[Federal Register Volume 70, Number 221 (Thursday, November 17, 2005)]
[Rules and Regulations]
[Pages 69655-69664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22805]



[[Page 69655]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2002-0054; FRL-7997-9]
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 final action on reconsideration.

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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. On April 22, 2005, EPA announced its 
reconsideration of one issue arising from the final rule. Specifically, 
we (EPA) requested public comment on our decision to base the maximum 
achievable control technology (MACT) requirements for certain tunnel 
kilns on dry limestone adsorption technology. As a result of this 
reconsideration process, we have concluded that the MACT floors and 
standards determined at promulgation are correct, and no changes to the 
final rule are warranted. We, therefore, are taking no amendatory 
action with respect to these requirements.

DATES: This final action is effective on November 17, 2005.

ADDRESSES: Docket. 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 Legacy 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 are aware of all materials relevant to the BSCP 
rulemaking and this action. Although listed in the index, some 
information is not publicly available, i.e., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically 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.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Johnson, Combustion Group, 
Emission Standards Division (MC-C439-01), EPA, Research Triangle Park, 
North Carolina 27711; telephone number: (919) 541-5025; fax number: 
(919) 541-5450; e-mail address: [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 obtain a copy of this action?
II. Background
    A. History
    B. Overview of Decisions at Promulgation
III. Today's Action
    A. Final Action
    B. Comments Received on Reconsideration Issue
IV. 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
    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?

    EPA is reconsidering one aspect of its final BSCP rule under 
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.
------------------------------------------------------------------------

    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.

[[Page 69656]]

C. How do I obtain a copy of this action?

    In addition to being available in the dockets, an electronic copy 
of today's action also will be available on the Worldwide Web (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.

II. Background

A. History

    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 is the level of control already achieved by the better-controlled 
and lower-emitting sources in each source category or subcategory. For 
new sources, the MACT floor is the level of emission control that is 
achieved in practice by the best-controlled similar source. The MACT 
floor for existing sources is 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 
capable of achieving a level of emission control more stringent than 
the floor. We establish more stringent standards where we find greater 
reductions are achievable, taking into consideration the 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). Following promulgation, 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. On April 22, 2005, we 
announced our reconsideration of and requested public comment on that 
issue, specifically our decision to base the MACT requirements for 
certain tunnel kilns on DLA technology.
    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\ The litigation has been 
stayed to enable EPA to act on Sierra Club's petition for 
reconsideration prior to briefing. On May 10, 2005, the Court issued 
its most recent order, holding the case in abeyance until November 10, 
2005.
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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.).
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B. Overview of Decisions at Promulgation

    In the proposed rule, the MACT floors for the kiln exhaust from 
certain tunnel kilns were based on the use of dry lime injection fabric 
filters (DIFF), dry lime scrubber fabric filters (DLS/FF), or wet 
scrubbers (WS). Dry limestone adsorber (DLA) technology, which is the 
most prevalent type of air pollution control device (APCD) used to 
control emissions from existing brick kilns, was not proposed as a MACT 
floor technology because we had questions and concerns about DLA based 
on the information we had at the time. In response to the proposed 
rule, however, we received numerous comments from industry 
representatives, kiln manufacturers, and APCD vendors on issues related 
to the application and performance of the APCD discussed in the 
preamble. Many commenters reported technical obstacles to the use of 
DIFF, DLS/FF, and WS technologies, particularly for retrofitting BSCP 
kilns, as well as other disadvantages of those technologies, and 
provided information to address our questions and concerns about DLA 
technology.
    As a result of these public comments, we realized that there was 
more information on DLA technology to be considered and that we did not 
fully understand the limitations of applying the other technologies 
that were the focus of our MACT floors analysis at proposal. After 
reviewing all of the available information, we determined that MACT for 
some new tunnel kilns should be based on DIFF, DLS/FF, and WS 
technologies, but that for existing tunnel kilns retrofitting with 
DIFF, DLS/FF, or WS is not feasible or practical in many cases. We 
concluded that retrofitting existing BSCP tunnel kilns with certain 
APCD would likely alter brick quality and color for many kilns, 
resulting in changes to the product that are central to its character 
and value. We also determined that our principal concerns with DLA at 
proposal (i.e., generation or no control of particulate matter (PM) 
emissions and consistency of performance) had been allayed by the 
information we received in response to the proposal.
    In light of the public comments received regarding technical 
features and limitations of DIFF, DLS/FF, WS, and DLA technologies, we 
came to new conclusions regarding the effective application of these 
technologies. We concluded that DLA are the only currently available 
technology that can be used to retrofit existing tunnel kilns without 
potentially significant impacts on aspects of the production process 
that affect the character of the product itself. In the final BSCP 
rule, we thus allowed existing large tunnel kilns to use the DLA 
technology.
    In addition, we concluded that, because of retrofit concerns, it is 
not technologically or economically feasible for an existing small 
tunnel kiln that would otherwise meet the criteria for reconstruction 
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 similarly 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 to meet the relevant standards (i.e., new 
source MACT) by retrofitting with a DIFF, DLS/FF, or WS.

