H. Rept. 114-439 - BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS ACT OF 2016114th Congress (2015-2016)
Committee Report
| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.4557 |
| Committees: |
H. Rept. 114-439 - 114th Congress (2015-2016)
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House Report 114-439 - BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS ACT OF 2016
[House Report 114-439]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-439
======================================================================
BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS ACT OF 2016
_______
February 29, 2016.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4557]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4557) to allow for judicial review of any final
rule addressing national emission standards for hazardous air
pollutants for brick and structural clay products or for clay
ceramics manufacturing before requiring compliance with such
rule, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
Statement of General Performance Goals and Objectives............ 7
New Budget Authority, Entitlement Authority, and Tax Expenditures 7
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 7
Committee Cost Estimate.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Advisory Committee Statement..................................... 9
Applicability to Legislative Branch.............................. 9
Section-by-Section Analysis of the Legislation................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Dissenting Views................................................. 10
PURPOSE AND SUMMARY
H.R. 4557, the Blocking Regulatory Interference from
Closing Kilns (BRICK) Act, was introduced by Rep. Bill Johnson
(R-OH) on February 12, 2016, together with Rep. Sanford Bishop
(D-GA), Rep. Martha Roby (R-AL), Rep. Terry Sewell (D-AL), and
Rep. John Shimkus (R-IL). The legislation addresses the
Environmental Protection Agency's (EPA) National Emission
Standards for Hazardous Air Pollutants (NESHAP) for Brick and
Structural Clay Products Manufacturing and for Clay Ceramics
Manufacturing published on October 26, 2015. Key provisions of
H.R. 4557 include the following:
The bill would extend the compliance dates for
the final rule to allow for completion of judicial review
before compliance by the affected entities would be required.
BACKGROUND AND NEED FOR LEGISLATION
EPA published its final rule entitled NESHAP for Brick and
Structural Clay Products Manufacturing; and NESHAP for Clay
Ceramics Manufacturing (2015 Brick MACT) on October 26,
2015.\1\ EPA has promulgated this rule pursuant to section 112
of the Clean Air Act (CAA), which authorizes the agency to set
emissions standards for certain sources that emit mercury and
other hazardous air pollutants (HAP). The final rule applies to
kilns at brick and structural clay products manufacturing
facilities, and at clay ceramics manufacturing facilities.\2\
Compliance for existing affected sources is required by
December 26, 2018.\3\
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\1\See NESHAP for Brick and Structural Clay Products Manufacturing;
and NESHAP for Clay Ceramics Manufacturing; Final Rule, 80 Fed. Reg.
65469 (October 26, 2015). EPA published a correction to make two
technical corrections to the published regulation on December 4, 2015.
See 80 Fed. Reg. 75817 (December 4, 2015).
\2\80 Fed. Reg. at 65521, 65544.
\3\Id. at 65539 and 65566.
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Prior to issuance of the 2015 Brick MACT, EPA had issued an
earlier version in 2003.\4\ This earlier rule required brick
plants to install equipment on their kilns to control hydrogen
fluoride (HF) and hydrogen chloride (HCl) emissions, and
particulate matter as a surrogate for metal HAPs including
mercury, and to create work practices to reduce other
emissions.\5\ While the brick industry spent millions of
dollars to comply with the 2003 rule,\6\ almost one year after
the compliance deadline had passed that rule was vacated and
remanded back to EPA by the United States Court of Appeals for
the District of Columbia with direction to rewrite the rule.\7\
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\4\See NESHAP for Brick and Structural Clay Products Manufacturing;
and NESHAP for Clay Ceramics Manufacturing Final Rule, 68 Fed. Reg.
26690 (May 16, 2003).
\5\Id.; see also, e.g. Chamber of Commerce Report published
February 2, 2016, which is entitled, ``Regulatory Indifference Hurts
Vulnerable Communities, No. 7 in a Series of Regulatory Reports,''
available at https://www.uschamber.com/sites/default/files/documents/
files/022360_etra_brick_study_01_29.pdf, p. 7.
