03/01/2019 - Regulatory Rollback

Brick and Tile National Emissions Standards for Hazardous Air Pollutants (NESHAPs)

by EELP Staff

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Why it Matters

There are over 250 brick and structural clay products manufacturing facilities in the United States. The process of manufacturing brick and clay products releases hazardous acid gases, which cause irritation to eyes and skin. Exposure to these gas pollutants in large doses is associated with chronic lung disease. Brick kilns also emit heavy metals, including mercury and lead, which can cause cancer and respiratory harm. Through the National Emissions Standards for Hazardous Air Pollutants (NESHAPs), EPA requires that brick and structural clay products manufacturers operate emissions control technology and implement work practice standards to minimize and control releases of these hazardous air pollutants.

Current Status

The EPA is reviewing its 2015 Brick/Clay Rule that finalized the NESHAP for brick and structural clay products manufacturing and clay ceramics manufacturing.

July 6, 2018 The D.C. Circuit Court of Appeals remands the Brick/Clay Rule to the agency for review, granting in part and denying in part a petition for reconsideration submitted by two environmental groups. The court finds that EPA failed to adequately justify how and if the agency’s thresholds for certain pollutants were sufficiently safe for human health. The court also finds that the agency erred in its method for determining requisite emissions control technology for brick kilns. The court denies the petitions from industry.

Aug. 8, 2018 EPA publishes a proposed rule amending the NESHAP for clay ceramics manufacturing. The proposal includes recommendations based on industry’s 2015 petition and subsequent conversations between EPA and a clay ceramics company.

Nov. 1, 2019 EPA publishes a final rule amending the NESHAP for clay ceramics manufacturers. EPA issues the rule in response to Kohler Company’s petition for reconsideration on the Oct. 26, 2015 final rule.

History

Oct. 26, 2015 EPA finalizes the NESHAP for brick and structural clay products manufacturing and clay ceramics manufacturing (“Brick/Clay Rule”). The EPA estimates that the 2015 final rule will reduce emissions annually by approximately 375 tons. The EPA previously finalized the NESHAP for these industries in 2003, but the rule was challenged and eventually vacated by the D.C. Circuit Court in 2007. The 2015 Brick/Clay Rule concludes an elaborate process through which the EPA collected additional data and information and received public comment on a proposed rule published in Dec. 2014.

Dec. 22, 2015 Sierra Club and National Resources Defense Council file a petition for review of the Brick/Clay Rule with the D.C. Circuit Court of Appeals. The environmental organizations challenge the EPA’s methodology for determining threshold emissions standards and emissions control technology requirements. They argue that the Brick/Clay Rule violates the Clean Air Act, as it is not sufficiently protective of human health.

Dec. 23-24, 2015 Trade groups for the brick and tile industries, as well as Kohler Company, a plumbing products manufacturer, file lawsuits with the D.C. Circuit. Industry groups challenge EPA’s methodology for setting standards in the Brick/Clay Rule. The court consolidates the cases as Sierra Club v. EPA, No. 15-1487 (D.C. Cir.).

Jan. 19, 2017 EPA files its brief with the court in Sierra Club v. EPA.

Trump Era

Oct. 3, 2017 EPA files a motion to pause the case and postpone oral argument while the agency reconsiders the entire Brick/Clay Rule and determines how it will revise the rule. Sierra Club v. EPA, No. 15-1487 (D.C. Cir.).

Oct. 26, 2017 The D.C. Circuit denies EPA’s motion to pause the case. Oral argument remains scheduled for Nov. 9, 2017. Sierra Club v. EPA, No. 15-1487 (D.C. Cir.).

Nov. 3, 2017 EPA files a motion with the court to deconsolidate the cases and pause industry’s litigation while allowing the environmental organizations’ case to proceed. In the motion, EPA explains that the agency has decided to reconsider the Brick/Clay Rule based on industry’s concerns. EPA also informs the court that it has finished reviewing the environmental organizations’ petition and will not further consider the issues raised. Sierra Club v. EPA, No. 15-1487 (D.C. Cir.).

Nov. 9, 2017 The oral argument takes place. Sierra Club v. EPA, No. 15-1487 (D.C. Cir.).

Nov. 20, 2017 William Wehrum is officially withdrawn as counsel for the Brick Industry Association following his confirmation as Assistant Administrator for EPA’s Office of Air and Radiation.

March 3, 2018 The House of Representatives passes H.R. 1917, which prohibits the EPA from requiring compliance with the Brick/Clay Rule until judicial review is complete. The bill was sent to the Senate but has not received a vote. The compliance date for the Brick/Clay Rule is Dec. 26, 2018.

July 6, 2018 The D.C. Circuit issues an opinion in Sierra Club v. EPA and remands the Brick/Clay Rule back to the agency for review, granting in part and denying in part the environmental organizations’ petition for reconsideration. The court denies industry’s petitions. The court finds that EPA failed to adequately justify how and if the agency’s thresholds for certain pollutants were sufficiently safe for human health. The court also finds that the agency erred in its method for determining requisite emissions control technology for brick kilns.

Aug. 8, 2018 EPA publishes a proposed rule amending the NESHAP for clay ceramics manufacturing. The proposal includes recommendations based on a petition from Kohler and subsequent conversations between EPA and Kohler. Originally, the Brick/Clay Rule encompassed the NESHAP for clay ceramics manufacturing and the NESHAP for brick and structural clay products. EPA appears to be separating these two rulemakings.

Nov. 1, 2019 EPA publishes a final rule amending the NESHAP for clay ceramics manufacturers. EPA issues the rule in response to Kohler Company’s petition for reconsideration on the Oct. 26, 2015 final rule.