[[Page 69657]]

However, we determined that it is technologically and economically 
feasible for these types of kilns, whether existing or reconstructed, 
to retrofit or continue operating with a DLA, and the final rule 
required that such kilns meet the emissions limits that correspond to 
the level of control provided by a DLA.
    In the final rule, we concluded 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 construction. For small tunnel kilns, however, we 
concluded that DLA are the only APCD that have been adequately 
demonstrated, and, therefore, we based the final requirements for new 
and reconstructed small tunnel kilns on DLA control.

III. Today's Action

A. Final Action

    At this time, we are announcing our final action regarding the one 
issue in the Sierra Club's petition for reconsideration that we agreed 
to reconsider. The petition sought reconsideration of three issues 
relating to EPA's promulgation of final MACT floor standards based on 
DLA technology. One of the concerns was whether EPA had adequately 
complied with public notice and comment requirements. Noting that EPA 
had proposed MACT floor standards based on three different 
technologies, DIFF, DLS/FF and 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,\2\ we granted the Sierra Club's petition for reconsideration only 
with respect to that one issue ``namely, 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.\3\
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    \2\ 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).
    \3\ 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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    As stated in the April 22, 2005, notice announcing reconsideration 
of one aspect of the final rule, the arguments Sierra Club presented in 
the petition for reconsideration did not persuade us that our MACT 
floor determination for the final BSCP rule was erroneous or 
inappropriate. However, because we changed the technological basis of 
the MACT floors and standards between proposal and promulgation in 
response to comments received on the proposed rule, we decided to grant 
reconsideration on this issue and provide an opportunity for public 
comment on the DLA-based floors and standards reflected in the final 
rule.
    In our notice of reconsideration, we requested comment on the DLA-
based floors and standards, including technical issues related to the 
performance of DLA as compared to DIFF, DLS/FF, and WS; 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. We 
also specifically requested (1) additional information regarding 
whether there have been technical difficulties associated with DIFF, 
DLS/FF, WS, and DLA; (2) additional information on how these control 
devices have performed at plants operating these technologies; and (3) 
additional information on the successful application of these 
technologies to existing kilns. We received 15 responses to our request 
for public comment. These comment letters are available in the official 
public docket (Docket ID No. OAR-2002-0054).
    The comments we received provided limited new information related 
to APCD technology performance, including retrofitting issues, 
technical difficulties, overall performance, or successful application 
of the control technologies. Instead, the commenters generally referred 
to comments they had previously submitted on the proposed rule. 
Overall, the reconsideration notice did not bring to light additional 
technical information for EPA to weigh in revisiting its original MACT 
floor and standard-setting decisions. While one commenter argued that 
the CAA does not permit EPA to consider the feasibility of retrofitting 
existing kilns with APCD when determining the MACT floor, we disagree 
with the commenter's legal analysis for the reasons discussed below. 
Since the reconsideration comments did not provide a basis for us to 
conclude that our prior analysis was incorrect or flawed, we reaffirm 
the validity of the determinations we made at promulgation and are 
making no changes to the final rule. A summary of major comments 
received on the reconsideration issue and EPA's responses to those 
comments are provided below.

B. Comments Received on Reconsideration Issue

    We received both comments in support of and comments objecting to 
the DLA-based MACT floors and standards in the final rule. Multiple 
industry commenters supported our decision to include DLA as a retrofit 
technology in the MACT floor analyses for BSCP manufacturing. They also 
agreed with our statement in the April 22, 2005, notice that the 
petitioners did not provide sufficient information in their petition 
for reconsideration to warrant any changes to the final rule; indeed, 
they argued that the final rule should not even be subject to 
reconsideration. These commenters stated that the comments EPA received 
on the proposed rule specifically addressed the use of DLA, and thus, 
inclusion of DLA could have been anticipated by anyone following the 
public record. The commenters also asserted that the ability to 
retrofit certain APCD to an existing kiln has not been demonstrated to 
be achievable. They considered unreasonable the petitioner's assertion 
that the ability to retrofit a control is irrelevant to the 
determination of MACT and is equivalent to considering costs. The 
commenters stated that EPA cannot set a standard that has not been 
demonstrated as achievable. According to the commenters, under MACT, 
when the existing sources included in the top 12 percent have controls 
in place but these controls have not been demonstrated as a 
``retrofitable'' device (i.e., they were installed when designing and 
building the kiln rather than after it was built), then they are not a 
retrofit control device for that process. In addition, the commenters 
argued that if the same products cannot be produced after the 
installation of the control device, then it is not the same process. 
The commenters could think of no MACT standard where EPA added