\6\Id.
\7\Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007).
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In developing its revised rule, EPA determined that the
substantial emissions reductions achieved by the control
devices installed under the 2003 rule would be the starting
point for the emissions limits under the current rule.\8\ EPA,
in their final revised rule, set the level of performance based
on the controls installed in response to the now vacated
rule.\9\
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\8\See, e.g. NESHAP for Brick and Structural Clay Products
Manufacturing; and NESHAP for Clay Ceramics Manufacturing; Proposed
Rules, 79 Fed. Reg. 75622, 75627, 75635-36 (Dec. 18, 2014).
\9\See, e.g. 80 Fed. Reg. at 65473.
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Legal challenges to the final rule are currently pending in
the Court of Appeals for the District of Columbia.\10\ For the
2015 Brick MACT, concerns have been raised regarding the
legality of the rule, as well as the potentially significant
costs, which may make compliance impossible for many smaller
plants. While EPA estimates annual costs to comply with the
rule to be $25 million, industry estimates have projected the
annual costs to be potentially up to $100 million or
greater.\11\ Concerns have specifically been raised that in
developing the final rule, EPA has incorrectly assumed that
brick companies already have or can readily borrow the capital
needed to install the required equipment, and that the costs of
the rule can be passed on to consumers simply by increasing
brick prices.\12\
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\10\Legal challenges have been filed by environmental organizations
and regulated entities in the U.S. Court of Appeals for the District of
Columbia Circuit. See Sierra Club v. EPA, No. 15-1487 (D.C. Cir.), and
consolidated cases (Case Nos. 15-1492, 15-1493, 15-1496).
\11\See, e.g. Chamber of Commerce Report at pp. 8-9 (``The Brick
Industry Association estimates that the annual cost of the Brick MACT
will be $100 million or more [citation omitted] and that compliance
will be nearly impossible for many smaller plants.''
\12\Id. at p. 8.
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On February 3, 2016, the Subcommittee on Energy and Power
held a legislative hearing on the discussion draft of H.R.
4557. At the hearing, witnesses testified that the brick
industry is dominated by small businesses, many of which are
family owned and have been in operation for many generations,
and are struggling in the current economy.\13\ They raised
concerns that under the timelines of the rule, these small
businesses may be forced to undertake costly compliance
measures, or possibly have to shut down, all before the
legality of the rule is established. For example, Mr. Davis
Henry, President of Henry Brick, a small business which has
manufactured clay brick in Alabama for over 70 years, and who
also serves as Vice Chairman of the Board for the Brick
Industry Association, testified:
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\13\See, e.g. Testimony of Creighton McAvoy (``Approximately
seventy-five percent of the companies in the brick industry are small
businesses and like McAvoy Brick, they have been making brick for a
hundred years or more and have been good employers and neighbors in
their local communities'')
Regulations like these threaten the continued
existence of many small companies in our industry
including mine . . . Henry Brick simply cannot afford
to try and hit another potentially moving target of
Brick MACT compliance. We acted in good faith to comply
with the 2003 Brick MACT and now face some of the
steepest costs in the industry . . . We need the BRICK
Act to ensure that we are not required to invest again
until we know that the standard is not going to change.
This is not a hypothetical issue for Henry Brick. It is
real. It has happened to us. Please do not let it
happen again.\14\
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\14\See, also, e.g. Testimony of Davis Henry (``. . . when we came
into compliance in 2006 with the original MACT, as I have stated, we
spent a million and a half dollars . . . A year later it was vacated.
We have had to operate those control devices since 2007 regardless of
whether there was a MACT in place or not. So we have spent no telling
how much money over that time operating them. . .And now to be faced
with having to replace those with new control devices that are
exponentially higher in cost for only a 4 percent gain or reduction in
emissions seems outrageous.'')
