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[Senate Report 115-407]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 577
115th Congress       }                                  {       Report
                                 SENATE
 2d Session          }                                  {      115-407

======================================================================

 
    BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS ACT OF 2018

                                _______
                                

                December 4, 2018.--Ordered to be printed

                                _______
                                

   Mr. Barrasso, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 2461]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 2461) to allow for judicial review of 
certain final rules relating to national emission standards for 
hazardous air pollutants for brick and structural clay products 
or for clay ceramics manufacturing before requiring compliance 
with the rules by existing sources, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                    GENERAL STATEMENT AND BACKGROUND

    S. 2461 provides that the existing source compliance date 
for the Environmental Protection Agency's (EPA) National 
Emission Standards for Hazardous Air Pollutants (NESHAP) is 
delayed for the brick, clay, and tile industries (also known as 
the Brick Maximum Achievable Control Technology, or ``Brick 
MACT,'' rule). Compliance will not be required until the 
earlier of the following dates: (1) two years after the date on 
which judicial decisions on the contested NESHAP regulation 
become final and are no longer subject to further appeal and 
review; and (2) December 26, 2020. Under the bill, the 
compliance deadline will therefore become effective no later 
than December 26, 2020. This addition of a date certain 
contrasts with the legislative text in S. 839, the Blocking 
Regulatory Interference from Closing Kilns Act of 2017. The 
change responds to feedback that the Committee received on S. 
839 at a legislative hearing on November 14, 2017. In response, 
Senator Wicker, sponsor of S. 839, introduced bipartisan S. 
2461 with Senator Donnelly as an original cosponsor.
    The original Brick MACT rule was published on May 16, 2003. 
The brick industry estimates that, industry-wide, $100 million 
was spent to comply with the rule before the U.S. Court of 
Appeals for the D.C. Circuit vacated the rule as unlawful in 
2007.\1\ Since compliance efforts were already underway, most 
existing facilities meet the requirements that would have been 
imposed under the 2003 rule, and many states have required 
controls that comply with that original standard.
---------------------------------------------------------------------------
    \1\Brick Industry Association (BIA), ``BIA Supports New BRICK Bill 
Aiming to Extend EPA Emissions Timeline'' (Mar. 7, 2018), https://
www.prnewswire.com/news-releases/bia-supports-new-brick-bill-aiming-to-
extend-epa-emissions-timeline-300609699.html.
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    In 2015, the EPA issued new Brick MACT regulations that 
significantly tightened emission standards from those in the 
2003 rule, orphaning the investments made to comply with the 
vacated 2003 rule. The 2015 rule's compliance date for existing 
sources is December 26, 2018. The rule requires companies to 
submit test results certifying compliance within 180 days of 
the compliance date, and resubmit every five years thereafter.
    In 2016, the industry estimated that compliance with the 
2015 rule would cost $100 million annually.\2\ Compliance cost, 
divided by the number of plants currently operating, threatens 
to make many brick companies uneconomical. The brick industry 
is largely composed of family-owned businesses that were hard 
hit by the 2008 recession and the slow recovery of construction 
industry. Given the excessive costs, the industry challenged 
the rules in court. Industry challenges were rejected on July 
6, 2018 in the U.S. Court of Appeals for the D.C. Circuit. 
Unless the court's decision is reversed or this legislation is 
passed, the industry faces a looming December 2018 compliance 
date.
---------------------------------------------------------------------------
    \2\U.S. Chamber of Commerce, ``Regulatory Indifference Hurts 
Vulnerable Communities'' at 2, 9 (2016), https://www.uschamber.com/
sites/default/files/documents/files/022360_etra_
brick_study_01_29.pdf.
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                     OBJECTIVES OF THE LEGISLATION

    S. 2461 would delay the compliance date for existing 
sources under the 2015 NESHAP to lessen the regulatory burden 
that could otherwise make many brick companies uneconomical.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 states that this Act may be cited as the 
``Blocking Regulatory Interference from Closing Kilns Act of 
2018''.

Section 2. Extension of existing source compliance dates for certain 
        final rules relating to brick and structural clay products and 
        clay ceramics manufacturing

    Section 2 states the existing source compliance date under 
the contested final NESHAP regulations is delayed until the 
earlier of: (1) the date that is two years after the date on 
which judgment on a contested final rule becomes final and is 
no longer subject to appeal or review; and (2) December 26, 
2020. The section further states that in the case of a judgment 
entered against the EPA relating to a contested final rule, the 
Administrator shall finalize new rules with respect to the 
NESHAP for brick and structural clay products manufacturing and 
clay ceramics manufacturing.

