November 23, 2009 

VIA EMAIL AND 

CERTIFIED MAIL (# 7009 0820 0000 2395 9565) 

Mr. Scott Jordan 

Air and Radiation Law Office 

Office of General Counsel 

U.S. Environmental Protection Agency 

ARN: MC-2344A 

1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

RE: USEP A's Clay MACT ICR Data Analysis 

Dear Mr. Jordan: 

This letter follows up on our September 9, 2009 telephone conversation about how the 

Environmental Protection Agency ("EPA") may use the emissions data that has been 

submitted by Kohler Co. ("Kohler") in response to Information Collection Requests 

("ICRs") related to a redeveloped Clay Maximum Achievable Control Technology 

("MACT') rule. As we discussed, Kohler does not support EPA's apparent "MACTon-MACT' approach to establishing the Clay MACT standard. Kohler's concerns are 

discussed in greater detail, below. 

Background 

EPA promulgated a Clay Ceramics MACT rule (40 CFR 63, Subpart KKKKK) in May 

2003. See, 68 Fed. Reg. 26,690 (May 16, 2003). In 2005, Kohler installed a new 

sanitaryware tunnel kiln at one of its US facilities. At that time the facility was deemed 

subject to this Clay MACT rule and, accordingly, a wet scrubber was installed on the 

new tunnel kiln to meet this rule. The facility's operation air permit was revised and 

the applicable requirements from the Clay MACT were incorporated into that permit. 

An initial performance test for the new tunnel kiln was completed in February 2007 

while utilizing the wet scrubber (the "February 2007 Test"). 
In March of 2007, the Clay MACT rule was vacated by the United States Court of 

Appeals for the District of Columbia, with the mandate to vacate issued in June 2007.1 

Though the federal Clay MACT rule no longer existed, the state where this facility is 

located had incorporated the federal rule, by reference, into its administrative code. 

The state believed that its state-only Clay MACT rule still applied to the new tunnel 

kiln, even though the referenced federal rule no longer existed. As such, the facility 

continued to operate the wet scrubber. Kohler contested this decision with the state 

regulatory agency, and as explained below, the state ultimately agreed with Kohler on 

this issue in January 2009. 

As a result of the Clay MACT vacatur and remand, EPA must redevelop a new Clay 

MACT rule that will correct the deficiencies identified in the court's decision. 

Although the court did not vacate the rule because of an inadequate or incomplete data 

set, EPA nonetheless decided to update its data set as part of the rule redevelopment 

process and sent out a new ICR to all potentially affected sources in July 2008. 

Kohler complied with EPA's request and completed the ICR for the sanitaryware 

facility in question. Kohler submitted its response to EPA in September 2008 which 

included the HAP emission rates measured as part in the February 2007 Test while the 

new tunnel kiln was using a wet scrubber (as dictated by the vacated Clay MACT rule). 

This wet scrubber was still being operated at that time because of the state-only Clay 

MACT rule provisions. 

In January 2009, the state agency agreed with Kohler that the state-only Clay MACT 

rule was not legally applicable to the tunnel kiln/wet scrubber. The air pe1mit was 

revised in March 2009 to remove all Clay MACT requirements, and the wet scrubber 

was shut down in March 2009. 

In March 2009, Kohler submitted an update to its September 2008 ICR response to 

document that this tunnel kiln no longer operated with a scrubber. Nonetheless, EPA 

notified Kohler in June 2009 that the emissions data associated with the February 2007 

Test would be included in the data set for the floor calculation of the revised Clay 

MACT standard-despite the tunnel kiln no longer operating with the wet scrubber nor 

being required to operate the wet scrubber. 

Discussion 

1 Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007). 
As discussed below, Kohler does not agree with EPA's proposed use of the February 

2007 Test data submitted by Kohler in reestablishing the Clay MACT rule. 

I. No emission limitation exists for the tunnel kiln that would require use of a 

wet scrubber and therefore the February 2007 Test data cannot be used to 

establish the Clay MACT floor for existing sources. 

The Clean Air Act ("CAA'') requires that a MACT standard for existing facilities be 

established based on the "average emission limitation achieved by the best performing 

12 percent of the existing sources .... " (emphasis added). See 42 U.S.C. 7412(d)(3)(A). 

The term "emission limitation" is defined in relevant part as " ... a requirement 

established by the State or the Administrator. ... " See 42 U.S. C. § 7602(k). 

