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May 4, 2010

Bob Perciasepe

Deputy Administrator

USEPA Headquarters  

Ariel Rios Building  

1200 Pennsylvania Avenue, N. W.  

Mail Code: 1101A  

Washington, DC 20460

Dear Mr. Perciasepe,

As you are aware, the U.S. Environmental Protection Agency (EPA) is currently undergoing a second

attempt to develop a national emission standard for hazardous air pollutants (NESHAP, aka “MACT

Standard”) for the major sources in the brick industry.  As part of this process, the EPA in conjunction

with the Small Business Administration (SBA) and the Office of Management and Budget (OMB) has

begun the informal portion of the small business panel required by the Regulatory Flexibility Act.  We

are writing to you because we are very concerned that this panel process is not proceeding effectively.  

We appreciated that EPA allowed for the opportunity for a face‐to‐face meeting, even at this

preliminary stage.  We also recognize that we are still very early in the process.  However, based on the

discussions at the first meeting on April 20, 2010, we are strongly concerned that this is only a “box

checking exercise” for EPA.  Despite it being early in the rulemaking process, it appears that EPA has

already made key decisions.  We take this panel very seriously and look to it as a way to mitigate a

potentially catastrophic burden, even by EPA estimates.1

  We simply do not have the desire—or financial

ability—to participate in such an apparently insincere exercise.   

                                                           

1 In EPA’s briefing package, EPA estimated that the rule would cost approximately $188 million annually.  In 2009,

the total revenue generated by all brick manufacturing operations (including non‐major sources that will be

unaffected by this rule) was only $750 million.  In “good years,” the total revenue from all sources is only

approximately $2 billion.
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On March 16, members of the brick industry and other small businesses met with you, Janet McCabe,

and others to discuss issues related to small businesses.  Several representatives subsequently met with

Ms. McCabe on March 29 to further discuss our issues.  We have also had multiple meetings with Joan

Rogers, EPA’s Small Business Ombudsman.  In all of these meetings, we were given the impression that

the plight of our industry had been heard by the “right people” and that there would be real dialogue on

how to best mitigate that impact.  We had believed that the meeting on April 20 would be a key part of

that process, but we left extremely disappointed.

Our industry’s MACT Task Force, made up of both large and small businesses, has been working for over

two years with the lead office (Sector Policy and Programs Division of the Office of Air Quality Planning

and Standards).  We believe that the lead engineer (Jeff Telander) is working with us in good faith and

appreciate his work, even when we do not agree with his position.  However, it appears that key

directives are coming from “above” him and we are trying to engage the people who can work with us

on these issues.  In our meetings and in meetings with other industries, the vacatur of the previous Brick

MACT is frequently cited as the reason for EPA’s inflexibility.  We have been assured by Ms. McCabe and

others that it is early in the process and that decisions have yet to be made.  However, we are very

concerned that many key issues have, in fact, been determined, and that it will be impossible for us to

get a fair and attainable rule.

To say that the April 20, 2010 meeting was frustrating would be an understatement.  We had spent a

great deal of time preparing for this meeting and developing approaches that we still believe are well

within the requirements of the Clean Air Act.  While we understand that there are many issues that cut

across source categories and EPA’s MACT program, we believe that there are several issues that can be

addressed for our industry by the small business panel.  2

   While most small entity representatives

(SERs) initially planned to participate by teleconference for this preliminary meeting, ten SERs came to

Washington at great expense to attend this meeting because this rulemaking is so critical to our

industry’s future—and because the positions hinted at in EPA’s limited handouts were of great concern.3

   

During the panel meeting, which we believed was supposed to be a two‐way dialogue to identify ideas

on how to mitigate the impacts on small businesses, our industry representatives were the only ones

identifying possible approaches.  It appeared that EPA believed it was our responsibility alone to come

up with these solutions.  However, many of our suggested approaches, such as differentiation of small

and large tunnel kilns (based on age, size, design changes, or other reasons), combining of the gaseous

                                                           

2 We recognize that some of our concerns are “outside” what can be recommended by the small business panel

and are based on legal interpretations of recent court rulings.  We continue our desire to work directly with you

and OAR on those issues, as we believe that the actual CAA language provides EPA with far more flexibility than it

is exercising.

