Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69655 

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. 

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: 

johnson.mary@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. General Information 

A. What is the source of authority for the 

reconsideration action? 

B. What entities are potentially affected by 

the reconsideration action? 

C. How do I 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: 

Category SIC NAICS Examples of potentially 

regulated entities 

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. 

69656 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

1The 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.). 

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. 

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. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69657 

2Section 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. 

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 DLAbased 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

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 

69658 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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 timehonored 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 repropose 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 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69659 

4Consistent 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. 

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 selfserving 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. 

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 percentreduction 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 

69660 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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 shortterm 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 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 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 

69662 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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 °C 

(500 °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 °C 

(932–1112 °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 WScontrolled kilns and information from 

an owner of DLA-controlled kilns. If in 

the future it is determined that revisions 

to the compliance requirements or startup 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. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 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 costbenefit 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 costeffective, 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 

69664 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 87 

[OAR–2002–0030; FRL–7997–3] 

RIN 2060–AK01 

Control of Air Pollution From Aircraft 

and Aircraft Engines; Emission 

Standards and Test Procedures 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, we are 

amending the existing United States 

regulations governing the exhaust 

emissions from new commercial aircraft 

gas turbine engines. Under the authority 

of section 231 of the Clean Air Act 

(CAA), 42 U.S.C. 7571, the 

Environmental Protection Agency (EPA) 

is establishing new emission standards 

for oxides of nitrogen (NOX) for newly 

certified commercial aircraft gas turbine 

engines with rated thrust greater than 

26.7 kilonewtons (kN). This action 

adopts standards equivalent to the NOX

standards of the United Nations 

International Civil Aviation 

Organization (ICAO), and thereby brings 

the United States emission standards 

into alignment with the internationally 

adopted standards (ICAO standards for 

newly certified engines were effective 

beginning in 2004). In addition, today’s 

action amends the test procedures for 

gaseous exhaust emissions to 

correspond to recent amendments to the 

ICAO test procedures for these 

emissions. 

On December 19, 2005, the new NOX

standards will apply to newly certified 

gas turbine engines—those engines 

designed and certified after the effective 

date of the regulations (for purposes of 

this action, the date of manufacture of 

the first individual production model 

means the date of type certification). 

Newly manufactured engines of already 

certified models (i.e., those individual 

engines that are part of an already 

certified engine model, but are built 

after the effective date of the regulations 

for such engines and have never been in 

service) will not have to meet these 

standards. 

Today’s amendments to the emission 

test procedures are those recommended 

by ICAO and are widely used by the 

aircraft engine industry. Thus, today’s 

action will help establish consistency 

between U.S. and international 

standards, requirements, and test 

procedures. Since aircraft and aircraft 

engines are international commodities, 

there is commercial benefit to 

consistency between U.S. and 

international emission standards and 

control program requirements. In 

addition, today’s action ensures that 

domestic commercial aircraft meet the 

current international standards, and 

thus, the public can be assured they are 

receiving the air quality benefits of the 

international standards. 

DATES: This final rule is effective 

December 19, 2005. 

The incorporation by reference of 

certain publications listed in this 

regulation is approved by the Director of 

the Federal Register as of December 19, 

2005. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2002–0030. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available,