[[Page 69658]]

controls that changed the targeted industry's products.
    Industry commenters highlighted major points made regarding DLA in 
previous comments on the proposed rule, including: (1) DLA are viable 
controls and have been demonstrated as a retrofit technology; (2) DLA 
are the most prevalent control in the industry because DLA achieve 
essentially the same reductions in emissions (e.g., of hydrogen 
fluoride (HF)), but do not present the same retrofit issues, as the 
other controls; (3) contrary to previous concerns raised by EPA, DLA 
have the potential to reduce PM emissions; (4) the small amount of PM 
that comes from these units has not been shown to contain any 
significant HAP emissions, and is likely significantly smaller than the 
already low amount in kiln exhaust; and (5) DLA have been demonstrated 
as a control that does not interfere with the operation of the kiln 
(i.e., airflow within the kiln). This last point is particularly 
important to the brick industry, which raised concerns with the other 
control devices that were considered by EPA. Industry commenters noted 
that among the controls considered for retrofit purposes, only DLA do 
not impact the types of products that can be produced, and not 
impacting the products is critical to the ongoing viability of a brick 
plant.
    Multiple industry commenters agreed with key EPA statements made in 
the promulgation preamble, specifically where EPA: (1) Concluded that 
``retrofitting existing kilns with DIFF or DLS/FF systems is not 
feasible in many cases;'' (2) acknowledged that ``retrofitting existing 
BSCP kilns with certain APCD (particularly those that affect kiln 
airflow) can alter time-honored recipes for brick color, thereby 
changing the product;'' (3) concluded that ``DLA are the only currently 
available technology that can be used to retrofit existing kilns 
without potentially significant impacts on the production process;'' 
(4) concluded that ``it is not technologically and economically 
feasible for an existing large DLA-controlled 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;'' and (5) concluded that ``DIFF and DLS/FF systems, if 
attempted on smaller kilns, would experience more difficulties with 
respect to airflow than systems on larger kilns because as the design 
airflow decreases, the acceptable operating range also would be 
expected to decrease.'' According to the commenters, the petitioners 
have provided no arguments or technical information that would change 
these conclusions.
    In response, we agree that our decisions at promulgation were a 
natural progression based on the comments received after proposal 
regarding the control technologies used in the industry. The comments 
and additional technical information not available to EPA prior to 
proposal provided a more complete explanation of the application of DLA 
and other control technologies to existing kilns in the BSCP source 
category. The previous comments submitted and referenced by these 
commenters are included in the official public docket (Docket ID No. 
OAR-2002-0054). We also agree that there is no new technical 
information relevant to the MACT floor analysis in the final rule.
    Some industry commenters also argued that if EPA does reconsider 
the DLA-based MACT for the BSCP industry, then decisions at 
promulgation that stemmed from the DLA-based MACT must also be 
reviewed. Specifically, EPA must: (1) Reevaluate the use of risk-based 
alternatives for this rule, and (2) revisit the issue of removing 
existing DLA from revised MACT determinations. In addition, they stated 
that EPA must re-propose the rule if the Agency concludes that MACT 
must be based on anything other than DLA. According to the commenters, 
numerous facilities have begun to comply with the promulgated rule by 
installing or committing to install DLA. The commenters stated that the 
large costs that would be incurred by ripping out a DLA and replacing 
it with a DIFF, DLS/FF or WS would be unreasonable, unwarranted, and 
not justified by the minimal benefits that would accrue, assuming the 
other APCD could be made to work. According to the commenters, those 
facilities most impacted and penalized would be the environmentally 
proactive facilities that have installed DLA to reduce emissions even 
before required by MACT, because they would be ripping out controls 
less than 2 years old.
    As explained further below, based on our evaluation of the 
reconsideration comments received, EPA is not making any changes to the 
MACT floors and standards. We acknowledge that changes to the 
promulgated MACT floor and standards based on DLA control technology 
could necessitate reevaluation of related decisions; however, since EPA 
is not making any changes, these comments are not relevant to this 
action.
    Earthjustice, in its comments on behalf of Sierra Club, reiterated 
its objection, originally stated at proposal, that EPA's decision to 
base MACT floors on the alleged performance of a control technology is 
unlawful, arbitrary and capricious. The commenter resubmitted its 
comments on the proposed rule and its Petition to Reconsider letter. 
The commenter argued that EPA's decision to base MACT floors on the 
alleged performance of DLA-equipped kilns contravenes the CAA MACT 
floor mandate because DLA-equipped kilns are not the best-performing 
kilns for which EPA has information. The commenter referenced EPA's own 
data, which indicated that (1) kilns equipped with other control 
technologies are achieving better emission levels than DLA-equipped 
kilns, (2) DLA have low hydrogen chloride (HCl) removal efficiencies, 
(3) DLA do not provide a mechanism for PM removal, and (4) DLA may 
actually create PM in some instances.
    This commenter argued that EPA's statement 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 statutorily irrelevant. According to the commenter, the 
CAA requires EPA to set MACT floors regardless of what control 
equipment the best-performing kilns are using, and EPA cannot choose to 
ignore that mandate based on its policy preference for setting floors 
that allegedly reflect what is achievable through using DLA. The 
commenter stated that EPA's argument that DLA is the only available 
technology depends largely on arguments irrelevant to MACT floor 
calculations, e.g., that retrofitting kilns with other technologies (1) 
would create solid waste or wastewater that is difficult or expensive 
to dispose of, and (2) could require kilns to change their recipes or 
incur downtime or reduction in capacity. The commenter argued that the 
possibility that other technologies may cost more or require sources to 
overcome technological difficulties does not support EPA's refusal to 
consider the performance of kilns equipped with those technologies. The 
commenter further argued that the record does not support or explain 
EPA's claim that those technologies may have technical difficulties, 
e.g., that they need a different airflow, which might affect brick 
color. The commenter noted that many existing kilns already are using 
those other technologies, which shows that it is possible to maintain 
the airflows and still produce bricks in the

