Cir. 1976). If the
final rule is logically connected to the proposed rule, the public is
considered to have had an adequate opportunity to make its views known.
The State's proposal was clear that the issues were an appropriate
emissions limitation, and a corresponding source cap equation. After
the close of the public comment period, and upon review and evaluation
of the submitted comments, the State merely expanded on prior
information, and addressed alleged deficiencies in the pre-existing
data. See Rybachek v. EPA, 904 F.2d 1276, 1286 (9th. Cir. 1990).
    The resultant equation is in a format consistent with other
equations in Chapter 117. The public was provided an ample opportunity
to provide comments on the appropriateness of NOX emissions
limitations, and what would be the appropriate corresponding equation.
An integral part of rulemaking is for the State to have the authority
and discretion to revise its initial version of a proposed rule,
consistent with the terms of its proposal, based on relevant
information it receives during public comment period. It is not an
uncommon practice for a state to issue a final rule that differs from
the proposal based on the receipt of relevant information during its
public comment period.
    Comment #10: TXI and Holcim comment that neither SCR nor
LoTOX technology constitutes RACT for the control of
NOX from the Ellis County cement kilns, and refer to their
comments on the draft and final Report.
    Response to Comment #10: We believe that these requirements in the
State's rules meet the minimum level of control required for RACT rules
and, as discussed previously, the issue of whether the rules are more
stringent than what is necessary to meet RACT is not pertinent for our
review of the rules.
    Comment #11: Holcim commented that according to a ``New Source
Analysis and Technical Review'' (Technical Review) in conjunction with
Holcim's PSD Permit No. 8996/PSD-TX-454M3, issued in 2005, the TCEQ
technical staff stated that NOX reductions using SNCR are
``typically 20-40%.'' Holcim continues that the Technical Review cited
above; however, mentions that a kiln in Sweden, with a high baseline,
had demonstrated 83% NOX reduction. Therefore, the State's
NOX cement kiln rule for Ellis County is too stringent
because it assumes a control level greater than what was in the 2005
permit.
    Response to Comment #11: While Holcim accurately describes the
conclusion reached as part of the 2005 permitting determination,
additional information has become available since that time, as
described in the 2006 Report, the documents supporting the EPA's
proposed NSPS, etc. This additional information illustrates that using
SNCR with well-designed and properly operated process design, e.g.,
low-NOX burners, Staged Combustion in the Calciner (SCC)
mechanism, can achieve as high as 70% reductions. Air pollution control
equipment can often achieve greater percent reduction with higher
uncontrolled emission rates (high baseline). This means that if a kiln
is already controlled with low-NOX burners and SCC
mechanism, then the percent reduction of NOX with the
addition of the SNCR from that kiln will be less.
    Comment #12: Holcim contends that it cannot meet the ozone season
emission factor of 1.7 pounds of NOX per ton of clinker
produced. This emission factor is used by the TCEQ in the equation to
establish a plant-wide NOX emission source cap for each of
the three cement kiln companies in Ellis County. 30 TAC 117.3123(b).
Because it allegedly cannot meet this emission factor, Holcim claims it
cannot meet the plant-wide NOX emission source cap for its
PH/PC kilns. Holcim states that it repeatedly commented on the proposed
emission factor to TCEQ during the rulemaking process, claiming that it
cannot achieve this emission factor, despite its recent installation of
SNCR and based upon testing of the SNCR. According to Holcim, testing
for its kiln 2 showed it did not meet the 1.7 pounds
NOX/ton of clinker emission factor, but rather it met 1.95
lb NOX/ton of clinker. Holcim claims the 1.95 emission
factor was determined to be BACT in a recent air permit for kiln
2, and that TCEQ adopted the 1.7 pounds NOX per ton
of clinker emission factor without adequate justification. TCEQ did not
adequately consider the technical practicability, and economic
reasonableness of the limitations contained in the source cap rule.
TCEQ did not adequately consider the reasonable availability of control
technology for Holcim's kilns, and the emission limitations are not
practically achievable using SNCR.
    Response to Comment #12: We believe that the State's rules meet the
minimum level of control required for RACT rules and, as discussed
previously, the issue of whether the rules are more stringent than what
is necessary to meet RACT is not pertinent for our review of the rules.
Further, the source cap does rule not mandate the type of control that
a source must use.
    The source cap includes a NOX emission factor of 1.7
pounds per ton of clinker for dry preheater-precalciner or precalciner
kilns, and a NOX emission factor of 3.4 pounds per ton of
clinker for wet kilns. According to TCEQ, emission levels of 1.7 pounds
per ton of clinker have been demonstrated on a dry preheater-
precalciner or precalciner kiln in Ellis County without the addition of
the SNCR or other controls considered as part of the cement kiln study.
The commenter has two kilns, one of which is a dry preheater-
precalciner kiln.
    The information in EPA's proposed NSPS (73 FR 34072) indicates that
an emission factor of 1.5 pound NOX per ton of clinker
produced is achievable and cost effective. In fact, NOX
emission factors of 1.62 to 1.97 pound NOX per ton of
clinker produced have been demonstrated without adding SNCR.
    The information in EPA's proposed NSPS (73 FR 34072) indicates that
an emission factor of 1.95 pound NOX per ton of clinker
produced can be achieved on average for approximately $2,000 per ton of
NOX reduced, and at the 1.5 lb/ton of clinker level for
approximately $2,100 per ton of NOX reduced.
    The State estimated the cost effectiveness for SNCR presented in
the cement kiln study to be $1,400 to $2,300 per ton on NOX.
    We reviewed TCEQ's evaluation and find it to be sufficient to
support a finding that the cement kiln requirements of 30 TAC Chapter
117 constitute RACT for the D/FW area.
    Comment #13: Holcim states that neither TCEQ nor EPA has conducted
a proper source-specific RACT analysis for Holcim's cement kilns in
Ellis County.
    Response to Comment #13: While a State can consider source-specific
considerations when setting RACT levels of control, it is not obligated
to do so. RACT is most often implemented through source category rules.
In setting a source category rule for cement plants, TCEQ set a limit
it believes, and EPA agrees, meets the statutory minimum for a RACT
level of control at all of the affected cement manufacturers.
    Comment #14: Holcim asserts that there are other problems with the
source cap provision of the rule which should prevent it from being
used to set the NOX emission limitations: a) TCEQ's
selection of the 2003-2005 time period to calculate a source's actual
production is without any basis; b) TCEQ's source cap equation fails to
take into account facility downtime; and c) TCEQ's source cap equation
fails to take into account the need for alkali bypass at the Holcim
facility.

