311 S. Academy Street, Suite 5 | Cary, North Carolina 27511 | Phone: 919

‐ 380

‐ 2191 | www.gobrick.com May 10, 2010

Jeff Telander

U. S. EPA

Mail Code D243

‐ 02

109 TW Alexander Drive

Research Triangle Park, North Carolina 27709

Dear Jeff,

Thank you for this opportunity to provide written comments in follow

‐ up to the discussions at

the April 20, 2010 meeting between the U.S. Environmental Protection Agency, the Small

Business Administration, the Office of Management and Budget, and potential small entity

representatives (SERs) from the brick industry. The Brick Industry Association (BIA), as you

know, is committed to working with EPA to ensure that the MACT for this industry is

reasonable, attainable, and protective of human health and the environment, while allowing

the brick industry to continue to operate in the United States.

As you are aware, we continue to have numerous concerns over the legal foundations of some

approaches being supported by EPA. These legal arguments have been submitted to EPA

previously (March 16, 2009; March 30, 2009) and will not be repeated here. We understand

that these issues are “larger” than our rule

‐ and we will continue to discuss those outside the

small business panel process. The purpose of this letter will be to discuss key issues that we

believe the Small Business Panel can impact that will allow EPA to follow the intent of the Clean

Air Act (CAA) to protect human health and the environment, while mitigating unnecessary and

potentially catastrophic burdens on small businesses.

Many of the potentially catastrophic impacts have been brought about by the “MACT on

MACT” nature of this rulemaking. Unlike other rules that were vacated before full compliance,

the brick industry was in full compliance with this MACT when it was vacated nearly a year after

full compliance was required, even for our existing sources. We understand that the “MACT on

MACT” effect was not contemplated by Congress, and that the CAA has specific rules that state

how limits must be established during the “first round” of rule development under Section 112.

However, we also recognize that the CAA language is open for some interpretation and

provides for EPA discretion in many instances. It is this room for interpretation and for EPA

discretion that could allow EPA to mitigate the impact on small businesses in our industry,

without violating any requirements of the CAA or rulings by the DC District Court. By following2 | Page BIA SER letter

‐ 5/11/2010 the most stringent interpretations (or over

‐ interpretations of the brick MACT court ruling) of

the “rules” in the CAA and not exercising discretion, EPA is approaching the “absurd results” it

has seen in other programs, such as the greenhouse gas (GHG) permitting program. EPA has

the authority and ability to avoid these “absurd results” by simply ensuring that it follows the

CAA. We contend that each approach described below is well within the requirements of the

CAA.

A. Distinguish between “small” and “large” kilns within the tunnel kiln subcategory

.

This subcategorization was developed during the previous rulemaking, but should continue for

numerous reasons:

 In the current rulemaking for the Hazardous, Medical, Infectious Waste Incineration

(HMIWI) industry under Section 129 of the CAA, the EPA chose to maintain size grouping

established in previous rulemakings simply because the different sizes were subject to

previous, differing regulatory requirements. The same situation exists for brick tunnel

kilns. The ultimate vacatur of the MACT is irrelevant to this historical grouping since it

occurred after the regulatory requirement was enforced. This impact can clearly be

seen in Figure 1, which presents kilns built by year with their size and control status.

 Small and large tunnel kilns are different.

o Small kilns tend to be older.

o Since approximately 2000

‐ 2002, essentially all new kilns are large kilns (i.e., over

10 tons per hour in throughput capacity)

o Older designs were less airtight. This additional air flow, while already

compensated for in the kiln firing schedule to create a saleable product, would

impact add

‐ on control design.

o Small kilns are often associated with more labor intensive, high production cost

manual processes.

 Small kilns within the source category are predominantly without an add

‐ on control

device. In establishing the floor for the small kilns in this source category, EPA should

not ignore this fact by grouping them with larger kilns. The only three kilns that are

controlled are all controlled by a single unique air pollution control device that is

operated to control a non

‐ HAP. Control of the HAP at these three kilns, therefore, is

sporadic and not consistent.

 The determination made to distinguish between these two groupings during the

previous rulemaking process was not legally challenged by anyone.

 By splitting the tunnel kilns into large and small, EPA is better able to evaluate the

impact on small businesses.

B. Find some way to account for DLAs that were installed in good faith.

In order to mitigate the EPA

‐ imposed MACT on MACT impact, EPA should evaluate whether

there is any way to distinguish the sources that installed control devices, in good faith, as a

result of the rulemaking. These controls are still viable and should not be required to be torn3 | Page BIA SER letter

‐ 5/11/2010 down before their useful life is complete. We believe that there are several possible

approaches. For example:

 Since these operations were able to install a DLA, that means that there is not a

significant amount of SO2 coming from these sources (a DLA is generally less effective in

HAP removal when SO2 is present). Perhaps EPA could consider this as a basis for a

subcategory.

 As EPA has stated in a recent proposal for rulemakings under Section 112(j) of the CAA,

Congress did not conceive of situation where a MACT was vacated. However, the CAA

does address the situation where a promulgated MACT is more stringent than a

proposed MACT. In that case, in Section 112(i)(2)(entitled “Special Case”), Congress

stated that a source would be given an additional three years beyond the initial

compliance date. Clearly, had Congress contemplated the possibility of a vacated rule,

particularly a vacatur after the compliance date for existing sources, they would have

provided at least this amount of additional time for this “special case.” Another option

would be to establish subcategories to differentiate these sources as unique.