[[Page 69659]]

colors the manufacturers choose. According to the commenter, EPA's 
suggestion that changes in airflow might affect brick color is only 
speculation, based on unsubstantiated and self-serving assertions by 
industry.
    Previous comments submitted at proposal related to DLA control 
technology and referenced by this commenter are in the official public 
docket (Docket ID No. OAR-2002-0054). The commenter's Petition to 
Reconsider letter is part of the docket at OAR-2002-0054-0010. As 
mentioned previously, one issue from that letter is the focus of this 
reconsideration action.
    In response to these comments, we reviewed our MACT floor analysis 
and its factual and statutory basis. Contrary to the commenter's 
claims, there is ample support in the rulemaking record for the 
concerns expressed by the brick industry about the feasibility of 
retrofitting existing kilns with DIFF, DLS/FF or WS (unless the 
existing kiln had been designed and built with that technology). As 
explained in more detail below, the attempts that have been made to 
retrofit using DIFF or DLS/FF have not met with success, and we do not 
have a basis for concluding that the technological obstacles that have 
been encountered to date can be overcome in the 3 years that existing 
sources have to comply with the NESHAP.\4\ While sources subject to 
NESHAP typically face challenges in meeting the applicable 
requirements, here the concern is whether existing BSCP kilns can 
retrofit APCD without changing the very products they make. As for WS, 
we continue to believe that retrofits using that technology are only 
feasible for kilns having access to a sewer system for wastewater 
disposal. Indeed, a WS system that includes the type of wastewater 
treatment that would be required in the absence of sewer system access 
has never been built or demonstrated in the BSCP industry. Based on our 
review of the rulemaking record, we again conclude 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 and the resulting product of many kilns.
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    \4\ Consistent with CAA section 112(i), EPA's final rule 
provided existing covered sources with the maximum allowable lead 
time of 3 years to comply with the BSCP NESHAP.
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    We also believe that the MACT floor analysis upon which we based 
the promulgated standards for existing tunnel kilns in the BSCP 
industry properly took into account the technical obstacles to 
retrofitting those kilns with available APCD. We disagree that the 
ability to retrofit a technology to an existing source is irrelevant to 
the MACT floor. Under CAA section 112(d)(2), EPA is required to set 
NESHAP that reflect the ``maximum degree of reduction in emissions'' of 
the relevant HAP that the Agency, considering various factors, 
``determines is achievable'' (emphasis added). In surveying existing 
tunnel kilns, we found that DIFF, DLS/FF and WS were used almost 
exclusively by kilns that had been designed and built to work with 
those technologies. Kilns which had been retrofitted with ACPD 
primarily used DLA because, among other things, that technology, unlike 
DIFF and DLS/FF, does not affect airflow crucial to product quality and 
color, and, unlike WS, does not generate large quantities of 
wastewater. As described in detail below, the kilns that had been 
retrofitted with DIFF or DLS/FF experienced serious and so far 
insurmountable problems.
    While kilns using DIFF, DLS/FF or WS technologies achieve lower 
emission rates than kilns using DLA, the CAA does not require that we 
turn a blind eye to compelling evidence that kilns not already equipped 
with DIFF, DLS/FF or WS cannot be reliably retrofitted with those 