Similarly, Mr. Creighton McAvoy, President of the McAvoy
Brick Company, which has manufactured clay brick and pavers in
Pennsylvania for over 120 years, and who serves on the Board of
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Directors of the Brick Industry Association, testified:
We are concerned that this regulation could become
the moving target that the last Brick MACT did and that
regulatory uncertainty could cripple my ability to
remain in business . . . . We are here to ask your help
to ensure that what happens--happened to companies like
Henry Brick does not happen again. We believe the BRICK
Act can give us this certainty we need.\15\
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\15\See also, Testimony of Creighton McAvoy (``According to EPA's
costs estimates, they expect that we will install and operate a control
device that will cost approximately $1.5 million and become a synthetic
minor source, thus avoiding the Brick MACT requirements. . . If that
control is incapable of helping us get out of this rule . . . we
believe we will have to install a control system that EPA estimates at
costing $2.7 million to control three to five pounds of mercury and 100
to 200 pounds of metals each year . . . We are simply not sure anyone
will loan us the money to purchase these controls or that we will be
able to pay this money back, particularly if it is for the more
expensive system that has never been demonstrated to work on brick kiln
emissions'').
There are an estimated 7,000 workers employed by the brick
industry nationwide.\16\
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\16\See Chamber of Commerce Report at p. 6. For additional
background, see also, e.g. Brick Industry Association, An Overview of
the American Brick Industry available at http://www.gobrick.com/
Resources/American-Brick-Industry.
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WHAT THE LEGISLATION WOULD DO
H.R. 4557 would extend the compliance dates of the final
2015 Brick MACT rule pending judicial review. The bill would
extend the compliance dates for the period of time that begins
sixty days after the final rule, or any successor or amended
rule, appears in the Federal Register, and would end when all
final legal challenges filed during that period have been
resolved, and are no longer subject to legal review.
This bill will ensure that there is adequate time for
meaningful judicial review before the owners and operators of
brick manufacturing facilities are required to make significant
and potentially irreversible decisions regarding capital
investments, or to operate less or shut down, all before the
legality of the 2015 Brick MACT is known. While some have
raised concerns that this bill would create an inappropriate
precedent, here the agency's original rule was vacated after
the compliance deadlines had already passed, and H.R. 4557
seeks to ensure this will not occur with respect to the current
rule.\17\
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\17\The EPA's Mercury and Air Toxics (MATS) rule highlights how
EPA's rules can effectively circumvent meaningful judicial review. For
example, in Michigan v. EPA, 135 S. Ct. 2699 (2015), the U.S. Supreme
Court held that EPA had violated the CAA in enacting regulations for
power plants under Section 112 of the CAA. While the court found the
rulemaking to be legally flawed, as a practical matter, the court's
decision was of limited effect, See, e.g. June 30, 2015 EPA Connect,
The Official Blog of the EPA Leadership (EPA Acting Administrator
McCabe stated following the decision: ``the majority of power plants
are already in compliance or well on their way to compliance'').
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HEARINGS
The Subcommittee on Energy and Power held a legislative
hearing on the discussion draft of H.R. 4557 on February 3,
2016. The hearing was entitled, ``H.R. 3797, the Satisfying
Energy Needs and Saving the Environment (SENSE) Act and H.R.
4557, the Blocking Regulatory Interference from Closing Kilns
(BRICK) Act'' and witnesses included the following:
The Honorable Keith J. Rothfus, U.S. House of
Representatives, Pennsylvania;
Davis Henry, President and CEO, Henry Brick;
Creighton ``Butch'' McAvoy, President, McAvoy
Brick Company;
Vincent Brisini, Director of Environmental
Affairs for Olympus Power;
Dennis Beck, Chairman of the Western
Pennsylvania Coalition for Abandoned Mine Reclamation;
and,
John Walke, Senior Attorney and Clean Air
Director, Natural Resources Defense Council.
COMMITTEE CONSIDERATION
On February 11, 2016, the Subcommittee on Energy and Power
met in open markup session to consider H.R. 4557 and forwarded
the bill to the full Committee, without amendment, by voice
vote.
