[Senate Report 115-407]
[From the U.S. Government Publishing Office]
Calendar No. 577
115th Congress } { Report
SENATE
2d Session } { 115-407
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BLOCKING REGULATORY INTERFERENCE FROM CLOSING KILNS ACT OF 2018
_______
December 4, 2018.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 2461]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 2461) to allow for judicial review of
certain final rules relating to national emission standards for
hazardous air pollutants for brick and structural clay products
or for clay ceramics manufacturing before requiring compliance
with the rules by existing sources, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
GENERAL STATEMENT AND BACKGROUND
S. 2461 provides that the existing source compliance date
for the Environmental Protection Agency's (EPA) National
Emission Standards for Hazardous Air Pollutants (NESHAP) is
delayed for the brick, clay, and tile industries (also known as
the Brick Maximum Achievable Control Technology, or ``Brick
MACT,'' rule). Compliance will not be required until the
earlier of the following dates: (1) two years after the date on
which judicial decisions on the contested NESHAP regulation
become final and are no longer subject to further appeal and
review; and (2) December 26, 2020. Under the bill, the
compliance deadline will therefore become effective no later
than December 26, 2020. This addition of a date certain
contrasts with the legislative text in S. 839, the Blocking
Regulatory Interference from Closing Kilns Act of 2017. The
change responds to feedback that the Committee received on S.
839 at a legislative hearing on November 14, 2017. In response,
Senator Wicker, sponsor of S. 839, introduced bipartisan S.
2461 with Senator Donnelly as an original cosponsor.
The original Brick MACT rule was published on May 16, 2003.
The brick industry estimates that, industry-wide, $100 million
was spent to comply with the rule before the U.S. Court of
Appeals for the D.C. Circuit vacated the rule as unlawful in
2007.\1\ Since compliance efforts were already underway, most
existing facilities meet the requirements that would have been
imposed under the 2003 rule, and many states have required
controls that comply with that original standard.
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\1\Brick Industry Association (BIA), ``BIA Supports New BRICK Bill
Aiming to Extend EPA Emissions Timeline'' (Mar. 7, 2018), https://
www.prnewswire.com/news-releases/bia-supports-new-brick-bill-aiming-to-
extend-epa-emissions-timeline-300609699.html.
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In 2015, the EPA issued new Brick MACT regulations that
significantly tightened emission standards from those in the
2003 rule, orphaning the investments made to comply with the
vacated 2003 rule. The 2015 rule's compliance date for existing
sources is December 26, 2018. The rule requires companies to
submit test results certifying compliance within 180 days of
the compliance date, and resubmit every five years thereafter.
In 2016, the industry estimated that compliance with the
2015 rule would cost $100 million annually.\2\ Compliance cost,
divided by the number of plants currently operating, threatens
to make many brick companies uneconomical. The brick industry
is largely composed of family-owned businesses that were hard
hit by the 2008 recession and the slow recovery of construction
industry. Given the excessive costs, the industry challenged
the rules in court. Industry challenges were rejected on July
6, 2018 in the U.S. Court of Appeals for the D.C. Circuit.
Unless the court's decision is reversed or this legislation is
passed, the industry faces a looming December 2018 compliance
date.
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\2\U.S. Chamber of Commerce, ``Regulatory Indifference Hurts
Vulnerable Communities'' at 2, 9 (2016), https://www.uschamber.com/
sites/default/files/documents/files/022360_etra_
brick_study_01_29.pdf.
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OBJECTIVES OF THE LEGISLATION
S. 2461 would delay the compliance date for existing
sources under the 2015 NESHAP to lessen the regulatory burden
that could otherwise make many brick companies uneconomical.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 states that this Act may be cited as the
``Blocking Regulatory Interference from Closing Kilns Act of
2018''.
Section 2. Extension of existing source compliance dates for certain
final rules relating to brick and structural clay products and
clay ceramics manufacturing
Section 2 states the existing source compliance date under
the contested final NESHAP regulations is delayed until the
earlier of: (1) the date that is two years after the date on
which judgment on a contested final rule becomes final and is
no longer subject to appeal or review; and (2) December 26,
2020. The section further states that in the case of a judgment
entered against the EPA relating to a contested final rule, the
Administrator shall finalize new rules with respect to the
NESHAP for brick and structural clay products manufacturing and
clay ceramics manufacturing.
