UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

The Honorable Gina McCarthy 

Administrator 

JAN ·, 6 2014 

U.S. Environmental Protection Agency 

William Jefferson Clinton Building 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Dear Administrator McCarthy: 

Enclosed for your consideration is the Report of the Small Business Advocacy Review 

Panel (SBAR Panel or Panel) convened for the U.S. Environmental Protection Agency's planned proposed 

rulemaking entitled "National Emission Standards for Hazardous Air Pollutants (NESHAP) Maximum 

Achievable Control Technology (MACT) for Brick and Structural Clay Products Manufacturing." The 

rulemaking is being developed by the EPA under section 112 ofthe Clean Air Act (CAA). The proposed 

rule is currently going through the regulation development process. 

The EPA previously determined that the clay products manufacturing industry, which included brick and 

structural clay products (BSCP), may reasonably be anticipated to emit several of the hazardous air 

pollutants (HAP) listed in section l12(b) of the CAA. As a consequence, clay products manufacturing was 

included in the initial list of HAP-emitting categories published July 16, 1992, in the Federal Register and 

included in the draft schedule for the promulgation of emissions standards published in the Federal Register 

on September 24, 1992. The EPA promulgated the NESHAP for brick and structural clay products on 

May 16,2003, and the rule became effective on that same date. The compliance date was May 1'6, 2006. 

The NESHAP was subsequently challenged, and the D.C. Circuit (The Court) vacated the standards on 

March 13,2007. The Court found that the EPA's emissions standards did not meet CAA statutory 

requirements. Because the vacatur was after the compliance date, some facilities had installed controls to 

meet the requirements of the rule. 

When finalized, the rule for BSCP manufacturing will apply to kilns and dryers at BSCP manufacturing 

facilities that are major sources of HAP emissions. The BSCP manufacturing source category includes those 

facilities that manufacture brick (face brick, structural brick, brick pavers and other brick), clay pipe, roof 

tile, extruded floor and wall tile and/or other extruded, dimensional clay products. 

PANEL BACKGROUND 

On June 12,2013, the EPA's Small Business Advocacy Chairperson convened this Panel under section 

609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement 

Fairness Act (SBREF A). In addition to its chairperson, the Panel consists of the· Director of the Sector 

Polices and Programs Division within the EPA Office of Air and Radiation, the Administrator of the Office 

~ Printed on Recycled P8p8f 
of Information and Regulatory Affairs within the Office of Management and Budget (OMB), and the Chief 

Counsel for Advocacy of the Small Business Administration (SBA). 

It is important to note that the Panel's findings and discussion are based on the information available at the 

time this report was drafted. The EPA is continuing to conduct analyses relevant to the proposed rules, and 

additional information may be developed or obtained during this process as well as from public comment on 

the proposed rules. The options the Panel identified for reducing the rules' economic impact on small 

entities will require further analysis and/or data collection to ensure that the options are practicable, 

enforceable, protective of public health, environmentally sound and consistent with CAA. 

SUMMARY OF SMALL ENTITY OUTREACH 

Before beginning the formal SBAR Panel process, the EPA actively engaged in outreach with entities that 

would potentially be affected by the upcoming rulemaking. The EPA held both in-person phone conferences 

with representatives from the Brick Industry Association and some of these companies, and also had 

conference calls with an ad-hoc coalition of small entities to discuss the proposed rulemaking and to provide 

these contacts with an early opportunity to ask questions and discuss their concerns with the upcoming 

rulemaking. The EPA provided each small entity representative (SER) with general information on the 

SBAR Panel process and background information on the rulemaking process. Once the SBAR Panel process 

began and SERs were identified, the EPA held outreach meetings with the SERs as described below. 

On March 14, 2013, the EPA held a two-hour meeting with SERs for this SBAR Panel and invited 

representatives from the SBA and the OMB to the meeting. To help them prepare for the 

meeting/teleconference, the EPA had provided materials to each of the SERs via email two weeks prior. The 

Outreach Meeting was held to solicit feedback from the SERs on the upcoming rulemaking. The EPA asked 

that the SERs provide feedback on the outreach packet they received as well as the outreach meeting itself 

by March 28,201 3. 