    Response to Comment #14: As discussed previously, the comments are
not relevant to determining that the rule at a minimum meets the RACT
requirement of the Act.
    This is not the first time TCEQ has used the three most recent year
production or capacity data for equations in other parts of Chapter
117, and EPA has approved that approach as a part of the Texas SIP. The
production information is the actual data reported by the sources to
the TCEQ. The source cap equation takes into account facility downtime
and operation by using the three years of actual production rate data
reported to TCEQ. With regard to the alkali bypass issue; this comment
is not relevant to our RACT review because, as noted previously, EPA
cannot second guess the State's choices of control level as long as it
meets the minimum level required to satisfy RACT.
    This concludes our responses to the written comments we received
during public comment period.

D. What sections of the May 30, 2007 submittal will become part of
Texas SIP?

    Table 1 below contains a summary list of the sections of 30 TAC,
Chapter 117 that EPA is approving into the Texas SIP.

Table 1--Section Numbers and Section Descriptions of 30 TAC, Chapter 117
                    Affected by the Cement Kilns Rule
------------------------------------------------------------------------
              Section No.                          Description
------------------------------------------------------------------------
Section 117.3100.......................  Applicability.
Section 117.3101.......................  Cement Kilns Definitions.
Section 117.3103.......................  Exemptions.
Section 117.3110.......................  Emission Specifications.
Section 117.3120.......................  Source Cap.
Section 117.3123.......................  Dallas-Fort Worth Eight-Hour
                                          Ozone Attainment Demonstration
                                          Control Requirements.
Section 117.3140.......................  Continuous Demonstration of
                                          Compliance.
Section 117.3142.......................  Emission Testing and Monitoring
                                          for Eight-Hour Attainment
                                          Demonstration.
Section 117.3145.......................  Notification, Recordkeeping,
                                          and Reporting Requirements.
Section 117.9320.......................  Compliance Schedule for Cement
                                          Kilns.
------------------------------------------------------------------------

    You can find complete TCEQ's rules and regulations at http://
www.tceq.state.tx.us/rules/indxpdf.html.

E. What sections of the May 30, 2007 submittal will not become a part
of Texas SIP?

    Per TCEQ's request the following sections, listed in Table 2 below,
of the cement kilns rule will not become a part of EPA-approved Texas
SIP. These sections mainly pertain to the control of ammonia, that is
not a precursor to ozone, and are not required to be a part of the SIP.

     Table 2--Sections of Chapter 117 Not in EPA-Approved Texas SIP
------------------------------------------------------------------------
              Section No.                          Explanation
------------------------------------------------------------------------
117.3123(f), and 117.3125..............  Not a part of EPA-approved
                                          Texas SIP.
------------------------------------------------------------------------

    Although the above sections of 30 TAC Chapter 117 are not to become
a part of Texas SIP, they will continue to remain enforceable at the
State level.