There is (and never was) an "emission limitation" applicable to the tunnel kiln that 

requires Kohler to use a wet scrubber. The Clay MACT "emission limitation" 

previously established by the Administrator (and adopted by reference into the state 

code) was vacated in March 2007.2 That vacatur was subsequently acknowledged by 

the state regulatory agency and all Clay MACT emission limitations were removed 

from Kohler's Title V air permit in March 2009. When an emission limitation is 

vacated, it is as if that requirement never actual existed. In short, the "emission 

limitation" requiring the use of a wet scrubber on Kohler's tunnel kiln never legally 

took effect. 

Since the CAA requires that MACT standards for existing sources be established based 

on an "emission limitation" achieved, and no such "emission limitation" actually 

existed requiring use of a wet scrubber on the tunnel kiln, the February 2007 Test may 

not be used in establishing MACT for existing clay sources. Instead, EPA must use 

data for the kiln that does not rely on a scrubber and which therefore represents the 

average "emission limitation" achieved on the unit. 

II. In re-establishing the Clay MACT standard, EPA must use data that is 

representative of current unit operations (i.e., operating the kiln without a 

wet scrubber). 

The configuration of a facility can, and often does, change with time. An emission 

unit's control equipment may be supplemented or modified to comply with ever 

2 Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007). 
changing federal and state requirements, as well as market and operational influences. 

That is what happened here with a change in federal requirements. 

EPA is obligated to establish a MACT floor based upon data from "existing sources" as 

they are operated before promulgation of a standard. See, 42 U.S.C. § 7412(d)(3). 

Kohler's tunnel kiln is an "existing source" as it was constructed and/or last modified 

prior. to promulgation of the new Clay MACT standard. As such, EPA's floor 

calculation must include data for Kohler's tunnel kiln that reflects its current operating 

configuration without a wet scrubber. 

III. EPA's use of the February 2007 Test data (i.e., utilizing a wet scrubber) 

would lead to the creation of an impermissible "MACT-on-MACT" 

standard. 

EPA's use of the February 2007 Test data (reflecting the use of a wet scrubber) would 

result in the creation of an improper "MACT-on-MACT" standard. In this regard, the 

February 2007 Test data reflects Kohler's compliance with the vacated 2003 Clay MACT limitations. EPA is now attempting to use this MACT data for establishing the 

floor for a new MACT standard. This will result in an improper compounding of 

control technologies-a "MACT-on-MACT" standard. This approach is improper for 

several reasons. 

EPA's "MACT-on-MACT" approach circumvents the court's order vacating the 2003 

MACT standard. Although the Court vacated the standard rendering it unenforceable, 

EPA is still seeking to indirectly enforce the 2003 Clay MACT requirements by 

including the February 2007 Test data in the floor calculation. This, in effect, results in 

EPA perpetuating the enforceability of the 2003 Clay MACT standard in contravention 

ofthe court's order. 

Indeed, the sole purpose of Kohler's wet scrubber installation was to comply with the 

illegal 2003 Clay MACT rule. If that illegal rule had never existed, the wet scrubber 

would not have been installed on the tunnel kiln and the February 2007 Test data would 

not exist. The fact that the court invalidated the 2003 MACT rule and its associated 

emission control requirements requires EPA to eliminate any data from sources, such as 

Kohler, that were controlled solely to comply with this invalid rule. Further, Congress did not intend for EPA to create "MACT-on-MACT' limitations by 

establishing MACT floors multiple times. 42 U.S.C. § 7412(d)(6). This would lead to 

absurd results in that the standards become so stringent over time that many existing 
sources would not be able achieve them, thereby rendering meaningless the 

congressional directive in CAA § 112( d)(2) that the standards be "achievable."3 

EPA has recognized this Congressional directive when revising MACT emission 

standards under CAA Section 112(d)(6).4 Under this section, EPA must determine, 

every 8 years, whether it is appropriate to revise established MACT standards taking 

into account developments in practices, processes and control technologies. Id. This 

revision process does not entail reestablishing a new MACT floor for existing sources 

using data from sources that are already complying with a MACT standard (i.e., the 

"MACT-on-MACT' approach). In the coke oven residual risk/technology review 

rulemaking, EPA addressed this point: 

The EPA also believes that interpreting section 112(d)(6) as requmng 

additional floor detenninations could effectively convert existing source 

standards into new source standards. After 8 years, all sources would be 

performing at least at the MACT levels of performance, so that the average of 

the 12% of those best perfom1ers would be performing at a lower level still, 

probably approaching that of new sources. EPA sees no indication that section 

112( d)( 6) was intended to have this type of inexorable downward ratcheting 

effect. 