The SBAR Panel convened on June 12,2013. The Panel held a formal outreach meeting/teleconference with 

SERs on June 26, 2013. To help the SERs prepare for the meeting/teleconference, the Panel sent materials 

to each of the SERs via email following convening on June 12. The Outreach Meeting was held to solicit 

feedback from the SERs on their suggestions for the upcoming rulemakings. 

The SERs were also asked to provide written feedback on ideas under consideration for the proposed 

rulemaking. Section 8 of the Panel Report provides a complete discussion of SER comments, and the full 

written comments are included in Appendix B. In light of these comments, the Panel considered the 

regulatory flexibility issues specified by RF A/SBREF A and developed the findings and discussion 

summarized below. 

PANEL FINDINGS AND DISCUSSION 

Under section 609(b) of the RF A, the Panel is to report its findings related to these four items: 

1) A description of and. where feasible, an estimate of the number of small entities to which the 

proposed rule will apply. 

2) A description of the projected reporting, recordkeeping and other compliance requirements of 

the proposed rule, including an estimate of the classes of small entities which will be subject to 

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the requirement and the type of professional skills necessary for preparation ofthe report or 

record. 

3) Identification, to the extent practicable, of all relevant federal rules which may duplicate, overlap 

or conflict with the proposed rule. 

4) A description of any significant alternatives to the planned proposed rule which would minimize 

any significant economic impact of the proposed rule on small entities consistent with the stated 

objectives of the authorizing statute. 

The Panel's most significant findings and discussion with respect to each of these items are summarized 

below. To read the full discussion of the Panel findings and recommendations, see section 9 of the Panel 

Report. 

A. Number and Types of Entities Affected 

There are currently 46 brick manufactures in the United States that would potentially be affected by the 

proposed rule; 38 of the firms are small business as defined by SBA size standards. Since 2003, the 

number of brick manufactures has declined from 89 to 46. The number of small businesses appears to 

have declined similarly. 

B. Potential Reporting, Re.:ordkeeping, and Compliance Requirements 

There are requirements still under development. However, we anticipate that the requirements will be 

the minimum required by the statute to ensure compliance with the emission limits. 

C. Related Federal Rules 

There are no related federal rules for this source category. 

D. Regulatory Flexibility Alternatives 

The following are some of the regulatory flexibility alternatives recommended by the panel: 

The Panel recommends that the EPA propose work practices for dioxin and take comment on the feasibility 

of work practice standards for mercury and other metals. 

The Panel recommends that the EPA co-propose both a health-based limit and MACT limits for acid gases 

unless the EPA determines it lacks sufficient information to propose a numerical health-based limit. 

The Panel recommends that the EPA propose separate subcategories for kilns based on size if it reduces the 

financial impact and that the EPA should take comment and solicit data on subcategorization based on raw 

materials, fuels and other factors. 

The Panel recommends that the EPA propose both a PM numerical limit and a total non-mercury metal 

HAP limit. 

The Panel recommends that the EPA propose work practice standards for startup and shutdown. 

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The Panel recommends that the EPA set the floor based on 12 percent of the entire source category if EPA 

can establish that the data available to the agency represent the best performing sources consistent with 

section 112 of the CAA and relevant case law. 

Alexander Cris far 

Small Business A)LnH'K'~·~ 

Office of Policy, nomics & Innovation 

U.S. Environmenta Protection Agency 

Afb-4,~ uiStow Sargeant 7 

Chief Counsel for Advocacy 

Office of Advocacy 

U.S. Small Business Administration 

Sincerely, 

Administrator 

Offtee of Information and Regulatory Affairs 

U.S. Office of Management and Budget 

tor, Sector Jicies and Programs Division 

ce of Air and Radiation 

U.S. Environmental Protection Agency 

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