F. What Texas Counties will this rulemaking affect?

    Table 3 below lists the five Texas Counties that will be affected
by the cement kilns rule.

   Table 3--Texas Counties Affected by Cement Kiln Rulemaking of 2007
------------------------------------------------------------------------
             Texas counties                        Explanation
------------------------------------------------------------------------
Bexar, Comal, Ellis, Hays, and McLennan  See section 117.3101.
------------------------------------------------------------------------

G. What are the NOX control emissions requirements that we
approved for Texas under the 1-hour ozone SIP?

    We approved the NOX control emission requirements for
cement kilns at 69 FR 15681 published on March 26, 2004. See Table III
of that document. We included that Table in the TSD prepared for our
proposal.

H. What are the NOX control emissions requirements that we
are approving for Texas under the 8-hour ozone SIP?

    Ellis County is located within the D/FW 8-hour ozone nonattainment
area. The ozone season for the D/FW area is March 1 through October 31
of each calendar year. See 40 CFR part 58, Appendix D, Table D-3, and
40 CFR 81.39. For Ellis County, during the non-ozone season (November 1
through end-of-February of each calendar year), the cement kilns
NOX control requirements that we approved at 69 FR 15681
will continue to remain in effect. However, during the ozone season,
March 1 through October 31 of each calendar year, the cement kilns in
Ellis County must comply with a source cap formula calculated and
expressed in TPD of

actual NOX emissions, per site, on a 30-day rolling average
basis. See equation 117.3123(b). The following Table 4 contains a
summary list of NOX control requirements for cement kilns
under the 8-hour ozone SIP.

                  Table 4--NOX Control Requirements for Cement Kilns Under the 8-Hour Ozone SIP
----------------------------------------------------------------------------------------------------------------
               Source                        County            NOX emission requirement          Citation
----------------------------------------------------------------------------------------------------------------
Long wet kiln......................  Bexar, Comal, Hays,     6.0 lb NOX/ton of clinker    117.3110(a)(1)(A).
                                      McLennan.               produced.
Long dry kiln......................  Bexar, Comal, Hays,     5.1 lb NOX/ton clinker of    117. 3110(a)(2).
                                      McLennan.               produced.
Preheater kiln.....................  Bexar, Comal, Hays,     3.8 lb NOX/ton of clinker    117. 3110(a)(3).
                                      McLennan.               produced.
Precalciner or preheater-            Bexar, Comal, Hays,     2.8 lb NOX/ton of clinker    117.3110(a)(4).
 precalciner kiln.                    McLennan.               produced.
Long wet kiln......................  Ellis.................  4.0 lb NOX/ton of clinker    117.3110(a)(1)(B).
                                                              produced, outside D/FW
                                                              ozone season.
Preheater kiln.....................  Ellis.................  3.8 lb NOX/ton of clinker    117.3110(a)(3).
                                                              produced, outside D/FW
                                                              ozone season.
Long dry kiln......................  Ellis.................  5.1 lb NOX/ton of clinker    117.3110(a)(2).
                                                              produced, outside D/FW
                                                              ozone season.
Precalciner or preheater-            Ellis.................  2.8 lb NOX/ton of clinker    117.3110(a)(4).
 precalciner kiln.                                            produced, outside D/FW
                                                              ozone season.
Portland cement kiln...............  Ellis.................  During D/FW ozone season,    117.3123(b).
                                                              30-day rolling average,
                                                              source cap equation
                                                              117.3123(b), with the 2003-
                                                              2005 reported average
                                                              annual clinker production,
                                                              limit is equivalent to 1.7
                                                              lb NOX/ton of clinker
                                                              produced for dry preheater-
                                                              precalciner or precalciner
                                                              kilns, or 3.4 lb NOX/ton
                                                              of clinker produced for
                                                              long wet kilns.
----------------------------------------------------------------------------------------------------------------

    The cement kilns rule does not require or endorse a specific
postcombustion NOX control technology, and allows the owners
or operators to choose their preferred method of compliance as long as
the source cap limit, per site, is being met. These NOX
control requirements will result in a 9.7 TPD of NOX
reduction from cement kilns in Ellis County. We have determined the
above NOX control requirements for existing cement kilns in
the D/FW area are consistent with the RACT requirements of the Act.
Therefore, we are approving them into the Texas SIP as meeting the RACT
requirement for the D/FW 8-hour ozone nonattainment area. See our TSD
prepared in conjunction with this rulemaking action for more
information.

I. What are the compliance schedules for NOX emissions from
cement kilns that we are approving?

    The compliance schedule for cement kilns located in Texas Counties
of Bexar, Comal, Hays, and McLennan will continue to remain in effect
as we approved it at 69 FR 15681. See Table IV of that document. We
included that Table in our TSD prepared for the proposal.
    The following Table 5 contains a summary of the NOX
compliance schedule-related information for cement kilns in Ellis
County. See section 117.9320(c) for more information.

