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MACT Task Force

March 16, 2009 Via email

Jeff Telander Sector Policies and Programs Division Office of Air Quality Planning and Standards ( D243-02 ) RTP, NC 27711

Dear Jeff,

As discussed in our meeting last week, the Brick Industry Association (BIA) MACT Task Force is interested 

### in immediately beginning a dialogue on numerous legal issues that we believe need to be addressed during the rulemaking. I believe we would all prefer that these issues are identified now, rather than waiting for the public comment period (although we reserve our right to raise issues and submit comments at that time). The six issues are briefly discussed below.

The use of synthetic minor sources in determining the MACT floor. As you are aware, this issue 

### was raised during the previous rulemaking, but was never litigated. We have reviewed the EPA's last stated position on this issue (i.e., included in the May 16, 2003 promulgation) and disagree on several points. We continue to believe that the Clean Air Act specifically limits the sources that can be considered in a floor determination for existing sources to those sources within the listed category. Since EPA only listed major sources for regulation, only major sources can be used to establish the MACT floor. 

### 2. The prohibition to consider mined materials as a control strategy under the MACT program. As EPA argued themselves in a brief before the D.C. District Court of Appeals, Congress specifically prohibited the EPA from considering mined materials as an emission limitation under Section 112 rules. EPA's approach of only evaluating the final emission rate (either controlled or uncontrolled) inherently includes the impact of raw material in the analysis. This is not allowed. 3. The "inexorable downward ratcheting effect" of developing a floor after a rule has been in place. When discussing whether a reconsideration of floors is warranted during the 8-year review of MACT rules, EPA has argued that they do not believe that the CAA requires that they re-determine MACT floors because this could cause an "inexorable downward ratcheting effect" of MACT rules. BIA contends that this is exactly what is happening with our rule. While the EPA may argue that the MACT rule "never existed," the previous Brick MACT was in effect for over a year- and the controls used to meet this rule are now being used to "ratchet down" the emission limitation considered as the "floor." 

### 4. EPA is "cherry picking" data, which results in a MACT floor that no single facility can meet. EPA cannot individually determine the floor for each HAP (or surrogate for a group of HAPs),without consideration of the fact that the resulting floor is not attainable by any single source. The MACT floor, as intended by Congress and supported by the Courts, is supposed to be a representation of what is achieved by actual sources, not by what might be achievable if the optimum performance for each individual HAP (or group of HAPs) could theoretically exist at a single source 5. Definition of "available information." EPA previously defined "available information" to include a variety of information types, including size, location, type of control; however, EPA is now apparently defining this term to only include sources with emission data. This new interpretation incorrectly leads to a smaller population of sources being used to establish the floor, which incorrectly skews the floor calculation. 6. Definitions of "emission limitation" and "best performing." The definitions of these terms impact how the available information for a category is translated into MACT floor calculations. We understand that the definition of what is considered an "emission limitation"(i.e., whether the CAA definition means that it requires a state or federal limit) was raised during a previous lawsuit, but never addressed by the courts because the issue was not raised until litigation. However, we feel that the issue should be addressed now. The term "best performing" is closely related to that term- and raises the question as to whether something is "best performing" when it actually results in an emission reduction or when it merely emits at an inherently lower rate due to lower inputs.
While not directly an issue for this rulemaking, we would also like to obtain an official clarification of the EPA's "once in, always in" policy. As we discussed at our meeting, several of our member companies have also experienced various interpretations by the various states. I believe we are in agreement that the "once in, always in" condition would not have been triggered for a brick manufacturer since the final MACT for that category has not been promulgated. Therefore, a facility that becomes non-major before the compliance date of this upcoming MACT would not be subject to the major source rule.

We propose to provide you with additional details for each of the above topics by March 24, 2009 and then meet with EPA with the next two weeks to discuss these issues; we propose April 3, 2009 or April 14 1 2009 for that meeting. We would see this meeting as including both technical and legal representatives from both BIA and EPA. The April 3, 2009 meeting would need to be held in Research Triangle Park, N.C. The April 14, 2009 meeting could be held either in Washington, D.C. or in Research Triangle Park, N.C.

We thank you for this opportunity to continue to work with EPA on this critical rulemaking. If we can provide any additional information, please do not hesitate to contact me at (334) 480-2488/ terry.schimmel@boral.com or Susan Miller, BIA's Vice President for Environment, Health and Safety at (703) 674-1545/

smiller@bia.org

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Sincerely,

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## ~ f ^ Terry Schimmel
BIA MACT Task Force Lead