 If EPA considers the long

‐ term performance of a control device, we believe that EPA

would find that a DLA and other controls (such as the DIFF or DLS) are comparable.

Long term performance is not defined simply by the results of a 3

‐ hr stack test. While a

DIFF/DLS may have instantaneous emissions that are lower (particularly for HCl), a

DIFF/DLS tends to have longer periods where it is not operating to control emissions.

This includes both downtime caused by routine maintenance requirements and

downtime caused by malfunctions. Simply put, there are more moving parts on many

DIFF and DLS. We believe that a standard that considers relative reliability and factors

long

‐ term performance into the establishment of the emission factors would allow for

all controls to be viable alternatives.

 We believe that other benefits of a DLA over a DIFF/DLS should also be considered. For

example: DLAs are less labor intensive in both operation and maintenance areas; DLAs

use far less energy than DIFFs or DLSs; the production of lime emits one ton of CO2 for

every ton of lime produced and is, itself, an energy intensive process.

C. Combine HF and HCl into a single “pollutant group” for ranking of sources and establishing

emission limitations.

The combination of HF and HCl into a single pollutant group makes sense. There are ample

precedents throughout MACT rulemakings of similar actions

‐ such as total HAP or volatile HAP

standards in the numerous surface coating rules. There should be no legal issue developed by

the use of a pollutant group and it would have the benefit of helping mitigate the impact of

MACT on MACT. For example, it is possible that, even if EPA does not address long

‐ term

performance, more existing DLAs would be able to demonstrate that the overall control of HF

plus HCl is equal to the total gaseous HAP reduction from a DIFF or DLS.

In previous rules, EPA has equated all HAP (e.g., a pound of toluene would be counted as the

same as a pound of methanol). Therefore, the most consistent thing to do under this rule

would be to equate a pound of HF and a pound of HCl. This would alleviate any requirement to4 | Page BIA SER letter

‐ 5/11/2010 assign relative value to the HAP. In this case, the MACT limit would be established for “Total

gaseous HAP,” which would be defined as the sum of HF and HCl emissions.

However, it is possible that other scenarios are viable, if there are no legal constraints. For

example, under the “health based compliance approach used by North Carolina DAQ, the total

“HCl equivalents” is determined by adding the HCl emission rate to 1.4 times the HF emission

rate, based on the relative values of their reference concentrations. This would serve to give a

greater emphasis to the pollutant of the greatest concern. In this case, the MACT limit would

be established for “HCl equivalents” (or “HF equivalents”), which would be calculated by an

equation including a relative scale (e.g., HCleq

= HCl + 1.4*HF).

The MACT floor would be evaluated by combining the HF emissions for a source with the HCl

emissions from that source and ranking based on the total gaseous HAP. This would eliminate

some of the effect of variability that exists in our industry, where some areas are high for one

but not the other, and allow for a more consistent review of the source’s performance.

Compliance would be as simple and as enforceable as an individual HAP approach

‐ and

demonstrated by a measurement of both pollutants and adding the two together to compare

to a gaseous HAP requirement.

The reduction of HAPs using such a ranking will allow an opportunity for DLAs, where

appropriate, to demonstrate equivalent performance to that of a DIFF. This result will allow

small businesses to continue to operate DLAs and avoid the absurd economic impact on very

minimal HAP reduction quantities.

D. Consider the health based compliance standard allowed by Section 112 (d)(4).

We believe that we are the perfect candidate for EPA to explore potential regulation under

Section 112(d)(4). The potential for a health based compliance alternative was first discussed in

the proposal of the now

‐ vacated Brick MACT, but was not pursued due to a lack of time. Since

we are not currently under a court ordered deadline, time is not a constraint. In addition, we

are a small category with a finite number of sources. We also have a relatively small number of

pollutants.

Based on our experience in North Carolina (as discussed by Mr. Harold Newman of Pine Hall

Brick at the April 20, 2010 panel meeting), a health

‐ based compliance standard also has a

significant chance of mitigating compliance costs for our small businesses. Brick plants are not

large sources of emissions, as evidenced by the number of our sources that are close to the

major source threshold. The two pollutants that comprise the vast majority of our HAP

emissions are threshold pollutants with established “safe levels.” If we can demonstrate that

we are not causing a threat or damage to human health and the environment

, that should be

sufficient. In any economy, there is no rational justification for causing any economic burden

to our industry through a MACT rule that has NO environmental benefit from the control of

HAP.5 | Page BIA SER letter

‐ 5/11/2010 E. Questions/Additional Information

We request the following information:

 Several SERs questioned the specific data requests, including why EPA would need

information on monitoring procedures for proper kiln combustion. Additional

information as to the purpose and use of this information is needed.

 We request supporting information and details of your cost estimates.

 We request a meeting of technical staff to resolve discrepancies in the number and

location of sources.

We continue to believe that brick is one of the greenest building/cladding materials available

and that the elimination of the industry through over regulation is not a positive move to

protecting the nation’s air. We are committed to working with you throughout this process.

Please do not hesitate to contact me at smiller@bia.org or (919) 380

‐ 2191 if you have any

questions or to provide the responses to our questions.

Sincerely,

Susan J. Miller

Brick Industry Association

Vice President, Environment, Health and Safety

Cc: Keith Holman, SBA

Cortney Higgins, OMB

Alex Cristofaro, EPA