          Table 5--NOX Compliance Schedules for Cement Kilns in Ellis County Under the 8-Hour Ozone SIP
----------------------------------------------------------------------------------------------------------------
                 Source                          Compliance date            Additional information     Citation
----------------------------------------------------------------------------------------------------------------
Cement Kilns--Ellis County.............  Comply with testing,             8-hour attainment             117.9320
                                          monitoring, notification,        demonstration
                                          recordkeeping, and reporting     requirement.
                                          requirements as soon as
                                          practicable but no later than
                                          March 1st, 2009.
----------------------------------------------------------------------------------------------------------------

    We believe that including the compliance dates in the rule provides
for enforceability and practicability of the NOX rule, and
enhances the Texas SIP. The March 1, 2009 compliance date for cement
kilns in Ellis County is consistent with the implementation requirement
set forth in 40 CFR 51.912(a)(3). Therefore, we are approving them into
Texas SIP, and as meeting the RACT requirement for the D/FW 8-hour
ozone nonattainment area.

II. Final Action

    Today, we are approving revisions to the 30 TAC Chapter 117 into
the Texas SIP. In this rulemaking, we are approving the nonsubstantive
renumbering of the cement kilns provisions of the May 30, 2007
submittal for cement kilns operating in Bexar, Comal, Ellis, Hays, and
McLennan Counties of Texas. We are approving the substantive cement
kilns provisions of the May 30, 2007 submittal for cement kilns
operating in Ellis County as meeting the Act's RACT requirement for
NOX emissions from cement kilns operating in the D/FW 8-hour
ozone nonattainment area. We are also making ministerial corrections to
the table in 40 CFR 52.2270(c) entitled ``EPA-Approved Regulations in
the Texas SIP'' to reflect our approval of certain revisions to 30 TAC
117 on December 3, 2008 (73 FR 73562). The ministerial corrections
apply to table headings and entries for sections 117.323, 117.1110,
117.1205, 117.1210 and 117.2135 under Chapter 117--Control of Air
Pollution from Nitrogen Compounds.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the

provisions of the Act and applicable Federal regulations. 42 U.S.C.
7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's
role is to approve state choices, provided that they meet the criteria
of the Clean Air Act. Accordingly, this action merely approves state
law as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act;
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994); and
     Does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.
    The Congressional Review Act, 5 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. EPA will submit a report containing this action 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 16, 2009. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxide, Reporting and recordkeeping requirements, Volatile organic
compounds.

    Dated: December 17, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. In Sec.  52.2270 the entry for Chapter 117--Control of Air Pollution
from Nitrogen Compounds in the table in paragraph (c) is revised by:
0
a. Removing the entry for the Section 117.223 under Subchapter B,
Division 3.
0
b. Adding the entry for Section 117.323 under Subchapter B, Division 3.
0
c. Revising the entry for Section 117.1110 under Subchapter C, Division
2.
0
d. Revising the entries for Sections 117.1205 and 117.1210 under
Subchapter C, Division 3.

0
e. Revising the entry for Section 117.2135 under Subchapter D, Division
2.
0
f. Removing the entries for Sections 117.260, 117.261, 117.265,
117.273, 117.279, 117.283, and 117.524 under Subchapter E, Division 2.
0
g. Adding the entries for Sections 117.3100, 117.3101, 117.3103,
117.3110, 117.3120, 117.3123, 117.3140, 117.3142, and 117.3145 under
Subchapter E, Division 2.
0
h. Revising the heading above Section 117.4200 entitled ``Division 2--
Nitric Acid Manufacturing--Ozone Nonattainment Areas'' under Subchapter
F to read ``Division 3--Nitric Acid Manufacturing--General''.
0
i. Adding the entry for Section 117.9320 under Subchapter H, Division
1, in numerical order.
0
j. Removing the heading entitled ``Subchapter H--Administrative
Provisions,'' above Division 2.
    The removals and additions read as follows:

Sec.  52.2270   Identification of plan.

