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National Emission Standards for Hazardous Air Pollutants for Brick and Structural Clay Products Manufacturing: Reconsideration
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 22, 2005 (Volume 70, Number 77)]
[Proposed Rules]
[Page 21093-21101]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap05-18]
[[Page 21094]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[Docket No. OAR-2002-0054; FRL-7902-5]
RIN 2060-AM94
National Emission Standards for Hazardous Air Pollutants for
Brick and Structural Clay Products Manufacturing: Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of reconsideration of final rule; request for public
comment; notice of public hearing.
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SUMMARY: On May 16, 2003, EPA promulgated national emission standards
for hazardous air pollutants (NESHAP) for new and existing sources at
brick and structural clay products (BSCP) manufacturing facilities (the
final rule). Subsequently, the Administrator received a petition for
reconsideration of the final rule. The EPA is announcing our
reconsideration of and requesting public comment on one issue arising
from the final rule. Specifically, we are requesting comment on our
decision to base the maximum achievable control technology (MACT)
requirements for certain tunnel kilns on dry limestone adsorption
technology. We plan to issue a final decision on this issue as
expeditiously as possible. We are seeking comment only on this issue.
We will not respond to any comments addressing any other issue or any
other provisions of the final rule or any other rule.
DATES: Comments. Comments must be received on or before June 21, 2005.
Public Hearing. If anyone contacts the EPA requesting to speak at a
public hearing by May 9, 2005, a public hearing will be held on May 23,
2005. For additional information on the public hearing and requesting
to speak, see the SUPPLEMENTARY INFORMATION section of this preamble.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2002-
0054 (Legacy Docket ID No. A-99-30), by one of the following methods:
? Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
? Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
? E-mail: a-and-r-docket@epa.gov.
? Fax: (202) 566-1741.
? Mail: Air Docket, EPA, Mailcode: 6102T, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
? Hand Delivery: Air Docket, EPA, Room B108, 1301
Constitution Avenue, NW., Washington, DC 20460. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OAR-2002-0054
(Legacy Docket ID No. A-99-30). The EPA's policy is that all comments
received will be included in the public docket without change and may
be made available online at http://www.epa.gov/edocket, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal
regulations.gov websites are ``anonymous access'' systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. We request that
interested parties who would like information they previously submitted
to EPA to be considered as part of this reconsideration action identify
the relevant information by docket entry numbers and page numbers.
Docket: The EPA has established an official public docket for the
NESHAP for brick and structural clay products manufacturing including
both Docket ID No. OAR-2002-0054 and Docket ID No. A-90-30. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to the BSCP rulemaking and the reconsideration
action. All items may not be listed under both docket numbers, so
interested parties should inspect both docket numbers to ensure that
they have received all materials relevant to the BSCP rulemaking and
this action. Although listed in the index, some information is not
publicly available, i.e., CBI 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 in EDOCKET or in hard copy at the Air
Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Avenue, NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air Docket is (202) 566-1742.
Public Hearing. If a public hearing is held, it will be held on May
23, 2005 at the EPA facility, Research Triangle Park, North Carolina,
or at an alternate site nearby.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Johnson, Combustion Group,
Emission Standards Division (MC-C439-01), Environmental Protection
Agency, Research Triangle Park, North Carolina 27711; telephone number:
(919) 541-5025; fax number: (919) 541-5450; e-mail address:
johnson.mary@epa.gov. For questions about the public hearing, contact
Ms. Eloise Shepherd, Combustion Group, Emission Standards Division (MC-
C439-01), U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, telephone number (919) 541-5578, or electronic
mail at shepherd.eloise@epa.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. General Information
A. What is the source of authority for the reconsideration action?
B. What entities are potentially affected by the reconsideration
action?
C. How do I submit CBI?
D. How do I obtain a copy of this action?
II. Background
III. Today's Action
IV. Discussion of the Issue
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
[[Page 21095]]
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. What Is the Source of Authority for the Reconsideration Action?
The statutory authority for this action is provided by sections 112
and 307(d)(7)(B) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412
and 7607(d)(7)(B)). This action is also subject to section 307(d) of
the CAA (42 U.S.C. 7607(d)).
