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March 28, 2013

Jeff Telander U.S. Environmental Protection Agency Mail Code: D243

- 02 109 TW Alexander Drive Research Triangle Park, North Carolina 27709

Re: Comments on informal Small Business Panel meeting on March 14, 2013

- Brick and Structural Clay MACT
Dear Jeff,

I appreciate the time and effort put in by you and your team in planning and presenting the information at the March 14 informal small business panel meeting. We continue to believe that clear communication between indust ry and EPA is critical to ensure that the MACT for this category is a reasonable and supportable standard that accurately reflects the data for our industry and meets the requirements of the Clean Air Act (CAA). We believe that an accurate analysis of the data for our industry and a full consideration of all approaches allowed by the CAA can result in a rule that both protects human health and the environment AND allows our important industry to continue. Therefore, we again ask that EPA not sign the prop osed consent decree and that EPA not agree to any schedule going forward unless it allows for a full regulatory development process, including a full and meaningful small business panel and full consideration of the potential for a health

- based alternative to this MACT.
Based on discussions with the other small entity representatives (SERS), I offer the following overall comments on behalf of our industry on the topics raised at the meeting.

Health

- based approach. We commend your continued consideration of health

- based approaches for threshold pollutants as a component of this rulemaking. Based on the data we have supplied to you, we strongly believe that our industry is a logical candidate for this approach as EPA’s own emissions models demonstrate that t here is no risk to public health or the environment from these emissions. We are committed to continuing to work through issues that arise from a health

- based approach. We are concerned, however, about the availability of single, technologically sound air pollution control devices to control the relatively minor amounts of non

- threshold pollutants. Su ch devices, if available, would be beyond the reach of most of our small businesses and should only be required where the benefits justify their use.

Removal of viable controls

. In any economy, especially our current economy, EPA should not require the removal of viable controls that were installed in good faith in response to the previous MACT . D ata Via email2 | P a g e

clearly show that the current emission level s do not cause harm to public health or the environment. If a facility is forced to remove a DLA and replace it with a DIFF , costs of the small incremental emissions reduction are incredibly high. For example, as one of our members explained at the meeting, his facility would see an additional cost o f $500,000 per ton of gaseous HAP removed. This is an astronomical number considering that EPA’s own emissions models demonstrate that there is no risk to public health

or the environment from these emissions

. MACT on MACT/Ratcheting down. It remains our strong concern that EPA uses the Clean Air Act to justify a fresh restart in determining floors and does not acknowledge that the controls that were installed would not hav e been installed in the absence of the first MACT. The basic assumptions that were integral to the development of the CAA language on MACT floors simply no longer exist. EPA is not taking a look at what occurred organically in industry, in the absence of a regulation , as the CAA writers envisioned . EPA is including controls that were installed directly in reaction to a regulation

— a regulation that already had a MACT floor determination . The fact that the rule was vacated after creating its impact is rel evant in that it created an artificial floor of control which conflicts with the organic floor approach mandated by the CAA ( as a determination of what an industry can tolerate with respect to installed controls ). In addition, the vacatur was not due to a ny action on this industry’s part. These MACT on MACT results as they are currently being applied was c ertainly not the basis assumed when Congress was establishing the procedures for establishing the MACT floor approach.

EPA should consider a total HAP approach to setting the emissions standards if EPA develops a “traditional” MACT alternative. This would help reflect the “real world” in the analyses and would conceivably help to mitigate the MACT on MACT effects that a pollutant by pollutant approach

e xacerbates. At a minimum, EPA should look at looking simultaneously at all gaseous HAP since all of these emissions are based on the content of the compounds or their precursors as traces naturally occurring in the raw material used to make brick. They a re not independently controllable

- nor are they able to be independently selected in the raw material. It should be noted that the MACT floor is only the first step in any analysis and the combined lowest levels of each pollutant can easily be evaluated f or its control viability in an analysis that looks “beyond the floor.”

MACT floor

. We continue to not understand how EPA can justify their app roach based on a “plain language” interpretation of 112(d)(3)(A) in some cases and ignore clear meaning of another part of the very same sentence . The EPA clearly emphasizes the parenthetical “for which the Administrator has emissions information” and the phrase “for categories and subcategories with 30 or more sources , ” but ignores the clear phrase “ in the c ategory or subcategory,” even though the words are all in the same
sentence. The words “in the category or subcategory” clearly mean that a MACT floor cannot be based on sources that are outside of the source category , which is defined as major sources in the brick and structural clay industry

. When calculating the burden of the rule , EPA freely accepts that all area sources (to include “synthetic area” sources) are not in the category and not subject to the standard

. The EPA must be consistent in whethe r a source is in the category and subject to possible regulation or outside the category and not available for floor determinations. Again, the CAA did not intend for “MACT floors” to become essentially the only step in the rulemaking process. Clearly, t he guidance in3 | P a g e

the CAA for the second step of looking beyond the MACT floor in establishing MACT clearly demonstrates that a “floor” that was more stringent than any other possible option was not envisioned.
In establishing the MACT floor for all source s, EPA should also continue with the decision made in 2010 to base the floor on 12 percent of the population of sources, as opposed to 12 percent of a biased dataset. We commend EPA for this decision and agree with its premise. We understand that subcate gorization decisions could im pact whether the basis for this decision remains for all subcategories.

Accurate costs based on actual control devices

. We understand that costs are not directly considered at the MACT floor. However, an accurate assessment o f costs is required for the small business panel process, as well as for inter

- and intra

- agency review. We are concerned that EPA is apparently basing some of its assessment of costs and control effectiveness on devi ces th at have never been used in the b rick industry

. It makes no sense that a MACT floor

- based standard, which is supposed to reflect what is being achieved could require the use of controls that have never been used in the brick industry to control pollutants that have never been controlled b y a facility in the brick industry.

