[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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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]