B. What Entities Are Potentially Affected by the Reconsideration Action?
Entities potentially affected are those industrial facilities that
manufacture BSCP. Brick and structural clay products manufacturing is
classified under Standard Industrial Classification (SIC) codes 3251,
Brick and Structural Clay Tile; 3253, Ceramic Wall and Floor Tile; and
3259, Other Structural Clay Products. The North American Industry
Classification System (NAICS) codes for BSCP manufacturing are 327121,
Brick and Structural Clay Tile; 327122, Ceramic Wall and Floor Tile
Manufacturing; and 327123, Other Structural Clay Products. The
categories and entities that include potentially affected sources are
shown below:
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Examples of
potentially
Category SIC NAICS regulated
entities
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Industrial................... 3251 327121 Brick and
structural
clay tile
manufacturing
facilities.
Industrial................... 3253 327122 Extruded tile
manufacturing
facilities.
Industrial................... 3259 327123 Other
structural
clay products
manufacturing
facilities.
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The reconsideration action does not concern the NESHAP for clay
ceramics manufacturing facilities (40 CFR part 63, subpart KKKKK),
which were published with the final BSCP rule (40 CFR part 63, subpart
JJJJJ).
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by the
reconsideration action. To determine whether your facility may be
affected by the reconsideration action, you should examine the
applicability criteria in 40 CFR 63.8385 of the final BSCP rule. If you
have any questions regarding the applicability of the final rule to a
particular entity or the implications of the reconsideration action,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
C. How Do I Submit CBI?
Do not submit this information to EPA through EDOCKET,
regulations.gov, or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
D. How Do I Obtain a Copy of This Action? Worldwide Web (WWW)
In addition to being available in the dockets, an electronic copy
of today's action also will be available on the WWW. Following the
Administrator's signature, a copy of this action will be posted at
http://www.epa.gov/ttn/oarpg on EPA's Technology Transfer Network (TTN) policy
and guidance page. The TTN provides information and technology exchange
in various areas of air pollution control. If more information
regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.
II. Background
Section 112 of the CAA requires that we establish NESHAP for the
control of hazardous air pollutants (HAP) from both new and existing
major sources. Major sources of HAP are those stationary sources or
groups of stationary sources that are located within a contiguous area
and under common control that emit or have the potential to emit
considering controls, in the aggregate, 9.07 megagrams per year (Mg/yr)
(10 tons per year (tpy)) or more of any one HAP or 22.68 Mg/yr (25 tpy)
or more of any combination of HAP. The CAA requires the NESHAP to
reflect the maximum degree of reduction in emissions of HAP that is
achievable. This level of control is commonly referred to as MACT.
The MACT floor is the minimum control level allowed for NESHAP and
is defined under section 112(d)(3) of the CAA. In essence, the MACT
floor ensures that the standards are set at a level that assures that
all major sources achieve the level of control at least as stringent as
that already achieved by the better-controlled and lower-emitting
sources in each source category or subcategory. For new sources, the
MACT floor cannot be less stringent than the emission control that is
achieved in practice by the best-controlled similar source. The MACT
standards for existing sources can be less stringent than standards for
new sources, but they cannot be less stringent than the average
emission limitation achieved by the best-performing 12 percent of
existing sources in the category or subcategory for which the
Administrator has emissions information (where there are 30 or more
sources in a category or subcategory, as in the case of each BSCP
subcategory).
In developing MACT standards, we also consider control options that
are more stringent than the floor. We may establish standards more
stringent than the floor based on the consideration of cost of
achieving the emissions reductions, any health and environmental
impacts, and energy requirements.
We proposed NESHAP for major sources manufacturing BSCP on July 22,
2002 (67 FR 47894), and we published the final BSCP rule on May 16,
2003 (68 FR 26690). The preamble for the proposed rule described the
rationale for the proposed rule, solicited public comments, and offered
an opportunity for a public hearing. A public hearing regarding the
proposed BSCP rule was held on August 21, 2002, during which 21
presentations were made. Following the public hearing, we met with
representatives of industry and environmental groups. We received a total
of 80 public comment letters on the proposed BSCP rule. Comments were
[[Page 21096]]
submitted by industry trade associations, BSCP manufacturing companies,
State regulatory agencies and their representatives, and environmental
groups. We summarized the major public comments on the proposed rule
and our responses to those comments in the preamble to the final rule
and in a separate, supporting ``response to comments'' document.