LEGISLATIVE HISTORY
On February 2, 2018, Senator Wicker introduced S. 2461, the
Blocking Regulatory Interference from Closing Kilns Act of 2018
with Senator Donnelly. Senators Capito, Heitkamp, Inhofe, and
Manchin are also cosponsors. The bill was referred to the
Senate Committee on Environment and Public Works.
HEARINGS
A legislative hearing was held on November 14, 2017 in the
Environment and Public Works Subcommittee on Clean Air and
Nuclear Safety on S. 839, the Blocking Regulatory Interference
from Closing Kilns Act of 2017. Following the hearing and in
response to hearing testimony, S. 2461, the Blocking Regulatory
Interference from Closing Kilns Act of 2018, was introduced.
ROLLCALL VOTES
On September 18, 2018, the Committee on Environment and
Public Works met to consider S. 2461. S. 2461 was ordered
favorably reported with a roll call vote of 11 ayes and 10
nays. (Senators Barrasso, Boozman, Capito, Ernst, Fischer,
Inhofe, Moran, Rounds, Shelby, Sullivan, and Wicker voted aye.
Senators Booker, Cardin, Carper, Duckworth, Gillibrand, Markey,
Merkley, Sanders, Van Hollen, and Whitehouse voted nay).
REGULATORY IMPACT STATEMENT
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes evaluation of
the regulatory impact of the reported bill.
The bill does not create any additional regulatory burdens,
nor will it cause any adverse impact on the personal privacy of
individuals.
MANDATES ASSESSMENT
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds that S. 2461 would
impose no Federal intergovernmental unfunded mandates on State,
local, or tribal governments.
S. 1934 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA). The bill contains
no new private-sector mandates as defined in UMRA.
COST OF LEGISLATION
Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of the
reported bill, prepared by the Congressional Budget Office, be
included in the report. That statement follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 3, 2018.
Hon. John Barrasso,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2461, the Blocking
Regulatory Interference from Closing Kilns Act of 2018.
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,
Director.
Enclosure.
S. 2461--Blocking Regulatory Interference from Closing Kilns Act of
2018
S. 2461 would extend compliance dates for entities affected
by final rules addressing national emission standards for
hazardous air pollutants (NESHAP) under the Clean Air Act for
brick, structural clay, and ceramic products manufactured in
kilns.
The rules that would be affected are:
NESHAP for Brick and Structural Clay
Products Manufacturing and NESHAP for Clay Ceramics
Manufacturing, published in the Federal Register on
October 26, 2015; and
NESHAP for Brick and Structural Clay
Products Manufacturing and NESHAP for Clay Ceramics
Manufacturing: Correction, published in the Federal
Register on December 4, 2015.
The NESHAP rule, published on October 26, 2015, by the
Environmental Protection Agency (EPA), requires manufacturers
of brick, structural clay, and ceramic products to reduce
emissions of hazardous air pollutants from kilns. Under that
rule, manufacturers must comply with the regulations by
December 2018.
S. 2461 would extend compliance dates for manufacturers
until September 2020. CBO estimates that revising the rule's
compliance date would not have a significant effect on the
agency's workload or spending.
The bill also would require EPA to finalize new NESHAP
regulations within one year after judicial review of the rule
is completed. Using information from EPA about current
activities related to the NESHAP and similar rules promulgated
under the Clean Air Act, CBO estimates that the costs of
undergoing a new rulemaking would total about $1 million over a
period of two to three years. That amount includes the costs
for personnel and contracts necessary to develop and issue a
proposal, to receive and respond to public comments, and to
issue a final rule.