technologies without significantly affecting the kiln's production 
process and its product. On its face, CAA section 112(d) repeatedly 
calls for ``achievable'' standards. BSCP facilities that are otherwise 
similar in terms of kiln type and size are demonstrably dissimilar in 
their ability to be retrofitted with the various APCD. EPA may 
appropriately account for technological differences that affect whether 
a control technology can be feasibly applied to all existing sources 
that will require additional controls to lower their HAP emissions.
    Recognizing these technological issues, we clearly laid out in the 
final rule preamble the four basic steps taken in determining the MACT 
floor control level:
    (1) We reviewed available data on pollution prevention techniques 
(including substitution of raw materials and/or fuels) and the 
performance of add-on control devices to determine the techniques that 
were viable for and effective at reducing HAP emissions;
    (2) For each subcategory, we ranked the kilns from the best 
performing to the worst performing based on the emission reduction 
technique used on the kilns;
    (3) For each subcategory, we then identified the 94th percentile 
kiln and the emission reduction technique that represented the MACT 
floor technology; and
    (4) For each subcategory, we then selected production-based or 
percent-reduction emission limits that correspond to the 94th 
percentile kiln and emission reduction technique, and we based our 
selections on the available data while considering variability in the 
performance of a given emission reduction technique.
    A full explanation of the MACT floor and MACT determination is 
provided in the promulgation preamble (see 68 FR 26698, May 16, 2003).
    Key points and information provided by the commenters after 
proposal included the following: (1) DIFF, DLS/FF, and WS are not 
demonstrated technologies for retrofitting BSCP kilns; kilns that have 
used those technologies for a retrofit have experienced significant 
problems, as explained further below; (2) different products require 
different airflows to produce distinctive characteristics of the 
product; (3) DIFF, DLS/FF, and WS require minimum airflow rates to 
operate properly; (4) DIFF, DLS/FF, and WS affect the product line when 
process/kiln airflow rates must be changed to accommodate control 
device operation; (5) DIFF, DLS/FF, and WS result in kiln downtime and 
reductions in kiln production capabilities; (6) during kiln slowdowns, 
DIFF, DLS/FF, and WS APCD may not be able to operate at all; (7) DIFF, 
DLS/FF, and WS produce large amounts of solid waste and wastewater that 
pose environmental issues of their own; (8) most BSCP facilities are 
located in areas that do not have available sewer access for WS 
wastewater; (9) few DIFF, DLS/FF, and WS systems have been developed 
specifically for brick kilns; (10) DLA do not require minimum airflow 
rates; (11) lower airflow rates increase the control efficiency of DLA; 
(12) DLA do not impact kiln operation, airflow, and production level; 
(13) DLA do not generate PM emissions; (14) DLA do perform over the 
life of the sorbent; (15) DLA limestone is continually replaced and HF 
and HCl control efficiencies are maintained; and (16) DLA control 
technology is applied to brick kilns all over the world, and vendors 
are experienced in applying the technology to the BSCP industry.
    Commenters noted that most of the DIFF, DLS/FF, and WS in place in 
the BSCP industry have been installed on new kilns, and those that were 
installed on existing kilns have created problems with kiln operation. 
Commenters pointed out that all injection and wet control devices need 
a certain airflow to operate, and because the airflow rate within a 
brick kiln can vary by 50 percent or more, depending primarily