Following promulgation of the BSCP rule, the Administrator received
a petition for reconsideration (dated July 15, 2003) filed by
EarthJustice on behalf of Sierra Club pursuant to section 307(d)(7)(B)
of the CAA. The petition requested reconsideration of three aspects of
the final rule. We also received a letter (dated October 10, 2003) from
counsel for the Brick Industry Association (BIA), commenting on the
Sierra Club's petition for reconsideration. On April 19, 2004, EPA
issued a letter to the Sierra Club's counsel granting its petition for
reconsideration with respect to one issue and indicating that the
Agency would conduct rulemaking to respond to the petition. Today's
action initiates the rulemaking by requesting comment on one issue
raised in the Sierra Club's petition for reconsideration.
In addition to the petition for reconsideration, three petitions
for judicial review of the final NESHAP for BSCP manufacturing and clay
ceramics manufacturing (40 CFR part 63, subparts JJJJJ and KKKKK,
published together on May 16, 2003) were filed with the U.S. Court of
Appeals for the District of Columbia Circuit by the Sierra Club, BIA,
and two clay ceramics manufacturers (Monarch Ceramic Tile, Incorporated
and American Marazzi Tile, Incorporated).\1\ On September 29, 2003, EPA
filed a motion with the Court asking the Court to stay proceedings in
the litigation and defer establishing a briefing schedule to enable EPA
to act on Sierra Club's petition for reconsideration prior to briefing.
In an order dated January 21, 2004, the Court granted EPA's motion,
holding the case in abeyance for 90 days without prejudice to a later
motion to extend the abeyance period. In a motion filed on April 20,
2004, EPA indicated its intent to reconsider one issue arising from the
final BSCP rule and asked the Court to extend the abeyance period
pending EPA's completion of its reconsideration proceeding. The EPA
explained that it is in the interest of all of the parties to the
litigation and of the Court for EPA to complete its reconsideration
proceeding prior to briefing, because issues raised by Sierra Club and
BIA relating to BSCP sources will either be moot following completion
of the reconsideration proceeding, or will be subject to judicial
review on a new record based on EPA's action at the conclusion of the
reconsideration proceeding.\2\ On July 29, 2004, the Court issued an
order holding the case in abeyance for nine months from the date of the
order without prejudice to a later motion to extend the abeyance period.
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\1\ The cases, which have been consolidated, are: Brick Industry
Association v. EPA, No. 03-1142 (D.C. Cir.); Sierra Club v. EPA, No.
03-1202 (D.C. Cir.); and Monarch Ceramic Tile, Inc. v. EPA, No. 03-
1203 (D.C. Cir.).
\2\ Sierra Club and BIA opposed an indefinite stay. On May 10,
2004, EPA again asked the Court go grant its request for an
indefinite stay, but in the alternative, EPA asked the Court to hold
the case in abeyance for nine months from the date of the Court's
order granting EPA's motion, with leave for EPA to file a motion
requesting a further extension of the abeyance period or to govern
further proceedings before the nine-month period expires.
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III. Today's Action
The Sierra Club's petition for reconsideration sought
reconsideration of three issues relating to EPA's promulgation of final
MACT floor standards based on dry limestone adsorber (DLA) technology.
Noting that EPA had proposed MACT floor standards based on three
different technologies, dry lime injection fabric filters (DIFF), dry
lime scrubber fabric filters (DLS/FF) and wet scrubbers (WS), the
Sierra Club argued that EPA had provided no opportunity to comment on
either the final DLA-based floors or the final floor approach. Pursuant
to section 307(d)(7)(B) of the CAA \3\, we granted the Sierra Club's
petition for reconsideration with respect to one issue--namely, the
Sierra Club's claim that ``EPA's decision to consider only DLA-
controlled kilns was unlawful and arbitrary and capricious.'' \4\
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\3\ Section 307(d)(7)(B) of the CAA provides that if a person
raising an objection to a rule during judicial review ``can
demonstrate to the Administrator that * * * the grounds for such
objection arose after the period for public comment (but within the
time specified for judicial review) and if such objection is of
central relevance to the outcome of the rule, the Administrator
shall convene a proceeding for reconsideration of the rule and
provide the same procedural rights as would have been afforded had
the information been available at the time the rule was proposed.''
