89–010 

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 cerVerDate Sep 11 2014 06:38 Dec 07, 2018 Jkt 089010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR407.XXX SR407

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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-supportsnew-brick-bill-aiming-to-extend-epa-emissions-timeline-300609699.html. 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. 

tain 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. 

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. 

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 


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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: 


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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. 


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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. 


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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_finalbrick-neshap_2015-0907.pdf. 

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. 


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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. 

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. 

THOMAS R. CARPER. BENJAMIN L. CARDIN. BERNARD SANDERS. SHELDON WHITEHOUSE. KIRSTEN GILLIBRAND. CORY A. BOOKER. EDWARD J. MARKEY. CHRIS VAN HOLLEN. 


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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. 

Æ 


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