Nat 'I Emissions Stds for Coke Oven Batteries, 69 Fed. Reg. 48,338, 48,351 (Aug. 9, 

2004). 

The United States Court of Appeals for the District of Columbia Circuit later upheld 

EPA's interpretation of § 112(d)(6) in litigation challenging the hazardous organic 

NESHAP residual risk/technology review rule. In that case, the court agreed with EPA 

that§ 112(d)(6) did not intend for EPA to "start from scratch" in recalculating MACT 

floors when reviewing and revising a MACT standard: 

It is argued that EPA was obligated to completely recalculate the maximum 

achievable control technology-in other words, just to start from scratch. We 

do not think the words "review, and revise as necessary" can be construed 

reasonably as imposing any such obligation. 

3 See National Lime Association v. EPA, 233 F. 3d 625, 632 (D.C. Cir. 2000) (explaining that EPA must 

ensure that emission standards are achievable "under the most adverse circumstances which can 

reasonably be expected to recur.") 

4 Clean Air Act§ ll2(d)(6) requires that "the Administrator review, and revise as necessary (taking into 

account developments in practices, processes, and control technologies), emission standards promulgated 

under this section no less often than every 8 years." 
NRDCv. EPA, 529 F.3d 1077, 1083-84 (D.C. Cir. 2008). 

Since it was never intended that MACT floors be reestablished under CAA § 112(d)(6) 

using a "MACT-on-MACT" approach, it follows that this downward ratcheting effect 

in establishing a MACT floor was not intended in the circumstances at issue here with a 

vacated MACT standard. 

In order to avoid the "MACT-on-MACT" prohibition, EPA must exclude the February 

2007 Test results using a wet scrubber. 

IV. Alternatively, use of initial performance test data, obtained before a unit 

experiences normal wear and tear, is not representative of actual unit 

operations, and therefore, should not be considered by EPA in establishing 

a MACT standard.5 

As mentioned above, the vacated Clay MACT rule required that an initial performance 

test be conducted to demonstrate compliance with the vacated emissions limits. Kohler 

conducted this initial performance test in February 2007 just after the wet scrubber was 

installed, and submitted the results of that test to EPA in its September 2008 ICR 

response. Even if EPA were to consider the February 2007 Test data in setting a 

MACT floor, this data from an initial performance test is not representative of true unit 

performance because it does not account for normal wear and tear that will be 

experienced by the emissions unit. 

In at least one previous rulemaking procedure, EPA required that test data from sources 

conducting initial perfmmance tests be removed fi·om a MACT floor data set. EPA 

reasoned that data fi·om initial performance tests are often not representative of 

emissions units that had experienced normal wear and tear and therefore, the tested 

emission rates could not be expected to be achieved on a continuous basis. See 

generally Nat'/ Emissions Stdsfor Hazardous Waste Combustors, 64 Fed. Reg. 52,828 

(Sept. 30, 1999). 

V. Certification of test data requires use of the March 2009 data set. 

5 This argument is merely offered as an alternative in the event EPA chooses to include the February 

2007 Test results in its MACT floor calculation. As explained in Section I, II, III and V, Kohler does not 

agree that including the February 2007 Test data in the MACT floor calculation is appropriate. 
Kohler certified the "truth, accuracy and completeness" of the information provided in 

response to the July 2008 I CR. The data was accurate at the time it was submitted to 

EPA. 

However, as discussed above, this data set is no longer representative of the actual unit 

performance or operational configuration of the tunnel kiln. As such, it does not 

represent the appropriate data to be used in redeveloping the Clay MACT. Kohler Co. 

believes that the data submitted in September 2008 is not an accurate and complete 

representation of the tunnel kiln emissions as they exist today. 

Conclusion 

We appreciate the opportunity to participate in the rulemaking process. Please contact 

me at the letterhead address (Mail Stop 009), telephone number (extension 77263), or 

by e-mail (mike.cassidy@kohler.com) with any questions. 

EHS Specialist 

cc: JeffTelander/USEPA- OAQPS (for inclusion in the record) 

MJC:jav