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~ 1 3 ~ MACT Task Force

May 8, 2009 Via email

Jeff Telander Sector Policies and Programs Division Office of Air Quality Planning and Standards (D243-02) RTP, NC 27711
Dear Jeff, We continue to appreciate your communications with us on the rulemaking activities for our industry. As you know, our Task Force is committed to continuing to work with you on this critical action. We are, however, concerned with the additional data gathering that you mentioned in your May 1 telephone conversation with Susan Miller of BIA. The purpose of this letter is to discuss our specific concerns for periodic kilns. EPA should not pursue testing of periodic kilns for three primary reasons:
A. There is no use for the data once EPA has collected it. B. The cost of the test method is too high, particularly given the size of the source that will be tested. C. Testing of these sources is not technically feasible at this time, since most if not all periodic kilns are idle during the current economic crisis. While we contend that points B and C are moot, given argument A, we have included a discussion of all points in this document for EPA's benefit.
A. There is no use for the data once EPA has collected it Even if we were to forget the fact that the test is not economically feasible and technically possible (see points B and C, respectively), the EPA should not be requiring these tests because Section 114 only allows EPA to collect information that is needed for a rulemaking or enforcement. Since the Brick MACT has not been proposed, the data collection would have to be justified as something that will be used for the rulemaking process. There are two primary factors that impact the emissions from a brick kiln: the content in the mined material and the type of (or lack of) air pollution control devices. No periodic kiln at a

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~ MACT T I' ask Force major source of HAP (i.e., in the source category) has an air pollution control device. Therefore, the testing of an uncontrolled unit is essentially a test of the emissions that occur because of the raw material content. As we discussed in our March 16, 2009 letter, we agree with EPA's position stated in the filing for case on the Primary Copper Smelters MACT (353 F.3d 976). In that case, EPA, citing the Joint Explanatory Statement of the Committee of Conference developed by Congress during the ratification of the 1990 CAA amendments, stated that mined materials cannot be used as a control strategy. The test data from an uncontrolled periodic kiln would be unusable in a rulemaking since it would merely represent the emissions from the raw material, which cannot be a factor in establishing MACT. While the Brick MACT vacatur included a discussion of the possible role of raw material as a control option, this discussion was based on incomplete information available to the court on this issue. We contend that any position taken, particularly when relevant data were absent, does not supersede the dictates or intentions of the CAA. 

### In conclusion, the EPA cannot require the testing of periodic kilns using the authority of section of 114 of the CAA since the data can have no role in establishing the standard for this industry. 

### B. The cost of the test method is too high, particularly given the size of the source that will be tested. In discussions with the BIA, EPA has indicated that, due to the nature of operation of a periodic kiln, the only reliable test method to use would be fourier transform infrared (FTIR) spectroscopy. For a single test at a brick periodic kiln, the EPA has estimated that this test would cost approximately $50,000. This cost represents a significant percent of a periodic kiln's revenues and essentially all of the profit that would be generated by a typical periodic kiln, if these units were even in operation at this time. We contend that an assessment of the economic feasibility ofthese tests should be based on the revenue/profits of periodic kilns only, not the total facility or company as you suggested in your telephone call. (However, we must affirm that we consider a$50,000 cost for a single test is unreasonable under any circumstances). The annual capacity of periodic kilns is typically only a fraction of the capacity of continuous, tunnel kilns. For example, periodic kilns typically have capacities of 16,000 to 18,000 tons per year. A 10 ton-per-hour tunnel kiln would have an annual capacity of 87,600 tons. If a periodic kiln was even in operation (see Section C), the typical capacity utilization of these kilns is relatively low, typically approximately 25 percent of listed capacity (NOTE: capacities are generally calculated based on the size of a kiln load and the time to load, fire, and unload. Periodic kilns are often idle for extended periods between loads.) Based on industry survey information, the average selling price for brick in 2006 was $234.40 

### per 1000 brick. An average brick can weigh between 3.5 and 5.0 pounds. For the sake of this 2

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### discussion, we will be conservative in our brick size (i.e., making the revenue generated per ton of brick conservatively high). If a brick weighs an average of 4.0 pounds: Revenue generated per ton: $.23440/brick * 1 brick/4.0 Ib * 20001b/ton =$117.2 / ton. Using an average of 25 percent of capacity on a 17,000 ton per year kiln, the cost of the test (i.e., $50,000) as a percent of total sales and profit (roughly 12% of sales in a good year) are: Cost of test as percent of total sales [50000 /(17000*117.2*.25)]: 10 % Cost of test as percent of profit (before interest and taxes): 83.6%
We do not believe that these costs are reasonable. 

### The cost of the preliminary tests (i.e., data collection) for use in setting the standards are not the only costs that must be considered. If a standard were to be based on emissions testing using FTIR, it is reasonable to assume that compliance demonstration would also be based on such a test method. The $50,000 compliance test for each periodic kiln would be completely unreasonable, especially considering both the total profit for a periodic kiln and the minimal amount of emissions that come from these units. EPA continuing on this path would essentially wipe out any production at periodic kilns, even in high-demand years. This could include periodic kilns at small businesses that only operate periodic kilns, essentially driving these small businesses from the market. It is important to understand that periodic kilns represent a small portion of the overall clay brick market (i.e., generally less than 2 percent per year) and are 

### becoming a lower percentage over time due to higher manufacturing costs (i.e., per brick) for periodic kiln operations. 

### C. Testing of these sources is not technically feasible at this time. In this slow economy, most facilities have seen a dramatic drop in the capacity utilization for all kilns, both tunnel and periodic. The drop in the use of periodic kilns, whose products tend to be more labor-intensive and more costly to produce, have dropped to near zero. In fact, at this time, we have not identified a single periodic kiln in operation at a major source. We are also concerned about the technical accuracy of this test. Of the three tests that EPA has on periodic kilns, one test has significantly lower emissions that the others, with no reasonable explanation as to the cause. This lower test includes an unexplained period of time during peak temperature where there is little to no emissions detected. Typically, HF emissions would be higher during this time. Even if the tests were to provide useful information and were economically feasible, which we do not believe is possible, the EPA (including testing experts) should work with BIA to determine that an FTIR test would produce accurate and repeatable values.

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### T 1 0 F .— MACT Task Force We request a meeting with you, Scott Jordan, Steve Fruh, Peter Tsirigotis, Tom Walton, and anyone else you feel should be involved to discuss the issue of periodic kilns and other concerns raised in your call with Susan Miller last Friday, May 1. Please feel free to contact me at terry.schimmel@boral.com or (334) 480-2488 or Susan Miller at smiller@bia.org or (703) 674- 1545. Sincerely,

r Q Terry Schimmel Boral Bricks BIA MACT Task Force Lead
Cc: Steve Fruh, EPA Peter Tsirigotis, EPA Tom Walton, EPA Joan B. Rogers, EPA Scott Jordan, EPA BIA MACT Task Force Dick Jennison, BIA President and CEO

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