UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON , D
. C
. 204 6 0

The Honorable Gina McCarthy Admini stra tor 

### JAN · , 6 2 01 4 U.S. Environmental Protection Agency William Jeffers o n Clinton Building 1200 Pennsylvania Aven u e, N.W. Washington, DC 20460 Dear Administrator McCarthy: Enclosed for your consideration is the Report o f 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 require ments 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 Adminis trator of the Office

**~** Prin ted on Recycled P8p8fo f In f o rm ati on an d R egulatory Aff a irs with in the Office o f Managem e n t and Budget ( O MB ), an d the Chi e f C o un s e l f o r A d voc ac y o f the Sma ll Business Admi ni stration (SBA ). It i s imp ortant to note that the Panel 's finding s and di scus s i o n are based o n t he informat ion avai l a b le at the t i me thi s report was drafted. T he EPA is contin ui ng to conduc t an al yses rele vant to the prop osed rul e s , and add it i o nal inf ormat i on m ay be developed or o b tained duri ng t h i s process a s well as from pub li c comme nt on the p ro pose d ru les. The options t he Panel identi fie d for re d ucing th e ru le s' e conomi c impact o n small e n tities wi ll r e quir e furth er anal y s i s and/or data c ollection t o ensure t hat the options are practic a bl e, e n f o rce able , protect ive o f public he al th , e n viro nmentall y sound and cons i stent w i th CAA. SUMMARY OF SMA LL E NTITY O U T REA CH B e for e b eginning t h e form al SBAR P an el process , the E PA act ively e n gage d i n outr e ach with entitie s tha t w ou ld po t ent i ally b e affected b y the upcoming rul em aking
. Th e EPA held both in-person phone c onfere nces wi th represen ta

t ives from the Brick Indu stry Asso ciation and s ome of these companies , and als o had c onf e r

e nc e call s with an ad-hoc coali t i on o f smal l entities to dis c us s t he propo s ed rulemaking and to prov i de th ese c ont ac ts w ith an ear ly opportunit y to as k questi ons an d d i scuss their c on cerns with t h e up c oming rul e mak i n g. The EPA pro vided each s mall ent ity representative (SER) with g e n eral i nf ormation on t he S BAR Panel proce ss and background informa tion on the rul e mak ing p roc ess. Once t he SBAR Panel process b egan and S ERs were identi fied, the E P A held outreac h m eetings with the SERs as de s cribed below. On M arch 14, 20 1 3, the E PA held a tw o - hour me etin g wi th S E Rs fo r t his SBAR Panel and invited representati v e s fr om th e SBA and the OMB to the meetin g. To h e lp them prep are for the meet in g/ t e le confe re nce , the EP A had pro v ide d material s to e a ch of the S ERs via e mail two weeks prior. The Out r each Meet in g was held to solicit f e edb ack fro m the S ERs on t h e upc oming rulemaking. T h e E PA asked that the S ERs pro v ide f eedback on the outreach pack et they recei ve d as well as the outreach m e eting itse lf b y M arc h 28 ,201 3. The SB A R Pane l convened on J u ne 12,2013
. The Pane l h e ld a f ormal o utreach meeting/teleco n ference with SERs on J une 2 6, 2013
. T o help the S ERs prepare for the meeting/ tel e conference, the Panel sent material s t o eac h o f the S E Rs via email followin g con ve n in g on June 1 2
. The O u tr each Meeting was hel d to solici t fee dback from the SERs on their suggestions for the up co m i n g rul em aki ngs. The SERs were also asked t o provide written fe e db a c k on ideas under cons i deration for the proposed rulemaking
. Section 8 of the Panel Re port provi de s a complete di s cus s ion of SER comments, and the full wri tt en comments are inc luded in Appendix 

### B. In light o f th ese comments , the Panel considered the regu l a t ory flex ibility is s ues specified by RF A/SBREFA and de velope d the findings and discus s ion summari zed be low
. P ANEL FIN D IN GS A ND D I SC US SION U

nder sec t ion 6 0 9(b) of the RF A, the P anel is to report its fin d ings rel ated 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 reporti n g , recordkeeping an d other compliance requirements o f the proposed rule , including an estima te of the classes of small entities which will 

### be subject to Page 2 of4the require m e n t and the type of prof e s si onal s kill s nece ss ary fo r p re parat i on ofthe r ep ort or rec o rd
. 3) I d e n t ifi c at ion, t o the extent practicab le, of all re levant fed era l rul es w hi c h m ay duplicate, overlap o r co n flict wi th the proposed rule. 4 ) A descrip t i o n o f an y s ignifican t alterna t ives to the pl a nned propo se d ru le whi ch wou l d minimiz e any signi fic an t ec o nomic impact of the propose d r ul e on small e ntit ie s c onsis t e n t with the stated objec t ive s o f the autho ri z ing s tatute . T h e P ane l ' s m o s t s i gni fi cant fi nding s and di s cu ss ion with respec t to each o f t h ese ite m s are summarized below
. To re a d the full d iscu s s i on o f the Panel finding s and recomm end ations, see sect i o n 9 o f the Panel R eport. 

### A
. Number an d Types of E nti t ies Affected There are curr entl y 4 6 bri ck m anu f acture s in the U ni ted S tates that w o u ld potentially be aff ect e d by t he p ropos e d rule ; 38 of th e fi rm s are s m a ll busine ss as defined b y SB A s i z e standards
. Since 2003 , the number o f br ick manu f a ct ur

es ha s decl ined fr o m 

### 89 to 46. The numb e r o f small businesses appears to have d ec li ned s imilarly . 

### B
. P o te nti al Repo rtin g , R e.: o rdkeep ing , and C ompli ance Requirement s T here ar e r equirem ent s s till u nder d e ve lopm ent. H owev er, we an t icip ate that the requirements will be the m inimum requi re d b y the s tatut e to e nsur e comp li ance w ith the emi s sion limits
. 

### C. Rel a t e d Fed eral Ru l es There are no rel ated f e dera l rules for this source cat eg or

y. 

### D. Regulato ry Fle xi bility A lt ernatives The fo ll o wi n g ar e s ome of t h e regu l atory flexibilit y alternat ive s re commended by t he pane l: The Pane l recomme nd s that the EPA propose work practice s fo r dio xin and take comment on the feasibility o f wo r k p r act ice standards for mercury and other meta l s . The Panel r ec o m mends tha t the E PA co-propo s e both a health

- bas e d li mit and MACT limits for ac id gases unle ss the EP A d ete rmines it lacks sufficient information to p r opose a numerical health-based limit. The Pane l r e c om m e nds that the EPA propose separate subcategories fo r kilns based on size i f it reduces the financial impact and th a t the EPA should take comme nt and solicit da ta on subca t egor i zation based on raw materials , f ue l s and other f ac

t ors. The Panel reco m m ends t h at the E PA p ropose both a 

### PM numerical limi t and a total non - mercury metal HA P limi t. 

### The Panel r eco m m

ends that the EPA propose work 

### practice standards for startup and shutdown.
Page 3 of4The Panel recomme nds 

### that the EPA set the floor based on 12 percent of the entire source category if EPA can establish that the data available t o the agency represent the best performing sources consistent with section 112 o f 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 Admini stration Sincerely,

Administrator Offtee of Information and Regulatory Affairs U
. S. Office of Management and Budget

tor, Sect o r Jicies and Programs Division ce of Air and Radiation U.S
. Envi r onmental Pro t ection Agency

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