42 U.S.C. 7607(d)(7)(B).
\4\ In its petition for reconsideration, the Sierra Club also
raised two issues relating to our overall MACT approach, which was
the same at proposal and promulgation. Specifically, the Sierra Club
argued: That ``in setting floors, EPA unlawfully considered more
kilns than the best performing twelve percent of sources for which
it had emissions information''; and that ``EPA's floors do not
reflect the average emission level achieved by the best performing
twelve percent of kilns for which the Administrator has emissions
information.'' We addressed these issues in the response to
Earthjustice's comments on the proposal (See p. 2-44, EDOCKET
document no. OAR-2002-0054-0005). Therefore, they do not meet the
criteria for reconsideration under CAA section 307(d)(7)(B), and
they are not discussed in this action.
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This narrow reconsideration issue involves the Sierra Club's claim
that the MACT floors (and MACT standards based on the floors) at
promulgation were set using a different control technology than those
proposed and that EPA did not provide adequate opportunity for public
comment on the revised MACT floors. Because we changed the proposed
MACT floors and standards in response to comments received on the
proposed rule, we are now providing an opportunity for public comment
on the DLA-based floors and standards reflected in the final rule.
Without prejudging the information that will be provided in response to
this action, we note that to date, the Sierra Club has not provided
information which persuades us that our decision to base the MACT
floors on DLA technology is erroneous or inappropriate. However, in
order to ensure a full opportunity for comment, we have decided to
grant reconsideration on this issue. Stakeholders who would like for us
to reconsider comments they submitted to us previously on this issue
should identify the relevant docket entry numbers and page numbers of
their comments to facilitate expeditious review during the reconsideration
process. We plan to take final action on the issue for which we have
decided to grant reconsideration as expeditiously as possible.
The compliance date for the final BSCP rule has not changed as of
today's action. If we decide to amend the final rule as a result of the
reconsideration process, we will reevaluate the compliance date as
early as possible.
IV. Discussion of the Issue
Brick and structural clay products are fired in either tunnel
(continuous) kilns or periodic (batch) kilns. Kilns are predominantly
fired with natural gas, although other fuels, including sawdust, are
also used. Most of the sawdust-fired kilns duct some or all of the kiln
exhaust to rotary sawdust dryers prior to release to the atmosphere.
Consequently, some sawdust-fired kilns have two process streams,
including a process stream that exhausts directly to the atmosphere or
to an air pollution control device (APCD), and a process stream in
which the kiln exhaust is ducted to a sawdust dryer where it is used to
dry sawdust before being emitted to the atmosphere.
The proposed rule focused on those process streams from existing large
[[Page 21097]]
tunnel kilns that exhausted directly to the atmosphere or to an APCD.
Any process stream from existing large tunnel kilns that was ducted to
a sawdust dryer prior to July 22, 2002 was not subject to the
requirements of the proposed rule. Large tunnel kilns are those with a
design capacity that is equal to or greater than 9.07 Mg/hr (10 tons
per hour (tph)) of fired product.
The MACT floors for the kiln exhaust from those certain tunnel
kilns in the proposed rule were based on the use of DIFF, DLS/FF, or
WS. Another technology, DLA, which is the most prevalent APCD used to
control emissions from existing brick kilns, was not proposed as a MACT
floor technology because at the time of the proposal, we had concerns
about the ability to effectively monitor DLA performance and questions
about the effectiveness of DLA, particularly with respect to
particulate matter (PM) control. In the preamble to the proposed rule,
we stated: ``* * * We have several concerns about the long-term
effectiveness of the DLA control technology and the degree to which we
can assure continuous compliance for DLA-controlled kilns. First, long-
term test data that demonstrate performance over the life of the
sorbent are not available. This is important for these systems because
the sorbent (limestone) is not continuously replaced with new sorbent,
and we expect the performance of the systems to decrease as the sorbent
is re-used and the ability of the sorbent to adsorb HF and HCl
decreases. Second, representatives of DLA manufacturers and facilities
that operate DLA have stated that not all limestone can effectively be
used as a sorbent in a DLA. Because of these two issues, we have been
unable to identify any type of parameter monitoring that could be used
to assure continuous compliance. If parameter monitoring cannot be
used, some type of CEMS would be required to assure continuous
compliance with HF and HCl emission limits if DLA were considered as
MACT control. The only potential option that we have identified for
assuring continuous compliance is the installation and continuous
operation of Fourier transform infrared spectroscopy (FTIR) monitoring
systems. The costs associated with FTIR systems are considerable.
