1 | P a g e

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 industry 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 proposed 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 there 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. Such 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. Data 

Via email
2 | P a g e

clearly show that the current emission levels 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 of $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 have 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 relevant 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 any action on this industry’s part. 

These MACT on MACT results as they are currently being applied was certainly 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 

exacerbates. 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 are 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 for 

its control viability in an analysis that looks “beyond the floor.” 

MACT floor. We continue to not understand how EPA can justify their approach 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 category 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 whether 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, the guidance in 
3 | 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 sources, 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 

subcategorization decisions could impact 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 of 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 devices that have never been used in the 

brick 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 by a facility in the brick industry. 

The brick industry requests that EPA provide additional information on the following devices: the 

“enhanced DIFF”, stand alone fabric filter and the carbon injection system (identified in documents 

provided after the meeting), including how EPA determined that these controls 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 assuming 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 reduction 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 meeting 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 first 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 selected subcategories, only that one 

subcategory was exempt from regulation. In order to fully comply with the now vacated MACT, the brick 

industry added 80 control devices, creating an even greater disparity between the two groups. EPA 

should use its 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 stated 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 true options under consideration. For example, we believe that we have 

provided you with sufficient information to support several key decisions. Continuing to provide data 
4 | P a g e

when EPA has sufficient data takes time away from other areas. Please identify any 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 information on the following topics:

 We would like to hear about options 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 possibly 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: standalone fabric filters, “enhanced” dry injection fabric filters, carboninjection 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 are 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 emission 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 We are unaware of data or information that demonstrates that the form of mercury 

suspected to be emitted from our facilities is the form that can be captured in a carbonbased system.
5 | P a g e

 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 EPA 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 on 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 useful 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, lime 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 as 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 would 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