3 All other SERs were in attendance on the telephone, though most were unable to hear the entire proceeding due

to technical difficulties.    
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HAPs into a single standard, and the possible use of a health‐based compliance standard were almost

immediately downplayed as not feasible.  No alternatives were offered.

While we believe that EPA is granted discretion and flexibility in the CAA, it appears that there is no

intention of using that flexibility in this rulemaking, with the exception of assessing the variability of the

test data.  Mr. Alex Cristofaro, the person from EPA who we believed was assigned the role of

advocating for small businesses at this meeting, was instead the person arguing most strongly that

nothing could be done—and that we “needed to understand the limitations” that EPA is operating

under.  At a previous planning meeting, he seemed similarly dismissive of the potential changes that

could be brought about by the small business panel process.  We understand that there are legal

constraints to what can be done.  However, to us, it appeared that there was no small business

advocate from EPA at the meeting.  (Joan Rogers was in the room; however, she was not running the

meeting.)  

Clearly we do not agree with the rationale for the limitations under which EPA says it must operate.  At a

minimum, we believe that many of the limitations are self‐imposed.   To us, they appear to be overly

restrictive interpretations of a few court rulings (including one on the vacatur of the rule for major brick

sources).  When we make a clean read of the CAA, we see far more opportunity for flexibility and

discretion than is being exercised.  We believe EPA is looking at a few negative court rulings, fearing

others, and forgetting their most important role in this rulemaking—to follow the CAA.  We do not

believe it is appropriate to use the exact words in the CAA in one instance and then argue that “despite

the words in the CAA,” EPA believes Congress’s intent was something different in another instance.  It

appears that EPA is willing to have another round of lawsuits, rather than trying to get it right this time.  

That may sound okay in the “theoretical world,” but it is small businesses such as those in our industry

in the “real world” that suffer the most in these situations.  We simply may not be able to survive

another round of investing in a rule that is ultimately vacated.

We are requesting another meeting with EPA—either with our small businesses or with our entire

industry—where there is a true exchange of ideas.  We request a “clean read” of the CAA as to what can

and what cannot be done under a MACT standard.  We respectfully ask, in light of our disappointment

over the April 20 meeting, that you re‐assure us that EPA will have a panel process with a real two‐way

discussion and a search for flexibility from all participants.

The small business panel process as it stands does not meet the requirements of the Regulatory

Flexibility Act or EPA’s stated priorities of “Open Government.”  Checking a box that small businesses

were consulted should not be the goal.  The goal should be to have a real dialogue between all

interested parties to come up with solutions that protect the environment, meet the requirements of

the CAA, and allow small businesses to remain operating in the United States.  We are hoping that you

can help us meet that goal.

   
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Please do not hesitate to contact Susan Miller, BIA’s Vice President of Environment, Health and Safety at

smiller@bia.org or (919) 380‐2191 if you have any additional questions—or to arrange a meeting.  She

will be able to coordinate with the remaining signees listed below.

Sincerely,

                                       

John Burns         Carol Conley

Plant Manager         Vice President, HR/Environmental Affairs

Lee Brick and Tile       Columbus Brick

               

Richard Cunningham       Steve Gerheart

Secretary         Vice President of Administration & Law

Cunningham Brick       Sioux City Brick & Tile

                        

Davis Henry         Creighton McAvoy

Vice President         President

Henry Brick         McAvoy Brick

               

Barry Miller         Susan Miller

Manager – Safety, Environmental, and Quality Vice President, Environment, Health & Safety

Redland Brick         Brick Industry Association
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John E. Miller         Harold Newman

Engineering/EHS Manager     Vice President, Technical Services

Whitacre Greer         Pine Hall Brick

Brian Sims

Vice President, Manufacturing          

Jenkins Brick          

Cc: Keith Holman, Small Business Administration

Charles Maresca, Small Business Administration

Cortney Higgins, Office of Management and Budget

Cass Sunstein, Office of Management and Budget

Janet McCabe, Environmental Protection Agency

Alex Cristofaro, Environmental Protection Agency

Joan B. Rogers, Environmental Protection Agency

Jeff Telander, Environmental Protection Agency