To: Keith Barnett/RTP/USEPA/US@EPA From: "Howard L. Gilberg" <Gilberg@guidaslavichflores.com> Date: 11/01/2012 06:12PM Cc: Eric Astrachan <EAstrachan@tileusa.com>, Eric Ginsburg/RTP/USEPA/US@EPA, Jeff Telander/RTP/USEPA/US@EPA, Peter Tsirigotis /RTP/USEPA/US@EPA, Scott Jordan/DC/USEPA/US@EPA, Steve Fruh/RTP/USEPA/US@EPA, "SWiederwax@marazzitile.com" <SWiederwax@marazzitile.com>, Robert Hurt <Bob.Hurt@Daltile.com>, Steve Willis <Steve_Willis@mohawkind.com>, Tim Swaw <TSwaw@FlorimUSA.com>, "cjames@ FlorimUSA.com" <cjames@FlorimUSA.com>, "Jean M. Flores" <Flores@guidaslavichflores.com> Subject: RE: Clay Ceramics Manufacturing: Ceramic Tile Industry's Deletion Proposal

(See attached file: img

- Y01162900.pdf)

Mr. Barnett:

This email and the attached White Paper are in response to your email below. Please consider it “public comment and/or new information” pursuant to CAA 112(c)(1). We request again a meeting with EPA senior management on Deletion of our client’s industry. Deletion is of great importa nce to the industry, and we are firmly convinced that it should be as well to the agency.

Deletion is a win

- win proposition for the agency, the public and the industry. Deletion is available on the basis that the MACT major ceramic tile sources are ready to commit now to EPA in a mutually binding legal manner to becoming synthetic minor sources. With implementation, there will be no major sources to which a major source MACT for this industry would apply. Alternatively, Deletion is proper pursuant to the CAA 112(c)(9) low risk criteria: if there are no major sources in the industry, the risk from major sources in that industry by definition must be nonexistent, and certainly satisfy statutory deletion criteria and congressional intent. In fact, a failure to delete under CAA 112(c)(9) here could be
seen as inconsistent with that criteria and intent.

An agreement with the industry’s MACT major sources to become synthetic minors, and implementation of the same, would allow EPA to achieve the CAA statutory g oal of reducing HAP emissions years ahead of the presently predictable schedule and can be accomplished without the promulgation of MACT major source regulations. Realistically, the earliest year for compliance under a major source MACT standard for this industry is 2016 or 2017, assuming EPA meets its self

- described August 2013 draft regulation promulgation schedule. This projection takes into account, among other things, the submission of extensive public comments in response to draft regulations, EPA’s legal obligation to respond to each comment in detail, and the past precedent and statutory authority in Section 112(i)(3)(A). With the written commitment that the industry is prepared to make in response to an EPA agreement to delete, none of this is nec essary. EPA can declare an environmental victory: achieving HAP emission reductions a lot sooner.

It is EPA’s duty to actively steward the public resources dedicated to its mission. In this situation, this means not devoting public resources to issuing a MACT standard that will regulate no one.

The industry is voluntarily offering EPA the opportunity to fulfill its statutory obligation without issuing regulations. EPA has the legal authority and the precedent to accept that offer. Case law presented informally to us does not stand in the way, and EPA’s responses to that case law confirm this.In fact, we do not believe that EPA has the authority to issue MACT major source standards for an industry that does not have MACT major sources. EPA has dele ted many industries because there are no MACT major sources in them. There is no statutory authority to issue regulations on the possibility that a major source may arise in an industry in the future. Case

- by

- case MACT is designed to address the
“what

- if s cenario.”

This issue is critical to the domestic ceramic tile industry, whose members face constant economic pressure from market forces.

We look forward to an early response to this White Paper and to meeting with EPA. The industry is ready, willing and able to proceed.

Howard

Howard L. Gilberg Guida, Slavich & Flores, P.C. 750 North St. Paul Street, Suite 200 Dallas, TX 75201

214.692

- 0009

- phone

214.692

- 6610

- fax gilberg@gsfpc.com
www.theenvironmentallawfirm.com

From: Keith Barnett [mailto:Barnett.Keith@epamail.epa.gov] Sent: Tuesday, September 25, 2012 7:36 AM To: Howard L. Gilberg Cc: Eric Astrachan; Eric Ginsburg; Jeff Telander; Peter Tsirigotis; Scott Jordan; Steve Fruh Subject: Re: Clay Ceramics MACT: Cerami c Tile Industry's Deletion Proposal

Dear Howard:

We would like to receive the white paper in advance of scheduling any meeting. As Jeff has indicated, we have discussed this issue with out senior management and they have indicated that they do not
belie ve a deletion is warranted. Reviewing the white paper will inform us on whether a meeting would be productive and who should attend.

Keith W. Barnett USEPA/OAQPS/SPPD/MMG

919

- 541

- 5605From: "Howard L. Gilberg" <Gilberg@guidaslavichflores.com> To: Jeff Telander/RTP/USEPA/US@EPA, Keith Barnett/RTP/USEPA/US@EPA, Eric Ginsburg/RTP/USEPA/US@EPA, Peter Tsirigotis/RTP/USEPA/US@EPA, Scott Jordan/DC/USEPA/US@EPA Cc: Eric Astrachan <EAstrachan@tileusa.com> Date: 09/24/2012 04:32 PM Subject: Clay Ceramics MACT: Ceramic Tile Industry's Deletion Proposal

________________________________________

Jeff:

I am in receipt of your short voice mail indicating that EPA does not wish to consider Deletion of the ceramic tile industry from the CAA 112 list of major so urces. Your voice mail provided a conclusion only and no explanation of the latter.

We request a meeting at OAQPS with senior management to gain an understanding of the agency’s views on this subject and to express our perspectives. Deletion is of great importance to the industry, and we believe should be as well to the agency. In short, the industry’s major sources are prepared to become synthetic minor sources. We believe Deletion makes policy, technical, fiscal and legal sense for the agency on several levels, starting with conservation of agency resources

-- why publish regulations when no entity will be subject to them

-- and protection of air quality several years sooner than if the agency were to issue MACT standards.

Please contact me to discuss avai lable meeting dates, the sooner, the better. We will provide a white paper to the agency in advance of this meeting so the opportunities and challenges are clear.

Thank you.
Howard

Howard L. Gilberg Guida, Slavich & Flores, P.C.
750 North St. Paul Street , Suite 200 Dallas, TX 75201

214.692

- 0009

- phone

214.692

- 6610

- fax gilberg@gsfpc.com
www.theenvironmentallawfirm.com

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