# CHEROKEE

KATHERINE SAMS RUSSELL GENERAL COUNSEL 

# I

US Environmental Protection Agency Mail Code: 0243-02 109 TW AlexanderDrive Research Triangle Park,NC 27709 Attention: JeffTelander 

# BRICK

# &TILE COMPANY

March 27, 2013 WATERVILLE ROAD P.O

. BOX 4567 MACON , GEORGIA 31208 TELEPHONE 478-781-6800 FAX 478-781-8964



### Re: Brick and Structural Clay NESHAPs

- March 14, 2013 SER Meeting Follow-up Comments Dear Mr. Telander: My name is Kate Russell. I am a fifth generation owner of Cherokee Brick & Tile Company in Macon, Georgia. I have recently come in to work for the Cherokee as General Counsel and had the opportunity to sit in (via telephone) on the SER meeting that was held on March 14. While 1have been following this process closely, 1have remained in the background until now; however, I wanted to take the time to introduce myselfand share a few ofmy thoughts and concerns--both as a business ownerand attorney. Like many ofthe other family brick businesses, to say that I am a "stakeholder" in this process would be an understatement. Cherokee Brick has been in my family for over 113 years and I am honored to be a 5th generation family member with the opportunitytocarry the business into future generations. Obviously the last five or so years have been excruciating for both Cherokee and the industry as a whole. Every dollar we spend is carefully contemplated with the ultimate goal of"justgetting through this recession." While I certainly hope we are coming outof this crisis, it wili take years, if not decades to recover. As a result, the decisions you make regarding the new MACT have the potential to destroy not only my family's business but also manyofthe others you will likely hear from duringthis process. Cherokee, in good faith, spent over 1.5 million dollars to put in controls as prescribed by the previous MACT (and the accompanying Georgia regulations)

. For a company our size, that was a tremendous expense even in a good economy. A conservative estimate ofour annual costs to maintain these controls are around $150,000 per year. The mere thought ofbeing required to remove these controls-which are effectively doing theirjol:r-is incomprehensible. We simply cannotabsorb theexpense. Cherokee Brick is extremely concerned by what appears to bethe direction in theeventua l reproposal and re-promulgation ofa new (second) MACT standard for the BrickIndustry for many reasons, a few ofwhich are listed below: I. EPA should not set the MACT floor based on emission levels that come from already controlled units.a. TheClean Air Act neither prescribes norprovidesjustification for the EPA to set the MACT floor based on emission levels that come from currently controlled units. Both Cherokee and the Industry ethically and in good faith installed emission control units under 2003 Brick MACT. The 2003 standard was subsequently vacated at no fault of the Brick Industry

. Unfortunately, the Industry has been prejudiced by spending money to comply with a standard that was subsequently made obsolete by the courts. Itwould be unreasonable for the EPA to punish the Industry by using a controlled uni t to set the new and even tougher standard in a second attempt to promulgate a new MACT. The units tested have already installed controlsfor MACTcompliance. 2

. Using source data from facilities that are not a part ofthe applicable source category (i.e. Synthetic Minor HAP Sources) as part of a floor calculus would be irrational and inconsistent with Section 112(d)(3)(a)ofthe CleanAirAct.

a. How can it be reasonable touse source datafrom facilities that are notpart ofthe applicable source category to setthe basis from which applicable sources will be regulated? 3. Why has EPA chosen to regulate emission levels ofMercury and Dioxins when there is no real clarity on whether source units in our industry even include detectable levels of either?

a. There is virtually no evidenceto suggest the brick industry emits detectible levels of Mercury and Dioxin. Moreover, the limited data we do have on these pollutants show at most de minimis emission levels of Mercury and nondetectable Dioxin levels. We are not even aware ofMethod 23 testing being part of EPA's Section 114 request. Furthermore, how is it justifiable to regulate negligible emissions levels when the control costs for these particular emissions would cost hundreds of thousands per ton reduced? Unless there is actually objective evidence to prove this is a problem why does the EPA appear to be looking for it? Requiring small businesses to spend at minimum, hundreds of thousands ofdollars tocontrol this made-up problem is reprehensible. 4. Any requirement that businesses must remove functioning and effective controls that were put on in good faith from the last MACT punishes those who have complied with the intent ofthe Clean AirAct.

a. EPA suggesting that future controls under a "new" MACT standard may likely require the removal ofexisting viable controls installed in good faith and with strong commitment to the required compliance regime under the previous MACT. Additional removal costs will run hundreds of thousands per ton of pollutant potentially reduced. We feel this is unconscionable after the Brick Industry spent in good faith hundreds ofmillions ofdollars complying with the previous MACT standard. As an attorney, I respect the task that you individually, and as an agency, have been instructed with. We certainly don't expect a superficial rule that has been watered-down to be meaningless in effect. Instead, I believe both the industry and the EPA can compromise to come up with a well-crafted and effectiverulethatdoes not annihilate an entire industry.Cherokee Brick and Tile genuinely appreciates the opportunity to provide comments to EPA on this critically important issue and will look forward to further communication as the process evolves. Sincerely,

Kate Russell