[[Page 69660]]

on the size of the product, control systems with any type of injection 
are problematic. Each product has a given set of kiln operating 
parameters, and the airflow varies from product to product. Balancing 
airflow in the kiln is critical to the operation of the kiln. Any 
changes to the firing characteristics and/or airflow rate that result 
from the use of DIFF, DLS/FF, and WS controls have an impact on the 
quality and aesthetic value of the product. If these control devices 
are used, then the control devices will dictate how the kiln is 
operated.
    Commenters shared their actual experience with DIFF, DLS/FF and WS 
technologies in retrofit applications. In the case of WS, they noted 
that short-term pilot tests of WS had encountered significant problems 
and that full-scale WS had never been used on BSCP kilns (with the 
exception of one facility, discussed below, that operates two WS). 
Multiple commenters stated that, rather than being reduced, PM was 
generated by WS during pilot tests. One commenter stated that, during 
the 3-month pilot test, the longest time of continuous operation of the 
WS was 6 days. Following the pilot tests, the facilities chose not to 
install a full scale WS due to the insurmountable issues. The one 
facility operating WS has a permit to discharge untreated wastewater to 
the local sewer system, thus making wet scrubbing a feasible option for 
that facility. According to a letter submitted by the company, one of 
the WS at this facility has ongoing problems with fouling of scrubber 
packing.
    With respect to DIFF, commenters explained that the only 
commercially available retrofit DIFF installation was problematic and 
still not operating correctly more than 2 years after installation. 
This system had problems with the dampers and reagent feeding systems. 
Commenters noted that the original cost for this DIFF was $1 million; 
however, the facility spent over $2 million without achieving 
successful operation. Furthermore, another retrofit DIFF installation 
changed the kiln draft enough to result in kiln capacity reduction from 
13.5 to 12.2 cars/day; this was a loss in revenue of $1 million per 
year. According to commenters, the vendor who installed this DIFF 
system is no longer in business.
    Commenters indicated that the only DLS/FF retrofit that has been 
attempted is also problematic and led to product quality problems and 
kiln downtime. This system was a prototype and so had no operational, 
troubleshooting, or maintenance history, leaving the facility to 
diagnose operational problems. The vendor who installed this DLS/FF is 
no longer providing systems to the BSCP industry according to the 
commenters.
    In sum, the commenters provided information showing that few 
injection (i.e., DIFF and DLS/FF) or WS systems have been developed 
specifically for brick kiln operations, and retrofit experience shows 
that vendors have been unable to successfully design these systems for 
retrofit applications in the BSCP industry. Commenters charged that EPA 
did not account for retrofitting problems associated with installing 
DIFF, DLS/FF, and WS on older kilns and the costs associated with these 
problems. Commenters described how attempts at retrofitting kilns with 
these APCD have resulted in significant kiln downtime and permanent 
reductions in kiln production capacities. Commenters stated that DIFF 
and DLS/FF systems produce large amounts of solid waste that is 
difficult and expensive to dispose of, and use of WS is not practical 
for most facilities because the facilities have no viable options for 
wastewater disposal. Commenters also pointed out that there are high 
costs and marginal additional emissions reductions associated with 
replacing an existing DLA with a DIFF system.
    Based on the many comments received following proposal regarding 
retrofit concerns with DIFF, DLS/FF, and WS and our own review of all 
the available information, we concluded that retrofitting existing 
kilns with these technologies is not feasible in most cases. We note 
that in addition to comments received from brick manufacturers, we 
received comments from a kiln vendor and APCD vendors explaining the 
importance of airflow to kiln operation, product quality and color, and 
for proper APCD operation; these comments further substantiated many of 
the claims submitted by industry representatives. We find it 
particularly compelling that: (1) Attempts to retrofit older kilns with 
injection systems (i.e., DIFF and DLS/FF) have been unsuccessful due to 
interference with the kiln airflow, such that product quality cannot be 
maintained, and (2) injection system retrofits have experienced 
operational problems (i.e., settling of lime sorbent in the ductwork 
and subsequent APCD malfunction, early and unanticipated fabric filter 
bags failure) during the airflow variations that are necessary for 
various products. We also find quite compelling the argument that WS 
are not an option for most BSCP facilities because of limited or no 
sewer access. Although we also received many comments after proposal 
regarding the cost of control technologies, our MACT floor decisions 
are based on what is technically achievable and demonstrated as opposed 
to cost as section 112(d)(3) of the CAA does not allow consideration of 
cost when determining MACT floors.
    As described above, in the reconsideration proposal notice we asked 
for additional comments and information on technical issues related to 
the performance of control technologies, including DLA, DIFF, DLS/FF, 
and WS. We also requested information on the successful retrofit of 
DIFF, DLS/FF, and WS on existing tunnel kilns. We received no 
additional information that would lead us to different conclusions 
today regarding the MACT floor for existing large tunnel kilns. 
Therefore, we continue to believe that DLA are the only currently 
available technology that can be used to retrofit existing large tunnel 
kilns without potentially significant impacts on the production 
process.
    One commenter also took issue with EPA's decisions on reconstructed 
sources. Specifically, the commenter rejected as irrelevant EPA's 
arguments that it would not be technologically and economically 
feasible for the following reconstructed sources to meet the relevant 
(i.e., new source MACT) standards by retrofitting with a DIFF, DLS/FF, 
or WS: (1) 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; and (2) an 
existing large DLA-controlled tunnel kiln that would otherwise meet the 
criteria for reconstruction in 40 CFR 63.2. The commenter argued that 
EPA is not relieved of its statutory obligation to set new source 
floors reflecting the performance of the best-performing source based 
on the possibility that some sources may incur costs or have to 
overcome technological obstacles to match the performance of the 
relevant best source. According to the commenter, such a possibility 
also does not allow EPA to simply declare that certain reconstructed 
BSCP are not subject to these requirements, which the commenter argued 
would contravene the CAA's definition of ``new source'' and statutory 
mandate requiring reconstructed sources to meet new source MACT. The 
commenter argued that this decision is nothing more than an attempt by 
EPA to substitute its own views for the plainly expressed intent of 
Congress. The commenter also argued that EPA missed the point in basing 
the MACT floor for new small tunnel kilns on the alleged performance of 
DLA (with EPA concluding that ``DLA are the

