[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:
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Examples of
potentially
Category SIC NAICS regulated
entities
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Industrial................... 3251 327121 Brick and
structural
clay tile
manufacturing
facilities.
Industrial................... 3253 327122 Extruded tile
manufacturing
facilities.
Industrial................... 3259 327123 Other
structural
clay products
manufacturing
facilities.
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The reconsideration action does not concern the NESHAP for clay
ceramics manufacturing facilities (40 CFR part 63, subpart KKKKK),
which were published with the final BSCP rule (40 CFR part 63, subpart
JJJJJ).
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by the
reconsideration action. To determine whether your facility may be
affected by the reconsideration action, you should examine the
applicability criteria in 40 CFR 63.8385 of the final BSCP rule. If you
have any questions regarding the applicability of the final rule to a
particular entity or the implications of the reconsideration action,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
[[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