Enacting S. 2461 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2461 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 2461 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On January 10, 2018, CBO transmitted a cost estimate for
H.R. 1917, the Blocking Regulatory Interference from Closing
Kilns Act of 2017, as ordered reported by the House Committee
on Energy and Commerce on December 6, 2017. The two pieces of
legislation are similar; however, S. 2461 would require EPA to
conduct a new rulemaking to replace the current NESHAP, whereas
H.R. 1917 would not. As a result, CBO's estimate of the costs
to implement S. 2461 are higher than for H.R. 1917.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
MINORITY VIEWS OF SENATORS CARPER, CARDIN, SANDERS, WHITEHOUSE,
GILLIBRAND, BOOKER, MARKEY AND VAN HOLLEN
S. 2461 would delay achievable Clean Air Act air toxic
standards for the brick, clay, and tile industries until
December 31, 2020. Such a delay would result in an increase in
hazardous air pollution, which would negatively affect the
health of millions of Americans and punish manufacturers that
have already made investments necessary to meet the current
standards.
When legislators enacted the Clean Air Act Amendments of
1990 they thought the nation's major emitters of air toxics
would be regulated by 2000. Unfortunately, it took almost two
decades to reduce emissions from some of our largest emitters
of cancer-causing pollution, with the brick kiln industry being
one of the last sources to be regulated.
The delays in air toxic emission reductions from the brick
kiln industry are a direct result of EPA not following the law.
In 2003, President George W. Bush's EPA issued emission
standards for the brick kiln industry that violated the Clean
Air Act's requirements and were subsequently vacated by the
courts. The courts required President Obama's EPA to rewrite
the rules while the brick kiln industry continued to operate
without the need to comply with any federal air toxic
standards. EPA's failures in 2003 led to over a decade of
harmful air toxics emissions, and great uncertainty for
industry and for states and their citizens affected by these
emissions.
In 2015, EPA finalized new national emission standards for
hazardous air pollutants (NESHAP) for brick and structural clay
products manufacturing and clay ceramics manufacturing (known
as the brick kiln industry). All major emitters in this
industry must meet maximum achievable control technology (MACT)
standards by December 31, 2018. EPA estimated annual costs of
implementing the rule would be $24.6 million and the
quantifiable annual benefits would be between $76 and $170
million.\1\ These estimates underrepresent the expected air
quality and health benefits of this rule. According to EPA,
``[D]ata, resource, and methodological limitations prevented
EPA from monetizing the benefits from several important benefit
categories, including benefits from reducing exposure up to 375
tons of hazardous air pollutants (acid gases and metals) each
year, as well as reducing ecosystem effects and visibility
impairment.''\2\ EPA also estimated that only two to four
facilities out of the 69 facilities expected to be subjected to
the emission requirements are at significant risk of closure.
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\1\80 FR 65470.
\2\U.S. EPA, ``Regulatory Impact Analysis: Final Brick and
Structural Clay Products NESHAP,'' (July 2015), https://www3.epa.gov/
ttnecas1/docs/ria/nonmetallic-mineral_ria_final-brick-neshap_2015-
0907.pdf.
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S. 2461 proposes a delay in the compliance date of the
brick kiln NESHAP from December 31, 2018 to December 31, 2020
and requires EPA to respond to a recent lawsuit in a short
timeframe. Although S. 2461 improves upon S. 839, significant
concerns remain and we continue to oppose S. 2461, as written.
EPA has already signaled the agency will provide the brick kiln
industry with an extra year to comply with the standards,
pushing the compliance date back to December 31, 2019. The
agency's announced compliance extension will, as a practical
matter, provide relief for any facility that needs additional
time to comply.\3\ Further delaying the imposition of air
toxics standards for brick kilns without assurances that EPA
will not further weaken the standards does not make sense at
this time.
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\3\U.S. EPA ``MACT Compliance Extension Requests for Brick
Manufacturing Facilities,'' (July 14, 2018) available at https://
www.eenews.net/assets/2018/09/18/document_pm_01.pdf.
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Thomas R. Carper.
Benjamin L. Cardin.
Bernard Sanders.
Sheldon Whitehouse.
Kirsten Gillibrand.
Cory A. Booker.
Edward J. Markey.
Chris Van Hollen.
CHANGES IN EXISTING LAW
Section 12 of rule XXVI of the Standing Rules of the Senate
requires the committee to publish changes in existing law made
by the bill as reported. Passage of this bill will make no
changes to existing law.
[all]