* * * * *
    (c) * * *

                                                        EPA-Approved Regulations in the Texas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State approval/
          State citation                  Title/subject         submittal date           EPA approval date                       Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Chapter 117--Control of Air Pollution from Nitrogen Compounds
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Subchapter B--Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Division 3--Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.323..................  Source cap.................       5/30/2007  1/14/2009 [Insert FR page number
                                                                                where document begins].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Subchapter C--Combustion Control at Major Utility Electric Generation Sources in Ozone Nonattainment Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               Division 2--Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Generation Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.1110.................  Emission Specifications for       5/30/2007  1/14/2009 [Insert FR page number     117.1110(b) not in SIP.
                                    Attainment Demonstration.                    where document begins].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Division 3--Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.1205.................  Emission Specifications for       5/30/2007  1/14/2009 [Insert FR page number
                                    Reasonably Available                         where document begins].
                                    Control Technology (RACT).
Section 117.1210.................  Emission Specifications for       5/30/2007  1/14/2009 [Insert FR page number     117.1210(b) not in SIP.
                                    Attainment Demonstration.                    where document begins].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Subchapter D--Combustion Control at Minor Sources in Ozone Nonattainment Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Division 2--Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.2135.................  Monitoring, Notification,         5/30/2007  1/14/2009 [Insert FR page number
                                    and Testing Requirements.                    where document begins].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Subchapter E--Multi-Region Combustion Control
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Division 2--Cement Kilns
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.3100.................  Applicability..............       5/30/2007  01/14/2009 [Insert FR page number
                                                                                where document begins].
Section 117.3101.................  Cement Kilns Definitions...       5/30/2007  1/14/2009 [Insert FR page number
                                                                                where document begins].
Section 117.3103.................  Exemptions.................       5/30/2007  1/14/2009 [Insert FR page number
                                                                                where document begins].
Section 117.3110.................  Emission Specifications....       5/30/2007  1/14/2009 [Insert FR page number
                                                                                where document begins].
Section 117.3120.................  Source Cap.................       5/30/2007  1/14/2009 [Insert FR page number
                                                                                where document begins].
Section 117.3123.................  Dallas-Fort Worth Eight-          5/30/2007  1/14/2009 [Insert FR page number     117.3123(f) not in SIP.
                                    Hour Ozone Attainment                        where document begins].
                                    Demonstration Control
                                    Requirements.
Section 117.3140.................  Continuous Demonstration of       5/30/2007  1/14/2009 [Insert FR page number
                                    Compliance.                                  where document begins].
Section 117.3142.................  Emission Testing and              5/30/2007  1/14/2009 [Insert FR page number
                                    Monitoring for Eight-Hour                    where document begins].
                                    Attainment Demonstration.
Section 117.3145.................  Notification,                     5/30/2007  1/14/2009 [Insert FR page number
                                    Recordkeeping, and                           where document begins].
                                    Reporting Requirements.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Subchapter F--Acid Manufacturing
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Division 3--Nitric Acid Manufacturing--General
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Subchapter H--Administrative Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Division 1--Compliance Schedules
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 117.9320.................  Compliance Schedule for           5/30/2007  1/14/2009 [Insert FR page number
                                    Cement Kilns.                                where document begins].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
 [FR Doc. E9-119 Filed 1-13-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 8 (Wednesday, January 13, 2016)]
[Proposed Rules]
[Pages 1573-1577]
[FR Doc No: 2015-33175]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2015-8427; Directorate Identifier 2014-NM-212-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: We propose to supersede Airworthiness Directive (AD) 2007-10-
10 R1, for all Airbus Model A300 B4-600, B4-600R, and F4-600R series

airplanes, and Model A300 C4-605R Variant F airplanes (collectively
called Model A300-600 series airplanes). AD 2007-10-10 R1 currently
requires revising the airworthiness limitations section (ALS) of the
instructions for continued airworthiness (ICA) to incorporate new
limitations for fuel tank systems. Since we issued AD 2007-10-10 R1,
the manufacturer has issued more restrictive maintenance requirements
and/or airworthiness limitations. This proposed AD would require
revising the maintenance program or inspection program to incorporate
revised fuel maintenance and inspection tasks. We are proposing this AD
to prevent the potential of ignition sources inside fuel tanks, which,
in combination with flammable fuel vapors caused by latent failures,
alterations, repairs, or maintenance actions, could result in fuel tank
explosions and consequent loss of the airplane.

DATES: We must receive comments on this proposed AD by February 29,
2016.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
    For service information identified in this proposed AD, contact
Airbus SAS, Airworthiness Office--EAW, 1 Rond Point Maurice Bellonte,
31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61
93 44 51; email<EMAIL_ADDRESS>Internet http://www.airbus.com. You may view this referenced service information at the
FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA.
For information on the availability of this material at the FAA, call
425-227-1221.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-
8427; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this proposed AD, the regulatory evaluation, any comments
received, and other information. The street address for the Docket
Operations office (telephone<PHONE_NUMBER>) is in the ADDRESSES section.
Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue SW., Renton, WA 98057-3356; telephone<PHONE_NUMBER>;
fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2015-8427;
Directorate Identifier 2014-NM-212-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD based on those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    On December 2, 2009, we issued AD 2007-10-10 R1, Amendment 39-16134
(74 FR 65398, December 10, 2009). AD 2007-10-10 R1 requires actions
intended to address an unsafe condition on all Airbus Model A300 B4-
600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R
Variant F airplanes (collectively called Model A300-600 series
airplanes).
    Since we issued AD 2007-10-10 R1, Amendment 39-16134 (74 FR 65398,
December 10, 2009), we have determined more restrictive maintenance
requirements and airworthiness limitations are necessary.
    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA AD
2014-0194, dated October 15, 2014 (referred to after this as the
Mandatory Continuing Airworthiness Information, or ``the MCAI''), to
correct an unsafe condition for all Airbus Model A300 B4-600, B4-600R,
and F4-600R series airplanes, and Model A300 C4-605R Variant F
airplanes (collectively called Model A300-600 series airplanes). The
MCAI states:

    Prompted by an accident * * *, the Federal Aviation
Administration (FAA) published Special Federal Aviation Regulation
(SFAR) 88, [http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgFAR.nsf/0/EEFB3F94451DC06286256C93004F5E07?OpenDocument&Highlight=sfar 88],
and the Joint Aviation Authorities (JAA) published Interim Policy
INT/POL/25/12. In response to these regulations, Airbus conducted a
design review to develop Fuel Airworthiness Limitations (FAL) for
Airbus on A300-600 and A300-600ST aeroplanes.
    The FAL were specified in Airbus A300-600 FAL document ref.
95A.1929/05 at issue 02 and in the A300-600 [Airworthiness
Limitation Section] ALS variation to FAL document issue 02 ref.
0CVLG110007/C0S issue 01, for A300-600 and A300-600ST aeroplanes.
    EASA issued [EASA] AD 2006-0201 to require compliance with the
FAL documents (comprising maintenance/inspection tasks and Critical
Design Configuration Control Limitations (CDCCL)).
    EASA AD 2006-0201 was superseded by EASA AD 2007-0095 (later
revised) [which corresponds to FAA AD 2007-10-10 R1, Amendment 39-
16134 (74 FR 65398, December 10, 2009)], which retained the original
requirements and corrected and updated the compliance paragraphs
concerning task ref. 28-18-00-03-1 and CDCCL's.
    Since EASA AD 2007-0095R1 was published, Airbus issued A300-600
ALS Part 5, prompted by EASA policy statement (EASA D2005/CPRO)
which requests design approval holders to integrate Fuel Tank Safety
items into an ALS document. The A300-600 ALS Part 5 is approved by
EASA.
    Failure to comply with the items as identified in Airbus A300-
600 ALS Part 5 could result in a fuel tank explosion and consequent
loss of the aeroplane.
    For the reasons described above, this [EASA] AD retains the
requirements of EASA AD 2007-0095R1, which is superseded, and
requires implementation of the new and more restrictive maintenance
instructions and/or airworthiness limitations as specified in Airbus
A300-600 ALS Part 5.

    The unsafe condition is the potential of ignition sources inside
fuel tanks, which, in combination with flammable fuel vapors caused by
latent failures, alterations, repairs, or maintenance actions, could
result in fuel tank explosions and consequent loss of the airplane. You
may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-
8427.

Related Service Information Under 1 CFR Part 51

    Airbus has issued A300-600 Airworthiness Limitations Section), Part

5--Fuel Airworthiness Limitations, Revision 00, dated May 27, 2014. The
airworthiness limitations introduce mandatory instructions and more
restrictive maintenance requirements. This service information is
reasonably available because the interested parties have access to it
through their normal course of business or by the means identified in
the ADDRESSES section of this NPRM.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of the same
type design.
    This proposed AD would require revisions to certain operator
maintenance documents to include new actions (e.g., inspections and/or
critical design configuration Control Limitations (CDCCLs). Compliance
with these actions is required by 14 CFR 91.403(c). For airplanes that
have been previously modified, altered, or repaired in the areas
addressed by these inspections, the operator may not be able to
accomplish the inspections described in the revisions. In this
situation, to comply with 14 CFR 91.403(c), the operator must request
approval for an alternative method of compliance (AMOC) according to
paragraph (k) of this AD. The request should include a description of
changes to the required actions that will ensure the continued
operational safety of the airplane.
    Notwithstanding any other maintenance or operational requirements,
components that have been identified as airworthy or installed on the
affected airplanes before accomplishment of the revision of the
airplane maintenance or inspection program specified in this AD, do not
need to be reworked in accordance with the CDCCLs. However, once the
airplane maintenance or inspection program has been revised as required
by this AD, future maintenance actions on these components must be done
in accordance with the CDCCLs.