[[Page 69661]]

only APCD that have been demonstrated on small tunnel kilns'') because 
the floor must reflect the actual performance of the single best kiln, 
not what EPA thinks is achievable through the use of DLA.
    Based on the retrofit comments discussed above, the same 
technological retrofit concerns for existing sources are also relevant 
to (1) existing small tunnel kilns that are rebuilt such that they 
become large kilns and (2) existing large DLA-controlled tunnel kilns 
that are rebuilt. Retrofitting these types of existing kilns with DIFF, 
DLS/FF, or WS is not feasible. The only currently available technology 
that can be used to retrofit these reconstructed kilns without 
potentially significant impacts on the production process is DLA. 
Additionally, DIFF, DLS/FF, and WS have not been demonstrated for small 
kilns. Smaller kilns have even smaller airflow rates than larger kilns, 
and any fluctuations in airflow rates have significant impact on the 
ability of the DIFF, DLS/FF, or WS to operate correctly. DLA are the 
only APCD that have been demonstrated on small tunnel kilns, and, 
therefore, the requirements for new and reconstructed small tunnel 
kilns were based on the level of control that can be achieved by DLA.
    With respect to the commenter's argument that EPA must meet the 
statutory mandate requiring reconstructed sources to meet new source 
MACT, we point out that the definition of ``Reconstruction'' at 40 CFR 
63.2 includes the text ``* * * to such an extent that * * * it is 
technologically and economically feasible for the reconstructed source 
to meet the relevant standard(s) established by the Administrator (or a 
State) pursuant to section 112 of the Act.'' (emphasis added) This 
regulatory definition, which was promulgated on March 16, 1997 (59 FR 
12430) and amended on April 5, 2002 (67 FR 16595), reflects EPA's view 
that the statutory requirements for reconstructed sources allow for the 
consideration of both technological and economical issues. In view of 
the regulatory definition, we believe we correctly identified the MACT 
floors and standards for reconstructed sources and for new small tunnel 
kilns.
    Multiple commenters expressed concern about EPA's statement in the 
reconsideration notice that no change in the compliance date is 
warranted. The commenters argued that the reconsideration process has 
been slow, and EPA reopened the rule because it did not follow its own 
proper procedures, neither of which is due to any fault or action by 
industry. According to these commenters, EPA will have used more than 
two-thirds of the compliance period for existing sources just to 
process this reconsideration petition. With the compliance date less 
than 1 year away, the commenters stated that it may not be possible for 
the limited number of vendors worldwide to supply every company that 
needs an APCD in time. One commenter argued that the 1-year case-by-
case extension offered by the General Provisions is not a reasonable 
solution to a systemic problem and creates another burden for industry 
to apply for and obtain this extension. The commenters argued that EPA 
should not rely on past precedents for not providing compliance 
extensions when litigation occurs on a rule, because this is not 
litigation but reconsideration and because EPA has determined that its 
rulemaking process has deficiencies that must be corrected. Commenters 
noted that their industry is composed primarily of small businesses, 
where a single financial decision, such as which control to install, 
can have profound impacts on the facility's viability. In light of 
these concerns, multiple commenters argued that EPA should set a 
compliance date 3 years from the date that EPA publishes its 
conclusions on the reconsideration, while other commenters suggested 1-
year or 2-year extensions of the compliance date. One commenter 
indicated that neither EPA nor environmental groups would be affected 
by an extension.
    As mentioned above, section 112(i)(3) of the CAA specifies that 
NESHAP for existing sources can have compliance deadlines of no more 
than 3 years. For the BSCP NESHAP, EPA provided the maximum 3 years for 
covered sources to comply with the new standards. It is not at all 
unusual for promulgation of CAA standards to be followed by litigation 
or petitions for reconsideration. CAA section 307(b)(1) specifically 
provides that the filing of a petition for reconsideration of a rule 
does not postpone the effectiveness of the rule. The final BSCP rule 
was effective as of the date of its promulgation and it has remained in 
effect during the reconsideration period. Sources covered by the final 
rule have thus remained subject to its requirement for compliance to be 
achieved by May 16, 2006.
    EPA made it clear in its reconsideration notice that the Agency did 
not believe a change in the compliance date was warranted. We noted 
that Sierra Club, in its petition for reconsideration, ``has not 
provided information which persuades us that our decision to base the 
MACT floors on DLA technology is erroneous or inappropriate.'' (See 70 
FR 21094, April 22, 2005.) We explained that ``[i]f we decide to amend 
the final rule as a result of the reconsideration process, we will 
reevaluate the compliance date as early as possible.'' Covered sources 
were thus on notice that we were unlikely to change the compliance 
deadline unless we determined that the final rule should be amended 
based on new information, and that the petition for reconsideration had 
not provided any new information.
    To date, EPA has not, during the pendancy of a reconsideration 
request, extended the compliance deadlines for promulgated MACT 
standards to provide compliance periods in excess of the statutory 3 
year maximum. In contrast, only where the Agency has amended a MACT 
standard in a significant way have we found it appropriate to set a new 
compliance date for the rule that takes into account new requirements 
not contained in the original rule. In this case, we decided that no 
amendments to the standards are warranted, so the final rule and its 
compliance deadline remain unchanged.
    EPA acknowledges that the time to complete the reconsideration has 
been lengthy, and has comprised approximately 2.5 years of the 3-year 
compliance period. To the extent any covered source finds it cannot 
comply with the BSCP NESHAP in the 3 years of lead time provided, it 
may seek an extension in accordance with 40 CFR 63.6(i)(3). We 
understand that the majority of the affected businesses are small 
businesses for which installation of the requisite emission controls 
entails a significant investment in time and money. The process to 
install equipment involves the evaluation and selection of a control 
device and a control device vendor, the application and issuance of a 
permit from the regulatory authority, the installation of the controls 
and the potentially lengthy process of insuring that the installed 
control can meet the MACT limits while still maintaining product 
quality. Given the small number of controls that have been installed in 
this industry prior to the standards, and the relatively small number 
of vendors with an understanding of this industry, some individual 
facilities may require an extension to come into compliance. We 
encourage States to make appropriate use of the extension authority 
granted to them under 40 CFR 63.6(i)(3).
    Although commenters acknowledged that we stated in the April 22, 
2005, reconsideration notice that we would only address comments on our 
decision to base MACT for certain tunnel kilns