On February 25, 2016, the Committee on Energy and Commerce
met in open markup session to consider H.R. 4557. During the
markup, no amendments were offered. A motion by Mr. Upton to
order H.R. 4557 reported to the House, without amendment, was
agreed to by a record vote of 28 ayes and 22 nays.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. The
following reflects the record votes taken during the Committee
consideration:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
H.R. 4557 would extend the compliance deadlines for EPA's
2015 Brick MACT rule pending completion of judicial review.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4557 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 4557 contains no earmarks, limited tax
benefits, or limited tariff benefits.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 29, 2016.
Hon. Fred Upton,
Chairman Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4557, the Blocking
Regulatory Interference from Closing Kilns Act of 2016.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Keith Hall.
Enclosure.
H.R. 4557--Blocking Regulatory Interference from Closing Kilns Act of
2016
H.R. 4557 would extend compliance dates for entities
affected by any final rule addressing national emission
standards for hazardous air pollutants (NESHAP) under the Clean
Air Act for brick, structural clay, and ceramic products
manufactured in kilns.
Rules that would be affected by this legislation include:
NESHAP for Brick and Structural Clay
Products Manufacturing; and NESHAP for Clay Ceramics
Manufacturing, published in the Federal Register on
October 26, 2015;
NESHAP for Brick and Structural Clay
Products Manufacturing; and NESHAP for Clay Ceramics
Manufacturing: Correction, published in the Federal
Register on December 4, 2015; and
Any final rule that succeeds or amends those
rules.
The NESHAP rule published on October 26, 2015, requires
manufacturers of brick, structural clay, and ceramic products
to reduce emissions of hazardous air pollutants from kilns.
The bill would extend compliance dates for manufacturers to
allow for resolution of the judicial review process.
Manufacturers would not need to comply with the rule until a
specified period of time after a judgement becomes final (and
would no longer be subject to further appeal or review) for all
legal actions filed during the 60 days after the final rule is
published in the Federal Register.
Based on information from the Environmental Protection
Agency (EPA), CBO estimates that implementing this legislation
would not have a significant effect on EPA's workload and would
have no significant effect on the budget.
Because enacting H.R. 4557 would not affect direct spending
or revenues, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 4557 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
H.R. 4557 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
DUPLICATION OF FEDERAL PROGRAMS
No provision of H.R. 4557 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
The Committee estimates that enacting H.R. 4557
specifically directs to be completed no specific rulemakings
within the meaning of 5 U.S.C. 551 that would not otherwise be
issued by the agency.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
The legislation includes the following provisions:
Section 1: Short title
This section provides the short title of ``Blocking
Regulatory Interference from Closing Kilns Act of 2016.''
Section 2: Extending compliance dates (pending judicial review) of
rules addressing national emission standards for hazardous air
pollutants for brick and structural clay products manufacturing
or clay ceramics manufacturing
This section extends compliance dates of any final rule
addressing NESHAP for brick and structural clay products
manufacturing or clay ceramics manufacturing issued under
section 112 of the CAA.
Section 2(a) provides that the term ``compliance date''
means the date by which any State, local, or tribal government
or other person is first required to comply with the rule.
Section 2(b) provides that the final rules subject to the
Act include any final rule that addresses NESHAP for brick and
structural clay products or for clay ceramics manufacturing
under section 112 of the CAA, including any final rule that
succeeds or amends the EPA final rule published at 80 Fed. Reg.
65469 (October 26, 2015) and 80 Fed. Reg. 75817 (December 4,
2015).
Section 2(c) provides that the time period by which the
compliance dates would be extended would be the period of time
that begins 60 days after the final rule appears in the Federal
Register, and ends on the date on which judgment becomes final,
and no longer subject to further appeal or review, in all
actions filed during the initial 60 days after the rule appears
in the Federal Register seeking review of the rule, including
actions pursuant to CAA section 307.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.