Finally, DLA do not provide a mechanism for PM (and, therefore, metal
HAP) removal and may actually create PM in some instances. For all of
these reasons, we believe that DLA or equivalent controls would not
represent an appropriate level of MACT control for BSCP kilns * * *.''
(67 FR 47894, 47908, July 22, 2002)
In response to the proposed rule, we received numerous comments
from industry representatives (including the BIA), kiln manufacturers,
and air pollution control device vendors on issues related to the
application and performance of the APCD discussed in the preamble. As
discussed in this preamble, and in the preamble to the final rule, many
commenters reported technical obstacles and disadvantages of the DIFF,
DLS/FF, and WS technologies for BSCP kilns and provided information to
address our concerns about DLA technology.
Several commenters argued that DIFF, DLS/FF, and WS technologies
are not proven or commercially available for BSCP kilns. Commenters
pointed out that, with the exception of one facility, full-scale WS
have never been used on BSCP kilns, although some short-term pilot
tests of WS have been conducted. The commenters pointed out that
injection systems (such as DIFF and DLS/FF) and wet control devices
need a certain minimum airflow to operate properly, and different
products may require different airflows, some of which could be outside
of the range within which the APCD operates properly. In addition,
commenters pointed out that during kiln slowdowns, the APCD may not be
able to operate at all because of reduced kiln airflow.
Several commenters expressed concerns about waste disposal.
Commenters stated that DIFF and DLS/FF systems produce large amounts of
solid waste that are difficult and expensive to dispose of. Commenters
stated that WS would not be viable options for many BSCP plants because
of wastewater treatment issues (e.g., limited or no sewer access,
wastewater treatment costs).
Commenters also raised concerns about retrofitting existing BSCP
kilns with DIFF, DLS/FF, and WS technologies. Commenters pointed out
that brick color, the primary factor in brick sales, is affected by
kiln airflow. Thus, retrofitting with an APCD that changes the kiln
airflow would change the color of the brick produced using a particular
recipe in an individual tunnel kiln. The colors produced by the unique
firing characteristics of the kiln may not be able to be reproduced.
The commenters also charged that we did not account for other
retrofitting problems associated with installing DIFF, DLS/FF, or WS on
older kilns, and the costs associated with these problems. Commenters
also described how attempts at retrofitting kilns with these APCD
resulted in significant amounts of kiln downtime and permanent
reductions in kiln production capacities. As stated by the commenters,
none of the retrofits have been entirely successful in terms of
reducing emissions while not disrupting the production process, and
several have had dramatic negative impacts on the production process
(68 FR 26695, May 16, 2003).
Numerous commenters recommended that EPA allow use of DLA. The
commenters described the operating benefits of DLA, including ease of
operation, low operating cost, little down time, and the ability to
handle kiln fluctuations with changing throughputs. Most importantly,
the commenters asserted, DLA do not impact kiln operation. The
commenters pointed out that DLA do not require a minimum airflow like
DIFF, DLS/FF, or WS technologies. One commenter pointed out that once a
DLA is designed for maximum airflow, any fluctuations below this
maximum only create more contact time between the kiln exhaust gases
and the limestone, which would likely increase the effectiveness of the
DLA and would not impact the operation of the kiln. Commenters also
disagreed with our statements at proposal that: DLA generate PM
emissions; long-term test data that demonstrate DLA performance over
the life of the sorbent are not available; DLA limestone is not
continuously replaced; and the performance of DLA decreases as the
sorbent is re-used because the ability of the sorbent to adsorb
hydrogen fluoride (HF) and hydrogen chloride (HCl) decreases.