The b rick industry requests that EPA provide additional information on th e following device s : the “enhanced DIFF” , stand alone fabric filter and the carbon injection system (identified in documents provided after the meeting) , including how EPA determined that t hese control s would be viable and provide the cited emission reductions and how the costs were determined. It appears from costs provided by the EPA that EPA is assu ming increasing lime flow alone will directly relate to a corresponding increase in efficiency. EPA should provide a technical basis showing that this actually works in the real world and not just mathematically or theoretically

. The use of a percent reduc tion as the metric of what stack tests indicate the best performing sources may be doing can also lead to a false conclusion of what all sources can do without taking inlet loadings into consideration. We are currently in the process of scheduling a meetin g with the EPA that we hope will continue the information exchange on this important topic.
Subcategorization

. EPA should continue to use the same subcategories of tunnel kilns that were used in the previous rulemaking. During the fir st MACT rulemaking EPA found sufficient justification to subcategorize tunnel kilns between small and large units at ten tons per hour, using their discretion. There were no concerns raised in subsequent litigation over the selec ted subcategories, only that one subcategory was exempt from regulation. In order to fully comply with the now vacated MACT , the brick i ndustry added 80 control devices, creating an even greater disparity between the two groups. EPA should use it s discretion to continue the same subcategories to reflect this disparity.

Information Needs. Based on discussions with all SERs, we request that EPA include information on the following topics in the formal small business meeting materials. As we state d at the meeting, we have limited resources to provide feedback in this process. Therefore, whenever possible, we ask that EPA remove needless scenarios from our review list. If this is done, we will be better able to provide meaningful input on the tru e options under consideration. For example, we believe that we have provided you with sufficient information to support several key decisions. Continuing to provide data4 | P a g e

when EPA has sufficient data takes time away from other areas

. Please identify an y data gaps that need to be filled to ensure that EPA can support the following conclusions:

 Periodic kilns should be a separate subcategory

 Periodic kilns should be regulated by work practices

 Dioxin emissions are not above detection limits and should be regulated at most by work practices.

 EPA should be using 12 percent of the category, not 12 percent of the stack data, when establishing MACT floors for most, if not all, pollutants and subcategories.
In addition, we would like to have EPA present informat ion on the following topics:

 We would like to hear about o ptions EPA is considering to avoid devastating impacts associated with the possible need to remove many of the multi

- million dollar controls for the control of only a small amount of PM

- HAP and poss ibly mercury. For example, given the relatively small quantities of each :

o Has EPA evaluated whether a visible emission alternative could be viable for PM ?

o Has EPA evaluated whether work practices are a viable alternative for either, or both, including the work practices included for some sources in the boiler and other MACTs ?

o We request that EPA provide an estimate of the relative emissions of these pollutants from our industry as compared to pre

- and post

- MACT emission levels in other regulated industries

.

 Depending on how much has been handled in the interim in other meetings, we also request that the next SER package include more information on:

o The technical and cost rationale for controls that do not currently exist in our industry, including: standalo ne fabric filters, “enhanced” dry inject ion fabric filters, carbon

injection systems or “enhancements” for control of brick kiln emissions. We ask that information include:

 Where did EPA obtain costs for these systems ?

 Why does EPA believe these systems a re viable or even possible for the control of brick kiln emissions ?

 How EPA has determined the emission reduction effectiveness of each of these systems ? For example,

 Can EPA share the information it has to support that mercury emissions and subsequent e mission reductions presumed from control from our industry are technically supported, and that the measurement at these ultra low levels is economically feasible to verify and measure or even possible ?

o W e are unaware of data or information that demonstra tes that the form of mercury suspected to be emitted from our facilities is the form that can be captured in a carbon

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 We would like more information on the basis for several key positions in the consideration of the health

- based standard. In a category such as ours where every major source is being modeled, has EPA considered whether some overly conservative approaches could be relaxed, such as :

o One emission limit for the entire category or subcategory

- we ask what other interpretations EPA believe could be acceptable for this category, rather than extreme limits that could be based on a single outlier.

o Considering short term impacts during this step, based on a decision that may have been made for residual risk reviews. In addition, has EP A considered whether one of the other short

- term indicators is proper for use in this category?

 Our industry will be working to review the information presented by EPA on the control costs, including the available information included within the tables o n the cost factors and will develop a complete list of questions in the future. However, at present we request further information be provided at the next meeting on the following:

o What justification EPA used to move from a useful life of 10 years to a u seful life of 20, with no new information?

o On what basis does EPA presume that loans for controls that add no value to our product would be financed for 7% interest over 20 years? Where does EPA believe these types of loans would originate?

o Lime costs, li me disposal costs, carbon and lime combined disposal costs.

o The EPA is apparently estimating costs in 2011 dollars. Since this rule will not be proposed until at least 2013 and will not be complied with until 2016 or 2017, how does EPA justify using 2011 a s the base year?

 We would like to see a preliminary summary of expected compliance approaches that would be required for each of the possible MACT standards. We understand that EPA would be starting with the language of the vacated rule. However, we woul d like EPA’s thoughts on the types of things that might be changed.
Our industry strives to provide you with the best feedback possible on this critical rule. We appreciate your efforts to communicate with us and look forward to our continued interaction. Please feel free to
contact me at smiller@bia.org or (919) 380

- 2191 if you have any questions.
Sincerely,

Susan Miller VP, Environment, Health & Safety Brick Industry Association