DISSENTING VIEWS
H.R. 4557, also known as the BRICK Act, represents an
effort by the Republicans to delay implementation of the
Environmental Protection Agency's (EPA) final Brick and
Structural Clay Products rule and the final Clay Ceramics
Manufacturing rule (Brick and Clay MACT) by extending all
compliance deadlines pending judicial review. If this bill were
to become law, compliance with the Brick and Clay MACT would be
delayed until ``judgment becomes final, and no longer subject
to further appeal or review.''
I. BACKGROUND
A. Clean Air Act Section 112
Section 112 of the Clean Air Act requires EPA to set
technology-based standards to reduce toxic air pollutants.
Toxic air pollutants, which are also known as hazardous air
pollutants (HAPs), are known or suspected to cause cancer or
other serious health effects, such as reproductive or birth
defects or neurological effects, or adverse environmental
effects. EPA rulemakings aim to reduce the release of 187 HAPs
including mercury, cadmium, lead, benzene and dioxin.\1\
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\1\U.S. Environmental Protection Agency, About Air Toxics (online
at www.epa.gov/oar/toxicair/newtoxics.html).
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In the 1990 Clean Air Act Amendments, Congress established
a new approach to regulating air toxics. Congress directed EPA
to take a technology-based approach to the suite of air toxics
rather than the chemical-by-chemical, risk-based approach that
had largely failed to address toxic air pollution during the
Clean Air Act's first 20 years. Congress's focus was on
achieving substantial reductions in air toxics relatively
quickly using readily available technology. It directed EPA to
follow the technology-based standards with additional
standards, where needed to protect health, as determined
through risk assessments.\2\
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\2\Clean Air Act Sec. 112(f).
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Section 112 requires EPA to develop regulations for
distinct source categories (e.g., power plants, boilers, and
cement kilns) that set specific emission limits based on the
emission levels already being achieved by similar facilities.
These regulations are known as Maximum Achievable Control
Technology--or MACT--standards. For existing sources, the
emission standard must be at least as stringent as the average
emissions achieved by the best-performing 12 percent of sources
in that source category.\3\ For new sources, the emission
standard must be at least as stringent as the emission control
achieved by the best-controlled similar source.\4\ These
minimum emissions levels are known as the MACT floor.
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\3\Id. at Sec. 112(d)(3).
\4\Id. at Sec. 112(d)(3).
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EPA must apply MACT standards to major sources, but may
establish less stringent standards for sources that emit lower
levels of pollution, which are termed ``area sources.''\5\
Major sources are those that emit 10 or more tons per year
(tpy) of any single air toxic or 25 tpy of any combination of
air toxics.\6\ In lieu of applying MACT, for area sources EPA
may require the use of ``generally available control
technologies or management practices.'' EPA also has the
authority under section 112 to set a health-based standard for
pollutants for which a health threshold has been
established.\7\
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\5\Id. at Sec. 112(d)(5).
\6\Id. at Sec. 112(a)(1).
\7\Id. at Sec. 112(d)(4).
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These standards are long overdue. The Clean Air Act
required EPA to establish emission standards for source
categories on a specified schedule and to complete standards
for all source categories by 2000.\8\ Facilities must comply
with emissions limits within three years; or within four years,
if the state or federal permitting authority determines an
additional year is necessary to install pollution controls at
an existing facility.\9\
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\8\Id. at Sec. 112(e)(1).
\9\Id. at Sec. 112(i)(3).
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B. EPA's Final Brick and Structural Clay Products Rule and Final Clay
Ceramics Rule
Standards for Brick and Structural Clay Products and Clay
Ceramics were originally issued on May 16, 2003, but were
subsequently challenged and the D.C. Circuit Court vacated them
on March 13, 2007.\10\ In response to a lawsuit, EPA developed
a new proposal and on September 24, 2015, EPA issued a final
rule covering the Brick and Structural Clay Products industry
and the Clay Ceramics industry.\11\
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\10\U.S. EPA, Fact Sheet: Final Amendments to the Air Toxics
Standards for Brick and Structural Clay Products Manufacturing and Clay
Ceramics Manufacturing, p. 2 (Sept. 24, 2015) (online at www3.epa.gov/
airtoxics/brick/20150924fs.pdf).