As a result of these public comments, we realized that we had
limited information on the DLA technology at proposal and that we did
not fully understand the limitations of applying the technologies
(DIFF, DLS/FF, and WS) that were the focus of our MACT floors analysis
at proposal. In our response to these comments at promulgation, we
disagreed with commenters that the use of DIFF was not proven in the
brick industry. The DIFF and DLS/FF systems are a proven control
technology for new kilns with a given minimum airflow rate. However, we
noted that retrofitting existing kilns with DIFF or DLS/FF systems is
not feasible in many cases. We recognized that WS may not be practical
or low-cost for most facilities, but maintained that they could be a
legitimate option for some facilities (e.g., facilities with sewer
access). We acknowledged that retrofitting existing BSCP kilns with
certain APCD (particularly those that affect kiln airflow) could alter
time-honored recipes for brick color, thereby
[[Page 21098]]
changing the product. With respect to the effectiveness of DLA as PM
controls, we acknowledged the ability of DLA to provide some control of
PM emissions, although test data that quantify a PM control efficiency
are not available. We also acknowledged, with respect to our concerns
at proposal regarding DLA sorbent replacement and the associated long-
term effectiveness of DLA, that spent limestone is replaced or regenerated
in such a manner that performance would not be adversely impacted, and,
therefore, DLA performance would remain consistent over time.
In light of the public comments received regarding the technical
features and limitations of DIFF, DLS/FF, WS, and DLA technologies, we
came to new conclusions regarding the effective application of these
devices. As we stated in the preamble to the final rule, section
112(d)(3) of the CAA does not allow us to consider cost in determining
MACT floors. However, we concluded that DLA are the only currently
available technology that can be used to retrofit existing tunnel kilns
without potentially significant impacts on the production process.
Consequently, the final BSCP rule allows existing large tunnel kilns
(and existing large tunnel kilns first exhausting to a sawdust dryer
after July 22, 2002) to use the DLA technology.
In addition, we concluded that, because of the retrofit concerns,
it is not technologically and economically feasible for an existing
small tunnel kiln that would otherwise meet the criteria for
reconstruction in 40 CFR 63.2 and whose design capacity is increased
such that it becomes a large tunnel kiln to meet the relevant standards
(i.e., new source MACT) by retrofitting with a DIFF, DLS/FF, or WS. We
also concluded that it is not technologically and economically feasible
for an existing large DLA-controlled tunnel kiln that would otherwise
meet the criteria for reconstruction in 40 CFR 63.2 to meet the
relevant (i.e., new source MACT) standards by retrofitting with a DIFF,
DLS/FF, or WS. Accordingly, we added regulatory language in 40 CFR
63.8390(i) to provide that an existing small tunnel kiln that is
rebuilt such that it becomes a large kiln and an existing large DLA-
controlled tunnel kiln that is rebuilt do not meet the definition of
reconstruction in 40 CFR 63.2 and are not subject to the same
requirements as new and reconstructed large tunnel kilns. However, we
noted that it is technologically and economically feasible for both
types of kilns described in 40 CFR 63.8390(i) to retrofit with a DLA
(or to continue operating an existing DLA) and the final rule requires
that such kilns meet emission limits that correspond to the level of
control provided by a DLA.
For the final rule, we maintained that DIFF, DLS/FF, and WS are
appropriate technologies for new large tunnel kilns and for
reconstructed large tunnel kilns that were equipped with DIFF, DLS/FF,
or WS prior to reconstruction. However, we concluded that DLA are the
only APCD that have been demonstrated on small tunnel kilns (which have
smaller airflows than large tunnel kilns), and, therefore, we based the
final requirements for new and reconstructed small tunnel kilns on the
level of control that can be achieved by a DLA. Our floor approach at
promulgation is described at 69 FR 26690, 26699-26701 (May 16, 2003).
