By Jeryl L. Olson, Eric E. Boyd, and Craig B. Simonsen

In Portland Cement Association v. Environmental Protection Agency, No. 10-1358 (December 9, 2011), the U.S. Court of Appeals for the D.C. Circuit recently reviewed the adoption by the U.S. Environmental Protection Agency (EPA) of the National Emission Standards for Hazardous Air Pollutants (NESHAPS) From the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants,” promulgated at 75 Fed. Reg. 54970 (September 9, 2010). The Portland Cement Association (PCA) filed a petition for review of various aspects of the EPA’s final rule.

PCA had argued to the Court that the adoption of a continuous emissions monitoring system  (CEMS) rather than a sampling standard for particulate matter (PM) emissions was not a “logical outgrowth” of the proposed rule. The Court found that “this is not true. EPA sought comment on a CEMS requirement in its first proposal, and PCA even commented on it.” 74 Fed. Reg. 21136, 21157 (May 6, 2009). “Moreover, any individual hardship resulting from the CEMS requirement is mitigated by the fact that a kiln may employ ‘alternative monitoring’ if it demonstrates the ‘technical or economic infeasibility’ of installing CEMS.”

Concerning the New Source Performance Standards (NSPS) portion of the rule, the Court found that EPA failed to provide notice that it would require continuous monitoring of PM emissions from cement kilns. EPA proposed requiring kilns to demonstrate compliance with the PM standard by conducting periodic stack tests. The only mention of continuous monitoring in the proposed rule came when EPA proposed providing an “option” for plants to demonstrate compliance with the PM standard by installing a CEMS. 73 Fed. Reg. 34072, 34082 (June 16, 2008). In its final NSPS rule, however, EPA required plants to demonstrate compliance with the standard through continuous emissions monitoring. “The fact that EPA proposed providing kilns with a CEMS option hardly placed PCA on notice that kilns could be required to demonstrate NSPS compliance through continuous emissions monitoring.” However, “although EPA gave inadequate notice that it might adopt a CEMS requirement under NSPS, this error was harmless precisely because the proposed NESHAP rule put PCA on notice that EPA might require kilns to install CEMS systems.”