\11\U.S. EPA, National Emissions Standards for Hazardous Air
Pollutants (NESHAP) for Brick and Structural Clay Products
Manufacturing; and NESHAP for Clay Ceramics Manufacturing, 80 Fed. Reg.
65470 (Oct. 26, 2015) (final rule) (online at www.gpo.gov/fdsys/pkg/FR-
2015-10-26/pdf/2015-25724.pdf) (hereinafter ``Brick and Clay MACT
Rule'').
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The brick and structural clay products production process
consists of preparing the raw materials (primarily clay and
shale), forming the processed materials into bricks and shapes,
and drying and firing the bricks and shapes. The clay ceramics
production process consists of processing clay, shale, and
other additives, forming the processed materials into tile and
sanitary ware shapes, and drying, glazing, and firing the tile
and sanitary ware shapes.
Within the Brick and Structural Clay Products industry,
there are 44 major sources of pollution--36 of which are small
businesses\12\--that manufacture face brick, structural brick,
brick pavers, other brick products, clay pipe, roof tile,
extruded floor and wall tile, and other extruded dimensional
clay products. For this category, EPA set a health-based
standard for acid gases (i.e., hydrogen fluoride, hydrogen
chloride, and chlorine); and technology-based standards for
non-mercury metals (or particulate matter as a surrogate) and
mercury.\13\
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\12\See, U.S. EPA, Regulatory Impact Analysis: Final Brick and
Structural Clay Products NESHAP, p. 2-9--2-10 (Jul. 2015) (online at
www3.epa.gov/airtoxics/brick/20150928ria.pdf).
\13\U.S. EPA, Brick and Clay MACT Rule, 80 Fed. Reg. 65470 (Oct.
26, 2015) (final rule) (online at www.gpo.gov/fdsys/pkg/FR-2015-10-26/
pdf/2015-25724.pdf).
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Within the Clay Ceramics rule, there are two categories of
units: (1) tile units and (2) sanitary ware units. None of the
units in the tile unit category are major sources.\14\
Accordingly, there will not be any costs or emissions
reductions for these units.\15\ For sanitary ware units, only
one company owns units that are major sources, and therefore it
will be the only company that will incur costs.\16\
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\14\Note: all are considered synthetic area sources, which means
they have voluntarily become minor sources.
\15\See, U.S. EPA, Brick and Clay MACT Rule, 80 Fed. Reg. 65470 at
65512 (Oct. 26, 2015) (final rule) (online at www.gpo.gov/fdsys/pkg/FR-
2015-10-26/pdf/2015-25724.pdf).
\16\Note: all of the rest of the units are minor sources. Id. at
65513.
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II. H.R. 4557, THE BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS
(BRICK) ACT
A. Summary of the BRICK Act
Section 2 of the bill delays implementation of the final
Brick and Structural Clay Products rule and the final Clay
Ceramics Manufacturing rule, by extending all compliance
deadlines based on pending judicial review. Under subsection
(b), the compliance or submission date extension applies to
``any final rule to address national emission standards for
hazardous air pollutants (NESHAP) for brick and structural clay
products manufacturing or clay ceramics manufacturing under 112
of the Clean Air Act,'' or any subsequent rule.\17\
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\17\H.R. 4557, the ``locking Regulatory Interference from Closing
Kilns (BRICK) Act'' at Sec. 2(b).
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Subsection (c) establishes a uniform time period for all
compliance deadline extensions. Under the legislation, the time
period starts 60 days after the final rule appears in the
Federal Register, and ends when ``judgment becomes final, and
no longer subject to further appeal or review.''\18\
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\18\Id. at Sec. 2(c).
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B. Issues raised by the BRICK Act
The bill's proponents argue that legislation is needed to
delay implementation of EPA's Brick and Clay rules until all
legal challenges are resolved by the courts. However, legal
challenges to final EPA rules are routine and courts have the
power on their own to stay the effectiveness of regulations
under court challenge.