The Sierra Club contends that EPA's decision to consider only DLA
control technology for the MACT floors at promulgation was ``unlawful
and arbitrary and capricious'' given the statutory requirement that
MACT floors for existing sources reflect the average emission
limitation achieved by the best-performing 12 percent of existing
sources in the category or subcategory for which the Administrator has
emissions information. The Sierra Club argues that DLA-equipped kilns
are not the best performers because kilns equipped with other control
technologies achieve better emission levels. The Sierra Club asserts
that EPA's argument that DLA are the only currently available
technology that can be used to retrofit existing large kilns without
potentially significant impacts on the production process is not
relevant under the statute. The Sierra Club believes that the CAA
requires us to base floors on the emission level achieved by the best
performing large kilns for which we have emissions information,
regardless of what control equipment these best performing kilns are
using. The Sierra Club further claims EPA's argument that DLA are the
only available technology that can reliably be used to retrofit exiting
large kilns ``depends largely on claims about the cost of using other
technologies,'' and the Sierra Club states that we may not consider
cost to exclude technologies from our MACT floor determinations.
Finally, the Sierra Club contends that our arguments regarding the
technical difficulties associated with DIFF, DLS/FF, and WS are refuted
and unsupported by the rulemaking record and have not been explained,
given that some brick producers are currently using these technologies,
and, therefore, must have found a way to overcome technical problems
such as minimum airflow requirements or changes in brick colors.
The arguments presented in the petition for reconsideration have
not persuaded us that our MACT floor determination for the final BSCP
rule was erroneous or inappropriate. We believe we correctly identified
the MACT floors and set reasonable MACT standards in the final rule.
Nevertheless, given that we changed the floor determination between
proposal and promulgation in response to comments received on the
proposal, and that the Sierra Club has raised concerns about the final
BSCP rule's floors and the lack of opportunity to comment on the final
rule's floors, in today's notice of reconsideration we are requesting
public comments on our decision to base the MACT floors on the use of
DLA for the final BSCP rule. We acknowledged in the preamble for the
final rule that we are not allowed under CAA section 112 to consider
cost when determining MACT floors, and we disagree with the Sierra
Club's suggestion that claims about retrofitting kilns are tantamount
to claims about the cost of various air pollution control technologies.
However, we are seeking additional comments on technical issues related
to the performance of DLA as compared to DIFF, DLS/FF, and WS. We
request comments on the ability to retrofit existing kilns with DLA,
DIFF, DLS/FF, and WS, and whether this should be a consideration when
selecting MACT control options. Furthermore, we would like to receive
additional information regarding whether there have been technical
difficulties associated with DIFF, DLS/FF, WS, and DLA and additional
information on how DIFF, DLS/FF, WS, and DLA have performed at plants
operating these technologies (e.g., information on airflow limitations,
product quality and consistency, typical downtime of the APCD, and
whether there have been operating problems or unforeseen problems
during retrofit). Finally, we would also like to receive additional
information on the successful application of DIFF, DLS/FF, WS, and DLA
to existing kilns.
V. Statutory and Executive Order Reviews
On May 16, 2003, we published final NESHAP for BSCP manufacturing
pursuant to section 112 of the CAA. In today's action, we are proposing
no changes to the final rule, but are seeking additional comments on
one aspect of the rule finalized in the May 16, 2003 Federal Register
action (68 FR 26690). We believe the rationale provided with
[[Page 21099]]
the final BSCP rule is still applicable and sufficient, but we are open
to comments received in response to today's action.
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this action does not constitute a ``significant
regulatory action'' because it does not meet any of the above criteria.
Consequently, this action was not submitted to OMB for review under
Executive Order 12866.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
We are not proposing any new paperwork (e.g., monitoring, reporting,
recordkeeping) as part of today's action. With this action, we are
seeking additional comments on one aspect of the final BSCP rule (68 FR
26690, May 16, 2003). However, OMB has previously approved the
information collection requirements contained in the final rule (40 CFR
part 63, subpart JJJJJ) under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060-
0508 (EPA ICR number 2022.02) for the BSCP rule. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this action. This
action seeks comment on one aspect of the final BSCP rule without
proposing any changes to the rule. Therefore, the EPA has determined
that this action will not have a significant economic impact on a
substantial number of small entities in the BSCP manufacturing source
category.
For purposes of assessing the impact of today's action on small
entities, small entities are defined as: (1) A small business according
to Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
Small Business Administration size standards for BSCP
manufacturing, by NAICS code, are shown in Table 1 of this preamble.