Differences Between This Proposed AD and the MCAI or Service
Information

    The MCAI specifies that if there are findings from the ALS
inspection tasks, corrective actions must be accomplished in accordance
with Airbus maintenance documentation. However, this AD does not
include that requirement. Operators of U.S.-registered airplanes are
required by general airworthiness and operational regulations to
perform maintenance using methods that are acceptable to the FAA. We
consider those methods to be adequate to address any corrective actions
necessitated by the findings of ALS inspections required by this AD.
    This proposed AD would require operators to revise the maintenance
or inspection program within 3 months after the effective date of this
AD to incorporate revised fuel maintenance and inspection tasks. The
MCAI specifies compliance with the tasks as of the effective date of
the MCAI. In developing the compliance time for this action, we
considered the degree of urgency associated with addressing the unsafe
condition. We find 3 months an appropriate compliance time to complete
these actions. This difference has been coordinated with the EASA.

Costs of Compliance

    We estimate that this proposed AD affects 122 airplanes of U.S.
registry.
    The actions required by AD 2007-10-10 R1, Amendment 39-16134 (74 FR
65398, December 10, 2009), and retained in this proposed AD take about
2 work-hours per product, at an average labor rate of $85 per work-
hour. Based on these figures, the estimated cost of the actions that
are required by AD 2007-10-10 R1 is $170 per product.
    We also estimate that it would take about 1 work-hour per product
to comply with the basic requirements of this proposed AD. The average
labor rate is $85 per work-hour. Required parts would cost $0 per
product. Based on these figures, we estimate the cost of this proposed
AD on U.S. operators to be $10,370, or $85 per product.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by removing Airworthiness Directive (AD)
2007-10-10 R1, Amendment 39-16134 (74 FR 65398, December 10, 2009), and
adding the following new AD:

Airbus: Docket No. FAA-2015-8427; Directorate Identifier 2014-NM-
212-AD.

(a) Comments Due Date

    We must receive comments by February 29, 2016.

(b) Affected ADs

    This AD replaces AD 2007-10-10 R1, Amendment 39-16134 (74 FR
65398, December 10, 2009).

(c) Applicability

    This AD applies to Airbus Model A300 B4-600, B4-600R, and F4-
600R series airplanes, and Model A300 C4-605R Variant F airplanes
(collectively called Model A300-600 series airplanes), certificated
in any category, all manufacturer serial numbers.

(d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/
Maintenance Checks.

(e) Reason

    This AD was prompted by Airbus issuing more restrictive
instructions and/or fuel airworthiness limitations. We are issuing
this AD to prevent the potential of ignition sources inside fuel
tanks, which, in combination with flammable fuel vapors caused by
latent failures, alterations, repairs, or maintenance actions, could
result in fuel tank explosions and consequent loss of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Retained Revision of the Airworthiness Limitations Section To
Incorporate Fuel Maintenance and Inspection Tasks, With No Changes

    This paragraph restates the requirements of paragraph (f) of AD
2007-10-10 R1, Amendment 39-16134 (74 FR 65398, December 10, 2007).
Within 3 months after June 27, 2007 (the effective date of AD 2007-
10-10, Amendment 39-15051 (72 FR 28827, May 23, 2007)), revise the
ALS of the Instructions for Continued Airworthiness to incorporate
Airbus A300-600 ALS Part 5--Fuel Airworthiness Limitations, dated
May 31, 2006, as defined in Airbus A300-600 Fuel Airworthiness
Limitations, Document 95A.1929/05, Issue 1, dated December 19, 2005
(approved by EASA on March 13, 2006), Section 1, ``Maintenance/
Inspection Tasks'' (hereafter referred to as Section 1 of Issue 1 of
Document 95A.1929/05); or Airbus A300-600 Fuel Airworthiness
Limitations, Document 95A.1929/05, Issue 2, dated May 16, 2007,
Section 1, ``Maintenance/Inspection Tasks'' (hereafter referred to
as ``Section 1 of Issue 2 Document 95A.1929/05''). For all tasks
identified in Section 1 of Issue 1 or Issue 2 of Document 95A.1929/
05, the initial compliance times start from the later of the times
specified in paragraphs (f)(1) and (f)(2) of this AD, and the
repetitive inspections must be accomplished thereafter at the
intervals specified in Section 1 of Issue 1 or Issue 2 of Document
95A.1929/05, except as provided by paragraph (g) of this AD.
    (1) June 27, 2007 (the effective date of AD 2007-10-10,
Amendment 39-15051 (72 FR 28827, May 23, 2007).
    (2) The date of issuance of the original French standard
airworthiness certificate or the date of issuance of the original
French export certificate of airworthiness.

    Note 1 to paragraph (h) of this AD: Airbus Operator Information
Telex (OIT) SE 999.0076/06, dated June 20, 2006, identifies the
applicable sections of the Airbus A300-600 airplane maintenance
manual necessary for accomplishing the tasks specified in Section 1
of Document 95A.1929/05.

