[Federal Register Volume 70, Number 77 (Friday, April 22, 2005)]
[Proposed Rules]
[Pages 21094-21101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8125]



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Part III





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants for Brick and 
Structural Clay Products Manufacturing Reconsideration; Proposed Rule

  Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / 
Proposed Rules  

[[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: [email protected].
     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: 
[email protected]. 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 [email protected].

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

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    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:

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

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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

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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 (65 FR 67249, 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