Table 1.--Small Business Size Standards for BSCP Manufacturing
------------------------------------------------------------------------
Size standard,
NAICS code number of
employees
------------------------------------------------------------------------
327121................................................ 500
327122................................................ 500
327123................................................ 500
327125................................................ 750
327993................................................ 750
------------------------------------------------------------------------
A discussion of the small business economic impacts associated with
the final rule can be found at 69 FR 26718, 26719, May 16, 2003.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed, under section 203 of the UMRA, a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA's regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising
[[Page 21100]]
small governments on compliance with the regulatory requirements.
The EPA has determined that today's action does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any 1 year. At promulgation of the BSCP rule, we
estimated a total annual cost of $24 million for any 1 year. Because
today's action proposes no changes to the final rule, the estimated
total annual cost for the final BSCP rule remains the same and today's
action will not increase regulatory burden to the extent of requiring
expenditures of $100 million or more by State, local, and tribal
governments, in the aggregate, or the private sector in any 1 year.
Thus, today's action is not subject to the requirements of sections 202
and 205 of the UMRA. In addition, the EPA has determined that today's
action contains no regulatory requirements that might significantly or
uniquely affect small governments because it contains no regulatory
requirements that apply to such governments or impose obligations upon
them. Therefore, today's action is not subject to the requirements of
section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects 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.'' Under Executive Order 13132, the EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless EPA consults with State and local officials early in the process
of developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to OMB, in a separately identified section of the preamble
to the rule, a federalism summary impact statement (FSIS). The FSIS
must include a description of the extent of EPA's prior consultation
with State and local officials, a summary of the nature of their
concerns and EPA's position supporting the need to issue the
regulation, and a statement of the extent to which the concerns of
State and local officials have been met. Also, when EPA transmits a
draft final rule with federalism implications to OMB for review
pursuant to Executive Order 12866, it must include a certification from
EPA's Federalism Official stating that EPA has met the requirements of
Executive Order 13132 in a meaningful and timely manner.
Today's action does not have federalism implications. It does not
have substantial direct effects 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,
as specified in Executive Order 13132. Because we are proposing no
changes to the final rule, today's action will not increase regulatory
burden to the extent that it would result in substantial direct effects
on the States. Thus, the requirements of Executive Order 13132 do not
apply to today's action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (59 FR 22951, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
Today's action does not have tribal implications. The final BSCP
rule, which today's action does not change, will not have substantial
direct effects on tribal governments, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes,
as specified in Executive Order 13175. No tribal governments are known
to own or operate BSCP manufacturing facilities. Thus, Executive Order
13175 does not apply to the final rule or today's action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns the environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the rule. Today's action is not subject to
Executive Order 13045 because it is not economically significant as
defined by Executive Order 12866, and the final BSCP rule, which
today's action does not change, is based on technology performance and
not on health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Executive Order 13211 (66 FR 28355, May 22, 2001) provides that
agencies shall prepare and submit to the Administrator of the Office of
Information and Regulatory Affairs, OMB, a Statement of Energy Effects
for certain actions identified as ``significant energy actions.''
Section 4(b) of Executive Order 13211 defines ``significant energy
actions'' as ``any action by an agency (normally published in the
Federal Register) that promulgates or is expected to lead to the
promulgation of a final rule or regulation, including notices of
inquiry, advance notices of proposed rulemaking, and notices of
proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action.'' Today's action is not subject to Executive Order 13211
because it is not a significant regulatory action under Executive Order
[[Page 21101]]
12866 nor is it likely to have a significant adverse effect on the
supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995 (Public Law 104-113; 15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards in its regulatory and
procurement activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) developed or adopted by one or
more voluntary consensus bodies. The NTTAA directs EPA to provide
Congress, through annual reports to OMB, with explanations when an
agency does not use available and applicable voluntary consensus standards.
Today's action does not involve technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: April 18, 2005.
Stephen L. Johnson,
Acting Administrator.
[FR Doc. 05-8125 Filed 4-21-05; 8:45 am]
BILLING CODE 6560-50-P