[[Page 69662]]

on DLA, they offered comments on other issues as well. These issues are 
outside the scope of this reconsideration, but we would like to offer a 
few thoughts on two of the issues raised: The requirement for a daily 
visual limestone check and the start-up definitions.
    Regarding the first of these issues, commenters specifically 
requested that EPA change the requirement for the daily visual check of 
the limestone level in the DLA, and cited significant safety hazards 
and the generation of minimal information associated with climbing to 
the top of the limestone hopper each day, especially on days with wet, 
freezing, or windy weather. According to the commenters, better, safer 
approaches are available to confirm the adequacy of limestone present 
(e.g., monitoring the amount of limestone added and removed from the 
system, installing numerous level indicators throughout the storage 
bins to ensure that limestone is flowing, monitoring pressure drop on 
the scrubber on a daily basis, and monitoring flow as an alternative in 
systems with recycle). They argued that requesting an alternative 
monitoring plan under the General Provisions was an avoidable financial 
burden for each facility when EPA could easily add compliance 
alternatives to the rule.
    Commenters also requested clarification on the start-up definition 
with respect to the timing of the requirement to vent through a DLA. 
The commenters disagreed with the dual definition of start-up in the 
final rule, which depended on the type of control device used, because 
a facility may not know which control will ultimately be needed for its 
system. At a minimum, the commenters believed the DLA-based definition 
should be clarified because there is the potential for confusion. While 
the kiln may be considered to have reached ``initial start-up'' at 260 
[deg]C (500 [deg]F), there are no known HAP emissions from bricks at 
this temperature. However, there is still moisture in the exhaust when 
the kiln first reaches this temperature, and venting through the 
control device at this temperature could create devastating clogging of 
the limestone. According to the commenters, bricks are not a source of 
HAP emissions until they reach a temperature at which dehydroxylation 
occurs (500-600 [deg]C (932-1112 [deg]F)). At a minimum, the commenters 
believed EPA should clarify that, while the kiln may be considered 
``started,'' this does not mean that the exhaust must be vented through 
the control device.
    We would like to address these issues at least to some extent in 
this action since they pertain to compliance with the promulgated MACT 
standards. The compliance requirement to verify that the limestone 
hopper and storage bin contain adequate limestone by performing a daily 
visual check is not limited to being met only by climbing to the top of 
the limestone hopper each day. Other methods of visually confirming 
that the hopper and storage bin contain adequate limestone could 
include some type of visual access point (e.g., a window) on the side 
of the hopper, installing a camera in the hopper that provides 
continuous feed to a video monitor in the control room (a common 
practice in other mineral products industries), or confirming that load 
level indicators in the hopper are not indicating the need for 
additional limestone. With respect to the start-up definitions, the 
final rule's definitions of start-up are based on public comments 
regarding DIFF-, DLS/FF-, and WS-controlled kilns and information from 
an owner of DLA-controlled kilns. If in the future it is determined 
that revisions to the compliance requirements or start-up definitions 
in the final rule are warranted, they will be addressed at that time in 
a rule amendment.

IV. Statutory and Executive Order Reviews

    On May 16, 2003, we published the final NESHAP for BSCP 
manufacturing pursuant to section 112 of the CAA. With today's action, 
we are promulgating no changes to the final rule. Accordingly, we 
believe that the rationale provided with the final BSCP rule is still 
applicable and sufficient.

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 today's 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 promulgating any new paperwork (e.g., monitoring, reporting, 
recordkeeping) as part of today's final action. The 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.

[[Page 69663]]

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. EPA has 
determined that it is not necessary to prepare a regulatory flexibility 
analysis in connection with the reconsideration of one issue arising 
from the final rule, since the reconsideration did not result in a 
proposed change to final rule.

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 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 results in 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'' are 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. 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 not promulgating 
any 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

[[Page 69664]]

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 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 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 (Pub. L. 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 for 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 10, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-22805 Filed 11-16-05; 8:45 am]
BILLING CODE 6560-50-P