(h) Retained Revision of Initial Compliance Time for Task 28-18-00-03-1

    This paragraph restates the requirements of paragraph (g) of AD
2007-10-10 R1, Amendment 39-16134 (74 FR 65398, December 10, 2007)
with no changes. For Task 28-18-00-03-1, ``Operational check of lo-
level/underfull/calibration sensors,'' identified in Section 1 of
Document 95A.1929/05: The initial compliance time is the later of
the times specified in paragraphs (h)(1) and (h)(2) of this AD.
Thereafter, Task 28-18-00-03-1 must be accomplished at the
repetitive interval specified in Section 1 of Document 95A.1929/05.
    (1) Prior to the accumulation of 40,000 total flight hours.
    (2) Within 72 months or 20,000 flight hours after June 27, 2007
(the effective date of AD 2007-10-10, Amendment 39-15051 (72 FR
28827, May 23, 2007), whichever occurs first.

(i) Retained Revision of the ALS to Incorporate CDCCLs

    This paragraph restates the requirements of paragraph (h) of AD
2007-10-10 R1, Amendment 39-16134 (74 FR 65398, December 10, 2007)
with no changes. Within 12 months after the effective date of this
AD, revise the ALS of the Instructions for Continued Airworthiness
to incorporate Airbus A300-600 ALS Part 5--Fuel Airworthiness
Limitations, dated May 31, 2006, as defined in Airbus A300-600 Fuel
Airworthiness Limitations, Document 95A.1929/05, Issue 1, dated
December 19, 2005 (approved by the EASA on March 13, 2006), Section
2, ``Critical Design Configuration Control Limitations''; or Airbus
A300-600 Fuel Airworthiness Limitations, Document 95A.1929/05, Issue
2, dated May 16, 2007, Section 2, ``Critical Design Configuration
Control Limitations.''

(j) New Requirement of This AD: Revise the Maintenance or Inspection
Program

    Within 3 months after the effective date of this AD, revise the
maintenance or inspection program, as applicable, by incorporating
the airworthiness limitations as specified in Airbus A300-600
Airworthiness Limitations Section Part 5--Fuel Airworthiness
Limitations, Revision 00, dated May 27, 2014. The initial compliance
times for the actions specified Airbus A300-600 Airworthiness
Limitations Section Part 5--Fuel Airworthiness Limitations, Revision
00, dated May 27, 2014, are at the later of the times specified in
Airbus A300-600 Airworthiness Limitations Section Part 5--Fuel
Airworthiness Limitations, Revision 00, dated May 27, 2014, or
within 3 months after the effective date of this AD, whichever
occurs later. Accomplishing the revision required by this paragraph
terminates the actions required by paragraphs (g) through (i) of
this AD.

(k) New Requirement of This AD: No Alternative Actions, Intervals, and/
or Critical Design Configuration Control Limitations (CDCCLs)

    After the maintenance or inspection program has been revised as
required by paragraph (j) of this AD, no alternative actions (e.g.,
inspections), intervals, and/or CDCCLs may be used unless the
actions, intervals, and/or CDCCLs are approved as an alternative
method of compliance (AMOC) in accordance with the procedures
specified in paragraph (l)(1) of this AD.

(l) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, FAA, has the authority to approve AMOCs for
this AD, if requested using the procedures found in 14 CFR 39.19. In
accordance with 14 CFR 39.19, send your request to your principal
inspector or local Flight Standards District Office, as appropriate.
If sending information directly to the International Branch, send it
to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-
116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW.,
Renton, WA 98057-3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.
Information may be emailed to<EMAIL_ADDRESS>
Before using any approved AMOC, notify your appropriate principal
inspector, or lacking a principal inspector, the manager of the
local flight standards district office/certificate holding district
office. The AMOC approval letter must specifically reference this
AD.
    (2) Contacting the Manufacturer: As of the effective date of
this AD, for any requirement in this AD to obtain corrective actions
from a manufacturer, the action must be accomplished using a method
approved by the Manager, International Branch, ANM-116, Transport
Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA); or Airbus's EASA Design Organization Approval (DOA). If
approved by the DOA, the approval must include the DOA-authorized
signature.

(m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) EASA AD 2014-0194, dated October 15, 2014, for related
information. This MCAI may be found in the AD docket on the Internet
at http://www.regulations.gov by searching for and locating Docket
No. FAA-2015-8427.
    (2) For service information identified in this AD, contact
Airbus SAS, Airworthiness Office--EAW, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96;
fax +33 5 61 93 44 51; email<EMAIL_ADDRESS>
Internet http://www.airbus.com. You may view this service
information at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue SW., Renton, WA. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>.

    Issued in Renton, Washington, on December 23, 2015.
John P. Piccola, Jr.,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2015-33175 Filed 1-12-16; 8:45 am]
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