The bill throws out existing judicial process by
legislatively granting a blanket extension for any compliance
deadline, regardless of the merits of the legal challenge or
the final outcome. Under the legislation, effectuation of EPA's
Brick and Clay rules would automatically be delayed by however
much time it takes to conclude litigation. This would encourage
frivolous challenges and additional appeals in order to extend
the ultimate compliance deadlines set under the EPA final rule.
Previous attempts to grant blanket compliance extensions for
EPA rules have been met with similar criticism.\19\
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\19\See, e.g., H.R. 2042, the Ratepayer Protection Act. At the
April 14, 2015 legislative hearing, Massachusetts Assistant Attorney
General, Melissa Hoffer, pointed out that the current judicial process
for delaying a rule ``has withstood the test of time, and ensures that
courts will undertake a careful balancing of interests before granting
a stay of agency action,'' and she further explained that the blanket
extension in the discussion draft would ``create powerful incentives
for frivolous litigation in an effort to stall and avoid compliance
with the Clean Power Plan.'' (online at
democrats.energycommerce.house.gov/sites/default/files/documents/
Testimony-Hoffer-EP-Ratepayer-Protection-2015-04-14.pdf).
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At the full committee markup, Rep. Rush noted that:
Well-established legal factors exist for granting a
stay. These factors take into account whether there is
a likelihood of success on the merits, the prospect of
irreparable harm to the moving party and other parties,
and most importantly, whether granting the stay is in
the public interest. The courts have used these factors
time and time again to determine whether to grant a
stay and for how long. There is no reason for Congress
to override this process and the judgment of the
court.\20\
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\20\House Committee on Energy and Commerce, Statement of Rep. Rush,
Debate on H.R. 4557, the ``Blocking Regulatory Interference from
Closing Kilns (BRICK) Act,'' Full Committee Markup of 17 Bills, 114th
Cong. (Feb. 25, 2016).
And Ranking Member Pallone went on to mention that using
the existing judicial process is preferable to Congressional
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intervention:
[i]ndustry working with EPA, and using existing
authority to seek a stay if absolutely necessary, is a
better path than pursuing a legislative fix. As was the
case when we considered a similar provision for power
plants in the Ratepayer Protection Act, the litigation
delay in the BRICK Act creates a very bad
precedent.\21\
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\21\House Committee on Energy and Commerce, Statement of Rep.
Pallone, Debate on H.R. 4557, the ``Blocking Regulatory Interference
from Closing Kilns (BRICK) Act,'' Full Committee Markup of 17 Bills,
114th Cong. (Feb. 25, 2016).
To date, none of the parties have filed motions with the
court to stay EPA's Brick and Clay rule.
III. CONCLUSION
We oppose H.R. 4557 and we do not support the legislative
remedy offered in the bill. While we believe the brick and clay
industry has legitimate reasons to contest the current Brick
and Clay MACT rule, the industry has not availed itself of the
appropriate judicial remedy which has always been available to
them requesting a stay of the rule by the court. This problem
should be resolved by the judiciary, not by Congress. Further,
the bill would incentivize all parties that contest these rules
to file repeated challenges resulting in endless delay of this
rulemaking and continued uncertainty about the regulatory
status of these facilities.
H.R. 4557 sets an extremely bad precedent. The majority has
offered this remedy in other legislation in response to other
authorities and rulemakings of the Clean Air Act. Had Congress
adopted a policy in the Clean Air Act that rulemakings would
not be final until all court challenges and lawsuits had been
resolved, we would never have achieved the tremendous public
health and environmental benefits that we now enjoy. The Clean
Air Act does provide judicial remedies. If petitioned, the
courts already have the power to stay a rule if warranted. This
is the appropriate remedy in this situation.
For the reasons stated above, we dissent from the views
contained in the Committee's report.
Frank Pallone, Jr.,
Ranking Member,
Committee on Energy and Commerce.
Bobby L. Rush,
Ranking Member,
Subcommittee on Energy and Power.
[all]