                          LEGISLATIVE HISTORY

    On February 2, 2018, Senator Wicker introduced S. 2461, the 
Blocking Regulatory Interference from Closing Kilns Act of 2018 
with Senator Donnelly. Senators Capito, Heitkamp, Inhofe, and 
Manchin are also cosponsors. The bill was referred to the 
Senate Committee on Environment and Public Works.

                                HEARINGS

    A legislative hearing was held on November 14, 2017 in the 
Environment and Public Works Subcommittee on Clean Air and 
Nuclear Safety on S. 839, the Blocking Regulatory Interference 
from Closing Kilns Act of 2017. Following the hearing and in 
response to hearing testimony, S. 2461, the Blocking Regulatory 
Interference from Closing Kilns Act of 2018, was introduced.

                             ROLLCALL VOTES

    On September 18, 2018, the Committee on Environment and 
Public Works met to consider S. 2461. S. 2461 was ordered 
favorably reported with a roll call vote of 11 ayes and 10 
nays. (Senators Barrasso, Boozman, Capito, Ernst, Fischer, 
Inhofe, Moran, Rounds, Shelby, Sullivan, and Wicker voted aye. 
Senators Booker, Cardin, Carper, Duckworth, Gillibrand, Markey, 
Merkley, Sanders, Van Hollen, and Whitehouse voted nay).

                      REGULATORY IMPACT STATEMENT

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes evaluation of 
the regulatory impact of the reported bill.
    The bill does not create any additional regulatory burdens, 
nor will it cause any adverse impact on the personal privacy of 
individuals.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 2461 would 
impose no Federal intergovernmental unfunded mandates on State, 
local, or tribal governments.
    S. 1934 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA). The bill contains 
no new private-sector mandates as defined in UMRA.

                          COST OF LEGISLATION

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 3, 2018.
Hon. John Barrasso,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2461, the Blocking 
Regulatory Interference from Closing Kilns Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 2461--Blocking Regulatory Interference from Closing Kilns Act of 
        2018

    S. 2461 would extend compliance dates for entities affected 
by final rules addressing national emission standards for 
hazardous air pollutants (NESHAP) under the Clean Air Act for 
brick, structural clay, and ceramic products manufactured in 
kilns.
    The rules that would be affected are:
           NESHAP for Brick and Structural Clay 
        Products Manufacturing and NESHAP for Clay Ceramics 
        Manufacturing, published in the Federal Register on 
        October 26, 2015; and
           NESHAP for Brick and Structural Clay 
        Products Manufacturing and NESHAP for Clay Ceramics 
        Manufacturing: Correction, published in the Federal 
        Register on December 4, 2015.
    The NESHAP rule, published on October 26, 2015, by the 
Environmental Protection Agency (EPA), requires manufacturers 
of brick, structural clay, and ceramic products to reduce 
emissions of hazardous air pollutants from kilns. Under that 
rule, manufacturers must comply with the regulations by 
December 2018.
    S. 2461 would extend compliance dates for manufacturers 
until September 2020. CBO estimates that revising the rule's 
compliance date would not have a significant effect on the 
agency's workload or spending.
    The bill also would require EPA to finalize new NESHAP 
regulations within one year after judicial review of the rule 
is completed. Using information from EPA about current 
activities related to the NESHAP and similar rules promulgated 
under the Clean Air Act, CBO estimates that the costs of 
undergoing a new rulemaking would total about $1 million over a 
period of two to three years. That amount includes the costs 
for personnel and contracts necessary to develop and issue a 
proposal, to receive and respond to public comments, and to 
issue a final rule.
    Enacting S. 2461 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 2461 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 2461 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On January 10, 2018, CBO transmitted a cost estimate for 
H.R. 1917, the Blocking Regulatory Interference from Closing 
Kilns Act of 2017, as ordered reported by the House Committee 
on Energy and Commerce on December 6, 2017. The two pieces of 
legislation are similar; however, S. 2461 would require EPA to 
conduct a new rulemaking to replace the current NESHAP, whereas 
H.R. 1917 would not. As a result, CBO's estimate of the costs 
to implement S. 2461 are higher than for H.R. 1917.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

    MINORITY VIEWS OF SENATORS CARPER, CARDIN, SANDERS, WHITEHOUSE, 
               GILLIBRAND, BOOKER, MARKEY AND VAN HOLLEN

    S. 2461 would delay achievable Clean Air Act air toxic 
standards for the brick, clay, and tile industries until 
December 31, 2020. Such a delay would result in an increase in 
hazardous air pollution, which would negatively affect the 
health of millions of Americans and punish manufacturers that 
have already made investments necessary to meet the current 
standards.
    When legislators enacted the Clean Air Act Amendments of 
1990 they thought the nation's major emitters of air toxics 
would be regulated by 2000. Unfortunately, it took almost two 
decades to reduce emissions from some of our largest emitters 
of cancer-causing pollution, with the brick kiln industry being 
one of the last sources to be regulated.
    The delays in air toxic emission reductions from the brick 
kiln industry are a direct result of EPA not following the law. 
In 2003, President George W. Bush's EPA issued emission 
standards for the brick kiln industry that violated the Clean 
Air Act's requirements and were subsequently vacated by the 
courts. The courts required President Obama's EPA to rewrite 
the rules while the brick kiln industry continued to operate 
without the need to comply with any federal air toxic 
standards. EPA's failures in 2003 led to over a decade of 
harmful air toxics emissions, and great uncertainty for 
industry and for states and their citizens affected by these 
emissions.
    In 2015, EPA finalized new national emission standards for 
hazardous air pollutants (NESHAP) for brick and structural clay 
products manufacturing and clay ceramics manufacturing (known 
as the brick kiln industry). All major emitters in this 
industry must meet maximum achievable control technology (MACT) 
standards by December 31, 2018. EPA estimated annual costs of 
implementing the rule would be $24.6 million and the 
quantifiable annual benefits would be between $76 and $170 
million.\1\ These estimates underrepresent the expected air 
quality and health benefits of this rule. According to EPA, 
``[D]ata, resource, and methodological limitations prevented 
EPA from monetizing the benefits from several important benefit 
categories, including benefits from reducing exposure up to 375 
tons of hazardous air pollutants (acid gases and metals) each 
year, as well as reducing ecosystem effects and visibility 
impairment.''\2\ EPA also estimated that only two to four 
facilities out of the 69 facilities expected to be subjected to 
the emission requirements are at significant risk of closure.
---------------------------------------------------------------------------
    \1\80 FR 65470.
    \2\U.S. EPA, ``Regulatory Impact Analysis: Final Brick and 
Structural Clay Products NESHAP,'' (July 2015), https://www3.epa.gov/
ttnecas1/docs/ria/nonmetallic-mineral_ria_final-brick-neshap_2015-
0907.pdf.
---------------------------------------------------------------------------
    S. 2461 proposes a delay in the compliance date of the 
brick kiln NESHAP from December 31, 2018 to December 31, 2020 
and requires EPA to respond to a recent lawsuit in a short 
timeframe. Although S. 2461 improves upon S. 839, significant 
concerns remain and we continue to oppose S. 2461, as written. 
EPA has already signaled the agency will provide the brick kiln 
industry with an extra year to comply with the standards, 
pushing the compliance date back to December 31, 2019. The 
agency's announced compliance extension will, as a practical 
matter, provide relief for any facility that needs additional 
time to comply.\3\ Further delaying the imposition of air 
toxics standards for brick kilns without assurances that EPA 
will not further weaken the standards does not make sense at 
this time.
---------------------------------------------------------------------------
    \3\U.S. EPA ``MACT Compliance Extension Requests for Brick 
Manufacturing Facilities,'' (July 14, 2018) available at https://
www.eenews.net/assets/2018/09/18/document_pm_01.pdf.
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                                   Thomas R. Carper.
                                   Benjamin L. Cardin.
                                   Bernard Sanders.
                                   Sheldon Whitehouse.
                                   Kirsten Gillibrand.
                                   Cory A. Booker.
                                   Edward J. Markey.
                                   Chris Van Hollen.

                        CHANGES IN EXISTING LAW

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires the committee to publish changes in existing law made 
by the bill as reported. Passage of this bill will make no 
changes to existing law.

                                  [all]
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